The Issue Is Respondent employer guilty of an unlawful employment practice, pursuant to Section 760.10, F.S., for discrimination on the basis of handicap, to wit: diabetes?
Findings Of Fact At all times material, Petitioner was employed part-time at Respondent Jackson County Hospital as an x-ray aide. In this position, he transported patients to and from the x-ray department. Petitioner had diabetes when he was hired by Respondent. He disclosed his diabetes on his initial health information sheet. The employer was aware of Petitioner's diabetes when he was hired. However, on his initial health information sheet Petitioner also represented his health status as "excellent" and denied having any physical condition which impaired his body as a whole. He further represented that he had no defect "which may prevent your performance in the job. . . ". Accordingly, the employer did not know that he had a handicap, if any, when it hired Petitioner. While he was employed as an x-ray aide, Petitioner had two "reactions" on the job due to his diabetes, and he was laid off immediately prior to having a third "reaction." Petitioner did not describe the nature of his diabetic "reactions", and no other record evidence revealed their symptomatology. Nonetheless, Petitioner felt that he did his job well and got along well with everyone. This testimony was unrefuted. Indeed, both of Respondent's witnesses acknowledged that Petitioner performed his job duties acceptably. Petitioner went to Respondent hospital's emergency room as soon as he had these reactions. He assumed that some of the x-ray technicians whom he worked with in the hospital x-ray department talked to Wayne Austin, the head of the x-ray department, about his situation. No other witnesses supported his assumption. No forms reporting either of Petitioner's "reactions" were received by Jim L. Treglon, Respondent hospital's assistant administrator. Wayne Austin knew of Petitioner's diabetes but had no knowledge of either of Petitioner's "reactions" prior to laying him off. When Mr. Austin laid Petitioner off on August 15, 1994, he told Petitioner that it was due to the hospital's economic restructuring. Petitioner believed, upon the basis of conversations with other employees who were not called to testify, that he was laid off due to his diabetes. According to Mr. Treglon and Mr. Austin, the employing hospital underwent a personnel restructuring process by reduction of work force for financial reasons, and Petitioner was laid off as part of the larger financial conservation scheme. Petitioner had the least seniority and was a part-time employee, so his position was eliminated. There is no evidence that Petitioner's position was ever recreated or refilled. At the same time Petitioner's position was eliminated, another x-ray aide with more seniority was allowed to work weekends only, thereby reducing the hours for which that aide was paid. It is possible, but not proven, that this other aide's hours were eventually increased or restored when the hospital's economic situation improved. At the same time Petitioner's position was eliminated, the x- ray department's clerk-secretary was allowed to resign, and that position was not filled. As part of the employer's restructuring process, a total of 17 employees were eliminated from the employer's total work force based only upon seniority at approximately the same time Petitioner's position was eliminated. Mr. Treglon testified that as of the date of formal hearing, the employer employed at least 40 people who have disclosed disabilities. The definition of "disability", as used in his testimony, was not given.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief herein and determining that Petitioner recover nothing thereby. DONE and ENTERED this 26th day of March, 1996, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1996.
The Issue Whether Respondent terminated Petitioner's employment in violation of the Florida Civil Rights Act of 1992 (Florida Civil Rights Act or the Act).
Findings Of Fact Petitioner, a Caucasian male, was born on March 23, 1949. At the time of the alleged unlawful employment practice at issue in this case, Petitioner was 52-53 years old. Petitioner was employed by Respondent since 1973. He was terminated effective August 15, 2001. Respondent, at all times material to this case, is an employer within the meaning of the Florida Civil Rights Act. Respondent, at all relevant times, is in the business of providing telephone services to individuals and businesses in south Florida and elsewhere. At all relevant times, Petitioner was employed as a Service Technician. Service Technicians are responsible to install and repair telephone equipment in response to customer requests. At all relevant times, Respondent employs individuals as Service Technicians who are older than Petitioner. Many other individuals employed as Service Technicians are over the age of 40 at all times relevant to this case. Beginning in 1997, Respondent began to evaluate its Service Technicians according to a system called "Integrated Technicians Performance Plan [ITP].” The purpose of ITP was to improve customer service by evaluating Service Technicians and the individuals who manage them, on a regional basis, in accordance with standardized performance measures. Service Technicians whose ITP evaluations revealed deficiencies, including Petitioner, were provided assistance pursuant to individualized Technician Development Plans (TDP) and given a reasonable period of time to improve. From the time ITP was implemented in 1997, Petitioner was at all relevant times on a TDP because of deficiencies in his job performance. Petitioner's job performance was consistently deficient from 1997 throughout the remainder of his employment. From 1997 throughout the remainder of his employment Petitioner was provided assistance to help him improve his performance. Despite the assistance provided, Petitioner failed to improve his job performance to minimum levels required of all Service Technicians and required by his TDP. By August 2001, supervisors responsible for the training, evaluation and supervision of Service Technicians had determined that Petitioner did not maintain his job performance at the minimum levels required of Service Technicians and did not fulfill the requirements of his TDP. Accordingly, Respondent terminated Petitioner’s employment. Petitioner could have been terminated earlier than he was. In consideration of the fact that Petitioner had been a long-time employee of the company, he was given more time to improve his performance than company policy required. Petitioner presented no persuasive evidence that age played any role in Petitioner's termination. Petitioner did not prove that after he was terminated, a younger worker replaced him. Similarly, Petitioner presented no persuasive evidence that he is disabled within the meaning of the Florida Civil Rights Act, or that any disability played any role in his termination. Petitioner alleged his disabilities as “war wounds, tinnitus and hearing loss.” Petitioner never informed Respondent that he suffered from any war wounds, tinnitus, hearing loss, or any other physical or mental impairment, disability, or handicap which might constitute a disability within the meaning of the Act. Furthermore, Petitioner never informed Respondent that the disabilities alleged would in any way prevent him from performing his job as a Service Technician, or from satisfying the TDP developed to assist in ameliorating his performance deficiencies. Petitioner never informed Respondent that the alleged disabilities substantially impacted any major life function, or affected Petitioner’s ability to perform the essential functions of his Service Technician job. Respondent was not, at relevant times, on notice that Petitioner might suffer from any war wounds, tinnitus, hearing loss, or any other physical or mental impairment, disability, or handicap which might constitute a disability within the meaning of the Act. Respondent never perceived Petitioner to be disabled at times relevant to this case. During his employment as a Service Technician, Petitioner did not indicate a need for or make any request to Respondent for accommodations for any physical condition. Finally, Petitioner alleged that his termination was in retaliation for complaints he had filed in another forum. This allegation was not proved; rather, the evidence established that Petitioner never opposed any practice which is an unlawful employment practice under the Florida Civil Rights Act. In sum, the evidence established that Respondent discharged Petitioner solely on account of inadequate job performance as a Service Technician, and not on account of his age, disability, or in retaliation for complaints filed in another forum.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and argument of the parties, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 11th day of October, 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 11th day of October, 2005.
The Issue The issue to be resolved in this proceeding is whether Petitioner was the subject of an unlawful employment practice based on his age.
Findings Of Fact Currently, Petitioner is a retired, 68-year-old male. He retired from Respondent at the age of 66. Petitioner began his employment with Respondent as a truck driver. The position of truck driver, involves many long hours of driving (sometimes over 56 hours) various interstate and intrastate truck routes, along with some lifting and exposure to diesel fumes. Petitioner attributed a variety of illnesses and health problems to his work as a truck driver. Some of the illnesses and health problems are hypertension and heart blockage and failure, which resulted in the implantation of a pacemaker, carpal tunnel syndrome, polyneuropathy, muscular and autonomic system problems and pathological hyper-insomnia. Petitioner offered no evidence that any of these conditions resulted from his employment with Respondent. Prior to September 9 or 10, 2000, at the age of 64, Petitioner was hospitalized for heart problems. Around September 9 or 10, 2000, Petitioner was released from the hospital. Upon his return to work, he gave his employer a physician’s note indicating that his work duties be limited to 40 hours a week. Petitioner met with Respondent’s transportation manager regarding whether less lengthy routes were available or whether his schedule or work duties could be adjusted. The employer did not have the ability to adjust the length of the routes, but added a second driver to ride and help with the driving on any route that Petitioner drove. Petitioner inquired about office work and was told that if he was interested in such work he needed to apply at the main office to see what was available. In part, because Petitioner liked driving and in part because the lesser number of hours involved in office work would cause Petitioner to earn less, Petitioner elected not to pursue and did not apply for such office work. No adverse employment action was taken against Petitioner, and Petitioner continued to work for Respondent. At some point during this meeting, Petitioner alleges that the transportation manager said, “Why don’t you just retire.” Petitioner offered no specific context for this statement other than it was a general conversation about his health and closeness to retirement age relative to the adjustments that could be made to his driving duties. One isolated statement such as the one above does not demonstrate any intent to discriminate on Respondent’s part based on Petitioner’s age, especially since no adverse employment action was taken against Petitioner and Petitioner continued to work for Respondent. Around January 1, 2001, for medical reasons, Respondent approved a Leave of Absence with pay for Petitioner. In June or July, 2002, Petitioner filed his first workers compensation claim with Respondent. Petitioner’s claim was turned over to Respondent’s workers' compensation insurer, Kemper Insurance Company. Petitioner did not offer any evidence that Kemper was under the direction or control of Respondent in any decisions Kemper made regarding paying or litigating Petitioner’s claim. In any event, Petitioner’s claim was contested. The main reason the claim was contested was that Kemper alleged that Petitioner’s “injuries” were not work-related. Over the years, Petitioner has amended his claim to include, among other health claims, the health problems listed above. Kemper has maintained its defense. During a mediation session on December 11, 2002, at which the employer was not present and in response to an inquiry regarding Kemper’s defense, Kemper’s representative stated that except for the carpal tunnel claim, all of Petitioner’s medical conditions were due to the natural aging process. Petitioner claims this statement demonstrates an intent on his employer’s part to discriminate against him based on his age. Such an isolated statement does not demonstrate such an intent especially since such conditions can be age related, there was no expert medical evidence demonstrating the cause of Petitioner’s health problems, the statement did not come from the employer, and there was no evidence that the insurer was under the direction or control of the employer regarding decisions to litigate or the factual basis for the defenses that the insurer would raise. The workers' compensation litigation continues to date. In the interim, Petitioner remained on a leave of absence with pay until January 1, 2003. He retired thereafter. There was no evidence that Respondent discriminated against Petitioner or that Petitioner suffered any adverse employment action based on his age. Therefore, the Petition for Relief should be dismissed.
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. DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relation 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Glynda Copeland Qualified Representative Tree of Life, Inc. Post Office Box 410 St. Augustine, Florida 32095-0410 Robert C. Johnson 560 Florida Club Boulevard, Suite 112 St. Augustine, Florida 32084
The Issue The issues are whether the Respondents committed unlawful employment practices against Petitioner, and if so, to what relief is she entitled.
Findings Of Fact In the spring of 1994, Respondent CSD began operating a residential detention program for juvenile offenders pursuant to a contract with the Department of Juvenile Justice. The purpose of the program, commonly known as Hamilton House, was to provide redirection to the lives of its youthful residents/clients. Hamilton House had 48 beds divided between two dormitories. Respondent CSD assigned each resident to the appropriate dormitory, level six or level eight, depending on the type of security and rehabilitative services required. The program included an educational program as well as facilities for vocational and recreational activities. Respondent CSD employed Petitioner, a 51 year-old white female, as a resident advisor at Hamilton House from March 24, 1994 through June 30, 1996. Petitioner initially worked the 11:00 p.m. to 7:00 a.m. shift in the level six dormitory. At times she served as the acting shift supervisor though she was not paid a supervisor's wages. When Petitioner began working for Respondent CSD, she lived with her elderly mother, Lotus Musgrove, whose colon cancer was in remission. At that time, Mrs. Musgrove was able to live independently and did not need a caretaker. On April 24, 1994, some of the clients managed to gain access to a bottle containing an alcoholic beverage. Petitioner and other employees received a verbal warning for failing to adequately monitor the behavior and movement of the clients. A training letter was placed in each employee's personnel file. In May of 1995, Respondent CSD hired Bobby Williams, Sr., as a resident advisor in the level eight dormitory. Mr. Williams is a black male. He eventually assumed the position of shift supervisor for the entire facility. There is no evidence that Petitioner sought this full-time position or a similar supervisory position at any time during her employment with Respondent CSD. In October of 1995, some of the clients accused Petitioner and another staff member of inappropriate conduct including, but not limited to, furnishing them with prohibited magazines and movies. As a result of the allegations, Respondent CSD suspended Petitioner and her co-worker without pay on October 18, 1995. By letter dated October 20, 1995, Respondent CSD advised Petitioner in writing that there was insufficient evidence of misconduct to warrant termination of her employment. However, the letter stated that Petitioner had violated company policy and procedure by allowing a youth to leave his room for extended periods after curfew. Respondent CSD paid Petitioner and her co- worker for the time they were suspended during the internal investigation. Respondent CSD subsequently reassigned Petitioner and her co-worker to work in a different dormitory and on a different shift. The change in time and location of their work shift was necessary to ensure there was no contact between them and the clients who had accused them of improper conduct. Petitioner was assigned to work the 3:00 p.m. - 11:00 p.m. shift in the level eight dormitory. In a written statement dated October 23, 1995, Petitioner objected to the change in her shift. She preferred to continue working the 11:00 p.m. - 7:00 a.m. shift. She asserted that, during the day, she took care of her 78 year-old mother who had cancer. Respondent CSD did not immediately honor Petitioner's request. On or about November 24, 1995, Petitioner voluntarily purchased some supplies in the amount of $20.98 from a retail store. The supplies included the following: hand sprayers, cotton swabs, hydrogen peroxide, rubbing alcohol, highlighters, marker, Sharpies, and other miscellaneous items. Petitioner requested reimbursement from Respondent CSD because she intended to use the supplies at work. Respondent CSD declined to reimburse Petitioner for the supplies. There is no evidence that Respondent CSD ever authorized the purchase of the supplies. On December 11, 1995, a resident in the level eight dormitory attempted to discard a container of contraband tobacco. Petitioner detected his effort and responded appropriately. She received a letter of commendation for exemplary action which was placed in her personnel file. On January 23, 1996, the Office of the Inspector General of the Department of Juvenile Justice made a formal and final determination that "[i]t is inconclusive that staff members Julie Toughton and Alice Musgrove engaged in improper conduct with clients." On or about February 1, 1996, Petitioner took a box of pens and pencils from a client's desk. The client became upset and exhibited inappropriate behavior toward Petitioner. As a result of the client's tantrum, Petitioner took token-economy points from the client. Petitioner filed a written complaint dated February 4, 1996, with Respondent CSD after learning that one of her supervisors, Mike Myers, changed the client's point sheet. Petitioner's February 4, 1996, statement also asserted that Supervisor Myers was mishandling clients' mail. She complained that he was logging clients' mail and making the clients read their personnel mail to him. According to Petitioner, handling client mail was the responsibility of "line staff." On one occasion in February 1996, Petitioner was 30 minutes late reporting to her assigned duty station in the dormitory. She spent that time in the administration building because she refused to work with one of her co-workers. Supervisor Myers was responsible for changing Petitioner's time sheet to reflect a 30-minute deduction in regular time. On another occasion in February 1996, Petitioner and other employees worked two hours of overtime due to a crisis situation with one of the clients. Petitioner elected to "bank" the overtime rather than receive time-and-one-half of overtime pay. The other employees chose to receive overtime pay. Petitioner was off from work on February 22-23, 1996. When Petitioner arrived at work on February 24, 1996, her time sheet was not with the time sheets of other employees. Petitioner's time sheet was locked in a supervisor's office until February 26, 1996, because the supervisor was not at work. There is no indication in the record whether Petitioner's time sheet was locked up inadvertently or due to a dispute over Petitioner's wages. On March 1, 1996, Petitioner filed a written grievance with Respondent CSD regarding her pay. She claimed that Supervisor Myers was harassing her and discriminating against her by changing her time sheet without her knowledge. Specifically, Petitioner complained that Mr. Myers cheated her out of 30 minutes of regular time on one occasion and two hours of overtime on another occasion. She complained that her time sheet was locked in a supervisor's office for four days. On March 4, 1996, the Program Director, Dale Edwards, agreed that Petitioner should not be penalized for one-half hour of regular pay because she was in the administration building during the disputed time. Additionally, Mr. Edwards directed Supervisor Myers not to change an employee's time sheet without prior approval. He also requested that Petitioner furnish documentation that the company owed her for the two hours of overtime. Mr. Edwards was under the mistaken impression that the dispute over Petitioner's time sheet had been resolved. In March of 1996, Petitioner was working the midnight shift in dormitory eight consistent with her written request dated October 23, 1995. On March 18, 1996 and March 27, 1996, Petitioner made written requests for a change to the 7:00 a.m. - 3:00 p.m. shift. Petitioner specifically wanted to replace a Ms. Aikens on the morning shift. Respondent CSD did not honor Petitioner's request. However, there is no evidence showing that Ms. Aiken's position was ever filled, and if so, whether Respondent CSD selected a person of a different race or a younger to file the position. Petitioner was absent from work between April 8, 1996, and April 16, 1996, on April 22, 1996, and on April 29, 1996, due to illness and/or medical appointments. While she was absent, her inner-office mail box became so full that the mail had to be removed. The administrative manager gave Petitioner's mail to her supervisor. On April 23, 1996, Supervisor Myers completed Petitioner's annual performance appraisal for the period March 14, 1995 through March 14, 1996. Petitioner disagreed with the determination that she had difficulty communicating with others. Petitioner's mental health counselor, Christine Clark, sent Mr. Edwards an unsolicited letter dated April 23, 1996. According to the letter, Ms. Clark was treating Petitioner for family/employment related stress reduction. The letter states as follows in pertinent part: Due to the demands of her home environment, caretaking of her elderly mother who is dying from colon cancer, I am recommending that Ms. Musgrove be reassigned new working hours, namely a day schedule of approximately 8:00 AM until 5:00 PM in order to effectively and efficiently facilitate the evening and night care of her mother. In addition, Ms. Musgrove appears to have unresolved issues regarding her personnel file and salary still due to her for 30 minutes or .5 hour pay as well as two hours uncompensated work from several weeks ago. I personally read your approval for this compensation but apparently this has still not yet been indicated on her pay check. There also remain the allegations of her misconduct charges that appears not to be fully resolved. As an employee she does have the legal right to have these fully addressed and challenged. From my understanding that although the misconduct charges have been dropped, there are still areas that compromise Ms. Musgrove's reputation as a resident advisor. Mr. Edwards did not disclose the contents of Ms. Clark's letter to any employee of Respondent CSD other than his superiors, who advised him to get a release from Petitioner before responding to the letter. After receiving Ms. Clark's letter, Mr. Edwards had a telephone conversation with Petitioner's mother because Petitioner was not at work or at home. During the conversation, Mr. Edwards inquired about the mother's health. Mr. Edwards learned that Mrs. Musgrove's cancer had been in remission since 1993 and that she no longer required assistance with daily living activities. Mr. Edwards did not disclose any information regarding Petitioner's employment status, medical condition, or personal business to Mrs. Musgrove. Petitioner's sister placed an unsolicited telephone call to Mr. Edwards several days after he talked to Mrs. Musgrove. The purpose of the call was to thank Mr. Edwards for his concern over Mrs. Musgrove's health. During the telephone call, Mr. Edwards and Petitioner's sister did not exchange any information relating to Petitioner's employment, medical condition, or personal business. On April 29, 1996, all staff at Hamilton House received a memorandum advising them as follows, in pertinent part: As a result of the recent competitive bid conducted by District 3, Department of Juvenile Justice, Gator Human Services has been awarded the contract to operate the Hamilton County Youth Treatment Complex starting July 1, 1996. The memorandum also included information regarding the transfer of operations to the new service provider. Respondent CSD advised employees that, if requested, it would supply Gator Human Services the name, position title, hire date, and current salary of each employee of record. Respondent CSD stated that no other information would be given to the new organization without the consent of the employee. On May 1, 1996, Mr. Edwards wrote two memoranda regarding Petitioner's pay. First, Mr. Edwards directed the administrative manager to pay Petitioner for .5 hours of regular wages out of the company's petty cash fund and to get a receipt for the payment. Second, he directed the resident life manager to allow Petitioner to leave work two hours early (with pay) at a time of her choosing within the next work week. Petitioner could not "bank" the time indefinitely because Respondent CSD's contract was scheduled to expire on June 30, 1996. Mr. Edwards phoned Petitioner at home on May 2, 1996, to request a written release so that he could respond to Ms. Clark's letter. Petitioner wrote that release on May 3, 1996. The release gave Mr. Edwards permission to disclose confidential information to Ms. Clark. On May 3, 1996, Petitioner signed a written acknowledgment that receipt of $4.06 in payment for .5 regular hours would end the issue of the .5 regular hours owed to her. On May 10, 1996, Respondent Gator informed the staff at Hamilton House of the procedure for handling applications for employment with Respondent Gator's new program, Tiger Success Center. Applications were due on or before May 28, 1996. Interviews were to be scheduled between May 28, 1996, and June 7, 1996. Applicants would be advised of the final selections and employment offers by June 14, 1996. Respondent Gator requested that each applicant take a copy of their most recent performance appraisal to their employment interview. By letter dated May 13, 1996, Mr. Edwards responded to Ms. Clark's inquiry. First, he explained that questions regarding Petitioner's compensation had been resolved. Second, he stated that letters from the Department of Juvenile Justice and from the Office of the Inspector General had been added to Petitioner's personnel file, clearing her of all misconduct allegations. Third, he explained that the day shift would be the least desirable shift in terms of stress reduction because the activity level of the residents is highest during the day. Mr. Edwards also revealed that Petitioner's mother was treated successfully for cancer in 1993 and that her current health failed to support the need for a change in Petitioner's shift. Finally, Mr. Edwards noted that he had to consider the needs of the residents and other staff. A copy of Ms. Clark's inquiry and Mr. Edwards' response were placed in Petitioner's personnel file. Neither of the documents were disclosed to unauthorized persons. On May 22, 1996, the employees at Hamilton House received another memorandum advising them that after June 30, 1996, Respondent CSD would no longer operate the facility. The employees were encouraged to apply for employment with the new organization. Petitioner was scheduled for an employment interview on May 30, 1996. However, the interview was rescheduled because she was unable to keep the appointment. Petitioner's application for employment with Respondent Gator is dated May 31, 1996. She also furnished Respondent Gator with copies of three performance appraisals. Petitioner's signature on the application authorized Respondent Gator to make inquiries of references and former employers regarding her general character and past performance. There is no evidence that Respondent Gator ever made any such inquiries about Petitioner. A panel of three people representing Respondent Gator interviewed Petitioner. The panel asked her the same questions that they asked other applicants. Petitioner was very negative and critical of the existing program and Respondent CSD during her interview. After the interview, each member of the interview panel tallied their score sheets independently. All three agreed that Petitioner should not be given further consideration for employment with Respondent Gator because of her negative attitude and low interview scores. On June 13, 1996, Petitioner received a memorandum from Respondent Gator stating that the company was unable to offer her a position of employment. That same day, Respondent Gator offered employment to every other Hamilton House staff applicant except one black male, Mr. Humphrey. Respondent Gator hired a black female, Latasha Bristol, who worked in the level eight dormitory with Petitioner. Ms. Bristol is younger than Petitioner. However, she was not hired to replace Petitioner. Respondent Gator hired Ms. Bristol to work in the level six dormitory. Respondent Gator offered an employment position to a white female, Lucy Oxendine. Ms. Oxendine was over 60 years old at the time. She declined to accept a job with Respondent Gator for personal reasons. Mr. Edwards was hired by Respondent Gator to continue as program director after July 1, 1996. However, neither he nor any other employee of Respondent CSD shared any information about Petitioner with Respondent Gator or had any input into Respondent Gator's decision not to hire Petitioner. Respondent Gator based its decision not to employ Petitioner solely on the results of her interview which was very negative. On June 14, 1996, the staff at Hamilton House received a memorandum stating that anyone interested in accepting employment with Respondent Gator must sign up on June 19, 1996. On June 14, 1996, Petitioner's doctor faxed a medical excuse to Respondent CSD stating that Petitioner could not return to work for an undetermined period of time. The document indicates that Petitioner's diagnosis involved anxiety, depression, and work-related stress. The doctor commented that Petitioner was the primary caretaker of her mother who was terminally ill with cancer. The doctor's June 14, 1996, fax was received by Respondent CSD in the administrative manager's office. It was on her desk for a brief period of time before it was delivered to Mr. Edwards. There is no credible evidence that any employee of Respondent CSD disclosed the contents of the fax to unauthorized persons. Petitioner's doctor did not give her permission to return to work until after July 1, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that FCHR enter a Final Order dismissing Petitioner's Charges of Discrimination against both Respondent CSD and Respondent Gator. DONE AND ENTERED this 23rd day of July, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1998. COPIES FURNISHED: H. B. Stivers, Esquire Levine and Stivers 245 East Virginia Street Tallahassee, Florida 32301 Faye Musgrove Post Office Box 657 Live Oak, Florida 32064 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on November 17, 2004.
Findings Of Fact Petitioner, Linda Marchinko, was employed by the Witteman Company, Inc., from 1966 until April 2003. The Witteman Company, Inc. (hereinafter "Inc.") was a division of the Dover Corporation. While employed by Inc., Petitioner held the position of traffic manager. The most recent description of the duties of the position of traffic manager reads as follows: Responsible for, but not limited to, traffic managerial duties, coordinate and arrange for all product shipments, required documentation, customer interaction, and providing back-up support as required to others within the Company. Work with minimum supervision, produce quality, complete and accurate work and be an active and positive participant on teams and committees to which assigned. In February 2003, Cryogenic Industries made an asset purchase of Inc. and established Witteman, LLC (hereinafter LLC). LLC engineers and sells carbon dioxide, recovery, and production equipment to soft drink and brewing companies. Whereas Inc. had a maximum of 110 employees, LLC was established with only 17 employees, as many departments such as purchasing, traffic, and accounting were eliminated or "farmed out." At the time of the asset purchase, all employees of Inc. were terminated due to the sale of the assets of Inc. Petitioner was terminated from employment with Inc. effective April 8, 2003. She signed a Severance Agreement and Waiver and Release of Claims, releasing Inc. from all claims, including any related to the Age Discrimination and Employment Act. The position of traffic manager has not and does not exist at LLC. Petitioner was not hired by LLC. Petitioner has never been employed by LLC and, therefore, was not terminated by LLC. A few employees of Inc. were hired by LLC. Petitioner was not one of them. Cara Brammer is one of the employees of Inc. who was hired by LLC. Her position is Comptroller. Petitioner contends that regardless of Ms. Brammer's title, Ms. Brammer performs the same functions that Petitioner used to perform for Inc. Petitioner believes that Ms. Brammer was hired by LLC because she is younger than Petitioner. At the time Ms. Brammer was hired by LLC, she was approximately 39 years old and Petitioner was 55 years old. Ms. Brammer's duties as Comptroller include accounts payable, cost accounting, and general ledger work. According to Ms. Brammer, the traffic manager duties previously performed by Petitioner were separated between two of LLC's sister companies in California, which handle all of the major equipment, including manufacturing and shipping for LLC. William Geiger is General Manager of LLC. According to Mr. Geiger, the manufacturing of the product was shifted to two divisions located in California. The primary shipping of the company's product was also shifted to California. This is consistent with Ms. Brammer's testimony. According to Ms. Brammer, a small portion of the shipping duties that had initially been sent to California are now handled by LLC. She estimates that she spends only four to five hours a week on these traffic duties, that Mr. Geiger handles some of these duties, and that "quite a bit" of these traffic duties have been farmed out to a company called Freight Forwarder. LLC employs people in their thirties, forties, fifties, and sixties. There is no competent evidence that LLC used age as a criterion in its determination of who would and who would not be hired for the newly formed company.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 1st day of November, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 2005.
The Issue Whether Respondent committed the unlawful employment practice alleged by Petitioner in her Employment Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR") on May 3, 2016; and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the record as a whole and the evidence presented, the undersigned makes the following findings of material and relevant facts: Petitioner started her employment in July 2002 with Events by Premier. The company provides exclusive catering services for the Jewish Center in Aventura, Florida.3/ Petitioner's employment in 2002 followed her marriage to Michael Pollak, a co-owner of Events by Premier. Petitioner became a full-time employee in 2013 and was assigned to the position of kitchen manager. At that point, her husband was the chef and supervised her work in the kitchen. Their work relationship continued in this manner until she was terminated from employment in late July 2015. Petitioner's performance was satisfactory, and there was no evidence to suggest that she was unable to adequately perform her duties as kitchen manager. The evidence was largely undisputed that the position of kitchen manager was created specifically to accommodate Petitioner and her husband, a co-owner of the business. There had been no prior kitchen manager positions at Events by Premier, and the title and position were not needed to operate the business. Another owner of Events by Premier, and its president, was Steven Pollak. He is the brother of Michael Pollak and was Petitioner's brother-in-law. During the weeks leading up to her termination in July 2015, her relationship with her husband, Michael Pollak, became openly strained and tense due to marital problems. Steven Pollak described the work environment between Petitioner and her husband as not a good one, and it created, as he described, a "toxic" work environment. There was screaming, hollering, and profanity exchanged between Petitioner and her husband at work. It was decided that Petitioner needed to be terminated for the best interests of the company and also due to the unprofitability of the company in the first half of 2015.4/ As a result of the poor working environment existing between Petitioner and her husband, and Respondent's unprofitable performance in the first half of the year 2015, Steven Pollak informed Petitioner on July 26, 2015, that he was letting her go.5/ After she was fired, Petitioner filed a Complaint with FCHR. The basis of her Complaint was that she was terminated because of her "marital status." At the hearing, Petitioner explained her opinion regarding the basis for her termination. She felt that her termination occurred because the company feared that she knew things about the company, including improper unemployment claims and other financial information.6/ It was clear to the undersigned that Petitioner had serious emotional and relational issues with her husband that made it difficult, if not impossible, for her to work harmoniously with him. She testified at the hearing and characterized her relationship with her husband after her termination as "out of control." Based upon the evidence presented and the record as a whole, Petitioner was not terminated because of her "marital status." Rather, the evidence demonstrated that there were legitimate and non-discriminatory business reasons for terminating Petitioner. Similarly, her termination was based upon the hostile relationship which existed between Petitioner and her husband, Michael Pollak, in the weeks and months leading up to her filing a petition for divorce--not because of her marital status (e.g., not because she was married, separated, or divorced).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief and find in Respondent's favor. DONE AND ENTERED this 4th day of May, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 4th day of May, 2017.
The Issue Whether the Respondent, Mario Medero, discriminated against the Petitioner, Sharon L. Zbikowski, on the basis of her sex, female?
Findings Of Fact The Parties. The Petitioner, Sharon L. Zbikowski, is a female. The Respondent, Mario Medero, is a male. Dr. Medero is a physician. He practices medicine as a professional association. Dr. Medero is the chief executive officer and the supervisor or principal of the professional association. The professional association operates a medical office in Ocala, Florida. The medical practice performed by Dr. Medero consists primarily of treating individuals who have been injured on the job and who are covered by workers compensation insurance. Ms. Zbikowski's Employment. On August 20, 1992, Ms. Zbikowski was hired for employment by Dr. Medero's professional association as the front desk receptionist at Dr. Medero's office. At the time she was hired, Ms. Zbikowski was told that she would be considered for an accounts payable clerk position at the office. The position was held by Barbara Redding if Ms. Redding left the position. Ms. Zbikowski was told at the time of her employment that her consideration for the position of accounts payable clerk was dependent upon Ms. Redding actually leaving. Ms. Redding ultimately decided not to resign her position. The evidence failed to prove that Ms. Zbikowski was hired as a bookkeeper or accounts payable clerk, or that she was not placed in the position she was hired to fill. Ms. Zbikowski's Performance. Ms. Zbikowski worked initially at the front desk. Her performance was considered inadequate by Marilyn Hartsel, the office manager and Ms. Zbikowski's immediate supervisor. Ms. Zbikowski was moved to other positions within the office. She worked for a while in medical records and for approximately one day in accounts payable with Ms. Redding. Ms. Zbikowski's performance in medical records and in accounts payable was also considered inadequate by Ms. Hartsel. Within three or four weeks after Ms. Zbikowski began her employment, Ms. Hartsel had decided to recommend that Ms. Zbikowski be terminated because of the inadequacy of her work. Ms. Zbikowski's Employment by Dr. Medero. At the time that Ms. Zbikowski was initially employed at Dr. Medero's office, Dr. Medero had caused the office to advertise for a housekeeper for his home. Ms. Zbikowski discussed the position with Dr. Medero. Dr. Medero agreed to employ Ms. Zbikowski as his housekeeper and Ms. Zbikowski agreed to work as Dr. Medero's housekeeper. Ms. Zbikowski agreed to clean Dr. Medero's house, run errands for him and the office, pick up his son from school and take his son to and from tennis lessons, meet Dr. Medero's former wife half way between Ocala and Tampa to pick up or to drop off Dr. Medero's daughter, who was in the custody of his former wife, and generally oversee his household. Although the evidence failed to prove that Ms. Zbikowski performed services in her capacity as housekeeper for anyone other than Dr. Medero, Ms. Zbikowski was paid for her services out of accounts of the professional association and Ms. Hartsel continued to be her immediate supervisor. The evidence failed to prove that Ms. Zbikowski was forced in any way to accept employment as Dr. Medero's housekeeper. The evidence proved that she accepted the position voluntarily and without coercion. Ms. Zbikowski continued to work as Dr. Medero's housekeeper until September 28, 1992. During her employment as Dr. Medero's housekeeper, Dr. Medero was satisfied with Ms. Zbikowski's performance. Alleged Sexual Harassment. The evidence failed to prove that Dr. Medero sexually harassed Ms. Zbikowski. Ms. Zbikowski testified about very few specific alleged incidents involving Dr. Medero and the evidence failed to substantiate those incidents. Ms. Zbikowski admitted that she had had no physical contact with Dr. Medero except for one occasion when she hugged him from advancing funds to her to pay for her son's day care and on another occasion when he gave her a physical examination after being in an automobile accident. The evidence failed to prove that either incident involved improper conduct by Dr. Medero. Ms. Zbikowski's testimony that Dr. Medero evidenced a "flirtatious manner" was not substantiated by competent substantial evidence of specific incidents. The most specific incident, and the incident which led to Ms. Zbikowski's termination from employment, took place on Thursday, September 24, 1992. At lunch on that day, Ms. Zbikowski and her four year old son were in Dr. Medero's back yard. Ms. Zbikowski was cleaning lawn furniture. Dr. Medero and Ms. Redding came to Dr. Medero's house, waved at Ms. Zbikowski and went into Dr. Medero's bedroom. The curtains/blinds to the bedroom windows were closed soon after Dr. Medero and Ms. Redding went into the room. Dr. Medero and Ms. Redding, both of whom were not married at the time, were lovers. Ms. Zbikowski was aware of their relationship. At no time did Ms. Zbikowski see Dr. Medero or Ms. Redding in Dr. Medero's bedroom. Ms. Zbikowski believes that Dr. Medero and Ms. Redding engaged in sexual intercourse while in the bedroom. This belief was not, however, substantiated by competent substantial evidence. Dr. Medero and Ms. Redding, who is not longer involved personally or in a working relationship with Dr. Medero, both testified that they did not engage in sexual intercourse. Ms. Zbikowski did not see them engage in intercourse. At best, Ms. Zbikowski's belief was based upon hearing "giggling" and "these little, um, sounds and things" from the bedroom. Ms. Zbikowski's Termination from Employment. On the afternoon of September 24, 1992, Ms. Zbikowski spoke with Ms. Hartsel and told her that Dr. Medero and Ms. Redding had sexual intercourse in her presence and her son's presence. Ms. Zbikowski was very upset and Ms. Hartsel told her to take the afternoon off and report to the office the next morning. Ms. Zbikowski also made other allegations, which the evidence failed to substantiate, of incidents of sexual harassment by Dr. Medero. Ms. Zbikowski left a beeper and a garage door opener she had been provided by Dr. Medero at Dr. Medero's home and left. The next morning, Friday, September 25, 1992, Ms. Zbikowski reported to the office. She was told that she would be expected to the work at the office in the mornings and then work at Dr. Medero's home in the afternoons. Ms. Zbikowski left at lunch and did not return. Ms. Zbikowski informed Ms. Hartsel that she did not intend to return that day because she did not want to return to Dr. Medero's home. Ms. Hartsel told Ms. Zbikowski that she would discuss the matter with Dr. Medero. Ms. Hartsel did not, however, order Ms. Zbikowski to return to work that day or inform her that she was not authorized to stay home. After speaking to Ms. Hartsel by telephone that weekend and being told that Ms. Hartsel had not yet discussed the matter with Dr. Medero, Ms. Zbikowski reported to work Monday, September 29, 1992. By the time that Ms. Zbikowski returned to the office on Monday, Dr. Medero had been informed of the allegations of sexual harassment she had made against him to Ms. Hartsel. Shortly after arriving at the office, Ms. Zbikowski was escorted to her automobile by Dr. Medero, Ms. Hartsel and a nurse and was told by Dr. Medero not to return. Ms. Zbikowski was, therefore, fired by Dr. Medero. Ms. Zbikowski was terminated because of the allegations she made concerning Dr. Medero and Ms. Redding and the other allegations of sexual harassment. Ms. Zbikowski was not terminated because she was not performing her duties as Dr. Medero's housekeeper in a satisfactory manner. Ms. Zbikowski's Subsequent Employment. Ms. Zbikowski was employed, and eventually terminated, by other physicians after her termination from employment by Dr. Medero. The evidence failed to prove that Dr. Medero was involved in any manner in Ms. Zbikowski's subsequent terminations from employment. Ms. Zbikowski's Charge of Discrimination. Ms. Zbikowski filed a Charge of Discrimination against Dr. Medero with the Florida Commission on Human Relations. Ms. Zbikowski alleged that she had been discriminated against based upon the following: I am a female. I worked for the above named respondent since August 20, 1992, until September 28, 1992 when I was discharged from my position of maid. During my employment I was subjected to sexual harassment by Dr. Mario Medero, and also I was subjected to different terms and conditions in my employment. I believe I have been discriminated against because of my sex, in violation of Title VII of the Civil Rights Act of 1964, as amended. On September 2, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " Ms. Zbikowski filed a Petition for Relief, requesting a formal administrative hearing on October 19, 1993. In the Petition for Relief filed with the Commission Ms. Zbikowski alleged, in part, the following: Respondent has violated the Human Rights Act of 1977, as amended, in the manner specifically described below: Petitioner did not abandoned [sic] her job. Petitioner was hired for one position and was told to accept another position 1 1/2 weeks into her employment which was not mentioned, nor described as part of original position. The disputed issues of material fact, if any, are as listed below: Petitioner did not abandoned [sic] her job. Petitioner was hired for one position and was told to accept another position 1 1/2 weeks into her employment which was not mentioned, nor described as part of original position. The ultimate facts alleged and entitlement to relief are as listed below: . . . . The alleged fact memos are that Petitioner was hired for a "Bookkeeping" position but was never given the opportunity to work in this position as original Bookkeeper (Dr. Medero's girlfriend) decided not to leave her position, so Petitioner was given a less meaningful job as "Housekeeper" but was subjected to harassing sexual misconduct by Respondent. The relief is as follows: Petitioner has for 1 year been trying to maintain and seek employment in the Medical field, one which she has worked in for 13 years, but because of Dr. Medero's influence in the Medical field has made it very hard for Petitioner to continue in this field. Petitioner is seeking recovery for the discriminating position he placed her in while under his employment plus relief from the undue hardship which has been placed upon her because of his lies in this matter. . . . . . . . Ms. Zbikowski proved the following allegations contained in her Charge of Discrimination and the Petition for Relief: "I am a female." "I worked for the above named respondent since August 20, 1992, until September 28, 1992, when I was discharged from my position of maid." "Petitioner did not abandoned [sic] her job." The remaining allegations contained in the Charge of Discrimination and the Petition for Relief were not supported by the weight of the evidence. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Ms. Zbikowski. Ms. Zbikowski failed to prove that any action of Dr. Medero was based upon Ms. Zbikowski's sex: she was not held to any standard or requirement based upon her sex, she was not sexually harassed and she was not terminated because of her sex. Ms. Zbikowski failed to prove that any policy or standard of Dr. Medero or his office had a disparate impact on female employees. Ms. Zbikowski failed to prove that she was replaced by a male or that other female employees with comparable or lessor qualifications were retained. Ms. Zbikowski failed to prove that she was sexually harassed by Dr. Medero. Ms. Zbikowski failed to prove that Dr. Medero or his office discriminated against her on the basis of her sex, female.
The Issue The issues are whether Respondent, Parkland Rehabilitation and Nursing Center (Parkland), committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, when it terminated the employment of Petitioner, Ardel Hannah, and whether it subjected Petitioner to disparate treatment on the basis of his national origin.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Parkland is a rehabilitation and nursing center located at 1000 Southwest 16th Avenue, Gainesville, Florida. It is an employer as that term is defined in Section 760.02(7), Florida Statutes. Petitioner is a black male of American national origin. Although his actual date of employment is not of record, the evidence reflects that Petitioner had been employed by Parkland's maintenance department for more than ninety days when he was suspended on August 24, 2007, and then formally terminated by letter dated September 7, 2007. His primary job assignment was to repaint residents' rooms at the facility after the rooms were vacated. Petitioner's supervisor was Arthur Ellesten, Director of Maintenance, who is originally from Jamaica but is now a United States citizen. Although Mr. Ellesten has authority to hire employees in that department, he does not have authority to terminate employees. Two other workers on the maintenance staff, including Vichaun Palmer, were of Jamaican national origin. Michael Rau was the Administrator of the facility and its most senior employee. Mr. Rau has the authority to hire and terminate employees. He is of American national origin. On August 21, 2007, Mr. Ellesten verbally counseled Petitioner based on his unsatisfactory job performance. Petitioner became hostile towards Mr. Ellesten during this counseling session and swore at Mr. Ellesten. Petitioner was informed that he would be formally written up if his performance did not improve. Prior to August 24, 2007, Mr. Rau verbally counseled Petitioner on at least two occasions for his poor job performance, based on his slow progress at assigned tasks and fraternizing with female staff members for long periods of time during regular working hours. An incident occurred on August 24, 2007, which, when coupled with his prior unsatisfactory job performance, culminated in Petitioner's suspension and termination. Although the testimony regarding the incident is conflicting in many respects, the following facts are found to be the most credible. On that date, Petitioner arrived at work around 8:00 a.m. and confronted Mr. Ellesten in the courtyard of the facility. Petitioner requested Paid Time Off (PTO) for that day, which is paid leave accrued by full-time employees. Petitioner was told that he would have to request a form from Mr. Rau. Believing that Mr. Ellesten had provided PTO forms to the other Jamaican maintenance workers, Petitioner became angry and began swearing at his supervisor. Seeking to avoid a physical confrontation, Mr. Ellesten left the courtyard to return to his office on the second floor. Petitioner followed Mr. Ellesten up the stairs to the office where Petitioner verbally threatened to kill him. After Petitioner refused to leave the office, Mr. Ellesten called security, who telephoned the police department. Mr. Ellesten then departed his office, and as he was walking down the stairs, Petitioner pushed him. However, he was not injured. Petitioner left the premises a few minutes later and returned to an apartment complex where he lived. After security contacted the police department, Officer Moore was dispatched to Parkland. Mr. Ellesten requested that Officer Moore not file criminal charges against Petitioner but only give him a trespass warning. Officer Moore then went to Petitioner's apartment and issued a verbal trespass warning. This is evidenced by an Incident/Investigation Report prepared by Officer Moore. Petitioner later returned to Parkland the same day where he met with Mr. Rau to discuss the incident. During their conversation, Petitioner alleged that Mr. Ellesten had physically attacked him that morning. After Officer Moore arrived a few minutes later and joined the two, Petitioner did not repeat the allegation. Pending a further investigation of the matter, Mr. Rau suspended Petitioner. Petitioner never filed a complaint with the police department against Mr. Ellesten, and he never filed a complaint or grievance with anyone at Parkland alleging that Mr. Ellesten had attacked him, as alleged in his Petition for Relief. Also, he never informed Mr. Rau that he was treated different or unfairly by Mr. Ellesten, other members of the maintenance department, or other employees of Parkland. Finally, he never complained that the other two workers in the maintenance department were treated more favorably than he. Violence against a co-worker or supervisor is considered unacceptable conduct and by itself is a basis for termination by Mr. Rau and Parkland. As a part of his investigation, Mr. Rau questioned Mr. Ellesten about the events on August 24, 2007, obtained a written statement from Mr. Ellesten, spoke with Petitioner on August 24, 2007, and reviewed the Incident/Investigation Report prepared by Officer Moore. On September 7, 2007, Mr. Rau sent Petitioner a letter formally terminating his employment with Parkland based on the August 24, 2007, incident and "past issues related to [his] performance and conduct." There is no evidence, direct or circumstantial, that national origin was considered at any point during Petitioner's employment or that national origin played a part in his termination. Further, no credible evidence, direct or circumstantial, was submitted to show that he was otherwise subjected to disparate treatment because he was an American.
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 finding that Parkland did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 22nd day of October, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 22nd day of October, 2008. COPIES FURNISHED: Denise Crawford, Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 200 Tallahassee, Florida 32399-4857 Ardel Hannah 996 Southwest 16th Avenue Apartment 904 Gainesville, Florida 32601-8483 Lauren M. Levy, Esquire Levy & Levy, LLC 4230 South MacDill Avenue, Suite 230 Tampa, Florida 33611-1901 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32399-4857
The Issue Whether Respondent is guilty of an unlawful employment practice by failing to hire Petitioner on the basis of age or in retaliation.
Findings Of Fact On February 24, 1994 (amended March 10, 1994), Petitioner filed a Charge of Discrimination, based on age and retaliation, with the Florida Commission on Human Relations. That charge listed the most recent discrimination as October 18, 1993 and alleged that Petitioner had been rejected for a post in Panama City; that Respondent, through a Ms. Retherford, had denied Petitioner access to other applicants' records for ten days; and that Ms. Retherford, Ms. Jenkins, and Ms. Ciccarelli of Respondent's District 2, had made sure everyone in their District knew Petitioner's name and to avoid hiring him. To further specify his charges, Petitioner attached a December 16, 1993 memorandum from Ms. Radigan to Mr. Clary. (See below, Finding of Fact No. 56). The Charge of Discrimination then concluded, "the specific job for which I applied was set in Marianna and closed on 18 October; though I had been referred to that job by Karen Dalton, an HRS specialist at HRS headquarters, I never had a chance at that job." (P-2) By a "Determination: No Cause", dated March 20, 1995, the Commission advised Petitioner that he could file a Petition for Relief within thirty-five days, pursuant to Section 760.11 F.S. On April 22, 1995, Petitioner filed his Petition for Relief, which was referred to the Division of Administrative Hearings for a formal evidentiary hearing, pursuant to Section 120.57(1) F.S.. That timely Petition for Relief alleged both age and retaliation discrimination by Respondent's failure to hire Petitioner for a number of posts, none of which the Petition specifically named by position number or date. The retaliation allegation was based on Petitioner's "causing trouble," not due to his filing any prior formal complaints with the federal Equal Employment Opportunity Commission or Florida Commission on Human Relations or upon his participation in these types of litigation on behalf of anyone else. Although the subject matter jurisdiction of the Division of Administrative Hearings is bounded by the Charge of Discrimination, the Petition for Relief, and Chapter 760 F.S., the parties were permitted to present some historical information. Even so, the parties' presentation of evidence did not always clearly correlate Respondent's dated employment advertisements for named, numbered, or described positions to specific applications of Petitioner and/or specific interviews or hirings of other persons. Respondent agency demonstrated that as of October 13, 1993, it was employing at least one employee older than Petitioner, at least one in her sixties, others in their fifties, and hundreds who were over 39 years old. However, none of this information is particularly helpful in resolving the issues in this case. While Respondent's figures may speak to longevity of employees or duration of their employment with Respondent, they are silent as to each employee's age as of the date Respondent first hired each one. (R-9) Petitioner is a white male who at all times material was 63-65 years of age. Petitioner repeatedly applied for job vacancies advertised by Respondent agency and was not hired for any of them. Every position for which Petitioner applied required, at a minimum, that applicants have a bachelor's degree from an accredited college or university plus three years' professional experience in one or more of the following employments: abuse registry; developmental services; law enforcement investigations; licensed health care; children, youth, and family services; child support enforcement; economic services; aging and adult services; licensed child day care; mental health; or elementary or secondary education. Specific types of bachelor's degrees or any master's degree could substitute for one of the three years' required experience in the named programs. Specific types of master's degrees could substitute for two years of the three years' required experience in the named programs. However, no matter how many or what type of college degrees an applicant had earned, Respondent still required applicants to have at least one year of specialized experience. (P-1, R-1, R-2, R-4, R-5, and R-7). In fact, Petitioner met the foregoing requirements at all times material. "In the late summer of 1992," Petitioner first responded to one of Respondent's advertisements for a Protective Investigator position in Panama City. (P-1, P-14) He was turned down without an interview for that position by a letter dated September 22, 1992. (P-1). Feeling that he was qualified for the foregoing position and that he should have at least been given the opportunity to interview, Petitioner made an appointment with Ms. Charlie Retherford, who had advertised the position. The contents of Ms. Retherford's explanation about ten days later is not of record, but Petitioner remained dissatisfied. Petitioner next made a request pursuant to Chapter 119 F.S., The Public Records Act, to view the records of other applicants. Petitioner felt he was "hassled" over this request, but admitted that Respondent provided the records within two weeks. Petitioner did not elaborate upon why he felt "hassled," only stating that he felt two weeks was an "unreasonable delay." Petitioner analyzed the records and formed the opinion that "there was good reason to believe" Respondent did not interview him because he was over 60 years old. Petitioner testified that those applicants selected by Respondent for interviews averaged 29 years old, but Petitioner did not offer in evidence the records he had reviewed so as to substantiate his assertion. In correspondence and interviews which occurred after September 22, 1992, Petitioner revealed his age to various employees of Respondent. (See Findings of Fact 14, above, and 24, 41, and 45 below). However, an applicant's age or birth date is not required on Respondent's standard employment application form, and on Petitioner's September 5, 1992 application received by Respondent September 9, 1992 (P-14), Petitioner had left blank the "optional" line for date of birth. Therefore, it was not established that the Respondent knew, or even how the Respondent could have known, Petitioner's age prior to its September 22, 1992 failure to hire him. Despite Petitioner's testimony as to the average age of interviewees, the mean age of all the applicants up to September 22, 1992 was not established, so it is not clear whether any twenty-nine year olds or persons younger than Petitioner also were not interviewed as well as Petitioner, who was not interviewed and who was in his sixties. Additionally, no nexus between any other applicant's qualifying credentials and Petitioner's qualifying credentials was put forth. Therefore, it is impossible to tell if those applicants who were interviewed prior to September 22, 1992 were more or less qualified than Petitioner, or if there was any pattern of Respondent refusing to interview applicants of any age. By a November 24, 1992 letter, Respondent turned down Petitioner's application as a Protective Investigator with its Aging and Adult Services Unit in Chattahoochee. (P-4). By a November 24, 1992 letter, Respondent turned down Petitioner's application as a Protective Investigator in Panama City. (P-5) By a January 22, 1993 letter, Respondent turned down Petitioner's application as a Protective Investigator in Panama City. (P-6) By a January 27, 1993 letter, Respondent turned down Petitioner's application as a Protective Services Abuse Registry Counselor after he was interviewed. (P-3, P-7) (See Findings of Fact 24 and 41, below. By a February 25, 1993 letter, Respondent turned down Petitioner's application for Research Assistant Position No. 05396 at Florida State Hospital. (P-8) Petitioner did not offer in evidence any of his applications corresponding to the Respondent's refusals to hire him between September 22, 1992 and February 25, 1993. 1/ For the period of September 22, 1992 through February 25, 1993, Petitioner's only evidence of age or retaliation discrimination was his subjective personal conviction that age was a factor in Respondent's refusal to hire him and the Radigan memorandum issued ten months later and discussed in Findings of Fact 56-65, below. Affording Petitioner all reasonable inferences, the undersigned infers that due to Petitioner's post- September 22, 1992 interview with Ms. Retherford, Respondent's District 2 hiring personnel could have been aware of Petitioner's age from late September 1992 onward. However, there was no evidence presented by which it can be affirmatively determined that between September 22, 1992 and February 25, 1993 that Respondent knew the age of all other applicants before deciding which ones to interview or that there was a pattern of only interviewing persons under a certain age. 2/ Further, in an August 12, 1993 letter, Petitioner stated to the Secretary of Respondent agency that he had, in fact, been interviewed by Respondent in January 1993. (P-3) (See below, Finding of Fact 41.) It also must be inferred from that information that Respondent did not systematically exclude Petitioner from the interview process on the basis of age or retaliation at least through January 1993. Petitioner's last application before October 14, 1993 which was admitted in evidence is dated April 8, 1993. It was stamped "received" by Respondent on April 9, 1993. It also does not give his age or date of birth. It specifies that Petitioner was applying for a Protective Investigator position closing April 12, 1993. (P-15). In April 1993, Brenda Ciccarelli, an official in Respondent's District 2, requested Karen Dalton, a recruitment coordinator in Respondent's Personal Services Section, to review Petitioner's employment application to determine if he met the minimum requirements for employment in the advertised position. Ms. Dalton's testimony is not altogether clear as to which application or applications she reviewed in April 1993, but from the evidence as a whole, it is inferred that she reviewed Petitioner's September 5, 1992 (P-14) and/or his April 8, 1993 (P-15) applications or applications by Petitioner which were substantially similar. Ms. Dalton analyzed Petitioner's application(s) and determined that Petitioner did not meet Respondent's minimum requirements. She satisfied herself that she had made a correct analysis by conferring with Mr. Joe Williams of the Department of Management Services. By a May 7, 1993 letter, Respondent turned down Petitioner's application as a Protective Investigator in Panama City. (P-9) Ms. Retherford for Respondent advertised Protective Investigator/8308, Position No. 48210 in Port St. Joe, Gulf County from May 24, 1993 to June 7, 1993. (R-1) Respondent readvertised Protective Investigator/8308, Position No. 48210 in Port St. Joe, Gulf County from June 21, 1993 to July 26, 1993. (R-2) Effective August 6, 1993, Respondent hired Jack Connelly, then 45 years old, for Position No. 48210 in Port St. Joe, Gulf County. (R-3) Respondent introduced a tabulation of the ages of the applicants for Position No. 48210 which was completed as of the effective date the position was filled. It included columns listing birth dates of applicants, if known; a column indicating applicants' handicaps, if any; a column indicating whether an applicant was eligible; and a column indicating which applicants were interviewed. (R-3) Mr. Connelly, the successful applicant, was interviewed, as were eleven other applicants. Ten applicants, among them Petitioner, were not interviewed. (R-3) The applicants who were interviewed were respectively forty-five, fifty, forty-six, forty-one, thirty-seven, fifty-eight, one unlisted, forty- four, forty-one, forty-four, and thirty-one years of age. The ages of those not interviewed were fifty, one unlisted, forty-five, Petitioner's age also was unlisted, thirty-six, thirty-one, twenty-three, thirty-three, forty-nine, and thirty-two. (R-3) There is nothing in the record to show that the qualifications of the applicants interviewed or those of Jack Connelly, who was hired, were lower than Petitioner's qualifications. There is no discernible pattern of excluding anyone by age. 3/ Ms. Retherford for Respondent advertised Protective Investigator/8308, Position No. 50968 in Panama City, Bay County from May 17, 1993 to May 31, 1993. (R-4) Respondent readvertised Protective Investigator/8308 Position No. 50968 in Panama City, Bay County from June 21, 1993 to July 6, 1993. (R-6) By a July 20, 1993 letter, Respondent turned down Petitioner's application for Protective Investigator in Panama City. (P-10) Effective August 6, 1993, Respondent hired Edward Bonner, then fifty- three years old, for Position 50968. He was one of the applicants interviewed. (R-6) Respondent presented another columnar tabulation completed as of the effective date Mr. Bonner was hired. It showed that the interviewed applicants were ages fifty-three, fifty, forty-six, forty-one, twenty-seven, fifty-eight, one unlisted, forty-six, forty-one, forty-four, and thirty-one, respectively. The uninterviewed applicants were fifty, one unlisted, forty-five, Petitioner's age also was unlisted, thirty-six, thirty-one, twenty-three, thirty-three, forty-seven, and thirty-two respectively. (R-6) Again, there is no discernable pattern of excluding anyone by age. 4/ There is nothing in the record to show that the qualifications of the interviewees or of Edward Bonner were lower than Petitioner's qualifications. On August 12, 1993, Petitioner wrote the agency Secretary, Mr. H. James Towey, complaining that he had been discriminated against because of his age, which he then gave as This letter listed the dates of discrimination as 9/22/92, 11/24/92, 11/24/92 again, 1/22/93, 1/27/93, 2/25/93, 5/7/93/ and 7/20/93. Therein, Petitioner admitted that Respondent had interviewed him approximately January 1993 for a System Abuse Registry Counselor position and that the interview had gone very well from his point of view. (P-3) Respondent advertised Protective Investigator/8308 (anticipated vacancy) Position No. 04385 in Panama City from June 21, 1993 to July 6, 1993. (R-7) Effective September 3, 1993, Respondent hired Johnnie A. Knop (female), DOB unlisted, for Position No. 04385. Respondent's tabulation completed on the effective date of hiring Ms. Knop showed that not counting Ms. Knop, whose age does not appear, the interviewees were thirty-eight, fifty, forty-six, forty-one, thirty-three, fifty-eight, forty-four, forty-one, forty- four, and thirty-one years of age, respectively. The non-interviewees were fifty, one unlisted, forty-five, Petitioner's age also was unlisted, thirty-six, thirty-one, twenty-three, thirty-three, forty-nine, and thirty-two years of age. (R-8) Once more, there is no discernible pattern of excluding anyone by age. Moreover, it is not possible to tell whether or not Respondent hired someone older or younger than the Petitioner. 5/ There is nothing in the record to show that Johnnie Knop's qualifications were lower than Petitioner's. In September, 1993, Ms. Dalton had a conversation with Petitioner which lasted approximately ninety minutes. Based upon the contents of Petitioner's Exhibit 13, it is found that this conversation occurred on September 13, 1993 in response to letters of complaint written by Petitioner on May 20 and August 12, 1993. The Petitioner's May 20 letter is not in evidence, but it is inferred that the August 12 letter referenced in P-13 was Petitioner's complaint to Secretary Towey (P-3) concerning age discrimination and discussed above in Finding of Fact 41. During their conversation, Ms. Dalton discovered that some of Petitioner's remote job experiences were useful for certifying him qualified. Together, Petitioner and Ms. Dalton worked through a list of Respondent's job openings, and Ms. Dalton sent one of Petitioner's applications on to Cheryl Nielsen who was hiring for a position in Marianna. At formal hearing, Ms. Dalton explained credibly that she had not originally categorized Petitioner as meeting the professional experience requirement in the "elementary or secondary education" category because she misunderstood his prior application(s) which she had reviewed. Where the September 5, 1992 application had related Petitioner as employed as "a teacher at Dozier School for Boys (Washington County Program at Dozier)" and the April 8, 1993 application listed him as " a teacher at Dozier School for Boys" for eleven months in 1990-1991, Ms. Dalton previously had understood that his employment merely constituted "shopwork, independent living", which is literally part of what Petitioner had written. Ms. Dalton previously had not equated that phraseology with professional teaching experience in an elementary or secondary school. Ms. Dalton also credibly explained that she had the erroneous perception of Petitioner's past experience listed as "supervisor, driver education" at Parks Job Corps Center as being solely employment in a private driver's education school. Petitioner had written "vocational training center," to describe the Center's function. Less understandable but unrefuted was Ms. Dalton's testimony that she had not equated Petitioner's teacher status for eight years in the Oakland County, California Public Schools as "teaching" because of the way Petitioner's application(s) had presented that prior employment which had occurred in the late sixties and early seventies. Despite both applications clearly stating this was public school teaching, Ms. Dalton had once again erroneously assumed that Petitioner had worked in a driver education school, when he had, in fact, been teaching a regularly scheduled minor course curriculum of driver's education in the standard curriculum of a public high school. Apparently, she had given less emphasis to this and had become confused by the explanatory material that Petitioner had added to explain the other things he had done besides teaching. She also gave less emphasis to other employments involving several years even if they included the word "teacher" because they were remote in time. (P-14 and P-15; compare P-16). After their clarifying interview, Ms. Dalton considered Petitioner qualified for the position(s) applied for, even though his qualifications previously had not been apparent to her from his written application(s). Convinced that Petitioner's application style did not present him to best advantage, Ms. Dalton advised Petitioner how to re-do his application to emphasize the factors significant to Respondent and maximize his employment opportunities with Respondent. On the basis of their conversation alone, Ms. Dalton sent a September 15, 1993 letter to Petitioner, and copied Ms. Jenkins and Ms. Ciccarelli, both employed in Respondent's District 2, to the effect that Petitioner met the eligibility requirements for the Protective Investigator classification. (P-13) Petitioner revised his application to detail that some of his school activities which were remote in time actually involved teaching. He submitted the rewritten application to Ms. Dalton approximately October 14, 1993. (P-16). After the revision, Ms. Dalton credited Petitioner with three years and nine months of "teaching in an elementary or secondary school" based only on his teaching during the 1960's. She also forwarded the revised application to Marianna and Ms. Nielsen. A review of the Petitioner's only three applications in evidence (September 5, 1992 at P-14; April 8, 1993 at P-15; and October 14, 1993 at P-16) reveals that Petitioner's original application style is so detailed and thorough that some portions September 1992 and April 1993 applications are less than clear as to what entity employed him and what his title was. For instance, he frequently used job titles that were more administrative, like "program manager", than educational, like "teacher". While a thorough reading of either of the applications in Petitioner's original style would probably reveal that he had, indeed, been employed in public school teaching positions approximately 30 years before, Petitioner's original applications require much more concentrated reading than does his revision in order to sort through the material matters and exclude extraneous and cumulative material that had no significance to Respondent's application process. The unrevised applications are not clear that he actually "taught" for a total of three years and nine months in public elementary or secondary schools as understood by Respondent's assessment system. According to Cheryl Nielsen, the position in Marianna for which Petitioner was certified eligible by Ms. Dalton and which closed October 18, 1993 was a temporary position. It existed solely because the individual holding the permanent position had been on workers' compensation leave. When it became apparent to Ms. Nielsen that the injured job holder would not be returning permanently, she decided not to continue the hiring process for the temporary position. Instead, she decided to advertise and fill the position in Marianna as a permanent position once the appropriate waiting period ran out. This was a reasonable decision because it would require six weeks' training before any hiree would be useful and because by going directly to the hiring of permanent personnel, Ms. Nielsen could avoid having to repeat the training process with a different person in a short period of time. No one was interviewed or hired for the temporary position for which Petitioner applied. There is no evidence in this record to tell the undersigned if Petitioner applied for Miss Nielsen's permanent position. Indeed, there is no evidence that Petitioner applied for any positions with Respondent after October 14, 1993. On November 26, 1993, Petitioner wrote Mr. Clary, Respondent agency's Deputy Secretary for Administration. The "Re:" line of this letter states that the letter refers to "'contracts' which cost HRS a fortune but serve no legitimate purpose." A fair reading of Petitioner's letter is that he was complaining concerning a letter from Dr. James Henson of Tallahassee Community College (TCC) which constituted a reply to Petitioner's inquiry concerning a TCC job vacancy announcement. Neither Petitioner's letter to Dr. Henson nor Dr. Henson's reply letter to Petitioner are in evidence to further explain what was actually going on. In his November 26, 1993 letter to Respondent's Deputy Secretary Clary, Petitioner characterized Dr. Henson's letter to him as "condescending" and "elitist" and stated Petitioner's opinion that Respondent should not have contracted with TCC to recruit field instructors because it was a waste of money. Petitioner's letter is entirely coherent, but its tone is agitated and vituperative. It attacks the agency's expenditure of funds to Dr. Henson and TCC and their qualifications. It does not mention Petitioner's age or job applications to Respondent in any way. (P-12) Apparently as a result of yet another of Petitioner's letters dated November 19, 1993, which November 19, 1993 letter is not in evidence, Ms. Radigan, Respondent's Assistant Secretary for Children and Family Services, wrote the following December 16, 1993 memorandum to Deputy Secretary Clary, copying Secretary Towey and the Assistant to the President of TCC. I wanted to give you some feed back on this issue. Mr. Sondel has written many such letters across the last six to eight years. He is very well known by the recruitment and personnel professionals in the Tallahassee area, in both the private and public sectors. Bob Roberts discussed this issue with Mr. Marshall Miller, special assistant to Dr. Henson at Tallahassee Community College (TCC). Mr. Miller suggested that DHRS [Respondent agency] should make no response to or take any action pertinent to the letter. Dr. Henson would prefer that he or his attorney make any response as he sees proper. The field instructor position in question is one of twenty new contracted professionals being recruited state wide that will be located in each district to provide clinical expertise, technical assistance, job coaching and staff training for a four unit staff in the Children and Family Services Program. Due to the nature of the job tasks that will be assigned to the new contracted professionals, the Districts expect that they will have relevant professional training and work experience in public child welfare systems. Please let me know if you have any questions, or wish to have additional information. Emphasis and bracketted explanatory material supplied. (P-11)57. The language emphasized above was not emphasized in Ms. Radigan's original memorandum, but has been characterized in Petitioner's testimony as "the smoking gun" upon which Petitioner relies to demonstrate that Ms. Radigan, via "retaliatory slander", had prevented Respondent agency from hiring Petitioner throughout 1992- 1993. He attributed her remarks to be the result of his letters to the Respondent complaining of age discrimination. Petitioner testified credibly and without refutation that he had never applied for employment with Respondent before the summer of 1992 and that he was first denied employment by Respondent on September 22, 1992. This is accepted. At the time of Ms. Radigan's memorandum, Petitioner had filed no formal charges of discrimination against Respondent. Therefore, it is impossible for any retaliation by Respondent between September 22, 1992 and October 18, 1993, if it existed, to have been based upon formal charges by Petitioner. Petitioner's subjective reading of the Radigan memorandum to the effect that it presents him as a "kook who should not be taken seriously" is one possible interpretation, but otherwise, Petitioner's interpretation is flawed. The Radigan memorandum is dated well after Respondent's last failure to hire Petitioner. That alone is not conclusive to show that its contents did not affect Respondent's hiring process between September 22, 1992 and October 18, 1993 because it could relate back to Respondent's prior retaliatory non- hiring practices. However, a clear reading of the memorandum itself does not permit such an interpretation. First, the memorandum refers to a letter by Petitioner dated approximately a month after the Respondent's last failure to hire Petitioner. Although Petitioner claimed that the Radigan memorandum refers to Petitioner's complaints of age discrimination, that was not proven. Since the Petitioner's November 19, 1993 letter, which the Radigan memorandum addressed, is not in evidence, it is impossible to determine precisely which of Petitioner's complaints Ms. Radigan's memorandum addressed, but even if Petitioner's November 19, 1993 letter had complained of age discrimination, that complaint was made after Petitioner had ceased to apply with Respondent. Therefore, retaliation at that point could not relate backwards to hiring practices already concluded. The letters of Petitioner over six to eight years to which the body of the memorandum refers apparently include his letters to private sector entities as well as government agencies other than Respondent agency. Therefore, the fact that Petitioner had only been applying to Respondent for two, not six or more, years (see Finding of Fact 58, above) does not establish any intentional misstatement of fact by Ms. Radigan. If these letters and Petitioner's November 19, 1993 letter to Respondent all contained complaints of age discrimination, then it was appropriate for Ms. Radigan to report that fact, but there simply is insufficient evidence in this record to determine if that is what happened here. Ms. Radigan's memorandum says nothing to the effect that Respondent should not hire Petitioner, that TCC should not hire him for itself, or that TCC should not recruit him for a position with Respondent. Nothing in the memorandum permits the inference that Ms. Radigan did anything except investigate the situation existing between Petitioner and TCC and report back to her superior all available information, including gossip about Petitioner from both the public and private sectors. Gossip is always reprehensible, but people talking about unspecified letters Petitioner wrote without more does not constitute retaliatory discrimination or age discrimination. Whether the situation between Petitioner and TCC had to do with TCC's failure to recruit Petitioner or with Petitioner's complaint about the cost of Respondent's contract with TCC to do its recruiting is unclear in this record. (P-12) (See Finding of Fact 55 above). If anything, the latter is more likely since in his Charge of Discrimination (P-2), even Petitioner described the Radigan memorandum as addressing "a matter only tangentially related to my employment possibilities." Therefore, no retaliation discrimination for raising the issue of age discrimination has been clearly proven.
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 denying and dismissing the Petition for Relief. RECOMMENDED this 14th day of December, 1995, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1995.
The Issue Whether Petitioner was terminated from her position with Respondent as a picker/stock keeper on or about September 26, 2001, on the basis of her race (African-American) and/or gender (female), in violation of Section 760.10(1)(a), Florida Statutes (2001).
Findings Of Fact Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by Respondent as a temporary employee to perform the job of picker/stock keeper at its Parts Distribution Center in Orlando, Florida, during the time period from September 12, 2001, to September 26, 2001, the date she was terminated. Petitioner worked a total of 14 days for Respondent. Petitioner is an African-American female, a member of a protected class. The Parts Distribution Center for Respondent in Orlando, Florida, is a facility that holds automotive parts that are then shipped to dealerships. All temporary employees at Respondent are at-will employees. Temporary employees are told during their orientation that they are at-will employees who can be terminated at any time, for any reason. Temporary employees at Respondent are only eligible to work 119 days. Most temporary employees are not offered full time permanent employment. There is no guarantee that a temporary employee will receive an offer to work as a permanent employee. Petitioner was hired to perform the job of picker/stock keeper. A picker/stock keeper takes parts off of shelves to be shipped to dealerships. Petitioner participated in an orientation, and Petitioner received the same training as every other temporary employee. Petitioner worked the night shift. Respondent maintains written Standards of Conduct to which all employees must adhere. The Standards of Conduct apply to both temporary and permanent employees. The Standards of Conduct were in effect in September 2001, when Petitioner worked as a temporary employee. All employees are given a copy of the Standards of Conduct when they are hired. Petitioner received a copy of the Standards of Conduct when she was hired, and the Standards of Conduct are posted throughout the plant. The Standards of Conduct provide that an employee's "[f]ailure or refusal to follow the instructions of supervision" is grounds for "disciplinary action up to and including discharge." The supervisors who worked at Respondent's Distribution Center during Petitioner's employment were Richard Alvarez ("Alvarez") (Hispanic male), Lenier Sweeting ("Sweeting") (Black male), and Joe Bromley (White male). Alvarez was temporary supervisor for the night shift from June 2001 until December 2001. Alvarez was Petitioner's direct supervisor. Sweeting was a supervisor in September 2001. Sweeting was chosen to become a supervisor by Hal McDougle, a Black male. Sweeting was the supervisor on the day shift when Petitioner worked at the Distribution Center. His shift ended at 3:30 p.m. but he stayed in the building to help with the transition to the night shift. Alvarez would normally walk Sweeting to the front door to discuss what had occurred during the day shift. On September 25, 2001, Sweeting was walking past the bathroom with Alvarez and heard two women talking and laughing in the bathroom. Alvarez recognized one of the voices to be that of Petitioner. Alvarez had heard rumors that Petitioner had been taking a lot of extended breaks and told Sweeting about the complaints he had been receiving. Alvarez received at least two complaints, and possibly four or five, from Petitioner's co- workers that she was taking extended breaks and not on the floor working. Alvarez wanted to wait and see how long Petitioner remained in the bathroom. Sweeting and Alvarez waited outside the bathroom until they saw Petitioner exit the bathroom with Maria Dejesus. Alvarez believes that he and Sweeting waited outside the bathroom for approximately ten to 15 minutes. Alvarez told Petitioner that she had been taking an extensive break and needed to go back to work. Sweeting witnessed Alvarez tell Petitioner to go back to work in a professional tone. Alvarez also told Petitioner that he had heard rumors that she was taking extended breaks. He told her that since he saw it first hand, he wanted to mention it to her and let her know it would not be tolerated. Petitioner asked Alvarez which bathroom she could use in a very sarcastic tone. Sweeting observed Petitioner ask this question. Alvarez told Petitioner that he did not care which bathroom she used, as long as she did not abuse the break period. Petitioner proceeded to ask Alvarez in a sarcastic tone which bathroom she could use several times throughout the night. Despite Petitioner's sarcastic tone, Alvarez answered her questions professionally. Alvarez never asked Petitioner how old she was, whether she was married or how many children she had. Sweeting asked Maria Dejesus to go back to work as well. Sweeting and Alvarez have told other employees to go back to work when they have observed employees taking extended breaks. They have spoken to employees of both genders and all racial groups. On September 26, 2001, Alvarez assigned Petitioner to the "fast rack" area. Petitioner had never previously worked in the fast rack area. Alvarez personally instructed Petitioner in how to perform the assignment. Alvarez told Petitioner to pick the parts and put them on a rack float. After Alvarez gave Petitioner her instructions, Petitioner began her assignment. Petitioner never asked Alvarez any questions about her assignment or expressed that she was having difficulty with the job. Wanda Carithers ("Carithers") saw Petitioner using the wrong equipment to complete her assignment. Petitioner was using a bin cart instead of a float to pick the items. Alvarez noticed that Petitioner's assignment was running late. Alvarez walked over to the fast rack area and asked Petitioner two questions. Alvarez asked Petitioner whether she was going to be able to pick the whole assignment using the bin cart that she was using. Petitioner did not respond to or acknowledge Alvarez. Alvarez then asked Petitioner if she was almost done with her assignment. Petitioner rolled her eyes and said, "Your first question, yes, second question, no." Alvarez was very uncomfortable with Petitioner's response and demeanor. Alvarez told Petitioner that perhaps they had gotten off on the wrong foot. Petitioner asked Alvarez something about her union rights. Alvarez saw Petitioner's co-worker, Carithers, who was a union representative, driving by. Alvarez asked Carithers to explain to Petitioner her union rights as a temporary employee. During this conversation, Alvarez tried repeatedly to talk to Petitioner and on each occasion, Petitioner cut Alvarez off and would not let him speak. When Alvarez realized that he was not making any progress with Petitioner, he asked her to go to the warehouse office so that they could talk to a senior supervisor, Al White ("White") (Black male). Alvarez hoped that they could work out their differences with White's help. Alvarez started to walk approximately ten steps. He turned back and realized that Petitioner was not moving towards the office. Alvarez walked back to Petitioner and asked her a second time to go to the office. Once again, Petitioner did not move. Alvarez told Petitioner, "This is your last chance; go to the warehouse office." Once again, Petitioner did not move. Alvarez, after asking Petitioner to go to the office three times with no response, told Petitioner that her services were no longer needed, that she should gather up her things, and that she was terminated. Alvarez terminated Petitioner for her failure to follow a direct order of her supervisor in violation of Respondent's Standards of Conduct No. 6. Petitioner refused to move even after she was terminated. Petitioner asked Alvarez to reconsider, and he said that he had made up his mind. Alvarez started to walk away. When he saw that Petitioner was still not moving, he told her that he could call law enforcement to escort Petitioner off the property. Alvarez, and ultimately Petitioner, walked to the office. White asked Petitioner if she knew why she was terminated. Petitioner never asked to have someone from the union with her in the office until after she was terminated. At that time, Alvarez and White complied with her request and paged Rodney Witt, a union official, to come to the office. Carithers observed Petitioner fail to follow Alvarez's instruction to go to the office. Carithers recalls that Petitioner told Alvarez that Petitioner did not have to listen to Alvarez. Amber McPherson heard Alvarez call Petitioner to the office several times. Petitioner did not respond to Alvarez's requests. Sweeting has never experienced discrimination from management while working for Respondent for over seven years. Sweeting has never heard Alvarez make any gender or race-related comments or slurs. Sweeting has never heard any management employee at Respondent make a gender or race related comment or slur. Alvarez did not consider Petitioner's gender or race when he made the decision to terminate Petitioner. In addition, Petitioner lied on her application to Respondent and failed to indicate that she had been terminated from a prior employment. Petitioner had been terminated from Walt Disney World Company for theft. If Respondent had known that Petitioner had lied on her application or had been terminated for theft from a prior employer, it would not have hired her. Had Respondent learned that she had lied on her application after she was hired, she would have been terminated. Petitioner had no idea why she thinks she was treated differently based upon her gender or race. She just had a "feeling" or a "hunch." Petitioner had no evidence or information that her termination was based on her gender or race. Petitioner had no idea why she was terminated. She did not believe that it was because she failed to follow a command. Petitioner had no idea whether her supervisor, Alvarez, considered her gender or race when he terminated her employment with Respondent. Petitioner bases her claims that Respondent discriminated against her on the fact that there is general racism and sexism in society. Petitioner checked the "sex" and "race" box on her FCHR Charge of Discrimination simply because she is female and African-American. Petitioner felt as though she was harassed but cannot articulate a reason for it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order which DENIES the Petition for Relief. DONE AND ENTERED this 8th day of April, 2003, 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 8th day of April, 2003. COPIES FURNISHED: Stephanie L. Adler, Esquire Susan K. McKenna, Esquire Jackson Lewis LLP 390 North Orange Avenue, Suite 1285 Orlando, Florida 32801 Dorothy J. McCrimmon 5361 Commander Drive Number 304 Orlando, Florida 32822 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
