Findings Of Fact The Petitioners, at times pertinent hereto, were employees of the Respondent at its facility known as the "Distribution Center" in Marianna, Florida. The Petitioners' last employment positions prior to termination were as "lift operators", meaning that they operated equipment analogous to "lift trucks" or "fork lifts" in moving packing cases of goods manufactured by the Respondent in and around its Distribution Center facility, also known as the "Pack and Hold Department". It is undisputed that the Respondent meets the definition of an "employer" within the meaning of Chapter 760, Florida Statutes. There is no dispute that the jurisdictional requirements have been met concerning the claims which the Petitioners have advanced for wrongful, discriminatory discharge. It is disputed that the Petitioners' claims concerning alleged discriminatory failure to promote the Petitioners are jurisdictional. In fact, the charges of discrimination asserted by the Petitioners concerning their unrealized claims to various job promotions were filed more than 180 days after they were denied the various promotions. Those promotion claims are considered, however, on the issue raised by the Petitioners concerning the "doctrine of continuing violation", in terms of those alleged promotion denials being "serial violations". The Petitioners maintain that the alleged promotion denials constitute a series of discriminatory acts against given "discriminatees", culminating in the jurisdictional, discriminatory act of their termination. The Petitioners do not contend that these are "systemic violations under that discrete theory of the 'doctrine of continuing violation.'" The Respondent's Florida facilities consist of two plants; one is called the "Distribution Center", which is the warehouse facilities and operations of the Respondent. The other plant consists of the so-called "garment decoration" facility and operation of which the "Embroidery Department" is an integral part. The Petitioners were employees at the Distribution Center in its "Pack and Hold Department". Petitioner White first became employed by the Respondent in August 1987. His first position was as a custodian and he was next made a "utility worker" in the Shipping and Receiving Department. He next attained a promotion to "lift operator" in the Pack and Hold Department, which job he retained until he was terminated on November 12, 1991, in the action which gave rise to this proceeding. Petitioner Gray was first hired in March 1988, also as a utility employee, but in the Pack and Hold Department of the Distribution Center. He was promoted to a lift operator job in a different department, the ASRS Department, approximately three months after his hire. He remained a lift operator at the time of his discharge on November 12, 1991, although by that time, he was a lift operator in the Pack and Hold Department. Discriminatory Termination Charges On the date of the Petitioners' suspension, November 1, 1991, a party was held during the lunch period in the Respondent's "break room", to honor a departing employee of the Embroidery Department. It is a common and customary practice of the Respondent, and that department, that when employees are having such a party, the employees involve contribute either food, in the form of covered dishes, or money to provide for the food and other refreshments for the party. This was done by the employees of the Embroidery Department, who were conducting the party or celebration in question. Some of the employees contributed money to pay for chicken which was cooked by the husband of Catherine Moses Edwards, their supervisor, and some employees brought food themselves. The Respondent encourages such employee recreational opportunities and supports them as, for example, by giving additional or flexible time for lunch periods for employees involved in such festivities. In addition to the covered dishes, the employees of the Embroidery Department and several employees from other departments who were invited to the party contributed money to buy the chicken. Several employees of the Embroidery Department set up the food tables for the party in the break room before it started. While these employees were so occupied, several employees from other departments, including the Petitioners and other employees from the Pack and Hold Department came into the break room for their lunch break. The Petitioners approached one of the employees, who was helping set up food in the break room for the Embroidery Department party, Ms. Dorothy Loraine Potter. Petitioner Gray asked Ms. Potter if they could have some chicken and Ms. Potter informed him that she could not give him permission to have the chicken because it did not belong to her but belonged to all of the Embroidery Department personnel involved in the party. The Petitioners and other employees of the Pack and Hold Department then sat at a table where the food had already been placed for the Embroidery Department's party by Ms. Potter and others. Some of the food, including some of the chicken, had been distributed to the Embroidery Department employees on a platter, and otherwise, when Petitioner Gray picked up the large brown grocery bag holding the remainder of the chicken belonging to the employees of the Embroidery Department, waved it in the air, and asked if "anybody wanted some of his chicken." This was after he had already been informed by Ms. Potter that he did not have permission to have any of the chicken and, therefore, he had no authorization to give it to anyone else. Petitioner White, who was present when Ms. Potter denied them authorization to have some of the chicken also ate chicken from the brown grocery bag containing the chicken belonging to the Embroidery Department employees and to others who had paid for it, which Petitioner was mockingly waving around in the air and offering to others. Petitioner White additionally offered a piece of the chicken belonging to the Embroidery Department to the Pack and Hold Department Lead Person, Tommy Blount, although Mr. Blount did not accept the chicken. Additionally, Petitioner Gray also ate a piece of pie directly from the serving pan intended for the purpose of serving Embroidery Department employees and their guests, instead of from an individual plate upon which he should have eaten the pie, had he had permission to do so, which he did not. Petitioners Gray and White's behavior in eating the other employees' food elicited derogatory comments from a number of the Embroidery Department personnel, particularly employee Michael Edge. This clearly indicated that they did not have permission to take the Embroidery Department food, even had not Ms. Potter already informed them that they had no such permission. In spite of this, neither Petitioner showed any remorse or effort to apologize for taking the food which did not belong to them and was the property of the Embroidery Department employees and their invitees. The Petitioners, particularly Petitioner Gray, exhibited a taunting, mocking attitude toward those employees of the other department who had bought and paid for the food. His actions caused a number of the Embroidery Department employees and their guests to feel considerably upset and affronted by this conduct, concerning which they complained to their supervisor, Mrs. Moses Edwards. The Petitioners later claimed that certain white employees, Brian Cooley, Captain Miles, and Don Wilkinson, who were not employees of the Embroidery Department, also ate the food at the Embroidery Department party and yet were not disciplined by the Respondent. The evidence establishes, however, that these employees were not disciplined because they were not blameworthy. Employees Wilkinson and Cooley had actually been invited by the employees of the Embroidery Department to the party and had paid money to help purchase the food they consumed at the party. Captain Miles was offered a piece of pie by Petitioner Gray and first indicated that he would accept it but then declined. He told Petitioner Gray, in the presence of witness Tommy Blount, "nah, I changed my mind, I better not have any." The preponderant evidence clearly establishes that the Petitioners did not have permission to partake of the food in question. In fact, one Embroidery Department employee interviewed in the investigation process who testified at the hearing, Michelle Brock, heard Petitioner Gray state "if they didn't want us to eat the food, they shouldn't have put it on our table." Additionally, Petitioner White admitted twice to Mr. Howard in a telephone conversation after his suspension, to which conversation Assistant Plant Manager Allan Cutts was a party, that he knew that he did not have permission to eat the Embroidery Department food in question. The Embroidery Department supervisor was Mrs. Moses Edwards. She was not present in the company break room at the time the incident took place. She had been off the company premises briefly on a personal errand. Upon her return, approximately five of her employees came to her, considerably upset, to complain about the Petitioners' actions during the department's party. Those employees were Michelle Brock, Shea Fisher, Shannon Stewart, Michael Edge and Todd Baya, all of whom, with the exception of Todd Baya, testified on behalf of the Respondent in this proceeding. The reports from those employees, their demeanor and the demeanor of the Embroidery Department employees generally after the party, clearly reflected that the actions of the Petitioners had caused a significant altercation and upset to those employees, as described by Mrs. Moses Edwards when she testified that ". . . everyone-the department itself, everyone was upset by the fact that it was our dinner. And these men decided to help themselves and make a mockery of it." Upon receiving the report of her employees concerning the incident, she went to the break room to investigate. Upon being questioned by Mrs. Moses Edwards, Petitioner Gray denied having eaten the food. Petitioner White was silent when asked by Mrs. Moses Edwards if he had eaten the food at the party but nodded in assent to Mr. Gray's response in the negative. The testimony of Mrs. Moses Edwards and Shea Fisher to the effect that she confronted the Petitioners with these questions and received these responses might be argued to have been contradicted by the testimony of Tommy Blount to the effect that Mrs. Moses Edwards only questioned him about the incident and what he knew about his employees eating the Embroidery Department food. He testified to the effect that he did not see Shea Fisher present with Mrs. Moses Edwards or at least standing behind her when she questioned him. Witness Blount, however, came to the incident quite late, after the altercation had occurred. His testimony that he did not remember Shea Fisher's presence, as opposed to outright denial of her presence, and the circumstance of his arriving late, after the incident actually occurred, could also be taken to mean that he simply was not able to observe Mrs. Moses Edwards, in the company of Ms. Fisher, questioning the Petitioners. In any event, however, the Respondent's investigation conducted by Mr. Howard and, to some extent, Mr. Cutts, involving the questioning of numerous employees who observed the incident and were present, shows that the Respondent independently confirmed that the food was obtained and eaten without permission by the Petitioners, in the manner described and found above. After her initial inquiry, Mrs. Moses Edwards reported the incident to her manager, Mr. Steve George, the Plant Manager of the Garment Decoration Plant, and to Mr. Allan Cutts, the Assistant Plant Manager for the entire Distribution Center. She also conversed with personnel manager, John Howard, during the course of his investigation about the incident. Based upon the information provided to Mr. George and Mr. Cutts by Mrs. Moses Edwards, the matter was reported to Jeffrey Morris, the Distribution Center Plant Manager, who ordered the suspensions of the Petitioners, as well as Monroe Rhymes and Donnell Barnes, pending a full investigation being conducted by John Howard, the Personnel Manager for the Distribution Center, and by Mr. Cutts, the Assistant Plant Manager for the Distribution Center. Mr. Barnes and Mr. Rhymes were also employees of the Pack and Hold Department. Mr. Howard was directed to conduct his investigation and then report his findings to a review committee, which would review the incident and determine what, if any, disciplinary action was warranted. The information available to the Respondent on November 1, 1991, the day of the incident, indicated that the four employees named above, each of whom is black, had eaten the Embroidery Department food, even though they were not employees of that department. The Respondent's knowledge of the incident, at that time, did not indicate that any other employees from a department other than the Embroidery Department had eaten the food in question. It is the Respondent's regularly-followed policy and practice that the Personnel Manager must investigate the facts and circumstances leading to an employee's suspension, before a decision can be made to discharge that employee. The Personnel Manager then reports the findings of his investigation to a review committee composed of supervisors and department managers of the Distribution Center. The committee considers the circumstances resulting in the employee being suspended, the Respondent's disciplinary policies with regard thereto, and all of the evidence which supports or does not support disciplinary action or the level of disciplinary action. The committee then considers whether discharge or some other disciplinary action is warranted under the particular circumstances of the case. An employee is terminated only if a majority of members of the review committee agree that discharge is the appropriate discipline and the ultimate decision is then made by the Plant Manager, Jeffrey Morris. While it is true that the employee does not have an opportunity to personally appear before the review committee, if the employee disagrees with the decision reached by the review committee, he may appeal that decision to a review board under the company's regular policy and procedure concerning disciplinary matters. Indeed, the Respondent has a uniform practice and procedure of using this review committee process in making decisions whether to terminate both black and white employees and has customarily followed it at the Distribution Center. Mr. Howard and Mr. Cutts interviewed numerous witnesses, including the Petitioners, Mrs. Moses Edwards, Todd Baya, Michael Edge, Shannon Stewart, Michelle Brock, Shea Kent, and Gary Smith. They made their final investigatory report to the members of the review committee on November 7, 1991. In the course of the investigation, the Petitioners were given an opportunity to explain their version of the events in question to Mr. Howard and Mr. Cutts. Petitioner Gray denied having eaten the food from the Embroidery Department party without having permission to do so, but Petitioner White twice admitted to Mr. Howard that he had eaten chicken without permission during their telephone conversation, to which Mr. Cutts was also a party. After conducting his investigatory interviews and considering the information thus gained, Mr. Howard determined that employees Monroe Rhymes, Donnell Barnes, and the two Petitioners, each of whom is black, were the people who had eaten the food without being members of the Embroidery Department staff or invitees to the party. Mr. Howard determined from the information available to him that Mr. Rhymes had not been present when Petitioner Gray was denied permission to eat the Embroidery Department food and believed that Petitioner Gray was offering him his own chicken when Mr. Rhymes accepted it and ate it. It was also determined by Mr. Howard that, indeed, Mr. Barnes had eaten a plate of the food from the Embroidery Department but that had been given him by employee Marvin McCallister of that department. He had prepared the plate for his own use but later decided not to eat it and offered the food to Mr. Barnes, who accepted it. Thus, it was Mr. Howard's belief and determination that Mr. Barnes and Mr. Rhymes were not at fault for eating the food which belonged to the Embroidery Department and to the Department's invitees. Mr. Howard also determined that the Petitioners had, indeed, eaten the food without permission, knowing that they did not have permission, and had engaged in blatant, taunting behavior toward their fellow employees in the Embroidery Department while doing so, particularly in the case of Petitioner Gray offering it generally by waving it around and asking if anyone in the room wanted chicken, which he represented to be his. Mr. Howard then considered all the information provided to him through his investigation and reported his findings to the members of the review committee. The Respondent uses a "progressive discipline system" for employees who commit various infractions. An employee receives an informal warning called a "written verbal" for minor offenses for the first occasion. Following that, for a second minor offense, an employee receives a formal warning ("first written"), and for a third minor offense receives a final warning, also called a "second written". Any subsequent minor offense committed so that the employee has accumulated four minor offenses renders the employee subject to discharge. An employee receives a formal warning for a major offense, also called a "first written" and if a second major offense is committed within a six-month period thereafter, is subject to discharge. Major offenses include "insubordination", "defacing . . . company property . . .", "taking company property from the plant without permission", and "horseplay." After a six-month period from a major offense elapses, the offense is removed from the employee's record. Certain offenses come under the category "intolerable offenses" under the company's regular disciplinary policy and for these offenses, an employee can be discharged the first time such an offense is committed. Intolerable offenses include "willful damage to company property or property of others", which the Petitioners were charged with, "leaving the plant during a shift without permission", and "gross insubordination." Mr. Howard, as Personnel Manager, had the duty of insuring that the disciplinary policy was uniformly and fairly applied. In this connection, the company had a policy of employing discretion and a consideration of all surrounding facts and circumstances in deciding whether to terminate an employee, even when the employee had accumulated sufficient reprimands or warnings for minor, major or intolerable offenses, before the Respondent made the decision to terminate. Termination under those conditions was not always a foregone conclusion for both black and white employees. The "decision makers" in the situation at bar involving the Petitioners was the Plant Manager, Jeffrey Morris, and the members of the review committee. Mr. Morris suspended the Petitioners and the other two employees. The review committee then considered all facts and circumstances surrounding the events provided to them by the investigation conducted under the leadership of Mr. Howard and then made the decision that the Petitioners should be discharged. The members of the review committee were Allan Cutts, Steve George, John Spivey, John Howard, and Jason Davis. All of the members hold management positions with the company. Mr. Spivey is black, and the remaining members of the committee are white. After receiving the information which Mr. Howard gained through his investigation, the review committee considered his findings concerning which employees were involved in eating the Embroidery Department's food at the November 1, 1991 party without permission. The committee concluded that Mr. Barnes had eaten food at the party after being given that food by a member of the Embroidery Department. The committee also concluded that because of the actions of Petitioner Gray, Mr. Rhymes had a good-faith belief that he had appropriate permission, through Petitioner Gray, to eat the food offered to him. Thus, Mr. Barnes and Mr. Rhymes exhibited no intent to eat food which did not belong to them with knowledge that that was the case. Therefore, as a result of the committee's deliberations, both Mr. Barnes and Mr. Rhymes were found not to be at fault, were exonerated and returned to work. The committee determined, however, that the Petitioners should be discharged. After considering all of the information gathered by Mr. Howard and the options it had with respect to discipline, the committee unanimously recommended that the Petitioners be discharged. That decision was based upon the committee's conclusion that Petitioner Gray, with Petitioner White in his presence, asked an Embroidery Department employee, Ms. Potter, if they could partake of the Department's food. Ms. Potter denied permission. Even though the Petitioners had been told that the food was for the Embroidery Department's party and that their request for permission to eat the food had been denied, they ate some of it anyway; and Petitioner Gray offered the food to other unsuspecting employees, who ate some of it. When the Petitioners were confronted by a supervisor from the Embroidery Department about the incident, Petitioner Gray repeatedly denied taking the food. Petitioner White remained silent but nodded his head in assent to Petitioner's Gray's response to the inquiry. Later, Petitioner White admitted eating the food without permission. Further, the committee considered the effect on employee morale of the Petitioners' actions on November 1, 1991, particularly the blatant, taunting nature of Petitioner Gray's actions and, to a lesser extent, Petitioner White's, toward their fellow employees. They demonstrated a lack of remorse or effort to apologize for their conduct. The committee was sensitive to a perceived need to take strong disciplinary action in order to preserve employee morale of those victimized by the incident and other employees who knew of it, and to show the committee's sensitivity to the necessity that co-workers respect each other's property and feelings. This was a seemingly harsh remedy and, indeed, committee member John Spivey, the black member of the committee, expressed regret that the incident had to proceed to that eventuality and would have preferred that the employees apologize or otherwise make redress to the Embroidery Department employees who had been affronted. Mr. Spivey, however, voted with the majority. His regret was not that the Petitioners were punished as they were but that that punishment had become necessary, in the view of the committee, including Mr. Spivey, because those Petitioners had exhibited no remorse or regret for their actions and, indeed, had misrepresented their actions and versions of the situation. Mr. Spivey expressed regret that the Petitioners had not offered to apologize or replace the food they had taken. Thus, the review committee decided unanimously to discharge the Petitioners. They were then informed of their right to appeal that decision to a review board hearing procedure. Petitioner Gray never requested an appeal of his discharge decision to the review board. Petitioner White initially indicated to Mr. Howard, when Mr. Howard told him of the decision, that he would seek such an appeal; but Petitioner White thereafter elected not to pursue the matter. In an attempt to demonstrate that the Respondent maintained or allowed a work place environment or climate fraught with racial animus, Petitioner White testified that employee Robert Hawkins (Hopkins) repeatedly told racially- derogatory jokes in the work place. Petitioner White maintained in his testimony that even after he complained to his Lead Person, Doyle Pumphrey, the jokes continued. Petitioner White's testimony is corroborated by that of Michael Capps, who indicated in his testimony that he had told racial jokes in front of others, including blacks and supervisory personnel, but acknowledged that he had never received any complaints from the Petitioners or anyone else concerning this behavior. He testified that he had heard his superior, Mr. Ramos, make a racially-derogatory comment concerning black employees. The Respondent then presented a series of managers and supervisory personnel, who testified that they had never heard racially-derogatory jokes told in the work place and denied having received complaints about such jokes or comments being told at the Distribution Center. Witness Ramos denied making the comment attributed to him by Mr. Capps. Even though Mr. Capps acknowledged that he had told such racially-derogatory jokes himself, his testimony is of questionable credibility because of the unrefuted evidence concerning the hostile relationship Mr. Capps had with the Respondent company involving the circumstances surrounding his leaving its employ. The company felt that it had reason to believe that Mr. Capps was involved in breaking and entering the premises of the company with which the Respondent shared warehouse space in Dothan, Alabama, where Mr. Capps was working at the time. It conducted an investigation of the matter and was on the point of firing Mr. Capps when he decided to quit, immediately before he was terminated. Mr. Capps, when he testified, was no longer employed by the company, left under hostile circumstances, and thus had no demonstrable motive to conceal the fact that he had told racially-motivated jokes, but also had a motive, based upon his poor personal relationship with the Respondent, to cast the Respondent in an unfavorable light with his testimony. Petitioner's White testimony, even if not considered self-serving, does not reveal that Lead Person, Doyle Pumphrey, ignored his complaints concerning racially-derogatory jokes when Petitioner White reported them to him. Petitioner White, himself, testified that when he complained to Mr. Pumphrey, the jokes stopped for "a couple of days." Thus, even though the testimony indicates that employee Robert Hawkins (Hopkins) continued telling racially-derogatory jokes thereafter, Petitioner White's testimony could lead one to infer that Mr. Pumphrey must have taken some step to stop such conduct (even if relatively ineffective), since the jokes stopped for a "couple of days." When employee Hawkins (Hopkins) continued such conduct, employee Calvin Brelove, according to Petitioner White's testimony, decided to ignore Lead Person Pumphrey and carry his complaint concerning the jokes to supervisor John Story. The testimony does not indicate that Mr. Story ignored the complaint, although it does not indicate what, if any, action he took. Petitioner White's testimony does reveal, however, that after Mr. Brelove complained to Mr. Story, the jokes "eventually stopped" apparently some time after Petitioner White "changed shifts." The Respondent presented a number of supervisors and management personnel, who denied hearing such racial jokes told in the work place and denied receiving complaints about them being told. Thus, it cannot be determined that preponderant evidence was presented establishing that the supervisors or managers made such racial jokes or comments, themselves, or knew that they were occurring in the work place and took no action. Preponderant evidence was not presented to establish that, even if racially- derogatory jokes or comments were related in the work place, they were anything other than isolated incidents among employees. There is no preponderant evidence to establish that any manager or supervisor was aware of such conduct and failed to respond. There is absolutely no evidence to indicate that any decision-maker concerning the events involved in this proceeding, Plant Manager Morris and the members of the review committee, have made racially-derogatory remarks or jokes about the Petitioners or other black persons generally nor that they condoned such conduct in the work place. Disciplinary Action Comparisons The Petitioners presented evidence and testimony concerning purportedly lesser disciplinary actions taken by the Respondent against several white persons for supposedly equivalent conduct to that for which the Petitioners were discharged, thus claiming that the Petitioners were discriminated against on account of their race. In this connection, the Respondent maintains, and adduced preponderant evidence, which shows that the Petitioners were discharged for willful destruction of the property of others, aggravated by the blatant, mocking manner in which the offense was committed, in disregard of the feelings or rights of their co-workers, with no indication of remorse or intent to apologize to those wronged employees exhibited by the Petitioners. "Willful destruction of company property or the property of others" is an "intolerable offense" in the company's progressive disciplinary policy. It is found, in consideration of the facts found above, that the Petitioners partook of the food in question, knowingly, without permission and that their acts were willful and that they did constitute the destruction of the property of others (co-employees) in a manner aggravated by their lack of contrition, remorse and characterized by a blatant, mocking attitude displayed particularly by Petitioner Gray. Concerning a number of the exemplar employees whom the Petitioners advanced as instances of white employees who were accorded less punishment for similar conduct, it is found that the instances of destruction of property by both black and white employees in the examples which follow involve the different element of accidental destruction of property or lack of intent to do so, which renders the situations not the same as that involving the Petitioners. Scott Jackson, a white employee, was issued a major reprimand on September 5, 1990 for horseplay after breaking a windshield in a company van. He could have been classified as committing willful destruction of company property, which is a termination offense. After investigation of the incident, however, the Respondent's managers concluded that his actions constituted an act of "horseplay", which is justification for a major reprimand, which he received. The destruction of the windshield, as company property, was deemed incidental to the act of horseplay, constituted an accident, and was not willful destruction of property. Therefore, he was not discharged. Scott Jackson was issued another major reprimand on September 12, 1991 for insubordination. This was beyond six months from his first major reprimand and, therefore, was not an incident which in the aggregate made him eligible for termination. He received this reprimand, rather than being terminated, after a full review of the facts and circumstances by the review committee. His insubordination involved a cursing incident involving his supervisor, Mr. Ramos, the object of his conduct. It is noteworthy that the review committee's decision was not really a unanimous decision; and Mr. Ramos, who sat on the committee, wished to terminate Mr. Jackson. On January 12, 1991, Rick Roesler (white) used company materials to construct a chair for his use at work. This incident could have constituted willful destruction of company property, a dischargeable offense. After investigating all of the facts and circumstances, however, Mr. Roesler was issued a major reprimand for "loafing and misuse of company property." Again, on November 22, 1991, Mr. Roesler was issued a major reprimand for horseplay after he sprayed glue on a telephone in the Respondent's facility, placed a call to that telephone so that another employee would pick up the telephone and be stuck by the adhesive. The gravamen of this incident really involved horseplay, rather than destruction of company property. In fact, it is not actually shown whose property the glue was but that factor was incidental to what was really an act of horseplay, a major reprimand instance, rather than a termination offense. Chip Baxter, a white employee, was issued a reprimand on January 2, 1991 for leaving company property without permission. Under the disciplinary procedure prevailing at the Respondent's facility, that behavior could have resulted in being considered an "intolerable offense", which could result in termination. After investigating the matter, however, the Respondent's managers determined that Mr. Baxter should be accorded a major reprimand, instead of a termination-eligible offense, because he had informed his lead person that he was leaving the premises, which he mistakenly believed was adequate notice to the management. Travis Corbin (white) was accorded a major reprimand on November 17, 1989 for "violation of safe practices." Then on January 24, 1990, he was issued a minor reprimand for "improper use or care of company property." If his second reprimandable offense had been considered to be willful destruction of company property, which it was not, he would have been subject to termination under the progressive disciplinary procedures. White employee Gerald Rutherford was issued a reprimand on March 22, 1991 for causing a major disturbance in a work area by "popping plastic bags after being told not to and yelling and hollering." When his misconduct was evaluated by the review committee, the committee emphasized its concern with the disturbance in the work place his actions caused and was not concerned with the fact that technically the plastic bags were company property. In reality, the bags were refuse, had already been used, and were not capable of reuse for any beneficial purpose. White employee Cynthia Diane Simms was reprimanded by the Respondent on October 12, 1990 for using company property (presumably thread and a sewing machine) to sew company designs on personal clothing. White employee Bobby Davis was issued a major reprimand on December 11, 1991 for defacing company property after puncturing a packing case with his fist. In response to these examples advanced by the Petitioners to the effect that the Respondent discriminated against the Petitioners on the basis of their race because the above-mentioned white employees were not similarly disciplined for committing offenses purportedly similar to the misconduct committed by the Petitioners, testimony and evidence was produced by the Respondent concerning employees and their situations, to be compared with the Petitioners' white comparative employees who were not discharged for actions that the Petitioners maintain could have been considered willful destruction of company property. In this regard, Randy McMillan, a black employee, was issued a major reprimand, instead of termination, after he bent a support of the Respondent's building by hitting it with a forklift and then failing to report the incident. Claude Ratliff, Jr., a black employee, was issued a major reprimand on August 23, 1991 after damaging company property with a forklift. This reprimand resulted in Mr. Ratliff's termination; however, he was not terminated for destruction of company property. Rather he was terminated because that reprimand resulted in an accumulation of sufficient reprimands within a six- month period so that he was dischargeable under the Respondent's customarily- followed, progressive disciplinary policy. The Respondent offered, in comparison to the Petitioners' white comparative employees, who were not discharged for insubordination, the following examples: Larry Collins, a black employee, was given a major reprimand on January 16, 1991 for unacceptable behavior and language toward a supervisor, which occurred on January 12, 1991. This discipline resulted from operation of the company's review board procedure whereby it overturned a review committee's recommendation that Mr. Collins be terminated. This offense and the reprimand given for it are equivalent to that accorded Scott Jackson's behavior on September 12, 1991 and the subsequent discipline he received in the cursing incident involving supervisor Ramos. Larry Collins was also issued a reprimand for insubordination on September 17, 1991, instead of being discharged, for "failing to carry out an assignment when directed to do so". If his conduct had been so characterized, it would have been justification for termination. The decision to reprimand him, rather than terminate his employment, was made by a review committee by a 3 to 2 vote. Conversely, Nick Atkins, a white employee, was terminated on August 1, 1989 for "behavior unbecoming and for profane language to fellow employees and supervisor." Mr. Atkins' conduct had included certain threatening remarks to a fellow employee. David Godwin, a black employee, was given a major reprimand on August 23, 1989, instead of being discharged, for "making threatening remarks to Pack and Hold Lead Person in front of a witness." James Hunter, a black employee, was issued a major reprimand on May 21, 1991, instead of termination, for insubordination and failing to follow company procedures. Patrick Wilkinson, a white employee, however, was discharged on December 26, 1991 for gross insubordination. The Respondent also advanced the following employee disciplinary examples in comparison to the Petitioners' white comparative employees, who had been issued reprimands for violation of a safe practice or horseplay. In this regard, Robert Hopkins, a white employee, and Claude Ratliff, a black employee, mentioned above, were both involved in an incident of horseplay on May 20, 1991, in which Mr. Ratliff was injured. Both employees were issued a major reprimand for this incident. On November 20, 1990, Patrick Wilkinson, a white employee, was issued a major reprimand for violation of safe practices. On October 15, 1991, Patrick Wilkinson was involved in an incident of horseplay in the work place with James Wilson, a black employee. Both employees were suspended immediately and a review committee considered their cases. After considering all of the facts and circumstances, the review committee determined that major reprimands should be issued to both employees. During its deliberations, the committee considered terminating Mr. Wilkinson's employment, the white employee, because at the time of its deliberations, Mr. Wilkinson already had an active major reprimand on his employment record, meaning one that was no more than six months old. After full consideration of all the facts and circumstances, however, the review committee by a 3 to 2 vote narrowly decided to issue a second major reprimand to Mr. Wilkinson, but not to terminate his employment. It is found that the Respondent's disciplinary procedures and policy allowed the review committee and the company managers' discretion in judging each incident of misconduct. The evidence establishes that the Respondent's management personnel had reviewed all of the circumstances surrounding each incident of misconduct and based upon the totality of circumstances, exercised discretion in determining what disciplinary action was appropriate for that situation. Both black and white employees have been discharged by the Respondent for similar violations of work rules. Further, however, both black and white employees have benefited from the Respondent's disciplinary review process by being issued reprimands in instances when, in the exercise of discretion, they could have been discharged, if the Respondent's policy had simply been mechanically applied in such instances. Moreover, the Petitioners produced no evidence of white comparative employees who were involved in activities that could have been classified as willful destruction of company property or the property of others and who were at the same time involved in blatantly taunting the persons whose property was being destroyed, with attendant damaging effects on employee morale, and yet who were disciplined differently from the Petitioners for their misconduct. In fact, one can infer from the evidence that the company has been somewhat lenient with both black and white employees involving destruction of company property but that it was additionally motivated by concern for employee morale in according more harsh discipline to the Petitioners for destroying the property of co-employees, aggravated by circumstances showing blatant disregard and lack of remorse concerning the rights of those co-employees. Therefore, the clearly harsh discipline meted out to the Petitioners has a rational basis in the company's interest in preserving peace and morale amongst employees in the work place, in this only instance of record involving destruction of co- employees' property as opposed to company property. It has not been established by preponderant evidence that any of the disciplinary or promotional decisions concerning the Petitioners or other black employees were motivated by racially- discriminatory intent, nor that a racially-hostile environment prevailed by intent or condonation in the work place. The Petitioners also contend that one of their white comparators, Scott Jackson, who was issued a major reprimand for insubordination, was then promoted by the Respondent. However, the evidence reflects that he was not actually promoted but worked temporarily in a higher paying job, on a periodic basis, as a lift operator under the company practice known as "red lining". This means that he was paid at the lift operator's hourly rate, which was higher than his normal rate of pay, while he was performing those duties. He was not singled out for an opportunity to work in a higher paying job after receiving the reprimand, however. The Respondent allowed other employees in Mr. Jackson's job category, black and white, to work in a lift operator job when the need arose for an additional operator. At one point, prior to the Petitioner's discharge, the Respondent regularly needed employees to work in this capacity in its Dothan, Alabama, warehouse, some distance from the Marianna, Florida, facility. The Respondent's managers developed an alternating schedule to allow all employees in the Pack and Hold Department to have a fair chance to work in Dothan at the higher hourly rate. Eventually, due to the distance, inconvenience and longer hours involved, the Pack and Hold employees tired of working in Dothan and it became difficult to fill those duties. Because of this, the Respondent then asked for volunteers to work in Dothan. Mr. Jackson was one of only three persons who volunteered for that regular assignment to work in Dothan, even though it offered a higher hourly rate of pay. Neither of the Petitioners volunteered to work in the Dothan warehouse under those circumstances, although given the opportunity to do so. This is an element of the lack of initiative and leadership observed in them by their supervisor, Mr. Ramos, and others in terms of their consideration for promotions and, particularly, promotion to "Lead Person" status, as opposed to their race being the reason. In addition to the testimony regarding the white comparators in terms of disciplinary actions, the Petitioners maintain that the Respondent gave false or incomplete information to the Florida Commission on Human Relations in response to the charges of discrimination. Because these are de novo proceedings, the proceedings and information considered by the Commission in the free-form stage of this matter was ruled not to be relevant; however, inquiry into this subject matter was allowed on the question of credibility of the Respondent's testimony and evidence. The Petitioner challenged the credibility of the Respondent's testimony by asserting that it had omitted information regarding notice of interest jobs and discharges from rosters it had submitted to the Commission during its investigative process. The Respondent, however, explained inconsistencies between the notice of interest job information and discharge information submitted to the Commission. In fact, after additional testimony and examination of the Petitioners' documentary evidence, the Respondent demonstrated that out of five notice of interest jobs which the Petitioners initially attempted to show had been omitted from materials submitted to the Commission, only one job out of a total of 61 was actually found to have been omitted from the documents produced by the Respondent. Additionally, in response to the Petitioners' contention that information regarding discharges had been intentionally omitted in the submittals to the Commission, the Respondent showed that, indeed, it had identified only one employee, a black employee by the name of Patrick Green, whose discharge information had been omitted from the list submitted to the Commission. This evidence shows that the record from which the information submitted to the Commission was obtained was prepared by clerical employees in the Respondent's personnel department, as a part of routine record keeping, not as discreet record keeping solely for the purpose of preparation for this litigation. Further, although the Respondent's records and data submitted were not error free, there was insufficient, preponderant evidence adduced by the Petitioners to support a finding that the Respondent's management has intentionally concealed or distorted information in its employment records which it submitted to the Commission or to the Hearing Officer in this proceeding, so as to support a finding that its evidence in this regard lacks credibility. Promotional Issues In April 1991, Petitioner Gray expressed interest in an "order control clerk" job at the Respondent's Distribution Center. The order control clerk is a "notice of interest" job, but it paid less than the lift operator job which Petitioner Gray held when he applied for the order control clerk's job. It primarily involves answering telephone calls from customers and sales persons or managers to determine the status of particular orders. The order control clerk job was filled on April 19, 1991 by Wendy Forsyth, who is white. Petitioner Gray offered no evidence to show that he did not know in April 1991 or should not have reasonably known at that time that he had not been awarded the order control clerk job which he sought. Ms. Forsyth was selected to fill that job because she was believed to possess the best communications, organizational, and computer skills of the applicants for the job, which the Respondent considers to be essential for the performance of the clerk's job. In fact, unlike Petitioner Gray, Ms. Forsyth had both on-the-job computer experience with the Respondent and college level computer experience and training courses. In March 1991, Petitioner Gray signed a "notice of interest" form that had been posted by the Respondent to allow employees to express their interest in being considered for a "quality auditor" job vacancy in the packing department. The quality auditor job, like the order control clerk job, is a "notice of interest job" and paid less than the lift operator job held by Petitioner Gray at the time he signed the notice of interest form. The vacancy was filled on March 8, 1991 by Scott Partin, a white employee. Petitioner Gray offered no evidence to show that he did not know in March 1991, when the quality auditor job he sought was filled nor that he did not know or should not have reasonably known, at that time, that he was not awarded the job. The Respondent selected Mr. Partin because he had experience working in the "packing and prepping" department performing the specific work that the quality auditor in that department is charged with inspecting. Petitioner Gray had never worked in the packing department. The Respondent thus considered Mr. Partin to be the most qualified candidate for the job and selected him rather than Petitioner Gray or any of the other persons who expressed an interest in that job. Both the quality auditor and order control clerk jobs are notice of interest jobs. For those types of jobs, the Respondent uses a formal application procedure to allow employees to express an interest. Petitioner Gray also maintains that the Respondent failed to promote him in favor of equally or less-qualified white employees by promoting Ricky Blankenship and Rodney Capps (both white) to the job of "Lead Person." The Respondent does not use any formal mechanism for announcing Lead Person job vacancies nor a formal application system. However, when such vacancies arise, the Respondent selects the person to fill the job by considering whether a candidate possesses the required initiative to take on the additional responsibility and leadership duties; whether he or she possesses the required communication skills and personal relationship skills required for the job; and whether the candidate's overall work and attendance record are good. Such an evaluation involves the consideration of both objective and subjective qualification standards. The evidence establishes that Ricky Blankenship was promoted to Lead Person in the shipping department on July 8, 1991. The evidence showed that at the time of Petitioner Gray's discharge, Rodney Capps had not actually been formally promoted to the job of Lead Person but, rather, had been used as a temporary Lead Person on a periodic basis. Petitioner Gray offered no evidence that he did not know in July 1991 that Mr. Blankenship, rather than himself, had been promoted to the Lead Person job. Moreover, Petitioner Gray did not offer any evidence that he should not have reasonably known in July 1991 that he was not awarded the Lead Person job awarded to Mr. Blankenship. Likewise, Petitioner Gray offered no evidence that he did not know when the Respondent began using Mr. Capps rather than Petitioner Gray in the role of temporary Lead Person nor did he prove that he should not have reasonably known of this fact at the time that it occurred, since he would have noticed that fact in the normal course of his duties as an employee at the Respondent's facility. The Respondent considered Mr. Blankenship to be the most qualified candidate for the Lead Person job for which he was promoted because he had worked in both the Pack and Hold Department and the Shipping Department, was familiar with the operations of both departments, which are interrelated, and because of his leadership, communication and interpersonal, employee- relationship abilities. Mr. Capps was qualified for the Lead Person job because in the course of his employment with the Respondent, he had demonstrated leadership, initiative, good communication, and interpersonal relationship skills of a higher degree than other employees and possible promotees. Mr. Blankenship had characteristically demonstrated the initiative to volunteer for extra duty when it was necessary and to always cheerfully perform any task required of him. In comparison, Petitioner Gray had only worked in the Pack and Hold Department. His work history did not indicate that he possessed the initiative and leadership capabilities nor the communication or interpersonal relationship skills that the Respondent looks for in its Lead Persons, as shown by the testimony of Supervisor Ramos. Managers Ramos' and Morris' testimony establishing Mr. Blankenship's superior qualifications for the position was borne out to some extent by Petitioner's Gray own testimony to the effect that he was more interested in an easier job, than in making more money, when he was testifying concerning the order control clerk's position. This exhibited attitude concerning that position, tends to corroborate Mr. Ramos' testimony concerning Petitioner Gray's lack of leadership and initiative concerning the question of promotion to the Lead Person position itself. Moreover, at the time the Petitioners' employment by the Respondent was terminated, the Pack and Hold Department had two Lead Persons, one for the first shift and one for the second shift. One of these Lead Persons is Mr. Tommy Blount, who is black. He was selected to fill the Lead Person job on the first shift in the Pack and Hold Department in April 1991 which tends to show that the Respondent's articulated bases for selection of certain personnel for promotion positions, including the Lead Person's job, are not pretextual and are not grounded in racial animus. Petitioner Gray claims that the Respondent discriminated against him also by denying him a promotion to a truck driver position, instead promoting two white employees, Messrs. Evans and Smothers. Mr. Evans was promoted to truck driver on April 16, 1990. Mr. Smothers was promoted to such a position on July 31, 1991. Petitioner Gray did not offer any evidence to show that he did not know nor that he should not have reasonably known, when the truck driver job vacancies he claims were awarded. Petitioner Gray never sought a promotion to the job of tractor-trailer truck driver anyway. Instead, Petitioner Gray's interest in the truck driver job was actually elicited by the Respondent's Distribution Center Plant Manager, Jeffrey Morris, when he initiated a conversation with Petitioner Gray concerning Petitioner Gray's military truck driving experience. In fact, Plant Manager Morris actually encouraged Petitioner Gray to seek such a truck driver promotional position. Petitioner Gray testified that he did not know whether Mr. Evans or Mr. Smothers possessed a license to drive a tractor-trailer truck before they were hired to drive such equipment for the Respondent and he did not produce evidence to show that he was equally or more qualified to drive tractor-trailer trucks than Mr. Evans or Mr. Smothers. The Respondent, however, showed that it had issued Petitioner Gray a company driver's permit to allow him to independently drive smaller straight-van trucks, vans and cars. The Respondent also issued Petitioner Gray a learner's permit which allowed him to drive a tractor-trailer truck in the company of a licensed driver, as a training effort to determine if he could be qualified to be permitted to drive tractor-trailer equipment. Thus, the Respondent gave Petitioner Gray an opportunity to demonstrate that he could safely operate a tractor-trailer truck by letting him ride and learn to drive one in the company of a duly-licensed driver (Tim Edenfield). After trying this arrangement for approximately a week, the licensed driver, however, reported to the Respondent that Petitioner Gray was unable to correctly and safely drive a tractor-trailer truck and did not think that he would be able to do so. Based upon this information, the Respondent did not promote him to that position; and at no time during his employment with the Respondent did Petitioner Gray ever become appropriately licensed to drive a tractor-trailer truck. The Respondent employed evidence concerning Petitioner Gray's driving record and attendant moving violations in the course of the hearing. This evidence was allowed solely on the basis of any reflection it might have on the credibility of Petitioner Gray's testimony concerning his denial of certain violations on his driving record or failure to accurately remember them, for impeachment purposes. The evidence is not admitted or considered on the question of Petitioner Gray's qualifications at the time the employment promotional decision concerning the truck driver position was made by the Respondent. Mr. Edenfield's driving record likewise is not probative of any issues in this case, since Mr. Edenfield was already licensed and employed as a truck driver at the time the employment decision concerning Petitioner Gray's truck driving position was made. Mr. Edenfield's qualifications are not relevant in any event, since it is the relative qualifications of Petitioner Gray versus the two persons who were actually hired as truck drivers, instead of Petitioner Gray, whose relative qualifications are relevant. In that connection, no evidence was adduced to show that Mr. Evans and Mr. Smothers were not qualified for the truck driver positions nor were less qualified than Petitioner Gray. Finally, all of the promotions concerning which Petitioner Gray complains occurred more than 180 days before he filed his charge of discrimination with the Commission on April 20, 1992. They occurred more than 180 days after he knew or reasonably should have known under the circumstances that he had not received the promotions in question. Petitioner White's Promotional Claims Petitioner White claims that the Respondent discriminated against him concerning a promotion because he was passed over for a promotion to Lead Person in favor of allegedly equally or less qualified white employees when the Respondent promoted Ricky Blankenship, David Wilkinson, and Doyle Pumphrey to the job of Lead Person. The Respondent, as found above, does not utilize a formal mechanism for announcing Lead Person job vacancies nor a formal application process. However, when such vacancies arise, the Respondent does have reasonably objective standards for making promotion decisions for those positions, and the decision to promote is not made by a single decision maker. Recommendations are made by the supervisory personnel of an employee being considered for such a promotion, and the decision is then made by the Plant Manager, Mr. Morris. Findings are made above concerning Mr. Blankenship's promotion and the Respondent's reasons for it. Mr. Pumphrey was promoted to Lead Person in the Pack and Hold Department on May 20, 1991. Mr. Wilkinson was promoted to Shipping Department Lead Person in March of 1989. All of them are white persons. Petitioner White offered no evidence that he did not know when these comparators were promoted, nor did he show any reason why he should not reasonably have known of such occurrences when the promotions became effective. The Respondent, as found above, considered Mr. Blankenship to be the most qualified candidate for the Lead Person job because he had worked in both the Pack and Hold and Shipping Departments and because of the skills he exhibited in leadership, communication, and interpersonal, employee-relationship skills, which the Respondent believes requisite for success in a Lead Person position. Mr. Pumphrey was considered and promoted to the Lead Person job by the Respondent's managers primarily because of extensive leadership experience gained by working for approximately 12 years as a department manager for another company (Woolworth). Witnesses, Robert Gainer and Wilbur Ramos, and Plant Manager, Jeffrey Morris, who were involved in the promotional decisions concerning employees Blankenship, Wilkinson and Pumphrey, did not believe that Petitioner White possessed the requisite interpersonal relationship skills, leadership skills, and initiative to render him equally or more qualified than those employees for the Lead Person job. They based this assessment upon their own experience in observing Petitioner White's work habits, attendance record, and relationships with fellow employees. Petitioner White presented no testimony or documentary evidence in support of any claim regarding a promotional decision other than the Lead Person promotions. Moreover, Petitioner White testified that he did not recall seeking an order control clerk job. The order control clerk job paid less than the lift operator job he held at the time Ms. Forsyth was awarded the order control clerk job. Moreover, Petitioner White testified that he is not interested generally in taking a job that would have involved a pay cut. No other evidence was offered by Petitioner White to support any claim by him with regard to being denied the order control clerk job. Even if he had actively sought that position, he offered no evidence that he did not know in April 1991 or that he should not have reasonably known, at that time, that he was not awarded the order control clerk job which he sought. The Petitioners have established no preponderant direct evidence of discrimination in this proceeding. The direct evidence concerning racial jokes or comments was not attributable, by any evidence, to the decision-makers in this proceeding, the committee and Mr. Morris. In view of the Findings of Fact made above concerning the question of racially-derogatory jokes and comments, it is not found that the work place was fraught with racial animus or was a racially-hostile environment. Moreover, although the Petitioners do not have to establish that all black employees were discriminated against in terms of discipline or promotion in order to prove that they were discriminated against, the evidence which shows that both black and white employees were accorded lesser discipline, under circumstances when they could have been terminated and that both black and white employees were terminated for the same types of conduct, and the evidence and findings referenced above concerning the promotional decisions, shows that the disciplinary procedures and promotional decisions conducted by the Respondent were not carried out against the Petitioners with any racially-discriminatory motive or intent, even if a different person making the decisions in the Petitioners' cases, concerning their termination, might have been inclined to accord a less harsh penalty.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor, demeanor and credibility of the witnesses, as well as the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the Petitions for Relief in their entirety. DONE AND ENTERED this 9th day of June, 1994, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1994. APPENDIX TO RECOMMENDED ORDER Petitioners' Proposed Findings of Fact 1-30. Accepted. 31-32. Rejected, as not in accordance with the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. 33-35. Accepted. 36. Accepted, but only in the context of the Hearing Officer's additional findings of fact on this subject matter. 37-39. Accepted. 40. Accepted, but not material. Mr. George learned of the incident directly from Mrs. Moses Edwards. 41-46. Accepted, but not material. It cannot be found that Mr. Cutts lied under oath, as opposed to being merely mistaken or the victim of a faulty memory nor can it be said that Mr. Blount lied under oath, instead of having been mistaken and that he had a faulty memory. The relevant and material findings of fact made by the Hearing Officer on this subject matter concerning the incident and the investigation are not based upon Mr. Blount's or Mr. Cutts' testimony in any event. 47. Accepted. 48-49. Accepted, although the evidence conflicts between Petitioner Gray's and Mr. Horton's testimony concerning whether Petitioner Gray gave actual names of other employees to Mr. Horton. In any event, neither proposed finding is materially dispositive of relevant issues. 50-51. Accepted. Accepted, but not dispositive of material issues. Accepted, but not materially dispositive of relevant issues, not itself material, and subordinate to the Hearing Officer's findings of fact on the manner in which Mr. Howard's investigation was conducted, including the determination concerning Mr. Barnes and Mr. Rhymes. Rejected, as not in accordance with the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not entirely in accordance with the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not materially dispositive of relevant issues. 57-59. Accepted. 60. Rejected, as not in accordance with the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. 61-62. Accepted, as modified by the Hearing Officer's findings of fact on this subject matter. Rejected, as not in accordance with the preponderant weight of the evidence, as subordinate to the Hearing Officer's findings of fact on this subject matter, and as a discussion of evidence rather than a proposed finding of fact. Accepted, but not itself material. The Hearing Officer's findings of fact on this subject matter do not depend on Mr. Cutts' recollection. Rejected, as to its purported material import. The Hearing Officer's findings of fact on this subject matter reflect the preponderant weight of the credible evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter concerning the purported material import of this proposed finding. The Hearing Officer's findings of fact depict the thrust and context of Mr. Spivey's "regret" concerning the incident, as demonstrated by Mr. Spivey's testimony. 67-68. Accepted. 69-70. Accepted, but not as to its purported material import and subordinate to the Hearing Officer's findings of fact on this subject matter. 70-71. Accepted, in part, but only as modified by the Hearing Officer's findings of fact on this subject matter which are based upon the preponderant, credible evidence and testimony. It was not shown that the decision was entirely subjective. Destruction of property was not found by the Respondent to be willful under the circumstances. 72. Rejected, as not in accordance with the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter. 73-75. Accepted, except as to the last sentence of proposed finding of fact number 75, which is not entirely in accordance with the preponderant weight of the evidence, and subordinate to the Hearing Officer's findings of fact on this subject matter. 76-93. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 94-96. Accepted, as modified by the Hearing Officer's findings of fact on this subject matter. 97. Rejected, as not being materially dispositive of the relevant issues and as not entirely in accordance with the preponderant testimony and evidence. This proposed finding does not reflect the entirety of the conversation between Petitioner Gray and Mr. Cutts. Mr. Cutts also promised to put Petitioner Gray on the list for future lead person considerations for promotion. 98-120. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely in accordance with the preponderant weight of the credible testimony and evidence. 121-126. Rejected, as not entirely consonant with the preponderant weight of the credible testimony and evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. The question of the employment and promotional records furnished to the Commission is not relevant in the de novo context of this proceeding, except that the subject was allowed to be addressed by the Petitioners and the Respondent on the question of any reflection it might have on the credibility of the Respondent's position and evidence in this case, if it could be shown by the Petitioners that the Respondent somehow misled or misrepresented employment data to the Commission, as that might reflect on the credibility of such evidence in this case. Findings have been made resolving the credibility issue in favor of the Respondent in the Hearing Officer's Recommended Order, however. 127-136. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, as also not entirely supported by preponderant, credible evidence of record, and, to some extent, as immaterial to resolution of relevant issues pending before the Hearing Officer. 137-141. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter concerning the order control clerk position and the rationale for promoting Ms. Forsyth as opposed to Petitioner Gray. 142-147. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, as not entirely supported by preponderant, credible evidence of record, and, to some extent, an inaccurate characterization of the evidence. The Respondent did not offer, nor did the Hearing Officer consider, Petitioner Gray's driving record as the rationale for not promoting Petitioner Gray to the truck driver position at issue. The driving record of Petitioner Gray was only offered on the basis of testing credibility and for impeachment purposes concerning Petitioner Gray's testimony at hearing. The Hearing Officer has made findings of fact based upon the preponderant, credible evidence of record, after judging credibility of the pertinent witnesses and evidence and neither Petitioner Gray's driving record nor Mr. Edenfield's driving record is relevant or was considered on the question involving the truck driver promotion, the rationale for which is delineated in the Hearing Officer's findings of fact on this subject matter, which are hereby adhered to. 148-155. Rejected, as subordinate to the Hearing Officer's findings of fact made after judging the candor and credibility of the witnesses involved on the issues concerning direct evidence of discriminatory intent alluded to by these proposed findings of fact, and as not entirely in accord with the preponderant credible evidence and testimony of record. Respondent's Proposed Findings of Fact 1-15. Accepted. 16-17. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 20-22. Accepted. 23. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 24-29. Accepted. 30. Accepted, except for the last sentence, which is rejected as immaterial. 31-33. Accepted. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. 36-42. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, to the extent that the Hearing Officer's findings of fact differ. 43-47. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, to the extent that the Hearing Officer's findings of fact differ. 48-63. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, to the extent that the Hearing Officer's findings of fact differ. COPIES FURNISHED: Paul H. Amundsen, Esq. AMUNDSEN AND MOORE 909 East Park Avenue Tallahassee, FL 32301 Mary C. O'Rourke, Esq. 325 West College Avenue Tallahassee, FL 32301-1499 Chris Mitchell, Esq. Michael D. Giles, Esq. CONSTANGY, BROOKS AND SMITH 1410 AmSouth Harbert Plaza 1901 Sixth Avenue North Birmingham, AL 35203-2602 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana Baird, Esq. General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
The Issue The issue is whether Petitioner is entitled to formal training and education sponsored by the Division of Workers' Compensation, pursuant to Section 440.491(6), Florida Statutes.
Findings Of Fact From 1985 through 1995, Petitioner was employed by Truly Nolen, a pest-control company. In April 1995, Petitioner was a termite supervisor engaged in fumigation work. In this job, Petitioner set up crews and sent different crews to do jobs. He scheduled work and performed actual work on the job, such as dragging sand bags around a building and putting tarps on the roofs of buildings. While so employed on April 26, 1995, Petitioner fell while spreading tarp on a roof. Petitioner injured his back, suffering what the neurosurgeon described as “fundamentally a frozen back,” and was unable even to bend forward and touch his knee caps. Diagnosed with a herniated disc in the lumbar region, Petitioner had surgery on September 12, 1995. Although the surgery repaired the herniated disc, Petitioner’s recovery was prolonged. The surgeon determined that Petitioner reached maximum medical improvement on January 19, 1996. At this time, the surgeon stated that Petitioner was capable of working in light- to medium-duty work with no lifting of more than 50 pounds and no repetitive lifting of 25 pounds or more. The surgeon assigned Respondent a 12 percent impairment of the person as a whole, but later agreed that it was a 16 percent permanent partial impairment. The surgeon believes that Petitioner may have intermittent problems with his back for the rest of his life, but it is not medically probable that he will require surgery or any other form of aggressive intervention. The day after being released by the surgeon, Petitioner met with the branch manager of the Truly Nolen office, out of which Petitioner had worked at the time of his accident. For about one month, Petitioner had been performing part-time, light office duties at this office as part of a work-hardening program. The branch manager offered Petitioner a residential pest-control route, rather than Petitioner’s old job as a termite supervisor. Although not entirely clear in the record, the office appears to have employed only one termite supervisor. By the time that Petitioner was able to return to work, the branch manager had hired another person for the job of termite supervisor. It is, in any event, unclear whether Petitioner would have been able to do his old job anymore, as it required the supervisor to drag heavy tarps over the tops of buildings, as Petitioner was doing when he fell and was injured. Petitioner and the branch manager discussed two routes, but the manager was inclined to give Petitioner the route that Petitioner found less preferable. Petitioner visited one house on the route and determined that the value of the route, as posted in the office, was less than one-half of what Petitioner had been making at the time of the injury. Petitioner then informed his supervisor that he would not take the job due to inadequate money. Petitioner admits that money, rather than the physical demands of the job, was the sole reason for declining the job offer. The most productive pest-control routes in this Truly Nolen office earn $35,000 annually. Petitioner could probably earn $20,000 to $25,000 from the route that the branch manager offered him. Two weeks prior to the hearing, Petitioner started work as a car salesperson at a local Chevrolet dealer. He was earning about $250 weekly and 4 percent of the profit on each car sold. He had sold only one car for a commission of $50. Previously, he had worked on an occasional basis for his uncle driving a mowing tractor and earning $5.25 hourly; however, he had not worked over one week consecutively on this job. At the time of his injury, Petitioner’s average weekly wage was about $800. He was born on January 15, 1966. Petitioner completed his formal education when he finished high school. Petitioner is a certified pest-control technician. Except for some general construction and service work experience, Petitioner’s entire work history consists of his employment with Truly Nolen. The record does not disclose if Petitioner applied to Truly Nolen or its competitors for work as a termite supervisor or pest-control technician. Petitioner has not proved that he is physically unable to work in either position. To the contrary, it is likely that he could do the job as a pest-control technician, given his refusal to take the offer of such a job solely on monetary grounds and the relatively light physical demands of this work. In light of Petitioner’s age, education, work history, transferable skills, previous occupation, and injury, the job offered by the branch manager in January 1996 gave Petitioner a chance to regain as soon as practicable and as nearly as possible his pre-accident average weekly wage. Thus, the branch manager’s offer to take a pest-control route represented suitable gainful employment.
Recommendation It is RECOMMENDED that the Division of Workers’ Compensation enter a final order denying Petitioner’s requests for training and education sponsored by the Division and attorneys' fees. DONE AND ENTERED this 19th day of February, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 19th day of February, 1998. COPIES FURNISHED: Peter C. Burkert Burkert & Hart Post Office Box 2485 Fort Myers, Florida 33902 Attorney Michael G. Moore, Sr. Department of Labor and Employment Security 2012 Capital Circle, Southeast 307 Hartman Building Tallahassee, Florida 32399-2189 Russell Schropp Henderson Franklin Post Office Box 280 Fort Myers, Florida 33902 Edward A. Dion General Counsel Department of Labor and Employment Security 2012 Capital Circle, Southeast 307 Hartman Building Tallahassee, Florida 32399-2189 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 2012 Capital Circle, Southeast 303 Hartman Building Tallahassee, Florida 32399-2189
The Issue Whether the Respondent engaged in an unlawful employment practice contrary to Chapter 760, Florida Statutes, by discharging the Petitioner?
Findings Of Fact The Petitioner, Loreal Bailey, is an African-American woman who was employed as a cashier by the Respondent. One of the tasks that the cashiers were required to do was make a count of their registers at the end of their shift and "drop" the receipts, the cash, and their count of their cash drawer into a safe. The cashier did not have access to the safe. Cashiers were not supposed to let any other employee handle their deposit. On or about January 7, 2003, the Petitioner was on duty, and, at the close of her shift, she was being assisted in closing out her tour by another employee, who helped her count her money. The other employee, Hattie Killingsworth, an African-American woman, dropped Petitioner's package containing the receipts, the cash, and her count of the cash drawer into the safe. A subsequent accounting of the deposits revealed that $400 was missing from the Petitioner's "drop." The Respondent discharged the Petitioner shortly after this incident on January 13, 2003. Killingsworth was also terminated at this time. Both women were terminated for failing to follow company procedures that prohibited an employee from handling another employee's money. The matter was reported to the local sheriff's office; however, no charges were brought. Testimony by the Respondent's managers revealed that the money was most probably taken by a management employee of the company who was video-taped shutting off the security cameras prior to a period when money went missing. Money was missing on more than one occasion. It was surmised by management that this employee had found a way to access the safe. When this employee was terminated, the losses stopped. The general manager, Richard Eschenbacher, testified that the policy of not letting an employee touch another employee's money was not only to protect the employees, but to permit employees to testify about chain of custody of moneys if there were problems. The actions of Killingsworth and Bailey prevented Bailey from being able to testify that she had counted and deposited the money without interference from anyone else. Such testimony is helpful in prosecutions when a thief is caught, and a conviction without such chain of custody evidence is difficult to obtain. The Petitioner presented no evidence showing that the grounds presented by the Respondent for her discharge were pretextual.
Recommendation Based upon the foregoing findings of law and conclusions of law, it is recommended that the Florida Commission on Human Relations enter its final order dismissing the Petitioner's complaint. DONE AND ENTERED this 13th day of July, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2004. COPIES FURNISHED: Loreal Bailey 621 Smith Road Monticello, Florida 32344 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lorraine Maass Hultman, Esquire Kunkel, Miller & Hament Orange Professional Centre 235 North Orange Avenue, Suite 200 Sarasota, Florida 34236 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent discriminated against Petitioner on the basis of sex in violation of Section 760.10, Florida Statutes, when it terminated his employment.
Findings Of Fact Respondent is a large corporate employer with corporate headquarters outside the State of Florida. Pertinent to this proceeding, Respondent has a large manufacturing facility located in Palm Beach County, Florida. Petitioner is a male who was employed by Respondent at its Palm Beach facility between August 1978 and February 1993. Petitioner is a college graduate who subsequently earned a Master's degree in Business Administration (MBA). Respondent first employed Petitioner as a Financial Trainee, which is designated as a Grade 41 on the system by which Respondent designated pay ranges and relative job responsibilities. Respondent promoted Petitioner to a position referred to as Financial Analyst in 1979, which is a Grade 43 position. Respondent promoted Petitioner in 1981 to a position referred to as Senior Analyst, which is a Grade 45 position. Respondent promoted Petitioner in 1984 and assigned him to its Saudi Arabia Program as the Continental U.S. International Administrator, which is a Grade 46 position. Respondent laterally transferred Petitioner in 1986 from the Financial Department into the Human Resources Department to a position designated as Personnel Representative, which is also a Grade 46 position. Respondent promoted Petitioner in January 1989 to a position designated as Senior Resources Representative, which is a Grade 48 position. Respondent informed Petitioner on February 12, 1993, that his employment would be terminated, effective February 28, 1993. Petitioner's base annual salary at the time his employment was terminated was $56,484.00. As of the formal hearing, Petitioner was working for his wife's appraisal company in a nonpaying job. Karen Roberts is a female who has been employed by Respondent at its Palm Beach County facility since June 1980. Ms. Roberts is also a college graduate who subsequently earned an MBA. In addition, Ms. Roberts has been designated as a Certified Compensation Professional by the American Compensation Association. Ms. Roberts first began her employment with the Respondent as a Financial Trainee, Grade 41. She was transferred out of the Finance Department into the Human Resources Department in July 1984 as a Human Resources Representative, which is a pay grade 45. She was promoted to Senior Human Resources Representative in October 1992, which is a pay grade 48. Respondent's upper management determined in 1992 that it was necessary to reduce the number of its employees as part of an overall restructuring of its operations. The reduction in force, which was to be the largest separation of employees that Respondent had ever experienced, was for valid business considerations which are not at issue in this proceeding. The management group set the target for the number of employees in each department of the Palm Beach facility whose employment would be terminated. The management group decided that the Human Resources Department of the Palm Beach facility, of which Petitioner was a part, would be reduced by between 20-25 employees in February 1993. That decision by the management committee is not being challenged in this proceeding. William Panetta was, at the times pertinent to this proceeding, the Respondent's Vice President of Human Resources for the West Palm Beach facility. The management group informed Mr. Panetta in the fall of 1992 of the upcoming reduction in force and gave to him the targets that had been set for the various departments for the West Palm Beach facility. Soon thereafter, Mr. Panetta began meeting with the heads of major departments to devise a procedure for making the reductions in force. Among the senior staff who met with Mr. Panetta was John Roberson, who was manager of Human Resources for non-engineering personnel. Petitioner worked in Mr. Roberson's department from the time he was transferred to its Human Relations Department in 1986 until the termination of his employment in 1993. Mr. Roberson was Petitioner's second line supervisor. At different times, Bob Vogel, Charles Wilson, and John Hopkins served as Petitioner's direct supervisor. Mr. Roberson was asked by Mr. Panetta to prepare a draft of a proposal for the procedure to be followed in carrying out the reduction in force. This draft was to include a method to identify those employees whose employment would be involuntary terminated. Pertinent to this proceeding, Mr. Roberson's draft included a provision for selecting among multiple incumbents when some job positions or functions were being eliminated. In that situation, Mr. Roberson proposed that seniority be the primary factor and that relative performance of the incumbents be considered only if the more senior employee was ranked as a low performer on his or her annual evaluation. Respondent annually evaluated employees such as Petitioner as being either a "T" (top), a "M" (middle), or an "L" (low). The employees were also given annual evaluations by their supervisors called Performance Management Reports, which rated the employees on a scale ranging between unsatisfactory to exceptional. During his entire tenure with Respondent, Petitioner was rated at least as being fully competent on his Performance Management Reports and, at different times, as being either in the "T" or the "M" category. The procedure drafted by Mr. Roberson was never intended to be the final procedure that would be followed in accomplishing the reduction in force. In late 1992, Mr. Panetta presented Mr. Roberson's draft to the senior staff for comment and revision. The senior staff determined that Mr. Roberson's draft overemphasized seniority and was too inflexible. It was determined that such emphasis on seniority would hamper management's efforts to retain the most qualified employees. The Human Resources Department assigned to each of Respondent's major departments a Personnel Support Representative to assist with employee relations and to provide administrative support in personnel matters. As part of the procedure followed for the 1993 layoffs, the Personnel Support Representative for each department reviewed the candidates for layoffs with the Department Head to determine whether the selection was fair and properly documented. The Personnel Support Representative was to provide support only. Each Department Head had the responsibility for determining the employees within a department to be laid off. During the same time period that senior staff was trying to develop the procedure that would be followed for layoffs, Mr. Roberson met with the Personnel Support Representatives and discussed with them the drafted procedure he had prepared. He informed them that the draft was not the final product and asked for discussion. Mr. Roberson discussed with the Personnel Support Representatives the final policies that senior staff adopted before final selections were made and informed them that rigid adherence would not be given to seniority. Respondent has never used seniority as the controlling factor in any previous layoff. The senior staff decided that it would consider the following criteria to determine which of its qualified employees to layoff: documented poor performance, the elimination or consolidation of different positions, relative performance among the candidates, and seniority. Mr. Panetta determined that those employees of the Human Resources department should be "generalists" who are capable of performing a wide range of responsibilities as opposed to specialists. Respondent's plan was to either eliminate functions that had been performed by specialists or to consolidate those functions with other specialized functions. The employees in Human Resources who would still be employed would be required to take on new responsibilities and to perform tasks that had previously been performed by specialists. In the Human Resources department, an employee would have to assume responsibilities in labor relations, employee relations, and compensation. Mr. Panetta decided after conferring with Mr. Roberson that the Management Training, Placement and Compensation section in the Human Resources department for non-engineering personnel would be eliminated. Senior Human Resource Representatives and Human Resource Representatives were candidates for layoffs and were put into a resource pool. The employees in the resource pool were thereafter considered for other positions by comparing their qualifications with those of employees whose positions were not being eliminated. If an employee in the resource pool was considered to be more qualified than an employee whose position was not being eliminated, the more qualified person in the resource pool would be retained to fill the existing job and the incumbent employee would have his employment terminated. Petitioner and Karen Roberts were assigned to the compensation function at the time of the layoffs, but their positions were eliminated as a result of the layoffs. Petitioner and Karen Roberts were placed in the resource pool. Dave Swanson was employed as a Personnel Support Representative in the Human Resources Department prior to the reduction in force. Mr. Swanson's position was not eliminated, but it was determined that there were employees in the resource pool, including Petitioner and Karen Roberts, who were more qualified than Mr. Swanson. Respondent selected Ms. Roberts to fill the position that had been filled by Mr. Swanson. Petitioner's employment with Respondent was terminated. Petitioner asserts that Respondent discriminated against him on the basis of his sex in deciding to retain the employment of Ms. Roberts and to terminate his employment. There is no assertion by Respondent that Petitioner was an incompetent employee. To the contrary, Respondent considered Petitioner to be a competent employee, which is why he was a candidate to fill Mr. Swanson's former position. At the time of the layoffs, John Hopkins was the Manager of Technical Development and Compensation and the direct supervisor of Petitioner and Ms. Roberts. While Mr. Panetta had the ultimate responsibility for deciding whether Petitioner or Ms. Roberts would be retained in Mr. Swanson's former position, he relied heavily on Mr. Roberson's recommendation in making that decision. Mr. Roberson in turn relied on his own knowledge of the respective performances of these two employees and on information that had been given him by Mr. Hopkins. Mr. Hopkins believed that Ms. Roberts was a more valuable employee than Petitioner. Mr. Hopkins testified that Petitioner failed to timely complete certain assignments, that certain aspects of his performance was not satisfactory, and that he had experienced problems working with others. Mr. Hopkins received separate complaints from Joe Bressin, who was in charge of Executive Compensation, and Henry Ugalde, who was in charge of the Equal Employment Opportunity function, that Petitioner had not rendered satisfactory assistance to them. Petitioner did not meet all of the interim deadlines for preparation of a negotiations book that was being complied for use in labor negotiations. Several of Petitioner's supervisors met with him during his tenure with Respondent to discuss his perceived deficiencies and to review his assignments. Mr. Roberson was aware of these deficiencies at the time he recommended to Mr. Panetta that Ms. Roberts be selected to fill Mr. Swanson's former position. Mr. Hopkins considered Ms. Roberts to be a "solid performer" who was enthusiastic, worked well with others, and was capable of performing a wide range of tasks. Ms. Roberts prepared a book for other employees in the compensation function that detailed the procedures involved in performing hourly compensation duties relative to collective bargaining agreements. In addition, Ms. Roberts was chosen by Mr. Panetta to assist Respondent's negotiating team during negotiations with the labor unions for the 1992-1993 labor contract. Ms. Robert's worked on a complex computer program that computed the costs to Respondent of various collective bargaining proposals. Ms. Roberts was chosen for this assignment because Mr. Hopkins believed her to be the best employee to assume this responsibility. Mr. Hopkins selected her because of her competence, her enthusiasm, her ability to maintain confidential information, and her willingness to work irregular hours. Gender was not a factor in selecting Ms. Roberts for this assignment. Ms. Roberts performed with distinction the duties that had been assigned to her as a member of the negotiating team, thereby favorably impressing Mr. Roberson and Mr. Panetta. Mr. Roberson was aware of Ms. Roberts' job performance at the time he recommended to Mr. Panetta that she be selected to fill Mr. Swanson's former position. Mr. Roberson and Mr. Panetta did not rely heavily on their most recent job evaluations, which were the only documents they reviewed, nor did they consider it significant that Petitioner was in a position that is designated as pay grade 48 when his last evaluation was written and that Ms. Roberts was in a position designated as pay grade 46 when her last evaluation was written. 1/ Mr. Roberson and Mr. Panetta considered the responsibilities and job duties of these two positions to be identical. The relative job performances of Petitioner and Ms. Roberts were evaluated by Mr. Roberson and Mr. Panetta taking into consideration the future demands of the job and were based, in large part, upon direct experience with the two employees. There was no written documentation of their rationale for selecting Ms. Roberts to fill Mr. Swanson's former position. Petitioner established that Mr. Roberson occasionally made comments about attractive female employees and that he seemed to prefer the company of certain female employees, one of whom was Ms. Roberts, at social events. While due consideration has been given this evidence, it is found that the greater weight of the evidence established that Respondent had legitimate, nondiscriminatory business considerations for the employment decision that was at issue in this proceeding. These considerations were not shown to be pretextual. Petitioner failed to establish that Respondent discriminated against him on the basis of his sex by its decision to replace Mr. Swanson with Ms. Roberts instead of with Petitioner. The petition Petitioner filed before the Florida Commission on Human Relations contains an allegation that Respondent discriminated against him on the basis of age. Petitioner abandoned that allegation at the beginning of the formal hearing. The petition Petitioner filed before the Florida Commission on Human Relations also contains an allegation that Respondent discriminated against him by failing to rehire him or recall him after his employment had been terminated. There was no evidence to support that allegation.
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 that adopts the findings of fact and conclusions of law contained herein and that dismisses the Petition for Relief filed by Petitioner. DONE AND ENTERED this 9th day of January, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 9th day of January, 1995.
Findings Of Fact For purposes of Respondent's Motion to Dismiss and Relinquish Jurisdiction the relevant factual allegations set forth in Petitioner's complaint and the Petition for Relief are accepted as true. On June 26, 1992, at the time Petitioner left employment with Respondent, Petitioner had been employed by Respondent for approximately ten years. Petitioner's last position with Respondent was Division Manager within the sales organization. Petitioner was the highest ranking female employee in the sales organization. Petitioner's employment record with Respondent was excellent and included six promotions, substantial pay increases, and positive performance evaluations. From December 1991 until June 26, 1992, Alan Casey was Petitioner's direct supervisor. Petitioner's office was located in Tampa, Florida. Casey's office was located in Kennesaw, Georgia. The only other employee located in Casey's office was his secretary, Lynda Cunningham. While being supervised by Casey, Petitioner, was aware that of the five Division Managers reporting to Casey, she was the only female. The Division Managers worked independently within separate assigned territories and did not have day to day contact with each other. However, despite this geographic separation, Petitioner met with Casey and the other District Managers at two quarterly regional meetings and spoke with them during weekly staff meetings conducted by telephone conference. In addition to these meetings, Petitioner occasionally spoke to her male peers to share ideas concerning work. While Casey was her direct supervisor, Petitioner knew that her sales results were higher than the other male Division Managers reporting to Casey. Between March 3, 1992, and May 12, 1992, notwithstanding Petitioner's performance in sales, Casey placed ten memoranda critical of Petitioner's performance in her personnel file. At the time Petitioner received these memoranda, she believed that they were unjustified, harsh and abusive. Petitioner further believed that the memoranda were factually inaccurate and criticized her for things out of her control. At one regional meeting, Petitioner heard her peers express their dissatisfaction with Casey as a supervisor. However, Petitioner did not participate in this conversation and never discussed with the other Division Managers about how Casey was treating her and the excessive number of negative memoranda he had written to her. Prior to her resignation, Petitioner believed that Casey treated her unfairly by (1) failing to offer assistance to Petitioner as he offered to male Division Managers and (2) conducting unannounced visits to Petitioner's sales marketing area which he did not do with male Division Managers. Moreover, before resigning from her position with Respondent, Petitioner believed that Casey "undermined [her] efforts in [her] area of responsibility." Petitioner was aware that Respondent had a policy for resolving disputes which required employees to address issues of concern with their direct supervisor. If these initial efforts to resolve disputes failed, an employee could appeal to a higher official in the company. With respect to complaints involving discrimination based on race or sex, the Respondent's policy required that employees refer such matters to the company's Human Resources Office. Petitioner met with Casey to discuss her concerns regarding what she perceived to be his unfair treatment of her. However, her efforts to resolve the situation at this level were unsuccessful. Petitioner chose to resign from her position with Respondent, rather than utilize the company's dispute resolution procedure. Petitioner's resignation, which became effective June 26, 1992, was because of the criticism and lack of support from Casey. On May 13, 1994, almost two years after Petitioner's resignation, Petitioner received a telephone call from Lynda Cunningham, Casey's secretary during the time he supervised Petitioner. Cunningham informed Petitioner that she had overheard a telephone conversation between Casey and Rick Elsperman, Director of Human Resources for Respondent, in which Casey requested instruction and assistance in documenting a female manager's personnel file to force her resignation or to support her termination. During the May 13, 1994, telephone conversation, Cunningham further informed Petitioner that subsequent to Casey and Elsperman's conversation, Casey directed Cunningham to forward all of Petitioner's personnel memoranda to Elsperman for approval before sending them to Petitioner. According to Cunningham, this procedure was not followed for male managers. Petitioner had no knowledge of the information provided by Cunningham prior to May 13, 1994. While Petitioner was employed by Respondent, she had concerns related to the company's treatment of and attitude toward women. First, Petitioner perceived that the Respondent's management did not make efforts to train and support the advancement of females and minorities. Second, Petitioner became aware that several females in the retail merchandising company of the organization had been given additional job responsibilities without comparable salary increases. In addition to her perceptions about Respondent's treatment of females, in 1987, Petitioner became aware that her salary as a district manager for Respondent was lower than that of male subordinates holding lower sales positions, with less experience, tenure, and responsibility. As a supervisor, Petitioner had access to the personnel files of the employees who reported to her which documented that a male subordinate's salary was higher than Petitioner's salary. Petitioner initiated an internal inquiry and the company chose to raise her salary to a level comparable with men in the same position with the same tenure and responsibility. Prior to her resignation, on one occasion, Petitioner overheard a conversation in which a district manager with Respondent stated that management's objective was to hire young, white, male degreed persons for starting level positions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Motion to Relinquish Jurisdiction is GRANTED. ORDERED that the Division of Administrative Hearings file be CLOSED. RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the petition of Tammy M. Young. DONE and ORDERED this 3rd day of September, 1996, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 September, 1996.
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 The issues to be resolved in this proceeding concern whether the Respondent, Lehigh Portland Cement Company/Furniture Division ("Lehigh"), discriminated against the Petitioner on account of her race (white) by discharging her from employment following a verbal altercation with a black co- employee in which the Petitioner allegedly uttered racial slurs directed at or concerning that black co-employee and whether the Petitioner was discriminated against on account of her sex (female) and because of a perceived interracial, personal relationship with another co-employee, who is black.
Findings Of Fact The Petitioner is a former employee of Lehigh. She was discharged by that concern on August 4, 1989 as a disciplinary measure in response to her utterance of racial slurs concerning a black co-worker in the vicinity of the factory floor on Lehigh's premises immediately before the workday began on the date in question. She ultimately filed a charge of discrimination raising the issues and commencing the proceedings referenced in the above Statement of Issues and Preliminary Statement. Lehigh is a furniture manufacturer located in Marianna, Florida. Its plant consists of several large buildings where employees assemble and finish furniture. Lehigh employs somewhat over 400 persons at that factory. On the morning of August 2, 1989, Dorothy Hall and Major Hallmon, both black co-workers of the Petitioner, were having a discussion concerning union business just before the workday commenced on or in the vicinity of the shop floor of Lehigh's factory. Ms. Hall was a shop steward for the union in the paint shop, where the Petitioner was employed. Mr. Hallmon was the chief union steward for Lehigh as a whole. Ms. Hall was expressing concern to Mr. Hallmon about employees in her department or "shop", including the Petitioner, avoiding her, in her capacity as shop steward, and presenting problems directly to Mr. Hallmon when issues or incidents arose which they felt involved the responsibility of their union representatives. Ms. Hall mentioned the Petitioner as one of the employees who had complained about her to Mr. Hallmon. While Ms. Hall was making these comments to Mr. Hallmon, the Petitioner approached them and interrupted their conversation, getting into a verbal altercation with Ms. Hall. Mr. Hallmon attempted to get the Petitioner to cease arguing and yelling. Lehigh's personnel management procedures require that if employees engage in a physical or verbal altercation in their work area, they must cease arguing or fighting and move the disagreement to their supervisor's office for their supervisor to handle with them in an adult manner. Ms. Hall retreated from the confrontation with the Petitioner and walked into the office of George Williams, the supervisor of both of them. The Petitioner then made loud comments which were overheard by a number of co-workers. During their argument, or about the time Ms. Hall walked away in the direction of the supervisor's office, she referred to the Petitioner as a "stupid, white fool" or a "white fool". When the Petitioner walked away from the site of their verbal altercation, a white co-worker, Annette White, told the Petitioner that "Dorothy said she is going to whip your tail" or words to that effect. At this point, the Petitioner responded "I am not afraid of no black ass nigger." The Petitioner's comments were made in a very loud voice and were overheard by a number of co-workers nearby although Ms. Hall, herself, did not hear them nor did Mr. Hallmon. Anne Hamlin, a white woman, who worked in the Petitioner's department, heard the Petitioner say the above-quoted comment. Ms. Hamlin admonished the Petitioner that she should not be calling people by that name. Wilford Pittman, a black man, observed Mr. Hallmon trying to calm the Petitioner during or shortly after her verbal altercation with Ms. Hall. He heard the Petitioner use the word "nigger" and state words to the effect that "I am not scared of that nigger". Odell Harrison, a white man, also heard the Petitioner state "I am not scared of that nigger". Ron Baker, a black man, heard the Petitioner reference Ms. Hall as "a black son of a bitch". The Petitioner, herself, admitted that she stated "I am not afraid of no black ass nigger". The Petitioner immediately joined Ms. Hall in the office of the supervisor after the above incident. Mr. Jack Toole, a crew leader, was also present in the office on that occasion. The argument was renewed once the Petitioner and Ms. Hall were together in the supervisor's office. During the course of their renewed argument, in one of the Petitioner's comments, she used the words "I am white" to which Ms. Hall retorted "No you ain't, your shorts is white". Mr. Toole, who was present during the argument in the supervisor's office, recalls Ms. Hall telling the Petitioner that she was "a white fool for fooling around with Major Hallmon and ruining his life". He also recalls Ms. Hall first coming into the office when he was already present and stating words to the effect that "if we didn't do something about that white woman out there, she would do something with her". Mr. Williams remembers Ms. Hall stating "you make an old fool out of Major". The Petitioner then made a comment to the effect that Ms. Hall should stay home and tend to her "thieving husband" and stay out of other people's business, whereupon Ms. Hall picked up an ashtray as though to strike the Petitioner. Mr. Toole grabbed her arm and took the ashtray from her hand, replacing the ashtray on the desk. The signal to begin work then sounded and Mr. Williams instructed both antagonists to leave his office and begin work. Lehigh has a very specific policy prohibiting racial slurs. That policy provides: Further, it is a stated policy of Lehigh to prevent and prohibit discriminatory conduct in the work environment including statements or actions which could be interpreted as, racially, sexually, religiously or ethnically based, sexual harassment or any other discriminatory harassment or conduct with respect to co-employees, subordinate employees, or supervisors. Any employee who is found to have violated this policy will be subject to discipline, up to and including discharge. This equal employment opportunity policy was posted on all of the company's bulletin boards in the work place in early 1987 and was so maintained and posted forward of that time. Lehigh's management had experienced two disciplinary incidents in the past where two employees, Mr. Cecil Sims and Mr. Coy Jackson, both white, had used the word "nigger", in a conversational context with two black co-employees or in a circumstance where those employees overheard the comment, although it was not uttered in the course of an argument or verbal altercation. Those employees were disciplined by Lehigh for uttering that word, which is found to constitute a "racial slur". Shortly thereafter, during contract negotiations with the union in November of 1988, union representatives informed Lehigh's management that they felt that Lehigh was not enforcing its anti-discrimination policy as vigorously as it should, with the Sims and Jackson incidents used as examples of the union's perception that management's disciplinary practices with regard to the use of this racial slur by employees was too lax. Although Lehigh's management took the view, and still does, that it had taken appropriate disciplinary action in those two prior incidents, Lehigh also agreed with union representatives that such racial slurs constituted a serious offense and agreed that the company would thenceforth enforce its discrimination policy more vigorously. Lehigh's policy, with regard to racial slurs, includes its view that the word "nigger" is one of the most severe or offensive words used to disparage or embarrass a person on account of that person's race. This interpretation of its anti-discrimination policy is a reasonable one because it was established in the record that that word, dating from the time of slavery in America forward to the present time, has been used essentially as a term of disparagement. It is one of the few words in the American vocabulary most likely to demean the person to whom it is directed, to arouse ill will between the person employing the word and the person or persons to whom it is directed, or about whom it is referenced, and even to incite violence between them. It is rational for Lehigh to consider that the use of that racial slur is one of the most severe offenses to which its anti-discrimination policy is directed and designed to prohibit and prevent. In carrying out its disciplinary policy and procedures, Lehigh investigates alleged violations of company rules or policies to find out what occurred and to determine if a rule or policy was, indeed, violated. That customary procedure was performed in the instant case situation. If the management of Lehigh determines that an employee has violated a rule or policy of the company, it evaluates the nature of the offense and views it against the past employment and disciplinary record of the employee to determine what discipline, if any, is appropriate. The management of the company considers the severity of the offense; whether the violation was a willful one; whether it was done with malice; whether the employee under investigation was the aggressor in the incident; the degree of provocation for that employee's behavior; whether the employee expresses or demonstrates any remorse for the occurrence; and the employee's past general work history and disciplinary record. All of these factors are weighed by the company's management in determining what discipline is appropriate. The company customarily has viewed the disciplinary history of an employee as a very significant factor in determining the appropriate discipline to be imposed for a violation of company rules or policies under review as to that employee. In imposing discipline for infractions of company rules or policies, Lehigh employs progressive discipline whenever possible in order to attempt to persuade the employee to change his or her behavior which has resulted in the violation. If an employee exhibits a pattern of rule infractions, especially infractions of the same rule or type of rules, the company imposes a progressively harsher discipline. When considering an employee's past disciplinary record, the company considers only disciplinary violations which have occurred within the past nine months, however. This is because the company's union contract, by which it is bound in terms of its personnel policies and procedures with regard to its union-member employees, contains a provision which requires this restriction. This provision has been applied to all hourly employees of Lehigh for the life of that contract or approximately the past 18 years. It is thus a regular and customary past practice of the company for purposes of the terms of its union contract. The disciplinary measures, which the company imposes for infractions of its rules and policies, range from an oral reprimand (the imposition of which is recorded in the employee's personnel record even if delivered verbally); a written reprimand; suspension from employment for a discreet time period; and permanent discharge from employment. Mr. Albert Berger is the Vice President of Operations for Lehigh. He is responsible for personnel management, among other duties. His personnel management duties include the investigation of alleged infractions of the company's personnel policies and rules, interpreting the company's disciplinary policies and procedures and arriving at decisions about how to discipline employees. Mr. Berger investigated the subject incident involving the Petitioner and Ms. Hall, ultimately determined how to discipline each employee and imposed that discipline. He followed the company's disciplinary policies and procedures in deciding how to discipline the Petitioner and Ms. Hall concerning the incident of August 2, 1989. Upon learning of the incident between those two employees on August 2, 1989, Mr. Berger commenced an investigation of the matter that same day. After making a preliminary inquiry into the matter, he elected to suspend the Petitioner from work sometime on the morning of August 2, 1989, such that she left the company premises under suspension shortly before Noon. He continued his investigation that afternoon, conducting taped interviews with employees and supervisors who had witnessed the altercation. Those witnesses later signed summaries of their statements to Mr. Berger. The Petitioner returned to the factory between 1:00 and 2:00 on the afternoon of August 2, 1989, while Mr. Berger was still concluding his interviews of other employees and supervisors. He gave the Petitioner an opportunity to relate her version of the incident to him. During her taped interview, the Petitioner was very loud and hostile in her demeanor and statements and responses to his questions. She repeatedly employed the term "nigger" with reference to Ms. Hall and her version of the occurrence in question. During the course of the hearing, the Petitioner attempted to explain her behavior during the taped interview with Mr. Berger by insinuating that she was under the influence of alcohol when she exhibited loud and hostile demeanor and comments during the interview, including the use of the term "nigger". She attempted to substantiate this claim by stating that she had consumed several six-packs of beer between the time she left the company premises under suspension shortly before Noon on August 2, 1989 and the time of her interview with Mr. Berger at approximately 2:00 that afternoon. She did not, however, appear drunk or under the influence of alcohol to Mr. Berger when he interviewed her nor did her verbal statements and responses depicted on the tape of that interview justify a finding that she was drunk or under the influence of alcohol at the time of the interview. Moreover, this explanation of her conduct during the interview is self-serving and is thus deemed not credible. Upon concluding his investigation and in the process of determining what, if any, discipline to impose on the two protagonists, Mr. Berger reviewed and considered the employment histories of both the Petitioner and Ms. Hall. Ms. Hall's disciplinary record was a good one. Her most recent disciplinary offense had occurred 13 years before the August 2, 1989 incident. She had been disciplined only one other time, approximately 16 years before the August 2, 1989 incident. Under its union contract, Lehigh was prohibited from considering those two disciplinary incidents in deciding whether and how to impose discipline for the current August 2, 1989 occurrence because those disciplinary infractions occurred more than nine months prior to the August 2, 1989 incident. In addition to the fact that her disciplinary record was a good one with no disciplinary infractions for more than a decade, Ms. Hall readily expressed remorse for her involvement in the incident, apologizing to Mr. Berger and promising to let no such occurrence happen in the future. Because of this and because Lehigh's management, through Mr. Berger, viewed the racial slur "nigger", loudly uttered by the Petitioner, as more egregious than the remark "white fool", "old fool", or "you're not white, your shorts are white", made by Ms. Hall, a lesser discipline was imposed upon Ms. Hall. Mr. Berger imposed a written warning upon Ms. Hall for picking up the ashtray as a threatening gesture directed to the Petitioner and a verbal warning upon her for the above- quoted name calling. This is not a minimal sanction. Written memoranda of both types of discipline are made a part of such an cmployee's personnel record. Concerning the discipline imposed upon the Petitioner, the record establishes that on June 23, 1989, less than two months prior to the incident concerning Ms. Hall, the Petitioner received a three-day suspension for interference with company operations through the use of abusive language directed at another employee. This incident involved the Petitioner painting the words "High Ass" on the door front of a piece of furniture and sending it down the assembly line so that it could be viewed by the co-worker to whom the words were directed. The Petitioner admitted that the words were directed at a black co-worker who was farther down the assembly line. In conjunction with her suspension, Mr. Berger warned her that if she continued to engage in name calling or racial slurs, the consequences for the next such incident would be more severe, including the potential loss of her employment. Mr. Berger concluded and the record establishes that the Petitioner's conduct on August 2, 1989 clearly violated the company's explicit policy against racially-discriminatory conduct in the work place, as that policy is quoted in the above Findings of Fact. The Petitioner's conduct on August 2, 1989, along with the incident leading to her earlier suspension for similar conduct, establishes a pattern of abusive, racially-discriminatory behavior towards her co-workers. Further, the Petitioner was shown to be the aggressor in the incident, interrupting the private conversation between Ms. Hall and Mr. Hallmon, and making statements or comments which incited the ensuing argument and name-calling episode. The Petitioner showed no remorse for her behavior. She was still hostile and inflammatory in her description and reaction to the occurrence concerning Ms. Hall in her interview with Mr. Berger hours later, when she had every reason to believe that her job was at stake with a strong resulting incentive to be conciliatory and remorseful in her reaction and relation of her version of the occurrence to Mr. Berger. Because of these differences in her conduct, her past record, and the severity of her infraction of company policy, as opposed to that of Ms. Hall, and because of Ms. Hall's relative demeanor and reaction to the occurrence and the subsequent summons by Mr. Berger to account for it, Mr. Berger decided, after considering all of the above factors, to convert the Petitioner's suspension to a termination. Discharging the Petitioner for the August 2, 1989 violation in consideration of the above factors related to her conduct, demeanor and past record, as opposed to that of Ms. Hall, was shown to be reasonable, pursuant to Lehigh's customarily-followed "progressive discipline" policy. The differences in severity between the actions of the Petitioner and Ms. Hall, the differences in their personnel histories, the differences in the circumstances of their actions and their demeanor and conduct after the occurrence with regard to it support the differences in the discipline imposed upon them. In attempting to establish a prima facie case of disparate treatment and discrimination related to her termination, the Petitioner employed in her case the examples of Coy Jackson, a white employee and crew leader, being disciplined, but not terminated for using the term "nigger" directed at a black co-employee, Rudolph Townsend, and the similar example of Cecil Sims, a department supervisor, who is also a white man, using the term "nigger" in the presence of a black co-employee. Mr. Sims was also not terminated, but was given a lesser level of discipline. Concerning the Jackson and Sims incidents, the record establishes that in 1988, Coy Jackson spoke of Mr. Townsend, the black employee, who had complained of being cold, as follows: "Get that nigger a coat before he freezes to death." Mr. Sims, a supervisor in that same department, investigated that incident. During Mr. Sims' investigation, he questioned the employees involved about the name calling and the use of the words "black" and "nigger". Mr. Sims stated to Mr. Townsend that there were two names "you all" (meaning black people) could be called-"black" or "nigger"-and he then asked Mr. Townsend which he preferred to be called. Mr. Townsend responded that he simply wished to be called by his own name. Mr. Townsend complained about Mr. Sims' comment to him; and Mr. Berger investigated that incident, as well. He ultimately decided to give Mr. Sims a verbal warning concerning it and admonished him that he was never to use the word "nigger" again in any context and that the next incident, when it occurred, would result in his discharge. The discipline imposed on Mr. Sims was based upon the fact that Mr. Sims readily expressed remorse for the incident, that he had a long, unblemished career with Lehigh, and was then near retirement. He had had no prior history of uttering abusive language, name calling, or the use of racial slurs in the work place. Moreover, the incident occurred in Mr. Sims' office in a normal conversational tone; it was not shouted or uttered loudly on the factory floor in the presence of a number of other employees. Mr. Jackson, the crew leader who made the remark concerning the coat, was also given a verbal warning for use of the word "nigger". The imposition of a verbal warning as discipline for Mr. Jackson was directly related to the fact that Mr. Jackson had personally apologized to Mr. Townsend for making the remark even before the occurrence had been related to Mr. Berger and any investigation of the matter instituted. Moreover, he had made the comment quietly to one other employee and did not shout it in the work place before a number of other employees. Further, these two incidents occurred in February of 1988 before Lehigh elected, at the urging of the employees' union, to more vigorously enforce its policy against racial slurs, which vigorous enforcement policy it has uniformly pursued since that time. These incidents were thus not proven to be similar to the incidents involving the Petitioner and her employment and disciplinary record. Neither involved the disciplining of a black employee differently than a white employee. The Petitioner, Mr. Sims and Mr. Jackson are white. The less severe discipline imposed on Mr. Sims and Mr. Jackson was rationally related to the mitigating circumstances described above, rather than to their status as men or white men. It is also noteworthy that several years before the Petitioner's discharge, a white man employed in Lehigh's loading department, in the course of a conversation with a black employee, held up a piece of rope, apparently tied as a hangman's noose, and told the black employee that he would show him what use was made of rope in the white employee's home town. The black employee, at this juncture, hit the white employee with his fist. Mr. Berger investigated that incident, as well. Although it was alleged to him that the white employee had used the term "nigger", Mr. Berger was not able to identify a disinterested witness who would actually establish that the term had been used. In any event, however, Lehigh's management, through Mr. Berger, determined that this was a serious, malicious violation of the company's anti-discrimination policy. He promptly discharged the white employee for this conduct. The black employee, in turn, was also discharged for engaging in violence, which the company has uniformly considered to be one of the most severe violations of its disciplinary rules. Each of those employees was individually disciplined for their respective violations of company policy, based upon the circumstances peculiar to each. Neither of those incidents is similar to the incident for which Lehigh discharged the Petitioner. The discipline imposed on each of them was shown to be consistent with the company's customary anti-discrimination policy. None of the exemplary incidents described above serve to establish that white employees, male or female,(or, for that matter, black employees) have been subjected to a pattern of discriminatory disciplinary measures, including termination. They, likewise, do not show that any of those employee groups were accorded favored treatment. Rather, the facts regarding these incidents show that the company has pursued a pattern of non-discriminatory employee discipline. The employees who were disciplined in these three incidents were not shown to be similarly situated to the Petitioner, in terms of the infraction she committed, her past record, the circumstances surrounding her infraction and the investigation afterward, versus the underlying reasons for the various disciplinary measures imposed on these other employees, related above. During the hearing, the Petitioner first raised the issue of alleged discriminatory treatment because of a perceived close interracial relationship between her and Mr. Hallmon. Accordingly, she amended the Petition, ore tenus, without objection. Mr. Hallmon and the Petitioner had apparently become close friends at the point when he asked her to be his assistant in his position as chief union steward. She accepted the position. Mr. Hallmon indicated that this was because of his concerns about tensions between black and white employees. He wished a white employee to be his assistant to, as he termed it, "balance things out". That association began approximately three years ago. Mr. Hallmon and the Petitioner customarily would spend their lunch period together on frequent occasions to discuss union business. They sometimes met after work, in the parking lot next to the factory, to discuss union business because, as Mr. Hallmon put it, he maintained his union business office in the trunk of his car. The two also met many mornings prior to work for donuts and coffee. Their apparent friendship is corroborated by the fact that Mr. Hallmon elected to urge one of the witnesses to the Petitioner's behavior on August 2, 1989 to conceal her knowledge of it. He stopped Anne Hamlin in the parking lot on the day of the incident and told her that she should say nothing about it. The Petitioner has been engaged in contesting her discharge through the union grievance procedure or the administrative process before the Commission on Human Relations and the Division of Administrative Hearings for more than a year and one-half as of the time of hearing. However, she never had complained prior to the day of hearing that her friendship with Mr. Hallmon or any perceived close, personal interracial relationship between her and Mr. Hallmon had been involved in the reasons for her discharge or any discriminatory treatment she believed had been imposed upon her. Mr. Hallmon contended at the hearing that 80% of the approximately 400 workers at Lehigh had made comments about their relationship but, upon questioning about this testimony, was only able to relate two specific comments which had been made to him concerning his and the Petitioner's relationship. Neither of these comments were made by management-level personnel of Lehigh. Moreover, both the Petitioner and Mr. Hallmon, as union representatives, were acquainted with procedures for bringing a grievance to the attention of management, concerning discriminatory treatment, or any other basis for a grievance and yet neither had complained concerning any perceived discriminatory treatment to management. The only instance in which management might have gained any knowledge of their alleged relationship, other than personal observation, was from a conversation between Mr. Hallmon and Mr. Berger on one occasion when Mr. Hallmon asked Mr. Berger whether there was any violation of company policy if two people, black and white, or male or female, have lunch together. Mr. Berger responded by stating, in effect, that it was not any of management's business or anyone else's business concerning which employees had lunch together. Mr. Berger, however, upon learning that Mr. Hallmon had an apparent concern about the perception which management or co-employees might have concerning his and the Petitioner's relationship, did advise him to remember that "...this is the deep south...and I wouldn't want any of these rednecks catching up with you". When asked if he could recall any discussions between management personnel concerning the amount of time Mr. Hallmon and the Petitioner spent together, Mr. Berger answered "no, it's none of our business". Although Mr. Berger had observed the Petitioner and Mr. Hallmon together on several occasions, he felt that was none of his business as a manager of the company. Neither body of testimony, appearing at pages 49, 50 and 90 of the transcript nor any other testimony or evidence in this record, establishes that management had any knowledge of any pervasive discriminatory pattern of behavior in the work place by co-workers toward the Petitioner and Mr. Hallmon, if such indeed existed, which was not proven. It was also not established that management had any concern with any real or perceived relationship between the Petitioner and Mr. Hallmon and it was not demonstrated that it had any effect on the decision to discipline the Petitioner nor on the severity of the discipline imposed. After her termination, the Petitioner attempted to secure employment through the services of Job Services of Florida by application of August 28, 1989. Job Services referred her to Russell Corporation on September 8, 1989 and to Wal-Mart on September 21, 1989. She applied for employment unsuccessfully at both places. These were the only attempts the Petitioner made to obtain employment from the time of her August 2, 1989 termination until the hearing. Her listing, as available for employment, with Job Services of Florida became inactive on November 30, 1989. It was not established that she sought to reactivate that listing until just prior to the hearing. During the period of her unemployment, there were opportunities to seek employment which she did not avail herself of. On the date of the hearing, there were 22 jobs with private employers and 15 jobs with public employers listed with Job Services of Florida for which the Petitioner could have qualified to apply. She contended that she had looked in the help-wanted advertisements in a weekly newspaper for jobs, but there were none for which she was qualified. Local papers published in Jackson, Calhoun and Liberty counties, in the immediate vicinity of the Petitioner's residence in Altha, reveal that there were a number of advertisements for jobs during her unemployment period which she could have qualified to apply for and possibly to secure. The Petitioner's payroll records for 1988 reveal seven pay periods out of 52 when her total hours equaled or exceeded 50 hours. There were seven pay periods when she worked fewer than 40 hours per week. The average hours worked weekly during 1988 were 42.2. The highest gross pay received in 1988 was $375.76 per week, and the lowest weekly gross pay was $98.56. Her weekly gross pay on an average basis for 1988 was, thus, $273.24. The Petitioner worked 36 pay periods in 1989. She worked more than 40 hours in only eight of those weekly pay periods. The time in excess of 40 hours in these eight pay periods varied, with 5.5 hours being the largest number of hours in excess of 40 hours worked for a weekly pay period; and .3 hours was the lowest number of hours in excess of 40 hours worked for a weekly pay period. In 15 of these 36 pay periods, the Petitioner worked fewer than 40 hours. The average hours per pay period for 1989 were, thus, 33.98. She received overtime pay in eight pay periods. Her highest gross salary for any pay period in 1989 was $309.28. Her lowest gross salary for a pay period in 1989 was $51.28. Her average gross pay for 1989 was, thus, $220.72 per week. The average weekly gross pay for the entire period of her employment was $246.12. She earned $6.41 per hour at the time of her discharge. Had she remained employed, this would have increased to $6.63 per hour on December 16, 1989 and to $6.83 on December 16, 1990. She was eligible for two weeks of paid vacation per year since she had been employed for three years, and eight paid holidays per year. Federal income tax, social security, and union dues were withheld from her gross weekly pay. In 1988, income tax withholding totaled $1,022.80; social security totaled $1,066.98; and union dues totaled $110.00. In 1989, federal income tax totaled $513.97; social security totaled $596.76; and union dues totaled $96.00 for the 36 pay periods she worked in 1989. Lehigh was self- insured for health insurance and any amounts exceeding the employee contributions were to be paid by Lehigh. The employees, including the Petitioner, contributed $7.50 per week towards health insurance. Her payroll records reveal, however, that she ceased participating in the employer-provided group health insurance after the seventh pay period of 1989. In arriving at the above Findings of Fact, it has been necessary, to some extent, to reject the testimony of the Petitioner and Mr. Hallmon. This is because the Hearing Officer finds the testimony of other witnesses to the argument between the Petitioner and Ms. Hall and the surrounding circumstances and events to be more credible. The testimony of the other witnesses to these events was accepted because of their basic agreement on the significant circumstances concerning the occurrences in question and the fact that these other witnesses were demonstrated to have no reason to shade the truth concerning the occurrences and the underlying circumstances, including the fact that these witnesses, whose testimony has been accepted as more credible, are of both races involved. The Petitioner, however, is interested in the litigation and admits using the words "black ass nigger" and her tape-recorded statements made the same day of the argument in question are corroborative of the statements, behavior and demeanor on the part of the Petitioner reported by the other witnesses who have been found to be more credible and who are named in the above Findings of Fact. It is found that Mr. Hallmon's close relationship with the Petitioner might have influenced his recollection of the events in question. More significantly, his effort to actually prevent Ms. Hamlin from relating her knowledge about the incident is evidence of a bias in favor of the Petitioner. Moreover, the Petitioner's testimony about alleged recent job-search efforts was impeached because in her deposition taken approximately a week prior to hearing, she repeatedly asserted that the potential jobs at Russell and Wal-Mart were the only ones she had sought, although she maintained at hearing that she had also applied for work at Oglesby Nursery and McDonald's two or three weeks prior to hearing. She offered no explanation of why she did not mention job applications allegedly made less than a month prior to her deposition testimony. It is simply not credible that she would have forgotten those applications if, indeed, they had been made, especially since she was repeatedly asked about that subject matter at her deposition. Thus, her testimony about applying for employment with the two additional employers is deemed not credible.
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 therefore recommended that a Final Order be entered by the Florida Commission on Human Relations finding that the Petitioner, Donna J. Brown, was not discharged in violation of Section 760.10, Florida Statutes (1989), and was not the victim of a discriminatory employment practice and, therefore, that her Petition be dismissed in its entirety. RECOMMENDED this 7th day of August, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6596 Petitioner's Proposed Findings of Fact 1-3. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter after determination of the relative credibility of the witnesses. Accepted. 6-9. Accepted. 10-11. Accepted. Accepted, but not material based upon the issues actually pled even by ore tenus amendment at hearing in this proceeding. It has not been established that the employer had knowledge, constructive or otherwise, of any pattern of usage of racial slurs by multiple employees on such a frequent basis, or with any frequency. Thus, it could not have condoned such a pattern of utterance of racial slurs if it was not shown to have known about them, nor was it established that the use of the word "nigger" by fellow employees approximately once or twice a month, as apparently heard by Mr. Hallmon, was made only by white employees. Accepted. Accepted, but not to the extent that this finding establishes a pattern of discrimination against white employees by Mr. Berger or the management of Lehigh. 15-17. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. As delineated in the Hearing Officer's findings of fact, a number of factors were considered in the decision to terminate as opposed to imposing another type or degree of discipline; not consideration of the word "nigger" alone. 20-21. Accepted. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. This finding of fact is not, in itself, materially dispositive of the issues to be adjudicated. Accepted, but not material to resolution of the relevant issues presented for adjudication. Accepted, but not material in this de novo proceeding. Accepted, but subordinate to the Hearing Officer's more detailed findings of fact concerning this subject matter and issue. 26-30. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, including finding that the Petitioner did not participate in the group health insurance program any longer than the period of time delineated in the Hearing Officer's findings of fact. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. It has not been established that employment available for purposes of mitigation of damages for lost wages and benefits has to be precisely comparable in circumstances, condition, quality, wages or benefits or any other element in order to be a relevantly considered available job. Rejected, as contrary to the Hearing Officer's findings of fact on this subject matter. It has not been established that the Petitioner would work 50 hours, with 10 hours of overtime, for each week which she would have worked since August 2, 1989 had she not been discharged. Such a figure is therefore speculative, rendering the figures contained in this proposed finding, other than the actual wage figures for a 40-hour work week, speculative. The Hearing Officer's findings of fact on this subject matter are adhered to and those in this paragraph are rejected as not supported by the evidence and as subordinate to the Hearing Officer's findings of fact. Rejected, as not supported by the preponderant evidence of record in light of the Hearing Officer's findings of fact concerning the liability issue. Respondent's Proposed Findings of Fact 1-2. Accepted. 3. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the record. 4-6. Accepted. 7. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence of record. 8-10. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, except as modified by the Hearing Officer's findings of fact. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 15-17. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. 20-25. Accepted. 26. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 27-98. Accepted, except as modified by the Hearing Officer's findings of fact and by the Hearing Officer's acceptance of the proposed findings of fact by the Petitioner concerning the hourly wage rates Petitioner would have received with her next scheduled pay raises had she remained employed. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Ben R. Patterson, Esq. PATTERSON & TRAYNHAM 1215 Thomasville Road P.O. Box 4289 Tallahassee, FL 32315-4289 George J. Little, Esq. 134A Constitution Lane P.O. Box 1612 Marianna, FL 32446 John D.C. Newton, III, Esq. AURELL, RADEY, ET AL. Suite 1000, Monroe-Park Tower 101 North Monroe Street P.O. Drawer 11307 Tallahassee, FL 32302
The Issue Whether Respondent is guilty of an unlawful employment practice by discrimination against Petitioner on the basis of race and/or in retaliation against a protected expression.
Findings Of Fact 1. Petitioner, an African-American female, was employed by Respondent Employer for 53 days, from October 15, 2001, to December 6, 2001. 2. Respondent is an agency of the executive branch of Florida's State government, created under Chapter 20, Florida Statutes. As such, the undersigned infers that the real employer is the State of Florida, and therefore more than 15 employees work for Respondent. 3. During the whole of Petitioner's employment with Respondent she was an “other personnel services" (OPS) employee. This means that she was paid an hourly rate, for each hour worked, at a rate set by the Respondent's Division Director and the immediate supervisor, in conjunction with the budget office. Her employment fell under the "temporary" category of OPS personnel, hired to work until a specific short-term project/task was completed. There are opportunities to extend the period for which an OPS employee is hired, but there is no guarantee of extensions or of continued employment. OPS employees may be removed from the OPS payroll at any time based upon work performance, upon completion of the project/task for which employed, or for any other reason. 4. Petitioner was hired-on by Respondent at $7.00 per hour. She worked at least eight hours per day, five days per week, . 5. For approximately the first four weeks of Petitioner's employment with Respondent, Petitioner and a "white" female employee, Julia Gilbert, typed deficiency letters and answered phones. Ms. Gilbert was also an OPS employee who worked at least an eight hours per day. No evidence of Ms. Gilbert's hourly wage was presented. 6. In most instances, OPS employees are paid at the minimum of the class of career service employees whose duties are comparable. 7. Petitioner and Ms. Gilbert were performing the duties of a Regulatory Specialist I. 8. Another African-American woman, Najla Burt, had been hired in August 2001. At all times material, Ms. Burt performed the duties of an application reviewer. She was paid $10.00 per hour, to work for at least eight hours per day. She continued to be employed by Respondent as of the date of hearing. Although there was no specific testimony on this point, it may be inferred from Ms. Burt's hourly rate that she was/is classified as OPS personnel, but there is no clear evidence that as an “application reviewer" she would have fallen into the Regulatory Specialist I category. 9. Mr. Everett Thompson, an African-American male, hired Ms. Burt and claimed to have hired Petitioner. Petitioner denied that Mr. thompson hired her, but conceded that she reported to him as her immediate superior and to Shirley Rodgers, a "white" female, who was a higher level superior, and that Mr. Thompson fired Petitioner on December 6, 2001.?/ 10. Petitioner's perception was that Mr. Thompson terminated her because he is "prejudiced" and that he discriminated against her as an African-American when he terminated her without also terminating the "white" employee, Ms. Gilbert. 11. Aside from her termination being without warning, Petitioner's offered proof of Mr. Thompson's racial prejudice revolves around an office party. Petitioner, Mr. Thompson, Ms. Burt, and other employees were present. Everyone present was African-American except for two employees whose race is not of record. The undersigned infers, from the evidence as a whole, that these two employees were "white." Mr. Thompson testified that, as a joke, and to avoid eating chocolate cake, which he dislikes, he said, "I don't eat anything darker than me." He testified that he felt his "joke" was acceptable due to the predominance of African-American employees at the gathering. Petitioner and Ms. Burt heard Mr. Thompson's remark differently. Their testimony is consistent on this issue and more credible, to the effect that, in fact, Mr. Thompson said, "I don’t like anything that is blacker than me or eat anything that is blacker than me." 12. There is no evidence to support a finding that Petitioner is a darker- or lighter-skinned African-American than Mr. Thompson. */ 13. With regard to the allegations of disparate treatment of Petitioner and Ms. Gilbert, Petitioner, Ms. Burt, and Mr. Copeland testified that Ms. Gilbert and Petitioner were assigned to answer phone inquiries and Ms. Gilbert repeatedly unplugged her phone to avoid this duty. Petitioner and Ms. Burt testified that Mr. Thompson and Ms. Rodgers held a Meeting of all office personnel and announced that anyone unplugging his or her phone in order to avoid having to answer it would be automatically terminated, and that Ms. Gilbert was not terminated for unplugging her phone or for not answering it, even when Ms. Gilbert again unplugged her telephone after the departmental warning. 14. Mr. Thompson's testimony is credible that several employees, in addition to Petitioner, reported to him that Ms. Gilbert was unplugging her phone but that when he approached Ms. Gilbert about the problem, Ms. Gilbert told him that she had not unplugged her phone. He further testified credibly that when he personally checked Ms. Gilbert's phone, he determined that it was, in fact, plugged-in, and that as a result, he had believed Ms. Gilbert over the other employees. Mr. Thompson also testified that, in the interests of resolving the issue and as a management technique, he went so far as to announce in a meeting with all employees that if anyone did unplug his or her phone, that person would be reprimanded. I accept Mr. Thompson's foregoing testimony as credible, except that Petitioner and her witnesses are more credible to the limited effect that Mr. Thompson and Ms. Rodgers together made a blanket threat of automatic termination, not just reprimand, of anyone found to have unplugged his or her telephone. 15. Ms. Gilbert was not terminated for unplugging her phone or for not answering one. No one testified that Petitioner was terminated for unplugging a telephone or for not answering one. 16. Petitioner also maintained that she was terminated in retaliation for asking Ms. Rodgers why she, Petitioner, was not being paid $10.00 per hour, which Petitioner understood was base pay for her position if she had been a permanent career service employee. However, all Petitioner was able to relate on this issue was that Ms. Rodgers had told her "all OPS employees make the same hourly rate," and Petitioner knew this was not so. Ms. Burt apparently escorted Petitioner to Ms. Rodgers' office and Petitioner told her on the way what she intended to say to Ms. Rodgers, but neither Ms. Burt nor any other witness was in the room during Petitioner's and Ms. Rodgers' conversation. Petitioner apparently had no other direct dealings with Ms. Rodgers after this conversation and was not terminated until two weeks after this conversation. Petitioner was terminated by Mr. Thompson, not by Ms. Rodgers. 17. Mr. Thompson denied that race had anything to do with terminating Petitioner. He related that he had received oral complaints about Petitioner's work from processors. None of these complaints was formalized in writing or placed in Petitioner's personnel file. Mr. Thompson privately corrected Petitioner for misspellings and other typographical errors she made typing deficiency letters during her first four weeks. He also privately corrected Ms. Gilbert for the same sort of spelling and typographical errors, but he also determined that Ms. Gilbert was making far fewer errors than Petitioner. He further determined that Petitioner's deficiency letters were not being done as fast as Ms. Gilbert's letters. He required that each woman correctly re-type her own work. 18. After approximately four weeks, Mr. Thompson moved Petitioner to a data-entry position which required less skill. After approximately two more weeks, he found that Petitioner also was neither fast enough nor accurate enough in her new duties to suit him. Mr. Thompson felt he had no obligation to explain his motivations or reasons for termination to OPS personnel, and he simply fired Petitioner. 19. Mr. Thompson admitted that on two occasions, Petitioner had asked him why she was not earning $10.00 per hour just after he had given her instructions to perform duties appropriate to her project/task. Mr. Thompson was not the immediate superior designated by the employer to set OPS salaries so Petitioner's pay inquiries irritated him, but he testified that he did not retaliate with termination as a result of her pay inquiries. It was Petitioner's overall attitude which was objectionable to him, not just her inquiries about pay. He related that whenever he asked Petitioner to answer the phone, she asked why she had to answer the phone instead of his assigning the task to another similarly-situated employee and that once he justified that order, Petitioner would then immediately ask him if she and the other similarly~-situated employee could take turns answering the phone. This type of negotiation was Petitioner's response to many of his instructions. Petitioner never directly refused an order from him, but Mr. Thompson resented her attitude in never simply complying with his orders as her supervisor and her turning his every instruction into a negotiation. 20. Petitioner testified that she was doing her job well; received compliments from her two superiors; and got no prior warning she would be terminated. Ms. Burt testified that Petitioner was performing her job duties and responsibilities "to the best of her ability" when she was fired. Mr. Keyon Copeland, an African-American male OPS co-worker, testified that Petitioner was performing her job well and worked through lunch and coffee breaks and worked after regular hours to help other employees but she was then fired without warning. He felt "the situation was not handled right." However, neither Ms. Burt nor Mr. Copeland was a superior of Petitioner or of Ms. Gilbert. Neither of them was ever called upon to formally evaluate Petitioner's or Ms. Gilbert's job skills or performance for the employer. Neither Ms. Burt nor Mr. Copeland claimed to have any experience or expertise in employee performance evaluations. Their evidence was essentially anecdotal. 21. Mr. Thompson has held supervisory positions for many years and has evaluated many employees. He credibly denied that race had anything to do with his decision to fire Petitioner. Upon the evidence as a whole, most Particularly the fact that Mr. Thompson is an African-American and he did not terminate other African-Americans including Ms. Burt and mr. Copeland, it is found that mr. Thompson's perception of Petitioner was that she alone had an attitude problem and that this perception, coupled with his assessment that her job performance was not adequate, motivated him to terminate Petitioner. 10
Conclusions For Petitioner: Michele M. Young, pro Se , 1732 Augustine Place Tallahassee, Florida 32301 For Respondent: Michael Wheeler, Esquire, Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
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 the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this Lt day of July, 2003, in Tallahassee, Leon County, Florida. 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 day of July 2003.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Overall organization. The City of Tarpon Springs has a mayor and four commissioners and operates under a city manager form of government. Neither the commissioners nor the mayor play an active role in the day to day operation of the City. The City Manager has the responsibility of operating the day to day affairs for the City. Collective bargaining relationships exist between the City and unions representing the Police and Fire Departments. The City Manager negotiates for the City in these relationships. Other than the Police and Fire Departments, there are approximately fifteen or sixteen departments with over 100 employees within the City. The actual number of employees varies seasonally, with the City employing more in the winter. At this time, the City employs approximately seventeen persons under the CETA program. The Public Works Department consists of ten or eleven separate departments, each of which, is headed by a foreman, and the Public Works Director has overall responsibility for the entire Department. His position is primarily one of assistant city manager. Four or five times a year, the City has supervisory meetings attended by the City Manager, the Public Works Director and the foremen of the various departments. Discussed at such meetings, are problems involving personnel, discipline and scheduling. Uniforms are available to most City employees on a voluntary basis. If, an employee chooses to wear a uniform, the City pays half the price of the uniform for the employee, with the exception of school crossing guards for whom the City furnishes uniforms and CETA employees for whom uniforms are not available. Uniforms worn by foremen have the word "foreman" written on them. Foremen. Each department under the Public Works Department is headed by a single foreman, with the exception of the Parks and Cemeteries Department which has two foremen. These various departments each have between three and eighteen employees, and include the departments of streets, sewer, sanitation, water distribution, building and maintenance, meters, water pollution control, and general maintenance. The City generally does not hire persons for the various departments without the recommendation or approval of the foreman. Under normal conditions, the foremen make the decision as to overtime work and the transfer of employees from one department to another. Written and oral evaluations and recommendations for wage increases are made by the foreman to the Public Works Director, which recommendations are normally approved. If an employee were caught drinking on the job, a foreman may fire the employee and then tell either the City Manager or Public Works Director about it later. The City then conducts an investigation into the matter to avoid possible future problems, but normally the decision of the foreman is approved. With a less offensive problem, such as absenteeism, the foreman issues a warning in writing. After the second warning, the foreman informs the Director or Manager that he is dismissing that employee and the City then terminates employment. Foremen make the decision as to time off for personal problems or emergencies and also grant approvals for vacation times. If there are complaints or grievances within a department, the foreman of that department normally takes care of it, very seldom do grievances come to the Public Works Director. An employee may be transferred from one department to another through the agreement of the two foremen involved. The primary duty of the various foremen is to direct the employees and supervise the activities within their respective departments. During shortages of personnel, foremen participate in the same type of work as their employees. Supervisory authority is one of the basis, along with longevity, for the pay differentials between foremen and other employees. Foremen assist in the formulation of policies and work schedules within their respective departments and are consulted with respect to the preparation of the budget. There are no supervisory-type personnel between the foremen and the Director of Public Works. Foremen handle grievances and would thus have a role in the administration of collective bargaining agreements. CETA employees. CETA employees work along with other City employees and the City is reimbursed for their salaries by the federal government. While they may have the same rate of pay as another person in their classification and do receive overtime pay, they do not receive raises nor do they have the fringe benefits which other employees have, such as hospitalization, uniforms, paid holidays, vacation, and sick leave. The CETA program presently extends through September 30, 1976, and such employees are hired until that time. If the City had a vacancy in a regular, permanent position, it would fill that position with a good CETA employee rather than going out and hiring another employee. Part-time employees. The City employs a number of part-time employees to work as school crossing guards, to police the beach, to do summer work with recreation, to work in the library and to do clerical and custodial work. Certain of these part-time employees are seasonal. In order to receive hospitalization benefits, an employee must work thirty or more hours per week. The three school crossing guards work 25 hours per week and receive uniforms fully paid for by the City. They are supervised by the Chief of Police. Other part-time employees fall under the supervision of the foreman or director for the department for which they work. Vacation and sick leave, as well as holiday pay, are prorated for part-time employees based upon the number of hours that they work. Their rate of pay is based upon the federal minimum wage though some regular part-time employees receive merit pay increases. In accordance with F.S. Section 447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted. Respectfully submitted and entered this 4th day of August, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Curtis Mack Chairman Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, Florida Mr. Edward R. Draper 5400 West Waters Avenue, B-4 Tampa, Florida 33614 Mr. Allen M. Blake, Esquire Marlow, Mitzel, Ortmayer & Shofi 607 South Magnolia Avenue Tampa, Florida 33606
The Issue Whether Respondent violated Section 760.10(1), Florida Statutes (2002), by forcing the termination of Petitioner's employment with Respondent because of his gender (male), and/or national origin (Venezuela), and/or his age (37); and because Petitioner alleged that younger, female lifeguards were given better work assignments.
Findings Of Fact Petitioner was employed by Respondent from November 26, 2002, until April 17 2003, in the position of deep water lifeguard at Respondent's facility at the Grand Floridian Hotel (Grand Floridian) located in Lake Buena Vista, Florida. He worked in that position until his resignation on April 17, 2003. Petitioner is a Hispanic male, aged 37, and a member of a protected class. Respondent is an employer as defined by the Florida Civil Rights Act of 1992 (FCRA). Petitioner was hired for a full-time position to work 40 hours per week. He normally worked a ten-hour shift, four days a week. Petitioner never applied for any other position or promotions during his employment. All full-time lifeguards at the Grand Floridian are covered by a collective bargaining agreement (CBA) between Respondent and the Services Trades Council Union. A lifeguard working at the Grand Floridian does not have to be a member or pay dues to the union in order to be covered by the terms of the CBA. Petitioner is not a member of the union. At the time of his hire, Petitioner was provided with a packet of materials containing Respondent's employment policies. Respondent had a policy regarding harassment that covered all of its employees and prohibited all types of harassment in the workplace, including any such behavior based on age, national origin, and/or gender. Respondent also has an "equal opportunity" policy that applies to all of its employees. This policy provides that all employees should be treated equally in terms of hours, work location, and scheduling based on seniority. Operations at the Grand Floridian Of the class of lifeguards hired at the same time, Petitioner was the only one assigned to the Grand Floridian. At the time of being assigned to the Grand Floridian, there were approximately 25 lifeguards employed there. The lifeguards at the Grand Floridian are full-time, part-time casual, or part- time regular employees. There are also "college program" lifeguards who perform all of the same duties as the full-time and part-time employees. The starting times for employees are staggered, based on the needs of the area and the time of the year. The main duties of a lifeguard at the Grand Floridian are to ensure safety and guard the pools, clean the pool and beach areas, work the cash register, and operate the marina. The head supervisor of the Grand Floridian lifeguards during Petitioner's employment was Jerry Davis. Davis has been employed with Respondent for nine years. He has served in his current position as the recreation operations manager for six years. His duties in this position include supervising the outside recreation areas, including the pools, boats, and lifeguards at the Grand Floridian. Davis plays no role in hiring the employees that report to him, but rather Respondent's Employee Relations Department is responsible for hiring these employees. Davis has the authority to terminate lifeguards that report to him. Prior to terminating an employee, however, Davis seeks the input of the Employee Relations Department. The evidence is credible that Davis is accessible to his direct reports and makes sure that his office is always open to them. If a lifeguard wants to speak with Davis, he will make himself available to him or her. As a manager, Davis has undergone training from Respondent regarding its equal employment policies and anti- harassment policies. He has also been trained that employees may raise complaints about working conditions with either their manager or the Employee Relations Department. All employees are made aware of these policies and complaint procedures as a part of their orientation program. Under Davis, the next supervisor was Darin Bernhard. Bernhard has been employed with Respondent for eight years and is currently employed as a recreation guest service manager. Until October 2003, Bernhard was employed at the Grand Floridian. In that capacity, Bernhard directly supervised lifeguards, marina employees, and activities' employees. Bernhard had continuous interaction with lifeguards throughout the day while at the Grand Floridian. Bernhard had an open-door policy to all employees and made himself accessible to them. Under Davis and Bernhard, there were three coordinators who served as the immediate supervisors of the lifeguards. The weekly work schedule for lifeguards was posted on the wall every week. Bernhard, along with Respondent's Labor Office, was responsible for preparing this weekly schedule. The factors used in preparing this schedule were a scheduling bid submitted by each employee, scheduled vacations, and operational needs. As for operational needs, Bernhard would try to give a combination throughout the week based on full-time, part-time, and college program employees and avoid having all college program employees on duty at one time, thereby providing more experience on each shift. The CBA contains a provision stating as follows: "The principles of seniority shall be observed in establishing days off and work schedules by department, location, or scheduling pool." As a result, the schedule bids of all employees were considered based on the seniority of the employees. At the time of his hire, Petitioner spoke with Bernhard about special scheduling requests. Specifically, Petitioner asked to receive early shifts and weekends off. He wanted the weekends off due to child-care issues with his son. Bernhard informed Petitioner that he would attempt to work with Petitioner on this, but that he was limited in what he could do based on the seniority requirements set forth in the CBA, as well as the fact that most of the lifeguards preferred to have weekends off. At that point in time, Petitioner had the least amount of seniority of all the full-time lifeguards, since he was the most recently hired employee. Despite the CBA restrictions, Bernhard made every effort to provide Petitioner with at least one day each weekend off and tried to provide him with two, whenever possible. On a regular basis, Petitioner was scheduled to have Saturdays off. In addition, on numerous occasions, he was given Friday, Saturday, and Sunday off from work, in accordance with his special request. At no time during his employment did Petitioner ever complain to Bernhard about not getting enough days off on the weekend. Employees would occasionally complain to Bernhard about the weekly schedule. When he received such complaints, Bernhard would listen to their complaints and not take any adverse action against any employee for complaining to him about scheduling issues. On occasion, lifeguards would be sent home early due to slow business or inclement weather. This decision would be made either by the immediate supervisor on duty or one of the coordinators. The lifeguards would be allowed to volunteer to go home on a "first-come, first serve" basis. No lifeguard, however, was forced to go home early. Similarly, Bernhard did not receive complaints from any lifeguard about being forced to go home early. The coordinators at the Grand Floridian were responsible for making the daily rotation schedules. There were five primary positions that the lifeguards could be assigned to on a daily basis, consisting of two lifeguard positions at the pool, the slide, the marina, and cashier. The coordinators made these assignment decisions based on the people they had available that day. The primary focus was to make sure that all of the areas were properly covered. Such daily rotation assignments were also based on certain needs during particular periods of the day. In addition, certain assignments were given to certain employees if they are more capable of performing the task. It is also not uncommon for the daily rotation to be changed during the day based on unexpected factors, such as absent employees. In terms of shift assignments, an effort is made to make sure that regular employees and college program employees are working together so that the regular employees can provide guidance when needed. During a workday, most of the employees rotate positions every 30 minutes to an hour. The rotation of duties for the lifeguards changed on a daily basis. Petitioner enjoyed working as a lifeguard because he considered himself a stronger lifeguard than others in his department. He also described himself as the "leader of the lifeguards." All lifeguards are trained in the cashier duties, but very few individuals are chosen to actually work as a cashier. These cashiers undergo special training prior to performing these duties. The primary attributes for a cashier are good guest interaction and good phone skills because a cashier is required to interact with guests, both on the telephone and in person. This assignment also differs from the other assignments in that the employee assigned to this position normally does not rotate throughout the day to other assignments. It is not uncommon for the same employee to serve as a cashier for an entire day. Petitioner was sometimes assigned to work at the marina, but not as a cashier. Petitioner never spoke with any of his supervisors or coordinators about working more at the marina or as a cashier. Each lifeguard at the Grand Floridian was required to complete four hours of in-service training each month, either at his home resort or at another resort. Attendance at these training sessions were tracked on a daily sign-in sheet. If a lifeguard failed to complete his or her in-service training for the month, he would be reprimanded. Davis prepared a reprimand for Petitioner on April 1, 2003. This reprimand was the result of Petitioner's failing to complete his in-service training hours for the month of March 2003. As a result of failing to complete this training, Petitioner received a two-point reprimand for poor job performance. Petitioner did not know when Davis prepared the Poor Job Performance Memorandum dated April 1, 2003. Davis and Petitioner did not see each other between Petitioner's accident on March 30, 2003, and the date Petitioner signed the Poor Job Performance Memorandum on April 9, 2003. At the time that Davis prepared this memorandum, Petitioner had not made any complaints of discrimination or harassment to Davis. The attendance of the lifeguards on a daily basis was tracked by the use of an electronic swipe card. The daily schedule and attendance of the lifeguards was also tracked on a daily sheet completed by the coordinators. This sheet was kept in the managers' office and was forwarded to the Respondent's Labor Office when it was completed. Bernhard usually reviewed these sheets on a daily basis as well. The lifeguards did not have access to these sheets on a daily basis. Under the attendance policy in the CBA, three absences in a 30-day period warranted a one-point written reprimand. An employee had to receive three written reprimands within a 24- month period before he could be terminated for attendance issues. The reasons for an absence did not make a difference for purposes of accruing points under the policy. On March 24, 2003, Petitioner called in sick and did not appear for work. On his way home from work on March 31, 2003, Petitioner was in a car accident in a parking lot on Respondent's property. As a result of that accident, Petitioner's car had to be towed because it was not drivable. Petitioner did not, however, seek medical treatment as a result of the accident. Shortly after the accident occurred, Petitioner contacted Bernhard. He informed Bernhard of the accident and told him that he would not be available for work the next day because his car had been destroyed. He did not inform Bernhard that he had been injured in any way. Petitioner was absent from work on April 1, 2003, because he had no transportation. Petitioner called in his personal absence on April 1, 6, 7, 8, 13, 14, 15, and 16, 2003, and was a "no show" on April 2, 2003. As a result of these numerous absences, Davis made a decision to contact Petitioner by telephone and inquire about the reasons for these multiple absences. Petitioner informed Davis that he still did not have transportation. Petitioner expressed concern to Davis that he was afraid he was going to accrue too many points and get himself terminated. Davis responded to Petitioner that if he did not return to work, he would accrue points under the attendance policy. Petitioner asked Davis if it would be better if he terminated himself or if he was terminated by Respondent. Davis also informed Petitioner that if he terminated himself, at some point he might be able to return to his job at Respondent, though he did not guarantee him that he could simply return. Davis made it very clear to Petitioner that this was a decision he had to make. At the time of Davis' phone call to Petitioner, he had accrued sufficient points under the applicable "attendance policy" set forth under the CBA to warrant giving him a one- point written reprimand. Davis had not been able to give the reprimand to Petitioner, however, because he had not returned to work. At no time had Davis ever informed Petitioner that such a reprimand was waiting for him. In addition, such absences would not have provided a basis for terminating Petitioner at that point in time. Petitioner contacted Davis the following day and informed Davis that he was going to voluntarily resign his employment. Upon learning of this decision, Davis informed Petitioner that he needed to return his uniform and all other of Respondent's property prior to receiving his last paycheck. All employees are required to return their uniform and Respondent's property at the time of resignation. Davis never informed Petitioner that he was being terminated or that he had an intention of terminating him. Similarly, Davis never told Petitioner that he had no option but to resign. Davis had no problem with Petitioner returning to work, provided he could obtain proper transportation. After Petitioner's resignation, Davis completed the required paperwork and indicated that Petitioner should be classified as a "restricted rehire." Davis chose this restriction due to Petitioner's tardiness and attendance issues, as well as his failure to take responsibility to make it to work. This decision to categorize him as a "restricted rehire" was not based on Petitioner's age, national origin or his gender. Petitioner visited Respondent's casting center (human resource department) on June 17, 2003, approximately two months after his resignation, with the intent to reapply for his prior position. Petitioner wanted to return to his same position at the Grand Floridian, working for Davis and Bernhard, as well as working under the same coordinators. On June 17, 2003, Petitioner met with Fernanda Smith, who has served as a recruiter for Respondent for five years. Smith was born in Buenos Aires, Argentina, and is Hispanic. As a recruiter, Smith is responsible for interviewing, selecting, and hiring the strongest candidates for positions at Respondent. She is responsible for hiring employees for all hourly, entry- level positions. The hiring process used by Respondent is the same for both new applicants and former employees of Respondent. That process is set forth in the "Rehire Review" policy given to each recruiter. Once Smith is randomly assigned an applicant, she brings them to her office and reviews their personal data in the computer. She then reviews the application for accuracy and completeness. She also confirms that they are qualified to work in the United States and their criminal background. Smith reviews the conditions of employment with the applicant, including compensation, appearance, ability to attend work and transportation. If the applicant was previously employed by Respondent, Smith also reviews the application for the reasons the employee previously left employment and the applicant's rehire status. The different rehire statuses are "yes rehire," "restricted rehire," and "no rehire." If a former employee has been categorized as a "restricted rehire," Smith then must confirm that the person is currently employed and that he or she has been at that employment for a period of at least six months at the time of re-application. Assuming they can satisfy these requirements, the applicant is required to provide an employment verification letter from their current employer within one week of the interview. At that point, the information is forwarded to a rehire committee for consideration. On June 17, 2003, Smith interviewed Petitioner for potential rehire with Respondent. She recalls that when she met him in the lobby, he was very professionally dressed. Upon entering her office, Smith reviewed the information on Petitioner's application with him. At that point, she noticed that he had a recent date of termination from Respondent and asked him the reasons for his termination. Petitioner responded that he had left his employment because of transportation problems and that he had missed a number of days from work. In reviewing Petitioner's application, she realized that he did not meet the requirements for consideration as a "restricted rehire." First of all, Petitioner did not offer any evidence of current employment at the time of the interview. Secondly, Petitioner had only been gone from Respondent for a period of approximately two months, and thus, did not have the six months of continuous employment to be considered for rehire. Smith shared with Petitioner that he did not meet the minimum requirements for a "restricted rehire." Petitioner had no idea what that designation meant. At that point, Petitioner responded by getting very upset, yelling and screaming at Smith, standing up and pointing his finger at her. He then informed Smith that he was going to sue Respondent for discrimination and left her office. Petitioner did not allow Smith to make any other comments to him. Immediately after Petitioner had left the building, Smith prepared the standard evaluation that she prepares for all applicants she interviews, including the incident that occurred in the interview with Petitioner. If Petitioner had allowed Smith to explain the process and eventually provided the appropriate documentation, he might have been considered for rehire. Based on his behavior in the interview, however, Smith recommended that he not be considered for rehire, particularly for the position of lifeguard where he would be dealing with guests on a regular basis. Allegations of Discrimination Petitioner alleges that one of the coordinators referred to his national origin in a derogatory manner on one occasion. Other than this isolated alleged comment, he stated he never heard anyone else at Respondent make any derogatory comments about his being Hispanic or Venezuelan. Petitioner did not complain about this comment to anyone at Respondent and specifically did not complain to Davis, Bernhard, or employee relations about it. Other than this one comment by an unnamed coordinator, Petitioner offered no evidence that any actions or decisions were taken against him based on his national origin. In support of his age discrimination claim, Petitioner alleges that some of his co-workers referred to him once or twice as "old." Petitioner did not offer any evidence that any of his supervisors or coordinators ever used any of these terms in reference to him. Petitioner does not know whether or not he ever discussed his age with other workers. At the time of Petitioner's resignation, he was not the oldest lifeguard working at the Grand Floridian. Penny Ivey and Sherry Morris were both older than Petitioner, and Davis was born on February 5, 1951. At the time of Petitioner's resignation, Davis was 52 years old. Other than these alleged isolated comments, Petitioner offered no other evidence that any actions or decisions were taken against him based on his age. Petitioner claims that one example of gender discrimination was that the rotation schedule was not equal. In particular, he alleges that the "young and beautiful girls" were preferred in the rotation schedules because they were allowed to work in the marina and at the cash register more than males. Petitioner alleges that Jaimy Tully, a 23-year-old female lifeguard, was always late. For example, Petitioner alleges that Tully was late on March 2, 2003, based on the fact that she was supposed to be there at 10:00 a.m. The daily schedule indicates that she arrived for work at 9:30 a.m. In reviewing the document, however, it indicates "S/C" which means that a schedule change was made, and Tully showed up for work half an hour early, not late, and she still worked her scheduled day of ten hours. A schedule change would occur for several reasons, including the need to have certain employees come in early for an in-service session or the personal request of an employee. It sometimes required employees to come in for work early and other times required them to work later. Petitioner similarly alleges that Tully was late on March 22, 2003, and should have been fired for that. In reviewing the daily schedule for that date, however, it is evident that a schedule change was made, and Tully was scheduled to work from 9:30 a.m. to 8:30 p.m., a regular 10-hour day, and that she actually worked those hours. Petitioner admitted at the hearing that she was actually early to work and not late. Petitioner alleges that Tully was late again for work on April 7 and April 16, 2003. A review of those daily schedules, however, reveals that Tully had a schedule change on each of those days and that she worked the hours that she was assigned. Of all these allegations of Tully being late to work, Petitioner never complained to anyone about it. Petitioner then alleges that Tully arrived for work early on February 15, 2003, and that she was allowed to work extra hours and earn overtime. On that particular occasion, however, Tully was called in early because she needed to attend an in-service training session that was occurring that day. Petitioner conceded that Tully was not late on that day. Petitioner admitted that both males and females were called in to work additional hours as lifeguards. For instance, Michael Whitt, a male employee, was allowed to start work earlier based on a schedule change on March 4, 2003. Similarly, a schedule change was made involving Whitt on February 25, 2003, and he was required to report to work at 11:40 a.m., not 10:00 a.m., and as a result, was not given any breaks that day. Petitioner never received any discipline as a result of being late to work or for leaving work early. Petitioner claims that he suffered discrimination on January 12, 2003, because Tully was allowed to start work later than he and then was allowed to work as a cashier for the majority of the day. He claims that she should have been on a rotation like him and that she was given more hours than he was. Tully was trained as both a lifeguard and a cashier, but she had more cashier experience than the majority of the other lifeguards. She also had good guest-interaction and cash- handling skills, and thus, she was placed as a cashier more than most of the other lifeguards. The cashier assignment also differed from the other assignments in that the employee assigned to this position normally did not rotate throughout the day, and it was not uncommon for the same employee to serve as a cahier for an entire day. Petitioner never spoke with any of his supervisors or coordinators about serving as a cashier, nor did he ever complain to Bernhard about any of his daily assignments. He alleges that the woman and the "young girls" were always placed at the marina. When asked to identify "these girls," he stated he was referring to Mindy and Matt, a male employee. In particular, Petitioner testified that on December 25, 2002, Matt served in the marina for three consecutive rotations on that particular day. He also points out that Matt had a longer break than he did on that particular day. There was no pay differential between employees who were assigned to work at the marina and those who worked at the pool. Similarly, there was no pay differential between employees working as a cashier and those at the pool. Petitioner never made any complaints to Davis about his weekly schedule or his daily rotation assignments. Similarly, Petitioner never complained to Davis about any disparate treatment or harassment based on his age, national origin, or gender. Petitioner never raised any complaints about discrimination or any other working conditions with Bernhard. Bernhard never made any derogatory comments to him or about him. Bernhard does not give any preference to any employees based on age, national origin, or gender. Petitioner was aware that there was an Employee Relations Department located at the casting center, but never complained to them about his working conditions or alleged discrimination.
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 which DENIES Petitioner's Petition for Relief and dismisses his complaint. DONE AND ENTERED this 14th day of April, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2004. COPIES FURNISHED: Fernando J. Conde 4732 Olive Branch Road Apartment No. 1205 Orlando, Florida 32811-7118 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
