The Issue Whether Petitioner, Cassondra Davis, suffered an adverse employment action as a result of unlawful discrimination.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made. Petitioner, Cassondra Davis, is a female African- American. At all times material, Petitioner was employed by Respondent, Department of Corrections, at Brevard Correctional Institution (Department). Petitioner's last day of actual work at the Department was April 10, 1996. Susan Blais, Personnel Manager at Brevard Correction Institution during the relevant time frame, testified that because of medical problems, Petitioner was unable to return to work after April 10, 1996, until her physician released her to return to work. Petitioner never presented a medical return-to-work release. Instead, she utilized her entitlement to Family Medical Leave Act leave. Once this leave was exhausted, rather than terminate Petitioner, the Department wrote to her physician, Dr. F. F. Matuk, on September 16, 1996, requesting a diagnosis of Davis' condition, as well as an opinion as to whether she could perform the duties of a correctional officer as outlined in a job description enclosed with the request for opinion. (Respondent's Exhibit 1) Dr. Matuk responded to the Department by letter dated September 20, 1996, stating that Petitioner had several work restrictions, including no weight manipulation over 20 to 30 pounds, avoidance of driving over 30 to 40 minutes, avoidance of neck extension, and allowances for extended periods of rest. He did not believe that Petitioner was able to perform the duties of a correctional officer but stated that she would most likely be able to perform a sedentary desk job. (Respondent's Exhibit 2) Susan Blais testified that no such desk jobs were available at that time. Petitioner submitted a letter of resignation to the Department in July 1997, wherein she attributed the resignation to medical reasons. (Respondent's Exhibit 3)
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 ENTERED this 26th day of March, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2001. COPIES FURNISHED: Azizi M. Coleman, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cassondra A. Davis 1009 Cannes Drive Poinciana, Florida 34759-3918 Cassondra A. Davis 1216 Pua Lane, No. 107 Honolulu, Hawaii 96817-3821 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue presented is whether the Department of Children and Family Services discriminated against Petitioner when it terminated her employment.
Findings Of Fact The Department agrees in its proposed recommended order that Petitioner is an African-American female. There is no evidence as to her age. Petitioner began employment with the Department on June 15, 2007, as a child protective investigator (hereinafter "CPI"). As a new employee, she was subject to the requirement that she successfully complete a probationary period of one year. CPIs receive extensive and structured training through the University of South Florida and subsequently by the Department. The training is expensive, so decisions to terminate a CPI are not made casually since the Department has invested time and revenue in training that CPI. CPIs investigate reports of possible child abuse or neglect under strict statutory deadlines to ensure the safety of at-risk children. New reports received by the Department are assigned to individual CPIs on a rotating basis, and there are schedules so employees will know who is "on rotation." From October 2007 through approximately mid-January, Petitioner was taken off rotation so as to not receive new cases and her existing caseload was distributed to other CPIs in her unit. Relieving her of her responsibilities was necessary because Petitioner was disqualified from her employment position due to a felony conviction, and it was necessary for her to obtain an exemption from that disqualification. Petitioner was successful in obtaining that exemption and was able to resume her job duties. By March 2008, it was necessary to take Petitioner off rotation again so that she could get current on her existing caseload rather than continuing to miss statutory deadlines. From that time until Petitioner was terminated from her employment as a CPI in June, it was necessary to take Petitioner off rotation for approximately one week every month so she could catch up. No other CPI has been taken off rotation due to performance deficiencies. When Petitioner was taken off her regular duties until she obtained an exemption and during each of the time periods she was taken off rotation, the other CPIs in her work unit had to absorb her caseload and all of the new cases. There was, understandably, some dissatisfaction among her co-workers who had to do her work in addition to their own. Further, Petitioner had the lowest caseload of all the CPIs in her unit. Christine Henegar, Petitioner's immediate supervisor and the person who hired her, assigned an experienced CPI to be Petitioner's mentor due to Petitioner's performance deficiencies both as to her investigations and as to her documentation. Although Petitioner was directed to meet with her mentor weekly, she did not. When her mentor attempted to assist her, Petitioner responded with resistance. Petitioner's mentor reported to Henegar frequently regarding Petitioner's poor performance, her resistance, her lack of comprehension, and the need for her co- workers to absorb Petitioner's caseload. Both he and Henegar shared an ongoing concern regarding the safety of the children whose cases were assigned to Petitioner. They were concerned that children were being left at risk due to Petitioner's inadequate or inaccurate assessment of risk factors. Once Petitioner had received her exemption and resumed handling a caseload, it became apparent by February or March that her performance was deficient in a number of ways. E-mails between Petitioner and Henegar between March 26, 2008, and June 10, 2008, reflect the same concerns regarding Petitioner's deficiencies throughout that time period. In May, Henegar held two formal conferences with Petitioner to address her continued deficiencies, but no improvement was noted. As Petitioner approached the end of her probationary period without adequate improvement, Henegar consulted with her supervisors regarding Petitioner's continuing deficiencies. As required for all employees, Henegar prepared a written performance evaluation of Petitioner on the required form. She gave Petitioner a rating of l.8, although she testified that she was generous in her scoring of Petitioner and scored Petitioner higher than Petitioner deserved. A score of "1" means the employee's performance is consistently below expectations, and a score of "2" means the employee's performance sometimes meets expectations and needs improvement. The Department terminates employees who do not successfully complete their probationary period rather than allowing them to become permanent employees. However, the Department did not terminate Petitioner; rather, it gave Petitioner a position with ACCESS, a different program under the Department's jurisdiction. When Petitioner did not successfully complete her one-year probationary period in that program, she was terminated. Petitioner affirmatively states that she was not discriminated against relative to her employment in or dismissal from the ACCESS program. Janet Stott is a white female who started her probationary period as a CPI at the same time as Petitioner. She is not a similarly-situated employee. Although she and Petitioner assumed the same job duties at the same time, her performance improved over the course of her probationary period while Petitioner's deteriorated. By the end of her probation, Stott was a very good investigator. Petitioner's termination as a CPI was not based upon any single incident or her handling of the two cases that she attempted to focus on during the final hearing. Rather, it was based solely upon her over-all performance, which was reviewed during three meetings among her supervisors over a period of two months. Petitioner's race and/or her age were not considered by those decision-makers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed in her burden of proof and dismissing the Petition for Relief filed in this cause. DONE AND ENTERED this 21st day of April, 2010, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 21st day of April, 2010. COPIES FURNISHED: Jane Almy-Loewinger, Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 430 Daytona Beach, Florida 32114 Beverly Joe O. Greenwade 106 Academy Avenue Sanford, Florida 32771 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent committed an unlawful employment practice by discriminating against Petitioner on the basis of his race and his gender.
Findings Of Fact Mr. Riley is a 25-year-old African-American male, who used to be employed as a correctional officer at LCI. His employment was terminated on December 9, 2011. Mr. Riley was hired on April 3, 2009. When he was hired, Mr. Riley was provided a number of Department rules and policies, such as the Department's personnel rules in Florida Administrative Code Chapter 33-208, the employee driver's license requirement, the Department's anti-harassment and equal employment opportunity statements, and a sexual harassment brochure. Mr. Riley signed a receipt acknowledging that he had been given this material and that he was responsible for reading and complying with the requirements specified in the material. Before Mr. Riley actually began working as a correctional officer at LCI, he completed three months of training at a site identified as "the Academy." Mr. Riley was trained in such matters as the Department's rules and defensive tactics to use with inmates when appropriate. After completing his training, on November 9, 2009, Petitioner was certified as a correctional officer. Following the initial three-month training program required to attain certification, Petitioner was also required to participate in annual on-site in-service training to brush up on the skills and knowledge learned in the initial training course. Mr. Riley's employment was subject to an initial one-year probationary term, which was standard and automatic for all employees. Mr. Riley's employment file reflects a sizeable number of counseling and disciplinary actions taken against him during his two years and eight months employed by Respondent, which will be summarized below. Records of these prior actions were introduced in evidence without objection; Mr. Riley did not dispute the accuracy of his employment records in this regard. Prior to the termination of his employment in December 2011, the next most recent disciplinary action against Petitioner was based on an incident occurring in January 2011. As a result of that incident, the Department initially decided to terminate Mr. Riley's employment. Petitioner, represented by counsel, exercised his right to appeal that decision to the Public Employees Relations Commission (PERC). Right before the PERC evidentiary hearing, Petitioner and the Department settled their dispute in a written settlement agreement signed by Petitioner and Petitioner's counsel. Pursuant to the settlement agreement, the Department agreed to rescind its dismissal letter and replace it with a suspension letter, by which Petitioner was suspended without pay for 44 workdays, from March 11, 2011, through May 12, 2011. Petitioner agreed to accept the suspension. In addition, the Department imposed a new one-year term of probationary employment status, starting May 13, 2011, and Petitioner accepted the one- year probationary term. Petitioner acknowledged that during the term of his probationary status, he would have no appellate rights before PERC for discipline, including for dismissal. The suspension letter summarized the incident that initially provoked a termination letter. According to the letter, Mr. Riley was observed by another correctional officer in several inappropriate encounters with an inmate: first, Mr. Riley was seen walking up to stand behind the inmate, and then, the inmate was lying on the floor; a short while later, Mr. Riley was observed dragging the same inmate by both of his feet down an aisle. After the inmate was returned to the dorm, the correctional officer informed Mr. Riley that dragging the inmate down the aisle was inappropriate and against policy and procedure. The officer asked Mr. Riley whether he was horse-playing or using force, and Mr. Riley replied that he was horse-playing. The correctional officer reiterated that this was inappropriate behavior with the inmate. At the final hearing, Mr. Riley admitted to the horse-playing incident. Petitioner accepted a substantial disciplinary consequence for his inappropriate conduct. Before the horse-playing incident, Petitioner's employment history was peppered with incidents for which Petitioner was counseled or disciplined for violating rules, policies, and procedures. Mr. Riley received three supervisory counseling memoranda: on March 31, 2010, for attendance issues; on September 7, 2010, for refusing an overtime shift when it was his turn; and on November 3, 2010, for miscounting inmates. Mr. Riley received a written reprimand on September 17, 2010, for negligence and failure to follow instructions. The reason for the reprimand was that in a forced cell extraction, Mr. Riley used a leg restraint chain in an unauthorized manner to physically transport an inmate from his cell. And on May 20, 2010, Mr. Riley was suspended for ten days, without pay, for failure to maintain proper security, negligence, and failure to follow instructions. The suspension was based on Mr. Riley's failure to conduct a 30-minute security check on the wing to which he was assigned and Mr. Riley's departure from his assigned wing to visit a different wing, without being relieved from his assigned post or authorized to enter the other wing. The horse-playing incident occurred on January 22, 2011. Following Mr. Riley's March 12, 2011, through May 12, 2011, suspension for that incident, Mr. Riley returned to work on May 13, 2011, as a probationary employee. Mr. Riley's probationary employment status would have lasted until May 12, 2012; however, he did not remain employed for the full year of his probationary status. His employment was terminated by letter dated December 9, 2011. The December 9, 2011, letter did not specify reasons for Mr. Riley's "probationary dismissal." Instead, the letter simply indicated that Mr. Riley was dismissed in accordance with Florida Administrative Code Rule 60L-33.002(5) (providing that a Department employee who is not permanent in a position, serves at the pleasure of the Department and is subject to any personnel action, including dismissal, at the Department's discretion). Although not required, LCI Warden Jennifer Folsom met with Petitioner and told him that she had decided to terminate his employment, for two reasons: first, because of his failure to report several traffic citations imposing fines in excess of $200, as he was required to do by Department rule; and second, because of the attendance problems he continued to have since returning from suspension. The evidence established that Petitioner received at least two traffic citations for which fines in excess of $200 per citation were imposed, which he did not report to the Department, as required. Petitioner's traffic citations were discovered during a driver's license records check, as part of an OIG investigation into an inmate complaint against Petitioner. The complaint was ultimately determined to be unsubstantiated, but the information regarding Petitioner's unreported traffic citations was passed on for action. The correctional officer chief, Major Victor Barber, instructed Petitioner to immediately submit the required report of his citations to his shift supervisor, then-Lieutenant (now Captain) Etta Wright. Petitioner did not follow those instructions. Petitioner was given several reminders; he finally submitted the report of his traffic citations six days after Major Barber told him to do so. Based not only on Petitioner's failure to submit the required report of his traffic citations, but also, on Petitioner's failure to follow the instructions of his superiors, an incident report was written up and brought to the attention of the warden. At the final hearing, Mr. Riley admitted that he had at least two citations with fines exceeding $200. He said that he had paid off the fines, and, although, he knew about the reporting requirement, at the time, he was under the misimpression that by paying off the fines, he did not have to report the citations. The competent, credible evidence of record also established that between May 13, 2011, and December 9, 2011, Mr. Riley had the same kind of attendance problems for which he had been previously counseled, only more so. In March 2010, Petitioner was counseled for having five unscheduled absences in one year. In less than seven months in 2011, Petitioner had five unscheduled absences due to sickness or family sickness. In addition, Mr. Riley was late twice, both classified as unscheduled absences. These unscheduled absences were in addition to one absence for sickness, which was not considered unscheduled; one personal holiday; plus 13 days of annual leave. Respondent's witnesses credibly testified that unscheduled absences are a particular problem because Petitioner was employed in a work environment where staffing shortages cannot be tolerated, and it is very difficult to cover for absences with little advance warning. Moreover, filling an unscheduled gap in required coverage of correctional officers assigned to guard inmates usually comes at great costs. These costs come in the form of strain on the officers who might have to work back-to-back shifts to cover for an unscheduled absence and, also, in the form of overtime expense that could be avoided with more advance notice. Mr. Riley was on notice that the magnitude of his unscheduled absences was considered excessive, when he was counseled in March 2010 for fewer unscheduled absences than he had between May and December 2011. A supervisory counseling memorandum dated March 31, 2010, was issued to Mr. Riley because he had used five days of unscheduled sick leave between April 3, 2009, and March 31, 2010. The memorandum noted that Mr. Riley had been previously counseled regarding attendance-related issues and explained the problems caused by Mr. Riley's absences: While it is understood that from time to time, an employee suffers personal illnesses and other associated problems including family illnesses, that make it impractical for him to report for duty, you should make every effort to report for your scheduled shift and to maintain an acceptable attendance record. Your presence on the job is vital to the effective operation of the institution. When you fail to report for duty as scheduled, your absence places a burden upon your supervisor, who must then find someone to cover your post, and your fellow employees, who must cover your shift. Management has a right to expect that its employees report to work as scheduled. Future behavior of a similar nature may result in formal disciplinary action. Mr. Riley failed to credibly explain his record of a significant number of unscheduled absences between May and December 2011, while he was on probation. Petitioner acknowledged that he left work at least once while on probation because he was not feeling well. He also acknowledged that "there were times" when he would call in sick, but said that he would follow protocol by calling in an hour or two before his shift. Petitioner's testimony regarding his attendance issues was vague. For example, he was equivocal regarding whether he ever failed to call in sick; he could only say that he did not recall doing so. In the face of documentary evidence of Mr. Riley's attendance record, showing specific dates on which Mr. Riley was credited with "unscheduled absence[s]-sick" and "unscheduled absence[s]-family sick," Mr. Riley's vague, generalized testimony attempting to discount his absentee record lacked credibility.2/ Mr. Riley knew from his prior counseling that correctional officers guarding inmates are held to strict standards for attendance because of their work environment, with critical staffing needs 24 hours per day, every day of every week. Mr. Riley should have known that his absences, totaling workdays between May and December 2011, five days of which were unscheduled absences, would be considered excessive. Petitioner attempted to prove that other employees who were not members of his race class and/or gender class were treated more favorably than he was. However, Petitioner offered only his understanding of the conduct of other employees and the consequences for such conduct. Petitioner offered no competent non-hearsay evidence to supplement or corroborate his understanding. Petitioner testified to his understanding that one white male officer was caught on camera horse-playing with an inmate, for which that officer received no reprimand. Petitioner also testified to his understanding of cell phone issues involving a second white male officer: a cell phone was found in the possession of an inmate, and the white male officer's phone number was in the inmate's cell phone; Petitioner heard that the only consequence was that the white officer was told not to have contact with inmates. Later, the officer's cell phone was found in his car, where it was not allowed. This time, Petitioner's understanding was that the officer was allowed to resign. Petitioner testified to his understanding that a white female employee "had attendance issues" and was allowed to resign. Petitioner did not offer his understanding about what kind of "attendance issues" resulted in her being asked to resign, what position she had been employed in, whether she had been previously counseled for attendance issues, or whether she had a prior record of discipline. Petitioner testified to his understanding that another white female employee also "had attendance issues." Petitioner's testimony about the second white female employee with attendance issues suffered from the same lack of information as did his testimony about the first white female employee with attendance issues. In addition, Petitioner failed to explain what consequences befell the second white female employee for the unspecified attendance issues. Petitioner admitted that as far as he knows, the four employees discussed in the four preceding paragraphs were not on probationary employment status. Petitioner knew of no employee who failed to report traffic citations and who was not terminated.3/
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 Phillip Riley's Petition for Relief. DONE AND ENTERED this 25th day of February, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 25th day of February, 2013.
The Issue Whether the Florida Commission on Human Relations (FCHR) correctly determined that it lacks subject matter jurisdiction over Petitioner’s claim of unlawful employment discrimination because the complaint was received more than 365 days after the date of the alleged violation?
Findings Of Fact AAR Corp. (AAR) is an aviation support company which provides maintenance, repair, and overhaul services to air carriers at various facilities through the United States. AAR uses its own employees in addition to utilizing employees from its temporary staffing company, AMS. When AAR’s business increases, it increases its workforce by adding workers from AMS. When AAR experiences a downturn in business, it similarly reduces its workforce, typically, by reducing workers from AMS through layoffs. Business is usually slow for AAR and AMS during the peak airline travel times, including summer and the winter holidays. Business of AAR and AMS is also affected by AAR's contracts with major airline carriers for scheduled and non-scheduled maintenance to aircraft. Magri was hired by AMS on October 27, 2011, as a Sheet Metal mechanic at the AAR Miami International Airport facility. She began work January 16, 2012, and at all times material hereto, worked as an Interior Mechanic for AMS. Magri's last day physically working for AMS was October 10, 2013. In 2013, Pedro Estrada (Estrada) became Magri's immediate supervisor. According to Magri, Estrada frequently subjected Magri to sexual jokes, graphic comments about her body, and requests for sexual favors.2/ At the end of September or beginning of October 2013, Estrada came up behind Magri and placed his penis against her buttocks in a sexual manner. Shortly after making a sexual harassment complaint about her supervisor in September 2013, Magri was given a disciplinary memo for poor performance on October 4, 2013. Although there is no prior record of written discipline against Magri, this memo notified her that this was a "final warning" and any future violations could result in termination. On October 10, 2013, Magri was sent home by her then immediate supervisor, Plamen Ilonov (Ilonov), Manager of Interior, allegedly due to a lack of work. Approximately eight other AMS workers were laid off for the same reason on that date. AMS employees were aware of a likely work slowdown at that time because US Airways cancelled its contract with AAR in the fall of 2013 due to US Airways impending merger with American Airlines. However, neither Magri, nor her co-workers, were told by Human Resources or their supervisors, the anticipated duration of the layoff. In fact, it was common practice for AMS employees to be laid off and then returned to work within a week to a month due to the workflow fluctuations. This happened to Magri for a month in 2012. Laid off employees, including Magri, were directed to regularly call or text their supervisor to see when work was available. AMS had no system of notifying employees whether a layoff would be long or short term. When a layoff was anticipated to be long term, the AMS worker was removed from the Human Resources payroll system and internal paperwork was generated indicating termination, however, the employee was not notified of their status other than "lay off." At the time of an anticipated long-term layoff, the AMS Human Resources Department also deactivated the worker's security badge that would provide access to the facility. However, the employee was not asked to return the badge, nor was the employee advised that the badge was inactive. When she was sent home on October 10, Magri was instructed by Ilonov to check with him regarding when she might be returned to the work schedule. At this time she was not aware a decision was made that she would likely be laid off more than a month. For the next two weeks, Magri called and sent text messages to Ilonov looking for clarification as to when she might be returned to work. Magri sent a text message to Ilonov on October 11 asking "Why me." Ilonov responded that 10 people were affected, not just Magri. Magri asked, "Plamen do you think its [sic] layoff will take long time?" On October 12, after receiving no response, Magri texted Ilonov, "Good morning, Plamen, do you think I have to take out my tool box?" Ilonov replied, "Good morning, it is possible. I don't see much next 2-3 months." In a telephone conversation this same week, Ilonov indicated to Magri that work might be available October 21 if United Airlines planes arrived for service. Based on this, Magri had a legitimate expectation that she would be returned to the schedule. On October 20, Magri sent a text to Ilonov stating, "Do you don't [sic] know how long? I'm very scared without work." Ilonov did not reply. During this week, several employees were called to return to work. Ilonov did not return Magri to work because he only called back those he considered his "best" workers. On October 24, Magri sent several text messages to Ilonov seeking an explanation of when she might return to work or why she wasn't called back. Ilonov responded that he was calling whoever he thought he needed, and "We are really slowing down, and soon more changes." On October 25, Magri went to the facility to speak directly with Ilonov. During this meeting he made it clear to Magri for the first time that it was not his decision whether to put her back on the schedule, and that he did not think the "higher ups" wanted her to return. He told her he could not tell her anything further and that she would need to contact the Maintenance Manager, Luiz Gonzalez (Gonzalez). This was the first time Magri realized that this would not be a short-term layoff. At some point shortly thereafter, Magri spoke to Gonzalez by telephone, who told her she needed to look for alternative employment. Respondent maintains two conflicting factual assertions. Respondent contends the decision to terminate Magri's employment was made on October 10, 2013, as evidenced by its internal removal of Magri from the payroll system and the deactivation of her employee security badge (neither of which Magri was aware). Alternatively, Respondent claims there was no decision to terminate Magri and that she remains eligible for rehire. Regardless of whether Magri's separation from employment was a termination or long-term layoff, the earliest Magri knew or should have known that she suffered adverse action was October 24, 2013, when she became aware that although some of her co-workers were being immediately called back to work, she was not. Accordingly, Magri's charge, filed on October 16, 2014, which is 357 days from the alleged violation, was timely with regard to her claim of sex discrimination and retaliation arising from her termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations decline jurisdiction of Petitioner's charge of sexual harassment, which allegedly occurred prior to October 10, 2013, and take jurisdiction of Petitioner's charge of sex discrimination and retaliation arising from her separation from employment on October 24, 2013. DONE AND ENTERED this 29th day of February, 2016, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 February, 2016.
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based upon her race.
Findings Of Fact Respondent is an "employer" within the meaning of section 760.02(7), Florida Statutes. Petitioner, an African-American female, submitted an application for employment directly with the store manager, Jerry Wienhoff. Mr. Wienhoff personally interviewed Petitioner and hired her within 48 hours of her application for the afternoon clerk position. She began working for Respondent on July 21, 2009. Petitioner received a notice of a disciplinary issue on March 9, 2010. Respondent cited Petitioner for failure to complete her work in a timely manner. Petitioner was warned that if her work did not improve, her employment would be terminated. Not long after issuance of this disciplinary notice, Mr. Wienhoff, the store manager and Pensacola Regional Manager for 17 years, began receiving complaints about Petitioner's behavior. One complaint came from a long-time customer, while another came from a co-employee. The complaints were that Petitioner treated them rudely. During her employment, Petitioner complained that her work duties were heavier than those of the morning clerk. Mr. Wienhoff relieved Petitioner of certain duties related to tagging each garment dropped off during the afternoon shift. None of the other stores out of the four area stores had similar requests to remove this duty. Petitioner testified that the morning clerk, a white female, Amanda Sidner, was given a lighter workload. Petitioner further testified that Ms. Sidner was given additional hours during Petitioner's vacation, yet Petitioner was not given additional hours during Ms. Sidner's vacation. Mr. Wienhoff testified and Petitioner admitted that she took vacation days during the same week that Ms. Sidner took vacation days. Further, Petitioner was given additional hours during the days Ms. Sidner was on vacation, and the balance of those hours that Petitioner was not interested in working went to Petitioner's daughter, Anastarsia Martinez, also an African- American female. On December 14, 2010, Petitioner was issued her second and final corrective action report by Mr. Wienhoff. At that time, Mr. Wienhoff terminated Petitioner due to the ongoing complaints about her behavior in the workplace. Respondent also established the racial composition of every employee under Mr. Wienhoff's supervision. The company profile in Pensacola shows a racially diverse mix of employees. Petitioner candidly testified that she never heard Mr. Wienhoff make racially insensitive comments to her or any other employee. Her claim of discrimination is based upon favoritism. She believes that other employees were treated better than she, but did not tie this perceived favorable treatment to their race.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that no act of discrimination was committed by Respondent and dismissing the Petition for Relief. DONE AND ENTERED this 27th day of January, 2012, 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 27th day of January, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Thomas A. Groendyke, Esquire Douberley & Cicero 1000 Sawgrass Corporate Parkway, Suite 590 Sunrise, Florida 33323 Mary Cottrell 776 Backwoods Road Century, Florida 32535 Christopher J. Rush, Esquire Christopher J. Rush & Associates, P.A. 1880 North Congress Avenue, Suite 206 Boynton Beach, Florida 33426 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent, School Board of Alachua County, Florida, discriminated against Linda Smith, Petitioner, on the basis of her race or gender, or retaliated against her for engaging in protected activities in violation of the Florida Civil Rights Act of 1992, sections 760.01-760.11, Florida Statutes (2019).1
Findings Of Fact Petitioner worked as a bus attendant for Respondent for several years. During the course of that employment, Petitioner has had a lengthy history of conflict with another black female bus driver, Cynthia Dunmore. The problems first began when the two worked on the same bus route together in 2009, and the animosity continued both at and away from work. While at work on June 20, 2018, Petitioner called the police to ask them to get Ms. Dunmore to leave her alone. Officer Owen Osborne arrived at the transportation facility and spoke with Petitioner and then to Ms. Dunmore. Officer Osborne instructed them both to stay away from each other. Not long after Officer Osborne left the transportation facility, Petitioner spoke with Arlene Ewell, the wife of a school board employee. Following this conversation, Ms. Ewell reported to Ms. Dunmore that Petitioner had just told her that she planned to get a gun and bring it to work after the police did nothing but talk to Ms. Dunmore. Ms. Dunmore then reported this information to David Deas, the operations manager of the transportation department. School Board Policy 4217 requires all staff members to report “knowledge of firearms, weapons and/or threats of violence” to the site administrator. Mr. Deas relayed the conversation he had had with Ms. Dunmore to the Assistant Superintendent, who in turn sent Bart Brooks, a human resources supervisor, and Casey Hamilton, the school district’s security chief, out to the transportation department to assess the situation. Mr. Brooks followed standard operating procedure and placed Petitioner on paid administrative leave so that Respondent could conduct an investigation into the allegation that Petitioner threatened to bring a gun to work to harm Ms. Dunmore. Mr. Brooks and Respondent’s new investigator, Alisha Williams, promptly began an investigation of the alleged threat. In the course of the investigation, they spoke with Petitioner, who denied making a threat to bring a gun or otherwise harm Ms. Dunmore. Consistent with Respondent’s standard investigation procedures, Petitioner remained on paid administrative leave during the pendency of the investigation. On July 31, 2018, before Mr. Brooks and Ms. Williams had completed their investigation, Petitioner elected to retire. As a result of Petitioner’s retirement, the District terminated its investigation of the alleged threat. Accordingly, the District did not make a determination as to whether Petitioner did or did not threaten to bring a gun to work to harm Ms. Dunmore. No one told Petitioner that she would be fired if she did not retire. According to Petitioner, “I resigned to keep from losing my pension. If my pension was not at stake I would have let them terminate me falsely.” Petitioner offered as a comparator Paul Phillips, a white male who was hired as a bus driver for Respondent on January 20, 2015. He was terminated from that position on January 2, 2017, for driver safety violations which would not allow him to drive a bus for three years from the date of termination. Mr. Phillips was rehired as a bus attendant on October 15, 2018, and resigned on February 7, 2019, for personal reasons. Mr. Phillip’s situation is not comparable to Petitioner’s situation. Petitioner was never terminated for safety violations, but rather voluntarily retired from service on July 31, 2018, and there was no disciplinary action taken against her. Petitioner failed to persuasively prove any incidents of race or gender discrimination, or of retaliation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, School Board of Alachua County, Florida, did not commit any unlawful employment practices, and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 11th day of March, 2020, 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 11th day of March, 2020. COPIES FURNISHED: Linda Denise Smith 1120 Northeast 24th Terrace Gainesville, Florida 32641 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Kevin Purvis, Assistant Superintendent Alachua County School Board 620 East University Avenue Gainesville, Florida 32601 Brian T. Moore, Esquire School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Fredrick Bass, was subjected to employment discrimination by the Respondent, The University of West Florida, on account of his race or disability or as retaliation because of his past filing of an EEOC complaint against a former employer.
Findings Of Fact The Petitioner is a black male with a disability involving a post- traumatic, arthritic condition of the left knee. In his past work history, the Petitioner had been a firefighter. When he was thus employed, on one occasion, he filed a discrimination complaint with the Equal Employment Opportunity Commission (EEOC) against the fire department where he was employed. The Respondent is the University of West Florida, a state agency. It became embroiled in the disputes at issue when it first advertised for the filling of a vacancy for the position of Senior Custodial Supervisor and, after the advertising and interviewing process described below, hired another black male with a disability, instead of the Petitioner. The Respondent advertised to fill the vacancy for the position of Senior Custodial Supervisor because of the death of the person who had previously occupied that position. There was an insufficient response to the first advertisement of the vacancy, and Dan Simpler, the Director of Building Services for the Respondent, who would supervise the occupant of that position, requested that the position be re-advertised. The Petitioner had not responded to the first advertisement, in any event. The second advertisement was issued in August of 1993. This time, the Petitioner was one of the applicants who responded. Several applicants withdrew after learning that the salary for the position would be at the lower-end of the advertised salary range and was insufficient for their needs. This left the Respondent with only three remaining applicants, who appeared to meet the minimum qualifications for the position. One of the three applicants was the Petitioner. The Respondent, in the conduct of its application and selection process, inquired of former employers, concerning whether they would give an applicant a favorable recommendation. The Respondent so inquired of the Petitioner's former employers. The Respondent was unable to obtain a favorable recommendation from any of the Petitioner's former employers. In response to Mr. Simpler's inquiry, the Chief of the Fire Department at the Naval Air Station in Pensacola, Florida, the Petitioner's most recent former employer, informed Mr. Simpler that he would not rehire the Petitioner if given the opportunity to do so. The Petitioner had informed Mr. Simpler that he believed that the Chief of the Fire Department would not give him a favorable recommendation because the Petitioner had once filed a complaint with the EEOC against that employer. In any event, Mr. Simpler deemed that having a pool of only three applicants gave the Respondent insufficient choices for the position. Therefore, he requested that the position be advertised for a third time in order to obtain a larger pool of applicants. In response to the third advertisement, a number of other applications were received. One of them was that of James O. Rankins, who is a male, African-American, who also has a disability. See Respondent's Exhibit 6 in evidence. Mr. Rankins' application reflected considerable supervisory experience, both during his service with the United States Army and his position as a Site Manager for Service Master, Inc. at the Monsanto plant near Pensacola, Florida. He retired from the United States Army as a Sergeant Major, the highest non- commissioned rank. In the opinion of Mr. Simpler and others involved in the hiring at the University, this demonstrated a high level of leadership capability. Since his military retirement, in his capacity as the Site Manager for Service Master, Inc., the maintenance contractor, at the Monsanto chemical plant near Pensacola, Florida, he had supervised 45 custodial personnel. He was responsible for cleaning and maintenance of 150 buildings and shops, as well as over 250 offices and restrooms. The Petitioner was an applicant in the third pool of applications in response to the third advertisement. Mr. Simpler learned of a former employer, Lanyap Corporation, and questioned the former owner concerning the Petitioner's previous employment at that firm. Larry Wiggins, the former owner of Lanyap Corporation, told Mr. Simpler that he would not rehire the Petitioner if given the opportunity to do so. Mr. Wiggins advised Mr. Simpler that the Petitioner had not been employed as a Supervisor by Lanyap Corporation, although the Petitioner had indicated that to be the case on his application for employment filed with the Respondent. The five persons on the Respondent's selection committee, charged with hiring to fill the subject position, considered the qualifications and experience of all of the applicants. After evaluating all of the applicants, with the assistance of personal interviews, the committee recommended that James Rankins be employed as the Senior Custodial Supervisor. Members of the selection committee recommended Mr. Rankins for the position based upon his superior qualifications and experience, including his demonstrated leadership and supervisory abilities. The Petitioner's race and disability were not factors in the selection process. Indeed, Mr. Rankins is an African-American, also with a disability, as shown by the Respondent's Exhibit 6 in evidence. Ms. Bertha Mae Jones is the staff member at the University who interviewed the Petitioner, as well as Mr. Rankins. Ms. Jones is black and has been employed at the University for 27 years. She does not recall hearing the Petitioner mention his handicap or disability but stated that it would not have mattered if he had one, as long as he could do the job in question. She also interviewed Mr. Rankins and felt that Mr. Rankins had much superior qualifications and experience. He demonstrated that he had had a long-term ability for good supervision. Because of his superior qualifications, Ms. Jones recommended that Mr. Rankins be hired instead of the Petitioner. None of the members of the selection committee, other than the Director of Building Services, knew that the Petitioner had filed an EEOC complaint against one of his former employers. The filing of that complaint was shown to have had no effect on the hiring decision made by the Respondent's selection committee. The selection committee's recommendation that Mr. Rankins be employed to fill the position of Senior Custodial Supervisor was forwarded to the head of the department and to the Vice-President for Administrative Affairs. The recommendation was accepted. Mr. Rankins, a black male with a disability, was hired by the Respondent to fill the subject position.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order concluding that the Respondent, the University of West Florida, did not commit an unlawful employment practice, by employing James O. Rankins to fill the position of Senior Custodial Supervisor, instead of the Petitioner. DONE AND ENTERED this 3rd day of January, 1996, in Tallahassee, Florida. MICHAEL RUFF, 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 3rd day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2450 Petitioner's Proposed Findings of Fact The following numbers assigned to proposed findings of fact by the Petitioner do not correspond to any numbered paragraphs in the Petitioner's letter/proposed recommended order because there were no such numbered paragraphs. The Petitioner did prove that he belonged to a racial minority, and that proposed finding is accepted. The Petitioner's assertion that he was qualified for the position in question has not been proven, and that is rejected. The Petitioner's proposed finding that, despite his qualifications, he was rejected for the position, is rejected because he was found to be less qualified than the applicant chosen for the position. The Petitioner's proposed finding to the effect that, after his rejection, the position remained open and the employer continued to seek applicants with his qualifications, is rejected as not in accord with the preponderance of the evidence. The relevant advertisement and interviewing process was that after the third advertisement, when the Petitioner remained an applicant and Mr. Rankins' application was received, the position did not remain open, Mr. Rankins was hired at the conclusion of that third advertisement and interview selection process. The remainder of the Petitioner's "proposed findings", in essence, constitute argument concerning the weight of the testimony and evidence but to the extent that he attempts to assert that it has been proven factually that Mr. Simpler had not talked to the fire chief, the Petitioner's former employer, because the telephone numbers at the relevant fire station were not the same as the fire chief's actual telephone number, does not prove that Mr. Simpler did not talk to the fire chief. In fact, it is found that he did. This proposed finding, to the extent that it is one, is rejected. The apparent proposed finding that the five board members on the selection committee found the Petitioner qualified, subject to the fact that it had received bad recommendations from former employers, is rejected as not in accord with the preponderant weight of the evidence. In fact, the Petitioner was not the best qualified person for the position, Mr. Rankins was. These are the only proposed findings of fact that can be gleaned from the letter filed by the Petitioner. The remainder constitutes an attempt at legal and factual argument which do not constitute proposed findings of fact amenable to specific rulings. Respondent's Proposed Findings of Fact 1-13. Accepted. COPIES FURNISHED: Fredrick Bass 75 South Madison Drive Pensacola, Florida 32505 M. J. Menge, Esquire SHELL, FLEMING, DAVIS & MENGE Post Office Box 1831 Pensacola, Florida 32598 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issues are whether the Respondents committed unlawful employment practices against Petitioner, and if so, to what relief is she entitled.
Findings Of Fact In the spring of 1994, Respondent CSD began operating a residential detention program for juvenile offenders pursuant to a contract with the Department of Juvenile Justice. The purpose of the program, commonly known as Hamilton House, was to provide redirection to the lives of its youthful residents/clients. Hamilton House had 48 beds divided between two dormitories. Respondent CSD assigned each resident to the appropriate dormitory, level six or level eight, depending on the type of security and rehabilitative services required. The program included an educational program as well as facilities for vocational and recreational activities. Respondent CSD employed Petitioner, a 51 year-old white female, as a resident advisor at Hamilton House from March 24, 1994 through June 30, 1996. Petitioner initially worked the 11:00 p.m. to 7:00 a.m. shift in the level six dormitory. At times she served as the acting shift supervisor though she was not paid a supervisor's wages. When Petitioner began working for Respondent CSD, she lived with her elderly mother, Lotus Musgrove, whose colon cancer was in remission. At that time, Mrs. Musgrove was able to live independently and did not need a caretaker. On April 24, 1994, some of the clients managed to gain access to a bottle containing an alcoholic beverage. Petitioner and other employees received a verbal warning for failing to adequately monitor the behavior and movement of the clients. A training letter was placed in each employee's personnel file. In May of 1995, Respondent CSD hired Bobby Williams, Sr., as a resident advisor in the level eight dormitory. Mr. Williams is a black male. He eventually assumed the position of shift supervisor for the entire facility. There is no evidence that Petitioner sought this full-time position or a similar supervisory position at any time during her employment with Respondent CSD. In October of 1995, some of the clients accused Petitioner and another staff member of inappropriate conduct including, but not limited to, furnishing them with prohibited magazines and movies. As a result of the allegations, Respondent CSD suspended Petitioner and her co-worker without pay on October 18, 1995. By letter dated October 20, 1995, Respondent CSD advised Petitioner in writing that there was insufficient evidence of misconduct to warrant termination of her employment. However, the letter stated that Petitioner had violated company policy and procedure by allowing a youth to leave his room for extended periods after curfew. Respondent CSD paid Petitioner and her co- worker for the time they were suspended during the internal investigation. Respondent CSD subsequently reassigned Petitioner and her co-worker to work in a different dormitory and on a different shift. The change in time and location of their work shift was necessary to ensure there was no contact between them and the clients who had accused them of improper conduct. Petitioner was assigned to work the 3:00 p.m. - 11:00 p.m. shift in the level eight dormitory. In a written statement dated October 23, 1995, Petitioner objected to the change in her shift. She preferred to continue working the 11:00 p.m. - 7:00 a.m. shift. She asserted that, during the day, she took care of her 78 year-old mother who had cancer. Respondent CSD did not immediately honor Petitioner's request. On or about November 24, 1995, Petitioner voluntarily purchased some supplies in the amount of $20.98 from a retail store. The supplies included the following: hand sprayers, cotton swabs, hydrogen peroxide, rubbing alcohol, highlighters, marker, Sharpies, and other miscellaneous items. Petitioner requested reimbursement from Respondent CSD because she intended to use the supplies at work. Respondent CSD declined to reimburse Petitioner for the supplies. There is no evidence that Respondent CSD ever authorized the purchase of the supplies. On December 11, 1995, a resident in the level eight dormitory attempted to discard a container of contraband tobacco. Petitioner detected his effort and responded appropriately. She received a letter of commendation for exemplary action which was placed in her personnel file. On January 23, 1996, the Office of the Inspector General of the Department of Juvenile Justice made a formal and final determination that "[i]t is inconclusive that staff members Julie Toughton and Alice Musgrove engaged in improper conduct with clients." On or about February 1, 1996, Petitioner took a box of pens and pencils from a client's desk. The client became upset and exhibited inappropriate behavior toward Petitioner. As a result of the client's tantrum, Petitioner took token-economy points from the client. Petitioner filed a written complaint dated February 4, 1996, with Respondent CSD after learning that one of her supervisors, Mike Myers, changed the client's point sheet. Petitioner's February 4, 1996, statement also asserted that Supervisor Myers was mishandling clients' mail. She complained that he was logging clients' mail and making the clients read their personnel mail to him. According to Petitioner, handling client mail was the responsibility of "line staff." On one occasion in February 1996, Petitioner was 30 minutes late reporting to her assigned duty station in the dormitory. She spent that time in the administration building because she refused to work with one of her co-workers. Supervisor Myers was responsible for changing Petitioner's time sheet to reflect a 30-minute deduction in regular time. On another occasion in February 1996, Petitioner and other employees worked two hours of overtime due to a crisis situation with one of the clients. Petitioner elected to "bank" the overtime rather than receive time-and-one-half of overtime pay. The other employees chose to receive overtime pay. Petitioner was off from work on February 22-23, 1996. When Petitioner arrived at work on February 24, 1996, her time sheet was not with the time sheets of other employees. Petitioner's time sheet was locked in a supervisor's office until February 26, 1996, because the supervisor was not at work. There is no indication in the record whether Petitioner's time sheet was locked up inadvertently or due to a dispute over Petitioner's wages. On March 1, 1996, Petitioner filed a written grievance with Respondent CSD regarding her pay. She claimed that Supervisor Myers was harassing her and discriminating against her by changing her time sheet without her knowledge. Specifically, Petitioner complained that Mr. Myers cheated her out of 30 minutes of regular time on one occasion and two hours of overtime on another occasion. She complained that her time sheet was locked in a supervisor's office for four days. On March 4, 1996, the Program Director, Dale Edwards, agreed that Petitioner should not be penalized for one-half hour of regular pay because she was in the administration building during the disputed time. Additionally, Mr. Edwards directed Supervisor Myers not to change an employee's time sheet without prior approval. He also requested that Petitioner furnish documentation that the company owed her for the two hours of overtime. Mr. Edwards was under the mistaken impression that the dispute over Petitioner's time sheet had been resolved. In March of 1996, Petitioner was working the midnight shift in dormitory eight consistent with her written request dated October 23, 1995. On March 18, 1996 and March 27, 1996, Petitioner made written requests for a change to the 7:00 a.m. - 3:00 p.m. shift. Petitioner specifically wanted to replace a Ms. Aikens on the morning shift. Respondent CSD did not honor Petitioner's request. However, there is no evidence showing that Ms. Aiken's position was ever filled, and if so, whether Respondent CSD selected a person of a different race or a younger to file the position. Petitioner was absent from work between April 8, 1996, and April 16, 1996, on April 22, 1996, and on April 29, 1996, due to illness and/or medical appointments. While she was absent, her inner-office mail box became so full that the mail had to be removed. The administrative manager gave Petitioner's mail to her supervisor. On April 23, 1996, Supervisor Myers completed Petitioner's annual performance appraisal for the period March 14, 1995 through March 14, 1996. Petitioner disagreed with the determination that she had difficulty communicating with others. Petitioner's mental health counselor, Christine Clark, sent Mr. Edwards an unsolicited letter dated April 23, 1996. According to the letter, Ms. Clark was treating Petitioner for family/employment related stress reduction. The letter states as follows in pertinent part: Due to the demands of her home environment, caretaking of her elderly mother who is dying from colon cancer, I am recommending that Ms. Musgrove be reassigned new working hours, namely a day schedule of approximately 8:00 AM until 5:00 PM in order to effectively and efficiently facilitate the evening and night care of her mother. In addition, Ms. Musgrove appears to have unresolved issues regarding her personnel file and salary still due to her for 30 minutes or .5 hour pay as well as two hours uncompensated work from several weeks ago. I personally read your approval for this compensation but apparently this has still not yet been indicated on her pay check. There also remain the allegations of her misconduct charges that appears not to be fully resolved. As an employee she does have the legal right to have these fully addressed and challenged. From my understanding that although the misconduct charges have been dropped, there are still areas that compromise Ms. Musgrove's reputation as a resident advisor. Mr. Edwards did not disclose the contents of Ms. Clark's letter to any employee of Respondent CSD other than his superiors, who advised him to get a release from Petitioner before responding to the letter. After receiving Ms. Clark's letter, Mr. Edwards had a telephone conversation with Petitioner's mother because Petitioner was not at work or at home. During the conversation, Mr. Edwards inquired about the mother's health. Mr. Edwards learned that Mrs. Musgrove's cancer had been in remission since 1993 and that she no longer required assistance with daily living activities. Mr. Edwards did not disclose any information regarding Petitioner's employment status, medical condition, or personal business to Mrs. Musgrove. Petitioner's sister placed an unsolicited telephone call to Mr. Edwards several days after he talked to Mrs. Musgrove. The purpose of the call was to thank Mr. Edwards for his concern over Mrs. Musgrove's health. During the telephone call, Mr. Edwards and Petitioner's sister did not exchange any information relating to Petitioner's employment, medical condition, or personal business. On April 29, 1996, all staff at Hamilton House received a memorandum advising them as follows, in pertinent part: As a result of the recent competitive bid conducted by District 3, Department of Juvenile Justice, Gator Human Services has been awarded the contract to operate the Hamilton County Youth Treatment Complex starting July 1, 1996. The memorandum also included information regarding the transfer of operations to the new service provider. Respondent CSD advised employees that, if requested, it would supply Gator Human Services the name, position title, hire date, and current salary of each employee of record. Respondent CSD stated that no other information would be given to the new organization without the consent of the employee. On May 1, 1996, Mr. Edwards wrote two memoranda regarding Petitioner's pay. First, Mr. Edwards directed the administrative manager to pay Petitioner for .5 hours of regular wages out of the company's petty cash fund and to get a receipt for the payment. Second, he directed the resident life manager to allow Petitioner to leave work two hours early (with pay) at a time of her choosing within the next work week. Petitioner could not "bank" the time indefinitely because Respondent CSD's contract was scheduled to expire on June 30, 1996. Mr. Edwards phoned Petitioner at home on May 2, 1996, to request a written release so that he could respond to Ms. Clark's letter. Petitioner wrote that release on May 3, 1996. The release gave Mr. Edwards permission to disclose confidential information to Ms. Clark. On May 3, 1996, Petitioner signed a written acknowledgment that receipt of $4.06 in payment for .5 regular hours would end the issue of the .5 regular hours owed to her. On May 10, 1996, Respondent Gator informed the staff at Hamilton House of the procedure for handling applications for employment with Respondent Gator's new program, Tiger Success Center. Applications were due on or before May 28, 1996. Interviews were to be scheduled between May 28, 1996, and June 7, 1996. Applicants would be advised of the final selections and employment offers by June 14, 1996. Respondent Gator requested that each applicant take a copy of their most recent performance appraisal to their employment interview. By letter dated May 13, 1996, Mr. Edwards responded to Ms. Clark's inquiry. First, he explained that questions regarding Petitioner's compensation had been resolved. Second, he stated that letters from the Department of Juvenile Justice and from the Office of the Inspector General had been added to Petitioner's personnel file, clearing her of all misconduct allegations. Third, he explained that the day shift would be the least desirable shift in terms of stress reduction because the activity level of the residents is highest during the day. Mr. Edwards also revealed that Petitioner's mother was treated successfully for cancer in 1993 and that her current health failed to support the need for a change in Petitioner's shift. Finally, Mr. Edwards noted that he had to consider the needs of the residents and other staff. A copy of Ms. Clark's inquiry and Mr. Edwards' response were placed in Petitioner's personnel file. Neither of the documents were disclosed to unauthorized persons. On May 22, 1996, the employees at Hamilton House received another memorandum advising them that after June 30, 1996, Respondent CSD would no longer operate the facility. The employees were encouraged to apply for employment with the new organization. Petitioner was scheduled for an employment interview on May 30, 1996. However, the interview was rescheduled because she was unable to keep the appointment. Petitioner's application for employment with Respondent Gator is dated May 31, 1996. She also furnished Respondent Gator with copies of three performance appraisals. Petitioner's signature on the application authorized Respondent Gator to make inquiries of references and former employers regarding her general character and past performance. There is no evidence that Respondent Gator ever made any such inquiries about Petitioner. A panel of three people representing Respondent Gator interviewed Petitioner. The panel asked her the same questions that they asked other applicants. Petitioner was very negative and critical of the existing program and Respondent CSD during her interview. After the interview, each member of the interview panel tallied their score sheets independently. All three agreed that Petitioner should not be given further consideration for employment with Respondent Gator because of her negative attitude and low interview scores. On June 13, 1996, Petitioner received a memorandum from Respondent Gator stating that the company was unable to offer her a position of employment. That same day, Respondent Gator offered employment to every other Hamilton House staff applicant except one black male, Mr. Humphrey. Respondent Gator hired a black female, Latasha Bristol, who worked in the level eight dormitory with Petitioner. Ms. Bristol is younger than Petitioner. However, she was not hired to replace Petitioner. Respondent Gator hired Ms. Bristol to work in the level six dormitory. Respondent Gator offered an employment position to a white female, Lucy Oxendine. Ms. Oxendine was over 60 years old at the time. She declined to accept a job with Respondent Gator for personal reasons. Mr. Edwards was hired by Respondent Gator to continue as program director after July 1, 1996. However, neither he nor any other employee of Respondent CSD shared any information about Petitioner with Respondent Gator or had any input into Respondent Gator's decision not to hire Petitioner. Respondent Gator based its decision not to employ Petitioner solely on the results of her interview which was very negative. On June 14, 1996, the staff at Hamilton House received a memorandum stating that anyone interested in accepting employment with Respondent Gator must sign up on June 19, 1996. On June 14, 1996, Petitioner's doctor faxed a medical excuse to Respondent CSD stating that Petitioner could not return to work for an undetermined period of time. The document indicates that Petitioner's diagnosis involved anxiety, depression, and work-related stress. The doctor commented that Petitioner was the primary caretaker of her mother who was terminally ill with cancer. The doctor's June 14, 1996, fax was received by Respondent CSD in the administrative manager's office. It was on her desk for a brief period of time before it was delivered to Mr. Edwards. There is no credible evidence that any employee of Respondent CSD disclosed the contents of the fax to unauthorized persons. Petitioner's doctor did not give her permission to return to work until after July 1, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that FCHR enter a Final Order dismissing Petitioner's Charges of Discrimination against both Respondent CSD and Respondent Gator. DONE AND ENTERED this 23rd day of July, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 23rd day of July, 1998. COPIES FURNISHED: H. B. Stivers, Esquire Levine and Stivers 245 East Virginia Street Tallahassee, Florida 32301 Faye Musgrove Post Office Box 657 Live Oak, Florida 32064 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of age for the reasons stated in the Charge of Discrimination and Petition for Relief in violation of Section 760.10(1), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated).
Findings Of Fact In the summer of 1997, Respondent advertised several employment positions. The advertised positions included a position for Corporate Training Representative and a position for Coordinator of Continuing Education. The advertisement informed potential applicants of the minimum qualifications; the knowledge, abilities, and skills associated with each position; and the application deadline for each position. Petitioner was one of approximately 65 candidates who applied for the position of Corporate Training Representative. Petitioner was also one of 85 candidates who applied for the position of Coordinator of Continuing Education. Petitioner was over age 40 at the time he applied for both positions. Petitioner's application, like the application of each candidate, included an application supplement. The application supplement identified the applicant's gender, ethnic origin, birth date, and included a statement of how the candidate learned of the open position. Respondent uses application supplements to collect data needed to respond to inquiries from the Commission, the U.S. Equal Employment Opportunity Commission, the Veterans Administration, and the U.S. Department of Labor. Respondent directs completed applications to Respondent's Human Resources office. The Human Resources office separates the application supplement attached to each application, files the application supplement in a separate location, and forwards each application to the selection committee responsible for filling the position to which the application pertains. After, the position is filled, the Human Resources office re-attaches the application to the application supplement and retains the documents in data files maintained by the Human Resources office. The selection committee, responsible for reviewing the applications submitted for the two positions sought by Petitioner, was comprised of four members. The selection committee reviewed each application, selected candidates for interview, and recommended those candidates the committee determined to be best suited for the position. In selecting candidates for interview, the selection committee reviewed only the application of each candidate. The selection committee did not have access to any of the application supplements. The application supplements originally attached to the applications had been previously separated by the Human Resources office and retained in separate files in the Human Resources office. No one on the selection committee considered the age of an applicant, including Petitioner, when selecting a candidate for interview. The selection committee did not select Petitioner for an interview. The selection committee selected for an interview only eight of the 65 applicants for the position of Corporate Training Representative and only eight of the 85 applicants for the position of Coordinator of Continuing Education. Six of the eight applicants selected for interview for the position of Corporate Training Representative were over 40 years of age at the time they applied. Three of those applicants were aged 50 or older. Four of the eight applicants selected for interview for the position of Coordinator of Continuing Education were aged 40 or older. The applicant ultimately hired was in her mid-forties at the time. No employee or representative of Respondent made any derogatory comments about Petitioner's age. No member of the selection committee discussed the age of any applicant. Petitioner admits that had he been selected for an interview he might not have been selected as the successful candidate.
