The Issue The issue is whether Respondent engaged in an unlawful employment practice pursuant to chapter 760, Florida Statutes, against Petitioner due to her age.
Findings Of Fact Petitioner, Sandra Minnie, is a 62-year-old female. Ms. Minnie had been working as an assistant manager at a Wal-Mart store in Marion, Ohio, but in late 2008, applied for a transfer to Store 5300 in Gibsonton, Florida. Store manager Vicki Tillman interviewed Ms. Minnie and in November 2008, hired her as an assistant manager at Store 5300. Ms. Tillman is currently 61 years old. While in Ohio, Ms. Minnie had worked as the front-end assistant manager1/ for Wal-Mart, and accordingly, was hired to work in the same capacity at Store 5300. Wal-Mart assistant managers are routinely scheduled to work between 52 and 56 hours per week. Ms. Minnie's scheduling would have been dictated by the position that she held, to wit, front-end manager. Ms. Minnie received a copy of, and was familiar with, Wal-Mart's Discrimination and Harassment Prevention Policy. The Discrimination and Harassment Prevention Policy instructs employees who experience harassment or discrimination to report the violation to a salaried member of management, or to call the Wal-Mart Ethics Hotline. Ms. Minnie was also familiar with Wal-Mart's Open Door Policy, which allows associates to report any concerns they have up the chain of command, all the way to the CEO. Despite being aware of both of these policies, Ms. Minnie never utilized either policy, and never reported that she believed that Vicki Tillman, or anyone else with Wal-Mart, was discriminating against her or harassing her because of her age. Although Ms. Minnie made several handwritten notes of occasions on which she felt her superiors had mistreated her, she never approached a member of Wal-Mart management to discuss her complaints. Soon after Ms. Minnie began as an assistant manager at Store 5300, it became apparent that she did not perform many of her job responsibilities properly, and that there were many assistant manager duties that she did not know how to perform, and often performed incorrectly. After several informal conversations between Ms. Minnie and both Co-Manager Maness and Store Manager Tillman regarding Ms. Minnie's performance deficiencies, and after seeing no improvement, Ms. Minnie was given a verbal “coaching”2/ on January 8, 2009, for failure to adequately perform her duties as an assistant manager. Several of the issues covered during this verbal coaching had been informally discussed with Ms. Minnie on prior occasions. Ms. Minnie did not challenge this coaching. On the same day as her coaching, Ms. Minnie's niece was caught shoplifting at Store 5300. While Ms. Minnie was not held responsible for the actions of her niece, she felt that management "seemed to distrust [her] integrity after that point." Despite continued informal conversations and counseling by members of management, Ms. Minnie's performance did not improve. Furthermore, Store Manager Tillman began to receive complaints from other assistant managers about having to take on too many of Ms. Minnie's responsibilities because she was not pulling her own weight. On April 9, 2009, Ms. Minnie received a written coaching for giving manager's keys to an hourly associate, and for failing to accurately verify a cash deposit before approving it, resulting in the bank deposit being $1,000.00 short. Again, Ms. Minnie did not challenge this coaching. On another occasion, Ms. Minnie violated Wal-Mart policy by cashing her own check personally in the cash office instead of having the next level of management above her cash it. Ms. Tillman instructed Co-Manager Maness to have a conversation with Ms. Minnie about the correct procedure for check cashing, and instructed Ms. Maness not to formally coach Ms. Minnie at that time. In the weeks prior to Father's Day, all managers received an e-mail notifying them that a specific model of television was due into the stores, in limited quantities, for the Father's Day sale. The e-mail specifically stated that there would be a “sale-block” placed on the television, and that the televisions could not be sold prior to the sales event. As the assistant manager in charge of the front end and back room, Ms. Minnie would have received this e-mail. On the evening of June 9, 2009, prior to the Father's Day sale, Ms. Minnie took one of the Father's Day sale televisions from the back stockroom (which had never been on the sales floor) and brought it to the electronics department cash register to purchase. When the television was rung up, the cash register prompted: "sale not allowed." Despite this clear instruction, Ms. Minnie permitted the cashier to call over another assistant manager (Terry), who overrode the sale block and allowed the sale to be completed. Associates are not permitted to bring merchandise that has never been on the sales floor directly from the back room to a cash register for purchase. Moreover, associates are not permitted to override "sale not allowed" register prompts. When Co-Manager Maness arrived at work on June 10, 2009, she was informed by the electronics department manager that a sale block override had been performed on a television that was being held for the Father's Day sale. Ms. Maness investigated the sale and discovered that Ms. Minnie had violated Wal-Mart policy by removing the television, which was being held for a future sales event, from the back room, and purchasing it, despite the register prompt, "sale not allowed." Ms. Maness further concluded that the assistant manager who had overridden the sale block had also violated Wal-Mart policy. Even though overriding a sale block was potentially a terminable offense, Ms. Maness consulted with Store Manager Tillman, who instructed Ms. Maness to just coach both Ms. Minnie and the assistant manager to the next level. Because Ms. Minnie had already received a verbal and a written coaching, Ms. Maness drafted a Decision-Day Coaching for Ms. Minnie.3/ Ms. Minnie never returned to work at Store 5300 after purchasing the television on June 9, 2009. Although Ms. Minnie was scheduled to work on June 12, 2009, she called in sick. She then took her previously scheduled vacation from June 13-19, 2009. At the end of her vacation, instead of returning to work, Ms. Minnie submitted leave of absence paperwork indicating that she needed to be out until October 23, 2009. Ms. Minnie's leave of absence paperwork was approved by Store Manager Tillman. Under Wal-Mart's leave of absence policy, Ms. Minnie technically remained an active employee of Wal-Mart until June 6, 2012. As such, she could have returned to Store 5300 at any time prior to that date as an assistant manager. Ms. Minnie felt that Ms. Tillman was a very demanding store manager. This opinion was shared by other assistant managers at Store 5300. At least three other assistant managers (all of whom were significantly younger than Ms. Minnie) confided in Ms. Minnie that they believed that Ms. Tillman was a difficult store manager to work with.4/ Although it is undisputed that Ms. Tillman was a demanding and difficult store manager to work for, the evidence of record does not support the conclusion that Ms. Minnie was treated differently than other employees because of her age. Nor does the evidence establish that the series of "coachings" leading up to Ms. Minnie's departure from Wal-Mart had anything to do with her age. Ms. Minnie testified that she felt "disrespected" by Ms. Tillman, and had been referred to by her as a "wet rag mop," while younger assistants were referred to as "perky new brooms." Petitioner also alleged that Ms. Tillman made disparaging remarks about her hairstyle and dress. The result of this mental harassment, according to Petitioner, was that Petitioner suffered a severe mental breakdown that made it impossible for her to return to work. However, no corroborating witnesses provided any evidence that Ms. Tillman, who is less than a year younger than Ms. Minnie, made any disparaging comments about Ms. Minnie's age, and Ms. Tillman vehemently denied making such remarks.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 5th day of October, 2012, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2012.
Findings Of Fact Petitioner Linda Mae Krueger, a white female, became a manager at One Stop Oil's Riverview, Florida, store on April 1, 1986. Petitioner's first immediate supervisor was Mr. Tom McBeth, area supervisor for six stores. Mr. McBeth was replaced by Mr. John Richardson on January 26, 1987. Upon becoming area supervisor, Mr. Richardson implemented certain changes in the manner in which all store managers under his supervision were to perform their duties. Petitioner disagreed with Mr. Richardson's changes and failed to follow some of Mr. Richardson's instructions regarding these changes. Petitioner developed a great deal of hostility towards Mr. Richardson and refused to accept the fact that the changes in operation were within Mr. Richardson's managerial capacity. The basis of Petitioner's claim of discrimination was Mr. Richardson's attempt to implement operational changes which Petitioner disagreed with and which were clearly not sexually discriminatory in nature. At the hearing, Ms. Krueger testified that she felt like she was treated unfairly by Mr. Richardson, but admitted that Mr. Richardson placed the same requirements on all other store managers. Petitioner, in June of 1988, told Mr. Richardson that she was considering leaving employment during the beginning of July. Petitioner marked on her store's calendar that she was leaving employment on July 2, 1988. Petitioner, on August 12, 1988, again gave verbal notice to One Stop Oil that she was separating employment with the company on August 27, 1988. At the time the Petitioner gave One Stop Oil this verbal notice of separation, Petitioner was planning to move with her family to North Carolina. On August 17, 1988, Petitioner quit her position as store manager at One Stop Oil's Riverview store. She quit because of a pay dispute over the amount of her bonus check. Petitioner and her husband expected a larger check. When Petitioner's husband saw the actual amount of the check he called the Jacksonville office of Respondent and told them he was closing the store and they had "better get somebody down there." Petitioner and her husband then left the store. Respondent sent Mr. Richardson to the store. He called in Cheryl Chipman and began accounting for the store receipts. He discovered that $1,700 in deposits was missing. Petitioner had given the deposit money to her husband on the day the check dispute arose. Petitioner's husband could not adequately account for the missing money. 1/ Respondent obtained Petitioner's store keys from her without any discussion. The keys were voluntarily turned over by Petitioner. Petitioner never reported for work afterwards. Petitioner's position was filled by Ms. Cheryl Chipman, a white female.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the petition against Respondent be dismissed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of January, 1989. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1989.
The Issue Whether respondent is guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Petitioner, Constanza D. Scott, is a black female. She began employment with respondent, Wal-Mart Stores, Inc., d/b/a Sam's Club (Wal-Mart), on July 29, 1988, in its soft lines (men and women's apparel) department. The store is located in Tallahassee, Florida. She was a full-time employee and worked forty hours per week. Besides working full-time for Wal-Mart, beginning in August 1991 she worked "at least" twenty hours per week for Marriott Food Services at Florida State University, and she attended classes at an undisclosed Tallahassee college or university on Tuesdays and Thursdays from 1:30 p. m. until around 4:30 p. m. Petitioner's regular hours at Wal-Mart were from 5:00 a. m. to 1:00 p. m., Monday through Friday. From at least May 1991 until October 1991, her supervisor was Scott Cosby, an assistant store manager for the merchandising department. Cosby was replaced in October 1991 by Tim Strahan, Jr., who supervised petitioner until her termination on December 21, 1991. Wal-Mart refers to its procedure for handling disciplinary problems as performance coaching, and it involves a series of progressively sterner disciplinary measures taken against an employee. On the first occasion disciplinary action is warranted, the employee is given what is called verbal counseling. This type of action is not documented in writing and simply involves counseling by an employee's supervisor. If the problem persists, the employee is given a verbal warning, which is reduced to writing and placed in the personnel file of the employee. If a verbal warning does not result in the correction of the deficiencies, a written warning is issued, and the employee is required to prepare a responsive plan of action stating how the employee intends to correct the cited deficiencies. As a last resort, the employee is given a day off with pay, which is called a decision-making day, so that the employee can reflect on his or her performance and prepare a plan of action detailing how the deficiencies will be corrected. Thereafter, an employee is automatically terminated if further disciplinary action is required. On May 1, 1991, petitioner's supervisor (Scott Cosby) gave her a verbal counseling for "attendance problems." In response to this counseling, petitioner stated that she was very tired from school but would improve her attendance. On May 6, 1991, she was again cited for an "ongoing attendance problem." This is memorialized by a written verbal warning contained in her personnel file. On September 21, 1991, a second verbal warning was given by Cosby, this time for petitioner working overtime when Cosby apparently felt she could complete her work within the normal forty-hour week. Petitioner explained, however, that all overtime had been approved by the store manager. On October 7, 1991, Cosby again gave her a verbal warning for "not keeping up with 'basics of the business' consistently." In her action plan filed in response to this criticism, petitioner stated she would "do a better job of signing, cleaning, displaying, zoning and shrink wrapping," all specific duties of her job. During the week of November 11-15, 1991, petitioner was late to work every day. On one of those days, November 14, 1991, she telephoned an assistant store manager (Don Graves) and reported that her car would not start. She eventually came to work around 4:00 p. m. that afternoon. For her lack of punctuality, a written reminder was issued, which is the last step before decision-making day. On November 27, 1991, petitioner telephoned her team leader, Jennifer Christie, at 5:40 a. m. to say that her alarm clock had failed to go off and she would be late. Deciding not to accept any more excuses regarding her attendance and punctuality, Strahan, her supervisor since October, gave petitioner the day off with pay so that she could contemplate her future with the store. When she returned the next day, Wal-Mart agreed to accept petitioner's suggestion that her work hours be changed on Mondays, Wednesdays, and Fridays to 7:00 a. m. to 2:00 p. m., and on Tuesdays and Thursdays to 7:00 a. m. to 12 noon. This was done in order to accommodate her other work and school activities. The number of store employees at any one time is governed by the store sales. In other words, payroll (staffing) cannot exceed a percentage of current sales. In order to stay within the required percentage, a specified number of hours are allocated to each department within the store, and the department assistant manager determines how many employees can be employed within the allocated hours. When sales drop, workers are laid off, and when sales pick up again, Wal-Mart increases its work force. In December 1991, Wal-Mart was faced with a reduction in force due to declining sales. On a storewide basis, six part-time and three full-time positions were eliminated. In the soft lines department, which had four full-time and three part-time employees, a decision was made to eliminate one part-time and one full-time position in order to stay within the department's allocated hours. Strahan was charged with the responsibility of selecting the positions to be eliminated. In doing so, he was able to transfer Joyce Willis, a part-time black female employee, to the "front" since she had experience in operating a cash register. Of the four full-time employees, Jennifer Christie, the team leader and a white female, and Armie Brown, a black female, had seniority over petitioner, and neither had attendance or punctuality problems. In addition, Strahan considered both of them to be more "dependable" than petitioner. The third employee, Joe Watson, a white male, was an experienced fork lift driver for the store, and Strahan desired to retain him in that position. Although petitioner had been given some training in the operation of a fork lift, unlike Watson she had no actual on-the-job experience in that position. The only remaining full-time position was filled by petitioner, who had less flexibility in her work hours than the others due to requirements of school and her second job, and unlike the others, she had a record of disciplinary action during the preceding seven months for attendance and punctuality problems. For these reasons, Strahan selected petitioner's position as the full-time slot to be eliminated. Petitioner was called to a meeting with Strahan and the team leader on December 21, 1991. At that meeting Strahan told petitioner that he was forced to eliminate her full-time position due to a reduction in force caused by declining sales. Petitioner asked "why me?" and if there were any other full- time slots in the store to which she could be transferred. When Strahan replied there were none, petitioner said "you're full of shit, fuck you," and walked out of the office. Had she not departed, Strahan was about to offer her a part-time position. Because petitioner left the store, however, Strahan had no choice except to terminate her employment. According to petitioner's Associate Exit Interview form, which is prepared whenever a position is eliminated or an employee leaves, petitioner remains eligible for re-employment "when vacancies occur which the store needs to fill." She was unaware of this, however, and has never made application to be rehired. This is probably because she left the store before Strahan had an opportunity to have her sign the form and give her a copy. There is no evidence that petitioner's position was ever reestablished, and if so, whether it was filled by a person outside petitioner's protected class. Petitioner alleges that her position was eliminated solely because of her race. The evidence, however, belies that contention. Accordingly, it is found that petitioner's race played no role in the employment decision taken by respondent. Petitioner also contended she was a hard worker who did her assigned tasks, and she did not deserve the criticisms noted in her personnel file. For example, a minute or two after 5:00 a.m. the front door was locked and any late employees were then required to go to the back door of the store to gain entry to the premises. This added another ten or fifteen minutes for petitioner to reach her work station. Petitioner says this made it appear that she was fifteen or twenty minutes late when in fact she had been tardy by only a minute or two. Even so, by her own admission she was late on "numerous occasions," including every day during the week of November 11, 1991. She also complained that she did not get along with Cosby, a former supervisor, and denied that he twice counseled her for poor attendance in May 1991, as reflected in her personnel file. Even if petitioner's assertion is true, however, that employee left Wal-Mart in October 1991, which was before many of the relevant events occurred. While petitioner is to be highly commended for her work ethic (at least sixty hours per week plus school), the pertinent criticisms in her personnel file were substantiated and were properly taken into account by respondent in making its employment decision.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 28th day of October, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0318 Respondent: Partially accepted in finding of fact 1. Rejected as being unnecessary. Partially accepted in finding of fact 8. 4-5. Partially accepted in finding of fact 4. Partially accepted in findings of fact 5 and 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 3. 9-11. Partially accepted in finding of fact 8. 12-16. Partially accepted in finding of fact 9. 17-19. Partially accepted in finding of fact 10. 20-21. Rejected as being unnecessary. 22. Covered in preliminary statement. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Constanza D. Scott 3250 West Tennessee Street, Lot 146 Tallahassee, Florida 32304 Charles F. Henley, Jr., Esquire Post Office Box 40593 Jacksonville, Florida 32203-0593
The Issue The issues are as follows: (a) whether this case should be dismissed due to Petitioner's failure to file a timely Petition for Relief as required by Rule 60Y-5.008, Florida Administrative Code; and if not, (b) whether Respondent discriminated against Petitioner based on her handicap by creating a hostile work environment, failing to accommodate her disability, and causing Petitioner's constructive discharge contrary to Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is a white female. She applied for a cashier's job at Respondent's store in Defuniak Springs, Florida, on March 30, 2000. Petitioner's job application indicated that she was available to work on any shift and any day of the week, including days, evenings, nights, Saturdays, and Sundays. As a general rule, Respondent hires people that are available to work on an as needed basis. However, there is no persuasive evidence that Respondent always refuses to hire people who are not available to work at all times. On April 13, 2000, Petitioner began working for Respondent as a part-time cashier. She only worked a few days before she suffered two heart attacks on the same day, neither of which occurred while she was at work. Her medical records indicate that she began having heart problems in 1996 and that a stent was implanted in an artery of her heart on April 21, 2000. On April 23, 2000, Petitioner requested a medical leave of absence, expecting to return to work on or about June 1, 2000. Respondent granted this request. On May 1, 2000, Petitioner's doctor certified that Petitioner had a diagnosis of "S/P Inferior Wall Myocardial Infarction." The doctor stated that Petitioner could return to work and resume normal activity pending a follow-up evaluation on May 30, 2000. On June 13, 2000, Petitioner's doctor certified that Petitioner could anticipate returning to work on July 17, 2000. Petitioner was scheduled to repeat a heart catheterization on July 14, 2000. Medical records indicate that Petitioner underwent a stent-implant in an artery of her heart at that time. On July 21, 2000, Petitioner tendered her resignation because she did not expect to return to work. Respondent accepted Petitioner's resignation, indicating on the exit interview form that she was eligible for rehire. The exit interview form also indicates that Petitioner had qualified for supplemental security income (SSI) benefits due to her heart condition. Petitioner recovered from the surgery and applied for re-employment with Respondent on September 9, 2000. Petitioner sought a full-time position, indicating on her second employment application that she was available to work at any time. She specifically requested as many hours as Respondent could give her. Petitioner confirmed her availability to work with no job restrictions during her job interview. On October 26, 2000, Petitioner completed a Form 8850, Pre-screening Notice and Certification Request for the Work Opportunity and Welfare-to-Work Credits. On this form Petitioner certified that she had advised Respondent of her receipt of SSI benefits for any month ending within the last 60 days. Respondent rehired Petitioner to work as a peak-time (part-time) cashier beginning on October 30, 2000. Petitioner accepted the position even though she knew that working as a cashier involved a lot of stress and would require her to lift items as heavy as 50 pounds. Shortly after being re-hired, Petitioner actively sought more work hours in addition to her regular schedule. Respondent accommodated Petitioner's request by letting her work on the floor as a stock clerk, as well as a cashier. Approximately two weeks after returning to work, Petitioner required hospitalization again due to a heart attack. She was discharged from the hospital on November 27, 2000. Petitioner's doctor instructed her to rest and limit her activity, including walking, heavy exercise, and/or lifting more than five pounds, resuming normal activity on the second day as "tolerated." On December 2, 2000, Petitioner was admitted to the emergency room again after work. Petitioner's doctor recommended that Petitioner not return to work until she was evaluated again on December 11, 2000. Petitioner's doctor released her to return to work on December 12, 2000. Respondent's employees and management were aware of Petitioner's heart condition but they were not aware that Petitioner had a disability requiring accommodation. The doctor's release-to-work contained no medical restrictions. During December 2000, Petitioner worked as a cashier and on the customer service desk receiving items returned by customers. The latter job occasionally required Petitioner to handle heavy items. On January 9, 2001, Respondent gave Petitioner a performance appraisal. The appraisal indicated that Petitioner worked well with others, assisted in raising funds for charity, and participated in associate functions. Respondent's performance standards include "below," "meets," or "exceeds" expectations. Petitioner's performance appraisal indicates that she "met" performance expectations in all areas except one area of productivity. She received a "below" expectations rank as to the number of items she scanned per hour. Based on the overall appraisal, Petitioner received a pay raise commensurate with the "meets" expectation criteria. On February 6, 2001, Petitioner's doctor excused her from work for a week due to illness. The doctor indicated that Petitioner could return to work on February 9, 2001, if she was feeling well. Otherwise, Petitioner would need another medical evaluation before she returned to work. On February 12, 2001, Petitioner's doctor excused her from work until February 14, 2001. Petitioner's medical records indicate that Petitioner had bronchitis, asthma, and flu-like symptoms. Around the middle of February 2001, Petitioner requested that she be scheduled to work the night shift only two nights per week. Respondent's associate schedules, which were computer-generated weeks in advance of the scheduled work, show that Respondent granted her request. Petitioner was scheduled to work after 6:00 p.m. as follows: (a) two times from February 24, 2001, to March 2, 2001; (b) one time from March 3, 2001, to March 9, 2001; (c) one time from March 10, 2001, to March 16, 2001; and (d) two times from March 17, 2001, to March 23, 2001. Respondent posts daily or weekly schedules to make corrections to the computer-generated schedules. Two such undated handwritten schedules indicate that Petitioner was scheduled to work a day shift on two days. Petitioner actually worked after 6:00 p.m. as follows: one time from February 10, 2001, to February 23, 2001; one time from February 24, 2001, to March 9, 2001; and no times from March 10, 2001, to March 23, 2001. On or about February 20, 2001, Petitioner told her supervisor that she planned to resign on March 1, 2001. In a subsequent handwritten note dated February 27, 2001, Petitioner advised Respondent that she intended to quit work on March 23, 2001. The note states that she was leaving due to illness but wanted to return when she was well. On or about March 8, 2001, a customer in an express checkout lane, limited to 20 items, made a written complaint to Petitioner's supervisor that Petitioner had been rude. Specifically, the customer alleged that Petitioner had expressed her objections to the customer having more than 20 items when the customer had exactly 20 items. The customer claimed that Petitioner's comments were embarrassing. Petitioner's supervisor gave Petitioner a verbal coaching. The supervisor reminded Petitioner of Respondent's policy that the customer was always right. During the hearing, Petitioner stated that she agreed with this policy. Under protest, Petitioner complied with the supervisor's request for Petitioner to write an apology to the customer. The written apology stated that Petitioner was sorry if she hurt the customer's feelings and asked the customer to please go to Petitioner's checkout line again. The supervisor also wrote an apology to the customer. On March 12, 2001, Petitioner underwent a medical examination at Doctors Medical Center of Walton County due to chest pains radiating into her right arm. The medical history taken at that time indicates that Petitioner's medical history included two heart attacks and five stents in her heart arteries. Petitioner's doctor wrote an excuse for Petitioner missing work on March 13, 2001. The note states that Petitioner could return to work on the following Monday, March 19, 2001. On March 21, 2001, Petitioner had an altercation with a customer service manager. The incident occurred because Petitioner and another cashier were scheduled for breaks about the same time. The manager allowed the other cashier to go on break before Petitioner because the co-worker's line was empty and Petitioner had customers in her line. Raising her voice, Petitioner protested that she was due a break before her co-worker. The manager told Petitioner to stop harassing him. Petitioner subsequently complained to her supervisor. Petitioner admitted during the hearing that she got "sassy" with the customer service manager on March 21, 2001. The morning after the altercation with the customer service manager, Petitioner told her co-workers that she intended to have the store manager fired because she was having him investigated. As a result of her comments, Petitioner was invited to the rear office where she spoke to the regional personnel manager on the phone. During that conversation, the personnel manager told Petitioner she could call him at home if she felt more comfortable doing so. The personnel manager excused Petitioner from work for the next two days with pay through March 23, 2001, the effective date of her resignation. Petitioner's final exit interview is dated March 22, 2001. On the exit interview form, Petitioner indicated that she quit her job because she did not like the way the store manager ran the store and due to her health. Petitioner indicated that the termination was voluntary due to her health. After Petitioner signed the exit interview form and left the store, Respondent's staff had further conversation with the regional personnel manager and completed a section on the form reserved for the employer. This section indicates that Petitioner had a bad attitude and, if she had not resigned, Respondent would have terminated Petitioner. Competent evidence shows that Petitioner did have a bad attitude after being rehired. She always took the position that she was right and did not want to communicate with certain managers. Petitioner understood that she could only work for six months without losing her SSI benefits. Her resignation on March 23, 2001, occurred just prior to the end of the six-month period. Due to her health problems, Petitioner has not worked since she resigned her job with Respondent. She has not looked for work and does not intend to do so because she continues to receive SSI. During the hearing, Petitioner discussed several incidents in support of her allegations of discrimination based on her disability. However, Petitioner admitted that her memory was bad and that she could not recall the specific dates involved. On several occasions, Petitioner complained to Respondent's district manager about the way the store manager ran the store. For example, Petitioner complained that someone was selling Avon products in a fitting room. The district manager determined that there was no merit to this allegation. On another occasion, Petitioner complained to Respondent's district manager that the store manager had made an inappropriate religious comment to Petitioner. Upon subsequent investigation, the district manager determined that the store manager had made one such comment to another employee but not to Petitioner. The store manager was advised to refrain from making such comments in the future. Petitioner testified that if an employee was not a member of the store manager's "holy roller" church, the employee was nothing in the opinion of the store manager. Petitioner's testimony that she was treated differently from other employees because she would not "suck up" to the store manager and because she was not a member of his clique is not persuasive. Petitioner told the district manager that she did not like the way the store manager criticized employees in the office. However, Respondent's policy is to provide praise in public and constructive criticism in private. Respondent has a policy to send employees flowers when they are hospitalized. Petitioner complained to Respondent's district manager that the store did not send her flowers when she was in the hospital. According to Petitioner, the store manager told her at some point in time that she was going to die and where she was going to be buried if she did not quit her job. The greater weight of the evidence indicates that the store manager did not make this statement. Petitioner presented testimony that Respondent's managers called her a whiner. Petitioner also presented testimony that the assistant store manager stated that she would not baby-sit dummies (retarded people). The most persuasive evidence indicates that Respondent's managers never made these comments. To the contrary, Respondent does not have a policy against hiring people with disabilities. In fact, at the time of the hearing, Respondent had another disabled person working at the store in Defuniak Springs, Florida. Sometime after Respondent rehired Petitioner in October 2000, she began to experience chest pains while she was working as a cashier. Petitioner's co-workers were aware of Petitioner's problem but there is no competent evidence that Respondent's managers were aware of her specific symptoms. In fact, none of Respondent's managers who testified at the hearing could remember Petitioner complaining of chest pains while she was working as a cashier. When Petitioner requested permission to leave work due to illness, she was told to wait for relief, then to close her register and go to the office to check out. The process took about 20 minutes. At the time in question, Petitioner drove herself to the doctor's office. She did not request anyone to drive her and no one offered to do so. After being examined by her doctor, Petitioner 's doctor recommended that she travel to the hospital by ambulance. Petitioner refused this recommendation and elected to call a friend to take her to the hospital in Defuniak Springs, Florida. Eventually, Petitioner was placed in intensive care and transferred to a hospital in Pensacola, Florida, where she underwent the replacement of a stent due to its collapse. There were times when Petitioner was not allowed to leave her register before a break to take her medication; however, she was allowed to have water at her register so that she could take her medication at her workstation. On the one occasion that Petitioner could not locate her nitroglycerine prescription, she was told to finish with a customer before going to the store's pharmacy to obtain a new prescription. During the hearing, Petitioner testified that she was not allowed to operate machinery while taking some of her prescribed drugs. Therefore, Petitioner did not take those medications when she went to work. There is no evidence that Respondent was aware that Petitioner was not taking prescribed medications in order to work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
The Issue Whether Respondent, Superior Optical Shop (Respondent), violated the Florida Civil Rights Act of 1992, Sections 760.01– and 509.092, Florida Statutes, by subjecting Petitioner, Janice Jennings (Petitioner), to discrimination in employment and by discharging Petitioner in retaliation for Petitioner’s opposition to Respondent’s discriminatory employment practices.
Findings Of Fact Petitioner is an African-American female. Respondent is a corporation with its corporate headquarters located in Ocean Springs, Mississippi. Respondent operates an optical shop in a Veteran’s Administration (V.A.) Hospital located in Lake City, Florida. At its Lake City location, Respondent fills prescriptions written by eye physicians at the V.A. Hospital, assists patients with choosing frames, and fits patients with their prescription eye glasses. Respondent’s optical shop in Lake City is fast-paced, with a constant stream of patients, averaging 50-to-60 patients a day. If the optical shop is running behind schedule, it is problematic because often physicians at the V.A. Hospital are waiting to see the patients served by the optical shop. In 2009, Petitioner interviewed for a position at Respondent’s optical shop in Lake City, Florida. During her interview, Petitioner advised Respondent that she had competent computer skills and significant experience working in an office environment and with eye doctors. On May 27, 2009, Respondent hired Petitioner as a part- time clerk at the optical shop. Petitioner was terminated prior to working 90 days for Respondent. When Petitioner was hired, two full-time employees worked at the optical shop: office supervisor, Jean Hartup, and optician, Kathleen Denton. Ms. Hartup has been employed with Respondent for approximately five years. Ms. Denton has been with the optical shop for approximately two and a-half years. As office supervisor, Ms. Hartup can be distant with employees and “hard” at times. She can also be “direct” when speaking to employees. Ms. Hartup demonstrates these traits with all of the employees at the optical shop. Ms. Hartup has written up Ms. Denton in the past and the two have had personality conflicts. Both Ms. Hartup and Ms. Denton assisted with training Petitioner. Evidence indicated that Petitioner received adequate training to perform the tasks she was assigned to perform as a clerk. She often had to be re-trained on the same tasks. Respondent’s optical shop in Lake City is a very small room, approximately ten-feet by ten-feet square inside the V.A. Hospital. There are two small desks in the shop and it is very crowded. Petitioner was aware of the small working environment at the time she accepted employment with Respondent as a part- time clerk. Past and present employees at the optical shop have had to share desk space. Sometimes work has to be performed in the hallway because of the small office space. All new hires for Respondent are subjected to a 90-day probationary period. As explained in Respondent’s “Employee Handbook of Office Policies and Benefits,” of which Petitioner was aware: There will be a 90-day probationary period during which time the employer may terminate the employee at any time for any reason or for no reason regardless of any other provision of these policies. Sick leave and personal days are accrued but cannot be used during this period. Respondent’s Employee Handbook of Office Policies and Benefits also provides: [Respondent] does not and will not tolerate any employee discriminating against their work peers for any reason i.e., race, color, religion, sex, national origin or handicap. Any known verifiable discrimination will be grounds for immediate termination. Once on the job, Petitioner was not proficient on the computer and, despite repeated training, failed to show any improvement and was slow in performing her job duties. Because of this, service to patients at the optical shop slowed down and the optical shop was frequently behind, resulting in physicians having to wait for patients being served by the optical shop. Ms. Hartup became frustrated with Petitioner’s unsatisfactory job performance and the resulting delays. In addition, Petitioner began to show a lack of interest in her job and even stated that she “didn’t really need a job; she just wanted to be out of the house.” Despite repeated training and opportunities to improve her work performance, Petitioner failed to improve. Petitioner was given a notebook with information from the American Board of Opticians for review but she failed to read it or return it to Respondent. Prior to the end of her employment with Respondent, Petitioner called Respondent’s corporate headquarters in Mississippi and spoke to Mary Walker. Petitioner complained to Ms. Walker that Ms. Hartup was being too hard, was impatient, and was expecting too much of her. Petitioner did not raise concerns with Ms. Walker that she was being discriminated against based on her race, or that she had been subjected to a hostile work environment because of her race. In fact, there is no evidence that Petitioner ever complained of race discrimination or a hostile work environment based on race discrimination while she was still employed by Respondent. During that first telephone conversation with Petitioner, Ms. Walker suggested to Petitioner that she should talk to Ms. Hartup about the problems. Petitioner assured Ms. Walker that she would. Two days later, Ms. Walker called Ms. Hartup and inquired whether Petitioner had discussed her concerns with Ms. Hartup. Petitioner, however, had not spoken to Ms. Hartup about her complaint. Ms. Walker gave Ms. Hartup the authority to run the optical shop at Lake City, including making hiring and firing decisions. Ms. Walker did not discipline Ms. Hartup because of Petitioner’s complaints. Rather, Ms. Walker told Ms. Hartup to handle the situation regarding Petitioner’s complaints. Ms. Hartup then met with Petitioner and they spoke about Petitioner’s concerns that Ms. Hartup was being too harsh and about Petitioner’s poor work performance. As a result of that meeting, Ms. Hartup felt the situation had been resolved. Petitioner subsequently advised both Ms. Denton, as well as Ms. Walker at Respondent’s headquarters, that the conversation with Ms. Hartup had gone well and that their issues had been resolved. Petitioner’s work performance, however, did not improve. Prior to the end of her 90-day probationary period of employment, Respondent terminated Petitioner from employment for poor work performance, for failing to reach her capabilities as an employee, and because her poor work performance was a detriment to Respondent’s Lake City optical shop. Petitioner testified that, from her point of view, she truly felt as though she had been discriminated against because of her race. That testimony, however, was without further support and was unpersuasive, especially in view of the fact that there is no evidence that Petitioner ever mentioned to anyone during her employment with Respondent that she believed she was being discriminated against. There was otherwise no evidence presented at the final hearing that would support a finding that Respondent’s decision to terminate Petitioner was in retaliation for Petitioner’s complaint against Ms. Hartup. Further, the evidence produced at final hearing does not support a finding that either the manner in which Petitioner was treated during her employment with Respondent, or her termination from that employment, was based on Petitioner’s race. Respondent filled the position of part-time clerk left vacant after Petitioner’s termination by hiring a Native- American male.
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 dismissing Petitioner’s Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 29th day of July, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 29th day of July, 2010.
The Issue The issue is whether the Respondent discriminated against the Petitioner on the basis of his disability, and whether the Respondent’s discharge of the Petitioner from employment was unlawfully based upon his disability, in contravention of Section 760.10, Florida Statutes (2003), and the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. Section 1201 et seq.
Findings Of Fact The Petitioner worked for the Respondent from September 17, 1999 through July 9, 2002. At the time of his termination from employment on July 9, 2002, the Petitioner worked in the Respondent’s Pensacola, Florida, Store No. 1605 under the supervision of Front End Assistant Manager Jackie Lewis and Store Co-Manager Rodney Snyder. The Petitioner’s last position with Wal-Mart was as a “People Greeter,” working eight-hour shifts. The Petitioner suffers from diabetes. On his employment application, the Petitioner indicated that he was able to work any scheduled hours and was seeking full-time employment. The Petitioner’s diabetes did not interfere with his ability to secure full-time employment. The Petitioner began his employment with the Respondent in Pensacola, Florida, Store No. 1222 as a maintenance associate, handling janitorial tasks. During the time he worked as a maintenance associate the Petitioner had his diabetes “under control.” The Petitioner completed an ADA “Job Matrix” form provided by the Respondent, on which he represented that he was able to perform all essential functions of his position without the need for any accommodation. No mention was made by the Petitioner at that time of his diabetic condition or resulting need for an accommodation. The Petitioner had “run-ins” with store management during his tenure as an employee of the Respondent. The Petitioner had a “run-in” with a Meat Department Manager over an assignment to mop-up a sugar spill, which the Petitioner refused to do. The Petitioner complained about supplies, or the lack thereof, at the store. The Petitioner admitted that there were tasks he simply refused to perform. The Petitioner had several problems with his co- workers and managers. On August 28, 2001, the Petitioner’s poor work attitude was cited on his annual performance appraisal, which was termed “below expectations.” During the course of his employment with the Respondent, the Petitioner was disciplined on several occasions through Wal-Mart’s “coaching” process. On February 17, 2001, the Petitioner received a “written coaching” for his failure to perform assigned job tasks, and he was informed that he needed to improve his job performance. Neither the annual performance rating nor the “coaching” session was caused by the Petitioner’s medical condition. On July 31, 2001, the Petitioner received a more severe form of coaching, a “Decision-Making-Day.” The coaching indicated that the Petitioner failed to complete jobs in a timely manner, questioned the authority of his managers, and had trouble following the directions of supervisors. The Petitioner was informed that if his performance did not improve he would be terminated. The Petitioner was given a day off to consider whether he wanted to continue to work for the Respondent and to prepare a performance action plan. In his performance action plan, the Petitioner indicated he would be more productive and approach his work with a more positive attitude. Following his performance action plan, the Petitioner requested and was granted a transfer to the position of "People Greeter," who works at the front of the store and welcomes customers as they enter the store. A "People Greeter" also performs certain tasks related to security. The Petitioner claimed to have given the Respondent’s personnel office a doctor’s note on June 27, 2002, indicating that the Petitioner needed a break every two hours in order to properly regulate his medication. The note made no mention of the Petitioner’s diabetic condition. The Respondent disavows any knowledge of receipt of a note concerning the Petitioner’s medical condition and need for frequent breaks. The Petitioner claimed that he was not always given the breaks he needed to regulate his medication. Given the nature of retail operations, in terms of the ebb and flow of shoppers entering the store, regular breaks are not always possible. Prior to the alleged submission of the doctor’s note on June 27, 2002, the Petitioner received coaching from his supervisors. On June 22, 2002, the Petitioner received verbal coaching from Ms. Jacqueline Lewis concerning his lack of respect for Customer Service Managers and other store management. Ms. Lewis received a statement from the Petitioner’s trainer indicating he refused to follow Wal-Mart policies for the "People Greeter" position. Ms. Lewis received written complaints from other co- workers of the Petitioner concerning his performance as a "People Greeter." All of these statements were factors in Ms. Lewis’ evaluation of the Petitioner’s performance as a "People Greeter." On the day of his termination, the Petitioner shouted 75-feet across the front of the store to the Customer Service Manager, requesting that she contact Ms. Lewis about issues taking place in the front of the store. He called a second time when his first request went unheeded. This behavior took place in front of store customers. Based upon the shouting incident, the Petitioner’s violation of policies, and the written complaints from co- workers, the Respondent terminated the Petitioner’s employment on July 9, 2002. The specific reasons given for the Petitioner’s termination were his inability to perform his job and for his not being respectful of other associates. The Petitioner believes that his co-workers and supervisors were aware of his diabetes. No co-workers or supervisors of the Petitioner testified at hearing that they were aware of the Petitioner’s diabetes. Ms. Lewis, the Front End Assistant Manager in the store, was not aware of the Petitioner’s diabetes. Ms. Carolyn Miller, the head Customer Service Manager for the store, was not aware of the Petitioner’s diabetes. Mr. Snyder, the store co-manager, was not aware of the Petitioner’s diabetes. Upon termination from employment with Wal-Mart, the Petitioner secured a Florida security guard license on his first try and obtained work as a security guard. The Petitioner was able to work a full eight-hour shift while employed by the Respondent. The Petitioner was able to perform the duties of his maintenance position when he held that job. At the time of his termination, the Petitioner was actively seeking a new position with Wal-Mart in the heating and ventilation area. When the Petitioner was unable to perform tasks associated with his employment, he attributed this to “old age,” and not his diabetes. The Petitioner planned to open his own steam cleaning and air conditioning repair business while he worked at Wal-Mart and felt physically able to do so. Since his termination from Wal-Mart, the Petitioner has secured gainful employment as a security guard at various factories, involving activities such as walking and driving trucks. The Petitioner has plans to rewire his house by himself. The Petitioner’s diabetes is kept in control by medication, and he does not require insulin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that the Respondent did not discriminate against the Petitioner and dismissing the Petition for Relief. DONE AND ENTERED this 20th day of April, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 20th day of April, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John M. Dickson 7870 Castlegate Drive Pensacola, Florida 32534-4555 Richard L. Ruth, Esquire Ford & Harrison LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner has been the subject of an unlawful employment practice.
Findings Of Fact On May 18, 1992, a Notice of Hearing was issued setting the date, time, and place for the formal administrative hearing. The Notice of Hearing was sent by United States mail to the Petitioner and his counsel at the addresses listed in the Petition for Relief and accompanying information. Petitoner's attorney appeared at the hearing. However, even though Petitioner received adequate notice of the hearing in this matter, the Petitioner did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Respondent was present at the hearing. The Petitioner did not request a continuance of the formal hearing or notify the undersigned or his attorney that he would not be able to appear at the formal hearing. Petitioner was allowed fifteen minutes to appear at the hearing. As a consequence of Petitoner's failure to appear, no evidence was presented to support Petitioner's case. Specifically, no evidence of discrimination based on handicap or race was forthcoming. Therefore, Petitioner's attorney was advised that the Petition for Relief would be dismissed and a Recommended Order entered recommending the Commission do likewise.
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 dismissing the Petition for Relief. DONE and RECOMMENDED this 14th day of September, 1992, at Tallahassee, Florida. COPIES FURNISHED: Robert Allen, Esquire 322 West Cervantes Street P.O. Box 12322 Pensacola, Florida 32581 Joseph L. Hammons, Esquire 17 West Cervantes Street Pensacola, Florida 32501 Margaret A. Jones Agency Clerk Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570 DIANE CLEAVINGER, 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 14th day of September, 1992.
The Issue The issue is whether Respondent, Michael’s Store, Inc. (“Michael’s”), committed an unlawful employment practice against Petitioner (“Mr. Hughes”) by discharging him.
Findings Of Fact Michael’s operates a store in Clermont, Florida. During all times relevant to the instant case, Amy Wsol was the manager of the Clermont store. Mr. Hughes was the Clermont store’s operations manager and subordinate to Ms. Wsol. Elisa Griffin was a cashier at the Clermont store. In April of 2015,1/ Ms. Griffin notified Michael’s human resources department that Ms. Wsol was not enforcing or not complying with Michael’s procedures regarding e-mail captures and other cashier practices.2/ Michael’s conducted an investigation during the summer of 2015 and concluded in August or September of 2015 that no action would be taken. Michael’s notified all employees interviewed during the course of the investigation that there would be no retaliation against Ms. Griffin. Nevertheless, immediately after the investigation’s conclusion, Ms. Wsol mandated that the other managers in the Clermont store document all of their interactions with Ms. Griffin and place those documents (“the allegedly retaliatory documents”) in Ms. Griffin’s personnel file. Mr. Hughes had the additional task of using an in-store surveillance system to monitor Ms. Griffin during her shifts. Mr. Hughes felt that Ms. Wsol’s orders regarding the monitoring of Ms. Griffin were contrary to Michael’s directive that Ms. Griffin was to suffer no retaliation because of the investigation. Mr. Hughes also felt that Ms. Wsol’s orders were immoral and unethical. The stress associated with complying with those orders had an adverse effect on Mr. Hughes’ health. Mr. Hughes is an insulin dependent diabetic, and his blood sugars became unmanageable. At one point, his endocrinologist advised him that hospitalization may be necessary if his condition did not improve. In December of 2015 or January of 2016, Mr. Hughes applied for an assistant manager position at a store that Michael’s was about to open in Orlando, Florida. While the position in the Orlando store would have been a lateral move for Mr. Hughes, it appealed to him because the Orlando position would be salaried, and Mr. Hughes was an hourly employee at the Clermont store. In January of 2016, Mr. Hughes reported Ms. Wsol’s orders regarding the allegedly retaliatory documents to Michael’s Human Resources Department. At this time, he also made copies of the documents so that he would have evidence that Ms. Wsol violated the directive that Ms. Griffin was to suffer no retaliation. Mr. Hughes did not have any authorization from Michael’s to copy the contents of Ms. Griffin’s personnel file. In February of 2016, Mr. Hughes met at the Clermont store with Dennis Bailey, one of Michael’s district managers, regarding Mr. Hughes’ allegations about Ms. Wsol. Mr. Bailey told Mr. Hughes that his allegations were being investigated. As for his request to be transferred, Mr. Bailey told Mr. Hughes that he would not be forced by a complaint to transfer Mr. Hughes to a different location. While Mr. Bailey did not completely rule out the possibility of transfer, he stated that Mr. Hughes would probably have to accept a demotion and a loss of benefits. In March of 2016, Ms. Wsol went on medical leave, and Mr. Hughes ran the Clermont store until April Skidmore arrived in April of 2016 to serve as acting store manager. At the end of May 2016, Ms. Griffin asked Mr. Hughes how she could obtain a copy of her personnel file. Mr. Hughes told her that she could request a copy from Ms. Skidmore or from Michael’s Human Resources Department. On June 14, 2016, Mr. Hughes received a call from Leah Frye, who worked in the Human Resources Department. Ms. Frye asked Mr. Hughes if Ms. Griffin had approached him about obtaining a copy of her personnel file. Mr. Hughes responded affirmatively and relayed that he had instructed Ms. Griffin on how she could obtain a copy of her personnel file. Mr. Hughes did not tell Ms. Frye that he had made a copy of the allegedly retaliatory documents in January of 2016. After Ms. Griffin received a copy of her personnel file, she stated to Mr. Hughes on June 15 or 16, 2016, that certain documents were missing. Ms. Griffin made that statement because she had expected to see documentation of compliments paid to her by customers. Ms. Griffin was also expecting to see documentation regarding the investigation of Ms. Wsol. However, none of those documents were in her personnel file. Mr. Hughes then examined Ms. Griffin’s personnel file, and discovered that the allegedly retaliatory documents were not there. Mr. Hughes then told Ms. Griffin about the missing documents and stated that he would transmit a copy of them to her upon receiving a request from her attorney. Mr. Hughes received such a request on June 17, 2016. At that point, Mr. Hughes elected to make a copy of his own personnel file because he was worried that its contents would be altered in an effort to retaliate against him. Accordingly, Mr. Hughes asked Mary Pearman, one of the other assistant managers at the Clermont store, to watch him copy his personnel file and sign a statement indicating that the documents he copied represented its complete contents. On June 29, 2016, Mr. Hughes received a call from Chad Romoser, the Director of Michael’s Human Resources Department. Mr. Romoser asked Mr. Hughes if he had made a copy of his personnel file and if he had asked a coworker to witness him doing so. Mr. Hughes responded affirmatively and stated that he copied the contents of his personnel file because the allegedly retaliatory documents had disappeared from Ms. Griffin’s file. Mr. Hughes then asked Mr. Romoser why the allegedly retaliatory documents were not transmitted to Ms. Griffin after she requested a copy of her personnel file. Mr. Romoser responded by stating that Michael’s Human Resources Department had no knowledge of the documents. Mr. Hughes then inquired about the status of the investigation pertaining to his report about the allegedly retaliatory documents. Mr. Romoser stated that after Mr. Bailey had met with Mr. Hughes in February of 2016, Mr. Bailey reported that Mr. Hughes was a “whiny individual” attempting to force Michael’s to give him a promotion. On June 29, 2016, Michael’s initiated an investigation of Mr. Hughes. Mr. Hughes was suspended with pay and required to relinquish his keys to the Clermont store. On July 6, 2016, Michael’s discharged Mr. Hughes. Mr. Hughes learned through a telephone conversation with Mr. Romoser that he had been discharged from Michael’s for intimidating Ms. Pearman3/ and for lying to the Human Resources Department. Mr. Hughes did not learn until filing his Charge of Discrimination with the Commission that Michael’s also discharged him for releasing personal and confidential information. Mr. Hughes was a credible witness. The undersigned finds that his testimony reflected his best recollection of the events pertinent to this case. However and as discussed below, even if all of Mr. Hughes’ testimony were to be accepted as true, Mr. Hughes has failed to present a prima facie case of retaliation under the Florida Civil Rights Act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Thomas C. Hughes’ Petition for Relief from an unlawful employment practice.5/ DONE AND ENTERED this 19th day of October, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 19th day of October, 2017.
The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent Conoco meets the statutory definition of an "employer" within the meaning of Section 760.02, Florida Statutes. Petitioner, Marlan D. Williams, who is black, is a member of a class protected by this statute. Petitioner began work at Conoco on January 4, 1990, as a sales associate and was discharged from his employment on May 27, 1992. When Mr. Williams was hired on January 4, 1990, he was required to sign a new employee agreement. Section 3 of that agreement explains to new employees the importance of good customer relations. After reading the employment contract, Mr. Williams signed the agreement. Mr. Williams testified that he understood the importance of good customer relations. Mr. Williams also testified that he understood that he could be terminated for multiple customer complaints and was aware of a white employee who had been terminated for customer complaints. Conoco's personnel policies and procedures regarding termination state in relevant part that, "involuntary terminations occur for a reason, such as when an employee's performance does not meet acceptable standards, if the employee violates Company policy, or when there is no work available for the individual." The details of Conoco's policy were left up to each sales district's manager. In this case, the district manager was Tammy Hunter. Her policy was that three complaints involving customers would result in termination. Ms. Hunter was not concerned with the truth behind these complaints, but only with the fact of multiple complaints. In the past, Conoco, through Ms. Hunter, has consistently applied its termination policy to employees receiving complaints involving customers in a nondiscriminatory manner. In fact, there was no evidence presented at the hearing that the policy was not applied in a nondiscriminatory or had unintended discriminatory impact. 1/ Over the term of his employment Mr. Williams received at least three complaints. Two of the complaints were made by customers directly to Ms. Hunter. One complaint was reported by management to Ms. Hunter and involved a very heated and nasty argument between Mr. Williams and a manager trainee in front of customers. Numerous other incidences of nonspecific poor customer relations involving employees and poor attitude were noted by the store manager, Julia Meuse. Mr. Williams received informal verbal and written counseling regarding his poor behavior towards customers, from his store manager and two assistant store managers. Conoco accordingly discharged Mr. Williams for violation of the Company policy regarding acceptable performance standards in customer relations and customer complaints. The evidence did not demonstrate these reasons were pretextual. Petitioner failed to present any evidence that he was replaced by a person not from a protected class. Therefore Petitioner has not established a prima facie case of discrimination. Finally, the decision to discharge Mr. Williams was made in good faith, for legitimate nondiscriminatory business reasons, and was based upon the objective application of Conoco's policies. Since Petitioner has failed to prove by a preponderance of the evidence that the reasons given by the Respondent for discharging him were a mere pretext to cover up discrimination on the basis of race, Petitioner has failed to establish he was discriminated against and therefore the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his race in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 2nd day of June, 1994, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1994.
