Findings Of Fact On October 23, 1978, Petitioner was hired as secretary to W. J. Crist, president of Hygroponics, Inc. On February 26, 1979, W. J. Crist evaluated Petitioner's overall job performance as "good." With respect to cooperation, the Petitioner was rated in the category of "cooperates very well," the highest rating possible for that category of performance. With respect to job knowledge, she was rated as showing "unusual capacity," also the highest rating possible for that category of performance. On March 5, 1979, Petitioner received an increase in salary from $4.18 per hour to $4.51 per hour, based in part upon her increased responsibilities and in part upon demonstrated merit. Following is Hygroponics, Inc.'s office staff organization chart dated May 2, 1979: HYGROPONICS, INC. OFFICE STAFF ORGANIZATION CHART | President | /| W. J. Crist |\ / | | \ / | \ \ \ | Purch. Agent | | Controller | \ | Technical Service | | Dick Destival | | James Jobe |" \ | Dick Jeffery | | | | | "" \ | | " / | | " "\ | " / | | " \" | " / | | " \ " | " / | | " \ " | " / | | " \ " | " / | | " \ " | " / | | "\ "| | Marsha | | Liz | | Nell | | Arlene | | Carolyn | | Betsy | | | | | | | | | | | | | /|\ Direct lines of authority. Answerable to this person at all times " Indirect lines of authority. Answerable for secondary duties and when direct lines are not available. The above organizational chart does not include the company's chief executive officer. On occasion, members of the company's secretarial staff went directly to the chief executive officer with employment-related problems. In September, 1979, after James Jobe, the controller referenced in the above chart, left the company's employ, W. J. Crist, the company president, advised Petitioner that she was to become office manager. After that time, Petitioner assumed many of the duties of office manager. Petitioner inquired when she would receive a raise commensurate with her increased responsibilities, and was advised that this would be accomplished after the company hired a new controller. Emmett Singleton was hired to fill the position of controller on October 29, 1979. On December 11, 1979, Petitioner formally became acting office manager. On that date Petitioner was evaluated by Emmett Singleton, who rated Petitioner highest in the areas of decision-making and ability to organize, and lowest in the areas of acceptability and responsibility. Specifically, Singleton made the following comments concerning Petitioner's job performance: "Has difficulty in establishing satisfactory relationships with people"; "Average leader, conventional in manner and enthusiasm, conveys ideas but does not motivate group"; "Has problem with admitting an error or fault"; "Reluctant to accept job responsibilities. Supervision and follow-up often required"; "Considers job an eight to five task with scheduled breaks reguardless [sic] of status of workload"; "Employee is preoccupied with the position rather than a concern for getting the job done"; and, "Employee resents being monitored or controlled. Sometimes uncooperative and slow to respond to direction." In addition, members of the company management group, other than Emmett Singleton, commented on this evaluation that Petitioner "alienates co-workers," "Has experienced confusion in the scheduling of grower school," and expressed concern with Petitioner's "attitude." The controller noted on the evaluation form that he planned ". . .to work closely with [Petitioner] for the next 60 days and make an assessment during this time as to whether on [sic] not suited for office manager." Finally, Mr. Singleton noted on Petitioner's performance review form that Petitioner ". . .is classified as Acting Office Manager and is on probation with reguard[sic] to classification. No change in rate of pay is being made at this time. Employee will be reevaluated in 60 days on or about 2/10/80." In order to improve her skills in the area of acceptability and responsibility, Petitioner requested that Mr. Singleton issue a memorandum clarifying the lines of her authority especially since her subordinates had not been advised that she had been given supervisory responsibility over them. Her request was denied at that time because Singleton wanted to first determine whether she could handle the position. On January 12, 1980, Singleton reevaluated Petitioner's job performance. According to Singleton's rating, Petitioner had improved in the areas of acceptability and responsibility, which had been her weak points in the evaluation performed one month earlier. On this same day, Petitioner was reclassified from acting office manager to office manager, and received an increase in pay to $821.60 per month, retroactive to November 1, 1979. Petitioner also assumed the duties of payroll clerk and accounts payable in addition to the duties of office manager. Shortly after receiving this promotion, Petitioner advised employees of Hygroponics, Inc., that she was pregnant. W. J. Crist and Emmett Singleton acknowledged her pregnancy, and the latter inquired concerning her intentions regarding her employment. Petitioner responded that she intended to continue working for the company, and to return to work after the birth of her child. Hygroponics, Inc., had no maternity leave policy. No other female employee had ever given notice of pregnancy and stated her intention to return to work following childbirth. However, at least two other employees had become pregnant during the term of their employment with Hygroponics, Inc. One of these employees, in fact, suffered two miscarriages during her term of employment, and continued working with the company. Another female worker became pregnant, gave birth to a child, and returned to work without ever advising the company or the company ever being aware that she had been pregnant until after she had returned to work. On January 30, 1980, Petitioner submitted a memorandum to Eugene Crist, the company's chief executive officer. The memorandum suggested changes regarding the responsibilities of certain of the office personnel under her supervision. Petitioner had previously discussed these suggested changes with Emmett Singleton, her immediate supervisor, who advised her that he thought her suggestions were a good idea. At the time the memorandum was submitted to the company's chief executive officer, W. J. Crist, the president of the company, was out of the state. On January 30, 1980, Eugene Crist showed the memorandum to Emmett Singleton. The memorandum was then returned to Petitioner by the company's chief executive officer with a notation that the matters contained in the memorandum should be handled through Singleton. Two days later, on February 1, 1980, Singleton asked Petitioner for the memorandum. When Petitioner could not locate the memorandum, and offered to discuss the details of it with Singleton, Singleton advised her that there was no basis for conversation if she could not produce the memorandum. As noted above, Singleton had seen and read the memorandum two days previously when it was shown to him by Eugene Crist. Upon W. J. Crist's return to Florida, Singleton advised him that Petitioner had submitted a memorandum directly to the company's chief executive officer, and that when Singleton asked Petitioner to see the memorandum, she advised him that she had misplaced it. On February 8, 1980, W. J. Crist circulated a memorandum to the Hygroponics, Inc., executive staff concerning Petitioner's ". . .insubordination, poor attitude [and] defiance of executive orders. This memorandum provided, in part, as follows: It is my understanding that Carolyn recently drafted a memorandum on her proposed changes in office duties for many people, changes in accounting procedures, etc. I have been informed that she: "by-passed you, her immediate superior and by-passed me, her next-in-line superior." and delivered this memo directly to Gene, our CEO. Then when Gene informed her to "discuss the memo directly with you," she advised you "she did not even have the memo anymore." I find these actions, on Carolyn's part very distressing and feel we must take disciplinary actions with her. So - what are the problems. Her "uncooperative" and "attitude" problems outlined in your personnel evaluation of her on December 11, 1979 (which she acknowledged) when you put her "on probation," the first time, still persist. She demonstrated anything but teamwork in by-passing her two immediate superiors and going directly to our CEO. This is very bad for an employee to do but even worse for her since she is suppose [sic] to be a leader of our people in her slot as Office Manager. Her disregarding Gene's directive to discuss the memo with you was corrected only by your insistance[sic] that the two of you discuss it. Her statement to you that "she no longer had the memo" is also distressing. Has she destroyed it? This additional negative certainly weakens her argument that "she went directly to Gene because he was going out.[sic] (Original emphasis.) The above-referenced memorandum solicited the views of the company's executive staff as to whether to terminate Petitioner, discipline her in some fashion, or give her an opportunity to resign. The decision was unanimous among all five members of the executive staff to terminate Petitioner. No member of the executive staff questioned Petitioner before concurring in the decision to discharge her. Such a memorandum of concurrence was not the company's standard practice in discharging employees, which generally was for the discharge decision to be made by the employee's supervisor alone. Hygroponics, Inc., was, at all times material to this proceeding, a rather small organization, numbering at the most approximately fifty employees. As a result, many of the internal functions of the company were informal in nature. For example, there were no strict lines of authority for secretarial staff to air grievances or make suggestions. There was, however, a generalized procedure for employees to approach their immediate supervisor with any employment-related problems. There is no direct substantive evidence in the record in this cause from which it can be concluded that Petitioner was terminated from her employment because she was either female or pregnant. Further, whatever circumstantial evidence there is in this record to support such a contention is overcome by Respondent's demonstration that Petitioner was at best an employee of average ability who management viewed at times to be a problem employee. It appears, therefore, that the reason for Petitioner's discharge was an accumulation of events, culminating in her memorandum of January 30, 1980, being submitted to the company chief executive officer, and not for any reason relating to her sex.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Commission on Human Relations, dismissing the Petition for Relief, and denying the relief requested therein, with prejudice. DONE AND ENTERED this 2nd day of March, 1983, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1983. COPIES FURNISHED: James H. White, Jr., Esquire 229 McKenzie Avenue Panama City, Florida 32401 John F. Daniel, Esquire Post Office Box 2522 Panama City, Florida 32401 Dana Baird, Esquire Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301 Richard E. Williams Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2007),2 by discriminating against Petitioner based on her national origin.
Findings Of Fact The Omni, advertised as "Omni Orlando Resort at ChampionsGate," is a golf resort located in the Orlando tourist corridor near Walt Disney World. The Omni is an employer as that term is defined in Section 760.02, Florida Statutes. Petitioner, Suhra Merdanovic, is a Bosnian female, and her first language is Bosnian. She speaks and understands English, but is more fluent and comfortable using her native language. Ms. Merdanovic was employed by the Omni from approximately August 22, 2006, to October 9, 2006. Ms. Merdanovic worked in the kitchen of the Broadway Deli, a sandwich shop located in the resort. The Broadway Deli was one of several restaurants in the Omni complex. During the brief period of Ms. Merdanovic's employment, the Broadway Deli did not have a full-time manager. Ms. Merdanovic reported to Silvio Rosalen, the sous chef at Teri's Restaurant, near the Broadway Deli in the Omni complex. Mr. Rosalen reported to Robert Fohr, the assistant food and beverage manager for the Omni. The Omni has established a policy that prohibits harassment in the workplace. The policy defines harassment as: ny unwelcome verbal, non-verbal, physical or other conduct or behavior relating to an individual's race, religion, color, sex, national origin, age, disability or any other categories protected by state, federal or local law, that is made a term or condition of employment, is used as the basis for employment or advancement decisions, or has the purpose or effect of unreasonably interfering with work or creating an intimidating, hostile or offensive work environment. The policy "strictly prohibit[s]" employees, supervisors, and members of management from harassing other employees, supervisors, or members of management. The policy directs an employee who has a complaint of harassment to report that complaint to any manager or supervisor, the human resources director, the general manager, or the regional vice president of operations. The complaint triggers a formal investigation, usually conducted by the human resources director. The Omni's harassment and equal employment opportunity policies are set forth in the Omni's Associate Handbook, which is provided to all employees. The handbook is reviewed during an orientation session that all newly hired Omni employees must attend. Ms. Merdanovic attended an orientation session on August 26, 2006, and testified that she was familiar with the harassment policy. The Omni calls the first 90 days of employment an "introductory period." The Associate Handbook describes the introductory period as follows: During this time you will have a chance to see whether you like your job and Omni Hotels will have an opportunity to evaluate your performance and suitability for your position. If Omni Hotels concludes that your job performance and/or suitability have been unsatisfactory, you may be dismissed at any time during the introductory period at Omni Hotels' complete discretion. You may also be dismissed at any time after the introductory period at the sole discretion of Omni Hotels. Both during and after the introductory period, all associates are associates at will. If an employee's manager determines within the first 90 days of employment that an employee's job performance and/or "suitability" is unsatisfactory, the manager will meet with the employee to review the manager's concerns. After this meeting, the employee's job status is "suspended pending investigation" while the manager confers with the human resources department to review the issues. If the manager and the human resources department agree that the employee should be terminated, then human resources will advise the employee of the decision. Ms. Merdanovic testified that two Hispanic co-workers, Erica Torres and Charlotte Ruiz, harassed her because of her nationality. Ms. Torres asked her what she was doing in America and refused to go into the kitchen with her. Both women made jokes and laughed about Ms. Merdanovic being from Bosnia. Ms. Merdanovic testified that her co-workers also disliked her, because she refused to give them free food from the Broadway Deli's kitchen. Ms. Merdanovic did not complain to a manager, supervisor, or any other Omni employee about the harassment she claimed to have experienced. Mr. Rosalen testified that he received numerous complaints about Ms. Merdanovic's job performance from her co- workers. The co-workers told him that Ms. Merdanovic failed to follow instructions, argued with guests and co-workers, interrupted co-workers who were trying to explain how to complete job tasks, gave guests the wrong order at least twice, and failed to comply with the posted work schedule. Mr. Rosalen personally observed Ms. Merdanovic's performance deficiencies on several occasions. The guest complaints were most significant to Mr. Rosalen. On one occasion, the guest had ordered a turkey sandwich, but was served a pastrami sandwich by Ms. Merdanovic. Rather than correcting the order immediately, Ms. Merdanovic attempted to convince the guest to keep the pastrami sandwich by telling him it was good and he would like it. On a second occasion, a guest ordered a milkshake and was served iced coffee.3 At the hearing, Ms. Merdanovic testified that she was unaware of any complaints about sandwiches. She stated that she has worked in kitchens for years and understands how to make sandwiches in a deli. She did complain that she was never trained to operate the "front of the store" equipment such as the milkshake machine or coffee machine, yet was expected to somehow be able to operate them. Mr. Rosalen orally counseled Ms. Merdanovic on multiple occasions regarding her performance deficiencies, but he never observed any improvement. Pursuant to the process for terminating employees during their introductory period, Mr. Rosalen and Mr. Fohr decided to meet with Ms. Merdanovic to discuss her performance deficiencies and to advise her not to return to work until she heard from human resources. After this meeting, Mr. Rosalen and Mr. Fohr would meet with the human resources director to discuss whether to terminate Ms. Merdanovic's employment. Mr. Rosalen and Mr. Fohr prepared a "Problem/Solution Notice" form, dated October 2, 2006, that set out the performance deficiencies and possible corrective actions for Ms. Merdanovic. This notice was intended to be the outline for discussion during the meeting with Ms. Merdanovic. Under the heading "Specific Nature of Problem" were various categories, including absenteeism, tardiness, violation of company policies, and unsafe actions. Ms. Merdanovic's problem was categorized as "Performance Below Standards." The specific performance problems were set out as follows: There have been numerous complaints about Suhra Merdanovic's job performance from several of her co-workers. These complaints include: Does not follow training of food preparation techniques and quantities. Does not follow food, coffee and drink recipes. Does not know what all the ingredients are to be able to make recipe. Looses [sic] tickets for orders. Has become argumentative with employees and guests when told that the product is wrong. Has tried to convince guests that mistakenly prepared food is good and tried to get them to take it. Does not understand the schedule after repeatedly having it explained. Interrupts employees and does not let people finish talking when trying to explain how a task needs to be completed. Is not a team player. The notice set forth the following under the heading, "Expected performance or conduct/corrective action required": Suhra must adhere to the following guidelines: Must be receptive to and accept training in all facets of Broadway Deli culinary operations with a positive attitude. Must follow all standard recipes without deviation to achieve a consistent product. Must produce orders in timely fashion in accordance to [sic] the guest's specifications. Must never become argumentative with a guest and try to force a guest to take a product they do not want. Must get along with and assist teammates with all guest needs. The notice concluded that the "disciplinary action taken" would be "Suspension/Termination." On October 2, 2006, Mr. Rosalen and Mr. Fohr met with Ms. Merdanovic in Mr. Fohr's office to review the contents of the Problem/Solution Notice. When her supervisors began reviewing her performance deficiencies, Ms. Merdanovic interrupted to argue with them. Mr. Fohr pointed out that this was the same sort of conduct that led to this counseling session in the first place. Before Mr. Rosalen and Mr. Fohr could present her with the notice and commence the formal suspension/termination process, Ms. Merdanovic began to cry in a way that Mr. Rosalen described as "almost hysterical" for several minutes. Ms. Merdanovic then walked to the kitchen of the Broadway Deli. Mr. Rosalen followed her, both to make sure she was all right and to escort her off the Omni property. Ms. Merdanovic again began crying and saying that she could not breathe. She described her condition as "couldn't breathe, couldn't think, couldn't stay." Mr. Rosalen called in the Omni's security team, which also acts as the resort's first responder in medical emergencies. The entry of the security guards threw Ms. Merdanovic into a greater panic. Eventually, at Ms. Merdanovic's request, the Omni called an ambulance service, which transported her to Florida Hospital in Orlando. Ms. Merdanovic was diagnosed with high blood pressure and discharged after an overnight stay in the hospital.4 After the incident leading to Ms. Merdanovic's hospitalization, Mr. Rosalen and Mr. Fohr met with Lisa Borde- Christie, the Omni's human resources manager, to discuss their meeting with Ms. Merdanovic, the complaints about her from guests and co-workers, and Mr. Rosalen's observations of her performance deficiencies and his previous attempts to correct them. Ms. Borde-Christie agreed that Ms. Merdanovic was not meeting the Omni's performance expectations for her position. In light of Ms. Merdanovic's failure to improve her performance despite Mr. Rosalen's several attempts at verbal counseling, Ms. Borde-Christie, Mr. Fohr, and Mr. Rosalen agreed it was unlikely that Ms. Merdanovic's performance would improve in the future. They decided to terminate her employment. On October 9, 2006, Ms. Borde-Christie and Mr. Rosalen met with Ms. Merdanovic to tell her that her employment was terminated and to review the performance deficiencies that caused her termination. When Ms. Borde-Christie attempted to review the performance issues, Ms. Merdanovic became argumentative, stating that these issues were all lies and that her co-workers did not like her. Ms. Borde-Christie testified that Ms. Merdanovic said nothing about her national origin being an issue in the workplace. Ms. Merdanovic produced no credible evidence that her language or national origin played a role in the decision to terminate her employment. The Omni's management did not become aware of her allegations of harassment due to her national origin by her co-workers until Ms. Merdanovic filed her Employment Complaint of Discrimination, more than two months after her dismissal. The evidence produced at hearing demonstrated that the reasons for Petitioner's termination all related to her job performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Omni Hotel Resort did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 26th day of March, 2008, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2008.
Findings Of Fact The Parties. The Petitioner, Andrea Bateman, is a female. At all times relevant to this proceeding, Ms. Bateman was 41 or 42 years of age. Ms. Bateman is an attorney. Ms. Bateman failed to prove that she was a member of The Florida Bar during the period of time at issue in this proceeding. The Respondent, the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department"), is an agency of the State of Florida. Ms. Bateman's Employment by the Department. In October of 1990, the Department employed Ms. Bateman as an attorney in the Department's Office of Child Support Enforcement. Ms. Bateman was required to be a member of The Florida Bar. Ms. Bateman's position with the Department was classified as a "Select Exempt Service" position. Pursuant to Chapter 22SE-1.002(5), Florida Administrative Code, and Part V, Chapter 110, Florida Statutes, persons employed in select exempt service positions may be terminated from employment without cause. Ms. Bateman's immediate supervisor was Chriss Walker. Mr. Walker is a Senior Attorney with the Department and, at the time Ms. Bateman was hired, also served as the Assistant Secretary for Child Support Enforcement. As of December 4, 1991, the Assistant Secretary for Child Support Enforcement, and Mr. Walker's immediate supervisor was Anne F. Donovan. At all times relevant to this proceeding, William H. Bentley was an Assistant Deputy Secretary of the Department with supervisory authority over the Department's Assistant Secretary's, including Mr. Walker and Ms. Donovan. "Productivity Enhancement" at the Department. During 1991, the Department was required to evaluate all employment positions at the Department and to reduce those positions in an effort to improve the productivity of the Department. Generally, all positions at the Department and the work performed by the persons filling those positions were considered and decisions were made as to which positions could be eliminated. The Department referred to the elimination of positions as "red-lining". The Department also made efforts to insure that any person affected by the elimination of their position would be placed in another position. Ms. Bateman's attorney position with Child Support Enforcement was identified for elimination. Another attorney position in Child Support Enforcement and Mr. Walker's Senior Attorney position were not identified for elimination. The decision to eliminate one of the attorney positions was based upon conclusion that the administrative duties of the two attorney positions could be handled by a paralegal position and the legal duties could then be handled by one attorney. Efforts to assist Ms. Bateman to find another position were not successful. Ultimately, the Department decided to find a position in which to continue to employ Ms. Bateman rather than to terminate her position and release her. The Department reclassified another vacant position so that Ms. Bateman could continue to be employed as an attorney for Child Support Enforcement. Mr. Walker was directed to create an attorney position for Ms. Bateman by the Assistant Secretary for Human Services. This decision was made during the early Fall of 1991. The Department's decision to continue to employ Ms. Bateman was based in part on the Department's concern about terminating an employee of the Department. The evidence failed to prove that the Department acted unreasonably with regard to the red-lining of Ms. Bateman's position. Ms. Bateman's Performance. During the year after Ms. Bateman began her employment with the Department, Mr. Walker, Ms. Bateman's supervisor, began to develop concerns about the adequacy of her work product. Ms. Bateman also began to evidence behavior which was not acceptable for an attorney of the Department. As a result of Ms. Bateman's odd behavior, Mr. Walker became concerned about Ms. Bateman's mental well-being. Mr. Walker memorialized his concerns about Ms. Bateman in a memorandum to Mr. Bentley dated December 2, 1991. The memorandum was revised December 19, 1991 to eliminate references to a counselor that Ms. Bateman had informed Mr. Walker she was seeing. Ms. Bateman's work deteriorated to an extent which necessitated other employees carrying out some of her duties. Among the difficulties experienced with Ms. Bateman which formed a reasonable basis for terminating her employment were the following: Ms. Bateman had difficulty communicating with other employees and her supervisor. As an attorney, Ms. Bateman was required to communicate orally and in writing. She was unable to do so in an adequate manner. Ms. Bateman failed to demonstrate good judgment and trustworthiness and, therefore, her supervisors were unable to rely upon her judgment as an attorney of the Department. Ms. Bateman's appearance was unacceptable for an employee of the Department who was required to meet and communicate with the public. Ms. Bateman's hair was unkempt and dirty, her clothes were often soiled and wrinkled, she failed to brush her teeth and she appeared not to be bathing based upon her appearance and her strong body odor. Although required to do so by Department policy, Ms. Bateman refused to give her supervisor a permanent home address or phone number. On one occasion Ms. Bateman was found asleep in the offices of the Department at night and on one occasion she was found asleep during working hours. Based upon the inadequacy of Ms. Bateman's performance, the Department had a reasonable basis for terminating Ms. Bateman's employment. Mr. Walker's Evaluation of Ms. Bateman. On December 18, 1991, Mr. Walker presented Ms. Bateman with a Professional Employee Performance Appraisal form he had completed on her performance. The Appraisal was reviewed by Ms. Bateman and signed by her on December 18, 1991. Mr. Walker gave Ms. Bateman's performance a rating of "effective" on the Appraisal. Of the factors evaluated on the Appraisal, Mr. Walker judged Ms. Bateman's performance as "excellent" on one factor, "effective" on eleven factors and "needs improvement" on nine factors. Mr. Walker gave Ms. Bateman's performance an "effective" rating despite his conclusion that her work product was not acceptable and despite his concerns about her inappropriate behavior. He did so because he had recently been directed to create a position to keep Ms. Bateman as an employee of the Department and in an effort to avoid litigation over Ms. Bateman's termination. Mr. Walker did not believe that his supervisors wanted to avoid any difficulties concerning Ms. Bateman employment. Mr. Walker failed to follow Department procedure in presenting the Appraisal to Ms. Bateman. The Appraisal was required to be reviewed and approved by Mr. Walker's immediate supervisor, Ms. Donovan, before it was given to Ms. Bateman. Mr. Walker, contrary to Department policy, presented the Appraisal to Ms. Bateman before Ms. Donovan had seen and approved it. Ms. Donovan was aware of the problems with Ms. Bateman's performance and would not have approved an "effective" rating. Upon receiving the Appraisal, Ms. Donovan discussed the Appraisal with Mr. Walker and rejected it, as it was her right to do. Ms. Donovan, consistent with Department policy, specified that Ms. Bateman would be evaluated again in sixty days. The Department's Request that Ms. Bateman Undergo a Psychological Evaluation. Although the Department had a reasonable basis for terminating Ms. Bateman's employment by the end of 1991 and in early 1992, the Department decided to attempt to discover the cause of Ms. Bateman's decline in performance and the onset of her odd behavior rather than terminate her employment. The Department made this decision in an effort to determine what assistance Ms. Bateman might need. Ultimately, the Department was attempting to determine what work, if any, Ms. Bateman was capable of performing. The Department's decision was based upon a number of incidents involving Ms. Bateman. Those incidents are included in Mr. Walker's Chronology of December 2, 1991 and his Revised Chronology of December 19, 1991 and are hereby incorporated herein. Although not all the incidents described in the chronologies were proved during the final hearing to have occurred, the Department's consideration of the incidents reported by Mr. Walker was reasonable. Due to the Department's concerns about Ms. Bateman, the Department requested that Ms. Bateman voluntarily participate in the Department's employee assistance program. Ms. Bateman refused. In order to determine what could be done to help Ms. Bateman, and to determine what duties and responsibilities she was capable of performing, the Department requested that Ms. Bateman undergo a psychological, or other, evaluation. Ms. Bateman refused. After discussing the matter with Ms. Bateman and legal counsel she had retained, the Department notified Ms. Bateman that her continued employment was conditioned upon her undergoing a psychological evaluation or some other evaluation which would allow the Department to determine what work she was capable of performing. In a letter of February 12, 1992, Ms. Bateman, through her representative, was informed of the following: As you also know, we are attempting to help Andrea address a problem which we believe exists and has been well documented over the past 16 months. In return, we need Andrea's help and cooperation. If Andrea chooses to agree to our request that she undergo a psychiatric evaluation and authorize the release to us of the psychiatrist's prognosis, diagnosis and recommendation for treatment, we will be glad to schedule an appointment for her with a psychiatrist, and will pay for such an evaluation. We will use the evaluation to determine an appropriate course of action. Ms. Bateman's Termination from Employment. Ms. Bateman continued to refuse to undergo any evaluation or to suggest any alternative course of action. Consequently, based upon Ms. Bateman's inadequate and unacceptable work performance, the Department terminated Ms. Bateman's employment with the Department on or about February 13, 1992. Ms. Bateman's termination from employment was effective February 28, 1992. Ms. Bateman was terminated from employment due to the fact that she was not adequately performing her job and she refused to cooperate with the Department to find out what could be done to help her become an effective employee. Ms. Bateman failed to prove that the Department's reason for terminating her employment was a pretext. Ms. Bateman's Charge of Discrimination. On or about September 15, 1992, Ms. Bateman filed a Charge of Discrimination against the Department with the Florida Commission on Human Relations. Ms. Bateman alleged that she had been discriminated against on the basis of sex and a perceived handicap. On February 10, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " Ms. Bateman filed a Request for Redetermination on March 4, 1992. On April 12, 1993, the Commission issued a "Redetermination: No Cause" affirming its decision. On May 12, 1993, Ms. Bateman filed a Petition for Relief seeking a formal administrative hearing. In the petition Ms. Bateman alleged that the Department had discriminated against her on the basis of sex, a perceived handicap and, for the first time, age. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Ms. Bateman. Alleged Sex Discrimination. Ms. Bateman failed to prove that any action of the Department was based upon Ms. Bateman's sex: she was not held to any standard or requirement based upon her sex, she was not terminated because of her sex and the Department's efforts to determine the cause of Ms. Bateman's problems was not based upon her sex. Ms. Bateman failed to prove that any Department policy or standard had a disparate impact on female employees. Ms. Bateman failed to prove that she was replaced by a male attorney. Ms. Bateman's grooming habits were discussed with her. Some of those discussions concerned the wearing of panty hose and her makeup. It must be inferred that such discussions were not carried on with male employees. The evidence, however, failed to prove that Ms. Bateman's termination was based upon these matters. Although grooming played a part in the decision to terminate Ms. Bateman's employment, it was grooming related to basic cleanliness and neat appearance required of all employees and not just female employees. Ms. Bateman failed to prove that the Department discriminated against her on the basis of her sex, female. Alleged Age Discrimination. At the time that Ms. Bateman was hired she was 41 years of age, and at the time she was terminated she was 42 years of age. Ms. Bateman failed to prove that age played any part in her treatment by the Department. This finding is supported, in part, by the fact that the difference between Ms. Bateman's age when she was hired and when she was terminated was only one year. Ms. Bateman failed to prove that she was replaced by a younger person. Ms. Bateman failed to prove that the persons who made the decision to terminate her employment were aware of her age. Ms. Bateman failed to prove that the Department discriminated against her on the basis of her age. Alleged Perceived Handicap. The Department did believe that Ms. Bateman was suffering from some mental problem. This belief was based upon Ms. Bateman's odd behavior and a concern that Ms. Bateman was "homeless". It was for this reason that the Department requested that Ms. Bateman undergo a psychological evaluation. Ms. Bateman failed to prove, however, that the Department treated her differently from the manner other employees of the Department were treated under similar circumstances. Ms. Bateman also failed to prove that the Department's request that she undergo a psychological or other evaluation to determine how to assist her to meet the requirements of her employment was made for a discriminatory reason. Under the circumstances, the Department's request of Ms. Bateman was reasonable. Ms. Bateman also failed to prove that she was terminated from employment because of any perceived handicap. The evidence proved that she was in fact terminated from employment due to her inability to satisfactorily carry out her job responsibilities. Ms. Bateman also failed to allege or prove that she has a handicap based upon her mental condition. Ms. Bateman also failed to prove that the Department discriminated against her on the basis of a handicap or a perceived handicap.
The Issue Whether Respondent violated the Florida Human Rights Act by maintaining racially segregated restroom facilities, as alleged by Petitioner; and, if so, the affirmative relief which should be granted.
Findings Of Fact At all times material hereto, the COMPANY operated a business establishment located at Pompano Beach, Florida. BOYKIN a black male, was employed by the COMPANY during a one-week period in 1978. During BOYKIN'S employment, the COMPANY maintained separate restroom facilities, segregated on the basis of race. (Testimony of Boykin.) The COMPANY'S two restroom facilities were racially segregated by the use of signs affixed to the outside door of each restroom--one sign labeled "Colored," and the other, "White." (Testimony of Boykin.) The COMPANY'S maintenance of racially segregated restrooms was offensive to BOYKIN, and the other black employees. (Testimony of Boykin.) As of September 26, 1980, the offending signs by which the COMPANY racially segregated its restrooms were no longer affixed to the restroom doors. (Viewing by hearing officer, accompanied by parties.) The COMPANY presented no evidence controverting BOYKIN'S allegation that it maintained racially segregated restrooms during the time in question. Neither did it assert a legitimate, nondiscriminatory purpose for maintaining segregated restroom facilities. BOYKIN presented no evidence to establish that the COMPANY employed 15 or more employees for each working day in each of 20 or more calendar weeks during 1977 or 1978.
Conclusions Conclusions: Respondent company maintained racially segregated restrooms for Petitioner and its other employees. The signs, by which the restrooms were labeled, "Colored" and "White" were no longer affixed to the restrooms at the time of final hearing. However, Petitioner failed to prove an essential elements of his claim-- that Respondent is an "employer" within the meaning of the Human Rights Act. Recommendation: That the Petitioner for Relief be DISMISSED. Background: On November 27, 1978, Petitioner Michael C. Boykin ("BOYKIN") filed with the Florida Commission on Human Relations a complaint of unlawful discrimination against Respondent H. L. Westberry Paving and Trucking Company ("COMPANY"). The gravamen of BOYKIN'S complaint was that he was subjected to an unlawful condition of employment by virtue of the COMPANY'S maintenance of racially segregated restroom facilities. After investigation, the Commission on Human Relations issued its determination that there was reasonable cause to believe that the COMPANY had engaged in an unlawful employment practice, as alleged, in violation of the Human Rights Act, Sections 23.161, et seq., Florida Statutes. After an unsuccessful effort to effect voluntary conciliation of the dispute, the Commission issued a Notice of Failure of Conciliation on June 11, 1980. Within the requisite 30-day period thereafter, BOYKIN filed a Petition for Relief from the alleged unlawful employment practice. Notwithstanding the COMPANY'S failure to file any pleading responding to BOYKIN'S Petition for Relief, or request a hearing thereon, the Commission forwarded it to the Division of Administrative Hearings on July 10, 1980, for the assignment of a hearing officer. By Notice of Hearing, final hearing was thereafter set for September 26, 1980. At final hearing, counsel for the COMPANY represented that on September 25, 1980, he received a telephone call from an unidentified employee of the Commission purporting to cancel the hearing scheduled for September 26, 1980. As a result, he asserted his witness was not present at final hearing; he then proffered that, if present, his witness could testify that signs indicating "Colored" and "White" were not now affixed to the doors of the separate restrooms located on the COMPANY'S premises. In order to avoid continuing the hearing, the parties agreed that the undersigned hearing officer should determine whether or not the described signs were present by conducting a viewing of the COMPANY'S premises. In light of this viewing, the COMPANY declined to request a continuance, and indicted that it wished to present no further evidence. The COMPANY also moved to dismiss the Petition for Relief, claiming that the Commission lacked jurisdiction based on: (1) federal preemption of the area by Title VII of the Civil Rights Act of 1964, and (2) failure of the Commission to complete its proceeding within 120 days from the Federal Equal Employment Opportunity Commission's deferral of this matter to the Florida Commission on Human Relations. Respondent's Exhibit 1 was offered, and received in support of the motion, after which the motion was denied. The only witness who testified at final hearing was BOYKIN. No other exhibits were offered by either party. The Florida Commission on Human Relations was not represented at final hearing; BOYKIN represented himself, in proper person, and without assistance by the Commission.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended: That the Petition for Relief filed by Petitioner be DISMISSED. DONE AND ENTERED this 10th day of October 1980 in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October 1980. COPIES FURNISHED: Michael C. Boykin 801 Powerline road, #161 Pompano Beach, Florida 33060 Thomas P. Quinn, Esquire 2455 East Sunrise Boulevard Suite 605, International Building Fort Lauderdale, Florida 33404
The Issue The issue is whether Petitioner was subjected to an unlawful employment practice as a result of retaliation.
Findings Of Fact Petitioner D'Angelo A. Sullivan is a black male who worked for Respondent from January 14, 1999, until November 2002 as a blooming onion cook at Respondent's restaurant in Pensacola, Florida. Respondent Aussie Restaurant Management is a company that operates an Outback Steakhouse in Pensacola, Florida. Respondent employs more than 15 people. In a letter dated September 6, 2002, Petitioner requested a paid vacation. Petitioner believed he was entitled to a paid vacation. He departed on vacation on September 23, 2002. Upon returning on September 30, 2002, he was told that he would not be paid during the time he was on vacation. Respondent has a policy that provides paid vacations to employees who have worked 32 hours per week for the six weeks prior to the time requested for a vacation. Petitioner averaged 30.20 hours per week for the six weeks prior to his request for a vacation. He was, therefore, not entitled to a paid vacation. On October 11, 2002, Petitioner filed a Complaint Form with the Escambia-Pensacola Human Relations Commission. In the "Nature of the Complaint" section the blocks "race" and "color" were checked. The "other" block was completed with the words "promotion, pay raise." In this complaint, Petitioner recited that he was not given paid leave, that his work schedule had been reduced, and that he had been given a $.25 per hour pay raise instead of the annual $.50 per hour pay raise that he had received in prior years. The complaint also asserted that only one black had been employed "out front" among the customers. In the complaint he alleged mistreatment by a manager identified as "Donnie." Petitioner suggested as a remedy, that Respondent cease discrimination, that Petitioner be given a pay raise, a paid vacation, and a W-4 tax form. He also suggested that he should be trained so that he could get a promotion. No evidence was offered demonstrating that Respondent was aware of the existence of the complaint. Petitioner testified that he was advised by the person who took his complaint to refrain from telling Respondent he had complained, and that he followed that advice. In November 2002, subsequent to an automobile accident, and upon the advice of the attorney representing Petitioner as plaintiff in a personal injury lawsuit arising from the accident, Petitioner determined that he should not continue to work. This decision was based in part upon his belief that working might lessen his chances of prevailing in the ongoing lawsuit. In June 2003 Petitioner approached the manager of Respondent's restaurant, Nicholas Loizos, on at least four occasions and asked to be hired as a "take away" person in the "front of the house." Although his former position of blooming onion cook was offered to him, Petitioner insisted that he wanted the "take away" position. Mr. Loizos told Petitioner that in order to be a "take away" person, he would have to take the "Front-of-the House Selection Test." Petitioner was provided the opportunity to take this test. Petitioner did not avail himself of this opportunity. No evidence was adduced that would indicate that Respondent engaged in racial discrimination against Petitioner, or any of Respondent's employees. No evidence was adduced that would prove that Respondent was aware that Petitioner had filed a discrimination complaint. Because Respondent was unaware of the discrimination complaint, Respondent could not have engaged in retaliation against Petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Petition be dismissed. DONE AND ENTERED this 16th day of March, 2005, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 D'Angelo A. Sullivan 1006 West Hayes Street Pensacola, Florida 32501 Maria A. Santoro, Esquire George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens 863 East Park Avenue Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Respondent County is guilty of an unlawful employment practice pursuant to Chapter 760, Florida Statutes, and if so, what is the appropriate remedy?
Findings Of Fact Petitioner is female, and within a class protected by Section 760.10(1), Florida Statutes. Respondent County is an "employer" within the meaning of Section 760.02(7), Florida Statutes. Petitioner claimed that Respondent treated her disparately from male employees on the basis of her gender in the areas of pay during her probationary period, reprimands and discipline, provision of equipment, poor performance evaluations, and training. Petitioner's initial relationship with Respondent was as an independent contractor at Respondent's Sanitary Landfill under a written contract entered into on September 15, 1989. In this capacity, she acted as a "spotter." As an independent contractor, she received $250 per month and salvage rights to whatever material customers brought to the Respondent's Sanitary Landfill. Effective August 14, 1990, the State Division of Personnel and Retirement required Respondent to put all contractual people on the County payroll. Thereafter, Petitioner was paid $350 per month and continued to have salvage rights only at the sufferance of the Respondent. After that date, Petitioner earned retirement and social security benefits. Withholding of federal taxes and deduction of social security benefits were also provided.(P-12). The value of the salvage rights were never calculated by anyone. While she was employed as a "spotter," Petitioner was the only female "spotter." Petitioner was on probation as an employee from August to December 1990. Petitioner was paid $1.442 per hour from August 12, 1990 through October 1990, and $1.63 per hour from October 1990 through December 3, 1990. At that time, her rate of pay was raised to $3.85 per hour. The record contains no evidence of what was paid to any male employee similarly situated during this period. Without proof that similarly situated male spotters were consistently paid better, there is no proof of gender discrimination in pay during Petitioner's probationary period.3 Mark Hawes, a male, was hired as a spotter on June 1, 1993. He was paid $4.35 per hour while on probation. Willie George, also male, was hired as a spotter on October 1, 1993, and was paid $4.4805 per hour while on probation. There is no evidence of how much Petitioner was being paid during this period, so there is no means of assessing disparate treatment in pay, if any, during this period.4 During the period that Petitioner was employed as a "spotter," there was no statute or rule requiring that "spotters" receive formalized training or be certified in any field. During Petitioner's employment, no spotter were provided more than a printed Job Description and on-the-job oral instructions. They were expected to use courtesy and common sense in dealing with the public. Two employees (gender unspecified) who were not spotters were sent to train at a state "school" to become Certified Landfill Operators. A State Rule was enacted after Petitioner was terminated which required that all spotters must have eight hours of specialized training. Thereafter, the Respondent provided such training to spotters. At all times material to any Personnel Citations, Petitioner was a union member, and all benefits of her union's collective bargaining agreement with the Respondent accrued to her. No performance evaluations were submitted in evidence. With the exception of the events related within the following findings of fact, no witness found any fault with Petitioner in the performance of her job description as a "spotter" at Respondent's landfill. (P-1) Wayne Hardee, Director of the Landfill, issued a Personnel Citation against Petitioner early in her employment on the basis of lack of personal hygiene. The citation was later removed from Petitioner's personnel file as an act of good will. On or about January 16, 1994, Petitioner admitted to an immediate supervisor that her carelessness with a hand-held CB radio had resulted in loss of the radio. She offered to pay for the radio. Mr. Hardee did not require her to pay for the radio, but issued a written Personnel Citation to her on January 20, 1994 for her carelessness. This Personnel Citation simultaneously cited Petitioner because Mr. Hardee had received complaints that Petitioner was overly concerned about other spotters doing their jobs. In this Personnel Citation, Mr. Hardee warned Petitioner to do her job without complaining about other employees. Petitioner admitted that she signed this citation and that she did not grieve it through her union. The radio was later recovered, but the citation remained in Petitioner's personnel file. (P-2) On Saturday, July 9, 1994, Petitioner called her union's senior shop steward, Jessie Ellzey, to the landfill to complain about items left at her spotter station. Mr. Ellzey's perception was that Petitioner was accusing another employee of putting the items in the wrong place. Petitioner also told Mr. Ellzey that another employee had threatened her. After investigation and interviews the following week, Mr. Ellzey and Mr. Hardee determined that the items had been brought by a landfill customer to the landfill between shift changes. Mr. Hardee's and Mr. Ellzey's perception was that Petitioner had unfairly complained about another spotter, Willie George, not doing his job. At least three days and two meetings were involved in this investigation and counseling procedure. Mr. Hardee issued a written Personnel Citation against Petitioner for complaining about a co-employee. (P-3) Petitioner also was suspended without pay for one day and warned that if the problem was not corrected, further disciplinary action would be taken against her. Petitioner did not grieve this citation through her union. Based on all of Mr. Ellzey's credible testimony, due to reputation testimony about Mr. Ellzey's standard operating procedure, and because Petitioner was actually suspended for one day without pay, I reject as not credible Petitioner's testimony that she never knew of this citation in time to grieve it. On August 13, 1994, Ann Harrell, a landfill customer, filed a written complaint of rudeness against Petitioner. (P-9) A written complaint of rudeness by Petitioner was also filed by another customer, Mr. Richburg, at about the same time. Mr. Hardee considered courtesy to customers to be an unstated policy of County government and further perceived rudeness to customers to be an on-going problem in Petitioner's relationship with the public. Due to the foregoing written complaints and many similar oral complaints he had received, Mr. Hardee assigned Petitioner two days' suspension without pay by a written Personnel Citation issued August 15, 1994. The citation also warned Petitioner she would be terminated if there were another complaint about her. Petitioner refused to sign this citation. (P-4) On August 25, 1994, Petitioner grieved the August 15, 1994 Personnel Citation through her union. (P-5) A hearing was held in response to Petitioner's grievance. All concerned agree that Mr. Ellzey, the union representative advocating Petitioner's position, and not a representative of management, kept Petitioner from testifying. Chester Humphries testified on Petitioner's behalf at the grievance hearing that he had been unable to hear what Mr. Richburg said but could hear what Petitioner said to Mr. Richburg. From this, Mr. Hardee inferred that Petitioner had raised her voice to Mr. Richburg. Mr. Hardee assessed Petitioner's character witnesses in Petitioner's favor but noted that they knew nothing about the specific incident between Petitioner and Mr. Richburg. Ultimately, Mr. Hardee relied on Mr. Richburg's testimony concerning the incident. (P-6) Mr. Hardee denied Petitioner's grievance and disciplined Petitioner in accord with the August 15, 1994 Personnel Citation. Upon advice of her union steward, Petitioner did not appeal the grievance hearing result. It was further agreed that if Petitioner's behavior resulted in no more complaints against her for 30 working days, the August 15, 1994, citation would be removed from her personnel file. Petitioner met this requirement, and the citation was removed from her personnel file. (P-6; P-7). Petitioner's December 13, 1994, charge of discrimination before the Florida Commission on Human Relations listed August 11, 1994, as the last date of alleged discrimination. No witness at formal hearing herein, including Mr. Ellzey and Mr. Humphries, both of whom also had been present at the grievance hearing, confirmed Petitioner's perception that her gender had affected the result of her grievance hearing. Another female employee (not a landfill spotter) currently works in Respondent's administrative offices. That female employee also has had employment disputes with Mr. Hardee which she attributes to his gender bias, but the type of dispute was not clearly specified on this record. Therefore, no similarity to Petitioner's situation can be discerned and no pattern of gender bias was proven on that basis. This female employee is still employed by Respondent. A different female employee (also not a spotter) employed by Respondent's Emergency Medical Services (EMS) was terminated by Mr. Bill Beddow, EMS Director, for failing to timely report (or complain about) her immediate supervisor for "doing something [Mr. Beddow] thought he shouldn't be doing with drugs." The male supervisor resigned for "personal reasons." The female employee was rehired by Mr. Beddow after intercession by her union. This means another female not similarly situated to Petitioner was terminated for not complaining about a male employee's job performance and was then hired back, whereas Petitioner was progressively disciplined with reprimands and suspensions for repetitive unsubstantiated complaints about male employees' job performances. Petitioner seeks to have the conclusion drawn that female employees were disciplined both for reporting and for not reporting male employees' misbehavior. However, the two isolated situations are so dissimilar as to develop no pattern recognizable at law. I accept as credible and unrefuted Petitioner's testimony that all of the complaints she initiated about other employees were oral. However, Petitioner's testimony that she did not complain about other employees' performance of, or failure to perform, their jobs and her assertion that her complaints were only motivated by the requirements of her Job Description to "inspect loads" and "report all problems" was not corroborated by any other witness. Petitioner's testimony that her concerns were directed not at individual employees but at addressing hazardous wastes also was not corroborated by any other witness.5 Petitioner's middle level supervisor acknowledged that Petitioner told him that other employees had improperly handled hazardous materials as well as non-hazardous materials but that he did not cite anyone as a result of Petitioner's complaints about hazardous wastes because it was impossible to prove who was responsible. He counseled all subordinates about each incident whenever he considered counseling appropriate. Otherwise, all witnesses with reason to know the situation generally acknowledged that Petitioner's oral complaints were recurring almost daily and were directed to other employees' job performances rather than hazardous materials. It is the repetitive and personal nature of Petitioner's complaints rather than their being oral that management found offensive. The evidence also generally shows that all employees orally complained about each other and that Petitioner's two immediate supervisors, Felippe McCelroy and Robert Murray, orally reprimanded everybody who complained or who was complained about as they each saw fit within their supervisory discretion on individual occasions. No gender pattern is to be discerned from the foregoing. Only on those occasions that either an oral or written complaint reached Mr. Hardee was anyone written up and/or disciplined. Petitioner complained about not being assigned or provided with one of Respondent employer's trucks when other male employees were provided trucks. With the exception of the following findings related to the Respondent's trucks, there is no relevant evidence in this record concerning employees' use of trucks. All employees were cautioned against carelessness. Tommy Dean, a male employee, dented one of Respondent's trucks. He was not disciplined for careless driving. There is no evidence the dent was caused by Mr. Dean's careless driving. In February 1995, Charles Kennedy, a male spotter, filed a written complaint or incident report. Therein, he claimed that Petitioner had attempted to prohibit his bulldozing landfill material out of the way because Petitioner was trying to remove salvageable items. He further alleged that Petitioner had thrown a jar of grease at him. Petitioner was requested to file a written account of the incident. In her written account, she basically admitted the incident but not any intent to hit Mr. Kennedy with the grease jar. Mr. Kennedy was not disciplined for filing the written complaint/report. Petitioner was not disciplined for the actions complained about by Mr. Kennedy. Instead, as of February 3, 1995, landfill spotters were prohibited from salvaging at the landfill. (P-13) Petitioner desires that the conclusion be drawn that male spotters who complained in writing about other employees were not disciplined for complaining but that Petitioner, a female, was disciplined for making oral complaints. However, it appears Respondent addressed Mr. Kennedy's written complaint in much the same way as it had addressed Petitioner's oral complaint against Willie George, by giving each participant in the dispute a chance to state his or her position, before management decided who should be disciplined. The difference was that Mr. Kennedy was not a chronic complainer and management's investigation revealed some fault on both sides, so a neutral solution was found rather than discipline being imposed. There is no evidence beyond Petitioner's assertion that she was ever asked to do more work or heavier work than male spotters. From this point on, the dates that events occurred or their chronology is not entirely clear from the record. However, approximately April 14, 1995, there was an occasion when Petitioner was asked to move metal pieces in a wheelbarrow-sized pile over a three-hour period. The largest piece weighed 21 pounds. The next day, Petitioner reported a workers' compensation back injury or aggravation. She was then off work until approximately May 11, 1995, when she returned to "light duty." She worked for awhile for only four hours per day. Respondent hired someone to help her. It is disputed whether Petitioner was reinjured or whether Mr. Hardee just sent her home. However, on or about July 8, 1995, Mr. Hardee discussed the situation with "the workers' compensation people," and it was agreed there was not enough light duty work for Petitioner. Three months later, Petitioner returned to full duty. Because a spotter had been hired to do her work, Petitioner was assigned to a variety of jobs. She worked at the dog pound, the recycling building, and even washed Mr. Hardee's truck.6 One day, Petitioner's immediate supervisor ordered her to cut out the top of a metal drum. At formal hearing, Petitioner asserted that this was heavier work than she should have been required to do on light duty, but there is no evidence the supervisor's order was motivated by gender bias. There also is no evidence a full-time male spotter was never required to do similarly heavy work. Petitioner advised her supervisor that she had hurt her arms and elbows and she went home on sick leave. Petitioner had complained over the term of her employment about not being provided one of Respondent's trucks so that she could conveniently get from her sector of the landfill to a restroom. After her workers' compensation injury, Respondent arranged for male employees to drive Petitioner to the restroom. Eventually, Respondent provided Petitioner with a portable toilet in her work sector. Mr. Hardee maintained that no spotter had ever been assigned a truck but that all spotters, including Petitioner, had access to one. There is evidence to show that male employees drove the trucks and Petitioner did not, but insufficient evidence to show this was an active management decision or that Mr. Hardee acquiesced in male employees preempting trucks as a result of any gender bias. On or about November 13, 1995, Petitioner informed Mr. Hardee that she was permanently physically disabled and would have to be on light duty indefinitely. After consultation with his "workers' compensation people," Mr. Hardee terminated Petitioner as of that date. 7 At formal hearing, Petitioner admitted Respondent was still paying her workers' compensation benefits and that her workers' compensation claim has not been settled.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding no discrimination and dismissing the Petition for Relief. RECOMMENDED this 19th day of November, 1997, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1997.
The Issue Whether Respondent committed an unlawful employment practice.
Findings Of Fact Petitioner is a woman who suffered an aneurysm in 1987 which resulted in paralysis. Subsequently, she regained full use of her body except for her left hand. She possesses gross motor skills in her left hand but lacks fine motor skills. Respondent is a retail furniture store, which at times pertinent did about three million dollars in business annually. Respondent at times pertinent employed 23 to 26 full-time employees. Respondent went out of business on September 24, 2001. Petitioner interviewed with Doris Hudson and Cindy Gentry about three weeks prior to June 8, 2000. Petitioner was informed that she was hired and could begin work on June 8, 2000. The position she was hired for was accounts payable clerk. During the interview, the matter of the facility of Petitioner's left hand was not noted or discussed. Petitioner believed that the job consisted of mostly working on a keypad with numbers, in the accounts payable section of the bookkeeping office. Petitioner reported for work on June 8, 2000. Doris Hudson, Respondent's Comptroller, an employee of Respondent for over 41 years, provided her with a tour of the premises. Petitioner's first assignment was to type checks. She did this slowly because she could type only with her right hand. Typing checks is an important function of the accounts payable clerk. Most vendors were paid by checks which were prepared by data processing equipment but it was necessary to prepare many checks for local vendors on a typewriter. During the hour and a-half Petitioner worked at the typewriter, she correctly prepared three checks. Ms. Hudson expected an accounts payable clerk to prepare 25 to 35 checks in an hour and a-half. An accounts payable clerk, according to Ms. Hudson, should be able to type 55 words per minute; Petitioner could type only 30 words per minute on a good day. An accounts payable clerk's daily activities included kneeling on the floor and opening a large safe; swinging open a heavy door which has to be unlocked with two keys simultaneously; counting 30 to 50 checks per day and counting currency and coins; and printing out reports which were inserted in a large binder. A substantial part of the duties of the accounts payable clerk required excellent typing and data input skills. The accounts payable clerk was required to reload the printers and this required the coordination of two hands. The accounts payable clerk was required to prepare deposits which required that the employee flip each individual check with one hand and operate a calculator with the other. Ms. Hudson did not discover the deficiencies with regard to Petitioner's left hand until she made inquiry after noting the small number of checks which Petitioner prepared. Ms. Hudson could not use an employee who could not do the activities described in paragraph eight and nine, above. Ms. Hudson could not call others in the office away from their jobs to help a person who had limited use of one hand. She did not have enough employees. When Ms. Hudson's office was fully staffed there were many times when it was difficult to accomplish all necessary duties in an eight-hour day. It was Ms. Hudson's opinion that Petitioner could not perform the duties of accounts payable clerk and that it was impossible to accommodate her deficiencies without disrupting the orderly functioning of her office. After considering Petitioner's capabilities and the requirements of the accounts payable clerk, Ms. Hudson decided that Petitioner was not suitable for employment as an accounts payable clerk and as a result, discharged her. Petitioner was paid $22.61 for 2.66 hours of work. This reflected an hourly wage of $8.50. Petitioner worked as an administrative assistant at Century Boats in Panama City prior to obtaining the job with Respondent. She lost that job in February of 2000, due to a reduction in workforce. After Petitioner left Respondent's place of business she went to work at a clinic run by Bay Medical. She began working there on August 28, 2000, as an insurance coder and biller and was paid $8.00 per hour. She lost that job on February 28, 2001, when the facility closed. She was offered a job in the radiology section but it paid less so she elected to remain essentially unemployed for a year. She did work a one- week job with Cardiology Associates and worked for C-1 Medical Clinic for a month and a-half during that period. Petitioner, at the time of the hearing, was employed by Nextel Communications as a customer care representative and was paid $9.50 per hour. She started February 18, 2002. Petitioner has a hard time buttoning clothes but she can drive an automobile. She testified she could do, ". . . everything pretty much what everybody does." She can't throw a ball up with her left hand or play tennis anymore. She can lift heavy objects up to at least 75 pounds. She has no medical restrictions placed on the use of her left hand.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is recommended that the Florida Human Relations Commission enter a final order dismissing Petitioner's Amended Charge of Discrimination. DONE AND ENTERED this 11th day of July, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 11th day of July, 2002. COPIES FURNISHED: Linda Chesser 6802 Penny Road Panama City, Florida 32404 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street, Suite 100 Tallahassee, Florida 32303-4019 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
