The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, the appropriate relief for such action.
Findings Of Fact For purposes of this case, the Petitioner began his employment with the Respondent in July of 2007. Although the Petitioner had worked for the Respondent in prior years (at another location), he had voluntarily left the company to pursue other opportunities. When the Petitioner returned to employment with the Respondent in connection with this case, it was ten years after a heart transplant. At the time of hiring, the Respondent knew the Petitioner's medical condition and age. The Petitioner is approximately 61 years of age. The Respondent is a national corporation with several sites for engineering and manufacture of its products. The Respondent is an equal opportunity employer and maintains policies prohibiting unlawful discrimination. One of the Respondent's facilities, Sykes Creek, is located in Brevard County, Florida. The Petitioner was hired to work at the Sykes Creek facility in the role of engineering supervisor. The Sykes Creek site builds luxury power yachts ranging from 50–to-60 feet in length. The price of these yachts runs from approximately $900,000 to $2,000,000 each. Typically, the yacht is ordered and customized to the buyer's specification. The Petitioner was responsible for supervising and directing work at Sykes Creek and reported to Kevin Shaw, his immediate supervisor. Mr. Shaw in turn reported to the plant manager, Steven Fielder. The Petitioner reviewed the work and attendance of approximately 21 hourly employees. When the Petitioner was hired (2007), the Sykes Creek facility produced 116 yachts and employed approximately 575 people. Within the Petitioner's department (engineering) there were 26 people; four others like Petitioner were salaried employees. The economic crunch that struck most of the nation drastically reduced the Respondent's business. In 2008 the Respondent instituted unpaid furloughs and layoffs due to the lack of business. By 2009 the economic condition in the industry had not improved. Accordingly, the Respondent had to make additional cuts to its staff. To that end, Mr. Fielder advised Mr. Shaw that the Petitioner's department would have to be cut to reduce the number of hourly employees and one salaried employee. To determine who should be cut, the Respondent looked to the number of years of service with the company and the skill set/education they provided for the facility. The Petitioner had the shortest length of service with the Respondent except for an employee named Julie Halesma. That person was not chosen for lay-off because she was a credentialed industrial engineer. The Petitioner did not have those credentials. The Petitioner was not offered a lower, hourly paid position because he did not have the skill set to perform the work as well as the hourly employees who were already doing the jobs. A number of employees were laid off the same day the Petitioner was dismissed. The Petitioner's job position was eliminated and has not, as of the date of hearing, been restored. The Respondent has continued to lay off workers. In 2009 the Sykes Creek facility was down to 175 employees. The engineering department was down to 15 people. Absent a return to more prosperous times, it is not expected that the facility will be able to rehire employees. The job tasks that the Petitioner performed are now shared by other employees at the facility. Throughout his time at the Sykes Creek facility, the Petitioner was allowed to take time off as needed to attend to medical issues. Based upon the frequency of the medical leave, the Respondent knew or should have known that the Petitioner's medical condition required monthly treatment. The extent of the medical treatment, however, was unknown to the Respondent. As a salaried employee the Petitioner did not have to "punch the clock." The Respondent allowed the Petitioner to complete his work as he might dictate so that he was free to leave the facility to attend to his medical needs. Clearly, the Respondent knew the Petitioner had had the heart transplant at the time of hiring but that medical condition did not impede the Petitioner's ability to perform his job assignments. The medical situation required that he be absent, but there is no indication that Petitioner could not perform his job. The cost of the Petitioner's medical care was unknown to the persons charged with making the lay-off decisions. The cost of the Petitioner's medical care played no part in the decision to eliminate the Petitioner's job. Similarly, the Petitioner's age did not play a part of the Respondent's decision to eliminate the Petitioner's job. The Respondent articulated legitimate business reasons for eliminating the Petitioner's job position. Clearly the Respondent knew of the Petitioner's age at the time of hiring. The Respondent did not replace the Petitioner with a younger employee. The Respondent's explanation for whom it chose to retain in employment was not based upon an employee's age but rather legitimate business interests. Episodes during which the Petitioner required medical attention at the facility did not rise to a level to cause the Respondent to be concerned for Petitioner's medical well-being. Incidents of the Petitioner being light headed or with low blood sugar did not cause the Respondent to seek to eliminate the Petitioner's job position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of March, 2009, 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 March, 2009. COPIES FURNISHED: Rolf J. Bierman 1035 Palmer Road Rockledge, Florida 32955 Brian W. Koji, Esquire Bona M. Kim, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 225 Tampa, Florida 33606 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 the Respondent denied Petitioner employment opportunities in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Petitioner was employed by the Respondent as a part-time employee on or about March 10, 1981. At the time of her employment Petitioner executed a statement acknowledging that the Respondent did not guarantee weeks or hours of employment and that her employment was dependent, in part, upon the demands of the business. Petitioner's job title throughout her employment with Respondent was "warehouse worker." At all times material to this case, Petitioner was assigned to the Orlando distributing center that serves as a warehouse for items shipped to and for Respondent's retail system. During her employment with Respondent, Petitioner received acceptable work evaluations but was not elevated to full-time employment status when job openings occurred. For the first year of her employment, Respondent utilized an employee review form which rated Petitioner on a scale of 1 to 7; the lower number indicated unsatisfactory, the higher number indicated distinguished performance. For that review period, Petitioner received all 4s on her review. The 4 rating evidenced that Petitioner's performance had been consistently good and had met the requirements of the job to which she was assigned. For the review period ending April 1, 1985, the Petitioner received four 4s and one 3. The 3 rating was in the category "working relations" and found her performance to be fair. The 3 rating indicated that for the period reviewed Petitioner's performance was generally satisfactory, but sometimes fell below an acceptable level. Later in 1985, the Petitioner filed an EEOC complaint against the Respondent and alleged that the company had treated her unfairly on account of her sex. Petitioner did not prevail on that complaint. The Petitioner's employee performance review issued on June 10, 1986, the next evaluation after her EEOC complaint, evaluated her performance at all 3s with one 4 in the category of job knowledge. Petitioner did not challenge this review and did not, at that time, allege that the less favorable review had been issued by the company in retaliation for the EEOC complaint. Subsequent to the 1986 review, Respondent's evaluation form was amended to compute an employee's performance on a scale of 1 to 5 with 1 being the unacceptable end of the scale and 5 indicating distinguished performance. For the review period ending April 12, 1988, Petitioner received all 3s which established that her overall performance again met the employer's expectations. Throughout her tenure with the Respondent, Petitioner sought to increase her work hours. Petitioner complained to the company that work assignments were given unfairly. In June, 1987, Mr. Maupin, manager of the center, issued a notice regarding a change in the scheduling practices for part- time employees. That notice advised employees that the length of service with the company would no longer be the determining factor in assigning part-time hours. The notice provided: "Other factors such as performance, availability when needed and work experience (such as driving skills) will also be considered when determining who will be scheduled." Petitioner continued to be scheduled for work and, in 1988, received the second highest number of hours worked for the center's part-time employees. Petitioner did not receive full-time employment with the Respondent. Two employees who had not worked in the warehouse as long as Petitioner were placed in full-time positions. Petitioner did not offer evidence as to the qualifications of those individuals to perform the work requested of them. The employment history of the individuals chosen by the employer, together with the training, skills and aptitudes of such individuals are all unknown. Petitioner's assertion that she had performed the work in the past and, therefore, was the better qualified to receive the full-time job has not been deemed credible or, in itself, sufficient to prove affirmatively that others chosen by the employer were less worthy of the jobs for which they were selected. To the contrary, the Respondent posted full-time job openings and allowed interested parties to apply for same and be reviewed for employment based upon individual merit.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petitioner's claim against this Respondent as Petitioner has failed to establish that the employer discriminated against her in retaliation for a prior assertion of discrimination. RECOMMENDED this 13th day of August, 1991, 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 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5133 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 3 are accepted. Paragraph 4 is rejected as contrary to the weight of credible evidence or irrelevant. Paragraph 5 is rejected as irrelevant the petition filed in this cause does not allege Petitioner was unfairly disciplined. Paragraph 6 is accepted. The first sentence of paragraph 7 is accepted. The balance of the paragraph is rejected as argument, hearsay not corroborated by direct evidence, or contrary to the weight of credible evidence. Paragraph 8 is rejected as irrelevant; it is undisputed that Petitioner perceived a bias against her, the evidence in this case does not, however, establish that such bias did exist. An employer's assessment that an employee has a poor attitude does not, of itself, lead to the conclusion that employer will, consequently, unlawfully discriminate against that employee. The first sentence of paragraph 9 is accepted. The balance of the paragraph is rejected as hearsay unsupported by direct evidence presented in this case or unsupported by the weight of credible evidence. Paragraph 10 is rejected as unsupported by direct evidence presented in this case. Paragraph 11 is rejected as contrary to the weight of the credible evidence. Paragraph 12 is rejected as contrary to the weight of the credible evidence. Paragraph 13 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 14 is accepted. Paragraph 15 is rejected as contrary to the weight of the credible evidence. Paragraph 16 is rejected as speculative, not supported by the evidence in this case. Paragraph 17 is accepted. Paragraph 18 is accepted. Paragraph 19 is accepted to the extent that the record reflects Petitioner retained an attorney to represent her; otherwise rejected as irrelevant or not supported by the record. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 9 are accepted. With regard to paragraph 10, it is accepted that all of Petitioner's annual evaluations rated her work as acceptable. Paragraph 11 is rejected as inaccurate or contrary to the weight of the evidence. While Petitioner's reviews remained substantially the same, the forms and evaluation system did change. Important was that Petitioner's work was always deemed acceptable. With regard to paragraph 12, it is accepted that Petitioner worked forty days within the period described. Otherwise rejected as not supported by the record in this case. Paragraph 13 is accepted. Paragraph 14 is accepted but incompletely refers only to the delivery job; Petitioner had expressed an interest in two other jobs available. Paragraph 15 is rejected as contrary to the weight of the credible evidence or an incomplete statement of fact. Petitioner did seek full-time employment with the Respondent. COPIES FURNISHED: Heather Morcroft 2431 Aloma Avenue Suite 285 Winter Park, Florida 32791 William E. Curphey Parker, Johnson, McGuire & Michaud 1300 Barnett Plaza 201 South Orange Avenue Orlando, Florida 32801 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Ronald M. McElrath Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue Whether Petitioner was wrongfully terminated from her position as a custodial worker with Respondent because of her race, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, an African-American female, was hired by Respondent in the fall of 1994, as a custodial worker and she continued in that position until October 17, 1995, when she was terminated. On or about October 12, 1995, Rollins College (Respondent) received two letters of complaint regarding Petitioner's conduct and work performance. One of these was from a group of students living in a dorm which Petitioner was assigned to clean. The other letter was from the parent of a student living in another dorm assigned to Petitioner. These letters were not the first complaints Respondent had received regarding Petitioner's work performance. After receiving the letters, Petitioner was placed on a three-day suspension by Tom Waters, Director of Respondent's Facilities Management Department. After investigating the complaints, Respondent, on October 17, 1995, terminated Petitioner's employment. Prior to the termination of her employment, Petitioner attended a training and safety meeting of custodial workers. During that meeting, Petitioner's immediate supervisor, Frank Pravdik placed his hand on Petitioner's uniform shirt and stated words to the effect that the shirt was "nasty." Pravdik was generally known to be a difficult person to work under. He was eventually terminated by Respondent because of his abrasive management style. Fredrick Wooden, called as Petitioner's witness, assisted with the management of the custodial workers prior to his retirement. He often disagreed with Pravdik's style of management. In the case of Petitioner, he did not believe that any disciplinary actions taken against her were unwarranted, and Respondent had legitimate grounds to terminate her employment. Wooden further believed that Pravdik treated all subordinate employees equally, if not with respect. On November 20, 1995, Petitioner filed a Charge of Discrimination with the Orlando Human Relations Department. The Charge of Discrimination indicated that Petitioner believed that Respondent discriminated against her because of her race. Petitioner testified that the Charge of Discrimination was incorrect. Petitioner did not actually believe that the termination of her employment was related to her race. However, she permitted a representative of the Orlando Human Relations Commission to complete for her the Charge of Discrimination. The Charge does not allege a claim of retaliation nor does it allege that Petitioner ever complained about Pravdik's behavior to Respondent. While Petitioner testified that she first visited the Orlando Human Relations Department prior to the date of her termination, the Charge is signed, dated and notarized on November 20, 1995, three days after the effective date of her termination. After the Commission issued a No Cause Determination in this matter, Petitioner filed a Petition for Relief. The Petition for Relief alleges that Respondent terminated her employment in retaliation for complaining about Pravdik. Petitioner again testified that the Petition for Relief was also incorrect stating her case was not about whether Respondent had a right to terminate her employment, but instead was about whether Pravdik violated her civil rights for impermissibly touching her person and calling her shirt "nasty."
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 Petitioner's Petition for Relief with prejudice. DONE AND ENTERED this 26th day of December, 2000, 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 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 2000. COPIES FURNISHED: Gloria J. Holloway 397 Chaucer Lane, South Lake Mary, Florida 32746 Sharon Moultry, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149 Mark Van Valkenburgh, Esquire Winderweedle, Haines, Ward & Woodham 250 Park Avenue South, 5th Floor Winter Park, Florida 32789 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue in the case is whether the Respondent unlawfully discriminated against the Petitioner on the basis of age.
Findings Of Fact The Respondent initially employed the Petitioner in the maintenance department in January 1996. There is no evidence that the Petitioner’s employment in the maintenance department was unsatisfactory. In May 1996, the Petitioner transferred into the production department. The Petitioner’s supervisor in the production department described his performance as somewhat unsatisfactory but made no written report of any problems. On September 17, 1996, the Petitioner transferred into the laboratory and began work as a lab technician. The transfer in the lab technician position was at the Petitioner’s request. On October 21, 1996, Richard Barnes, an employee of the Respondent, assumed supervisory responsibility for the laboratory operation. On November 8, 1996, Mr. Barnes met with the Petitioner to discuss the job. At the time of the November 8 discussion, the Petitioner had been working in the lab for almost eight weeks. The Respondent’s lab employees are responsible for assuring that the materials produced by the plant comply with the "release specifications" set by the buyers of the materials. During the discussion, the Petitioner was asked about specific tasks assigned to lab employees. His response was incorrect and indicated a lack of familiarity with lab procedures. The Petitioner was informed that his job performance was unsatisfactory. Over the next week, Mr. Barnes continued to monitor the situation, and subsequently decided to terminate the Petitioner’s employment for unsatisfactory performance. On November 18, 1996, the Respondent terminated the Petitioner’s employment on the grounds of unsatisfactory work performance. At the time of the termination, the Petitioner was 56 years old. During the time of the Petitioner’s transfer into, and termination from, the lab, the Respondent was in the process of expanding the number of lab employees from six to ten employees. Shortly before terminating the Petitioner’s employment, the Respondent transferred another employee, of similar age as the Petitioner, into the lab. Shortly after the Petitioner’s termination, Respondent transferred another employee, younger than the Respondent, to the lab. The transfer of the younger employee was being processed prior to the termination of the Petitioner’s employment. There is no evidence that a transfer of the younger employee was related to the termination of the Petitioner’s employment. The evidence fails to establish that termination of the Petitioner’s employment was based on his age. There is no evidence that the Respondent discriminated against the Petitioner on the basis of age. There is no evidence that the Petitioner suffered any economic injury based on the termination. He became employed shortly after the termination at a salary higher than the Respondent was paying him. Subsequent employment has included additional increases in compensation. The Petitioner asserts that had he remained employed by the Respondent, his compensation would have included promotions and increased compensation. The evidence fails to establish that the Petitioner would have received further promotions from the Respondent.
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 Petition for Relief filed by Terry B. Hillman. DONE AND ENTERED this 28th day of November, 2001, in Tallahassee, Leon County, Florida. 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 28th day of November, 2001. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Terry B. Hillman 2048 Laurel Lane North Fort Myers, Florida 33917 Robert E. Tardif, Jr., Esquire Duncan & Tardif, P.A. 1601 Jackson Street, Suite 101 Post Office Box 249 Fort Myers, Florida 33902-0249 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue for determination is whether Respondent committed an unlawful employment practice against Petitioner on the basis of sexual harassment and retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Recommendation Based on the foregoing Finding of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying Benjamin Bullard's Petition for Relief. S DONE AND ENTERED this 3rd day of December, 2012, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 3rd day of December, 2012. COPIES FURNISHED: Benjamin Bullard 12211 Park Drive Hollywood, Florida 33026 Spencer D. West, Esquire Stephen N. Montalto, Esquire Mitchell & West, LLC 3191 Coral Way, Suite 406 Miami, Florida 33145 Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Julie Wells is the principal of AccuStaff.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief filed by Van Gandy be dismissed. DONE AND ENTERED this 10th day of December, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Julie Wells AccuStaff 5710 North Davis Highway, Suite 5 Pensacola, Florida 32503 Van Gandy 8580 Vickie Street Pensacola, Florida 32514 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent Employer is guilty of an unlawful employment practice against Petitioner Employee.
Findings Of Fact On or about November 17, 2006, Petitioner filed an Employment Complaint of Discrimination (formerly known as a "Charge of Discrimination") on the basis of disability/handicap and national origin with the Florida Commission on Human Relations. On June 15, 2007, the Commission entered a Determination: No Cause. On or about July 2, 2007, Petitioner filed a Petition for Relief with the Commission. On or about July 5, 2007, this case was referred by the Commission to the Division of Administrative Hearings. On July 18, 2007, a telephonic conference was held to schedule a final disputed-fact hearing date. The hearing date agreed upon was October 1, 2007, and a Notice of Hearing and Order of Pre-hearing Instructions issued on July 18, 2007. Neither party complied with the Order of Pre-hearing Instructions. At the time noticed for October 1, 2007, Respondent appeared for hearing. In the Joint Response to Initial Order, filed July 16, 2007, and in a subsequent Motion filed September 26, 2007, Respondent referred to itself as "Wal-Mart Stores, East L.P. (incorrectly referred-to in the caption as Wal-Mart Stores)," but made no motion to correct the style of this cause. Respondent acknowledged in its pleadings, and its counsel acknowledged orally at hearing, that it was the appropriate Respondent in this cause, regardless of the case's style. After waiting 30 minutes, Petitioner still had not appeared for hearing. The undersigned made diligent inquiry to ensure that Respondent had done nothing to discourage Petitioner from appearing, and closed the hearing.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Employment Complaint of Discrimination and a Petition for Relief. DONE AND ENTERED this 3rd day of October, 2007, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2007. COPIES FURNISHED: Cecil Howard, 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 Amy Harrison, Esquire Lindsay A. Connor, Esquire Ford & Harrison 225 Water Street, Suite 710 Jacksonville, Florida 32202 Catrina Soriano 1826 Nekoma Court Tallahassee, Florida 32304
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 Whether Respondent engaged in an unlawful employment action as alleged by Petitioner and, if so, what relief should be granted.
Findings Of Fact Petitioner is a black male. He identifies himself variously as a "Caribbean black," "Jamaican," and "Rastafarian." Respondent conducts its business at Port Everglades, a major Florida seaport (Port Everglades or the Port). Respondent's business is to service passenger and commercial shipping by transporting and loading cargo in and about Port Everglades. Respondent is an employer within the meaning of the applicable statutory provisions. Petitioner was employed by Respondent from August 13, 2002, until October 29, 2003, when he was terminated. At all relevant times, Lizabeth Divers (Divers) has been Respondent's Director of Human Resources. In that capacity she was responsible for Respondent's personnel matters as well as its compliance with the FCRA. Her job includes, at all relevant times, hiring and firing; employee discipline; implementing company polices; and receiving and investigating complaints lodged verbally or in writing by employees about any matters affecting their employment.1 At all times material to this case, Petitioner was aware of his right to lodge complaints verbally or in writing with Divers with respect to any matter affecting his employment, including any alleged unlawful employment practice. At no time prior to his termination did Petitioner do so. The record contains no persuasive evidence concerning the composition of Respondent's workforce by race, national origin, religion, or any other classification relevant to Petitioner's claim against Respondent under the FCRA. As previously noted, Petitioner was employed by Respondent from August 13, 2002, until October 29, 2003, when his employment was terminated by Divers for violating a company policy prohibiting possession of firearms or other weapons on Port property (the weapons policy). All of Respondent's employees, including Petitioner at all times material to this case, gain access to Port Everglades only by passing a security checkpoint. A security guard thereupon confirms that the individual has current port identification and parking decal. Once cleared to enter the Port, Respondent's employees have access to the entire Port, and are generally not under direct supervision as they perform their jobs. Respondent's weapons policy is grounded in reasons that were obvious to any employee, and which had to have been obvious to Petitioner. The need for such a policy is self-evident. There is no evidence that any other person employed by Respondent has ever violated the weapons policy. At relevant times Petitioner was licensed by the state to carry a concealed weapon. State licensure does not constitute authorization for Petitioner to ignore Respondent's weapons policy. Petitioner had no job-related reason to carry a gun. Petitioner's job was to drive a truck known to seaport workers as a "mule." Mules are used to transport cargo from one location to another. Petitioner's basic job duty was to drive box loads of material from one location to another at Port Everglades. Petitioner was qualified to do his job and performed his duties adequately with no prior disciplinary record. Divers was unaware of Petitioner's alleged violation of the weapons policy until the start of the business day on Monday, October 29, 2003. At that time, it was brought to her attention that one or more of Petitioner's co-workers had confronted him over the weekend regarding a bulge at his waist, and that Petitioner had confirmed that the bulge was a gun. Divers felt this alleged violation of the weapons policy was a serious accusation which, if true, would warrant immediate termination. She also felt that it posed a potentially life-threatening situation. Divers determined that Petitioner was scheduled to work that day. Divers immediately left her office and proceeded to the Broward County Sheriff's Office (BCSO) Port Everglades precinct to advise of the potential security threat. Divers sought BCSO's assistance in addressing this unprecedented and potentially dangerous situation. BCSO immediately provided assistance in the form of three armed deputies. Each officer drove his police vehicle to intercept Petitioner on Port grounds. The officers interviewed Petitioner in the presence of Divers. Petitioner freely admitted that he regularly concealed his gun in his vehicle. Petitioner had access to his vehicle throughout his shift. The officers verified Petitioner's concealed weapons permit. Divers informed Petitioner and the officers that she was terminating Petitioner's employment. There is no persuasive evidence that Petitioner protested this action or complained that it was motivated by race, national origin, or religion. Instead, the evidence established that Divers made a decision she was authorized to make, i.e., to terminate Petitioner for his admitted violation of the weapons policy. The officers disassembled Petitioner's gun, placed it in the trunk of Petitioner's vehicle, and escorted Petitioner off the Port property. There is no evidence regarding who, if anyone, was hired to replace Petitioner following his termination. Petitioner has failed to show that any other similarly situated employee who violated the weapons policy was treated differently from Petitioner.
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 the Petition for Relief and denying all relief requested therein. DONE AND ENTERED this 1st day of November, 2005, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 1st day of November, 2005.
The Issue The issues are whether Petitioner received notice of the August 19, 2005, administrative hearing, and if not, whether Respondent discriminated against Petitioner based on his race.
Findings Of Fact Petitioner is an African-American male. In the fall of 2004, Petitioner's cousin, Barry Walker, worked for Respondent as a cook. Mr. Walker recommended that Respondent hire Petitioner as a dishwasher. James Pigneri, Respondent's owner, interviewed Petitioner and decided to hire him as a dishwasher on a trial basis. Petitioner began washing dishes for Respondent in September 2004. In October 2004, Petitioner began a 90-day probationary period as Respondent's dishwasher. At that time, PMI Employee Leasing (PMI) became Petitioner's co-employer. PMI has a contractual relationship with Respondent. Through this contract, PMI assumes responsibility for Respondent's human resource issues, payroll needs, employee benefits, and workers’ compensation coverage. On October 10, 2004, Petitioner signed an acknowledgement that he had received a copy of PMI's employee handbook, which included PMI's policies on discrimination, harassment, or other civil rights violations. The handbook states that employees must immediately notify PMI for certain workplace claims, including but not limited to, claims involving release from work, labor relation problems, and discrimination. The handbook requires employees to inform PMI within 48 hours if employment ceases for any reason. PMI's discrimination and harassment policies provide employees with a toll-free telephone number. When an employee makes a complaint or files a grievance, PMI performs an investigation and takes any corrective action that is required. The cook-line in Respondent's kitchen consist of work stations for all sauté and grill cooks. The cook-line runs parallel to a row of glass windows between the kitchen and the dining room and around the corner between the kitchen and the outside deck. Customers in the dining room and on the deck can see all of the cooks preparing food at the work stations along the cook-line. On the evening of December 18, 2004, Respondent's business was crowded with customers in the dining room and on the deck. On December 18, 2004, Petitioner was working in Respondent's kitchen. Sometime during the dinner shift, Petitioner was standing on the cook-line near the windows, talking to a cook named Bob. Petitioner was discussing a scar on his body. During the discussion, Petitioner raised his shirt, exposing his chest, arm, and armpit. The cook named Bob told Petitioner to put his shirt down. Erin Pigneri, a white male, is the son of Respondent's owner, James Pignari. As one of Respondent's certified food managers, Erin Pigneri must be vigilant about compliance with health code regulations when he works as Respondent's shift manager. Erin Pigneri has authority to recommend that employees be fired, but his father, James Pigneri, makes the final employment decision. On December 18, 2004, Erin Pigneri, was working as Respondent's manager and was in charge of the restaurant because his father was not working that night. When Erin Pigneri saw Petitioner with his shirt raised up, he yelled out for Petitioner put his shirt back on and to get off the cook-line. Erin Pigneri was alarmed to see Petitioner with his shirt off on the cook-line because customers could see Petitioner and because Petitioner's action violated the health code. Petitioner's reaction was immediately insubordinate. Petitioner told Erin Pigneri that he could not speak to Petitioner in that tone of voice. Erin Pigneri had to tell Petitioner several times to put his shirt on, explaining that Petitioner was committing a major health-code violation. When Petitioner walked up to Erin Pigneri, the two men began to confront each other using profanity but no racial slurs. Erin Pigneri finally told Petitioner that, "I'm a 35- year-old man and no 19-year-old punk is going to talk to me in that manner and if you don't like it, you can leave." Erin Pigneri did not use a racial slur or tell Petitioner to "paint yourself white." After the confrontation, Erin Pigneri left the kitchen. Petitioner went back to work, completing his shift without further incident. Petitioner did not have further conversation with Erin Pigneri on the evening of December 18, 2004. Erin Pigneri did not discuss Petitioner or the shirt incident with any of the waiters or any other staff members that night. On Monday evening, December 20, 2004, Erin Pigneri was in the restaurant when Petitioner and his cousin, Mr. Walker, came to work. Petitioner was dressed in nicer clothes than he usually wore to work. Mr. Walker approached Erin and James Pigneri, telling them that they needed to have a meeting. Erin and James Pigneri followed Petitioner and Mr. Walker into the kitchen. The conversation began with Mr. Walker complaining that he understood some racist things were going on at the restaurant. Mr. Walker wanted talk about Erin Pigneri's alleged use of the "N" word. Erin Pigneri did not understand Mr. Walker's concern because Mr. Walker had been at work on the cook-line during the December 18, 2004, shirt incident. According to Petitioner's testimony at the hearing, Mr. Walker had talked to a waiter over the weekend. The waiter was Mr. Walker's girlfriend. Petitioner testified that the waiter/girlfriend told Mr. Walker that she heard Erin Pigneri use the "N" word in reference to Petitioner after Erin Pigneri left the kitchen after the shirt incident on December 18, 2004. Petitioner testified that neither he nor Mr. Walker had first- hand knowledge of Erin Pigneri's alleged use the "N" word in the dining room. Neither Mr. Walker nor the waiter provided testimony at the hearing. Accordingly, this hearsay evidence is not competent evidence that Erin Pigneri used a racial slur in the dining room after the "shirt incident." During the meeting on December 20, 2004, Erin Pigneri explained to Petitioner and Mr. Walker that the incident on December 18, 2004, involved Petitioner's insubordination and not racism. Mr. Walker wanted to know why Erin Pigneri had not fired Petitioner on Saturday night if he had been insubordinate. Erin Pigneri told Mr. Walker that he would have fired Petitioner but he did not want Respondent to lose Mr. Walker as an employee. Apparently, it is relatively easy to replace a dishwasher but not easy to replace a cook like Mr. Walker. Erin Pigneri asked Mr. Walker and another African- American who worked in the kitchen whether they had ever heard him make derogatory racial slurs. There is no persuasive evidence that Erin Pigneri ever made such comments even though Petitioner occasionally, and in a joking manner, called Erin Pigneri slang names like Cracker, Dago, and Guinea. Petitioner was present when Mr. Walker and Erin Pigneri discussed the alleged racial slurs. Petitioner's only contribution to the conversation was to repeatedly ask whether he was fired. Erin Pigneri never told Petitioner he was fired. After hearing Mr. Walker's concern and Erin Pigneri's explanation, James Pigneri specifically told Petitioner that he was not fired. James Pigneri told Petitioner that he needed to talk to Erin Pigneri and that they needed to work things out, man-to-man. After the meeting, Mr. Walker began his work for the evening shift on December 20, 2004. Petitioner walked around talking on his cell phone, telling his mother that he had been fired and she needed to pick him up. James Pigneri told Petitioner again that he was not fired, that Petitioner should go talk to Erin Pigneri, and that Erin Pigneri was waiting to talk to Petitioner. Erin Pigneri waited in his office for Petitioner to come in to see him. Petitioner never took advantage of that opportunity. During the hearing, Petitioner testified that James Pigneri made an alleged racial slur in reference to Petitioner at some unidentified point in time. According to Petitioner, he learned about the alleged racial slur second-hand from a cook named Bob. Bob did not testify at the hearing; therefore, there is no competent evidence that James Pigneri ever made a racial slur in reference to Petitioner or any other employee. Contrary to PMI's reporting procedures, Petitioner never called or informed PMI that he had been harassed, discriminated against, fired, terminated, or ceased working for Respondent for any reason. On December 22, 2004, PMI correctly concluded that Petitioner had voluntarily terminated or abandoned his employment. When Petitioner filed his Employment Complaint of Discrimination on January 11, 2005, Petitioner listed his address as 6526 Lance Street, Panama City, Florida, which is his mother's residence. On April 18, 2005, FCHR sent the Determination: No Cause to Petitioner at 6501 Pridgen Street, Panama City, Florida, which is the address of one of Petitioner's friends. When Petitioner filed his Petition for Relief on May 25, 2005, Petitioner listed his address the same as his mother's home. FCHR transmitted the petition to the Division of Administrative Hearings, indicating that Petitioner's address of record was the same as his friend's home. Therefore, the June 9, 2005, Notice of Hearing, and the July 12, 2005, Order Granting Continuance and Re-scheduling Hearing were sent to Petitioner at his friend's address. During the hearing, Petitioner admitted that between January 2005 and August 2005, he lived back and forth between his mother's and his friend's residences. When he lived with his friend, Petitioner did not check his mail at his mother's home every day. However, Petitioner admitted that he received the June 9, 2005, Notice of Hearing, scheduling the hearing for July 18, 2005, and the July 12, 2005, Order Granting Continuance and Re-scheduling Hearing for August 19, 2005. Petitioner testified that he knew the first hearing was rescheduled to take place on August 19, 2005. According to Petitioner, he misplaced the "papers" identifying the location of the hearing at the Office of the Judges of Compensation Claims in Panama City, Florida. Petitioner asserts that he went to the county courthouse on August 19, 2005, based on his erroneous belief that the hearing was to take place at that location. After determining that there was no administrative hearing scheduled at the county courthouse on August 19, 2005, Petitioner did not attempt to call FCHR or the Division of Administrative Hearings. On December 1, 2005, the undersigned sent Petitioner a Notice of Hearing, scheduling the hearing after remand for January 25, 2005. The December 1, 2005, Notice of Hearing was sent to Petitioner at his mother's and his friend's addresses. The copy of the notice sent to his friend's home was returned as undeliverable. During the hearing on January 25, 2005, Petitioner testified that he used one of the earlier notices (dated June 9, 2005, and/or July 12, 2005) to locate the hearing site for that day. This was necessary because Petitioner had misplaced the December 1, 2005, Notice of Hearing. All three notices have listed the hearing site as the Office of the Judges of Compensation Claims, 2401 State Avenue, Panama City, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 23rd day of March, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 2006. COPIES FURNISHED: Cecil Howard, 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 Gary R. Wheeler, Esquire McConnaughhay, Duffy, Coonrod Pope & Weaver, P.A. Post Office Box 550770 Jacksonville, Florida 32255-0770 Marlow Williams 6526 Lance Street Panama City, Florida 32404
