The Issue The issue in this case is whether Petitioner was wrongly terminated from employment by Respondent, and, if so, whether monetary damages are warranted.
Findings Of Fact Petitioner, Henry Woodie, is a 66-year-old African- American man. He has a bachelor's degree in math and education, a bachelor's degree in accounting, and a master's degree in business administration. Petitioner first became employed by Respondent in August 2004, as a DCC at Ranier House, a group home owned and operated by Respondent, Independent Group Home Living (IGHL). In February 2007, Petitioner was promoted to the position of overnight (or nighttime) ARM for Ranier House. This promotion occurred after Petitioner filed a lawsuit against Respondent for discrimination. A fellow employee (Sarah McElvain, a white female) had been promoted to ARM for Ranier House some months earlier. Petitioner felt slighted because he had not been granted an interview, although he had more formal education than McElvain. However, McElvain had considerably more experience in the healthcare industry than Petitioner at that time. Nonetheless, Respondent created a position for Petitioner equal in status to the position McElvain obtained. In February 2007, Petitioner was made the overnight ARM; he and McElvain were then co-managers of the Ranier House as McElvain took the day shift. Neither had supervisory status over the other. Each was responsible for assisting developmentally- disabled adults at Ranier House by providing hands-on assistance with daily living activities. Petitioner worked from approximately midnight until 8:00 a.m. as the nighttime ARM. McElvain's hours were generally 9:00 a.m. until 5:00 p.m. The two managers' paths did not cross very frequently, although McElvain would come in early on many occasions to have her morning coffee and chat with the DCC workers. She may or may not have contact with Petitioner during those visits. In mid-July 2007, Petitioner noticed that there was a shortage of available food products at Ranier House. Inasmuch as Petitioner was responsible for preparing bag lunches for the customers (residents of the house), he purchased some lunch meats and other products from his personal account on July 30, 2007, at 2:39 p.m., i.e., outside his normal work hours. It was understood that any such purchases would be reimbursed. Petitioner contends the food shortage existed because McElvain was overspending the funds budgeted for food, thus resulting in shortages. However, McElvain made food purchases using a WalMart debit card provided by Respondent. The card was replenished with funds each month by Respondent's corporate offices in New York. If the card was not timely replenished, McElvain could not make food purchases. This is the more reasonable and likely explanation of why shortages sometimes occurred. Any time a food shortage occurred, one of the ARMs could make a purchase with their own money (if they were able) and then obtain reimbursement from the corporate office. At 10:41 p.m. on July 30, 2007, some nine hours after Petitioner had made a food purchase using his own money, McElvain made a very large purchase ($711.11) of food and other items using the corporate WalMart card. McElvain was also shopping outside her normal work hours. McElvain brought the groceries to Ranier House at around 11:30 p.m., i.e., just prior to Petitioner coming on duty for his regular night shift. McElvain and DCC LaShonda Hemley sorted the purchase by item type. They then distributed the items to the rooms or areas where those items would ultimately be put away for storage. For example, cleaning products were left near the storage closet; food was left near the refrigerator or pantry; household goods were left in the kitchen, etc. After the food items had been distributed, McElvain saw Petitioner in passing and told him the goods needed to be put away. She then left the Ranier House. Petitioner does not specifically remember being told to put away the groceries. He does remember being told that the groceries were being distributed around the house so they could be put away, but assumed that someone else would do that job.2 McElvain and Hemley did not put the groceries away because of several stated reasons: McElvain had been working and going to classes all day and she was tired; the night shift was coming on duty and would be paid to put the groceries away, whereas McElvain and Hemley would have to be paid overtime to do that job; and McElvain made a presumption that Petitioner would follow through on her statement that "the food needs to be put away." Neither Petitioner, nor his DCC staff put away the food and supplies. As a result, dangerous chemicals were left sitting in the hallway all night long. Perishable foods were left in the garage (right next to the refrigerator) all night long and spoiled. Petitioner did not put away the food because of two stated reasons: Usually the person who buys the groceries puts them away; further, he had previously suffered a stroke and did not feel fully recovered. As for his medical condition, his physician had released Petitioner to work as of July 9, 2007 (several weeks prior to the incident in question), but Petitioner did not personally believe he was fully able to perform his duties. He did not make a request to his employer for a lighter work load or relief from his duties, however. Further, the final hearing was the first time Petitioner raised his health concerns as a reason why he did not put the groceries away. That testimony is not credible and flies in the face of the fact that Petitioner said he put away the groceries that he had purchased. Petitioner does not remember McElvain asking or telling him to put away the groceries. He says he would have, had he been asked. This statement is not credible since the groceries were in full view throughout Petitioner's shift, but he did not put them away. At some point during the night of July 30 or 31, 2007, Petitioner opened some of the bags containing perishable foods and used some of them to make sandwiches for the customers. He did not put the opened packages or any of the other bags of groceries into the refrigerator at that time. Petitioner does not accurately remember, but believes the lunch meats he used may have come from food he had bought (and put away) earlier in the day. Besides the perishable foods, there were also some bleach and cleaning supplies left unattended. These items were placed on the floor in a hallway immediately adjacent to a locked storage closet where they are to be stored. The closet was locked and the keys were located in the office at Ranier House. Petitioner maintained at final hearing that he did not see the items even though they were right next to customer rooms (which are supposed to be checked every 15 minutes throughout the night). It is hard to reconcile Petitioner's statement with the pictures of the bleach introduced into evidence at final hearing. The location of the bleach is patently obvious to even the most casual observer. Further, a letter written by Petitioner to an unknown recipient clearly states, "When I came to work at Mid-night [sic], I noticed about 50 bags of groceries spread out on the floors of different rooms." This letter, which Petitioner admits writing, contradicts his contention that he did not see the goods. One of the concerns about the bleach was that one customer was prone to getting up at night and finding something to drink. He would apparently drink anything, including bleach. Knowing that, it is unconscionable that Petitioner would allow the bleach to sit in close proximity to the customer bedrooms over an entire eight-hour shift. On July 31, 2007, McElvain came to work around 8:30 a.m. When she passed Petitioner on her way in, he said something akin to "I'm out of here" and left. McElvain then spotted the spoiled food and other items which had not been put away. She became extremely angry about that negligence. McElvain sorted through the food products and identified $167.27 worth of groceries that were no longer edible. She took pictures of the bags of groceries that were placed in different areas around the house. Then she called her supervisor, Joyce Herman, to lodge a complaint. McElvain told Herman that she (McElvain) had instructed Petitioner to put away the food items or, at least, had told Petitioner that the items needed to be put away. Herman contacted Petitioner at his home, inquiring as to why he had not put the groceries away. He said that he had not been told to do so. Herman says that the job descriptions for ARMs would suggest that someone needed to put the groceries away; if one ARM didn't, the other should. She places the primary blame in this case on Petitioner because the groceries were left out for his entire shift. Herman instructed Petitioner not to contact McElvain, but he did so anyway. Petitioner left a message on McElvain's home phone and then one on her cell phone. The messages were not preserved and could not be played at final hearing. However, a transcript of the home phone message, which both parties indicated was an accurate reflection of what was said, reads as follows: "Yes, Sarah, this is [Petitioner]. I was wondering why you told Joyce [Herman] that lie that you told me to put the groceries away and I didn't. Number one, you don't tell me what to do and number two, you could have put the groceries away yourself. Give me a call." McElvain says part of the message was stated in a "nasty tone," but Petitioner disagrees. McElvain contacted Herman and forwarded Petitioner's voicemail message so Herman could listen to it. Both McElvain and Herman describe the tone in Petitioner's voice as angry and confrontational. The voicemail was alternatively described by Respondent as "threatening," "confrontational" or "upsetting." Petitioner admits that he was angry when he made the call and might not have made the call had he not been angry. Petitioner and McElvain did not appear to have had a smooth or cordial working relationship, although they were peers. Upon hearing the voicemail and considering the facts as to what had occurred, Herman and her subordinate, Doris Diaz, made the decision to terminate Petitioner's employment. The basis of the termination was violation of the IGHL Code of Conduct, specifically the following language: "[D]ecisions on disciplinary action to be taken will be up to and including discharge. The following are examples of unacceptable behavior. . . . Confrontation with customers or co-workers." Petitioner acknowledged receipt and understanding of the Code of Conduct. Petitioner requested of Respondent a letter setting out the reason for his discharge. He was told that IGHL policy did not allow for a written statement; however, a letter was thereafter sent to him stating the basis for Respondent's action. The letter is unequivocal that the employer's reliance on confrontation with a co-worker was the basis for terminating Petitioner's employment. Petitioner presented no competent substantial evidence to support his claim of race, gender, or age discrimination as the basis for his termination from employment. Petitioner was promoted from DCC worker to nighttime ARM by IGHL. His promotion included a substantial salary increase, but not much change in his duties or responsibilities. He was, by his own admission, probably overpaid for the job he was performing. He claims that his termination from employment was for the purpose of eliminating this particular position. There is no evidence to support that contention.3 Petitioner claims retaliation may have occurred because of the fact that he pointed out McElvain's failure to stay within her prescribed food budget. There is no evidence that McElvain strayed from her budget. Rather, the evidence shows a failure on the part of IGHL's corporate offices to stay current when replenishing the WalMart card used for making purchases. The 90-day evaluation for Petitioner after his promotion to ARM is acceptable, but is considerably less laudatory in nature than McElvain's evaluation. It is clear Petitioner did have some minor issues relating to other employees, but that is often the case when someone is promoted from within an organization. If Petitioner is claiming retaliation based on his previous claim of discrimination against his employer, that claim is not supported by the evidence. As a matter of fact, Petitioner was promoted, not fired, as a result of the prior claim he filed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations finding Respondent not guilty of an unlawful employment practice and dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 29th day of September, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 29th day of September, 2008.
The Issue Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
Findings Of Fact On April 10, 1989, Petitioner, Mark Cleveland, a male, applied through Job Service of Florida, for employment as a telemarketer with Respondent, Sears Roebuck and Company at the Sears store located in Pensacola, Florida. Petitioner had several years of sales experience with at least six months of experience in telemarketing. He also had a good speaking voice as evidenced by the fact that he is currently employed as a disc jockey at a local radio station. Clearly, Respondent was qualified for the telemarketing position. The telemarketer position would enable Petitioner to earn approximately $85.00 a week or $365.50 a month. The telemarketing section at the Pensacola Sears store consisted of virtually all women with perhaps three or four rare male telemarketers. Petitioner had two separate interviews with two different Sears employees responsible for filling the telemarketing positions. During the Petitioner's interviews with the two Sears employees, Petitioner was repeatedly questioned on whether he could work with all women or mostly all women and be supervised by women. Petitioner assured his interviewers that he could since he grew up with six sisters and in general liked working with women. Petitioner left the interview with the information that he would be hired after another supervisor reviewed the applications and that he would be called once the supervisor's review was complete. After several days, Petitioner, being excited about what he thought was going to be his new job, called one of the two women who interviewed him. He was informed that the telemarketing positions had been filled. Later that same day Petitioner discovered that the positions had, in fact, not been filled and that he had been told an untruth. The telemarketing positions were eventually filled by women. Petitioner remained out of work for approximately four months before he was hired as a telemarketer by the Pensacola News Journal. A Notice of Assignment and Order was issued on August 27, 1991, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent did not respond to the Notice. On October 10, 1991, a Notice of Hearing was issued setting the formal hearing for 11:00 a.m., September 11, 1990. The location of the hearing was listed in the Notice. The Notice of Hearing was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent's address and acknowledgment of this litigation was confirmed when Respondent filed its answer to the Petition for Relief with the Division of Administrative Hearings. Even though Respondent received adequate notice of the hearing in this matter, the Respondent did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Petitioner was present at the hearing. The Respondent did not request a continuance of the formal hearing or notify the undersigned that it would not be able to appear at the formal hearing. After waiting fifteen minutes for the Respondent to appear, the hearing was commenced. As a consequence of Respondent's failure to appear, no evidence rebutting Petitioner's facts were introduced into evidence at the hearing and specifically no evidence of a nondiscriminatory purpose was introduced at the hearing. 1/ Petitioner has established a prima facie case of discrimination based on his sex, given the fact that Sears tried to mislead him into believing the telemarketing positions had been filled when they had not, the positions were all eventually filled by women and Sears' clear concern over Petitioner's ability to work with women. Such facts lead to the reasonable inference that Sears was engaging in an unlawful employment practice based on Respondent being a male, a protected class, in order to preserve a female work force in telemarketing. Such discrimination based on sex is prohibited under Chapter 760, Florida Statutes, and Petitioner is entitled to relief from that discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter a final order finding Petitioner was the subject of an illegal employment practice and awarding Petitioner $1,462.00 in backpay plus reasonable costs of $100.95 and an attorney's fee of $2,550.00. RECOMMENDED this 30th day of March, 1992, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1992.
The Issue The issue in the case is whether the Respondent unlawfully terminated the employment of the Petitioner.
Findings Of Fact The Petitioner was born in 1964 as an anatomical male named Andrew Allen Shepley. The Petitioner married a female in 1984. The couple separated in December 2000. During the course of the marriage, the couple produced four children. They divorced in July 2002. The Respondent is a large recreational vehicle dealership located in Seffner, Florida. The winter months are the busy season for sales and service of recreational vehicles, and the Respondent may employ several hundred employees at that time. In August 1999, the Petitioner began employment as a technician (essentially a mechanic) with the Respondent. His duties as a technician included inspections and service and repair responsibilities for recreational vehicles. He also sometimes performed "walk-throughs" with vehicle purchasers at the time of delivery during which features and operations of the vehicle are discussed with the new owner. The Petitioner worked for the Respondent for approximately one year, and then in about August 2000, he moved with his wife and children to Chicago where his wife's family was located. In December 2000, the Petitioner returned to Florida after separating from his wife. He sought a job and was again employed as a technician by the Respondent. Although the Petitioner was born anatomically male, he psychologically identifies himself as female. The Petitioner has been aware of the issue since his early childhood. For various reasons, in Spring 2001, the Petitioner began a course of psychotherapy. During the psychotherapy, the Petitioner was diagnosed with gender identity disorder, a condition wherein the psychological perspective of a person does not correspond to the anatomical gender into which the person was born. After the diagnosis, the Petitioner continued with psychotherapy and in June 2001 began transitioning into living as a female, initially on a part-time basis. He lived as a female during non-work hours and as a male during his hours of employment. As time passed, the Petitioner decided to begin living as a female on a full-time basis. In July 2001, the Petitioner requested approval from the Respondent to take the last week of the year as vacation during which he planned to visit his children in Chicago. He also intended to begin living full-time as a female during the vacation. Some co-workers were already aware of the Petitioner's intent to begin living as a female. The Respondent's technicians work in teams of between six and ten employees per team. Each team has a foreman. Andrew Dietz was the foreman for the Petitioner's team. The Petitioner advised Mr. Dietz at some point in mid-2001 that he had been diagnosed with gender identity disorder and was planning to transition to life as a female. The Petitioner believes that for various reasons other employees may have been aware of the situation. In August 2001, the Petitioner informed the Respondent's human relations office that he intended to begin living as a female on a full-time basis and would return to work after the December vacation as a female. The human relations office apparently was supportive of the Petitioner's decision. The human relations office informed Allen Kelley of the Petitioner's intent to begin living as a female. Mr. Kelley was the manager in charge of the Respondent's service and delivery operations. There is no evidence that Mr. Kelley had any concerns about or objections to the Petitioner's decision to live as a female. In September 2001, the Petitioner began hormone treatments which resulted in physical changes to the Petitioner's body including breast development, but the Petitioner testified that the changes were not likely visible to an "untrained eye." The Petitioner also began to let his hair grow longer than he had previously. He began to wear acrylic fingernail extensions without polish. His ears were pierced. In December 2001, the Petitioner received a merit pay increase and was part of a team of technicians receiving an award for superior service. As planned, the Petitioner took the last week of December 2001 as vacation. During the Petitioner's vacation, Mr. Kelley conducted a series of meetings with the teams of service personnel and advised them that the Petitioner would return to employment as a female. Some employees expressed discomfort with the Petitioner's decision during the meetings, but Mr. Kelley advised them that the Respondent was going to "work as best we can to accommodate him." Also during the Petitioner's vacation, the Respondent re-labeled an existing single-user lockable restroom (previously identified as a women's facility) as a "unisex" facility to provide restroom access for the Petitioner. On January 2, 2002, the Petitioner returned as a female to his employment with the Respondent. He wore the same uniform he wore prior to the vacation. He put colored nail polish on the acrylic fingernails he had already been wearing. He added breast forms under the bra he had been wearing prior to his vacation. He wore makeup, including eye shadow and lipstick. The Respondent provided to the Petitioner, a nametag for his uniform identifying him as "Madalynn." There is no evidence that any person employed by the Respondent in a management position made any derogatory comments about the Petitioner, suggested that there should be any change in the Petitioner's appearance or behavior, or was otherwise unsupportive of the Petitioner's decision to return to work as a female. Mr. Kelley testified that beginning with the Petitioner's return to work on January 2, 2002, Mr. Kelley spent approximately two hours of each day dealing with issues related to the Petitioner's return to work as a female. Mr. Kelley testified without contradiction that there were complaints from several unidentified customers, to him and to sales staff, about having to interact with the Petitioner. The Petitioner acknowledged being aware of one specific customer who complained. Mr. Kelley testified that he advised customers that the Petitioner was a good technician, but that other employees were available to work with customers upon request. Mr. Kelley subsequently decided to address the issue by assigning other technicians to conduct vehicle walk-throughs with customers, and so informed the Petitioner. Mr. Kelley had to twice warn one employee (Bruce Dickens) who was loudly unhappy with the Petitioner's decision to live as a female, but after Mr. Kelley advised Mr. Dickens that further disruption by Mr. Dickens would result in unpaid suspension, Mr. Dickens refrained from continuing his complaints. Mr. Kelley testified as to "threats" relayed to him by employees who claimed to have knowledge that other employees were planning some unidentified action against the Petitioner, but Mr. Kelley was unable to recall the names of any of the employees involved in either the threats or the reporting of the threats. He did not advise the Petitioner of the alleged threats. He did not contact law enforcement about the situation. He made no written record related to the threats. Mr. Kelley monitored the employee parking area to ascertain whether any inappropriate activity was occurring, but observed nothing of concern. Mr. Kelley testified that between six to twelve times daily, he observed various groups of technicians standing around talking, and that he had to enter the service area and direct them to return to work. He did not overhear any conversations, but assumed that the conversations were related to the Petitioner. An incident involving graffiti placed in the "unisex" bathroom was resolved by removal of the graffiti after the Petitioner reported it to management. On January 7, 2002, the Petitioner was called to the human resources office where Mr. Kelley informed him that he was a substantial disruption in the workplace and that his employment was being terminated. Mr. Kelley testified that he was solely responsible for making the termination decision. There is no evidence that Mr. Kelley discussed the termination with the owner of the Respondent, or that any other employee was involved in Mr. Kelley's decision. The Respondent employed several homosexual technicians during the period of the Petitioner's employment who were not subjected to any adverse employment action. The Respondent employed a female employee who underwent breast enlargement surgery during the time the Petitioner was employed by the Respondent. The Petitioner testified that the female was a "distraction" at work that was not subjected to any adverse employment action.
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 complaint of discrimination filed by the Petitioner in this case. DONE AND ENTERED this 8th day of November, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 8th day of November, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Richard C. McCrea, Jr., Esquire Luisette Gierbolini, Esquire Zinober & McCrea, P.A. 201 East Kennedy Boulevard, Suite 800 Post Office Box 1378 Tampa, Florida 33601-1378 Craig L. Berman, Esquire Berman Law Firm, P.A. 111 Second Avenue, Northeast Suite 810 St. Petersburg, Florida 33701 Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was terminated from her position with the Respondent as a Certified Nurses Assistant (CNA) on or about July 1, 1995, on the basis of her race (white), in violation of Section 760.10(1)(a), Florida Statutes (1995).
Findings Of Fact The Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by Respondent as a CNA at Park Lake Nursing and Rehabilitation Center during the relevant period of time from April through July, 1995. Petitioner is a white female and a licensed CNA. Kay Vermette (“Vermette”), a white female, was the Director of Nursing at Park Lake and the department head over the entire nursing staff during Petitioner’s tenure. Vermette hired Petitioner as a CNA on April 18, 1995. Petitioner worked as a CNA at Park Lake for less than ninety (90) days when she was terminated by Vermette for verbal abuse of a resident on July 1, 1995. Joyce Donahue (“Donahue”), Assistant Director of Nursing at Lake Park during Petitioner’s tenure, was the second in charge of the entire nursing staff. Donahue, a white female, has been a Registered Nurse (RN) since April, 1990. On June 29, 1995, Mary Taylor (“Taylor”), a Licensed Practical Nurse, reported to Donahue she heard a loud voice and crying coming from the room of resident Matteye Samuels (“Samuels”). Taylor is black. Samuels was a black female and an elderly resident at Park Lake who needed assistance to perform all normal activities of daily living (ADL) and could not walk without assistance. As Donahue and Taylor approached Samuels’ room, they overheard a loud voice which they recognized as Petitioner’s and loud crying coming from another person. When Donahue and Taylor entered the room, they heard the resident crying in the bathroom area, where she sat on the toilet with only a robe draped over her, crying and trembling. Petitioner was very excited and pacing and was talking in a rapid, jarring, and incoherent fashion. Donahue and Taylor dressed Samuels and took her to the nurses’ station. Petitioner told Donahue that Samuels had thrown her around the room. Petitioner yelled at Samuels, “[y]ou are not a Nigger. I am not a Honky. Those aren’t really Jews. Those aren’t irate Indians,” while in Samuels’ room. When Donahue entered, Petitioner was pacing back and forth by the bed saying, “Nigger, Honky, Jews . . . this is enough of this.” Donahue told Petitioner to leave the room and wait in the employee break room. Donahue reported this incident to her superior, Vermette. Due to the severe nature of the incident, it was investigated immediately. Petitioner was placed on administrative leave, pending the investigation’s outcome. During the investigation, several witnesses came forward with information confirming the verbal abuse. Each witness provided a statement concerning her recollection. As an eyewitness to the verbal abuse of Samuels by Petitioner, Taylor and Sterling Brown, CNA, provided a written statement detailing her knowledge of the events. Donahue reported her findings to her supervisor, Vermette, both verbally and in writing. Vermette prepared a three-page, hand-written report which included the findings of her investigation, all of which confirmed the verbal abuse of Samuels by Petitioner. Verbal harassment of a resident is a Category I violation of Respondent’s disciplinary code. It subjects an employee to immediate suspension, followed by investigation. When an investigation confirms that a Beverly employee commits a Category I offense, the employee is subject to immediate termination. Petitioner received and signed the June 29, 1995, Associate Memorandum, which reflects that she was suspended while Respondent investigated the verbal abuse claims. The allegations of verbal abuse were investigated by Donahue, a white female, among others. The findings of the investigation and the proposed discipline (termination) were approved by Malley, the white female administrator. Petitioner was terminated by Vermette, a white female, who was the person who had, in fact, hired her. The three individuals who investigated the allegations of verbal abuse are white, as Petitioner. Petitioner’s statement regarding her treatment prior to the incident on June 29, 1995, and her version of the events that occurred on June 29, 1995, are not credible.
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 the Petition for Relief. DONE AND ENTERED this 18th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 COPIES FURNISHED: Jayne E. Griffith, pro se 2018 Gairloch Street Orlando, Florida 32817 Deborah Gibson, Esquire Jackson Lewis 390 North Orange Avenue Suite 1285 Orlando, Florida 32801 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997. Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent, a restaurant, unlawfully discriminated against the Petitioner, who is African-American, by refusing to serve her because of her race.
Findings Of Fact At approximately 2:25 p.m., on July 2, 2003, Petitioner, an African-American resident of Minneapolis, Minnesota, entered the premises of a Denny’s Restaurant located at 14697 Duval Road, Jacksonville, Florida, to eat a meal. Petitioner had spent the previous night in Gainesville, Florida, and had interviewed for a position with the City of Gainesville that morning before driving to Jacksonville to fly home to Minneapolis. Petitioner approached the wait stand and waited approximately three minutes to be seated. Petitioner noticed only five guests in the restaurant at the time she was seated, all of whom were Caucasian. Petitioner was seated close to a Caucasian family of four and a single Caucasian male seated at another table. Petitioner did not claim that she had been segregated in the restaurant, and admitted that she had been seated close to tables with customers of other races. Immediately after being seated, Petitioner asked the hostess for a cup of hot water with lemons, which was promptly delivered to her by the hostess. Petitioner was treated respectfully by the hostess. After the hostess left, Petitioner drank her beverage while she reviewed the menu and waited to be greeted by her server and to have her order taken. Although there appeared to be three servers in the restaurant at the time of Petitioner’s visit, only one appeared to be serving. The others appeared to be completing their “side work,” that is, restocking and end-of-shift cleaning duties. The only person actually serving customers during Petitioner’s visit was Rhonda Nicks, a Caucasian woman. The restaurant was short staffed during this period due to a shift change and another server’s failure to show for her shift. While she waited to be served, Petitioner observed that two Caucasian women entered the restaurant, were seated, and were promptly served by Ms. Nicks who appeared to be the only server in the restaurant. Petitioner next observed as a Caucasian man and woman entered the restaurant, were seated, then promptly had their drink and food orders taken and served by Ms. Nicks. After waiting 20-25 minutes, and not having her food order taken, or even being acknowledged by the server, Petitioner went to the cashier’s stand where she was met by Audrey Howard, an African-American employee of the restaurant, who asked Petitioner if she wanted to see a manager. Petitioner replied that she did want to see a manager, and one was summoned. After waiting a few minutes, Petitioner was greeted by a Caucasian manager who identified himself as Mike Kinnaman. After speaking with Petitioner, Mr. Kinnaman offered to immediately put in Petitioner’s food order, to even cook the meal himself, and to provide the meal at no charge. Petitioner refused Mr. Kinnaman’s offer, stating that she had to return her rental car at the airport, then catch a flight. Mr. Kinnaman then offered Petitioner a business card on which he wrote “1 free entrée, 1 free beverage, 1 free dessert . . . Unit #1789." Mr. Kinnaman told Petitioner that she could use the card for a free meal at another time. This offer was made based upon the manager’s belief that Petitioner did not have time to eat and needed to leave for the airport. After speaking with the manager, Petitioner left the restaurant at approximately 3:00 p.m. She drove the short distance to the airport, removed her luggage and belongings from the rental car, turned in the car, and received her receipt which showed that she had turned in the car at the airport Hertz location at 3:20 p.m. Although Petitioner told the Respondent’s manager that she had to leave to catch a flight, the evidence showed that Petitioner’s flight was not scheduled to leave for another four hours. Petitioner’s rental car receipt documented the fact that she had a two-day rental and could have kept the car for almost another full day. Petitioner was in no jeopardy of incurring additional rental car charges or of missing her flight when she hurried from the restaurant at 3:00 p.m. Although Petitioner observed only nine other customers in the restaurant while she waited to be served, Respondent’s records and the testimony of Audrey Howard, a former cook at Respondent’s restaurant, 24 customers were served in the restaurant between 2:00 and 3:00 p.m. on the day of Petitioner’s visit. Although Petitioner testified that she was the only African-American customer in the restaurant, Ms. Howard recalled a table of two African-American patrons who were served during the time period when Petitioner was in the restaurant. She specifically recalled these patrons because the gentleman returned his omelet to the kitchen, asking for more cheese. During her time in the restaurant, Petitioner observed only five employees. Respondent’s records demonstrate that 14 hourly employees were in the restaurant between 2:25 and 3:00 p.m. From where she was seated in the restaurant, it is likely that Petitioner could not see every customer and employee in the restaurant. Petitioner never attempted to call a server over to her table, nor did she ask the hostess to either take her order or ask a server to provide her with service while she waited. Petitioner did not complain to the manager that she had been discriminated against. She complained that she had received poor service. Respondent requires training for all of its employees on diversity and discrimination issues before they are allowed to work for Respondent. Every server who testified at hearing had specifically undergone diversity and discrimination training. Although Respondent has a history of past discrimination against African-Americans as evidenced by a consent decree entered into by the company with the United States Justice Department, it has since received national awards and recognition for its strides in the areas of discrimination and diversity. Respondent takes claims of discrimination very seriously, and has a zero tolerance standard for acts of discrimination by its employees. Respondent’s managers are required to report all claims of racial discrimination to a 1-800 hotline. No call was made by the manager in this case because he did not believe that a claim of discrimination had been made by Petitioner when she claimed she had received poor service. Petitioner offered no evidence that she had suffered damages as a result of the poor service she received at the restaurant.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Ms. McAdory's Petition for Relief. DONE AND ENTERED this 20th day of December, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan S. Erdelyi, Esquire Marks Gray, P.A. Post Office Box 447 Jacksonville, Florida 32201 Charlene McAdory 417 Oliver Avenue North Minneapolis, Minnesota 55405 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The ultimate issue is whether the Respondent, Tallahassee Coca-Cola Bottling Company (Coke), engaged in an unlawful employment practice on the basis of race in its termination of James Andrews, the Petitioner. Andrews was purportedly terminated because of allegations that he had repeatedly sexually harassed and touched female employees. Resolution of the ultimate issue does not require a determination of whether such sexual harassment actually occurred. Instead, the issue is whether Coke's motivation for the termination was racially based and thus impermissible.
Findings Of Fact Andrews, who is black, was initially hired by Coke in 1969 and worked on the production line until he quit in 1971. Andrews was rehired by Coke in 1973, also in the production department. He worked in various positions in both the production department and in the inventory warehouse, and was promoted to assistant production superintendent in 1977. When the production department was closed in June 1982, Andrews transferred to the warehouse as assistant warehouse supervisor. In 1983, he assumed the responsibilities of head shipping and receiving clerk, and was placed in charge of inventory control, plant security and vehicle maintenance. Warehouse Supervisor Dale Dunlap resigned in July 1988 and Andrews was promoted to Warehouse Supervisor. As warehouse supervisor, Andrews had primary responsibility for the overall management of the warehouse, including inventory control, shipping and receiving, personnel management, and warehouse and vehicle maintenance. Andrews' performance evaluations were generally excellent, but the most recent evaluations were less favorable than his earlier reviews. Reports of Sexual Harassment Prior to Andrews' termination reports of sexual harassment were made to Coke by three employees: Susan Lingerfelt, Mandy Stinson, and Sue Rosenthal (now Rubin). In summer 1989, Lingerfelt reported to Office Supervisor Mandy Stinson that Andrews had just grabbed her in the warehouse by the Coke machine and had forced her head back and kissed her. She had shoved Andrews into the Coke machine, told him not to do that, and went to report it to her supervisor. Because the Sales Center Manager had resigned and his replacement had not yet been appointed, the two women agreed not to tell anyone about the incident, but instead to wait until the new manager arrived. In February 1990, around Valentine's Day, Lingerfelt reported that Andrews came up behind her when she was sitting alone at a computer terminal, grabbed her hair, pulled her head back, and again kissed her on the lips. Lingerfelt again protested and tried to get away from Andrews. Lingerfelt again reported the incident immediately to Stinson. Stinson and Lingerfelt went immediately to Lee Burk, the new Sales Center Manager, and reported the incident and the earlier incident at the Coke machine. During this same meeting with Lee Burk, Stinson also complained that she had been repeatedly harassed by Andrews and that Andrews had come up behind her, given her a "bear hug," and tried to kiss her. Burk was confused about what had happened to Lingerfelt because a black employee, Roosevelt Humphrey, had reported to him a couple of months before that he had seen two employees consensually embracing at the Coke machine. Humphrey had not identified the two employees except to say one was a supervisor. Burk mistakenly believed that the two separate Coke machine incidents were the same event. Based on this mistaken belief, Burk thought that a supervisors' meeting would be enough to solve the problem. A few days later, Burk called a supervisors' meeting and discussed several topics, including sexual harassment. He redistributed and discussed Coke's written policy forbidding sexual harassment. Burk told all the supervisors in no uncertain terms that he would not tolerate unwelcome sexual advances at the plant and that if anything of that sort had happened, the supervisor had better clean up his act. In August 1990, Andrews again was reported by Lingerfelt for grabbing her hair, pulling her head back and kissing her on the lips. Lingerfelt tried to slap Andrews, but missed, hitting him on the shoulder. Lingerfelt went immediately to Stinson and they went to see Burk. Lingerfelt was quite upset and was crying. When Burk heard the report, he said he would take care of it. Lingerfelt left the plant for about an hour to collect herself. While Lingerfelt was gone, Burk called Andrews to his office and confronted him with the two women's allegations, including the previous reports by both women. Andrews categorically denied the allegations, except that he had once put his arms around Lingerfelt. He denied ever kissing her and said he did not mean anything by his actions. Burk stressed to Andrews that he could not touch any female employee again, even if he didn't think anything was wrong with it--that he must stop it. Andrews claimed that Lingerfelt had invited the contact by bumping against him and that she was making the allegations because he was black. Andrews also claimed that Lingerfelt had allowed sexually explicit advances from a white supervisor, Doc Roddenberry, and that Roddenberry, not Andrews, should be the subject of Burk's admonitions. Burk told Andrews that he had only gotten complaints about him (Andrews) and that if he continued with his unwelcome conduct, he could lose his job. No advances were reported by Lingerfelt for a few months, but she did complain that Andrews was uncooperative with her about work. In January 1991, Lingerfelt noted that Andrews was calling her frequently and spending long periods of time in her office. Because this behavior was similar to Andrews' conduct before the previous incidents, Lingerfelt became concerned. On January 16, 1991, Stinson was in Jacksonville at Coke's regional office. Lingerfelt became so concerned that she called Stinson in Jacksonville and reported that Andrews had spent several hours that day in Lingerfelt's office staring at her. Stinson immediately asked the Regional Human Resources Manager, Thomas Bauman, for assistance. Stinson informed Bauman of all the prior alleged sexual harassment by Andrews. The next day Stinson returned to Tallahassee and she and Lingerfelt spoke with Burk. Lingerfelt, who was visibly scared and crying, explained to Burk that Andrews had been standing around her office staring at her. Burk said he would address the problem immediately. After talking with Bauman and obtaining his approval, Burk called Andrews into his office and confronted him again. Andrews denied that he had been hanging around Lingerfelt's office staring at her. Burk then brought Stinson into his office to confront Andrews about his persistent harassment against her. Andrews denied the allegations and accused Stinson of "coming on" to him. Andrews again asserted that the women's allegations were racially motivated. He also brought up his allegations against Roddenberry and Lingerfelt and demanded to know why Roddenberry could "get away with it" and he couldn't. Burk advised Andrews that it was only his own misconduct which was being addressed at the moment. Burk also informed Andrews that the allegations of Andrews' misconduct would be brought to the attention of Bauman for further action. Shortly thereafter, Coke's Special Events Supervisor, Sue Rosenthal (now Rubin), reported several events of sexual harassment by Andrews. She had come forward to help support Lingerfelt. Coke's Investigation After discussing the situation and receiving instructions from Buddy Donaldson, Coke's Florida Human Resources Director, Bauman travelled to Tallahassee to conduct an investigation on January 24 and 25, 1991, into the allegations against Andrews. Bauman first met with Burk and received a briefing on the series of allegations. Burk reported the incident which Roosevelt Humphrey had reported to him, still thinking that incident involved Andrews. Bauman interviewed Lingerfelt, who related in great detail each of the alleged incidents set forth above. Bauman took notes and Lingerfelt signed those notes as being an accurate account of her statement. Bauman asked Lingerfelt whether she had any racial motivation for her reports. Lingerfelt denied that Andrews' race had anything to do with her allegations. At this meeting, Lingerfelt told Bauman that she had hired an attorney and had filed sexual harassment charges against Coke with the Florida Commission on Human Relations. Bauman next interviewed Roosevelt Humphrey. Humphrey told Bauman that the two people he had reported were Lingerfelt and Roddenberry, not Lingerfelt and Andrews. Humphrey also acknowledged that he had not seen any other such incidents involving Lingerfelt and Roddenberry since the one incident he had reported to Burk without giving names. Bauman then went to Lingerfelt and asked if Roddenberry had sexually harassed her. Lingerfelt denied that Roddenberry had ever harassed her. Bauman next interviewed Rosenthal. Rosenthal told Bauman that before she became a supervisor in early 1989, Andrews had engaged in unwelcome sexual conduct toward her on three occasions. The first two times, Andrews came up behind her in her office, lifted the hair on the back of her neck, and kissed her on the neck. The third time, Andrews surprised her by kissing her on the lips after she had finished a telephone call and had turned around. Rosenthal said she was too startled to say anything after the first incident, but after the second and third events, she told Andrews not to do that. She said she did not report these incidents at the time because she was new, young and nervous. Rosenthal also reported that she had recently seen Andrews "stalking" Lingerfelt, staring at her for long periods of time and waiting for Rosenthal to leave so that he could be alone with Lingerfelt. Bauman asked Rosenthal whether her allegations could be racially motivated. Rosenthal said race had nothing to do with it and, in fact, she lived with a black roommate. Rosenthal had selected that woman from a pool of applicants who had responded to her newspaper ad seeking a roommate. Bauman next interviewed Stinson. Stinson told Bauman of the harassment she had suffered from Andrews, which included several attempts by Andrews to hug and kiss her. She also related information about the times Lingerfelt would come to her and they would go to Burk about Andrews' actions toward Lingerfelt. On January 25, 1991, Bauman officially interviewed Burk. Burk related the actions he had taken, including the supervisors' meeting in February 1990 and the personal meetings with Andrews in August 1990 and January 1991. Burk also recommended that Andrews be terminated for sexual harassment and stalking. Suspension and Termination Bauman then called Donaldson and discussed the information he had learned. They decided that Andrews should be suspended immediately, pending a final decision. They also decided not to interview Andrews again because he had denied any wrongdoing twice, most recently a week earlier. They had no reason to believe that Andrews would recede from his denials. Before suspending Andrews, Bauman asked Lingerfelt and Stinson to leave the building. He did so because of his concern and the women's concerns about their personal safety, especially when Andrews was told of the suspension. As soon as the two women had left the building, Bauman called Andrews to Burk's office. They told Andrews that he was being suspended for conduct unbecoming a supervisor. Andrews wanted to know "who said what" about him, but Bauman declined to give him further details. As he was leaving Burk's office, not knowing that Lingerfelt and Stinson had left the building, Andrews shouted to the closed door of Stinson's office something to the effect of "Did you women hear that--are you happy now?" As soon as Andrews was escorted from the premises, Coke changed all the locks at the Tallahassee facility, which was standard procedure. Bauman also had an automatic front door lock installed so that no one could enter the front office without being pre-screened. The following week, Bauman and Donaldson reviewed all the information, including the interview notes which had been attested to by the three women. They concluded that sufficient evidence existed to require termination of Andrews' employment. On January 31, 1991, Donaldson came to Tallahassee, summoned Andrews to the facility, and terminated him for misconduct. The decision to terminate Andrews was based on a good faith belief that he had engaged in inappropriate sexual conduct on multiple occasions, despite and in the face of at least two warnings by the sales center manager. Coke did not immediately replace Andrews. Due to a "cost containment" program that had recently been instituted and because Tallahassee's volume was too low, Burk was not permitted to hire a replacement. In February 1992, more than a year later and after two neighboring sales centers were closed and their operations consolidated at the Tallahassee facility, Burk was allowed to hire a replacement. He hired the warehouse manager from one of the closed sales centers, a white male. Other Victims Come Forward While Coke knew of only three female employees who had been harassed by Andrews when Coke terminated him, three additional women also came forward to testify about sexual harassment they had suffered at the hand of Andrews. Johnnie Mae Marshall, a black woman who had worked for Coke as a receptionist, said Andrews had suggestively rubbed her arms and hands when she handed him documents. To stop it, she ceased to hand him papers, instead placing all such documents in a mail tray for him. Christen Cheshire, a white female telephone sales operator, testified that Andrews harassed her beginning in late 1988. She said Andrews came into her office once or twice a day, hugged her around the neck, and kissed or attempted to kiss her. This went on for about two months before Cheshire was able to persuade Andrews to stop the unwelcome advances. While Cheshire never reported Andrews' advances, Marshall remembers Cheshire complaining to her about it. Jeanie Benton, a white female who worked for Coke from 1987 to 1990, also testified about Andrews' unwelcome advances. One time when she rose from her desk and turned around, Andrews was right behind her and tried to kiss her. She told him to get back and leave her alone. On a later occasion, Andrews tried to massage her shoulders and she told him to stop. Thereafter, Andrews would stand in her office door and stare at her. Andrews' Claims of Discrimination Andrews' claims that the termination was motivated by racial discrimination and that Coke's reasons for terminating him were pretexts for discrimination. As evidence, he offered a story that Roddenberry committed egregious acts of sexual harassment and misconduct, but was not disciplined. Additionally, he alleged that a "white clique" wanted to get rid of him because they did not like that a black man was made warehouse supervisor. Not one shred of credible evidence was given to support Andrews' claims. Besides Andrews' own testimony, the only witness who claimed to have seen any sexually inappropriate conduct between Roddenberry and anyone, including Lingerfelt, was Roosevelt Humphrey. Humphrey was not a credible witness. First, he was terminated by Coke for stealing a check from a coworker and cashing it. Next, he said he saw Roddenberry and Lingerfelt three times a week with Roddenberry kissing Lingerfelt, rubbing her buttocks and her breasts. However, he was not even working at the warehouse during most of the time he said he saw this and his testimony was filled with contradictions and discrepancies. Finally, he named others who saw and discussed this behavior; but each of those named persons denied ever seeing any sexually inappropriate behavior between Roddenberry and Lingerfelt or other female employees. Andrews' suggestion that his termination was racially motivated by false reports from a group of white employees, including Lingerfelt, Stinson, Rosenthal, and Roddenberry, is also unworthy of belief. Andrews' purported to support his conspiracy theory with anecdotes about other white employees, Jeanie Benton and William Beck, who tried to help him in the face of the covert actions of the alleged conspirators. However, Benton and Beck both denied that the events Andrews described in his anecdotes ever occurred. Additionally, Andrews' version of all these incidents was simply implausible and inconsistent with the credible and substantial evidence. Finally, Andrews presented no credible evidence to rebut Coke's evidence of its legitimate reason for the termination. Andrews simply offered no competent or probative evidence of a racial motivation for his termination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order denying and dismissing the Petition for Relief filed by James Andrews, Jr. DONE and ENTERED this 23rd day of September, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 23rd day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2063 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, James Andrews, Jr. 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-3(1-3); 9-12(8-11); 17-19(13- 15); 23-25(20-22); 34(29); 36(31); 37(32); 40(35); 41(36 & 37); 42(38); 45(42); 46(43); 50 & 51(46); and 53(47). 2. Proposed findings of fact 4-8, 13-16, 20-22, 26-33, 35, 38, 39, 43, 44, 47-49, and 54 are subordinate to the facts actually found in this Recommended Order. 3. Proposed finding of fact 52 and 55 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Tallahassee Coca-Cola Bottling Co. 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 53(35). 2. Proposed findings of fact 4, 5, 12-17, 19, 20, 22-27, 29-36, 40, 43, 44, 47-52, 55, 56, 79, 80, 87-90, 127, and 137 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 6-9, 11, 18, 85, 91, 102, 107-113, 117, 118, 121, 128-130, 134, and 136 are unsupported by the credible, competent and substantial evidence. 4. Proposed findings of fact 10, 21, 28, 37-39, 41, 42, 45, 46, 54, 57-78, 81-84, 86, 92-101, 103-106, 114-116, 119, 120, 122-126, 131-133, 135, and 138-152 are irrelevant, repetitive, unnecessary, and contain summaries of testimony and argument which are not appropriate proposed findings of fact. COPIES FURNISHED: Marie A. Mattox Attorney at Law 3045 Tower Court Tallahassee, Florida 32303 William R. Radford Attorney at Law 5300 First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2339 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird General Counsel 325 John Knox Road Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent committed an unlawful employment practice against Petitioner by terminating her on the basis of her race.
Findings Of Fact Petitioner, an African-American female, was employed by Respondent in the position of Certified Nursing Assistant (CNA) from April 21, 2007, to February 21, 2008, when she was terminated. Respondent Employer is a provider of long-term and rehabilitative care to elderly patients and patients recovering from surgery. The majority of Respondent’s patients range from 60-to-90 years old. Upon hiring, Petitioner received a copy of the Employer’s Handbook. CNAs are responsible for patients’ basic needs, which include feeding, bathing, dressing, and turning. They are responsible for performing vital sign checks and providing reports to nurses on each patient’s health condition. CNAs are supervised by nurses, including Nurse Practitioners, Registered Nurses (RNs), and Licensed Practical Nurses (LPNs). The majority of nurses and CNAs employed by Respondent are African-American. At all times material, Petitioner regularly worked night shifts, beginning at 11:00 p.m. and ending at 7:00 a.m. the following day. Typically, fewer CNAs are scheduled to work the night shifts as compared to shifts scheduled between 7:00 a.m. and 11:00 p.m. The assignment of fewer CNAs to these shifts means that there is a greater need for those employees assigned to the night shifts to be alert and responsive to patients’ status, needs, and requests. Petitioner was scheduled to work a shift beginning at 3:00 p.m. on February 7, 2008, and then another shift from 11:00 p.m. February 7, 2008, to 7:00 a.m. February 8, 2008. She admitted that she worked a double shift spanning February 7, 2008, and February 8, 2008. The Employer’s records show that she had been paid for the period of time from 11:00 p.m. February 7, 2008, to 7:00 a.m. February 8, 2008. According to employee disciplinary reports admitted in evidence, Michelle Hatcher, LPN, an African-American female who was the night shift Charge Nurse, observed Petitioner and a Caucasian female CNA sleeping on the job on February 8, 2008. The two sleeping CNAs were not attending to patient call lights, which was an unsafe situation. Nurse Hatcher’s observation was confirmed by two separate, dated written statements provided by female African-American Nurse Felicia Rockett against each named CNA. “Discharge” was the proposed disciplinary action. Serious injury or death of a patient may result when a CNA fails to perform required job responsibilities. Respondent’s Employee Handbook describes “sleeping or inattention on the job” as a serious infraction which is subject to immediate discharge. Petitioner testified that she knew that sleeping on the job was a cause for immediate discharge and that it warrants termination “on the spot,” without prior warnings or progressive discipline. She denied ever sleeping on the job. Nurse Hatcher did not have authority to immediately terminate Petitioner and the sleeping Caucasian LPN “on the spot.” Nurse Hatcher was required to provide a written disciplinary report of the incident to the Director of Clinical Services, a/k/a the Director of Nursing, which she did. In turn, the Director of Clinical Services was responsible for reporting any termination of employment issue to Employer's Regional Director of Human Resources for review and a final decision on the appropriate course of action. Laura Register, a Caucasian female, had been appointed Acting Director of Clinical Services on or about February 7, 2008. She was new to the position, and there were many pending matters when she assumed the position, including disciplinary matters. Elaine Leslie, a Caucasian female and Respondent’s Regional Director of Clinical Services, visited Respondent’s Tallahassee facility two or three days per week for awhile to help acclimate Ms. Register to her new position and to assist her with pending matters. Mesdames Leslie and Register triaged resident care issues ahead of disciplinary actions. Therefore, there was a delay in addressing the two CNAs' disciplinary action forms. To ensure consistency and protect against bias, discrimination, and personality problems, Robert Walker, Respondent’s Regional Director of Human Resources, reviews and makes the final decisions with respect to all termination actions. This process is designed to ensure that uniform policies are applied to one and all equally. Ms. Leslie and Ms. Register contacted Mr. Walker, a Caucasian male, to review the disciplinary reports related to the charges of sleeping on the job. The three executives then reviewed the disciplinary reports of Nurses Hatcher and Rockett and believed their reports of Petitioner’s and the Caucasian CNA’s sleeping-on-the-job to be credible. Mr. Walker made the final decision to terminate Petitioner and the Caucasian CNA. He held a termination meeting with Petitioner, rather than terminating her by telephone. Petitioner’s termination date reflects when the termination actually occurred, on February 21, 2008, not the date of the offense or when the offense was reported to management. Respondent offered evidence of Petitioner sleeping on the job as the sole motivating factor in terminating her employment.1/ Respondent has a firm anti-discriminatory policy, of which Petitioner was aware because she signed a copy thereof upon her date of hire. However, Petitioner never complained to Mr. Walker about perceived racial discrimination, before or after her termination. At hearing, she denied any discriminatory treatment or any racial slurs or comments by any of Respondent’s employees at any time before, during, or after the incidents previously related. On February 29, 2008, which was after Petitioner’s February 21, 2008, termination, Respondent hired three new CNAs: one Caucasian and two African-American. Ten of the eleven CNAs hired by the Employer from February 5, 2008, to March 26, 2008, were African-American females.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 31st day of July, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 31st day of July, 2009.
The Issue The issue is whether Respondent discriminated against Petitioner based on her interracial personal relationships by creating a racially hostile work environment and causing her constructive termination.
Findings Of Fact Petitioner is a white female. At all times relevant to this proceeding, Petitioner was involved in an interracial personal relationship with a black man who was the father of Petitioner's child. At all times relevant to this proceeding, Respondent owned and operated several Taco Bell franchise restaurants in and around Santa Rosa County, Florida. Respondent employed approximately 190 people. Respondent hired Petitioner as a crew member in its Milton, Florida, restaurant on January 7, 1998. Petitioner's duties included operating the cash register and cleaning the dining room and restrooms. Respondent trained Petitioner to perform her assignments. Respondent showed Petitioner how to operate the cash register, wipe the tables, mop the floors, restock the condiments, clean the toilets, and replace paper supplies in the restroom. Respondent provided Petitioner with the necessary cleaning supplies, including but not limited to mop, broom, wiping cloths, cleaning solutions, disposable gloves, toilet brush, etc. Petitioner knew where Respondent stored these supplies. She knew it was her job to clean the bathroom before her shift ended so that the facilities would be clean for the next crew. Respondent also informed Petitioner about Respondent's policy against discrimination in the workplace. This policy, which tracked the language of Florida law and Taco Bell operating manuals, was posted on a bulletin board. Telephone numbers of the general manager, the district manager, and the operating officer/owner were also posted next to the telephone in the event that an employee needed to complain about working conditions. These numbers were visible from the door of the office. Additionally, the toll free number of the national franchise company was posted through out the store so that the public or employees could call in complaints. Respondent informed Petitioner that she would be on probation for three months. After three months, employees were eligible for a small raise if they were performing their jobs successfully. Respondent gave Petitioner the first of a series of training booklets that employees could study to learn more about the business. The first booklet contained the basic information that a food service worker needed to know, including the company's policy against discrimination. After studying each booklet, the employee would take a test. If the employee passed the test, he or she could progress to the next booklet. The training booklets were designed to prepare employees for supervisory and management positions. Petitioner never took the test for the first booklet. Petitioner rode to and from work every day with her shift supervisor, Ms. Ileane McCray, a black female. Petitioner and Ms. McCray lived in the same housing complex and worked the morning shift together. Ms. McCray was not prejudiced against interracial personal relationships; her own daughter was involved in an interracial personal relationship with a white man. Ms. McCray was responsible, in part, for introducing Petitioner to Dawn Young, the general manager of the Milton restaurant and the daughter of the owner/operator. Ms. McCray told Ms. Young that Petitioner's boyfriend was in jail and that Petitioner needed a job. Ms. Young interviewed Petitioner and made the decision to hire her. On July 18, 1998, Ms. McCray directed Petitioner to clean a restroom that had been vandalized by smearing feces on the walls. Petitioner refused to clean the restroom and left the premises without telling anyone. She never returned to work. After Petitioner walked off the job, she took a trip to visit family in the State of Washington. Upon her return, Petitioner visited Ms. McCray's home and showed her family pictures from the trip to the northwest. There is no persuasive evidence that Ms. McCray or Ms. Young ever made derogatory comments to Petitioner regarding her interracial personal relationship or her interracial child. Petitioner's testimony in that regard is not credible. On the other hand, Ms. McCray's testimony that she did not make derogatory remarks about interracial couples was persuasive. Under Respondent's chain of command, an employee who had a problem with a supervisor could contact the general manager and so forth up the line. Employees also could approach the owner/operating officer directly because he visited the Milton restaurant almost every day. Before Petitioner quit her job, Petitioner never complained to Ms. Young or anyone else about Ms. McCray's making racially hostile comments. Petitioner never called the district manager or the operating officer/owner to complain. The latter visited in the store almost everyday that it was open. Petitioner never called the national toll-free number. Petitioner worked for Respondent approximately six months. During that time, Respondent failed to call or show up for work on one occasion. Ms. Young and Petitioner signed an employee consultation memorandum on April 30, 1998, indicating that Petitioner would be terminated if she failed to call or show up for work again. Respondent was paying Petitioner $5.15 per hour in wages when she quit her job in July 1998. Petitioner did not return to work until November 1998.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on December 8, 2003.
Findings Of Fact Petitioner is an African-American man who was employed by Respondent from July 16, 2003, until his termination on October 28, 2003. Respondent, North Florida Lubes, Inc., d/b/a/ Texaco Xpress Lube, is an employer within the meaning of the Florida Civil Rights Act of 1992. Respondent operates more than 25 Texaco Xpress Lube stores in Florida and is headquartered in Jacksonville, Florida. Brian Fowler is Respondent’s owner and president. In the summer of 2003, Respondent acquired two lube stores and a car wash in Ocala, Florida. Prior to their acquisition by Respondent, these Ocala stores were owned and operated by John Costa. One location included both the car wash and lube store and is located at 3680 East Silver Springs Boulevard. It was purchased in June 2003 and once acquired, Respondent designated it as Store No. 1018 (1018 Store). The other location, which is located at 1708 East Silver Springs Boulevard, was acquired by Respondent in July 2003, is a lube store and has been designated by Respondent as Store No. 1020 (1020 Store). Respondent leases the 1020 store from John Costa under a lease purchase agreement. At the time of their acquisition, both stores were in very poor condition, and Respondent made major repairs and improvements. The 1020 Store was in worse condition than the 1018 Store. Due to extensive renovations, the 1020 Store did not open for business until the beginning of August 2003. At the time Respondent acquired these two Ocala stores, neither store was earning a profit. The 1018 Store was barely breaking even and had monthly sales revenues dating back to June of 2002 of between $11,000 and $14,000 per month. These sales figures were based on a volume of about 350 cars per month and equated to a monthly ticket average of $28 per car. Prior to the acquisition by Respondent, the 1020 Store was doing even worse with a monthly sales revenue of between only $9,000 and $11,000. Since Respondent has taken over these stores, they have virtually doubled their total sales. Currently, Respondent's 1018 Store averages between $32,000 and $34,000 in monthly sales; whereas the 1020 Store has increased its monthly sales revenues by 30 percent. Respondent's normal and expected ticket average company-wide is between $47 and $50 per car. Immediately prior to Respondent’s acquisition of the two Ocala lube stores, Petitioner worked for Mr. Costa as the manager of what is now the 1020 Store. He was the manager of the store for three years and had several years of oil-changing experience. Another employee of Mr. Costa’s was a white male, Jason Yates, who managed what is now the 1018 Store. About the time of Respondent’s acquisition of the two stores, Petitioner went on vacation. When he returned, the 1020 Store was closed, so he went to the 1018 Store. As there had been a change in ownership, Petitioner applied to work for Respondent. He was offered and accepted a job as an oil changer and lube technician with Respondent and began work at the 1018 Store. Mr. Yates also was offered and accepted a position as an oil changer and lube technician with Respondent. Mr. Yates began employment with Respondent in June 2003 at the 1018 Store, several weeks before Petitioner began his employment with Respondent. Both Petitioner and Mr. Yates believed they were in training for a management position. However, there is not an official job title of "manager-in- training" within Respondent’s company. Hourly employees can receive on-the-job managerial training. In any event, there is no dispute that both Petitioner and Mr. Yates performed oil changing duties and that Respondent provided Petitioner with some managerial training during his employment. When Petitioner began working at the 1018 Store, Mark Shepherd was store manager and was responsible for training new staff with Respondent’s business practices and rules. Mr. Shepherd showed Petitioner how to run Respondent’s computer software programs, how to calculate money received, and how to open and close the store. Then Respondent transferred Richard Grant, an experienced store manager from Respondent’s Daytona Beach area, to manage the 1018 Store. Mr. Grant supervised Petitioner for a couple of months before Mr. Grant voluntarily resigned due to what he described as the pressure associated with running the 1018 Store. Petitioner was given on-the–job training with respect to making sales and greeting customers. According to Mr. Grant, Petitioner was not good at greeting customers or making sales because he was slow, quiet, and not out-going. Mr. Grant described Petitioner as having a poor attitude and always complained about the way Respondent did things and the operational changes since Respondent’s acquisition of the store. Respondent emphasized to Mr. Grant that it wanted its employees to be energetic, enthusiastic, and upbeat, and Mr. Grant felt that Petitioner did not have those characteristics. Mr. Grant repeatedly counseled Petitioner about wearing his safety glasses while at work, which was part of Respondent’s safety policy. Further, Mr. Grant counseled Petitioner on the importance Respondent placed on maintaining clean work areas. He described Petitioner’s work area as not clean and the worst "basement" (i.e., oil changing area) that he had ever seen. Larry Campbell is a regional or district manager for Respondent. This position is directly under the president of the company in the chain-of-command. Mr. Campbell oversees approximately a dozen lube stores and the car wash. He spent a great deal of time in the 1018 Store during Petitioner’s employment there. At one point, Mr. Campbell was asked by Mr. Grant if he should fire Petitioner. However, Mr. Campbell wanted to give Petitioner a chance to come around to Respondent’s way of doing business. Specifically, on a daily basis, he gave Petitioner the opportunity to greet customers, ring out tickets, work on the computer, work the clipboards, and conduct sales. However, Mr. Campbell also expressed similar concerns regarding Petitioner, to those of Mr. Grant. According to Mr. Campbell, Petitioner was quiet, slow, lacked energy and enthusiasm, was resistant to Respondent's ways of doing things, and would not smile or make eye contact with the customers. Although Petitioner received training on Respondent's procedures, he did not follow those procedures, even after being counseled by Mr. Campbell to do so. Petitioner also would not promote sales or specials that Respondent was offering to the customers despite being counseled to do so by Mr. Campbell. Mr. Campbell also described Petitioner as consistently displaying a bad attitude at work that got worse as the day progressed. As a regional manager, Mr. Campbell, along with Respondent's president and owner, Mr. Fowler, participates in the hiring of store managers. Respondent looks for positive, motivated, and enthusiastic individuals with leadership qualities; however, Mr. Campbell did not observe these qualities in Petitioner. Mr. Fowler also had occasion to observe Petitioner's attitude and work ethic at the 1018 Store. Like both Messrs. Grant and Campbell, Mr. Fowler found Petitioner to be quiet, stand-offish, and resistant to Respondent's way of doing things. Respondent's Business Philosophy and Practices Although both Mr. Costa and Respondent successively operated oil change businesses in the same two locations, the manner in which these two businesses were run was very different. Respondent has uniform standards to which all employees are required to adhere, regardless of whether they are responsible for sales, changing oil, greeting the customers, or ringing the customers out. Respondent has policies and procedures for how every position is to be performed. Respondent also has policies addressing how its employees will act, communicate, conduct themselves, and dress in the workplace. For example, employees are required to be well-groomed and wear clean uniforms with their shirt tails tucked in. Further, employees are specifically required to use certain commands and perform services in a certain order. By contrast, Mr. Costa's lube stores had no procedures or controls, no communications, no "echo system," and no standard methodology for servicing cars. In Respondent's business, efficiency is considered to be critical. As a result, Respondent strives to service each car in under ten minutes and places an emphasis upon its employees to "hustle" while on the job. In particular, Respondent has a "five second" rule, which mandates that its employees must greet a customer within five seconds of the customer's arrival. Respondent specifically trains its employees concerning not only how to work quickly, but also how to appear knowledgeable, friendly, and helpful to its customers. Unlike Respondent, the previous owner placed no such pressures on his employees. Similarly, Respondent has established a ticket average quota, which the previous owner did not. Respondent also has strict safety policies. These policies are reduced to writing and are reviewed with all of Respondent's employees. These safety policies have been approved by OSHA and all employees are expected to follow them. One such safety policy is the requirement that employees wear safety goggles or glasses at work. In Respondent's very competitive business, all employees, no matter what position they hold, are expected to exhibit an upbeat and enthusiastic attitude. Respondent’s philosophy is that a negative attitude can drain the efficiency of the work team at a store. Also, a positive attitude is considered important because each day, every employee of Respondent's has some customer interaction. Respondent believes that a positive attitude is so critical for its employees to have that it states on the first page of its Employee Handbook that: North Florida Lubes is committed to service excellence, quality control and employee personality. North Florida Lubes demands the highest standards from its employees, as the quick lube and car wash industries become more and more competitive every year. Over the years, North Florida Lubes has improved training methods, computer systems, equipment and service procedures to insure the highest level of employee and customer satisfaction. It is the philosophy of North Florida Lubes that well trained employees, with positive attitudes, will enjoy a long, fulfilling career with any company they choose to work for. At North Florida Lubes, we hope that you will enjoy your employment experience and that you will be involved with the growth of America's fastest growing Texaco Xpress Lube operator. Remember, a consistent positive attitude, dependability and personality will be your greatest assets in growing with North Florida Lubes. Respondent's Promotion of Other Employees to the Position of Store Manager. Respondent did not promise Petitioner that he would be promoted to a store manager position. Notably, Petitioner acknowledges that at the time he was hired by Respondent, that he had not yet learned Respondent's methods of operation. Petitioner also acknowledges at the time he was hired, the 1018 Store had both a store manager, Mark Shephard, and an area manager, Mike Dogherty, based there. Petitioner further concedes that Respondent never told him that he was not being considered for a managerial position because he was African- American. The determination of who is or is not qualified to be promoted to the position of manager of one of Respondent's lube stores is made by Messrs. Fowler and Campbell. Respondent's promotion policy states that if there are two or more employees whose qualifications are similar, seniority will be part of the selection decision, but the decision will not be made on that basis alone. It also clearly states that an employee must be qualified in order to receive a promotion and that if there are no qualified applicants within the company, the best qualified candidate will be chosen. In early August of 2003, Mr. Campbell transferred Mr. Yates to be the manager of the newly-opened 1020 Store. At the time, Mr. Yates had more seniority and experience working for Respondent than Petitioner did, as he had been working at the 1018 Store about a month-and-a-half longer than Petitioner. Mr. Campbell decided to place Mr. Yates in charge of the 1020 Store because he had achieved all of the goals Respondent was looking for. Specifically, Mr. Yates met Respondent's ticket average, he could operate the computer, and he followed Respondent's procedures. Mr. Campbell also described Mr. Yates as energetic and trying to apply himself. By contrast, Mr. Campbell found that Petitioner did not perform these same functions, despite being given numerous opportunities to do so and despite being given instruction as to what he was doing wrong. Mr. Campbell specifically counseled Petitioner while he was receiving on-the-job managerial training that he was not getting the job done. Ultimately, because of his poor attitude, lack of leadership skills, inability to meet Respondent's ticket average, and promote Respondent's products and services, Mr. Campbell, and ultimately Mr. Fowler, determined that Petitioner was not appropriately suited to be one of Respondent's store managers. Under Respondent's promotion policy, if there are no qualified applicants within the company to fill a vacancy, Respondent may look outside of the company to hire the best qualified applicant. This is what Respondent did with James Bailey when it determined Petitioner to be not qualified. After Mr. Grant resigned as manager of the 1018 Store in early October of 2003, Respondent hired James Bailey, a white male, to manage that facility. At the time Mr. Bailey was applying for this position, Messrs. Campbell and Fowler had already determined that Petitioner did not have the necessary qualifications to be one of Respondent's store managers. Upon making this determination, Mr. Campbell informed Petitioner that he was not suited to be one of Respondent's store managers. Mr. Bailey was interviewed by Mr. Campbell and then hired by Messrs. Campbell and Dougherty, with Mr. Fowler's approval. Prior to working for Respondent, Mr. Bailey had spent approximately eight years working for Denro Service Center as an automotive mechanic's helper. In that capacity, he performed oil changes, lube jobs, tune-ups and brake jobs in New York. Over the course of his employment with Denro Service Center, Mr. Bailey performed hundreds, if not thousands, of oil changes. Mr. Bailey also possessed approximately 15 years of managerial experience before coming to work for Respondent. In particular, he had managed a Subway Restaurant and a Kwik King Convenience Store, as well as the Denro Service Center. During the time he managed a Subway Shop, he doubled that store's sales and credits himself with driving the Miami Sub Shop across the street out of business. Since Mr. Bailey became the manager of the 1018 Store, the sales at that location have drastically increased. By following Respondent's system to the letter, the 1018 Store went from monthly sales of $13,000 in January of 2003 (i.e., when Costa owned it) to $35,000 in January of 2004. In addition to Messrs. Grant, Campbell, and Fowler, Mr. Bailey also had an opportunity to observe Petitioner while he worked at the 1018 Store. Mr. Bailey described Petitioner as being unmotivated, lackadaisical, stand-offish, unprofessional, and surly. According to Mr. Bailey, Petitioner spent more time at work on his personal cell phone than he did working on cars. Mr. Campbell insists that Petitioner's race played no role in the decision not to promote Petitioner. Mr. Campbell has promoted several African-American employees, including Michael Ghent and Marvin Freeman, to managerial positions in Respondent's operations. Mr. Campbell has also recommended another African-American for such a promotion, but that employee declined. Mr. Ghent has managed a store for Respondent for approximately nine years and asserts that he has never experienced anything which he considered to be racial discrimination from Mr. Campbell. Similarly, Mr. Freeman currently serves as a store manager for Respondent and has managed a total of four of Respondent's stores. Mr. Freeman is familiar with Messrs. Fowler, Campbell, and Dogherty and asserts that he has never been subjected to racial discrimination by any of these individuals. Further, Mr. Campbell recommended Mr. Freeman for a promotion which he received, and Mr. Freeman was hired back after he voluntarily left employment to work for another company. Respondent's Termination of Petitioner According to Mr. Campbell, Petitioner's attitude and work ethic declined further after Respondent hired Mr. Bailey. In particular, Mr. Campbell described Petitioner as always having a negative attitude and showed no interest in doing things the way Respondent wanted them done. Although Mr. Campbell spoke to Petitioner about his deteriorating attitude before he was terminated in an effort to allow him to change, Mr. Campbell did not observe improvement in Petitioner's work habits. On October 28, 2003, Respondent terminated Petitioner's employment. Although Messrs. Campbell, Dogherty, and Fowler were involved in the decision to terminate Petitioner, Mr. Fowler made the ultimate decision. The decision to terminate Petitioner was made because of Petitioner's: negative attitude, which was impacting Respondent's other staff; (b) unwillingness to learn Respondent's way of doing things; and (c) constant resistance to the changes Respondent implemented in the workplace. At the time of his termination, Petitioner had been given almost four months to turn his attitude and performance problems around, yet he had not done so to the satisfaction of Respondent. Petitioner's Allegations of Discrimination Petitioner initially claimed that three employees of Respondent, Messrs. Campbell and Dogherty, and Kathy Dogherty, are the individuals who discriminated against him on the basis of his race. Ms. Dogherty was the manager of the car wash facility which was also located at the 1018 Store. Petitioner alleges she made racially offensive comments to him. Petitioner acknowledges that store managers, Messrs. Shepherd and Grant, did not discriminate against him and now concedes that Mr. Dogherty did not make any racially derogatory remarks against him and did not articulate any other form of discrimination regarding Mr. Dogherty. Ms. Dogherty did not testify at the hearing. Accordingly, any alleged statements by her are hearsay and are not sufficient in itself to support a finding of fact as contemplated by Subsection 120.57(1)(c), Florida Statutes. Petitioner asserts that Mr. Campbell made two racially discriminatory remarks about him. On one occasion, Petitioner alleges that Mr. Campbell stated that he (Petitioner) made more money on his cell phone than he did working for Respondent. Petitioner never heard Mr. Campbell make this statement nor did he ever confront Mr. Campbell about the statement, after learning of it, to ascertain what Mr. Campbell may have meant by it, because he "didn't want to rock the boat." Instead, this statement was overheard by Mr. Yates, who perceived Mr. Campbell to mean that because Petitioner was African-American, he must be selling drugs on his cell phone. Mr. Yates admitted, however, that Mr. Campbell did not say anything about Petitioner's race when making this statement and that he did not know what Mr. Campbell's intent was in making this statement. Mr. Yates further conceded that he witnessed Petitioner on his cell phone at the time Mr. Campbell made this statement and that Petitioner, who was being paid an hourly wage, was talking on his personal cell phone while on company time. Mr. Yates also acknowledged that Respondent had a policy in its Employee Handbook restricting the receipt of personal calls while at work. Mr. Campbell acknowledges making the statement that Petitioner made more money on his cell phone than he did working for Respondent, but denies that he intended any racially derogatory connotation or that he was implying Petitioner was dealing drugs. According to Mr. Campbell, Petitioner spent an inordinate amount of time on his cell phone attending to personal business while on company time, instead of performing work; thus, what he meant to convey was that Petitioner was being paid by Respondent to be on the phone instead of performing his job. Petitioner's cell phone usage while at work was frustrating to Mr. Campbell because it was not productive, it caused a distraction in the workplace, and it was contrary to Respondent's personal phone call policy. Mr. Campbell was not the only one of Petitioner's supervisors to remark about Petitioner's excessive cell phone usage at work. Mr. Bailey asserted that Petitioner spent more time talking on his cell phone than he did working on cars and that Petitioner was on his cell phone while draining oil from the customer's cars. Similarly, Mr. Grant noted that Petitioner used his cell phone while on company time "quite a lot." Respondent's Quarterback Rating System is a percentage-based rating system for Respondent's managers similar to the system used in the National Football League (NFL) for rating quarterbacks and consists of four rating categories: meeting the monthly sales quota; (2) meeting the agreed-upon ticket average; (3) servicing a certain number of cars per month; and (4) not exceeding the labor cap. Petitioner alleges that once while explaining Respondent's Quarterback Rating System, Mr. Campbell instead talked to him about a basketball analogy so that Petitioner could understand it. Mr. Campbell, while acknowledging talking about basketball and other sports to Petitioner, denies ever making such a comment and further states that he cannot envision how to explain Respondent's Quarterback Rating System via a basketball analogy, because it is distinctly based upon the game of NFL football (which has a quarterback) and is not comparable to the game of basketball (which does not have a quarterback and does not use a similar rating system). After weighing the credibility of the witnesses, the undersigned finds Mr. Campbell's explanation of any basketball reference to be credible and such explanation is accepted. Petitioner acknowledges that he never complained to Mr. Fowler about any racial remarks or discrimination at any time during his employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of January, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 January, 2005.
