The Issue In her charge of discrimination Ms. Alexander alleges that her employer created a hostile work environment and unfair conditions of employment when it singled her out as a thief of a stolen purse, denied her overtime, disciplined her for the size of her earrings, and made insulting statements about African Americans. The issues in this proceeding are whether that discrimination occurred, and if so, what relief is appropriate.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the FCHR enter its final order dismissing the complaint by Felicia A. Alexander against Dynair. DONE AND ENTERED this 2nd day of August, 2000, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Felicia A. Alexander Post Office Box 549 Sanford, Florida 32772-0549 Gabriel G. Marrero, Administrator Dynair Services, Inc. Two Red Cleveland Boulevard, Suite 205 Orlando-Sanford International Airport Sanford, Florida 32773 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Petitioner, Palm Beach County School Board (Petitioner or School Board), has just cause to terminate or otherwise discipline Respondent, Rayburn White’s, employment based on the conduct alleged in the “Petition” dated January 15, 2009, and filed with DOAH January 20, 2009. Also at issue is the discipline, if any, to be imposed.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Palm Beach County, Florida Petitioner has entered into individual contracts with its employees. At all times relevant to this proceeding, Petitioner employed Respondent as an art teacher. The record is silent as to whether he has a continuing contract or a professional services contract. Prior to his reassignment after his arrest in 2008, Respondent’s assigned school was Acreage Pines Elementary School (Acreage Pines). Respondent has been employed by Petitioner since October 17, 1987. Respondent’s job performance has been satisfactory or above during his tenure with Petitioner. Petitioner and the teacher’s union have entered into a collective bargaining agreement (CBA). Petitioner has adopted rules and policies that control the activities of its teaching professionals. Respondent is subject to the provisions of the CBA, rules adopted by Petitioner, rules of the State Board of Education, and duly-enacted statutes. Article II, Section M(6) of the CBA pertains to progressive discipline and provides as follows: (6) Where just cause warrants such disciplinary action(s) and in keeping with the provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Section 1012.22(1)(f), Florida Statutes, provides that a district school board has the following powers: (f) Suspension, dismissal, and return to annual contract status.--The district school board shall suspend, dismiss, or return to annual contract members of the instructional staff and other school employees; however, no administrative assistant, supervisor, principal, teacher, or other member of the instructional staff may be discharged, removed, or returned to annual contract except as provided in this chapter. Section 1012.27(5), Florida Statutes, provides that a school superintendent has the following powers: (5) SUSPENSION AND DISMISSAL.--Suspend members of the instructional staff and other school employees during emergencies for a period extending to and including the day of the next regular or special meeting of the district school board and notify the district school board immediately of such suspension. When authorized to do so, serve notice on the suspended member of the instructional staff of charges made against him or her and of the date of hearing. Recommend employees for dismissal under the terms prescribed herein. Florida Administrative Code Rule 6B-1.001 sets forth the Code of Ethics of the Education Profession in Florida. Subsections (2) and (3) thereof provide as follows: The educator’s primary professional concern will always be for the student and for the development of the student’s potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity. Aware of the importance of maintaining the respect and confidence of one’s colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. School Board Policy 6Gx50-1.013(1) requires School Board employees to “. . . carry out their assigned duties in accordance with federal laws, rules, state statutes, state board of education rules, school board policy, superintendent’s administrative directives and local school and area rules.” THE 1994 INCIDENT On or about June 27, 1994, Respondent entered a plea of guilty to the following charges brought in the United States District Court for the Northern District of Mississippi: Interference with Government Employee, Disorderly Conduct, and Reckless Driving. A U.S. Magistrate adjudicated Respondent guilty of all three charges, imposed court costs, and placed him on probation for one year with the following special condition of probation: “Defendant shall not visit any area of the Tennessee Tombigbee Waterway while on probation supervision.” On March 21, 1995, the Florida Education Practices Commission (EPC) filed an Administrative Complaint against Respondent that included the following factual allegations in paragraphs 3, 4, and 5: On or about June 18, 1994, Respondent was observed masturbating in his car. When approached by an undercover federal office, Respondent fled the scene and was later apprehended. Respondent was arrested in the U.S. Northern District of Mississippi and charged with Interference with Government Employees, Disorderly Conduct and Reckless Driving. On or about June 27, 1994, Respondent plead guilty to all three charges and the Court adjudicated him to be guilty as charged. Respondent was sentenced to serve one year probation, not return to the Tennessee Tombigbee Waterway and pay a $400 fine and court costs. Thereafter Respondent and the EPC entered into a Settlement Agreement which included the following in paragraphs 3 and 4: The Respondent elects not to contest the allegations set forth in the Petitioner’s Administrative Complaint, which are incorporated herein by reference. The Respondent agrees to accept a letter of reprimand for the conduct described in the Administrative Complaint, a copy of which shall be placed in his certification file with the Department of Education, and a copy of which shall be placed in his personnel file with the Palm Beach County School Board. The Settlement Agreement also includes the following in paragraphs 6 and 7: The Respondent agrees that within thirty [30] days of entry of the Final Order herein he shall provide the Education Practices Commission [EPC] written verification from a professional approved by the Recovery Network Program that he poses no threat to the safety or well-being of students and that he is able to perform the responsibilities of an educator. All expenses incurred in connection with providing this verification shall be borne by the Respondent. The Respondent agrees that he shall be placed on probation for a period of two [2] years . . . The Settlement Agreement was approved by Final Order issued by the EPC on September 22, 1995. Respondent served his period of probation. Respondent did not admit the alleged facts that underpin the EPC’s Administrative Complaint.1 THE 2008 INCIDENT Okeeheelee Park (the park) is located in suburban Palm Beach County. The park’s various recreational amenities include walking trails. The park also has restroom facilities at multiple locations. Detective Van Garner of the Palm Beach County Sheriff’s Office and his partner, Detective Peter Lazar, were assigned to conduct undercover operations in the park on July 21, 2008. Their assignment included the apprehension of people engaging in illegal sexual acts in the park. This assignment was in response to citizen complaints about such activity in the park. Both officers were in civilian dress. Detective Garner wore a tee shirt and short pants. On July 21, 2008, Respondent was exercising in the park by walking to lose weight. Because of medical problems, Respondent needed to lose weight. To work up a good sweat, Respondent wore a one-piece wet suit that covered his torso, but not his arms or his legs. The wet suit had a front zipper, which zipped in a downward, diagonal motion from his neck area to his left thigh area. Respondent wore a shirt and a pair of walking shorts over the wet suit. During that summer, Respondent typically walked from noon to 4:00 p.m. Respondent attracted the attention of Detective Garner on the afternoon of July 21, 2008, because he saw him go into more bathrooms in the park than “normal.”2 At approximately 3:00 p.m. on July 21, 2008, Respondent had been walking for three hours. He went to the area of a bathroom at the top of a hill near a pavilion where there was a cool breeze. Detective Garner pulled up in a truck, got out, and went inside the bathroom from the door on the opposite side of the building from where Respondent was standing.3 Almost immediately thereafter, while Detective Garner was standing at a urinal, Respondent entered the bathroom, walked past Detective Garner, and went to a handicapped stall. Respondent left the door to the handicapped stall ajar. Detective Garner and Respondent were the only two people in the restroom. Detective Garner testified that sometimes a man who is in a restroom for sexual activity will do things to attract the attention of other patrons of the facility. Respondent did not make any hand signal, say anything, or do anything to attract the attention of Detective Garner other than leaving the door to the stall ajar. Respondent did nothing in the restroom that would have attracted Detective Garner’s attention had Detective Garner not been a law enforcement officer. Respondent stood in the handicapped stall in the proper stance to urinate. His feet faced the toilet and his body was turned so that one looking into the stall from the door would have seen his back and side, but not his front. Detective Garner became suspicious because he did not hear a stream of urine coming from the stall. There was a conflict in the evidence as to what Respondent was doing in the stall. Respondent testified that he had unzipped the wet suit so he could urinate. Respondent testified that with one hand he was holding up his shorts and with the other he was trying to prevent the wet suit from becoming completely unzipped. Respondent testified that it is very difficult to get the wet suit zipper started once it becomes completely unzipped. According to Respondent, when Detective Garner approached the stall, Respondent was removing his penis from the wet suit in order to urinate. Detective Garner testified that when he approached the stall, he saw Respondent move his hands back and forth below the level of his waist in an activity Detective Garner believed could only have been masturbation. Detective Garner could not see Respondent’s genital area until Respondent turned toward Detective Garner after Respondent sensed Detective Garner’s presence. Detective Garner testified that he saw Respondent’s erect penis when Respondent turned. In resolving the conflicting evidence, the undersigned finds that Petitioner failed to establish by a preponderance of the evidence that Respondent masturbated in the handicapped stall of the park’s bathroom on July 21, 2008.4 Petitioner also failed to establish by a preponderance of the evidence that Respondent was attempting to solicit Detective Garner or anyone else for sex. When Respondent turned towards him, Detective Garner pulled out his badge and identified himself as a deputy sheriff. Respondent immediately began to put his penis back in the wet suit and his short pants. Within 20-to-30 seconds of that identification, Respondent had accomplished that purpose and started to exit the stall. In leaving the stall, Respondent pushed Detective Garner aside. Detective Garner pushed back. Before Respondent left the bathroom, there was a brief scuffle between Detective Garner and the Respondent consisting of Detective Garner trying to restrain Respondent and Respondent attempting to exit the bathroom. No blows were thrown during the scuffle. When he left the restroom, Respondent walked down a hill away from the restroom and Detective Garner. Detective Garner walked in the opposite direction to retrieve his firearm from his vehicle. While walking to his vehicle, Detective Garner called Detective Lazar on a cell phone and requested that Detective Lazar come to the scene to assist him. As Detective Lazar was heading to the scene, he asked a uniformed officer to follow him to the scene. Shortly thereafter, Detective Lazar and the uniformed officer arrived on the scene. Respondent promptly complied with their orders. Respondent was charged with Exposing Sexual Organs in violation of Section 800.03, Florida Statutes; Resisting Arrest Without Violence in violation of Section 843.02, Florida Statutes; and Loitering in Public Restroom in violation of a county ordinance. Respondent entered into a Deferred Prosecution Agreement in resolution of the criminal charges. Respondent successfully completed the Deferred Prosecution Agreement, which included undergoing supervision, paying the costs associated with the supervision, completion of the Prostitution Impact Prevention Education School, undergoing HIV/STD test, provision of a DNA sample, and no contact with adult establishments. Respondent timely self-reported his arrest as required by School Board policy. The School Board’s Department of Employee Relations conducted an investigation into Respondent’s employment history, his background, and the events that culminated in his arrest on July 21, 2008. The results of the investigation were presented to the School Board’s Employee Investigative Committee (EIC), which makes non-binding recommendations to the Superintendent of Schools. The EIC voted to substantiate the charges against Respondent and recommended to the School Superintendent that Respondent’s employment be suspended for 20 days and that Respondent be transferred to another school. Dr. Johnson made the decision that Respondent’s employment should be terminated. When he made that recommendation, Dr. Johnson thought that Respondent had been caught masturbating for the second time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order dismissing the charges against Respondent and reinstating his employment with full back pay. DONE AND ENTERED this 10th day of February, 2010, in Tallahassee, Leon County, Florida. 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 10th day of February, 2010.
The Issue The issues for determination are: (1) did the College of Central Florida (“CCF”) commit an unlawful employment practice by discriminating against Petitioner on the basis of age and/or sex; and (2) did CCF unlawfully retaliate against Petitioner by firing her.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Ms. Howell began working in CCF’s lawn maintenance department on August 17, 2015. She worked 25 hours a week performing activities such as removing weeds, picking up debris, and maintaining the flower beds around CCF’s campus. CCF’s lawn maintenance department consisted of approximately 20 people, but Ms. Howell was the only female. At the time of the final hearing, Ms. Howell was 67 years old. Tommy Morelock, CCF’s director of facilities, made the decision to hire Ms. Howell. Ms. Howell claims that her co-workers mistreated her. For example, she asserts that there were at least three occasions when co-workers intentionally drove a four-wheel drive vehicle or a pickup truck into a golf cart driven by her. Another alleged incident involved a co-worker running a finger down her neck. In addition, Thomas Smith supposedly “flipped her off” on numerous occasions throughout her tenure at CCF and referred to her as a “f***ing c*nt.” In approximately August of 2016, after a co-worker allegedly used a vehicle to strike a golf cart driven by Ms. Howell, her fiancée, Newell Melton, called CCF in order to lodge a complaint with Mr. Morelock. Mr. Melton ultimately spoke with Katherine Hunt, one of Mr. Morelock’s subordinates and CCF’s manager of facility operations and construction projects. Ms. Hunt met with Ms. Howell soon afterward about these alleged incidents. Ms. Howell also described how her male co- workers would grab themselves between the legs. However, Ms. Howell did not indicate that those actions were directed toward her. Ms. Howell did not mention any improper conduct by Thomas Smith during her meeting with Ms. Hunt. In late 2016 or early 2017, Ms. Howell also met with Mark Sakowski, another of Mr. Morelock’s subordinates and CCF’s manager of plant safety and facility operations, about one of the vehicle incidents. Mr. Sakowski told Ms. Howell that he would talk to the co-worker in question and asked her to bring any future issues to his attention. Ms. Howell did not mention anything to Mr. Sakowski about Thomas Smith directing obscene gestures toward her. After the meeting, Mr. Sakowski spoke to employees within the lawn maintenance department about professionalism, safety, and having respect for others. Ms. Howell never filed a formal complaint with CCF about her co-workers’ alleged misconduct. At Mr. Morelock’s request, Ms. Howell met with him and Caroline Smith, CCF’s equity officer, on June 7, 2017, to discuss her complaints. During this meeting, Ms. Howell described: (a) how her co-workers would drive vehicles into golf carts she was occupying; (b) the incident in which a co-worker ran a finger down her neck; and (c) a rumor among her co-workers that she was planning to file a sexual harassment complaint. As CCF’s equity officer, Ms. Smith is responsible for investigating student and employee claims of discrimination or harassment. After hearing Ms. Smith’s description of the alleged incidents, she concluded that the allegations involved inappropriate “horseplay” rather than age and/or gender-based discrimination. She then explained CCF’s employee complaint procedure to Ms. Howell, but Ms. Howell declined to initiate a formal complaint. Ms. Howell did not mention Mr. Smith’s alleged misconduct during her meeting with Mr. Morelock and Ms. Smith. In a memorandum dated June 7, 2017, and addressed to Ms. Howell, Mr. Morelock wrote the following: As discussed in our 11:00 AM meeting today with the College Equity Officer, Mrs. Smith, to address your complaints regarding horseplay in the workplace, rumors, and possible harassment, I have met with the 3 employees in your complaint and have addressed these issues. Please let me know immediately if there are any further incidents or if you have any additional concerns. Mr. Morelock noted in the memorandum that Ms. Hunt, Mr. Sakowski, and Ms. Smith received copies. Ms. Howell received a copy of Mr. Morelock’s memorandum shortly after their meeting. At approximately 12:30 p.m. on July 19, 2017, Ms. Howell was nearing the end of her workday and driving a golf cart. She crossed paths with a vehicle driven by Mr. Smith and noticed in her rearview mirror that Mr. Smith was directing an obscene gesture toward her.2/ Ms. Howell proceeded on her way to leaving the CCF campus. However, she reversed course and, with the assistance of another co-worker, spent approximately ten minutes driving around the CCF campus looking for Mr. Smith. Upon finding Mr. Smith at the back of the CCF campus planting junipers, Ms. Howell exited the golf cart and angrily told Mr. Smith to stop directing obscene gestures toward her. According to Mr. Smith, Ms. Howell went into a “tirade.” After confronting Mr. Smith, Ms. Howell left the campus without reporting this new incident to any supervisors. As far as she knew, none of the pertinent supervisors were available. Mr. Smith felt threatened and immediately sought out Mr. Sakowski. Mr. Smith reported that Ms. Howell demanded that he stop spreading rumors about her, and Ms. Howell supposedly stated that CCF, Mr. Smith, and Mr. Smith’s wife “would be sorry.”3/ Rather than obtaining Ms. Howell’s version of the confrontation, Mr. Sakowski and Ms. Hunt spoke to Mr. Morelock, who was on vacation at the time. Mr. Morelock recommended that they confer with CCF’s director of Human Resources and authorized them to resolve the matter as they saw fit. Mr. Sakowski and Ms. Smith called Ms. Howell on July 21, 2017, and notified her that she had been fired. The only explanation given to Ms. Howell was that she did not work well with supervisors and co-workers. Mr. Sakowski explained that he was concerned about his staff’s safety and that of CCF’s students: We take safety very seriously on the campus. And in this day and age with mass-casualty and active-shooter scenarios, we practice these drills on campus on an annual basis. And it did scare me that -- I did not want it [to] make national news. Mr. Sakowski was also concerned by the fact that Ms. Howell confronted Mr. Smith rather than reporting his obscene gesture to a supervisor: Instead of coming back onto campus after leaving her shift, she should have come into the building and either got myself or Ms. Hunt at that time and explained what had just happened instead of taking matters into her own hands. Because Mr. Morelock’s memorandum to Ms. Howell directed her to “[p]lease let me know immediately if there are any further incidents or if you have any additional concerns,” Ms. Hunt considered Ms. Howell to be insubordinate when she confronted Mr. Smith on July 19, 2017.4/ This was the first disciplinary action that CCF had taken against Ms. Howell. Since being fired by CCF, Ms. Howell has unsuccessfully applied for two positions, a greeter at a hospital and a landscaping technician at a local cemetery. While she considers herself to be retired, Ms. Howell is still looking for employment. Ultimate Findings Ms. Howell persuasively testified that Mr. Smith directed an obscene gesture toward her on July 19, 2017. However, the preponderance of the evidence demonstrates that CCF did not know nor should have known that Mr. Smith directed obscene gestures and/or language toward Ms. Howell. While Ms. Howell consistently testified that she did not discuss Mr. Smith’s conduct with Mr. Sakowski or Ms. Hunt, she gave conflicting testimony as to whether she reported Mr. Smith’s conduct to Mr. Morelock during their meeting on June 7, 2017. In contrast, Carol Smith, CCF’s equity officer, persuasively testified that Mr. Smith’s conduct was not discussed during that meeting.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 17th day of June, 2019, in Tallahassee, Leon County, Florida. S 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 17th day of June, 2019.
The Issue Is Petitioner entitled to attorney's fees and costs under Section 57.111, Florida Statutes, the Florida Equal Access To Justice Act?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The action in this case was initiated by the Respondent, a state agency. The Respondent was not a nominal party. Petitioner was the prevailing party in the administrative action brought against his license by Respondent in Department of Business and Professional Regulation, Board of Veterinary Medicine vs. William H. Jernigan, D.V.M., Case No. 95-4487 in that Respondent voluntarily dismissed the case. Petitioner incurred attorney's fees and costs in excess of $15,000, and there is no dispute as to the reasonableness of attorney's fees and costs. There are no special circumstances which would make an award of attorney's fees and costs unjust. At all times pertinent to this proceeding, Petitioner's veterinary practice was organized as a sole proprietorship under the fictitious name of Sebring Animal Hospital located in Sebring, Florida. Petitioner is the sole proprietor of Sebring Animal Hospital, an unincorporated business. Both Petitioner and Sebring Animal Hospital are domiciled in the State of Florida. At all times pertinent to this proceeding, Petitioner through Sebring Animal Hospital employed less than 25 employees. At no time pertinent to this proceeding, did Petitioner and Sebring Animal Hospital have a combined net worth in excess of two million dollars. Petitioner is a "small business party" as that term is defined in Section 57.111(3)(d), Florida Statutes. On or about September 23, 1993, a dog was presented to the Sebring Animal Hospital for boarding and grooming. On or about October 1, 1993, a hospital employee, during the course of grooming the dog, left the dog unattended. While unattended, the dog either fell or jumped off the grooming table and accidentally hanged herself with a leash that was being used to restrain her. The dog's owner was notified of the accident on October 1, 1993. Petitioner was not present in the hospital at the time of the accident. The owner of the dog subsequently filed a complaint with the Respondent on March 28, 1995. An investigation of the incident was conducted by an investigator from the Department of Business and Professional Regulation (Department). The investigator prepared an Investigative Report which included, among other things, the Investigator's interview with the complainant and Petitioner's response. The factual allegations of the incident contained in the Investigative Report are the same as those set out in findings of fact 9, 10, and 11. The Investigative Report was presented to the Probable Cause Panel (PCP) of the Board of Veterinary Medicine. The members of the PCP reviewed the Investigative Report prior to its meeting and discussed the Investigative Report at the PCP meeting on June 29, 1995. The PCP found probable cause and issued a Memorandum of Finding of Probable Cause but did not state the statutory violations upon which the finding of probable cause was based. The PCP directed the Department to file an Administrative Complaint. Although the Board's attorney was present at the PCP meeting on June 29, 1995, none of the panel members made an inquiry of the Board's counsel as to whether under the facts presented there was a violation of Chapter 474, Florida Statutes, specifically Section 474.214(1)(o), Florida Statutes. In fact, the PCP made no inquiry of anyone as whether the facts as presented constituted a violation of Chapter 474, Florida Statutes. Of all the evidence considered by the PCP, there was no evidence which would reasonably indicate that a violation of Chapter 474, Florida Statutes, had occurred. As directed by the PCP, the Department filed an Administrative Complaint against Petitioner alleging a violation of Section 474.214(1)(o), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, ORDERED that Petitioner's Application for Attorney's Fees is Granted and the Respondent shall forthwith pay Petitioner the sum of $15,000 for attorney's fees and costs. ORDERED this 18th day of August, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997. COPIES FURNISHED: Richard T. Ferrell Secretary Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Sue Foster Executive Director Board of Veterinary Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Bert J. Harris, III, Esquire SWAIN, HARRIS, SHEEHAN and MCCLURE, P.A. 212 Interlake Boulevard Lake Placid, Florida 33852 James E. Manning, Esquire Department of Business and Professional Regulation Suite Number 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Did Respondent, Universal City Development Partners (Universal), discharge Petitioner, Kevin D. Fischer, because of his age? Did Respondent, Universal City Development Partners (Universal), discharge Petitioner, Kevin D. Fischer, because of a handicap or a perception that he had a handicap?
Findings Of Fact Universal operates a theme park in Orlando, Florida. Universal employed Mr. Fischer as an Industrial Automation Technician (Electrical) for approximately 20 years. From May 27, 2011, until June 15, 2011, Mr. Fischer was on approved medical leave. After that, he returned to work with no activity restrictions. Mr. Fischer's date of birth is July 2, 1960. Universal discharged Mr. Fischer on July 11, 2011. Universal discharged Mr. Fischer for failure to properly clean a bilge pump on June 26, 2011, and for falsely certifying that he had cleaned the pump. Cleaning the pump was a preventative maintenance procedure that Mr. Fischer had performed for most of his career with Universal. The pumps are in the bilge or bottom of the boats used in Universal's Jaws ride. Each boat carries approximately 48 passengers around an artificial island in a man-made lagoon. The ride simulates the experience passengers might have boating in the waters depicted in the movies "Jaws" while the shark swam the waters. The boats ride on rails and are moved about by hydraulic arms. The bilge pumps are important protection for the $8,500.00, engines in the boats. If the pumps fail, water accumulates in the bilge and can cause very costly damage to the engines. On June 26, 2011, Mr. Fischer worked from 6:00 a.m. until 2:30 p.m. His duties that day included cleaning and servicing three bilge pumps. Mr. Fischer completed Universal's standard preventive maintenance form confirming he had cleaned and serviced the pumps. Mr. Christopher Cole, a former supervisor, examined the pumps after Mr. Fischer's shift ended. They had not been properly cleaned. The float switches were caked with sludge. If properly cleaned, they would not have been. The float switch is critical to operation of the pump. It turns the pump on when water reaches an unacceptable level in the bilge. Ricky Stienker, Mr. Fischer's supervisor at the time, terminated Mr. Fischer on July 11, 2011, for failure to properly clean the pumps and falsely representing that he had cleaned them. In 2008 and 2009, Mr. Fischer's annual reviews rated him as less effective. Then in 2010, the review rated Mr. Fischer as highly valued. But during his career, Mr. Fischer had received eight different counselings for poor performance. Mr. Fischer used Universal's appeal process to contest his discharge. David Winslow, senior vice president of the Technical Services Division, denied his appeal. There is no credible evidence of offenses committed by other employees of any age or physical condition that were similar to Mr. Fischer's failure to properly clean the pumps and his misrepresentation that he had cleaned them. Universal's employee handbook includes a clear policy requiring employees to be honest and trustworthy in all of their business activities and relationships. It also, clearly states that acts of dishonesty are grounds for immediate discharge. Mr. Fischer received the employee handbook when he began employment with Universal. Mr. Fischer has diabetes. His previous supervisor, Mr. Cole, knew this because he had observed Mr. Fischer taking medication that Mr. Cole also took. Mr. Cole also has diabetes and has had it for approximately 25 years. Mr. Cole did not perceive having diabetes as a handicap. There is no evidence that Mr. Stienker, who made the decision to discharge Mr. Fischer, knew Mr. Fischer had diabetes. There is no persuasive, credible evidence that Mr. Fischer had a handicap or that his supervisors or any management employee of Universal perceived Mr. Fischer as having a handicap. Consequently, there is no persuasive, credible evidence that a handicap or perception of handicap was a factor in Universal's discharge of Mr. Fischer. There is no evidence establishing who filled Mr. Fischer's position or the age of that person. There is no persuasive, credible evidence that Mr. Fischer's age was a factor in Universal's decision to discharge him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny Mr. Fischer's Petition for Relief. DONE AND ENTERED this 17th day of August, 2012, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 17th day of August, 2012.
Findings Of Fact Petitioner has been employed with the Florida Department of Transportation since 1971. He is a graduate of the University of West Florida, with a degree in business management. Petitioner is 38 years old, with a physical disability which limits his use of his left hand and arm, and his left leg is shorter than his right. In 1979, Petitioner was employed by Respondent in its right-of-way section, as a Right-of-Way Agent III. In that position, he was responsible for the coordination of the Acquisition, Relocation and Property Management sections of Respondent's District III. One of Petitioner's subordinates was H. E. Walls, who was in charge of the Acquisition section. Petitioner's immediate supervisor was J. F. Culpepper, Assistant Right-of-Way Administrator. In April, 1980, a new Right-of-Way Administrator, J. A. Alfes, was assigned to District III. In 1980, and again in 1981, Petitioner filed charges of discrimination against Respondent with the Florida Commission on Human Relations premised upon Petitioner's aforementioned disability. The 1980 charge was resolved through the entry of a settlement agreement. The charge filed in 1981 was premised upon the same disability, but that charge was ultimately dismissed by the Florida Commission on Human Relations. In January, 1981, a hearing was held in Tallahassee, Florida, on one of the charges of discrimination filed by Petitioner. On the day following that hearing, Petitioner was called into Mr. Alfes' office in Chipley, Florida, and was told that the hearing held in Tallahassee had been several hours of "horse shit." On May 18, 1981, Mr. Alfes advised Petitioner of an impending reorganization of the section in which Petitioner was employed. Subsequently, on June 17, 1981, Mr. Alfes told Petitioner that there would be "consequences" as a result of Petitioner's having filed complaints with the Florida Commission on Human Relations. In 1981 a reorganization of functions occurred in all six districts statewide of DOT. This reorganization eliminated one classification of position, Right-of-Way Agent III, which Petitioner had held in District III, and elevated the positions at the head of Acquisition and Relocation sections to the administrator level. At the time this reorganization occurred, Petitioner, as previously mentioned, was a Right-of-Way Agent III, and Herbert Walls headed the Acquisition section. Mr. Alfes, Petitioner's immediate superior, recommended that Petitioner be placed in charge of Relocation, and that Mr. Walls, who had been working in Acquisition, be placed in charge of the Acquisition section in light of his experience in that area since 1978. J. F. Culpepper, who occupied the position on DOT's organization chart to whom the Acquisition section, Relocation section, and Property Management section would report, recommended that the Petitioner be placed in charge of the Acquisition section, based upon his belief that Petitioner was better qualified by reason of his real estate training and college degree. Mr. Walls had only a high school diploma. During the period of his employment with DOT, Petitioner had not handled any complete right-of-way acquisition matters, and had never negotiated for DOT in the acquisition of any right-of-way parcels. Petitioner had, however, attended two relocation seminars while employed by DOT. Mr. Walls had been continually engaged in acquisition work for DOT since at least 1978. DOT's District Engineer, Alan Potter, was the DOT employee ultimately responsible for selecting the heads of the Acquisition and Relocation sections. Mr. Potter concurred with the recommendation that Petitioner be placed in charge of the Relocation section, based upon his belief that it was the most important job involved in right-of-way acquisition, and that it required a very thorough and cautious person. Based upon Mr. Potter's evaluation of Petitioner as possessed of high ability, and being very mature and compassionate, Petitioner was placed in charge of the Relocation section. At the time Petitioner was named as head of Relocation and Mr. Walls was placed as head of Acquisition, the two positions were both classified as Right-of-Way Specialist II's, pay grade 22. Later both were reclassified as Right-of-Way Administrator I's, at pay grade 23. The record in this cause establishes that neither position was more prestigious" than the other, or that either position placed the individual holding it in a more favorable posture for promotion or advancement. Subsequently, in the summer of 1981, the reorganization of DOT was completed, with Mr. Walls having been appointed head of Acquisition, with approximately six subordinates. Petitioner became responsible for Relocation, and shared the supervision of a clerical employee with the head of Property Management. After reorganization, Mr. Alfes relocated Petitioner's office in another building 100 feet away from the main office. Petitioner's office was initially located in a passageway and, as a result, Petitioner was required several times a day to make trips to the main building to obtain files necessary to complete his work. In August of 1983, prior to final hearing in this cause, Mr. Alfes retired, and Petitioner's office was relocated in a more spacious office close to the Acquisition section.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Commission on Human Relations, dismissing the petition for relief, and denying the relief requested therein. DONE AND ENTERED this 23rd of May, 1984, at Tallahassee, Florida. WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1984. COPIES FURNISHED: BEN R. PATTERSON, ESQUIRE POST OFFICE BOX 4289 TALLAHASSEE, FLORIDA 32315 VERNON L. WHITTIER, JR., ESQUIRE DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301 JEAN OWEN, ESQUIRE ASSISTANT GENERAL COUNSEL FLORIDA COMMISSION ON HUMAN RELATIONS WOODCREST OFFICE CENTER 325 JOHN KNOX ROAD SUITE 240, BUILDING F TALLAHASSEE, FLORIDA 32303 DONALD A. GRIFFIN, EXECUTIVE DIRECTOR FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BUILDING F, SUITE 240 TALLAHASSEE, FLORIDA 32303
The Issue Whether Respondent Eastern Florida State College (EFSC) engaged in discriminatory employment practices and retaliation, in violation of the Florida Civil Rights Act (FCRA), as alleged in the Petition for Relief; and, if so, the appropriate penalty.
Findings Of Fact Ms. Garrett is a 53-year-old African American woman. EFSC is a public college in Brevard County, Florida. For the time period relevant to this matter, EFSC is, and has been, her employer. On July 9, 2018, Darla Ferguson informed Ms. Garrett that EFSC eliminated her position as e-Learning Coordinator. EFSC did not fill Ms. Garrett’s position in the e-Learning department; rather, the prior job duties were assigned to other members in the e-Learning department. After eliminating the position of e-Learning Coordinator, EFSC offered Ms. Garrett the position of Coordinator of the Office of Undergraduate Research (OUR). The OUR department supports and promotes research opportunities among undergraduate research students through EFSC’s four campuses. Ms. Garrett accepted EFSC’s offer, and Ms. Garrett became EFSC’s first employee to hold the position as Coordinator of OUR. In lieu of offering Ms. Garrett the position of Coordinator of OUR, EFSC could have laid off Ms. Garrett following the elimination of her position as e-Learning Coordinator. However, rather than laying her off, EFSC found a new position for Ms. Garrett. Following her transfer to the position as Coordinator of OUR, Ms. Garrett’s salary and benefits remained unchanged from her prior position as e-Learning Coordinator. On July 10, 2018, Ms. Garrett met with Dr. Sandra Handfield, Scott Herber, and Dr. Ashley Spring to discuss Ms. Garrett’s new position as Coordinator of OUR. At that meeting, Dr. Handfield—who was Ms. Garrett’s new supervisor—informed Ms. Garrett that Dr. Spring and Mr. Herber were the founders of OUR. Prior to Ms. Garrett’s arrival as Coordinator of OUR, Dr. Spring and Mr. Herber, who were full-time faculty members, oversaw the OUR program. Dr. Handfield also informed Ms. Garrett that should she have any questions regarding her position as Coordinator of OUR, she should consult with Dr. Spring and Mr. Herber. As of the date of the final hearing, Ms. Garrett remained employed by EFSC as the Coordinator of OUR, and continues to receive the same salary and benefits that she received when she was the e-Learning Coordinator. Allegations of Adverse Employment Action EFSC originally intended for the Coordinator of OUR to be a Director, and possess a doctorate degree. However, EFSC later changed this position to Coordinator, which did not require a doctorate degree, and which had a lower salary. Ms. Garrett never applied for the Director of OUR position, and she does not have a doctorate degree. Ms. Garrett testified concerning her belief for the reason that EFSC transferred her to the Coordinator of OUR position, stating: I believe they did that because the intent was to put me in a position that was beyond my reach so that when I had issues and problems, they could use that and tie it with this position in order to say that I could not do the job. On April 12, 2019, Ms. Garrett received a six-month performance evaluation covering her first six months in her position as Coordinator of OUR. Dr. Handfield provided the performance evaluation approximately four months after the performance period ended. The performance evaluation indicated that Ms. Garrett was deficient in the areas of teamwork, valuing differences, and communication. Following the performance evaluation, Ms. Garrett did not lose any pay or benefits, and nothing adverse happened to Ms. Garrett as a result of the performance evaluation. Ms. Garrett testified that she believed Dr. Handfield gave her that evaluation “as a form of retaliation[,]” but not on the basis of her race, age, or gender. She further testified as follows: Q. Okay. But just to be clear, not gender, age, or race. You think it’s retaliation, what she did, correct? A. Correct. Q. Okay. And what was she retaliating against you for in your view or what facts do you have that it was for retaliation? A. I believe it was retaliation based on the input from the faculty members, based on the interactions we had during the actual performance review period, which would have been July 9th, 2018, until January 9th, 2019. Q. So based on the interaction you had with Dr. Handfield, Dr. Spring and Mr. Herber for the six months before that; is that what you’re saying? A. Yes In January 2019, Ms. Garrett requested that she use Canvas shell computer software to enable her to build an orientation outline. EFSC denied this request, because it would not generate money. Allegations of Comparator Ms. Garrett identified Justin Looney, a 38-year-old white male, as a comparator in support of her discrimination claim.1 Ms. Garrett’s testimony was that Mr. Looney was an EFSC employee working as an Academic Services Coordinator at EFSC’s Patrick Air Force Base campus; upon the closing of that campus, EFSC eliminated Mr. Looney’s position and, similarly to Ms. Garrett, transferred him to a newly-created position in which he received the same salary and benefits. 1 At the final hearing, Ms. Garrett also mentioned Marian Sheltman as a possible comparator, stating that she was a white female. However, Ms. Garrett failed to introduce any additional facts or evidence concerning Ms. Sheltman’s status or to explain how the undersigned could consider Ms. Sheltman as a valid comparator. The undersigned finds that Ms. Garrett failed to establish Ms. Sheltman as a comparator in this matter. Ms. Garrett contends that EFSC treated Mr. Looney differently, during his transfer, in that EFSC provided Mr. Looney more notice time between the elimination of his prior position and the transfer to his new position. Ms. Garrett also contends that EFSC treated Mr. Looney differently than her because Mr. Looney was Dr. Handfield’s son-in-law. Allegations of Hostile Work Environment Ms. Garrett testified that at the July 10, 2018, meeting, Dr. Spring commented about the uncleanliness of the OUR office, and recommended that Ms. Garrett obtain a broom and dustpan to keep the office clean. Ms. Garrett also testified that she declined to assist Dr. Spring in hanging posters on the wall of the OUR office. Ms. Garrett also testified that Dr. Spring noticed that the OUR signage was covered up on the outside of the building, and asked Ms. Garrett to correct this. Ms. Garrett testified that in subsequent meetings with Dr. Handfield, she “shared [her] concerns regarding the work environment[,]” and stated that she did not feel comfortable with the things Dr. Spring and Mr. Herber asked of her because these things “were in violation of college policy.” Ms. Garrett testified that Dr. Spring micromanaged her role as the Coordinator of OUR; for example, Dr. Spring continued to process online student research forms, and coordinated the Fall 2018 OUR board meeting. Ms. Garrett also testified that Dr. Spring opened the OUR online student forms too early, which prevented Ms. Garrett from matching faculty mentors with student applicants.2 Ms. Garrett also testified that Dr. Spring made decisions concerning the OUR without consulting with her. Ms. Garrett testified that Dr. Spring would send her e-mails asking if Ms. Garrett had completed the work requested of her. 2 Ms. Garrett also testified that Mr. Herber was not involved in micromanaging her role as the Coordinator of OUR. Ms. Garrett testified that Dr. Spring told Ms. Garrett what she should be doing, and would become vocal with her dissatisfaction of Ms. Garrett’s job performance. Ms. Garrett testified that she did not know why Dr. Spring engaged in any of these actions. After a November 2018 meeting with Dr. Spring, Ms. Garrett testified that her work atmosphere became “more tense … in terms of Dr. Spring and Mr. Herber starting to make comments about allegations about my work.” She further testified that after this meeting, Dr. Handfield “started issuing directives[,]” such as requiring Ms. Garrett to first ask Dr. Spring and Mr. Herber for input prior going to other EFSC campuses to host information tables. Ms. Garrett claimed that she was subjected to a hostile work environment in which “in every meeting that I planned and hosted, Dr. Spring and Mr. Herber would say disparaging comments during the meeting.” For example, “[t]hey would talk across me and I did not reply.” Although Dr. Handfield was Ms. Garrett’s supervisor, Ms. Garrett testified that Dr. Handfield openly discussed supervision of the OUR with Dr. Spring and Mr. Herber. Findings of Ultimate Fact Ms. Garrett presented no persuasive action that EFSC’s decisions concerning, or actions affecting, her, directly or indirectly, were motivated in any way by race-based, sex-based, or age-based discriminatory animus. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race, sex, or age discrimination. Ms. Garrett presented no persuasive evidence that EFSC’s actions subjected her to harassment based on race, sex, or age. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race, sex, or age harassment. Ms. Garrett presented no persuasive evidence that EFSC discriminated against her because she opposed an unlawful employment practice, or because she made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the FCRA. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful retaliation. Ms. Garrett presented no persuasive evidence that EFSC’s actions were sufficiently severe or persuasive to alter the terms and conditions of her employment to create a hostile work environment. There is no competent, persuasive evidence in the record upon which the undersigned could make a finding of hostile work environment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Mary F. Garrett’s Petition for Relief. DONE AND ENTERED this 12th day of November, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER 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 12th day of November, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Mary F. Garrett Apartment 2508 2741 Caribbean Isle Boulevard Melbourne, Florida 32935 (eServed) Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether Petitioner was wrongfully terminated from his position as a janitor with Respondent because of his handicap, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner, Lee, was hired by Respondent in August 1994 as a custodial worker at the Tallahassee Mall in Tallahassee, Florida. As a janitor Petitioner's duties included bending, stooping, and lifting. He was assigned to zone 3 in the Mall. Up until 1996, when Petitioner was injured, Petitioner received good evaluations on his job performance. Indeed Petitioner was very proud of the quality of his work and took special care to do his job well. Sometime prior to May 20, 1996, Petitioner, while at work and in the scope of his employment, stepped on a set of stairs which were not properly attached to a stage in the Tallahassee Mall. The steps slipped causing Petitioner's feet to come out from under him. Petitioner fell flat on his back. As a consequence Petitioner suffered a permanent back injury for which he received workers' compensation. The injury impairs his ability to work and therefore is a handicap. Around May 20, 1996, Petitioner was released by his doctor and was given orders for light duty with no bending, stooping, or heavy lifting. Petitioner gave these orders to his supervisor, Mr. Navin, when he returned to work on May 20, 1996. Respondent had light duty work available which Petitioner was qualified to perform. However, Respondent did not assign Petitioner to light duty work, but changed his work area from zone 3 to zone 1. Zone 1 is located at the front entrance to the mall and requires more work to maintain. Petitioner attempted to perform his duties but could only work for 3 1/2 hours before being overcome by pain from his injury. Petitioner could not work the next four working days because of the aggravation of his injury. On May 28, 1996, after returning to work, Petitioner was again given full duty work. Petitioner attempted to perform his custodial duties for about 2 weeks. However, the pain from his injury was so severe he again requested light duty work. Petitioner's supervisor asked Petitioner to bring him another notice from his doctor. Petitioner's doctor faxed the supervisor a second notice and Petitioner was placed on light duty work. Once Petitioner was placed on light duty work, the mall manager, Mr. Renninger, followed Petitioner around the mall watching him all the time while he worked. On July 8, 1996, prior to the mall opening for business, Petitioner was helping one of the mall store owners with a problem. Such aid was part of Petitioner's job. The mall manager walked up to Petitioner and began to yell at him in a very rude and disrespectful manner. The manager would not listen to Petitioner's explanation of the event. The manager gave Petitioner a written disciplinary notice for his aid to the mall store owner. The manager continued to follow Petitioner around the mall while he worked. Sometime around August 15, 1996, the mall manager advised the mall's employees that they should take their respective vacations prior to October. Petitioner thought it would be a good time for him to take the 4-day vacation time he had accumulated during his employment with the mall. He could use the time to allow his back to heal more. On August 15, 1996, Petitioner requested vacation leave and vacation pay for the period beginning September 3, 1996 and ending September 9, 1996. Initially, the request was denied. Petitioner's supervisor felt he had missed too much work and been late too often. However, Petitioner had only been absent or late in relation to his back injury. Petitioner explained that fact to his supervisor. His supervisor agreed and approved Petitioner's vacation. Petitioner returned to work on August 10, 1996. An argument with the administrative assistant occurred when she refused to recognize that Petitioner was entitled to be paid for his vacation time. She was not going to turn in any time for him so that Petitioner could get paid while on vacation. Getting a paycheck was a serious matter to Petitioner, and Petitioner, understandably, became gruff with the administrative assistant. Petitioner only raised his voice at the administrative assistant. He was not abusive and did not curse at her. In fact, the administrative assistant yelled at Petitioner when he raised the subject of his pay "Now, before you start bitching." Petitioner called the headquarters of Respondent and confirmed he had vacation time and pay accrued. After this incident Petitioner was fired ostensibly for mistreating the administrative assistant. The administrative assistant, who was incorrect, was not terminated. The reason appears to be a pretext. Petitioner's pay was $5.35 per hour and he worked a 40-hour-work-week. After his termination, Petitioner actively sought employment but could not find any until September 1, 1997. At that time he began work for Tallahassee Community College as a custodial worker with light duties at a higher rate of pay. Petitioner's search for work was reasonable.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding Respondent guilty of an unlawful employment practice against Petitioner and awarding Petitioner backpay in the amount of $11,770.00. DONE AND ENTERED this 27th day of October, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 27th day of October, 2000.
The Issue Has Respondent committed an "unlawful employment practice" against Petitioner, pursuant to Chapter 760, Florida Statutes, based upon a Petition for Relief dated October 13, 1997, referred to the Division of Administrative Hearings by the Florida Commission on Human Relations?
Findings Of Fact Respondent stipulated to jurisdiction, and the evidence demonstrates that by number of employees, Respondent is an "employer" as defined in Chapter 760, Florida Statutes. Respondent is a freight company which ships and receives living nursery stock by truck through a depot/warehouse. Petitioner was employed there from 1993 until June 16, 1995. In the course of formal hearing, Petitioner waived his Charge of Discrimination on the basis of his national origin (United States citizen). (TR-116). There is no evidence the Respondent employs anyone other than United States citizens. The remainder of Petitioner's allegations were that Respondent failed to accommodate one or more handicaps and subjected Petitioner to disparate treatment from similarly situated black employees. Petitioner also related a series of remarks and one personnel action that he considered to be harassing and abusive due to his handicaps. The "handicaps" that Petitioner testified to were high blood pressure, an undefined heart condition requiring medication, "bad knees," and problems with his back. At formal hearing, no medical physician or health care professional corroborated the foregoing conditions. However, it is undisputed that on or about January 9, 1995, Petitioner presented a physician's excuse to Respondent's Warehouse Supervisor, Jeff Bradner. That physician's excuse stated that Petitioner could return to work on that date, working 10 hours per day, 5 days per week, doing medium lifting, that is, "lifting 30 pounds and frequently lifting and/or carrying objects weighing 25 pounds." The excuse further stated that Petitioner was to avoid squatting, kneeling, and climbing. Mr. Bradner informed Eddie Payne, Petitioner's immediate supervisor, that the foregoing January 9, 1995, medical restrictions were to be observed for Petitioner. Attached to both Petitioner's initial Charge of Discrimination and his later Petition for Review was another physician's letter dated January 29, 1993. It stated, in pertinent part: [Petitioner], patient of record, suffers from high blood pressure, anxiety, and arterial coronary disease. These conditions are aggravated by the stress caused by problems he has with his teenage son. Also attached was a March 3, 1994, doctor's letter stating that Petitioner had a spine and knee injury. It contains the same restrictions as the January 9, 1995, letter. Because the 1993 and 1994 letters are part of the record herein, (attached to the Charge of Discrimination and Petition for Relief), I have taken official recognition thereof and find that they supplement or explain Petitioner's oral testimony at formal hearing to the effect that Petitioner was suffering from high blood pressure, anxiety, and arterial coronary disease in 1993, and from a knee injury in 1994. However, these letters were not introduced in evidence at formal hearing, and Petitioner did not testify that he ever presented any such written medical confirmations of these conditions to any of Respondent Employer's supervisory personnel. Mr. Payne and Mr. Bradner denied that any oral or written requests for accommodation had been received from Petitioner other than the January 9, 1995, doctor's excuse listing specific restrictions. Contrary to Petitioner's testimony, Mr. Payne denied knowing of Petitioner's heart condition. There also is no corroboration of Petitioner's testimony that he orally requested any accommodation specifically because of his high blood pressure or heart condition at any material time. Furthermore, and most importantly, the 1993 letter places no restrictions on Petitioner in the workplace, and the 1994 letter imposes the same restrictions as the 1995 letter, which is in evidence. The only medical condition any of his co-workers ever heard Petitioner complain about was his "bad knees." Upon the record as a whole, it is inferred that Eddie Payne also knew Petitioner complained of "bad knees." At all times material, both before January 9, 1995, and afterwards, Petitioner worked for Respondent as a "checker." Checkers have the most physically non-taxing job in Respondent's operation. They make sure that "wheelers" or "loaders" place unloaded freight on pallets in the correct location in the warehouse and that "loaders" load the correct freight from the warehouse or warehouse dock into the correct truck. In this capacity, the bulk of Petitioner's work was carrying a clipboard, making notations thereon, and orally directing others where to put boxes. Petitioner testified that due to his blood pressure and back condition, he "needed" to sit down for 15 minutes' rest every 20 minutes after January 9, 1995. The evidence as a whole does not indicate that Petitioner clearly enunciated this "need" to any supervisor. Moreover, the credible evidence supports the inference that no one could work effectively as a checker while taking 15 minute breaks as frequently as every 20 minutes, because each truck needed to be loaded or unloaded as a component, so as to avoid shipping errors. Therefore, substituting other checkers every 20 minutes would have adversely affected Respondent's business and would constitute an unreasonable accommodation for Petitioner and undue hardship for the Employer. Either substituting another checker or waiting on Petitioner to rest every 20 minutes would have been unduly costly, burdensome, or substantially disruptive and would have altered the nature of Respondent's business. Prior to January 9, 1995, Petitioner worked at least a 40-50 hour week and was paid by the number of hours he worked. Due to the nature of Respondent's business and the hours when freight was received, Petitioner's usual hours before January 9, 1995, were from approximately 4:00-4:30 p.m. until 9:30 a.m. (17- 18 hours) three days a week, mostly Monday, Tuesday and Thursday. At all times material, both before and after January 9, 1995, only twenty-five percent as much freight came in on Wednesdays and Fridays as came in on the other three work days of each week. Therefore, all employees were not needed for a 17-18 hour day on those days, and employees had the option of working at whatever was available on those days to "make their hours" for pay purposes. At all times material, on Wednesdays and Fridays, all employees who wanted to work took turns digging weeds out of the cracks in the Respondent's paved parking lot with a claw on a broom handle or the edge of a shovel; picking the weeds up with a shovel; and throwing them away. Sometimes a blower was used. In accord with the January 9, 1995, physician's written restrictions, Eddie Payne accommodated Petitioner by assigning him to work from 10:00 p.m. until 8:00 a.m., so that Petitioner would only be working 10 hours per day. This assignment had Petitioner working the hours during which the employer needed the most men because those were the hours when the workload was the heaviest. Petitioner complained because Mr. Payne would not let him work his 10 hours from 4:30 p.m. to 2:30 a.m., a less busy time, but he complained only because those hours were more convenient for him. Petitioner related that after January 9, 1995, he was made to lift more than 30 pounds of parking lot weeds at a time, with the shovel, after getting on his hands and knees to dig the weeds out, and always in the hot sun, which aggravated his undisclosed heart condition. He also related that he never got to use the blower like other employees. His testimony on this issue is not credible in light of the contrary testimony of all the other witnesses. Even if credible, Petitioner was not forced to do this work. He was permitted to do this "make work" during slow days so that he would earn at least 40 hours per week. Witnesses confirmed that another "make work" project on a single occasion was digging muck out of a ditch. Petitioner testified that he was required to dig more than 30 pounds of muck in each shovelful that he lifted out of the ditch. His description was neither corroborated or refuted, but again, Petitioner was the one who controlled the content of each shovel, and he could have declined to work at that "make work" project. According to Petitioner's time cards, from which information Petitioner received his pay, Petitioner usually worked only 10 hours or less per day after January 9, 1995. Occasionally, he worked more than 10 hours, but less than 11 hours per day. Petitioner and Eddie Payne were fishing buddies outside of work, and on at least one occasion, Eddie Payne treated his subordinates, including Petitioner, to a night-clubbing expedition. Petitioner asserted that on the job, Eddie Payne had used derogatory and profane language to him, on account of his handicaps. Once, when Petitioner wanted to punch-out early, Mr. Payne supposedly said, "Go home if you need to, you crippled old pussy." Once, Mr. Payne allegedly called Petitioner "a crippled old Mother F-----." Mr. Payne denied ever using such language either socially or on the job. Mr. Bradner testified that he had instructed his subordinates against profanity on the job, and related that Mr. Payne had a reputation for not using profanity. No other witness corroborated Petitioner's testimony that any such language had ever been addressed to Petitioner. Petitioner called Matthew Hickox, a co-employee, as a witness. Mr. Hickox related that Petitioner would often "act goofy," by doing a "Quasimodo imitation," twisting his arm, making a face, and dragging one leg behind him. When Petitioner did this, other employees would "make cracks." Petitioner claimed that dragging his leg behind him was evidence of his handicap. Mr. Hickox's opinion was that "disabled don't give you the right to act like a nut and then people not make some comment." Petitioner testified that he had only become entirely disabled since leaving Respondent's employ June 16, 1995. Although Petitioner moved slowly and evidenced pain on rising and sitting, he was able to move around and approach the witness stand at formal hearing. The undersigned observed no twisted arm, facial contortions, or dragging leg. It is inferred from observing the candor and demeanor of all the witnesses, including Petitioner, and from the whole of the evidence, but particularly from Mr. Hickox's testimony, that on such occasions as Petitioner performed his imitation on the job, Mr. Payne or Mr. Bradner may have vehemently ordered Petitioner back to work and warned him to cut out the horseplay. Petitioner claimed to have received only a fifteen-cent per hour raise when other employees received more. According to Petitioner, the other employees, including Mr. Gonzalez, were raised by twenty-five cents per quarter hour for a $1.00 per hour raise. What anyone was being paid before this raise is not in evidence. Since no evidence indicates whether this raise occurred before or after January 9, 1995, when Respondent's management clearly knew of any of Petitioner's restrictions, there was no nexus between the lack of raise and handicap discrimination.2 Petitioner also developed no nexus between this raise and racial discrimination. According to Eddie Payne, Petitioner was a sub-average worker. According to Eddie Payne and Jeff Bradner, they frequently had to instruct Petitioner to resume work. Mr. Bradner related an incident when Petitioner was leaning on a shovel in the parking lot, so Mr. Bradner sarcastically commented, "You're not getting much work done leaning on that shovel," but this motivational comment was not directed at a handicap. No employee testified that any supervisor's instructions to Petitioner, which they observed or overheard, were offensive or otherwise inappropriate. On one occasion, Petitioner was told by Mr. Bradner to stop kicking a "basketball of tape" around; throw it away; and get back to work. No employee other than Petitioner found this instruction offensive. On another occasion, Petitioner was given a written reprimand when a truckload of freight was sent to the wrong location. Petitioner attributed the error to a black "loader" named James Oliver and perceived the reprimand as discriminatory because Mr. Oliver was not reprimanded. Petitioner's superiors reprimanded Petitioner as a formal personnel action instead of Mr. Oliver because they considered Petitioner responsible for the error and resultant costs since Petitioner was in the superior position of checker. Petitioner suffered no loss of pay, hours, or seniority as a result of the reprimand. Petitioner's assertions that he was required to climb tall ladders to change light bulbs in the warehouse, to squat to lift boxes, and to kneel to pull weeds were denied by management witnesses and uncorroborated by Petitioner's witnesses. On one occasion, Petitioner had just come on duty and was having a coke and a cigarette, when Mr. Bradner told him to get to work helping a black loader named "Willie T." unload a truck. On this single occasion, Petitioner may have been asked to lift boxes in excess of 30 pounds, but the boxes also may have weighed as little as 20 pounds. This incident may have occurred before Mr. Bradner knew of Petitioner's medical restrictions on January 9, 1995, but it was probably afterwards. If so, this single incident was contrary to Petitioner's doctor's instructions, but Petitioner admittedly never complained to Mr. Bradner about this one-time incident in terms of "lack of accommodation" for his physical limitations. On the same occasion, Willie T., who already had been loading the truck for three hours, took a coke and cigarette break a half an hour after Petitioner began to help him unload the truck. Willie T. asked Petitioner to join him on his break, which Petitioner did. Mr. Bradner spotted them and instructed Petitioner to return to loading the truck because he felt Petitioner was not entitled to a break after only a half an hour of work, but did feel that Willie T. was entitled to a break after three full hours of work. This was a bona fide business consideration of Respondent. Petitioner failed to establish a nexus of racially discriminatory intent on the basis of this incident. On June 16, 1995, Petitioner was sweeping the warehouse floor, leaving trails of residue behind. Petitioner intended to go back and sweep up the residue, but before he could do so, Mr. Bradner told him that he was leaving trails and that he should do a better job. Petitioner considered this instruction to be demeaning and discriminatory, but he did not reply to Mr. Bradner. Mr. Bradner noted that Petitioner began to do a better job of sweeping, and Mr. Bradner left the area. Petitioner perceived that his co-workers were laughing at the incident and became upset. Petitioner finished sweeping one section of the warehouse and asked Eddie Payne if he could clock-out. He assumed that Eddie Payne knew he was upset because of Mr. Bradner's comment but did not tell him so. Eddie Payne authorized Petitioner to clock-out. Petitioner clocked-out and never returned to work for Respondent
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Human Relations Commission enter a Final Order denying and dismissing the Petition for Relief on all issues. DONE AND ENTERED this 15th day of October, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1998.
The Issue The issue is whether Respondent discriminated against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner, Mike Ostrom, was employed by Respondent, Beachers Lodge Condo Association, Inc., as a maintenance man for approximately seven years until his termination on March 23, 2012. Respondent is a Florida condominium association, located at 6970 A1A South, St. Augustine, Florida 32080. James W. Gilliam is the licensed community association manager for Respondent, is 78 years old, and has many years of property management experience. Petitioner filed a Complaint of Discrimination on the grounds of his age (55) and disability (eye surgery) with the Florida Commission on Human Relations (Commission) on March 23, 2012. Following an investigation, the Commission issued a Notice of Determination: No Cause on September 27, 2012. Petitioner filed a timely appeal of the Commission's determination on October 19, 2012. The petition was referred to the Division of Administrative Hearings, and a final hearing was conducted on December 11, 2012, in St. Augustine, Florida. Petitioner's work as a maintenance man involved numerous duties, including general maintenance to the grounds and buildings, painting, repairing balconies and other structures not requiring a general contractor, electrical work, and maintaining the pool. Petitioner worked alone much of the time. Prior to the arrival of Mr. Gilliam as the association manager, Petitioner had a good working relationship with the former manager, Steve Burdick. Under Mr. Burdick's supervision, Petitioner had more freedom to perform his maintenance work without what he calls "interference." Mr. Gilliam is more of a "hands on" supervisor than the previous manager had been. Petitioner was resistant to the constant checking on his work by Mr. Gilliam. He believed Mr. Burdick recognized his experience and left him alone to perform his daily tasks with passive supervision. Mr. Gilliam, as a new manager with Respondent, was given instruction by the association president, Joanne Dice, on behalf of the board of directors, to more closely supervise the maintenance staff. In Petitioner, Mr. Gilliam saw a good employee who "liked to do things his way." Mr. Gilliam estimates that Petitioner would do about 90 percent of the assigned tasks differently from how he would prefer them done. Mr. Gilliam tried to get Petitioner to come around to his way of doing things because he was responsible to the board of directors for properly maintaining the property. Mr. Gilliam believes he did not harass Petitioner, but does remember upsetting him on one occasion when he called him "Michael" rather than his given name of "Mike." After Petitioner made clear the fact that he preferred to be called "Mike," Mr. Gilliam never called him "Michael" again. Mr. Gilliam gave clear instructions as to how he expected the tasks assigned to Petitioner be performed, yet Petitioner continued to do things his way. Mr. Gilliam often had a certain order or priority for performing required maintenance tasks which Petitioner regularly failed to follow. After Petitioner had eye surgery and was placed on limited duty by his physician, Dr. Oktavec, Mr. Gilliam confirmed the light detail in a letter dated March 19, 2013, so that Petitioner would not suffer further injury to his eye through over exertion. Ms. Dice was elected president of the board of the condo association in 2010. She lives in Gainesville, Florida. On three separate occasions (July 26, October 27, and November 3, 2011), she drove from Gainesville to St. Augustine to discuss Petitioner's complaints of alleged harassment by Mr. Gilliam. She believed that Mr. Gilliam's job was to establish priorities and assign tasks to be completed. Sometimes, due to inclement weather and other factors, priorities would have to shift. Ms. Dice observed that Petitioner complained that he did not need anyone to tell him how to perform his job. She noted that Beachers Lodge Condominiums is a large property that requires the cooperation of all employees along with the board of directors to maintain it to the standards expected by the owners and their guests. For a year, Ms. Dice and Mr. Gilliam tried to help Petitioner improve his performance, eliminate any deficiencies, and brighten his attitude, all to no avail. A few months after the final meeting Ms. Dice held with Petitioner, she agreed with Mr. Gilliam that Petitioner's behavior could no longer be tolerated and that he should be terminated for cause. The March 23, 2012, letter from Mr. Gilliam terminating Petitioner's employment was explicit in its reasons for termination. The letter offered 13 reasons for the termination and addressed all charges made by Petitioner against Mr. Gilliam. The reasons may be summarized as follows: On October 11, 2011, Mr. Gilliam gave Petitioner a list of daily and weekly duties which he acknowledged having received. Petitioner complained about receiving such a list. On October 25, 2011, Mr. Gilliam gave Petitioner a disciplinary letter for having falsified his timecard on October 19, when Mr. Gilliam observed Petitioner driving down A1A at a time he said he was still at work. Petitioner requested owners send letters to Mr. Gilliam that he was giving Petitioner too much direction and that Petitioner was doing a good job, another indicator of not taking direction. On October 14, 2011, Petitioner did not complete a washing task he was assigned, but went on to perform another task he deemed more important. Again, on March 13, 2012, Mr. Gilliam issued Petitioner a letter addressing corrective action for not following instructions. Petitioner accused Mr. Gilliam of jerking him by the coat in front of witnesses. No witnesses came forward to support this claim. Mr. Gilliam listed issues with Petitioner's work ethic in the March 13, 2012 letter. Petitioner had broken a floor during cleaning which was cited in the March 13 letter. Another refusal to take guidance was listed in the March 13 letter. Mr. Gilliam advised Petitioner that that the failure to correct his behavior concerning following direction would lead to "additional correction." Petitioner refused to sign this letter. Petitioner had been previously advised that he was to engage in light activity based upon his physician's prescription, and as set forth in a March 19 letter from Mr. Gilliam. On March 23, 2012, a St. Johns County deputy came to the office of the association and advised Mr. Gilliam that Petitioner had filed a complaint for assault against him, which the deputy determined not to be a criminal matter. Petitioner applied for unemployment compensation after receiving the March 23 letter terminating his employment. His claim was denied by the Department of Economic Opportunity, since he had been terminated for misconduct. He is currently in the process of losing his home and has only found work with his church for 7-8 hours a week. Petitioner admits that he stood up for himself when he disagreed with Mr. Gilliam by cursing him, calling him names, and writing complaint letters to condo owners and board members. Petitioner claims he was discriminated against by his 78-year-old boss, Mr. Gilliam, who allegedly said, "if you were 30 and not 50, you could do this job better." This alleged statement was not corroborated by any witnesses and was denied by Mr. Gilliam. Petitioner alleges that Mr. Gilliam discriminated against him by making fun of him after he had eye surgery. The letter dated March 19 shows that Respondent recognized the eye injury and surgery and warned Petitioner to engage in only light duty as ordered by his doctor. No witnesses testified to the alleged derogatory comments concerning Petitioner's vision. Respondent was never made aware of any claim of discrimination against Petitioner based upon his alleged disability. Their understanding was that Petitioner needed surgery on his eyes which was performed successfully by his physician and corrected the problem. Petitioner was not replaced by a younger employee when he was terminated. Respondent continued with just one full-time maintenance man and two part-timers. The roster of employees for Respondent shows that the remaining maintenance men are ages 56, 45, and 23. Petitioner is seeking $800,000 in lost wages, yet provided no evidence to support an award of that magnitude should he be successful in his discrimination claim.
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 Respondent did not commit the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 9th day of January, 2013, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 James W. Gilliam Beachers Lodge Condo Association, Inc. 6970 A1A South St. Augustine, Florida 32080 Mike Ostrom 900 South Rodriguez Street St. Augustine, Florida 32095 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
