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
Findings Of Fact In response to a newspaper advertisement, in May of 1990, Petitioner Peter Ballance submitted to Respondent Town of Palm Beach his employment application, together with an extensive resume, seeking a position as a Mechanic III with the Town's Public Works Department. On May 31, 1990, Petitioner was interviewed for that position by an interview panel of four persons: David Kyzar, Lloyd McCoy, William Krouse, and Leonard Greene. At the beginning of his interview, Petitioner spoke in a whisper. He explained that he stuttered and speaking in a whisper made it easier for him to communicate without stuttering. Within the first few minutes of his interview Petitioner relaxed and began speaking in a normal tone. The members of the interview team had no difficulty communicating with Petitioner, and Petitioner had no difficulty communicating with them. No member of the interview team had any concern about Petitioner's stuttering since one employee with a severe stutter already worked in the Town's Public Works Department, and one employee with a stutter worked as one of the Town's police officers. Further, the members of the interview team understood that the position for which Petitioner was applying would not require much verbal communication. During the interview, Petitioner spoke of his extensive qualifications. The position of Mechanic III is the Town's highest level mechanic position. According to both the job description and the discussion during the interview, a Mechanic III is expected to work with little or no supervision, is able to handle any repair job, and can perform the highest level of preventive maintenance on the Town's vehicles. During the interview Petitioner represented himself to be able to work on all vehicles based upon his 30 years' experience working on all types of engines and vehicles. Essentially, Petitioner represented that he could repair anything. Petitioner specifically advised that he did not like working in a flat rate shop. A flat rate shop uses a book which rates each job as to time so that the shop can give a customer a quote as to how much that job will cost. The book gives the maximum and minimum time periods for that job. Since it does not take mechanics the length of time to do the job which the flat rate book indicates is the appropriate time, the mechanic is actually paid for more time than the job took. It is easy, therefore, for a mechanic to be paid for 70 hours of work, for example, when he actually only worked a regular 40 hour work week. Petitioner explained that he thought the use of flat rates was an unethical practice and that Petitioner liked to take his time in repairing engines because he liked doing quality work. Petitioner's dislike of flat rate shops posed no problem to the interview team since the Town does not operate a flat rate shop. The interview team discussed with Petitioner his experience with diagnostic equipment. Petitioner specifically represented during the interview, as well as on his resume, that he is proficient in operating the Sun Interrogator II, an engine analyzer. Petitioner's experience with that machine was important since the Town used the Sun Interrogator II in its shop. Petitioner was the most qualified applicant for the position. All members of the interview team were favorably impressed with Petitioner's extensive mechanical ability and with how he handled himself during the interview. He was hired as a Mechanic III in the Town's Public Works Department. Petitioner began his employment on June 14, 1990, a Thursday. On that Thursday and Friday and for the following full week, Petitioner worked under Mike Sharpe, the mechanic foreman responsible for overseeing the operation of the Town's vehicle maintenance shop. Sharpe was Petitioner's immediate supervisor, and Sharpe's own immediate supervisor was David Kyzar, the vehicle maintenance supervisor and a member of Petitioner's interview team. Kyzar's immediate supervisor was Lloyd McCoy, the division manager who served on Petitioner's interview team with Kyzar. McCoy's immediate supervisor was Al Dusey, the Director of the Public Works Department of the Town of Palm Beach. During that first partial week and first full week while Petitioner's immediate supervisor Mike Sharpe was supervising his work, Sharpe began to question Petitioner's ability to perform his duties. Sharpe found that Petitioner took an inordinate amount of time to perform any job assigned to him and specifically noted that Petitioner did not know how to hook up the Sun Interrogator II. Sharpe gave Petitioner the manual for the Interrogator and thereafter observed Petitioner using the manual, not as a reference book, but, rather, Petitioner was following the manual step-by-step as he worked. Sharpe assumed that Petitioner was nervous at his new job since Petitioner's demonstrated lack of skill was contrary to the extensive experience Petitioner had represented, both verbally and in writing, that he had. Yet, Sharpe was concerned enough about Petitioner's apparent lack of ability that Sharpe contacted Kyzar who was on vacation to explain to Kyzar his concerns about Petitioner's performance. Starting the following Monday, Petitioner's second full week of employment, it was Sharpe's turn to be on vacation, and Kyzar returned from his vacation to oversee the operation of the vehicle maintenance shop while Mike Sharpe was on vacation. Sharpe continued to be concerned enough about Petitioner's performance that he called Kyzar from North Carolina where he was vacationing to ask Kyzar how Petitioner was doing. Kyzar explained that he was sharing the same concerns that Sharpe had, that is, Petitioner's extreme slowness in performing any task and Petitioner's apparent lack of skill. Kyzar began making personal notations which he kept in his desk regarding Petitioner's work. For example, he made a notation when a job which would normally take 20 to 30 minutes took Petitioner, a supposedly highly skilled mechanic, 4 hours to complete. Kyzar wrote such a memo almost every day. When he did so, Kyzar would speak with Petitioner about Petitioner's extreme slowness and poor performance in a position demanding a high level of skills. Petitioner responded to Kyzar by accusing Kyzar of picking on Petitioner because of his stutter. Kyzar repeatedly told Petitioner that Petitioner's stutter was not a problem but Petitioner's performance was. It was important to Petitioner to discuss with people his stuttering. During Petitioner's first two days of employment before Kyzar went on his one- week vacation, Kyzar took Petitioner through the orientation procedures for new employees. He introduced him to other employees; he took him on a tour of the facilities and showed him where vehicles to be repaired would be located; he made sure that Petitioner filled out the new employee forms required by the Town, and he went over Petitioner's job duties. During those two days, Petitioner on several occasions wanted to discuss with Kyzar Petitioner's speech impediment, and Kyzar listened to Petitioner's explanation and discussed it with Petitioner. After Kyzar returned from vacation and began supervising the vehicle maintenance shop while Sharpe was on vacation, Petitioner came to Kyzar's office several times to discuss Petitioner's stutter and also pulled Kyzar aside in the shop several times to discuss Petitioner's stutter. Kyzar eventually told Petitioner he did not have time to keep discussing Petitioner's stutter when Petitioner's stutter was not a problem. During Kyzar's supervision, Petitioner became critical and vocal regarding the fact that Petitioner did not like the brands of products being used by the Town to repair its vehicles and also did not like some of the procedures followed in the vehicle maintenance shop or followed by the Town. Kyzar's explanation to Petitioner, for example, as to why a governmental entity would have to purchase Goodyear tires rather than Michelin tires did not satisfy Petitioner. All persons are hired by the Town of Palm Beach as probationary employees. Petitioner's probationary period was six months. At the end of Petitioner's first month of employment, Kyzar, his supervisor, and his supervisor's supervisor met and discussed the sharp contrast between the representations made on Petitioner's resume and during Petitioner's interview and Petitioner's actual performance. It was clear to them that Petitioner did not possess the skills necessary to perform repairs at the level of a Mechanic III and, accordingly, did not possess the skills which Petitioner had represented, both verbally and in writing, that he possessed. Petitioner was terminated from his employment by the Town of Palm Beach on July 16, 1990. The sole reason for Petitioner's termination was his poor level of performance and apparent inability to perform the job for which he had been hired. Although the Town's vehicle maintenance shop was not a flat rate shop, the Town expected, and had a right to expect, that Petitioner would perform his duties within a reasonable time. Since Petitioner was either unable or unwilling to accomplish his repair jobs within a reasonable time, the Town had good cause for terminating Petitioner's employment if there had been a requirement for good cause in order to terminate a probationary employee. Petitioner's speech impediment did not cause or contribute to Petitioner's discharge. His speech impediment did not interfere with any of his communications relative to his employment with the Town of Palm Beach. Neither the Town of Palm Beach nor any of its employees discriminated in any way against Petitioner as a result of his stutter. Petitioner testified for a number of hours on two separate days during the final hearing in this cause. Even with the extra stress experienced by many people while testifying and otherwise participating in an evidentiary hearing, Petitioner's stutter did not interfere with his communication. In fact, Petitioner's stutter was barely noticeable and infrequent. Although Petitioner testified that he is able to work on any vehicle due to his extensive experience, he also testified that he should not have been expected to repair domestic vehicles as well as European vehicles since he had worked primarily on foreign vehicles both before and after he moved to the United States in 1983. Although there may be a difference between the nuts and bolts used in foreign cars and those used in domestic cars, there is no difference between foreign cars and domestic cars as far as the procedure for hooking up the Sun Interrogator II and no difference as to the mechanical work to be performed. Accordingly, Petitioner's testimony that he was a little slow because of his unfamiliarity with domestic cars is rejected since it is without factual basis and is contrary to the representations made by Petitioner to the Town in Petitioner's resume, during Petitioner's interview, and during the final hearing in this cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that the Town of Palm Beach did not commit an unlawful employment practice by discharging Petitioner and dismissing the Petition for Relief filed in this cause. DONE and ENTERED this 7th day of December, 1993, at Tallahassee, Florida. LINDA M. RIGOT 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 7th day of December, 1993. COPIES FURNISHED: Jonathan R. Kaplan, Esquire Lubin & Gano, P.A. Second Floor, Flagler Plaza 1217 South Flagler Drive West Palm Beach, Florida 33401 John C. Randolph, Esquire Jones, Foster, Johnson, et al. 505 South Flagler Drive P.O. Drawer "E" West Palm Beach, Florida 33402 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32302-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32302-4149
Findings Of Fact At all times relevant hereto, Denver Owens was licensed as a barber in this state and has been so licensed for 26 years. Although Owens has worked in barbershops for most of the last 26 years, he never owned a shop until he opened this barbershop in Apopka some two years ago. At the time he opened the shop he obtained an occupational license which, with his current barber's license, he thought was all he needed to operate a one-man shop. On April 26, 1984, an inspector with the Department of Professional Regulation saw the barber's sign on the site not on her records and entered the shop to inspect. The only discrepancy which is material to the issues here is that no registration had been issued for the barbershop. When questioned by the inspector, Owens readily acknowledged that he had not applied for registration for a shop because he was unaware such registration was required. The following day Owens submitted an application to register his shop and obtained registration dated May 4, 1984. When told the Department proposed to assess a fine of $250 against him for operating without a shop license, Owens requested a hearing, the file was forwarded to the Division of Administrative Hearings, and this hearing ensued.
The Issue The issue to be resolved in this proceeding concerns whether Ronnie L. Ricks, has been a victim of an unlawful employment practice allegedly perpetrated by the employer, the Respondent, City of Gainesville (City), because of its termination of him, allegedly because of his race.
Findings Of Fact The Petitioner, Ronnie L. Ricks, was employed by the City of Gainesville as a Motor Equipment Operator I from June 9, 2003 to August 6, 2003. The Respondent, City of Gainesville, is a municipal corporation organized under the laws of the State of Florida, and is an employer for purposes of Chapter 760, Florida Statutes. Upon accepting employment with the City, the Petitioner was made aware of the written job description including the job functions and selection factors specified in the job description. He was also provided and made aware of the written City of Gainesville Policies and Procedures, including policy number 6 relating to and describing the six-month probationary period applicable to all new employees. Upon being hired by the Respondent and commencing work as a Motor Equipment Operator I, on June 9, 2003, the Petitioner's continued employment was subject to the satisfactory completion of a six-month probationary period. The Respondent's written policy relating to the probationary period stated that, "The probationary period shall be regarded as an integral part of the selection process and shall be utilized for closely observing the employee's work for securing the most effective adjustment of a new or promoted employee to the position and for rejecting any employee whose performance or conduct is not satisfactory." Further, the policy stated, "During the probationary period, the supervisor and Department Head may discharge an employee who is unable or unwilling to perform the duties of the position satisfactorily or whose habits and dependability do not merit continuance in the employ of the City." At all times relevant to this action, the essential job functions of the position of Motor Equipment Operator I included a requirement that the employee, "Attends work on a continuous and regular basis." Additionally, among the "non-essential job functions" was a requirement that the employee, "Makes minor repairs and adjustments to equipment. Checks oil and tires." One of the selection factors listed in the written job description for the position of Motor Equipment Operator I was, "Ability to work effectively with co-workers and the general public." The Petitioner claims to have suffered discrimination when his crew leader allegedly told other employees that the Petitioner was a "policeman." He maintains this caused black co-workers to shun him or refuse to speak to him. He also contends that his supervisor allegedly made comments about his clothes and his car. Apparently, he means that his choice of clothing for work was criticized because he allegedly wore "designer clothes" for a job which required more casual work clothes. He also feels he was discriminated against because of his supervisor's alleged comments concerning the type or model car he drove. The Petitioner maintains he was harassed by his supervisor when he refused to mow a retention pond in an area he was assigned to maintain. He claims the retention pond had a hole in it and he felt it was dangerous to mow it on the tractor. When he refused to do the job, his supervisor Ed Sams completed the job. The Petitioner also contends he was discriminated against because he had to complete a City of Gainesville Accident Analysis form after damaging a tractor by bending the metal roof of the tractor when he hit an overhanging tree limb. He maintains that white employees were not disciplined for such conduct. Aside from his contention that white employees were not disciplined for damaging equipment and he was, the Petitioner did not testify that any of the alleged discriminatory or harassment acts he cited were in any way related to his race or other protected status. There was no substantial evidence offered at hearing to support the Petitioner's claim that his crew leader Ed Kersey, ever referred to the Petitioner as a "policeman" or other similar term. The Petitioner made that accusation in his testimony based on uncorroborated hearsay, the relator of which was not present as a witness. His crew leader, Ed Sams, testified that he did not make such a statement and further testified that his father was a career law enforcement officer and he had a great deal of respect for such a position and would not have used "policeman" or a similar term in a derogatory way. The Petitioner claimed that his supervisor, Ed Sams, made derogatory comments about his clothes and car. The Petitioner claims that those comments were inappropriate but did not indicate that they were discriminatory on the basis of race or in any other way. Supervisor Sams testified that he has no recollection of making comments about the Petitioner's clothes and did not recall him dressing inappropriately during his brief employment with the City. He was never reprimanded or otherwise disciplined concerning the clothes he wore. Supervisor Sams did acknowledge making comments about the Petitioner's vehicle in that he testified he had merely asked the Petitioner's opinion concerning the various qualities of that vehicle because he was considering purchasing a similar one for himself. Concerning the Petitioner's testimony about being "harassed" by being ordered to mow a retention pond he considered to be an unsafe site, Supervisor Sams testified regarding that incident. He showed it to be an example of the Petitioner's unwillingness to work effectively with co-workers and his poor attitude toward supervision. On that occasion, Mr. Sams witnessed the Petitioner sitting near an unmowed retention pond and inquired why he was not working. The Petitioner responded that he was going to "let Ed do it." "Ed" was crew leader Ed Kersey, one of the Petitioner's supervisors. Supervisor Sams testified that he was somewhat taken aback by the Petitioner's attitude toward both the assigned work and to his direct supervisor. Ultimately, Mr. Sams performed the required mowing operation and clearly demonstrated that it could easily be safely done. The Petitioner indicated he felt harassed by this incident or this direction to mow the retention pond, but he gave no testimony whatever to indicate that it was racially discriminatory toward him. The Petitioner maintains that he felt harassed when drove his tractor into a tree limb causing damage to the tractor's aluminum canopy. He was required to complete a "City of Gainesville Accident Analysis form," but in spite of his testimony that he was disciplined, there is no evidence to show he was disciplined for the incident. Despite the clear language on the accident analysis report completed as a result of the accident, the Petitioner apparently failed to understand that he was not being disciplined or "written up" for the accident. He was not treated differently from the white employees he maintained were not disciplined for damage to equipment. The Petitioner was merely required to complete the accident analysis report in order to maintain a record of incidents involving City equipment. Under the section entitled "corrective action," the report merely indicated, "reinstruct employee." There was no discipline imposed. Mr. Sams testified that he did not issue a warning, reprimand, re-assignment, or job change as a result of the tractor damage incident. Mr. Sams testified that the Petitioner's obstinance regarding the completion of the accident report form was a further example of difficulties encountered in supervising the Petitioner. Ed Kersey is a Labor Crew Leader II who reports to Mr. Sams and who directly supervised Ricks. In addition to the incident where Ricks refused a directive to mow the retention pond, Mr. Kersey also encountered the Petitioner's obstinance and failure to follow supervision, on occasions when the Petitioner was angry or upset and would mow over litter or trash on the ground rather than pick it up, or have it picked up, before running the mowing machine over it. He also had a tendency to show up late for equipment maintenance work. He was verbally counseled for this, although never "written up," but kept doing it even after being counseled about it. During less than nine weeks in which the Petitioner was employed in the relevant position, he was absent from work for four days. He left early on one occasion without permission and was late at least twice without excuse. When he left early, he left two and one quarter hours early from work without permission. The four days missed from work were without leave or permission. He arrived late for job assignments on the two occasions. His poor attendance in a nine-week period is more egregious because the Petitioner was only working a four-day work week. The Petitioner frequently missed the designated maintenance times set aside for the motor vehicle equipment operators to work together to maintain their equipment. This is a part of their job description. Crew leader Ed Kersey established that this time was specifically designated in recognition that workers could maintain their equipment if they cooperated with each other. When the Petitioner frequently failed to attend the group maintenance sessions, he would complain about the difficulty of performing maintenance tasks alone. In summary, the evidence fails to establish that the Petitioner was discriminated against due to his race or any other protected status. The preponderant evidence showed that the Petitioner's employment was terminated during his probationary period, because his habits and dependability did not merit continued employment. Specifically, the preponderant evidence establishes that the Petitioner's poor attendance record, sub-standard equipment maintenance, and unresponsive and confrontational attitude towards his supervision were all legitimate, nondiscriminatory reasons justifying the termination of the Petitioner's employment, especially considering that he was in his probationary period. The Petitioner offered no persuasive evidence that, as a member of a protected class, he was treated differently or worse in any employment decision or category as compared to similarly situated employees outside his protected class. Additionally, based upon the above-found instances of deficient performance and deficient attitude toward supervision, the Petitioner did not offer persuasive evidence that he was qualified for the position in question from which he was terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Petition in its entirety. DONE AND ENTERED this 22nd day of December, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2004. COPIES FURNISHED: 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 Ronnie L. Ricks 3531 Southwest 30th Terrance, Unit 50-B Gainesville, Florida 32608 Daniel M. Nee, Esquire 200 East University Avenue, No. 425 Gainesville, Florida 32601
Findings Of Fact Petitioner is a black female. At all times material, Petitioner was employed by Respondent corporation in one of its general retail merchandise stores in Ocala, Florida. Petitioner was hired by Respondent's white male store manager, Mr. John Sasse, on October 20, 1992, as a stock clerk in the shoe department. Petitioner was terminated on January 10, 1993, within the ninety day probationary period published in Respondent's employee handbook. In making the foregoing finding of fact, it is recognized that Petitioner attempted to show that the probationary period for new employees was only sixty days. However, she only showed that the sixty day period was applicable in a different time frame than is material here. On October 31, 1992, while working in a stock room, Petitioner's back and neck were injured when a box fell on her. Supervisors called an ambulance, and Petitioner was transported to the emergency room of a local hospital. She was treated but not hospitalized. Respondent duly filed the "Notice of Injury" as mandated by Chapter 440 F.S., "The Florida Workers' Compensation Act," and began to pay Petitioner's medical expenses. Prior to her injury, Mr. Sasse considered Petitioner to be only a marginal employee. Petitioner was released by hospital doctors for return to work as of November 6, 1992. At that time, she had no work restrictions imposed by a doctor, so Mr. Sasse reassigned Petitioner to her usual duties. Petitioner worked at the tasks she felt she could do until November 11, 1992, when she returned to the hospital. She was examined and medicated. Later that same day, as is standard procedure with workers' compensation injuries wherein the employer pays for an injured worker's medical care and as a result has the legal right to specify which doctors attend the employee, Mr. Sasse ordered Petitioner to go to "Care One," a "walk-in" medical facility specializing in occupational medicine. Petitioner went to Care One, where she was again examined and medicated. Petitioner was released for work the same day with written work restrictions from the Care One doctor. Petitioner's resentment against Respondent that she had been injured in the first place apparently was a motivating force in her actions after she returned to work the second time. Petitioner's candor and demeanor while testifying, as well as her persistence in returning her testimony to the circumstances surrounding the box falling upon her in the storeroom, made it very clear that she considered it discriminatory, or at least unfair, that Respondent had "forced" her or anyone to work under the cluttered stock room conditions that had resulted in her initial accident or injury. In Petitioner's mind, at least, the fact that an accident or injury had occurred in the first place was sufficient to establish "dangerous working conditions" and "an unlawful employment practice." After November 11, 1992, she persisted with these complaints to the employer. However, no competent evidence established a nexus between Petitioner's race and her pre-injury job assignments, and no evidence demonstrated that after her accident, the Respondent-employer handled her workers' compensation medical care any differently because she was black. On November 11, 1992, Care One's written restrictions provided: Restricted Employee should avoid movements of the upper body and neck that would place undue stress on the neck, such as strenuous pushing and pulling, heavy lifting, and working above the shoulders. Employee should avoid lifting > 20 pounds, avoid frequent bending and twisting of the back, and avoid strenuous pushing and pulling. Mr. Sasse and his subordinate supervisors assigned Petitioner tasks consistent with Mr. Sasse's interpretation of Petitioner's written restrictions, as modified over time by subsequent information. On November 11, 1992, a position was created for Petitioner in the soft goods department. At this time, Petitioner became the only black clerk in the soft goods department. Initially, Mr. Sasse told her she was not to reach above her shoulders or bend to pick up anything below her knees. Petitioner complained that these tasks constituted too much physical exertion for her due to her physical condition. Petitioner continued to complain about the accident and her pain. The employer and insurance carrier continued to refer her back to Care One. There was a short delay with regard to some medical services requested by Petitioner or by referring and consulting doctors under the workers' compensation medical care delivery system, but the employer/insurance carrier in due course authorized physical therapy, a consultation with an orthopedic specialist, and magnetic resonance imaging (MRI) for further diagnosis. Derrick Proctor, a black male employee and Petitioner's friend, presented as a credible witness, even though he claimed to have been fired by Mr. Sasse under what Mr. Proctor termed "suspicious circumstances" and at the time of formal hearing had some type of action pending against this employer. Mr. Proctor described Petitioner as "embittered" against the employer because of the employer's refusal or delay in dealing with Petitioner's medical concerns and stress. However, it appears that Petitioner's problems, if any, were common disputes and communication delays inherent in the workers' compensation medical care delivery system. For instance, when asked, the doctors reported directly to the employer, insurance carrier, and store manager concerning the Petitioner- employee's medical condition, consultant treatment, and recovery progress. On December 10, 1992, Mr. Sasse told Petitioner that he had received an oral report on her December 9, 1992 MRI results and that they were negative. This conversation occurred before any of the doctors had reported the MRI results to the Petitioner, and Petitioner inferred therefrom that information was being withheld from her. Later, on December 22, 1992, Petitioner learned, during a reprimand and counselling session for insubordination and failure to work up to her capacities, that the employer had been informed much earlier that she could return to work with no restrictions. (See Findings of Fact 32-36) Although Mr. Sassy and others had told her this before December 22, 1992, the events of December 22, 1992 triggered a belief in Petitioner that the employer was "out to get" her. Notwithstanding the extreme light duty assigned her, Petitioner complained about the work assigned and was uncooperative about helping supervisors find a job description she felt she could perform. Although Petitioner may not have known about it until November 25, 1992, on November 20, 1992 Care One deleted the prior restrictions on lifting items over 20 pounds, bending, and strenuous pushing and pulling, and narrowed her restrictions to the following: Restricted. Employee should avoid movements of the upper body and neck that would place undue stress on the neck, such as strenuous pushing and pulling, heavy lifting, and work above the shoulders. In December 1992, Mr. Proctor was required to close his department, hardware, every night, and Petitioner closed the soft goods department some nights. Petitioner considered being required to close some nights to be discrimination against her since she was the only black employee in the soft goods department at that time and the white female employee in soft goods had been switched to the day shift in Petitioner's place. The greater weight of the evidence shows that the whole store's evening hours increased from midnight to 1:00 a.m. due to the Christmas season, and on December 6, 1992, Petitioner was assigned to work nights so that she could go to daytime medical and physical therapy appointments. The employer's accommodation of Petitioner's situation in this respect was comparable to the accommodation given a white female employee in soft goods. Beginning November 23, 1992, that white female employee, Ms. Audrey, had been assigned to a daylight shift so that her husband, who had bad night vision, could drive her to and from work. Race was not a factor in the accommodation rendered Ms. Audrey or Petitioner. Who closed the store during December 1992 depended upon who worked the evening shift, not race. It is not entirely clear on the record whether, on December 3, 1992, Petitioner withdrew from physical therapy because she could not do the weight training assigned her or was rejected by the physical therapist as a client because she would not cooperate in weight training. Petitioner testified that she returned to physical therapy thereafter for ultrasound treatment. It is clear that Petitioner believed she was rejected by the therapist because she could not lift the heavy weights assigned her by the therapist as part of Petitioner's planned recovery. It is also clear that the decision to end the weight phase of Petitioner's treatment did not have employer input. By December 5, 1992, Petitioner's personally professed physical limitations and complaints about Mr. Sasse's treatment of her had resulted in Mr. Sasse accommodating her by creating a "make-work" job description. Under it, she was asked to push a cart that other employees had hung clothes on; she was not required to load the car with clothes. She was required only to pick up single articles of clothing that were left in the women's dressing rooms and return them to the racks. She was told only to bend if an occasional article of clothing was found on the floor. She was also told to open dressing room doors for customers and, if requested, fetch more clothes for them to try on while they remained in the dressing room. Petitioner was permitted to wear her softly padded neckbrace at all times, even though she presented no written doctor's instructions to do so. Petitioner described it as an "agony" imposed on her by the employer when, on December 5, 1992, Mr. Sasse ordered her not to sit continuously on the sales floor in a chair she had removed from the women's dressing room. Petitioner had previously complained because she had been required to sit for long hours on a very hard chair Mr. Sasse had provided for her, and this time she had gotten a different chair herself. On December 5, 1992, Mr. Sasse told her she must leave the dressing room chair in the dressing room for the customers, that she was not permitted to sit all the time on the sales floor where customers could see her, and she must not just sit without doing any work, until all her work was done. He told her to do a variety of the tasks of which she was capable, including but not limited to sitting while pricing goods. Petitioner considered these orders to be contrary to her doctor's limitations and to constitute "physical abuse." Petitioner repeatedly requested time off with pay so that she could recover completely through bed rest. Mr. Sasse would not allow her time off for medical reasons without a doctor's written approval. Petitioner considered this condition imposed by management to be "abusive." Petitioner described Mr. Sasse as being rude to her on December 6, 1992, when he refused to discuss her accusations of "physical abuse" and her request for time off in the presence of other employees and customers in the public buffet area of the store, and walked off, leaving her there. Petitioner referred to this incident as at least part of her "opposition to unlawful employment practices" which she believed resulted in her termination. Petitioner presented no evidence that a doctor had ever recommended that she stay at home and do nothing so that she could heal. From all the evidence, it is inferred that as a probationary employee, Petitioner had no accrued sick leave to expend for this purpose. Ms. Gardner was a long-time white female employee who had her doctor's approval for knee surgery and who required a month of bed rest at home afterwards. The employer allowed Ms. Gardner to use earned compensatory time as sick leave for that purpose during the month of December 1992. By mid-December, 1992, Mr. Sasse was frustrated because Petitioner refused to do every job he devised, even the "make work" ones, and he believed that she only pretended to be busy when he was watching her. Mr. Sasse had told Petitioner that she could do normal work again and she would not accept this from him without hearing it also from her doctor. Mr. Sasse decided to discipline Petitioner for not working up to her limitations as he understood them and for insubordination. He directed the soft goods manager trainee, Ms. Lynn Tyler, a white female, to "write up" Petitioner. Ms. Tyler and the assistant store manager, Ray Harding, a white male, met with Petitioner on December 22, 1992 to discuss the contents of the prepared memo. One of the supervisors' concerns at the time Petitioner was "written up" was that they could not get Petitioner to do anything at all without an argument, even after pointing out various light work job duties on a walk around the whole store. They were also concerned that without Petitioner doing some tasks, the employer had to pay other employees overtime to accomplish what Petitioner was not accomplishing in her regular shift hours. It was stipulated that Petitioner was never asked to work overtime. Petitioner refused to sign the December 22, 1992 memorandum of reprimand because she did not agree with it and because Tyler and Harding were, in her opinion, "grudgeful." Petitioner was informed later on December 22, 1992 by her Care One doctor that he had, indeed, released her for normal work activities effective December 16, 1992. His December 16, 1992 report which had been previously received by the employer read: Please note employee's current duty status is as follows: Regular May return to normal work activities full time. After her accident, Petitioner was observed by Derrick Proctor doing some of the same types of physical exertion the employer had required that she do before the accident, including reaching above her head to put clothes on and take them off clothes racks and picking clothes up from the floor, but he never knew her medical restrictions other than what she told him. He also observed her in agitated conversations with Ms. Tyler and Mr. Sasse while she was wearing a neck brace. On January 7, 1993, he saw Ms. Tyler "very out of sorts" when talking to the Petitioner. At first, he stated that he did not consider Petitioner to be rude or insubordinate on these occasions because the topic was working conditions, but later he admitted that he could not overhear what was actually said on all these occasions. Mr. Proctor also observed that, "Mr. Sasse rode everybody pretty hard," including white workers. It was "his way of getting things done." Mr. Proctor once observed Petitioner hiding in another department, behind racks, to avoid management. Petitioner acknowledged and described her "hiding out" at that time to Mr. Proctor as due to her "feeling mistreated" and "avoiding management." In her formal hearing testimony, Petitioner described it as "opposing unlawful work practices and abusive treatment." After learning on December 22, 1992 of her release from all medical restrictions, Petitioner continued to be uncooperative with management. Petitioner's testimony conceded that she had understood that all doctors had released her with no restrictions as of December 28, 1992 and that she had still refused to reach and bend in the stock room when ordered to do so by Mr. Sasse and Ms. Tyler on January 7, 1993. After evaluating Petitioner's continued failure or refusal to perform even the lightest of duties, Mr. Sasse decided to terminate Petitioner before her ninety days' probationary period ended. Mr. Sasse, who was terminated by Respondent-employer sometime later in 1993 and who, at the time of formal hearing, was litigating an unemployment compensation claim against Respondent, had no reason to fabricate information or testify favorably for the Respondent-employer. He was credible to the effect that the decision to terminate Petitioner in January 1993 was his unilateral decision and that he made his decision without reference to, or motivation by, Petitioner's race. Specifically, it was Mr. Sasse's foundational assessment that Petitioner could physically do the light work he assigned her after reasonable accommodation for a temporary disability but that she would not do the work assigned by him that caused him to terminate her. Petitioner testified that she was replaced by a white female. In fact, a white female was hired approximately one or two weeks prior to Petitioner's January 10, 1993 termination, with a due date to report to work on January 11, 1993, which subsequently turned out to be the day immediately following Petitioner's termination. The employer did not hire this white female with the intent of replacing Petitioner, but she was ultimately placed into the soft goods department. Mr. Proctor testified that other blacks worked in soft goods after Petitioner's termination. Within four weeks of Petitioner's termination, three new employees were hired. None of these were assigned to the soft goods department. Mr. Standley Gillings, a black male, was originally employed in another of Respondent's Ocala stores. In October 1993, Mr. Gillings was demoted with a loss of pay and transferred to the store from which Petitioner had been fired ten months earlier. His new immediate supervisor in that store was also black. Respondent continued to employ Mr. Gillings under the black supervisor until Mr. Gillings found another job and quit.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing the Petition for Relief. RECOMMENDED this 25th day of August, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1994.
The Issue Whether Com-Jet Corporation (Respondent) violated the Florida Civil Rights Act by unlawfully discriminating against Gladys V. Fleites (Petitioner or Ms. Fleites) on the basis of her alleged disability.
Findings Of Fact Com-Jet Corporation repairs airplanes through its division Aircraft Systems (Respondent). Petitioner was employed as an aircraft mechanic by Respondent between June 30, 2008, and April 8, 2011. At the times relevant to this proceeding, Osvaldo Guillam was also employed by Respondent and was described as Petitioner's common law husband or significant other. Mr. Guillam and Petitioner were hourly employees. At all times relevant to this proceeding, Respondent's policy was to require each hourly employee to punch-in his or her time card when the employee arrived at work and to punch-out his or her time card when the employee left work. If an employee could not punch his or her time card because of a physical limitation, the employee was to have a supervisor punch the card for him or her. In February 2011, Melanie Alonso, Respondent's director of human relations, discovered that Mr. Guillam was punching-in and punching-out Petitioner's time card. On February 9, 2011, Ms. Alonso met with Mr. Guillam and Petitioner and told them that each employee was required to punch-in and punch-out his or her own time card. Ms. Alonso told them that one employee could not punch another employee's time card. Petitioner admitted to violating the time card policy and apologized for having done so. At no time did Petitioner indicate that she could not punch her time card due to a physical limitation. Later that day, Ms. Alonso met with all of Respondent's hourly employees and reiterated the company policy pertaining to time cards. Petitioner has had a problem with her left ankle since a fall in 2001. At the times relevant to this proceeding, Petitioner experienced pain while walking and had difficulty standing or bending. Petitioner worked at a table in a seated position. Petitioner did not have a noticeable limp. While Petitioner wore an elastic band on her ankle, that band was covered because Petitioner wore pants to work with a sock over the band. Respondent's management did not know that Petitioner had difficulty with her ankle. Petitioner was scheduled to undergo arthroscopic surgery on her left ankle on March 31, 2011. In conjunction with that surgery, Petitioner requested eight days of leave, which was all the annual leave she had. There was a conflict in the evidence as to what Petitioner told Respondent's management about the leave. The greater weight of the credible evidence established that Petitioner did not tell Respondent's management that she was scheduled to have surgery on her left ankle. The ankle surgery was postponed due to an insurance coverage issue. After finding another surgeon, Petitioner rescheduled the surgery. Respondent's work area has security cameras that monitor activities in the work area. Ms. Alonso reviewed the videos from those cameras after a vacuum cleaner was stolen from the work area in April 2011. During the course of that review, Ms. Alonso observed that Mr. Guillam was punching-in and punching-out two time cards. On April 8, 2011, Ms. Alonso confronted Petitioner and Mr. Guillam. Both admitted that Mr. Guillam had been punching Petitioner's time card. Ms. Alonso terminated the employment of Mr. Guillam and Petitioner on April 8, 2011, for violating the company's time card policy. There was no evidence that Ms. Alonso knew of Petitioner's ankle problems when she terminated her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order dismiss with prejudice the Petition for Relief filed against Com-Jet Corporation by Gladys V. Fleites. DONE AND ENTERED this 3rd day of September, 2013, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 3rd day of September, 2013. COPIES FURNISHED: Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Anthony Joseph Perez, Esquire Law Office of Alfredo Garcia-Menocal, PA Suite 214 730 Northwest 107th Avenue Miami, Florida 33172 Paul F. Penichet, Esquire Paul F. Penichet, P.A. Suite 907, Biscayne Building 19 West Flagler Street Coral Gables, Florida 33130-4400 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue is whether Respondent, Wade Raulerson Pontiac,1/ committed unlawful employment practices contrary to Section 760.10, Florida Statutes (2009),2/ by discriminating against Petitioner based on his race by subjecting him to different terms and conditions than similarly situated employees outside of his protected classification, or by reducing Petitioner’s wages and ultimately discharging Petitioner from his employment in retaliation for engaging in protected conduct.
Findings Of Fact Wade Raulerson Honda and Wade Raulerson Pontiac are each an employer as that term is defined in Subsection 760.02(7), Florida Statutes. They are subsidiary companies of Morgan Auto Group, a Tampa-based company that owns eight car dealerships in Gainesville, Ocala, and the Tampa Bay area. On March 7, 2008, Petitioner, a black male, commenced employment at Wade Raulerson Honda as a detailer. In April 2008, Petitioner was promoted to detail manager. As Detail Manager, Petitioner earned a salary of $950 per week, or $49,400 per year. At the time he was hired, Petitioner received from Morgan Auto Group an “Associate Manual,” essentially an employee handbook setting forth, among other things, the parent company’s policy promoting equal employment opportunity and prohibiting discrimination or harassment based on age, sex, disability, race, color, national origin, sexual orientation, marital status, or “any other non-merit factor.” The Associate Manual also set forth a conflict resolution process for any employee complaints or grievances, including those of harassment, discrimination, or denial of equal employment opportunity. The employee was to first discuss the problem with his supervisor or department manager. If the response at the first step was not timely or satisfactory, the employee could then submit his complaint to the general manager of the dealership, or to the HR manager for the parent company. There were three employees in the Detail Department of Wade Raulerson Honda. As detail manager, Petitioner supervised the other two employees, Berton Curtis, who was black, and Matthew Luchenburg, who was white. Mr. Curtis worked for $8.50 per hour, and Mr. Luchenburg was paid $8.00 per hour. The work performed by Petitioner was termed “detailing” and was performed to prepare used cars for the showroom and sales lot. Petitioner pressure washed the engine, buffed and waxed the car, and shampooed the interior. He examined every detail of the interior and exterior of the used car to ensure that it was clean and ready to show on the lot. The bulk of the work performed by the other two employees was termed “cleaning” or “washing” and was performed on new cars and used cars already on the showroom floor. They vacuumed and dusted the interior, then ran the car through the car wash. Their work was much less exacting and time consuming than the detailing work performed by Petitioner. The evidence presented at hearing established that Mr. Curtis performed some “detailing” work, but that the great majority of the detailing performed on the premises of Wade Raulerson Honda was performed by Petitioner. In addition to paying Petitioner for detailing work, Wade Raulerson Honda also paid an outside vendor $125 per car to perform detailing on used cars. Wade Raulerson Honda also sent some of its used cars to be detailed at Wade Raulerson Pontiac for a fee. These outside sources were used because the volume of used cars was more than Petitioner could handle alone, not due to any dissatisfaction with Petitioner’s job performance. Respondent stipulated that Petitioner’s job performance was very good throughout his employment. In late 2008 and into 2009, the poor economy was especially hard on retail automobile sales. By June 2009, business was off by 40 percent at Wade Raulerson Honda, and management looked for any way possible to cut costs. Wade Raulerson Honda was organized under the headings of “fixed operations” and “variable operations.” Fixed operations comprised the Parts Department and the Service Department, which included the Detail Department. Variable operations included the Sales and the Finance and Insurance Departments. Dan Schmidt, then the general manager of Wade Raulerson Honda, explained that fixed operations are easier to control, and that when business turns down, they are the most obvious place to cut expenses. In June 2009, Mr. Schmidt, in consultation with Tom Yonkers, his Fixed Operations Director, decided to close the Detail Department and to send his used cars to Wade Raulerson Pontiac’s larger detailing facility. Petitioner’s Detail Manager position was eliminated altogether. Mr. Curtis and Mr. Luchenburg were reassigned to new positions in which they performed their washing duties as well as lot cleanup, mowing and edging, and sundry other duties that allowed Mr. Schmidt to make further cuts in maintenance and janitorial expenses. Mr. Schmidt also laid off service advisors and two lube technicians. Mr. Schmidt testified that Petitioner was a good employee, and “good employees are very hard to come by.” Mr. Schmidt sought ways to retain Petitioner’s services. He offered Petitioner a non-management position that would have essentially involved performing the type of work being done by Mr. Curtis and Mr. Luchenburg, but at a rate of $600 per week, significantly more than the other two men were paid. Petitioner declined the offer, saying he could not take such a large cut in salary. Mr. Yonkers contacted his fixed operations director counterpart at Wade Raulerson Pontiac, Charles Jones, to inquire whether Mr. Jones had any openings appropriate for Petitioner. Mr. Jones already had three detailers and was paying them $13 an hour. Two of these employees, including the detail manager, were black. Mr. Jones agreed to meet with Petitioner and to try and make a space for him. Mr. Jones testified that he was interested in grooming Petitioner for the detail manager position. He understood that Petitioner had been making around $900 per week at Wade Raulerson Honda, and believed that a productive Detail Manager would be worth that much money. On or about June 12, 2009, Petitioner met with Mr. Jones at Wade Raulerson Pontiac. They discussed the position that Mr. Jones had in mind for Petitioner and talked about money. Mr. Jones made a tentative offer to Petitioner of $17 per hour with a guarantee of 55 hours per week. He gave Petitioner a “Morgan Auto Group Pay Plan” form filled in with those terms. The form contained signature spaces to be completed by the employee, the employee’s manager, and the general manager of the dealership. Mr. Jones told Petitioner that the offer was not considered binding until all three parties had signed the pay plan. This form was never signed by management of Wade Raulerson Pontiac. Mr. Jones testified that he reported the $17 per hour offer to Mr. Dalessio, who would not agree to pay Petitioner any more money than his current detailers were receiving. Mr. Dalessio believed it was unfair to his current employees to bring in a new man at a significantly higher wage than they were making. A second Morgan Auto Group Pay Plan was prepared for Petitioner, with a pay rate of $13 per hour and no guarantee as to the number of hours per week. Petitioner initially declined this offer. On June 16, 2009, Petitioner was given a transfer notice by Wade Raulerson Honda, stating that he was transferring to Wade Raulerson Pontiac due to the closure of the Honda’s dealership’s Detail Department, “with time served and benefits not lost.” The notice also stated that Petitioner’s future wages were to be negotiated at Wade Raulerson Pontiac, not at Wade Raulerson Honda. On June 16, 2009, Petitioner happened to meet Morgan Auto Group’s HR manager, Jason Hillman, in the parking lot of the Honda dealership. Petitioner showed Mr. Hillman the $17 offer sheet and asked to discuss the matter with him. Mr. Hillman agreed to meet with Petitioner at the Pontiac dealership. They went separately to Wade Raulerson Pontiac and met with Mr. Dalessio to discuss the situation. Mr. Hillman explained that the $17 offer was not binding and that the $13 offer was the only offer on the table for Petitioner. Mr. Hillman stated, not very diplomatically, that the $17 offer sheet was “not worth the paper it was written on.” Petitioner became upset and asked Mr. Hillman to fire him so that he could collect unemployment. Mr. Hillman explained that he could not fire Petitioner because he had not yet accepted the offer from Wade Raulerson Pontiac. He further explained that if Petitioner declined the offer, he would be considered to have been laid off from Wade Raulerson Honda and that the company would not oppose his claim for unemployment benefits. Petitioner eventually accepted the $13 per hour offer from Wade Raulerson Pontiac. He worked and was paid for 12 hours over the course of two days, at the rate of $13 per hour. On June 19, 2009, Mr. Jones met with Petitioner to have him formally sign the $13 per hour pay plan. At that time, Petitioner told Mr. Jones that he could not work for those wages. He left the dealership and did not return to work. Petitioner was not fired from his position. Petitioner alleged that, subsequent to his leaving Wade Raulerson Pontiac, the dealership hired a white detailer named “Joe” at a rate of $15 per hour. However, evidence presented at the hearing established that Wade Raulerson Pontiac hired a detail technician named Joe Halliday on July 13, 2009, at a rate of $13 per hour, the same rate offered to Petitioner. Petitioner offered no evidence to establish that the terms and conditions of his employment were different than those of similarly situated persons outside of his protected classification, or that his wages were reduced or he was terminated in retaliation for engaging in protected conduct. There was no credible evidence that Petitioner ever complained or even mentioned harassment or discrimination on the basis of race to any member of management at Wade Raulerson Honda or Wade Raulerson Pontiac.3/ Petitioner offered no credible evidence that Wade Raulerson Honda or Wade Raulerson Pontiac discriminated against him because of his race, subjected him to harassment because of his race, or retaliated against him in violation of Chapter 760, Florida Statutes. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Wade Raulerson Honda for closing its Detail Department, or by Wade Raulerson Pontiac for declining to hire Petitioner at a salary nearly equal to the amount he made as detail manager at Wade Raulerson Honda. Petitioner disputed the company’s claim that the Detail Department at Wade Raulerson Honda was itself losing money, but failed to establish that the company’s decision to make large cuts in fixed operations expenses was anything other than a rational business decision necessitated by a severe decline in sales revenue. The evidence established that Petitioner was considered a good employee and that the Wade Raulerson dealerships made every good faith effort, consistent with the economic realities of the retail automobile sales business as of June 2009, to retain Petitioner’s services during the economic downturn. The discussions between the parties turned on money, not race. Petitioner simply decided that he could not work for the amount that Wade Raulerson Pontiac offered.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Wade Raulerson Honda and Wade Raulerson Pontiac did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 13th day of September, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2010.
The Issue Whether Respondent unlawfully discriminated against Petitioner.
Findings Of Fact For many years Mark Dunning Industries, Inc. (MDI), held the contract for trash removal and processing for Naval Air Station, Pensacola, Florida (NAS Pensacola). In the summer of 1995, the contract for these services, for a period beginning January 1996, were the subject of a bid solicitation. The apparent winner of the bid was Ohio Disposal Systems, Inc (ODSI). This bid was contested by MDI. Ultimately, ODSI prevailed in the bid contest and was selected to perform the contract. Performance was to begin on January 1, 1996, however, ODSI was not informed that it was to be the contractor until early December 1995. Petitioner was born on July 12, 1922. He is a U.S. citizen from Puerto Rico, and of Hispanic origin. Petitioner first came to be employed by MDI in the summer of 1994. Petitioner worked on the "hill," which is an elevated portion of the trash dump on board NAS Pensacola. It was his job to weld broken equipment. He also operated two kinds of equipment: a Bobcat, which is a small front-end loader, and a backhoe with a dozer blade mounted on the front. Petitioner was paid about $16.00 per hour as a welder. Victor Cantrel, Petitioner's friend, commenced employment with MDI in July 1995. He worked on the "hill" and also drove the Bobcat and the back-hoe. He would utilize this equipment to push trash into a compactor. In trash-handling parlance, he was known as a "hill man." He was not a welder. He worked closely with Petitioner. Mr. Cantrel was born on June 25, 1972, and is Anglo- American. He was paid about $9.00 per hour. The supervisor of Petitioner and Mr. Cantrel, during the latter months of 1995 while they were working for MDI, was Thomas Lucky. The principal of ODSI was Vince Crawford. On or about December 28, 1995, at the end of the workday, Mr. Lucky informed the employees, including Petitioner, Mr. Cantrel, and a number of trash truck drivers, that there was to be a meeting in the company office near the "hill." Present at the meeting in the office, which commenced around 6:30 p.m., was Petitioner, Mr. Cantrel, Mr. Lucky, several truck drivers, Mr. Crawford, and his wife Cathy. Mr. Crawford informed the assembled employees that he was bringing in all new equipment; that because there would be new equipment, the new employees of ODSI would be able to work 40 hours per week; and that due to the requirement to get his company in shape in time to meet the January 1, 1996, deadline, many of the employees of MDI would be offered jobs with ODSI. After revealing these preliminary matters, Mr. Crawford asked a man named Lee what he did at MDI; this man said that he was a truck driver. Mr. Crawford told him that he was hired with the new company. Then he asked Mr. Cantrel what he did; he said he drove the Bobcat. Mr. Crawford said, "Recycle, huh. You are hired." Mr. Cantrel subsequently filed an employment application. However, he knew that after the announcement at the meeting, he was going to work for ODSI. When Mr. Crawford inquired of two more people, they both responded, "truck driver," and Mr. Crawford informed them that they were hired. When he asked Petitioner, Petitioner said, "Welder." Mr. Crawford then said, "We don't need no welders here." This was the first and last encounter Petitioner had with Mr. Crawford. The next day Petitioner arrived at work at the usual time and was informed that he no longer was employed at that facility. On January 2, 1996, Petitioner presented an employment application to the office at ODSI seeking employment as a "Welder and/or Heavy Equip. Opr." He never received a response. No evidence was adduced that at that time there were job openings for a "welder and/or heavy equipment operator." Additionally, according to Petitioner, no one from ODSI informed Petitioner that he was not qualified. No evidence was adduced at the hearing which indicated that Mr. Crawford noticed that Petitioner was 73 years of age, or that he was a Puerto Rican, or that he was of Hispanic origin. The unrebutted evidence demonstrated that Petitioner was not hired, at the time jobs were available, because Mr. Crawford was bringing in new equipment. New equipment does not require frequent welding and, therefore, Mr. Crawford did not need a welder.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered finding Respondent committed no unlawful employment practice. DONE AND ENTERED this 28th day of March, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 28th day of March, 2002. COPIES FURNISHED: Bruce Committe, Esquire 17 South Palafox Place, Suite 322 Pensacola, Florida 32501 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 H. William Wasden, Esquire Pierce, Ledyard, Latta, Wasden & Bowron, P.C. Post Office Box 16046 Mobile, Alabama 36616 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent's working conditions or termination of Petitioner as its employee on July 12, 1996, constitutes unlawful employment practices based on Petitioner's race (African-American)?
Findings Of Fact Petitioner is a Black male.2 Petitioner's Charge of Discrimination before the Florida Commission on Human Relations is not before the undersigned because it was not included in the referral package nor admitted in evidence. The Petition for Relief vaguely alleged "harassment" and clearly asserted termination on the basis of race - "Black." 3 Petitioner was employed by Respondent in its Quincy, Florida, furniture manufacturing plant from January 25, 1983, to July 12, 1996, when he was terminated. Most, but not all, of Respondent's employees are Black. Petitioner was replaced by another Black male, William Baker. The decision to terminate Petitioner, as well as the decision to promote Mr. Baker into the position vacated by Petitioner, was made by Hershel Shepard, plant manager. Mr. Shepard, who died before the evidentiary hearing, was white. The plant manager is the highest-ranking person in the factory. Petitioner was initially hired in 1983 as a double- ended tendon (D.E.T.) machine operator. A D.E.T. machine is a wood-working machine which cuts off two opposite ends of a board at the same time. It requires pre-setting, and it throws out debris and sawdust which is hazardous to employees' eyes. The factory also utilizes other types of wood-working equipment, all of which throw out debris and sawdust which are hazardous to employees' eyes. On January 25, 1983, his hiring date, Petitioner received written safety rules requiring him to wear safety glasses at all times. On May 1, 1986, he signed for an updated set of similar rules. In 1988, Petitioner was promoted to D.E.T. "lead hand," with two or three employees subordinate to him. Petitioner was uniquely valuable to Respondent because he was the only person in the factory who knew how to adjust the D.E.T. machine. That is, he was the only person who knew how to set it up to do specific tasks. However, other employees could run the D.E.T. machine after Petitioner had, in essence, "programmed" it. In 1991, Petitioner hurt his back and was required by his orthopedic physician to wear a back support belt when lifting. He did not go out on workers' compensation leave/pay, but continued to report for work and was given time off to go to therapy. At some point, Petitioner and Mr. Shepard had a dispute about how the belt was supposed to be worn, and Mr. Shepard threatened to "write-up" Petitioner. There is no evidence that Petitioner was, in fact, "written-up" for this. On May 5, 1991, after his back injury, Petitioner was evaluated by Mr. Shepard to the following effect: that he could do the job, but perhaps not as fast as it should be done; that he had a problem keeping his machines running and coordinating loads; that he did "okay" on instructions, but that he had lost his initiative to get the job done and to take an interest in new products; and that he needed to improve his work habits. Mark Maxwell, a white male, supervised Petitioner for two to three months immediately prior to Petitioner's next promotion in 1993. Mr. Maxwell could not get Petitioner to produce the furniture parts from the D.E.T. machine when they were needed. According to Mr. Maxwell, Petitioner's cooperation and/or output fluctuated. Sometimes, Mr. Maxwell ordered Petitioner to run certain parts and the parts were not run. On one occasion, he had ordered Petitioner to run drawer fronts, and Petitioner set up to do another type of piece. Nonetheless, Petitioner was promoted to D.E.T. supervisor in approximately 1993. As such, Petitioner regularly supervised four employees. Mr. Shepard may or may not have had input as to Petitioner's first promotion in 1988, but it was solely his decision to promote Petitioner in 1993. Petitioner was promoted at that time, despite the unfavorable aspects in his employment record. Petitioner continued to have disciplinary problems with management after his 1993 promotion. On October 2, 1995, Mr. Maxwell, by then a middle- manager, wrote-up Petitioner because, knowing a particular type of pine chest of drawers was to go on the assembly line the next day, Petitioner allowed his crew to go home at the regular quitting time of 4:00 p.m., showing very little regard or devotion to Respondent employer. Employees often were required to work overtime on short notice in order to set up for the next day. Petitioner's failure to have the furniture parts ready from the D.E.T. machine the night before would cause several employees to stand around, drawing pay, with no assembly line work to do the next morning. Mr. Maxwell, who personally has worked overtime on short notice, considered working overtime on short notice to be part of the furniture-making business, and he expected that commitment from all Respondent's employees, including Petitioner and Petitioner's subordinates. Mr. Sheperd approved the write-up. Sometime in 1995, Petitioner was suspended without pay for three days as the result of damaging a bookcase and not repairing it. Petitioner contended at hearing that he had repaired the bookcase's top. At hearing, Petitioner acknowledged receiving two written warnings concerning his repeated failure to wear safety glasses on the job. One warning was undated. The other was dated March 25, 1996, and signed by Mr. Shepard. It specified that Petitioner had previously been warned in writing on September 18, 1995, October 2-3, 1995, and November 17, 1995, and that Mr. Shepard had warned Petitioner orally on each of the six consecutive days immediately preceding the March 25, 1996, written warning. At hearing, Petitioner did not refute the accuracy of the March 25, 1996, warning or claim its content was untrue. He also acknowledged that he was supposed to wear safety glasses at all times on the job and that as D.E.T. supervisor, he was supposed to be an example to his subordinates. Petitioner claimed to have seen white employees not wearing safety glasses, but there was no corroborative evidence that this was so. Petitioner also claimed that white employees who did not wear safety glasses were never written-up, but there was no corroborative evidence that this was so or any explanation of how Petitioner would know if any other employee had been warned or written-up for any reason, including but not limited to wearing safety glasses. In 1996, Petitioner's job as D.E.T. supervisor was basically to report to work, receive a list specifying the furniture parts (such as drawers or front rails) which he was to "run" on his machine(s), and run/create those listed parts. Sometimes, Petitioner disagreed with the order of parts as listed by his supervisors because, in his opinion, the list could have been better organized to ensure maximum efficiency at subsequent points on the furniture assembly line. Petitioner blamed the list and felt he was unfairly blamed by his supervisors when assemblers ran out of all parts they needed or they ran out of Part A pieces before they ran out of Part B pieces. Other recurring job problems from Petitioner's point of view were that the night crew broke his machine and/or would not set-up so that he could immediately start work when he came on the premises with the day crew each morning and that his FT01 machine was old and its settings would slide, making mistakes on cutting or forming wooden furniture parts out of round or in slightly flawed lengths and shapes. Mr. Maxwell confirmed only that some machines were old and that sometimes it was hard to get parts for the machines. He reiterated that Petitioner's conduct and output fluctuated. Management viewed it as Petitioner's job duty to run the correct furniture parts to the correct specifications, in the correct order, so that the correct size and shape of the correct type of part arrived at the next stage of the assembly line in sufficient quantities, at the right time, without delay. According to Petitioner, his troubles with Mr. Shepard began on an unspecified date when Petitioner had been ordered to run some impounds. Because he was short-handed due to two absentees, Petitioner requested help, and the machine room foreman promised to send Petitioner two helpers as soon as he could. Mr. Shepard saw that Petitioner was not working and demanded to know why Petitioner was not running the impounds. Petitioner explained that he was waiting for two more laborers. Then Mr. Shepard demanded, "Bubba, why you not running the machine?" Petitioner replied, "Herschel, you know, I would appreciate it if you wouldn't call me Bubba. My name is Lonnie." Mr. Shepard walked off without a word. Petitioner contended that thereafter, Mr. Shepard "harassed" him; however, Petitioner conceded that Mr. Shepard never again addressed him as "Bubba."4 Petitioner was terminated with abusive and profane language by Mr. Shepard on July 12, 1996. Mr. Shepard stated on Petitioner's termination papers that Petitioner had cut an entire run of bases one inch shorter than the 22-3/8 inches they were supposed to have been cut and that there was no more rough lumber in the plant with which to run more bases. In testimony, Petitioner stated that he believed he had correctly set his machine to cut the bases the correct length and that he had run about 200 bases correctly and someone else ran 900 incorrectly. However, he could not "remember whether I had run just enough to get them started that morning or someone else ran the load." He conjectured that the night shift might have run the incorrect bases, but he could not remember either way whether there had been, or had not been, a night shift in 1996. Petitioner also believed there had been available enough rough lumber to run a new load. Mr. Maxwell acknowledged the possibility that someone other than Petitioner could have run the useless bases, but he testified that he knew there had been no night shift in July 1996. Therefore, the night shift could not have been responsible for running the useless bases. Although Petitioner did not know whether or not he had personally cut the load short, he conceded that as D.E.T. supervisor, he was responsible for overseeing his suborindates' work on the machine. Petitioner's brother, Benjamin, also worked for Respondent in 1996, the year Petitioner was terminated, and for some unspecified period of time before that. In Petitioner's and his brother's opinions, working conditions in Respondent's factory were those of a "concentration camp," because of poor wages, because people were spoken to "as if they were not human," and because no one was given a day off. However, Benjamin McMillon described being let off early when he requested it, and both Petitioner and Mr. Maxwell described an incentive pay plan based on being paid more money for producing more product. Benjamin McMillon described employees, including one white woman, who feared Hershel Shepard's power over them and who feared that Hershel Shepard might terminate them. The following exchange, at pages 36-37 of the Transcript, sums up Petitioner's testimony as to the effect of his race on conditions at Respondent's factory: Q: You don't have any evidence that anything that happened between you and Mr. Hershel Shepard happened because you were black; is that right? A: No, but I know he was harassing me.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying all claims and dismissing the Petition for Relief. DONE AND ENTERED this 9th day of April, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 2001.
