The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner on the basis of her race in violation of the Florida Civil Rights Act, when Petitioner was an employee of Respondent.
Findings Of Fact From 1991 until she resigned in November 2005, Petitioner Gloria J. Bias-Gibbs ("Bias-Gibbs") worked for Respondent Jupiter Medical Center ("JMC") in several different positions, which were mostly clerical in nature. Starting in 2001, and continuing throughout the time period relevant to this case, Bias-Gibbs' job was to perform "chart prep" in the Same Day Surgery unit, which is within JMC's Surgical Services Department. As a chart prep employee, Bias-Gibbs' task was to assemble patients' charts for the medical personnel. During the time she held the chart prep position, Bias-Gibbs was the only person who occupied it. Volunteers had performed the chart prep duties before Bias-Gibbs assumed them, and, after she resigned, volunteers once again were given the chart prep duties to perform. Bias-Gibbs' immediate supervisor in Same Day Surgery was Janet Sparks, the Clinical Manager. Ms. Sparks, in turn, reported to Beth Suriano, the Director of Surgical Services. Ms. Sparks and Ms. Suriano are white women; Bias-Gibbs is a black woman. Not long after she began her tenure as a chart prep, Bias-Gibbs began to believe that she was a victim of racial discrimination at work. In particular, she felt that Ms. Sparks was a racist who repeatedly took adverse action against her solely because she is black. The many allegedly discriminatory acts about which Bias-Gibbs presently complains can be divided into three main categories: (a) denials of her requests for promotion or transfer to another position; (b) Ms. Sparks' conduct; and (c) refusals to provide training, most notably in relation to a computer program known as "Fast Forms," about which Bias-Gibbs alleges she received inadequate instruction. The Requests for Transfer. Between April 16, 2001, and February 22, 2005, Bias-Gibbs submitted sixteen job transfer applications, seeking positions at JMC that she believed were more in keeping with her qualifications than chart prep. None of these applications was approved. Bias-Gibbs does not know the identities, racial characteristics, or qualifications of any of the persons whom JMC hired for the sixteen positions Bias-Gibbs sought. Because she applied for these positions and did not get them, however, Bias-Gibbs feels that she was discriminated against. In addition, Bias-Gibbs once sought to transfer to another position in the Surgical Services Department. The job of Patient Access Specialist was given, however, to another employee of JMC, Joyce Stokes, who assumed the position some time in 2004. Unlike Bias-Gibbs, Ms. Stokes (who happens to be white) had taken a medical terminology course and examination. Because proficiency in medical and surgical terminology is desirable for the position in question, Ms. Stokes was more qualified than Bias-Gibbs to be a Patient Access Specialist. Ms. Sparks' Conduct. Bias-Gibbs' complaints about Janet Sparks, whom she calls a "racist," revolve around allegations that Ms. Sparks forced Bias-Gibbs to sit in a back room while on the job; made racially insensitive remarks concerning Bias-Gibbs' appearance (specifically, her hair); refused to transfer Bias-Gibbs to a different position in the Surgical Services Department (the incident discussed above); kept an overly watchful eye on Bias- Gibbs while she was working; and generally declined to give Bias-Gibbs more challenging assignments in addition to chart prep. Work Station. Bias-Gibbs worked in a room apart from the secretaries in the unit. Her work area was neither "on the floor" nor in public view. While she believes that this "back room" placement was discriminatory, Bias-Gibbs' job as a chart prep employee did not require her to sit "out front." There is no evidence that Bias-Gibbs was singled-out for different treatment regarding her work station. To the contrary, after Bias-Gibbs resigned, the chart prep work continued to be done in the same room where Bias-Gibbs had labored, with the same supplies that were available to Bias- Gibbs while she was employed. Insensitive Remarks. Bias-Gibbs does not believe that she was harassed because of her race. She does complain, however, about derogatory remarks she attributes to Ms. Sparks. According to Bias-Gibbs, when Bias-Gibbs wore her hair in braids to work, Ms. Sparks made comments to the effect that she (Bias- Gibbs) looked like Whoopi Goldberg. In addition, Ms. Sparks once told Bias-Gibbs that she wished she (Ms. Sparks) were black because, if she were black, then it would be easier to take care of her hair. The undersigned takes Bias-Gibbs at her word that these quips were offensive and hurtful to her (although she never told Ms. Sparks that the comments at issue made her uncomfortable). To infer, however, that racial animus motivated these comments (there being no direct evidence of discriminatory intent) would require that the words be given a very mean connotation (and the speaker absolutely no benefit of the doubt) because, viewed objectively, the statements appear to be, at worst, inconsiderate, unkind, or rude. Ultimately, there is insufficient evidence upon which to base a finding (or to infer) that these remarks were anything but workplace banter of the sort that anti-discrimination laws are not designed to reach. "Excessive" Supervision. Bias-Gibbs believes that Ms. Sparks was hypervigilant about watching her work, which made Bias-Gibbs nervous or uncomfortable. Although she attributes this watchfulness to racism, Bias-Gibbs conceded, when pressed, that it was not discriminatory for her supervisor to keep an eye on her at work. There is no evidence, in any event, that Ms. Sparks subjected Bias-Gibbs to closer scrutiny than other employees, much less that she treated Bias-Gibbs differently in this regard based on her race. Underutilization. As an overarching complaint about Ms. Sparks, Bias-Gibbs believes that her supervisor generally refused to allow Bias-Gibbs to perform the kind of work that would make full use of her skills. At most, however, the evidence shows that Ms. Sparks and Bias-Gibbs had different opinions about Bias-Gibbs' potential for taking on other responsibilities. There is no evidence that Ms. Sparks' opinion, which was that Bias-Gibbs should continue working in chart prep, was racially based. Inadequate Training. Bias-Gibbs felt that she was discriminated against because other individuals were given more training than she was on using the Fast Forms computer program. Bias-Gibbs did receive instructions on using Fast Forms, however, which were sufficient to enable her to look up patients' names in the database——the only function of the program that was relevant to, and helpful in the performance of, her duties. The secretaries who used Fast Forms were provided more training in the use of the program, it is true, but their duties were different than Bias- Gibbs's duties, and hence they used Fast Forms for reasons in addition to retrieving names. The secretaries, in short, were provided more training than Bias-Gibbs, not because the latter is black, but because, as secretaries, they needed more training than Bias-Gibbs. The bottom line: there is no persuasive evidence that Bias-Gibbs was given inadequate training——period. At all times during Bias-Gibbs' tenure as an employee of JMC, the hospital had an anti-discrimination policy, an anti- harassment policy, an equal employment policy, and a grievance policy, which were available to all employees. Bias-Gibbs was aware of these policies, yet she never made any allegations of racial discrimination or harassment, disparate racial treatment, or racial comments to Ms. Sparks, Ms. Suriano, or anyone else. Similarly, she never used the grievance procedure to complain that she had been denied a promotion or transfer because of her race. Bias-Gibbs resigned her position at JMC in November of 2005. Although she now maintains that she felt compelled to resign her position because she was denied opportunities to advance at the hospital (and because she needed a job that paid more money), at the time Bias-Gibbs informed others that she was leaving her position in Same Day Surgery because she had gotten a better-paying job at the post office. Bias-Gibbs filed a Charge of Discrimination against JMC at some point on or after July 19, 2006. (She signed the charging document on September 22, 2006, but there is an inscription on the instrument indicating that it was filed on July 19, 2006. There is no evidence explaining this discrepancy.) Ultimate Factual Determinations Taken as a whole, the evidence in this case is either insufficient to establish that JMC discriminated unlawfully against Bias-Gibbs on the basis of her race; or it proves, affirmatively, that JMC did not, in all likelihood, unlawfully discriminate against her. Either way, it is determined, as a matter of ultimate fact, that JMC did not violate the civil rights laws in its treatment of Bias-Gibbs while she was an employee of JMC.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Bias-Gibbs' Petition for Relief as partially time- barred, and alternatively (and additionally) finding JMC not liable on the merits for racial discrimination. DONE AND ENTERED this 24th day of April, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2008.
The Issue Whether signs were properly permitted and whether the subject sign violated the set back requirements of state and federal law.
Findings Of Fact Subject signs were not properly permitted and subject sign on U.S. 1 North was nearer than 660 feet from the nearest edge of the right of way.
The Issue The issue for determination in this proceeding is whether Respondent used racial epithets in two separate incidents at school and, if so, whether Respondent should be dismissed or otherwise disciplined for such conduct.
Findings Of Fact Petitioner is the Superintendent of Schools for the Broward County School Board (the "School Board"). Petitioner is statutorily required to recommend the placement of School Board personnel and to enforce employee compliance with applicable statutes, rules, and regulations. Respondent is employed by the School Board, pursuant to the provisions of a professional services contract. Respondent is an art teacher at Markham Elementary School in Broward County, Florida ("Markham"). Respondent was so employed for the school year 1991-92, but was suspended without pay on or about June 2, 1992. Markham is predominantly African American. It is one of several pilot schools in Broward County, Florida required by the county to provide an African American Infusion Program and a Multi-cultural Department. The program includes a curriculum designed to make children aware of who they are, their background, and current events. Racial tensions exist at Markham between "clicks" in faculty, staff, and students and between faculty and students. The principal at Markham admonished Ms. Randy Laruso and Ms. Mary Washington, as leaders of the faculty clicks, for engaging in such activities. The principal prohibited racially divisive behavior and established a committee, including Ms. Laruso and Ms. Washington, to improve cohesiveness among the faculty. Racial tensions at Markham are so bad that some faculty members are not comfortable with the situation and others, including Ms. Laruso, have transferred. Respondent is an experienced, competent art teacher. Respondent has been a teacher for 23 years. Seventeen of those years have been in Broward County. Respondent spent the last six years teaching in Broward County. Respondent's evaluations for the past six years in Broward County have been satisfactory with no notations that she needed any improvement. Respondent is considered by her principal to be very knowledgeable and competent as a teacher. Respondent was conducting an art class for fifth grade students on December 5, 1991. The class included students from Ms. Mary Washington's fifth grade class as well as three handicapped students from Ms. Rosalyn Samuelsen's class who had recently been mainstreamed. One of the students from Ms. Washington's fifth grade class was Deshanda Henley. Plasticine, a clay that does not harden, was on the floor. Respondent asked Miss Henley to clean up the clay. She refused and asked Respondent "why white people don't like black people." Respondent did not answer but went to the back of the classroom, got a broom and dust pan, handed them to Miss Henley and again asked her to clean up the clay. Miss Henley refused explaining that "you don't make those crackers clean up the clay." When Miss Henley refused Respondent's request again, Respondent said, "The reason white people don't like black people is because they ain't nothing but a bunch of nasty niggers." Miss Henley became angry and called Respondent a "white cracker." The three students from Ms. Washington's class heard the racial epithet used by Respondent. The three students from Ms. Samuelsen's class were at an adjacent table and did not hear the slur. The teacher who was substituting for Ms. Washington on December 5, 1991, gathered Ms. Washington's students when Respondent's class was over. When they were back in Ms. Washington's classroom, Miss Henley reported the racial epithet to the substitute teacher in front of the entire class. There was a discussion among the entire class about the accusation. The substitute teacher sent Miss Henley to the administrative office to report the incident to the principal. Later that day, Miss Henley came to Respondent's class and apologized for calling her a "white cracker." The principal did not hear of the incident until the following Spring. Respondent continued teaching at Markham without incident for the next several months. In January or February, Miss Henley related the incident to Ms. Washington for the first time. Ms. Washington wrote a letter to the principal asking her to come to her class and talk to the students about the allegation that Respondent used a racial epithet in class. The principal went to Ms. Washington's class, listened to the accusations and student concerns, and told them she would look into it. In early March of 1991-92, Mr. Roderick Lester, an interim teacher at Markham that year, was holding a resource class in which he had sixteen or seventeen of Ms. Washington's students. During that class, Miss Henley raised her hand and related the incident to Mr. Lester. Mr. Lester took the students back to their class and informed Ms. Washington of Miss Henley's allegations. Ms. Washington held another discussion with her class regarding the incident. One of the students who heard the racial slur on December 5, 1991, told her parents about the incident for the first time in early March, 1992. When her parents learned that the incident had been reported to the administration on December 5, 1991, and that no action had been taken since then, they were angered. On March 3, 1992, the parents went to Markham to confront Respondent. The student's mother told Respondent that if Respondent used a racial slur again, "I'm going to jack you up." Respondent reported the incident to the front office. The principal was in a meeting off campus. Ms. Laruso was an acting administrator that day. Ms. Laruso called the police and reported the threat. When the principal returned to the campus, she was informed of the day's events. The principal called the parents who had threatened Respondent and asked them to return to the school. Respondent was not invited to meet with the principal or the parents. Nor was she contacted or otherwise advised that the meeting was taking place. The principal never contacted Respondent to ask her version of what happened in the classroom on December 5, 1991. The incident was reported in the local press and created much public attention. The principal contacted the School Board's special investigative unit ("SIU") on March 11, 1992, and requested an investigation into Miss Henley's allegations concerning the incident on December 5, 1991. Sandra Hart, an SIU investigator, conducted the investigation. Respondent was notified that an investigation had been requested concerning the incident on December 5, 1991. The investigation was expanded to include alleged use of racial slurs in front of administrative staff on March 23 and 24, 1992. Respondent was not formally notified until several months later of the additional allegations. By letter dated May 21, 1992, Respondent was suspended from her employment with pay and later suspended without pay. The additional allegations were raised in connection with a demonstration project promised by a representative from the Polaroid Company ("Polaroid") scheduled for March 24, 1992. Respondent was responsible for setting up a class to be put on by the Polaroid representative. Respondent arranged for 50 participants to take the class. For $15, each participant received three continuing education credits and a free Polaroid camera. On the afternoon before the camera class was to begin, Respondent was informed by a telephone call from one of her supervisors that the Polaroid representative would not attend the class unless his round trip air fare was paid. Respondent's supervisor stated that such an arrangement was not financially feasible and instructed Respondent to cancel the class and refund the moneys to the participants. After the telephone conversation, Ms. Lois Davis, the office manager and a registered participant in the cancelled class, asked what happened. Respondent advised Ms. Davis that the camera representative was not going to come. Respondent explained that "he's getting really niggly because he won't pay his plane fare." On March 24, 1992, Respondent was asked by another staff member why the demonstration class had been cancelled. Respondent stated that the Polaroid representative had refused to come unless his air fare was paid. The term "niggle" means to pay too much attention to detail. A "niggler" is one who niggles. Niggle is a word that is commonly used in Britain. Respondent's mother is British. Her husband is Australian. Respondent has visited her family in Britain and Australia on several occasions during the last few years. Respondent frequently uses the terms "niggle", "niggly", or "niggler" at school to describe her teenage daughters to other staff members. Respondent's use of the terms "niggle", "niggler", or "niggly" at Markham impaired her effectiveness in the school system. Such terms have a high probability for creating misunderstanding and ill will in the racially tense environment at Markham and, in fact, had such a result. Racial tensions are high at Markham. Clicks exist between faculty, staff, and students. Racially divisive behavior has been admonished and prohibited by the school's principal. Respondent's explanation is that she chose to use the terms "niggler", niggle", or "niggly" to communicate in such an environment because they are common words in British and Australian society. Respondent's disregard for the potential effect caused by her choice of words in her school environment and the actual misunderstanding caused by that disregard impaired her effectiveness. Respondent's use of the terms "niggler", "niggle", or "niggly" was imprudent in light of Respondent's previous history. Respondent received a written reprimand on August 21, 1990, for an allegation that she used a racial slur in an earlier incident. While other witnesses testified in connection with the investigation leading up to the written reprimand that they heard the racial slur, the student against whom the alleged slur was directed testified that he never heard Respondent use a racial slur against him. The written reprimand notified Respondent that, "Your failure or refusal to abide by this directive could result in disciplinary action up to and including a recommendation for your dismissal." Respondent signed the written reprimand without any admission of the alleged wrong doing. Respondent is an experienced teacher with the benefit of a formal education. Respondent has been a teacher for 23 years. Seventeen of those years have been in Broward County. Respondent has ample exposure to the racial diversity of Broward County and previous experience with accusations that she used racial slurs. Respondent should have been more mindful of the audience she was communicating with, more prudent in her choice of words, and more sensitive to the potential for misunderstanding under the circumstances. Respondent's use of the term "nigger" in the classroom on December 5, 1991, is an act of immorality within the meaning of Section 231.36(1)(a), Florida Statutes, and Florida Administrative Code Rule 6B-4.009(2). Respondent's conduct was sufficient and notorious to bring Respondent and the educational profession into public disgrace and disrespect and to impair Respondent's service in the community. Respondent's use of the term "nigger" in the classroom on December 5, 1991, is an act constituting misconduct in office within the meaning of Section 231.36(1)(a), Florida Statutes, and Florida Administrative Code Rule 6B- 4.009(3). Respondent's conduct impairs her effectiveness in the school system. Respondent's use of the term "nigger" in the classroom on December 5, 1991, constitutes gross insubordination or wilful neglect of duties within the meaning of Florida Administrative Code Rule 6B-4.009(4). Respondent's conduct is an intentional refusal to perform or attend to her duties by failing or refusing to follow the directive in the written reprimand.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent should be found not guilty of the charge of using a racial epithet on March 23 and 24, 1992, and guilty of using a racial epithet on December 5, 1991. Respondent should be suspended without pay from the date she was first suspended without pay through the date of the Final Order to be entered in this proceeding. Respondent should also be required to attend and satisfactorily complete the African American Infusion Program administered through the Multi-cultural Department at Markham or a comparable program of education and rehabilitation designated by Petitioner. Nothing in this Recommended Order shall be construed in a manner that precludes Petitioner from "non-renewing" Respondent's professional service contract in accordance with the applicable collective bargaining agreement. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of February 1993. DANIEL S. MANRY 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 19th day of February 1993. APPENDIX TO FINAL ORDER, CASE NO. 92-3552 Petitioner's Proposed Findings of Fact 1.-4. Did not cite to the record Accepted in Findings 7. Accepted in Finding 8. Accepted in Finding 12. 8.-9. Did not cite to the record 10. Rejected in Finding 19. 9. Accepted in part and rejected in part in Findings 7. and 18.-20. Respondent's Proposed Findings of Fact Accepted in Finding 2. Accepted in Finding 5. 3.-4. Accepted in Finding 7. 5.-6. Accepted in Finding 9. 7.-8. Accepted in Finding 10. Accepted in Finding 11. Irrelevant and immaterial, in part. Accepted in part in Finding 12. Accepted in Finding 13. Accepted in Finding 10. See Finding 14. Accepted in Findings 16.-17. 16.-17. Rejected in Finding 18. Accepted in Finding 19. Rejected as irrelevant and immaterial 20.-21. Accepted in Findings 20.-22. 22. Rejected as a truism. COPIES FURNISHED: Charles T. Whitelock, Esquire Whitelock & Moldof 1311 Southeast Second Avenue Fort Lauderdale, Florida 33316 Sally C. Gertz, Esquire FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Virgil Morgan, Superintendent Broward County School Board 1320 S.W. 4th Street Fort Lauderdale, Florida 33312
The Issue Whether the Respondent engaged in employment practices in violation of Chapter 760, Florida Statutes.
Findings Of Fact The Petitioner, Lakeyta Givens, is a black female, and was first employed by the Respondent on February 6, 2001. The Petitioner had no experience in the business of re- financing real property; however, the Petitioner was trained by the Respondent, and was given one promotion and a pay-raise. She became sufficiently knowledgeable and productive that she was tasked to train other employees. After she had been with the company for nearly two years, her supervisor wanted to step down for personal reasons. This opened up a position with greater responsibility and increased pay. The Respondent was a closely held corporation owned and operated by Anthony and Rachel Catanzeriti. Anthony Catanzeriti was the manager of the office and was there daily. His wife, Rachel, was the president of the corporation and was not there on a daily basis. She did, however, exercise primary control over the company. Anthony Catanzeriti asked the Petitioner if she would be interested in moving into the supervisor's position at a salary of $15.00 per hour, a raise of $5.00 per hour. The Petitioner indicated that she would be pleased to make the move. Mr. Catanzeriti indicated that his wife would have to approve the promotion, and that he would talk to her about the promotion. There was no action on the promotion for a long time. The Petitioner was concerned about the status of her promotion. The Petitioner heard during this time that Rachel Catanzeriti had stated that she "would not have a nasty nigger work in the company." The Petitioner asked to speak about her promotion with Mr. and Ms. Catanzeriti, but because of various mutual indispositions a meeting was delayed. On February 3, 2003, Rachel Catanzeriti came in to do some personnel work, and a meeting was arranged at which Mr. Catanzeriti was not present. From the content and progression of this meeting, it was clear that the Petitioner was concerned that she was not being promoted because of her race. The Petitioner immediately confronted Ms. Catanzeriti about the purported racial slur. Ms. Catanzeriti denied having made such a remark; however, she immediately became angry. The meeting never addressed the promotion because of Ms. Catanzeriti's anger. In an effort to de-escalate the situation, the Petitioner walked out of the office. Ms. Catanzeriti followed the Petitioner out of the office and between buildings continuing the heated exchange. The Petitioner asked her to discuss the racial epithet, and Ms. Catanzeriti, replied, "Let's talk about your big fat ass." Very shortly after this comment and within the same argument, Ms. Catanzeriti fired the Petitioner. Subsequently, the supervisor's position was filed by a white female, whom the Petitioner had previously trained. The Petitioner's work record was good, and her attendance was regular. She was unable to find employment until April 2004. After the Petitioner had been fired, U S Mortgage, Inc., was closed by the Office of the State's Attorney. The Petitioner reported that Mr. Catanzeriti was currently imprisoned out of state, and Ms. Catanzeriti was living in Texas.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That FCHR enter its final order directing that the Respondent desist from discriminatory employment practices and awarding the Petitioner $4,800.00 in damages for lost wages. DONE AND ENTERED this 6th day of May, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lakeyta Givens Post Office Box 293 Sanderson, Florida 32087 U S Mortgage, Inc. 28 West Macclenny Avenue, Suite 14 Macclenny, Florida 32063 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed the unlawful employment practices alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact At all times material to this proceeding, Petitioner, an African-American female, was employed by Respondent as a clerk coordinator in its Section 8 housing1/ department. As established during the final hearing, Petitioner's duties required her, among other things, to field inquiries concerning rental assistance, maintain records, receive applications, and, of particular importance here, conduct inspections of rental properties. As Petitioner was responsible for transporting herself to the inspection sites (at first in her personal automobile and, beginning in April 2012, in a county-issued vehicle), her written job description mandated that she hold a valid driver's license. Petitioner's term of employment, which began in 1990, proceeded largely without incident until September 19, 2013. On that occasion, Tom Baker——Petitioner's supervisor and the head of Respondent's Section 8 department——was engaged in discussions with the DeFuniak Springs Housing Authority concerning the development of a memorandum of understanding between the two agencies. At one point during the talks, DeFuniak Springs' housing director suggested that Mr. Baker confirm the status of his employees' driver's licenses. Finding the suggestion well taken, Mr. Baker immediately asked Brady Bearden, Respondent's loss control manager, to perform driver's license checks of the employees in the Section 8 department. Later in the day on September 19, Mr. Bearden informed Mr. Baker that Petitioner's license was not valid (due to her failure to maintain liability insurance), and that Petitioner's driving privilege had been continuously suspended since January 2, 2013——a period of more than eight months, during which Petitioner had operated a county-owned vehicle on numerous occasions. Although eager to address this issue with Petitioner, Mr. Baker was unable to do so until the morning of September 24, 2014, when Petitioner returned from a vacation. During the discussion that ensued, Petitioner erroneously insisted that she did, in fact, hold a valid driver's license. Upon being shown documentation that refuted her claim, Petitioner stated that she would clear up the matter with the clerk of court and return to work later in the day. Over the course of the next few hours, Petitioner obtained liability insurance and took the necessary steps to reinstate her driver's license. Later that afternoon, Petitioner returned to work and explained that she had trusted her daughter to secure automobile insurance for the both of them; that her daughter had failed to do so; and that she (Petitioner) had no knowledge of the suspension until Mr. Baker informed her as much. Predictably, this explanation did not sit well with Mr. Baker, who was troubled by Petitioner's acute lack of diligence in maintaining a valid driver's license——as noted above, a prerequisite of her position as a housing clerk coordinator. Shortly thereafter, Mr. Baker recommended to Respondent's human resources department that Petitioner's employment be terminated for violations of policies 31.4(A), 31.4(C), and 31.5(A), which provide: POLICY A. Any employee who loses the use of his/her driving privileges, whether knowingly or unknowingly, for any reason other than a temporary medical/disability condition, will be subject to disciplinary action, or transfer to another job classification, if available, for failing to meet the minimum qualifications of the job description. * * * C. Driving a County vehicle . . . without an appropriate valid driver's license . . . or failure to report the loss or use of a valid license, whether by suspension, revocation, or cancellation is subject to disciplinary action up to and including termination. POLICY A. Any employee who loses the use of his/her license shall report that fact to his/her immediate supervisor at the earliest possible time, and not later than the beginning of the next work shift. Failure to do so may result in disciplinary action. (Emphasis added). During the final hearing in this cause, Petitioner offered no direct evidence in support of her claim of race discrimination. Instead, Petitioner attempted to prove her case circumstantially by identifying two supposed comparators, Kendalleigh Marse and Jerry Tuggle, both of whom, according to Petitioner, were not terminated by Respondent despite their commission of similar misconduct. This approach fails, for neither Ms. Marse nor Mr. Tuggle is a valid comparator for the purposes of establishing a prima facie case of race discrimination. First, the undersigned is not persuaded that the driving privileges of the purported comparators were ever actually suspended.2/ Even assuming, however, that the record permits such a finding, it is evident that the suspensions were relatively brief, particularly when compared to Petitioner's.3/ Moreover, again assuming that the driving privileges of Ms. Marse and Mr. Tuggle were suspended for any period of time, there has been no showing that either employee ever operated a county-owned vehicle without a valid license. In any event, the record makes pellucid that, at the time of Petitioner's termination, no one in Respondent's employ was aware of any issues concerning the driver's licenses of Ms. Marse or Mr. Tuggle.4/ Even if the evidence were sufficient to raise an initial inference of impropriety, which it is not, Petitioner has failed to prove that Respondent's proffered reason for the firing——i.e., driving on a suspended license in a county-issued vehicle for more than eight months——is a mere pretext for race discrimination. On the contrary, the undersigned credits Mr. Baker's testimony that race placed no role whatsoever in Petitioner's termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief. DONE AND ENTERED this 1st day of December, 2014, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 1st day of December, 2014.
Findings Of Fact At all times material hereto, Petitioner has been employed by the Respondent as a multi-trades worker. On or about September 2, 1987, Petitioner was demoted from the position of multi-trades worker III to II, with a 5% reduction in pay. He currently remains in the multi-trades worker II position. Petitioner was demoted because he made discriminatory and derogatory racial remarks to employees under his supervision. Specifically, he referred to black employees as "niggers, sambos and blackies" on several occasions. He also told a female employee under his supervision that he would not promote her because she was a woman. Following his demotion, Petitioner appealed this action to the Civil Service Board of Hillsborough County. On or about December 16, 1987, the Civil Service Board upheld his demotion based upon its finding that Petitioner had "uttered racial slurs, racially derogatory remarks and other insulting and abusive language directed toward subordinate employees under his supervision over an extended period of time and on a number of occasions." On or about March 24, 1988, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations, and after investigation, a finding of No Cause was entered. Thereafter, Petitioner timely filed a Petition for Relief alleging that Respondent had unlawfully discriminated against him due to his national origin, Hispanic. No evidence in this record supports Petitioner's allegation.
Recommendation Based upon the foregoing, it is recommended that Petitioner's charge of discrimination against Respondent be DISMISSED. DONE AND ENTERED this 7th day of February, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1989. COPIES FURNISHED: Clemente Quintana 162 Venice Circle Land O'Lakes, FL 34639 Catherine P. Teti, Esquire Post Office Box 1110 Tampa, FL 33601 Margaret Agerton, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Donald A. Griffin Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
The Issue Whether Respondent, Wal-Mart Stores, East, LP (Respondent or Wal-Mart), violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Mary L. Smith (Petitioner), based upon Petitioner’s race, age, or in retaliation for her participation in protected activity.
Findings Of Fact As she describes herself, Petitioner, Mary L. Smith, is an 82-year-old, Black American woman. Petitioner has worked as an associate for Walmart since 2004 in Store 488 located in Quincy, Florida. During her employment with Walmart, Petitioner received training about Walmart’s core beliefs and open door policies. Throughout her employment at Walmart, Petitioner received wage increases and was not disciplined for the two incidents related to Petitioner’s Complaint, as further detailed below. In October 2014, while helping unload freight, Walmart Assistant Manager Saundra Davis saw Petitioner yelling at two other Walmart associates. Ms. Davis instructed Petitioner to go to the office, but Petitioner refused to do so. Next, Ms. Davis instructed Petitioner to clock out for the remainder of her shift. During the discussion, Petitioner informed Ms. Davis that she would leave the store only if she were escorted by police. Petitioner did not clock out. Rather, she refused to leave and completed her shift. Assistant Manager Davis considered Petitioner’s refusal to follow instructions an act of insubordination. Petitioner, however, was not reprimanded for this incident. Subsequently, in January 2015, all associates, including Petitioner, were instructed to go retrieve shopping carts left in the parking lot by customers. Petitioner refused to comply with that request. Instead, Petitioner became visibly upset and told everyone that she would not go outside. Afterward, Petitioner reiterated that she was not going to do as instructed by management. Once again, Ms. Davis instructed Petitioner to clock out for the remainder of her shift, but Petitioner refused. This time, Walmart management called police to escort Petitioner out of the store. As before, Petitioner was not reprimanded for the January 16, 2015, incident. Petitioner never complained to Walmart management that she was being discriminated against based on her race, age, or membership in any other protected category. Assistant Manager Davis denied harboring any discriminatory animus towards Petitioner, and the evidence did not otherwise demonstrate any such animus on the part of Ms. Davis or Walmart.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 25th day of March, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 2016.
The Issue Whether subject sign violates the set-back requirements and whether said signs are properly permitted.
Findings Of Fact Sign violates the sat-back requirement of Chapter 479. Sign has no current permit.
Findings Of Fact During the course of the final hearing in this case the parties agreed to an amicable settlement of the issues presented, and the stipulation of the parties was placed in the record. ~ The terms of this stipulation are that the Respondent agrees to take down the sign which is the subject of this proceeding, located on U.S. 441, 4.9 miles south of County Road 448 in Orange County, Florida, within 30 days after March 19, 1986. In the event that the Respondent fails to so remove the subject sign, the Department shall have the right to remove it without the consent of the Respondent and without further administrative or legal proceedings.
Recommendation It is Recommended that the Department of Transportation enter its Final Order in accordance with the stipulation of the parties as recited above, thereby concluding further proceedings in this case. THIS RECOMMENDED ORDER entered this 26 day of March, 1986 in Tallahassee, Leon County. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26 day March, 1986. COPIES FURNISHED: Vernon L. Whittier, Jr., Esq. Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301-8064 Enna C. Sinisi P. O. Box 913 Mount Dora, Florida 32757 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Bldg. Tallahassee, Florida 32301
