The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has been the victim of employment discrimination by reason of his being terminated, allegedly on account of his physical disability.
Findings Of Fact The Petitioner is an "employee" as defined in Chapter 760, Florida Statutes, and the Respondent meets the statutory definition of "employer" appearing in that Chapter. The Petitioner is a truck driver by occupation and was employed by the Respondent, Gurley Refining Company, in that capacity from February, 1982 until February 11, 1988, with the exception of a very brief period of time when he performed some other duties for that firm. This cause arose under the auspices of the Florida Human Relations Commission, an agency of the State of Florida constituted in Chapter 760, Florida Statutes. It is charged by that Chapter with oversight of working conditions and circumstances between employers and employees in Florida to the extent that the agency, under the mandate of Chapter 760, provides a procedure whereby employee claims of employment discrimination on account of race, age, sex, religion, national origin or disability can be adjudicated in a due process hearing environment, including hearings before the Division of Administrative Hearings in the event such claims culminate in formal disputes. During the course of the Petitioner's employment with Gurley Refining Company, in addition to being employed as a truck driver (the vast majority of his duties with that company), the Petitioner also had significant experience as a warehouse employee, handling the company's inventory and freight. The Petitioner had an unblemished record as a truck driver for the Respondent company. He had no disciplinary altercations with his supervisors and his attendance record was characterized by very few absences, sick leave and little tardiness. In approximately early January of 1988, the Petitioner suffered an acute myocardial infarction (heart attack), which necessitated his absence from work for a period of approximately thirty days. His treating physician, a cardiologist, Dr. Story, of Orlando, released him approximately a month after his heart attack, but admonished him to engage in light duties, and restricting him against lifting weight in excess of seventy pounds. During the course of his illness, the operations manager of the Respondent's Lake County facility and Petitioner's supervisor, Mr. Kenny Hart, had assured the Petitioner that his job would be waiting for him as soon as he recovered from his illness. In fact, however, in early February, when the Petitioner was released by his doctor to return to his job, with the restrictions mentioned above, the Petitioner requested his former job back and was refused. Mr. Hart indicated to the Petitioner that he would not hire him back, and in fact terminated him due to his medical condition, as Mr. Hart explained it. The Petitioner's doctor had not restricted him from doing his same job or from working an eight hour day, but merely had restricted him against lifting more than seventy pounds at any one time. When Mr. Hart refused to put him back to work in his old job, the Petitioner requested to be assigned to duties in the company's warehouse or bottling plant. The company had an operation involving bottling of windshield washer detergent fluid. The Petitioner had had substantial experience in those operations, especially as a checker of merchandise and as a forklift operator in the company warehouse. His physical disability would not preclude him from performing those functions. Mr. Hart, and his superior, Mr. Helton of the company's office in Memphis, Tennessee, declined to place the Petitioner in such an employment position with the company. There have been a number of instances in which the company accommodated employees by placing them at work at various positions in the company operations during the period of time they were on medical restrictions by their doctors due to some disability or illness. The Petitioner described one case in particular involving an employee who had surgery for amputation of his leg and who was allowed to come back to work performing various minor jobs during his convalescence in order to allow him some gainful employment, later being restored to more meaningful permanent duties. The Petitioner was not thus accommodated, however. The Petitioner could have performed any of the types of duties mentioned above, involving the warehouse or the bottling plant or driving a truck once again, because all were within the scope of his years of experience with the company and his physical abilities, even as restricted by his doctor. The Petitioner was making $7.80 an hour when he was terminated and during the year after his termination from February 11, 1988 to approximately February 1, 1989, the Petitioner was not able to get regular employment. For a time after termination, he was receiving unemployment compensation and thereafter worked at casual labor jobs involving loading and unloading trucks for a trucking company. He also worked at laying sewer lines, doing manual labor. During the year after his termination, the Petitioner and his wife earned approximately $18,000. Four thousand dollars of that sum was from the wife's part-time employment. The Petitioner had grossed approximately $30,000 in the past full year he worked for the Respondent company, that is, 1987. In February, 1989, the Petitioner again obtained full-time employment in a truck driving position with another firm. He is again making approximately $30,000 gross salary per year. At the time Petitioner was off work from his job with the Respondent due to his heart condition, and at the time of his termination, no mention was made or information given him about any right to medical disability to leave. The Petitioner apparently missed approximately thirty days of work, and then was terminated under the above conditions and circumstances.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, and the candor and the demeanor of the witnesses, it is therefore, RECOMMENDED that a Final Order be entered by the Human Relations Commission finding that an unlawful employment practice occurred by Respondent's discrimination against the Petitioner on account of his handicap, and that he be accorded all relief allowed under the above-cited authority, including back pay of $16,000 and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ENTERED this 16th of October, 1989, at Tallahassee, Florida. P MICHAEL RUFF Hearing Officer Division of Administrative Hearings, The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1989. COPIES FURNISHED: Mr. Allen Reynolds 2356 Oliver Avenue Leesburg, FL 32748 Mr. R. D. Helton Director of Operations Gurley Refining Company Post Office Box 626 Memphis, Tennessee 38101 Dana Baird, General Counsel Florida Commission on Human Relations Suite 240, Building F 325 John Knox Road Tallahassee, FL 32399-1570 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 =================================================================
The Issue Does the Florida Commission on Human Relations have jurisdiction of this matter? Does the Division of Administrative Hearings have jurisdiction of this matter? Did Respondent discharge Petitioner for refusal to be tested for drugs or drug use?
Findings Of Fact Petitioner worked for Respondent for about 60-days prior to May 4, 2001, as a tractor-trailer driver. Respondent is in the logging business. On May 2, 2001, Petitioner injured his back while on the job. He did not report this to his supervisor who was operating equipment deep in the woods. Petitioner told a co-worker, who was moving between the supervisor's location and Petitioner's location, to tell the supervisor he had hurt himself. On the evening of May 2, 2001, Petitioner was in severe pain. He called his employer the morning of May 3, 2001, and reported that he could not come to work. The company's business manager, Charlotte Lanier, advised him not to go to the hospital emergency room and made an appointment at 1:30 p.m. that afternoon for him to see a Chiropractor, Dr. Hutchens, who had treated other employees. Petitioner agreed to see Dr. Hutchens. Charlotte Lanier called the insurance company and found out that Petitioner had to be referred by a medical doctor to see Dr. Hutchens and had to have a drug test. Petitioner saw the Chiropractor, Dr. Hutchens, and was X-rayed, and given message therapy. He was in contact with Mr. Tuten's office. Ms. Lanier had been getting drug tests done by Dr. Hutchens; however, she called the doctor and found out that he was not testing. Ms. Lanier then had to make an appointment with another doctor for the test. She called Dr. Hidalgo and arranged for Petitioner to go there; but that doctor's office was getting ready to close early on Friday afternoon. Ms. Lanier then called Dr. Hutchens office again for Petitioner, but she did not connect with him. Petitioner finally got word from Ms. Lanier to go to Dr. Hildago's office for a drug test. However, when he got there, he was told he needed a referral from the office of the medical doctor, Dr. Mohammed. Petitioner went to Dr. Mohammed's office for the referral, but when he got there, Dr. Mohammed's office would not write a referral without an examination. By the time Petitioner had finished with Dr. Mohammed's examination, Dr. Hidalgo's office was closed. At this point, Petitioner went to his employer's office to pick up his pay check. What happened there is subject to controversy and conflicting testimony. Petitioner testified that when he got to the office of the employer company, Mr. Tuten and several of his friends were standing in the workshop/garage. Petitioner told Mr. Tuten that he was unable to see the last doctor because of Dr. Mohammed's insistence that he be examined prior to writing a referral. Mr. Tuten and others testified that Petitioner came in and was very agitated. Petitioner told Mr. Tuten that because of the pain he had had the previous night, he had taken drugs belonging to a friend and smoked a marijuana cigarette. Mr. Tuten fired Petitioner for violating the company's drug policy.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that if the Commission determines the Division does have jurisdiction, or that, for reasons of judicial economy it wishes to adopt the finding and conclusions herein as its own, the Commission enter its order denying relief. DONE AND ENTERED this 24th day of October, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 H. B. Tuten H. B. Tuten Logging, Inc. 3870 US Highway 90, South Perry, Florida 32348 Michael D. Metz 2946 Dorman Road Perry, Florida 32348 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether respondents are guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, including the pleadings and argument of counsel, the following findings of fact are determined: Petitioner, Carolyn E. Simmons, is a black female. In 1990, she began employment as a cook with respondent, Inverness Inn (Inn), an employer allegedly subject to the Florida Human Rights Act, as amended. At that time, the Inn was owned by respondent, Cvetko Blazevski. On March 25, 1992, petitioner filed a charge of discrimination with the Commission on Human Relations (Commission) alleging that she was "harassed and subjected to racial terms by Mr. Cretko (sic) Blazevski, Owner, from the beginning of (her) employment until the present time." For the purpose of ruling on this motion only, the undersigned has accepted this allegation as being true. The charge of discrimination, and the petition for relief subsequently filed, did not specify the relief being sought. In April 1992, Blazevski's ownership in the Inn was terminated by a court, and the Inn later closed and went out of business. Petitioner continued to work in her position as a cook after Blazevski left the Inn and until it closed. According to petitioner's counsel, Simmons seeks only compensatory damages against respondents for their conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order dismissing with prejudice the petition for relief. DONE AND ENTERED this 27th day of October, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1993. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Kenneth S. Stepp, Esquire 305 North Apopka Avenue Inverness, Florida 34450 David L. Wilcox, Esquire 452 Pleasant Grove Road Inverness, Florida 34452
The Issue Did the Respondent engage in a discriminatory employment practice by suspending the Petitioner from work?
Findings Of Fact The Petitioner, Joeann F. Nelson, is a Black female. In 1997, she was employed as an aide working with developmentally disabled persons at Sunrise Community, Inc. The Respondent, Sunrise Community, Inc. (hereafter “Sunrise”) is an employer within the meaning of the Florida Civil Rights Act of 1992. On or about April 24, 1997, the Petitioner was suspended from her employment for a number of days by Sunrise. The Petitioner filed a complaint with the Florida Commission on Human Relations (hereafter “the Commission”) on May 8, 1997, alleging that her suspension was racially motivated, and a violation of Chapter 760, Florida Statutes. The staff of the Commission investigated the complaint, and issued its Determination of No Cause on May 16, 2000. At the same time, the Commission gave the Petitioner notice of her right to an administrative hearing on the Commission’s findings. The Petitioner, while employed by the Respondent, was asked by her immediate supervisor to participate in taking residents of the facility to their group home. The Petitioner refused to take the residents complaining that another co-worker was scheduled to take the residents on the day in question. The supervisor told the Petitioner that the person who was scheduled to take the residents was too old to handle that job, and the Petitioner got into an argument about this matter. As a result of this refusal to take the residents and the argument, the Petitioner was suspended for a number of days. The refusal to follow the directions of her supervisor regarding her work and the confrontational argument with the supervisor over being asked to do a specific task that was within her job duties generally were sufficient cause for discipline. The Petitioner did not show that she was singled out or treated differently because of her race, either in being asked to perform the task or in being suspended for refusing to do the task. Subsequently, the Petitioner filed a second complaint with the Commission on June 30, 1997, and raised additional issues regarding her discharge when she asked for her formal hearing on the Commission’s determination of no cause on the original complaint. However, the only matter properly before the undersigned in these proceedings is her suspension.
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 complaint upon a finding that there was no cause. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2000. COPIES FURNISHED: JoeAnne Nelson Post Office Box 76 Crawfordville, Florida 32326 Steven M. Weinger, Esquire Kurzban, Kurzban, Weinger, Tetzeli, P.A. 2650 Southwest 27th Avenue Second Floor Miami, Florida 33133 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent committed one or more unlawful employment practices against Petitioner as alleged in the subject Petition for Relief.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was an employee of Respondent with permanent status in the state career service system. Petitioner began his employment with Respondent on February 26, 2001, and was assigned to the Lake Worth area until his employment was terminated on January 30, 2009. During his tenure with Respondent, Petitioner worked as a K-9 officer as the handler of a dog trained to detect drugs. Petitioner was frequently involved with high-risk traffic stops. Petitioner received a “meets standards rating” on his most recent performance evaluation. Prior to the events that led up to this proceeding, Petitioner had no history of being disciplined by Respondent. Dr. Richard Marques specializes in internal medicine and treats a broad spectrum of medical issues including endocrine problems. He has been Petitioner’s physician for eight years. Prior to September 2003, Petitioner began to experience fatigue, irritability, and low energy. Petitioner testified that he slept up to 16 hours some days. During that time, and at all times relevant to this proceeding, Petitioner was working his assigned duties. Those duties included a 40-hour shift plus occasional overtime, primarily on weekends. At the request of Dr. Marques, on September 12, 2003, Petitioner presented for blood work at LabCorp, an independent, reputable, testing lab. From the results of the testing, Dr. Marques determined that Petitioner suffered from low testosterone levels or a condition known as hypogonadism. Dr. Marques recommended that Petitioner seek treatment for his testosterone deficiency from a physician or facility specializing in problems of the endocrine system. Dr. Marques did not recommend a particular physician or facility to Petitioner. Instead, Dr. Marques left that decision to Petitioner. Dr. Marques contemplated at the time of his recommendation that Petitioner would be examined in a hospital or other medical facility by a doctor specializing in the endocrine system. Dr. Marques testified that there are two types of hypogonadism, with one type originating from the adrenal gland and the other originating from the pituitary gland. Testing of the type an endocrinologist would do in a testing facility such as a hospital is required to determine the source of the testosterone secretion. Dr. Marques referred Petitioner for further evaluation because he does not do the type of testing that an endocrinologist does. After reading an advertisement in a magazine for a facility named PowerMedica in January 2004, Petitioner sought treatment from that facility. After reviewing PowerMedica’s website, Petitioner concluded that it was a licensed medical facility and submitted a form medical history. In response to his submittal, someone purporting to be from PowerMedica instructed Petitioner to submit a blood sample for analysis by LabCorp. Petitioner complied with that request. Thereafter, Petitioner received a telephone call from someone at PowerMedica who purported to be a doctor. Following that telephone conversation, Petitioner received at his home via Federal Express a shipment that contained testosterone, which is an anabolic steroid. An anabolic steroid is, pursuant to the provisions of Section 893.03(3)(d), a Schedule III controlled substance. Section 893.13(6)(a), Florida Statutes, provides as follows: (6)(a) It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. Any person who violates this provision commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. At no time relevant to this proceeding did Petitioner enter the building that housed PowerMedica, nor was he physically examined by anyone associated by PowerMedica. Petitioner followed up with Dr. Marques while Petitioner was taking the anabolic steroids. Dr. Marques considered Petitioner’s treatment to be appropriate. Dr. Marques saw no signs that Petitioner was abusing the anabolic steroids, and noted that Petitioner’s condition improved. Petitioner stopped receiving anabolic steroids from PowerMedica in October 2004. Dr. Marques wrote a note on September 22, 2003, reflecting, in relevant part, the following: “. . . given the severity of his high viral titer,4 I have asked him to change his night shift duty to day time.” After Petitioner requested that he be reassigned to day-time duty and presented that note to his superiors, Respondent reassigned Petitioner to day duty. At all times relevant to this proceeding, Petitioner was able to perform his job duties. Other than the request for a change from the night shift to the day shift, Petitioner did not tell Respondent that he was having difficulties performing his duties. At no time prior to his interview on July 10, 2008, which will be discussed below, did Petitioner tell Respondent that he was taking anabolic steroids, that he suffered from low testosterone levels, or that he suffered from hypogonadism. At no time did Petitioner request that he be evaluated to determine whether he was fit for duty. In early 2005, it became public knowledge in south Florida that the U.S. Food and Drug Administration (USFDA), working in conjunction with the Broward County Sheriff’s Office (BCSO), was investigating PowerMedica based on allegations that it had unlawfully sold steroids and Human Growth Hormones. As part of its investigation, the USFDA seized records pertaining to PowerMedica’s customers. There was no evidence that any information seized by the BCSO or the USFDA was illegally seized. The joint investigation culminated in the closure of PowerMedica’s operations. In March 2008, a sergeant and a lieutenant employed by Respondent and assigned to its Professional Compliance Bureau met with a sergeant employed by BCSO. During that meeting, the BCSO sergeant showed Respondent’s employees a list containing PowerMedica’s customers. That list contained Petitioner’s name. At Respondent’s request, in April 2008, the USFDA provided copies of records to Respondent that had been seized from PowerMedica. That information provided details as to Petitioner’s dealings with PowerMedica. On July 10, 2008, Petitioner was subjected to a formal interview by representatives of the Respondent. In that interview, Petitioner admitted his dealings with PowerMedica and, while denying any wrongdoing, admitted the material facts set forth above pertaining to those dealings. Petitioner declined to divulge the underlying condition for which he sought treatment. Further, Petitioner acknowledged that Dr. Marques had informed him that his insurance company would likely not pay for his treatment from PowerMedica or for similar treatment. Specifically, Petitioner admitted that he obtained testosterone without being examined by a PowerMedica physician, he admitted that he knew about the investigation and subsequent closure of PowerMedica, and he admitted that he knew the reasons for the closure of PowerMedica. Petitioner admitted that he never volunteered to come forward to Respondent or any other law enforcement agency to discuss his dealings with PowerMedica. Petitioner referred to himself as a victim of PowerMedica’s fraudulent practices, but he admitted that he never advised Respondent prior to his interview that he had been a victim of PowerMedica. On September 9, 2008, Respondent assigned Petitioner to administrative duty that was to be served at Petitioner’s residence from 8:00 a.m. to 4:00 p.m. Monday through Friday. The letter advising Petitioner of this assignment and setting the parameters for the assignment, included the following, beginning at the second full paragraph: You will remain on administrative duty until further notice. This action is being taken based upon the fact you are under investigation by this agency. You are to turn in all of your assigned division equipment including uniforms, badges, firearms, any department identification, and other division property. Your approval to work off-duty police employment (ODPE) and/or any type of agency secondary employment has been withdrawn for the duration of the administrative duty. Your eligibility to resume OPDE/secondary employment will be reviewed by your troop commander at the conclusion of the administrative duty assignment. Your failure to comply with this directive will subject you to disciplinary action. On November 14, 2008, Petitioner filed his Complaint of Discrimination with the Florida Commission on Human Relations. After that date, but before his termination, Petitioner requested permission to be able to work as a driver for Federal Express during hours other than the hours he was serving his administrative duties. Respondent denied that request. While Petitioner asserts that the denial was in retaliation for his filing the Complaint of Discrimination, that assertion is based on supposition. Petitioner presented no direct evidence to support his assertion and any circumstantial evidence is insufficient to establish the assertion. By letter dated January 14, 2009, and received by Petitioner on January 20, 2009 (the termination letter), Respondent terminated Petitioner’s employment. Approximately 20 days after his termination, Respondent retrieved from Petitioner the dog that Petitioner had handled for approximately three years. Petitioner asserts that Respondent took his dog in retaliation for his amending his Complaint of Discrimination to include a claim of retaliation relating to the denial of the request to work part-time for Federal Express. Again, Petitioner’s assertion is based on supposition and is not supported by direct or circumstantial evidence. The termination letter, which is part of Petitioner’s Exhibit 11, sets forth extensive factual allegations pertaining to Petitioner’s dealings with PowerMedica as the basis for the termination. The letter also set forth the statute and policies that Petitioner had allegedly violated. The letter cited the following as “Aggravating Circumstances”: This case is aggravated because through your training, work experience, and knowledge of the law you are held to a higher standard of reasonableness and conduct. You should have been well aware of the stigma attached to the type controlled substances you purchased and used, especially Petitioner points to Respondent’s characterization of anabolic steroids as having a “stigma” as evidence that Respondent discriminated against him based on his disability. That argument is without merit. The greater weight of the credible evidence established that Respondent terminated Petitioner’s employment based on its determination that Petitioner had unlawfully obtained and consumed a Schedule III controlled substance without obtaining a lawful prescription and because he failed to come forward with information about PowerMedica after he knew that PowerMedica was being investigated by the USFDA and the BCSO. Petitioner did not establish that Respondent’s articulated reasons for its employment decision were pretexts for an unlawful employment practice. Indeed, there was no evidence that as of the date of the termination letter, Respondent knew the nature of Petitioner’s medical condition, or that it had any reason to perceive him as being disabled.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 23rd day of November, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 2009.
The Issue Whether Respondent committed the unlawful employment practice as alleged in the Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Petitioner is a black male and is part of a group of persons protected from unlawful discrimination. Petitioner was formerly employed by Respondent and served initially as an usher for Respondent’s business. Respondent operates theaters and concessions in Florida, and employs a number of individuals, none of whom are employed on a “full-time” schedule. Only the manager, Cindy Palmer, is considered a full-time employee. During the school year when attendance at the theaters may be presumed to be down, Respondent offers fewer hours to its employees. Conversely, during the summer months, employees may be offered more hours. Respondent’s employees are asked to fill out a form that indicates the amount of hours they are available to work and the days upon which those hours may be assigned. Pertinent to this case, Petitioner advised Respondent that he was available to work only on Fridays, Saturdays, Sundays, and Tuesdays. Petitioner asked that he be given 40 hours per week. When Petitioner applied for employment with Respondent he was required to answer a number of questions. One of the questions, aimed at addressing the seasonal aspect of Respondent’s work demands, asked: “During slow periods when school is in session, there may be only 10 to 15 hours a week to work. Is this ok?” Petitioner answered “yes.” Petitioner failed to show that any employee was given more hours than he during the slow work periods. Respondent did not cut Petitioner’s hours during his employment at the theater. Respondent did not fail to consider Petitioner for any promotion or wage increase that he applied for during his employment. Petitioner presented no evidence that any employee was more favorably treated in the assignment of hours or promoted over him. Petitioner did not apply for any promotions. Petitioner’s verbal interest in seeking additional skills was never formalized or written to management. Despite postings of methods to complain to upper management regarding the theater operations, Petitioner never notified Respondent of any problems at the theater that would have suggested racial discrimination on Respondent’s part. In fact, when he completed an investigative form on an unrelated matter, Petitioner did not disclose any type of inappropriate behavior by any of Respondent’s employees. Petitioner’s response to the question, stated that he “hadn’t seen anything inappropriate, just bad attitude.” During the period July 2010 through November 2011, Petitioner received a number of “write-ups” citing performance deficiencies. Similar “write-ups” were issued to non-black employees. Petitioner did not establish that he was written up more than any other employee. More important, Petitioner did not establish that the deficiencies described in the write-ups were untrue. Respondent’s Employee Handbook (that Petitioner received a copy of) prohibits discrimination on the basis of race. Methods to complain to upper management, including a toll-free number, were open to Petitioner at all times material to this case. Except for the filing of the instant action, Petitioner never availed himself of any remedy to put Respondent on notice of his claim of discrimination, nor the alleged factual basis for it. Petitioner was directed to leave the theater after a verbal disagreement with his supervisor, Ms. Palmer. Petitioner’s take on the matter is that he was fired by Respondent. Respondent asserts that Petitioner voluntarily quit based upon his actions and verbal comments to Ms. Palmer. Regardless, Petitioner’s race had nothing to do with why he ultimately left employment with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by Petitioner and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of July, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2012.
Findings Of Fact Petitioner is a black female. At all times material, Petitioner was employed by Respondent corporation in one of its general retail merchandise stores in Ocala, Florida. Petitioner was hired by Respondent's white male store manager, Mr. John Sasse, on October 20, 1992, as a stock clerk in the shoe department. Petitioner was terminated on January 10, 1993, within the ninety day probationary period published in Respondent's employee handbook. In making the foregoing finding of fact, it is recognized that Petitioner attempted to show that the probationary period for new employees was only sixty days. However, she only showed that the sixty day period was applicable in a different time frame than is material here. On October 31, 1992, while working in a stock room, Petitioner's back and neck were injured when a box fell on her. Supervisors called an ambulance, and Petitioner was transported to the emergency room of a local hospital. She was treated but not hospitalized. Respondent duly filed the "Notice of Injury" as mandated by Chapter 440 F.S., "The Florida Workers' Compensation Act," and began to pay Petitioner's medical expenses. Prior to her injury, Mr. Sasse considered Petitioner to be only a marginal employee. Petitioner was released by hospital doctors for return to work as of November 6, 1992. At that time, she had no work restrictions imposed by a doctor, so Mr. Sasse reassigned Petitioner to her usual duties. Petitioner worked at the tasks she felt she could do until November 11, 1992, when she returned to the hospital. She was examined and medicated. Later that same day, as is standard procedure with workers' compensation injuries wherein the employer pays for an injured worker's medical care and as a result has the legal right to specify which doctors attend the employee, Mr. Sasse ordered Petitioner to go to "Care One," a "walk-in" medical facility specializing in occupational medicine. Petitioner went to Care One, where she was again examined and medicated. Petitioner was released for work the same day with written work restrictions from the Care One doctor. Petitioner's resentment against Respondent that she had been injured in the first place apparently was a motivating force in her actions after she returned to work the second time. Petitioner's candor and demeanor while testifying, as well as her persistence in returning her testimony to the circumstances surrounding the box falling upon her in the storeroom, made it very clear that she considered it discriminatory, or at least unfair, that Respondent had "forced" her or anyone to work under the cluttered stock room conditions that had resulted in her initial accident or injury. In Petitioner's mind, at least, the fact that an accident or injury had occurred in the first place was sufficient to establish "dangerous working conditions" and "an unlawful employment practice." After November 11, 1992, she persisted with these complaints to the employer. However, no competent evidence established a nexus between Petitioner's race and her pre-injury job assignments, and no evidence demonstrated that after her accident, the Respondent-employer handled her workers' compensation medical care any differently because she was black. On November 11, 1992, Care One's written restrictions provided: Restricted Employee should avoid movements of the upper body and neck that would place undue stress on the neck, such as strenuous pushing and pulling, heavy lifting, and working above the shoulders. Employee should avoid lifting > 20 pounds, avoid frequent bending and twisting of the back, and avoid strenuous pushing and pulling. Mr. Sasse and his subordinate supervisors assigned Petitioner tasks consistent with Mr. Sasse's interpretation of Petitioner's written restrictions, as modified over time by subsequent information. On November 11, 1992, a position was created for Petitioner in the soft goods department. At this time, Petitioner became the only black clerk in the soft goods department. Initially, Mr. Sasse told her she was not to reach above her shoulders or bend to pick up anything below her knees. Petitioner complained that these tasks constituted too much physical exertion for her due to her physical condition. Petitioner continued to complain about the accident and her pain. The employer and insurance carrier continued to refer her back to Care One. There was a short delay with regard to some medical services requested by Petitioner or by referring and consulting doctors under the workers' compensation medical care delivery system, but the employer/insurance carrier in due course authorized physical therapy, a consultation with an orthopedic specialist, and magnetic resonance imaging (MRI) for further diagnosis. Derrick Proctor, a black male employee and Petitioner's friend, presented as a credible witness, even though he claimed to have been fired by Mr. Sasse under what Mr. Proctor termed "suspicious circumstances" and at the time of formal hearing had some type of action pending against this employer. Mr. Proctor described Petitioner as "embittered" against the employer because of the employer's refusal or delay in dealing with Petitioner's medical concerns and stress. However, it appears that Petitioner's problems, if any, were common disputes and communication delays inherent in the workers' compensation medical care delivery system. For instance, when asked, the doctors reported directly to the employer, insurance carrier, and store manager concerning the Petitioner- employee's medical condition, consultant treatment, and recovery progress. On December 10, 1992, Mr. Sasse told Petitioner that he had received an oral report on her December 9, 1992 MRI results and that they were negative. This conversation occurred before any of the doctors had reported the MRI results to the Petitioner, and Petitioner inferred therefrom that information was being withheld from her. Later, on December 22, 1992, Petitioner learned, during a reprimand and counselling session for insubordination and failure to work up to her capacities, that the employer had been informed much earlier that she could return to work with no restrictions. (See Findings of Fact 32-36) Although Mr. Sassy and others had told her this before December 22, 1992, the events of December 22, 1992 triggered a belief in Petitioner that the employer was "out to get" her. Notwithstanding the extreme light duty assigned her, Petitioner complained about the work assigned and was uncooperative about helping supervisors find a job description she felt she could perform. Although Petitioner may not have known about it until November 25, 1992, on November 20, 1992 Care One deleted the prior restrictions on lifting items over 20 pounds, bending, and strenuous pushing and pulling, and narrowed her restrictions to the following: Restricted. Employee should avoid movements of the upper body and neck that would place undue stress on the neck, such as strenuous pushing and pulling, heavy lifting, and work above the shoulders. In December 1992, Mr. Proctor was required to close his department, hardware, every night, and Petitioner closed the soft goods department some nights. Petitioner considered being required to close some nights to be discrimination against her since she was the only black employee in the soft goods department at that time and the white female employee in soft goods had been switched to the day shift in Petitioner's place. The greater weight of the evidence shows that the whole store's evening hours increased from midnight to 1:00 a.m. due to the Christmas season, and on December 6, 1992, Petitioner was assigned to work nights so that she could go to daytime medical and physical therapy appointments. The employer's accommodation of Petitioner's situation in this respect was comparable to the accommodation given a white female employee in soft goods. Beginning November 23, 1992, that white female employee, Ms. Audrey, had been assigned to a daylight shift so that her husband, who had bad night vision, could drive her to and from work. Race was not a factor in the accommodation rendered Ms. Audrey or Petitioner. Who closed the store during December 1992 depended upon who worked the evening shift, not race. It is not entirely clear on the record whether, on December 3, 1992, Petitioner withdrew from physical therapy because she could not do the weight training assigned her or was rejected by the physical therapist as a client because she would not cooperate in weight training. Petitioner testified that she returned to physical therapy thereafter for ultrasound treatment. It is clear that Petitioner believed she was rejected by the therapist because she could not lift the heavy weights assigned her by the therapist as part of Petitioner's planned recovery. It is also clear that the decision to end the weight phase of Petitioner's treatment did not have employer input. By December 5, 1992, Petitioner's personally professed physical limitations and complaints about Mr. Sasse's treatment of her had resulted in Mr. Sasse accommodating her by creating a "make-work" job description. Under it, she was asked to push a cart that other employees had hung clothes on; she was not required to load the car with clothes. She was required only to pick up single articles of clothing that were left in the women's dressing rooms and return them to the racks. She was told only to bend if an occasional article of clothing was found on the floor. She was also told to open dressing room doors for customers and, if requested, fetch more clothes for them to try on while they remained in the dressing room. Petitioner was permitted to wear her softly padded neckbrace at all times, even though she presented no written doctor's instructions to do so. Petitioner described it as an "agony" imposed on her by the employer when, on December 5, 1992, Mr. Sasse ordered her not to sit continuously on the sales floor in a chair she had removed from the women's dressing room. Petitioner had previously complained because she had been required to sit for long hours on a very hard chair Mr. Sasse had provided for her, and this time she had gotten a different chair herself. On December 5, 1992, Mr. Sasse told her she must leave the dressing room chair in the dressing room for the customers, that she was not permitted to sit all the time on the sales floor where customers could see her, and she must not just sit without doing any work, until all her work was done. He told her to do a variety of the tasks of which she was capable, including but not limited to sitting while pricing goods. Petitioner considered these orders to be contrary to her doctor's limitations and to constitute "physical abuse." Petitioner repeatedly requested time off with pay so that she could recover completely through bed rest. Mr. Sasse would not allow her time off for medical reasons without a doctor's written approval. Petitioner considered this condition imposed by management to be "abusive." Petitioner described Mr. Sasse as being rude to her on December 6, 1992, when he refused to discuss her accusations of "physical abuse" and her request for time off in the presence of other employees and customers in the public buffet area of the store, and walked off, leaving her there. Petitioner referred to this incident as at least part of her "opposition to unlawful employment practices" which she believed resulted in her termination. Petitioner presented no evidence that a doctor had ever recommended that she stay at home and do nothing so that she could heal. From all the evidence, it is inferred that as a probationary employee, Petitioner had no accrued sick leave to expend for this purpose. Ms. Gardner was a long-time white female employee who had her doctor's approval for knee surgery and who required a month of bed rest at home afterwards. The employer allowed Ms. Gardner to use earned compensatory time as sick leave for that purpose during the month of December 1992. By mid-December, 1992, Mr. Sasse was frustrated because Petitioner refused to do every job he devised, even the "make work" ones, and he believed that she only pretended to be busy when he was watching her. Mr. Sasse had told Petitioner that she could do normal work again and she would not accept this from him without hearing it also from her doctor. Mr. Sasse decided to discipline Petitioner for not working up to her limitations as he understood them and for insubordination. He directed the soft goods manager trainee, Ms. Lynn Tyler, a white female, to "write up" Petitioner. Ms. Tyler and the assistant store manager, Ray Harding, a white male, met with Petitioner on December 22, 1992 to discuss the contents of the prepared memo. One of the supervisors' concerns at the time Petitioner was "written up" was that they could not get Petitioner to do anything at all without an argument, even after pointing out various light work job duties on a walk around the whole store. They were also concerned that without Petitioner doing some tasks, the employer had to pay other employees overtime to accomplish what Petitioner was not accomplishing in her regular shift hours. It was stipulated that Petitioner was never asked to work overtime. Petitioner refused to sign the December 22, 1992 memorandum of reprimand because she did not agree with it and because Tyler and Harding were, in her opinion, "grudgeful." Petitioner was informed later on December 22, 1992 by her Care One doctor that he had, indeed, released her for normal work activities effective December 16, 1992. His December 16, 1992 report which had been previously received by the employer read: Please note employee's current duty status is as follows: Regular May return to normal work activities full time. After her accident, Petitioner was observed by Derrick Proctor doing some of the same types of physical exertion the employer had required that she do before the accident, including reaching above her head to put clothes on and take them off clothes racks and picking clothes up from the floor, but he never knew her medical restrictions other than what she told him. He also observed her in agitated conversations with Ms. Tyler and Mr. Sasse while she was wearing a neck brace. On January 7, 1993, he saw Ms. Tyler "very out of sorts" when talking to the Petitioner. At first, he stated that he did not consider Petitioner to be rude or insubordinate on these occasions because the topic was working conditions, but later he admitted that he could not overhear what was actually said on all these occasions. Mr. Proctor also observed that, "Mr. Sasse rode everybody pretty hard," including white workers. It was "his way of getting things done." Mr. Proctor once observed Petitioner hiding in another department, behind racks, to avoid management. Petitioner acknowledged and described her "hiding out" at that time to Mr. Proctor as due to her "feeling mistreated" and "avoiding management." In her formal hearing testimony, Petitioner described it as "opposing unlawful work practices and abusive treatment." After learning on December 22, 1992 of her release from all medical restrictions, Petitioner continued to be uncooperative with management. Petitioner's testimony conceded that she had understood that all doctors had released her with no restrictions as of December 28, 1992 and that she had still refused to reach and bend in the stock room when ordered to do so by Mr. Sasse and Ms. Tyler on January 7, 1993. After evaluating Petitioner's continued failure or refusal to perform even the lightest of duties, Mr. Sasse decided to terminate Petitioner before her ninety days' probationary period ended. Mr. Sasse, who was terminated by Respondent-employer sometime later in 1993 and who, at the time of formal hearing, was litigating an unemployment compensation claim against Respondent, had no reason to fabricate information or testify favorably for the Respondent-employer. He was credible to the effect that the decision to terminate Petitioner in January 1993 was his unilateral decision and that he made his decision without reference to, or motivation by, Petitioner's race. Specifically, it was Mr. Sasse's foundational assessment that Petitioner could physically do the light work he assigned her after reasonable accommodation for a temporary disability but that she would not do the work assigned by him that caused him to terminate her. Petitioner testified that she was replaced by a white female. In fact, a white female was hired approximately one or two weeks prior to Petitioner's January 10, 1993 termination, with a due date to report to work on January 11, 1993, which subsequently turned out to be the day immediately following Petitioner's termination. The employer did not hire this white female with the intent of replacing Petitioner, but she was ultimately placed into the soft goods department. Mr. Proctor testified that other blacks worked in soft goods after Petitioner's termination. Within four weeks of Petitioner's termination, three new employees were hired. None of these were assigned to the soft goods department. Mr. Standley Gillings, a black male, was originally employed in another of Respondent's Ocala stores. In October 1993, Mr. Gillings was demoted with a loss of pay and transferred to the store from which Petitioner had been fired ten months earlier. His new immediate supervisor in that store was also black. Respondent continued to employ Mr. Gillings under the black supervisor until Mr. Gillings found another job and quit.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing the Petition for Relief. RECOMMENDED this 25th day of August, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1994.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was the victim of an unlawful employment practice, by allegedly being subjected to discriminatory terms and conditions of employment, based on her race.
Findings Of Fact The Petitioner Rosa Pearl McDonald is an African- American female. She was employed at times pertinent to this dispute as a driver, delivering meals to elderly clients of the Walton County Council on Aging. The Petitioner is also a Licensed Practical Nurse (LPN). The Respondent, Walton County Council on Aging is a charitable social services agency, domiciled in Walton County. As pertinent to this case, it delivers and serves meals to elderly clients throughout the county, through the use of hired and volunteer drivers. The Petitioner was a recently-hired driver, of less than 30 days' employment, when the operative facts occurred. The Petitioner was still in probationary employment status. The Petitioner contends, in effect, that she was subjected to disparate terms and conditions of employment due to her race. She states she was the only black driver and that her supervisor, Kay Brady, is white. The Petitioner noticed after hiring, that the food delivery boxes had the assigned drivers' names on them. The box she was assigned had only the route name. She states she had asked Ms. Brady to place her name on the box, but the route name was placed on the box instead. The Petitioner acknowledged, upon cross-examination, that she did not know who placed the route label on the food box. She was still a probationary employee at this time. The probationary period was 90 days, and the Petitioner resigned only 30 days or less, after her hiring. Inferentially, it may be that the probationary status was the reason her name was not used, or it may have been an oversight. There is no evidence other than the Petitioner's stated opinion, that the labeling situation was due to racial animus. In fact, the Petitioner had been hired, and fired, by the Respondent twice in the past, and yet it still re-hired her shortly before the subject situation arose. Moreover, Ms. Brady gave the Petitioner extra hours of work when she requested them. These facts tend to negate the existence of racial bias in the imposition of any term or conditions of the Petitioner's employment. The Petitioner also contends that she was treated disparately, compared to other drivers. She maintains that a white driver, "Margaret," on occasion had guests ride along with her on her deliveries. The Petitioner states that she asked twice to be allowed to have friends ride with her on deliveries, but Ms. Brady would not allow it. Ms. Kay Brady was the Petitioner's supervisor. She established with her testimony, that the Respondent has a regularly-adopted policy of allowing no riders to accompany route drivers, other than trained volunteers or office personnel, who occasionally go along on deliveries to ascertain that client services are being provided appropriately. Occasionally spouses of regular drivers make deliveries when the driver is ill or must miss work for any reason. The Respondent also uses volunteer drivers, as well. In both situations, however, the spouses or volunteers are given training before being allowed to make deliveries to clients, chiefly because of the privacy requirements of the "Hippa Privacy Law" and the Respondent's client confidentiality policy. The point is, the Petitioner sought to have friends ride with her on deliveries (for reasons which are unclear) and her friends were not trained and oriented to the Respondent's job requirements. The Respondent had a policy of not allowing friends or family to simply accompany drivers without such training, and for reasons which did not relate to job requirements, except in unusual circumstances. One such circumstance involved a driver who needed to be allowed to take her grandchildren with her on a delivery or deliveries, when she was unable to engage a baby sitter. This was an isolated and unusual occurrence, during a time when the children were out of school for Christmas break. On such rare occasions, the Respondent has allowed children to accompany drivers on short trips, on routes near their homes and where children can safely remain in vehicles during deliveries. The above circumstance was probably the one involving driver "Margaret" which the Petitioner described in her testimony. In any event, however, the Respondent had a regular written policy regarding requirements and qualification for persons making deliveries to clients and it followed it, with the above rare exceptions. The employee handbook, Council on Aging Handbook and the Employee Handbook receipt, in evidence as Respondent's Exhibits 5, 6, and 4, respectively, show this policy and the fact that the Petitioner was informed of it. The Petitioner's friends, whom she sought to have accompany her, were not shown to be qualified under the Respondent's requirements. Because the reasons for requesting the accompaniment of proposed "riders" were different for employees other than the Petitioner, referenced in the above examples of policy exceptions, these other drivers were not shown to be similarly-situated exemplar employees, who received more favorable treatment. In fact, the Petitioner was favored in a different way. The Respondent was able to give the Petitioner extra hours of work "sitting" with elderly clients when their caregivers were absent. The Respondent and Ms. Brady would learn about such needs through its normal service contacts with clients and their families. Because the Petitioner is an LPN, the Respondent would refer her for extra work, to her benefit. In summary, the preponderant evidence and above facts show that no adverse employment action occurred. There were no verbal or other acts or adverse employment directives toward the Petitioner at all, much less any that evidence racial animus, by supervisors or employees. Therefore, there was no racially hostile environment, so there could not be one in which her terms and conditions of employment were altered. Moreover, since there were no disciplinary actions toward the Petitioner, nor adverse employment directives or conditions (in fact she was favored with extra hours), there could be no constructive termination. There certainly was no actual termination. The Petitioner, in fact, resigned her position, telling both Ms. Brady and Mr. Moore that it was for health reasons. She admitted as much in her testimony.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered denying the Petitioner's Petition for Relief in its entirety. DONE AND ENTERED this 24th day of March, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 24th day of March, 2009. COPIES FURNISHED: Rosa Pearl McDonald 1961 McLeod Road DeFuniak Springs, Florida 32435 Kay Brady Walton County Council on Aging Post Office Box 648 DeFuniak Springs, Florida 32435 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The central issue in this case is whether Petitioner's employment with the Respondent was terminated in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the documentary evidence received at the hearing, the following findings of fact are made: At all times material to the allegations of this case, Petitioner was an employee of FRSA. On or about September 26, 1989, Petitioner's employment with FRSA was terminated and the charges of discrimination were filed. Prior to termination, Petitioner's work performance with the company had been acceptable. In fact, for the performance review issued on January 31, 1989, Petitioner received a superior rating in eight of the eleven categories, a good rating in two categories, and an outstanding rating in one category. At the time of her termination with FRSA, Petitioner earned an annual salary of $35,000. Petitioner claims a total of $83,568 for the lost wages and benefits resulting from her termination with FRSA. At the time of her termination, Petitioner was pregnant.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the charge of discrimination filed by the Petitioner in this cause against the Respondent. DONE and ENTERED this 4th day of September, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 COPIES FURNISHED: Elizabeth Rubeis Reno Rubeis 4350 Wyndcliff Circle Orlando, Florida 32817 Susan McKenna Garwood & McKenna, P.A. 322 East Pine Street Orlando, Florida 32801 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1992. Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent.
Findings Of Fact Petitioner is a Black male. Respondent is a staffing company that contracts with third party employers. Over 80 percent of Respondent’s employees are Black. After Respondent matches a candidate with a job opening, the third-party employer interviews the candidate for employment. If the candidate is employed by the third party, the employee must abide by the third-party employer’s policies as well as the employment policies of Respondent. Petitioner was hired by Respondent some time in January 2008. Respondent requires all employees to notify Respondent of his or her absence prior to that employee’s scheduled report time for their employment. Respondent also requires that all employees report to work at their scheduled report time. Failure to either call in or show up for work is known as a ‘no call/no show’. The employment policies of Respondent reflect that a “no call/no show” is grounds for termination. Petitioner received a copy of Respondent’s employee handbook, which included the “no call/no show” provision. He was also aware of Respondent’s “no call/no show” policy. Around January 14, 2008, Respondent successfully matched Petitioner with a position at BR Williams Trucking Company (BR Williams). Like Respondent, BR Williams maintains a policy of termination when an employee fails to show up for work or does not call in prior to the start of the work day to report their absence. Petitioner’s scheduled report time for BR Williams was 7:00 a.m. On March 3, 2008, Petitioner contacted Respondent’s Regional Sales Manager, Diane Jarrett, to report that he had overheard a racial slur that a White employee, Harry Hingson, had made to another employee. Like Petitioner, Mr. Hingson had been placed at BR Williams by Respondent and was an employee of both Respondent and BR Williams. Ms. Jarrett sent Respondent’s Human Resources Assistant, Annis Herndon, to BR Williams to terminate Mr. Hingson for having made the racial slur. She met with Mr. Wilkinson, BR Williams’ manager. Mr. Hingson was terminated from BR Williams. Neither Ms. Jarrett nor Ms. Herndon disclosed that Petitioner had reported Mr. Hingson’s racial slur to her. After the termination, Mr. Wilkinson mentioned to a group of employees, including Petitioner, that he hated to fire Mr. Hingson because “everybody needs a job.” The evidence did not demonstrate that Mr. Wilkinson said that “once he found out who did this, they will pay.” Petitioner felt that Mr. Wilkinson was talking to him or targeting him because Mr. Wilkinson looked him in the eyes during the meeting. Mr. Wilkinson did not testify at the hearing. As a consequence, there is no competent evidence regarding Mr. Wilkinson’s intent showing any look he may or may not have given Petitioner. On March 24, 2008, Petitioner worked his regular shift at BR Williams. On the evening of March 24, 2008, Petitioner was arrested for driving while intoxicated (DUI) and was held in jail overnight. He was released two days later on March 26, 2008. On March 25, 2008, Petitioner was scheduled to begin his shift at 7 a.m. Petitioner did not report to work as scheduled because he was in jail. Petitioner also did not call Respondent to report his absence prior to the beginning of his shift or during the morning of March 25, 2008. Mr. Wilkinson called Respondent around 9:00 a.m. and reported that Petitioner was not at work and had not called in. He did not know where Petitioner was. Respondent could not locate Petitioner at his home. Mr. Wilkinson instructed Respondent that if he or Respondent did not hear from Petitioner before noon, Petitioner was terminated for not showing up at work and not calling in. About 1:00 p.m., after Petitioner was terminated by BR Williams, Petitioner called Respondent collect from jail. He was advised that he had been terminated from BR Williams. After speaking with Petitioner, Respondent called BR Williams to report that Petitioner had called in after noon and that she had told him that he had been terminated from BR Williams. Respondent did not tell Petitioner that he was terminated from Cardinal Staffing. BR Williams’ decision to terminate Petitioner was not based on his race or his complaint regarding Mr. Hingson’s racial slur. Indeed, there was no competent evidence to suggest that Petitioner was terminated from BR Williams for any reason other than he was in jail, and did not report to work as scheduled. Petitioner was not terminated from Cardinal Staffing. Petitioner left a message on Respondent’s answering machine on March 27 or March 28, 2008. Return calls by Respondent could not be left at the numbers that Respondent had for Petitioner. He did not contact Respondent again until August 2008, at which time there were no positions available for him. Importantly, Petitioner was not terminated from Respondent. As with all Respondent’s employees, Petitioner had the responsibility of calling Respondent as often as possible to check if other employment opportunities were available. If Petitioner had contacted Respondent to seek placement during April–June, 2008, and if a placement for which Petitioner was qualified had been available, Respondent would have sent him for an interview with the prospective employer. Indeed, it was Petitioner’s lack of action that caused him to miss any employment opportunities that may have been available to him during April – June, 2008. After August 2008, Petitioner did not contact Respondent to seek other employment opportunities. Petitioner identified two non-minority employees that were terminated from their third-party employer jobs and received new assignments with another of Respondent’s clients. The two employees were Jason Whibble and Sherita Cheshire. Neither of these employees was similarly situated to Petitioner. Mr. Whibble was terminated for having a felony conviction involving multiple traffic tickets. Ms. Cheshire was terminated because she could not perform her job duties. After termination, both employees called in on a daily or weekly basis to check to see if any job openings were available. In this case, Petitioner was terminated for a very different reason from BR Williams. Petitioner also did not frequently call Respondent to check for job openings that might be available to him. Indeed, Petitioner has not identified any similarly situated non-Black employee of Respondent’s who was terminated from an employment assignment on the basis of an employer’s “no call/no show” policy and was treated more favorably than Petitioner. The evidence was clear that Petitioner was not terminated from Cardinal Staffing and failed to maintain frequent contact with them. Clearly, Respondent did not discriminate against Petitioner. Given these facts, the Petition for Relief should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 29th day of May, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 2009. COPIES FURNISHED: Walter Jan Pietruszka, Esquire Shumaker Loop & Kendrick 101 East Kennedy Boulevard, Suite 2800 Tampa, Florida 33602 Melvin Lee Butler 40 Jack Scott Road Quincy, Florida 32351 Robert E. Larkin, III, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
