The Issue The issue addressed in this proceeding is whether Petitioner was the subject of an unlawful employment practice.
Findings Of Fact The Petitioner, Kenneth E. Brown (Brown) is a black male and is a person as defined within Chapter 760, Florida Statutes. He had been employed by Respondent Stone Container Corporation for several years. In 1989, Petitioner was employed as an electrician/maintenance repairman at the Corporation's mill plant in Panama City, Florida. Part of his duties was to perform preventive maintenance on the plant's machinery. Petitioner's work time did not include a 30 minute lunch allowed by the Company. Time cards were completed by Petitioner and turned in at the mill office. Stone Container Corporation is an employer as defined within Chapter 760, Florida Statutes. Throughout his employment the mill had a strict policy against an employee leaving work without advising his or her supervisor and working on personal property while the employee was on duty at the plant. Such violations of company policy could result in dismissal of the employee and had resulted in dismissal of both non-minority and minority employees in the past. The Corporation also had a policy on an employee keeping accurate records of the time spent on the job. Again failure to comply with this policy could result in dismissal of the employee. On October 8, 1989, Petitioner left work early to go to lunch without advising his supervisor and remained out to lunch for more than his allotted time. The Petitioner was out of the plant for one hour and 50 minutes (1:50). None of the time Petitioner took for lunch was reflected on Petitioner's time card. Petitioner's time card showed that he had worked eight full hours when he had not actually done so. Additionally, Petitioner used work time to work on his personal vehicle in the mill parking lot. Petitioner, was discharged by the Corporation a few weeks later for leaving his job without authorization from his supervisor and failing to reflect his extended absence on his time card. Petitioner made no showing that there was any relationship between his race and his termination. Likewise, Petitioner did not present any evidence that on October 8, 1989, he satisfactorily performed his job. Therefore, Petitioner has failed to prove a prima facie case and Petitioner's charge of discrimination should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations issue a Final Order dismissing Petitioners complaint. RECOMMENDED this 18th day of October, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1991. COPIES FURNISHED: Mr. Kenneth E. Brown, pro se 1014 Mercedes Avenue Panama City, Florida 32401 G. Thomas Harper, Esquire HAYNSWORTH, BALDWIN, JOHNSON AND HARPER Post Office Box 40593 Jacksonville, Florida 32203-0593 Dana Baird, General Counsel Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road, Building F (Suite 240) Tallahassee, Florida 32399-1570 Ronald M. McElrath Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue Whether Petitioner was discriminated against by Respondent, based upon his race in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is an African-American male. As such, he is a member of a protected class. Petitioner was employed as a co-manager at a Delchamps grocery store in Destin, Florida. The Destin store was a high- volume operation. In January 2001, Bruno's, Inc., acquired the Delchamps' Destin store and converted the store to a Bruno's supermarket. Petitioner was retained in the co-manager position while Bruno's conducted a full assessment of the staff and store. Under the Bruno's assessment, the company found several employees, including white employees, underperforming pursuant to Bruno's goals for high volume stores. Petitioner was one of the individuals found to be underperforming at the Destin store. On November 4, 2001, Bruno's moved Petitioner as a co- manager to a lower volume store in Niceville so that he would have a better opportunity to grasp management protocol under the Bruno's umbrella and develop professionally. During the same time period, another employee at the Destin store, Steve Aaron, who is Caucasian, was transferred to another store for the same reason. Petitioner’s duties and work conditions at the new store did not materially change. As before, all managers in the store, including himself, regardless of race, had the same hours, had the same working conditions in the store and closing the store, had the discretionary authority to hire additional staff as needed, and had an opportunity to use their discretionary authority in managing and operating the store. Petitioner’s pay and benefits at the new store, also, did not change. The transfer was abrupt since Petitioner was told to and did report to his new store immediately. The reason for the transfer was not fully explained to him. However, other than to inquire about the reason for the transfer, Petitioner did not complain about or object to the transfer even though he was aware of Bruno’s policy against racial discrimination and the various mechanisms to report such activity. There was no evidence that Petitioner’s transfer was based on Petitioner's race. Neither the abruptness nor the lack of explanation supports a finding that the transfer was based on Petitioner’s race since the transfer was part of Bruno’s review and adjustment process for the stores it had acquired, and other employees who were not members of Petitioner’s protected class were also transferred. Indeed, the evidence showed that employees of all races were and continue to be transferred from one store to another under Bruno's operations for business reasons, such as the reason that precipitated Petitioner’s transfer. Such employee development and training are legitimate, non-discriminatory reasons for the transfer of Petitioner to another store. Petitioner offered no evidence that demonstrated the reason for his transfer was pretextual. Moreover, Petitioner's first complaint based on race regarding his transfer was filed on January 14, 2003, more than a year after his transfer and is therefore time barred. In June 2002, Bruno's Supermarkets received separate complaints from four female employees at the Niceville store that Petitioner had subjected them to unwelcomed touching, rubbing, massaging and/or kissing. The complaining employees were Dawn Lawson, Christina Gore, Donna Ermilio, and Erin Epperson. None of the young women that placed complaints against Petitioner were at risk of losing their job nor did they have anything to gain in placing the complaints against Petitioner. Dawn Lawson was an assistant deli bakery manager and subordinate of Petitioner. She complained that while at work Petitioner would rub her arms, massage her shoulders, and kissed her once while she was on the phone. All the aforementioned was unwelcomed by Ms. Lawson and made her feel uncomfortable. Petitioner did not deny these actions, but thought he was making an effort to comfort Ms. Lawson who was experiencing some personal problems. Ms. Lawson also accused Petitioner of spending an inordinate amount of time in the deli area of the store. However, the evidence demonstrated that Petitioner had been instructed to closely monitor the deli operation because it was below the standards Bruno’s expected of its deli operations. Ms. Lawson also complained that while at work, Petitioner gave her several gifts of alcohol and a card in which Petitioner wrote, "Know you are a very special someone" and drew several ‘X’s and ‘O’s. Petitioner admitted to giving the alcohol and card to Ms. Lawson, but again thought he was being friendly and trying to comfort her. Petitioner denied drawing the ‘X’s and O’s on the card. However, Petitioner’s denial is not credible since the drawing is in the same type of ink as the writing and the letters are similar to the handwritten portions of the card. Additionally, on New Year's Eve, December 31, 2001, Petitioner gave Ms Lawson a miniature bottle of Southern Comfort. Later, Petitioner called Ms. Lawson twice at her home in the early morning between 1:30 a.m. and 3:00 a.m. Ms. Lawson felt very uncomfortable regarding these calls. Clearly, the kiss, the late night phone calls, and the note violated Bruno’s anti-harassment policy. More importantly, at the same time Petitioner gave Ms. Lawson the Southern Comfort, he gave Erin Epperson, a co- worker of Ms. Lawson, a miniature bottle of alcohol. Petitioner knew Ms. Epperson was 19 years old and under the age at which she could legally possess or drink alcohol. Petitioner denied giving Ms. Epperson any alcohol. However, given the demeanor and candor of the witnesses, Petitioner’s denial is not credible. Providing alcohol to a minor was in violation of state law, could have caused the store to lose its liquor license or incur other penalties, and violated the store's policy of not providing alcohol to minors. This act alone justified Petitioner’s termination. Donna Ermillio, a cashier, utility clerk, and a subordinate of Petitioner similarly complained that while she was at work Petitioner would rub her arms, massage her shoulders, compliment her arms, feet and hands and tell her she was beautiful and too much "of a woman to be as young" as she was. All the aforementioned was unwelcomed by Ms. Ermillio and made her feel uncomfortable. Again, Petitioner thought that he was trying to soothe Ms. Ermilio, who was clearly nervous around him. He noticed others’ hands and feet because he had a friend who was a hand and foot model. However, Ms. Ermilio’s complaints are consistent with the other complaints received by Bruno’s and show a pattern of intrusive behavior on Petitioner’s part. Christina Gore, a cashier, customer service representative, and subordinate of Petitioner complained that Petitioner rubbed her, massaged her, and kissed her while she was at work. All the aforementioned was unwelcomed by Ms. Gore and made her feel uncomfortable. Petitioner admitted kissing Ms. Gore because she had graduated from high school. The kiss occurred after her boyfriend had walked away and Petitioner, jokingly, told Ms. Gore that he couldn't have kissed her while her boyfriend was around. Again, Petitioner’s actions were overly intrusive. In response to these complaints, the company conducted a timely and thorough investigation. The investigation included interviews and statements from Petitioner, Ms. Ermillio, Ms. Lawson, Ms. Gore, and Ms. Epperson. The evidence did not demonstrate any deficiency in the investigation. At the conclusion of the investigation, the investigator, the district manager, the store manager, a representative from the legal department, and the human resources director met and reviewed the investigation and evidence. After all the aforementioned parties assessed all the evidence, the team unanimously decided to terminate Petitioner’s employment. Bruno's terminated Petitioner because he violated the company's anti-harassment policy and gave alcohol to a minor employee. There was no evidence that Bruno’s did not consistently apply these policies to other employees in its organization. The only evidence Petitioner presented regarding the consistent application of these policies was that a Danny Johnson allegedly sexually harassed Dawn Lawson and was not terminated and that a Dan Gaston also allegedly sexually harassed "someone." However, Dawn Lawson never complained to the company regarding Danny Johnson and testified that Mr. Johnson had never harassed her. Petitioner had no personal knowledge about Mr. Gaston's alleged harassment and could not provide any details. The human resources director for the store testified that no one had ever made a sexual harassment complaint against Mr. Gaston. Therefore, Petitioner failed to present evidence showing a similarly situated employee that allegedly committed the same acts as Petitioner and was not terminated. Based on the evidence, Petitioner had legitimate, non- pretextual reasons for terminating Petitioner, and this action should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing this action. DONE AND ENTERED this 16th day of June, 2004, 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 16th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Robert L. Young, Jr. 409 Elaine Avenue Fort Walton Beach, Florida 32548 Dan Burchfield Bruno's Food World 800 Lakeshore Parkway Birmingham, Alabama 35211 Faye R. Rosenberg, Esquire Corporate Counsel Bruno's Food World 800 Lakeshore Parkway Birmingham, Alabama 35211 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on December 27, 2005.
Findings Of Fact Petitioner is an African-American female who at all times material to this case was employed with Respondent as a production worker. Respondent, Hamilton Products, Inc., manufactures various animal related products such as horse tack and pet collars and is an employer within the meaning of the Florida Civil Rights Act. Allegations of Race Discrimination Petitioner's Employment Complaint of Discrimination alleged discrimination on the basis of race and retaliation and reads in pertinent part: I believe that I have been discriminated against based on race, Black, which has resulted in discipline, unfair terms and conditions, and denial of promotion. Since 2003, I have noticed disparate treatment between White and Black employees. One example of this is that Black employees are rarely if ever promoted to management positions. Another example of this is that a Black coworker of mine, Deloise, would often harass me and when I complained to my supervisor Mrs. Robinson, she took the matter to Mrs. Lake. Mrs. Lake merely asked the woman to not do that again. This harassment continued and I repeatedly complained about it so that finally, I was moved to a different location. A similarly situated White female, Elaine, experienced similar treatment from Deloise but when she complained Deloise was stopped from repeating the behavior almost immediately. I was very upset about this obvious disparity that I contacted Mrs. Benfel and explained to her what was transpiring. She asked me to gather together my complaints and those of others which I did and submitted it to her in a letter. Almost immediately after I began to receive retaliation for my complaint. I was disciplined, verbally harassed and moved away from the other employees. Martha Robinson is a supervisor employed by Respondent for over 16 years. She was Petitioner's direct supervisor for some of the time Petitioner worked for Respondent. Ms. Robinson is a white female. A coworker, Delores,1/ who sat near Petitioner would tap her foot on a wooden box while working. Petitioner found this annoying and complained to Ms. Robinson. Ms. Robinson asked Delores to stop tapping her foot and had fleece put on the box. However, Delores continued to tap her foot. After three or four employees complained about Delores' foot tapping, Ms. Robinson took the box away from Delores and put it in Ms. Lake's office. Karen Benfield is the office manager for Respondent, where she has been employed for 19 years. Petitioner went to Ms. Benfield's office to complain about working conditions. Ms. Benfield described the complaints made by Petitioner as vague and broad-based, consisting of general assertions that employees were unhappy at work. Petitioner's complaints to Ms. Benfield did not include any allegation of racial discrimination about her or anyone else. Ms. Benfield asked Petitioner for specifics, to put her complaints on paper and she would make sure management saw it. She did not ask Petitioner to solicit comments from other employees and told Petitioner she could only speak for herself. Petitioner collected written complaints from her co- workers and delivered them to Ms. Benfield. Petitioner received a Warning Notice dated October 26, 2004, for disruptive influence on the workforce. It read as follows: The purpose of this warning is to make sure that you understand the structure of Hamilton Products and the parameters of acceptable behavior at work. Lately, you have brought a number of suggestions and grievances to the management of Hamilton Products on behalf of yourself and others. There is no single employee representative to management at Hamilton Products. You do not and may not speak on behalf of other employees. Every employee at Hamilton Products, including yourself, enjoys the right to share ideas, suggestions or grievances with management. Such communication is encouraged as long as it is made properly. There is a clear chain of command at Hamilton Products, and you must follow that chain of command when communicating with management. You must speak to your immediate supervisor or place a suggestion in the box provided for suggestions at the north end of the nylon department. It is not acceptable to go around the chain of command to a higher supervisor, as this disrupts the operations of Hamilton Products. In the future, you must follow the chain of command or use the suggestion box, and speak only for yourself. Failure to follow the procedure outlined herein will result in further disciplinary actions up to and including discharge. After the hurricanes of 2004, Petitioner's entire department was reprimanded by the plant manager for missing work. This was upsetting to Petitioner because Ms. Robinson had told these employees not to call in. She felt that Ms. Robinson should not have let him "talk trash" to the employees. There is no evidence that Petitioner or anyone else was singled out in any way by the plant manager regarding this incident. Petitioner believes that white employees were given opportunities for promotion and resulting raises. However, no employees on the production floor were promoted during the time Petitioner worked for Respondent. There is no competent evidence in the record to support Petitioner's claim that white employees received promotions and black employees did not. At some point, Petitioner was moved when the production department was reorganized. Petitioner was placed in the center of the plant, facing the rest of her department. She had no one on either side of her which resulted in her not being able to talk to coworkers while working.
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 Employment Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 9th day of February, 2007, 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 9th day of February, 2007.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that this case be dismissed against Lear Limited with prejudice. DONE and ORDERED this 2nd day of December, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Seymour Benson, Esquire 605 E. Robinson Street Suite 320 Orlando, Florida 32801 Mr. John D. Threatt Post Office Box 13328 Orlando, Florida 32809
Findings Of Fact On or about May 14, 1985, Petitioner filed a Complaint of Discrimination against Respondent alleging discrimination based on his handicap. Petitioner was employed as medical director and physician with Respondent from July, 1984 until November, 1984 when he was discharged. He was denied reinstatement in December, 1984 and April, 1985. It is unrebutted that the sole basis for Petitioner's discharge was the fact that he has had a laryngectomy. It is readily apparent that Petitioner has had a laryngectomy, but also that he is capable of communicating with others by means of a voice prosthesis which is not visible to the public. Petitioner indicates, and there is no evidence to the contrary, that he is capable of performing all duties of medical director and physician, and that he has worked at other clinics since his discharge. Notice of the hearing was sent to Respondent at its business address, but said notice was returned by the Post Office with the notation, "Moved Left No Address". It appears that Respondent has closed its clinic. Notice was then sent to Respondent's President, Dr. Rudolph Bono, and said notice has not been returned by the Post Office.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued finding that Respondent has unlawfully discriminated against Petitioner based upon his handicap. DONE AND ENTERED this 18th day of December, 1986 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1986. COPIES FURNISHED: Wayne M. Carroll, Esquire Post Office Box 496 Lake Butler, Florida 32054 Dr. Rudolph Bono Harborage Condominiums 1631 Gulf Boulevard Clearwater, Florida 33517 Miles A. Lance, Esquire Post Office Box 4748 Clearwater, Florida 33518 Ronald M. McElrath, Coordinator Office of Community Relation Post Office Box 4748 Clearwater, Florida 33518
The Issue The issue is whether the Respondent committed an unlawful employment practice under section 760.10, Florida Statutes (2011), by discriminating against Petitioner on the basis of his national origin, or by retaliating against him, and if so, what remedy should be ordered.
Findings Of Fact The Department of Environmental Protection (DEP or the Department) is an agency of the State of Florida. The Guana Tolomato Matanzas National Estuarine Research Reserve (Reserve) in Ponte Vedra, Florida, is a part of the Department, managed under the Coastal and Aquatic Managed Areas Program (CAMA). The Reserve is essentially an institution for research and education, often involving partnerships with universities and other government entities. The Department has more than 15 employees. In July 2011, approval was granted to create a new position for an Environmental Specialist I to provide for the Geographic Information Systems (GIS) needs of long-term monitoring, modeling, and mapping projects at the Reserve. Dr. Michael Shirley is the director of the Reserve, a position he has held since 2007. He has been an employee with the DEP or its predecessor agencies since 1990. Dr. Shirley is also the regional administrator for the East Coast of Florida Aquatic Preserve Program, and in that capacity is responsible for overseeing the management of the Aquatic Preserves on the East Coast of Florida. Dr. Shirley is responsible for some 44 employees, including 34 at the Reserve. Since Dr. Shirley knew a lot about GIS from his research background, he was excited about the prospect of having a new GIS position at the Reserve. Dr. Shirley was very involved in filling the new GIS analyst position. He reviewed the approximately 20-30 applications for the position, helped select individuals to interview, and participated in interviews. Six applicants were ultimately chosen for interview by telephone or in-person by the selection team. While the testimony was not entirely clear as to the national origin of all of these individuals, one of them had a national origin from China and one, Petitioner Mr. Dasyam Rajasekhar, had a national origin from India. Mr. Rajasekhar‘s application and resume indicated that he held a master‘s degree in forestry from Stephen F. Austin University, was experienced in GIS, Remote Sensing, and Geo- Spatial analysis, and that he held a GIS Professional Certification. Mr. Rajasekhar did an excellent job in the interview. On his own initiative, he gave a PowerPoint presentation, which Dr. Shirley later made available to other staff. Dr. Shirley testified that he was ?very excited? about the prospect of Mr. Rajasekhar‘s coming on board and stated that, ?his resume, his credentials, were by far the best of the applicants we had received.? All of the members of the interview team supported him for the position. The team made a unanimous recommendation to the CAMA director, who had final approval authority, that Mr. Rajasekhar be hired. In October 2011, Mr. Rajasekhar was hired as an Environmental Specialist I at the Reserve by the DEP. On November 7, 2011, he acknowledged access to several Department administrative policies, including DEP 435, entitled ?Conduct of Employees? and DEP 436, entitled ?Discrimination and Harassment.? Mr. Rajasekhar was a probationary employee for the first year, as are all new hires, which meant that he could be dismissed without cause and that he did not have the right to grieve or appeal Department actions. After the initial year, a probationary employee becomes a permanent career service employee. This information was contained in DEP 435. Mr. Rajasekhar‘s GIS analyst position was supposed to be supervised by the watershed coordinator, but this position had not yet been filled, so Mr. Joseph Burgess, the resource management coordinator for the Reserve, reporting to the assistant director, Ms. Janet Zimmerman, was named as Mr. Rajasekhar‘s immediate supervisor. Mr. Burgess, Ms. Zimmerman, and Dr. Shirley were thus all three supervisors of Mr. Rajasekhar, moving up his chain of command, and none of them was a probationary employee. Mr. Burgess did not have any experience in GIS, so any detailed oversight of Mr. Rajasekhar‘s work product was conducted by Dr. Shirley. Mr. Rajasekhar‘s Position Description indicated that among other duties, he was to apply GIS tools and products to address resource conservation issues, develop inundation models to reflect the impact of projected sea level rise on local natural communities and public infrastructure, and develop GIS maps for National Estuarine Research Reserve System (NERRS) initiatives such as habitat mapping and change. Mr. Rajasekhar had excellent skills in performing ?high–end? geospatial analysis. He could look at satellite imagery and turn it into a product. Mapping products were used in every one of the Reserve‘s programs and were important in making decisions on land-use and the protection of Reserve resources. They were also very important to the grants obtained by the Reserve. Mr. Rajasekhar was well-qualified to do his job. One grant project, in place before Mr. Rajasekhar was employed, was from the University of Florida (UF) to map changes that would occur in wetlands due to sea level rise. Dr. Shirley was one of the Co—Principal Investigators on the project. Co- principal investigator status is conferred on the people who write the grant proposal. Another major Reserve grant was from the National Oceanic and Atmospheric Administration (NOAA), which funded 40 percent of the Reserve. It is very important for the Reserve to maintain these grant relationships, because these partnerships provide funds as well as visiting personnel to allow research to continue. On December 26, 2011, the Reserve hired Ms. Andrea Small as its Watershed Coordinator, reporting to Mr. Burgess. Under the new staffing plan, the GIS analyst was supposed to report to the watershed coordinator. As a new employee, Ms. Small was in probationary status. While Mr. Rajasekhar‘s ability to do high-end geospatial analysis was never in question, issues soon arose involving other tasks he was supposed to perform. He took longer than most employees in using basic computer programs, such as Microsoft Office programs, and staff complained to Dr. Shirley that he would keep asking them to perform the same basic tasks for him. Dr. Shirley‘s response generally was: He‘s new. Help him, because we help everyone. Let‘s get him –- you know, get him moving in the right direction. As time went on, the pattern did not change, and some staff members concluded that Mr. Rajasekhar was always going to ask them to perform certain tasks for him, so they took the position that they would show him something once, but then insist that he do it for himself the next time. Within the first three months of his employment, Mr. Rajasekhar made an appointment to meet with Dr. Shirley. At the meeting he firmly stated that he needed a pay raise. Dr. Shirley testified that in tone it was ?more strong than =asked,‘ but not quite a demand.? Dr. Shirley thought that the request was badly timed. State government was laying off workers, he had several other deserving employees who had not had a raise in several years, and Mr. Rajasekhar was still on probation. Raises had to be approved at the deputy secretary level, and Dr. Shirley felt that although Mr. Rajasekhar had good geospatial analysis skills, he could not justify putting him in for a raise. Dr. Shirley explained why the timing was bad and why he felt he could not make the case for giving Mr. Rajasekhar a raise just then. Mr. Rajasekhar took out a notebook and indicated to Dr. Shirley that he was writing down, ?[y]ou will not give me a pay raise.? Dr. Shirley felt that exaggerated effort at documentation was meant to infer some sort of discrimination on Dr. Shirley‘s part. Dr. Shirley explained that he was not treating Mr. Rajasekhar differently from anyone else. He told Mr. Rajasekhar that if any employee came in after only three months on the job, he would decline to put him in for a raise. Dr. Shirley told him that if he believed that this was some sort of discrimination, they needed to contact the Bureau of Personnel Services and talk to them. This seemed to de-escalate the situation, and Mr. Rajasekhar stopped writing. Mr. Rajasekhar said that he did not want to call the Personnel office, and indicated to Dr. Shirley that he understood the situation. When a ranger needed maps relating to a prescribed fire for resource management, Mr. Rajasekhar told the ranger that this was ?low-end? GIS work, that the ranger could do it himself, and that Mr. Rajasekhar would show him how to do it. Dr. Shirley testified that the ranger was unfamiliar with GIS software and that this was part of Mr. Rajasekhar‘s job. The Reserve had a limited number of employees and everyone needed to help everyone else to accomplish the Reserve‘s mission. Dr. Shirley felt that morale and teamwork were suffering. However, Mr. Rajasekhar ultimately completed the burn maps. Mr. Rajasekhar also had difficulty completing other more sophisticated tasks assigned to him. He asked Dr. Shirley to run Kappa statistics for him. Kappa statistics are commonly used in GIS work to correlate computer images with known reality in the habitat. Mr. Rajasekhar had indicated on his resume that he had developed a field sampling protocol to calculate Kappa statistics. Yet, Mr. Rajasekhar approached Dr. Shirley at one point and asked if Dr. Shirley would do the Kappa statistics on a project. When Dr. Shirley asked Mr. Rajasekhar why he was asking the director of the Reserve to do the statistics, Mr. Rajasekhar replied, ?[i]t needs to be done by a Ph.D.? Dr. Shirley testified that Mr. Rajasekhar later went to the research coordinator and asked the same question, but that ultimately Mr. Rajasekhar ended up doing the statistics himself. Mr. Rajasekhar‘s presentation at his employment interview and his credentials indicated that he could work with pollution loading coefficients and determine how water flowed and affected estuarine water quality. But, when Dr. Shirley asked him to conduct such an analysis, he replied that this work required a Ph.D.-level hydrologist. One of the first mapping projects Mr. Rajasekhar produced for Dr. Shirley involved flow ways, the way water flows through a watershed. Dr. Shirley was using the map in a meeting with Flagler County officials when he realized that Mr. Rajasekhar had indicated that in one canal water was flowing in opposite directions. When this was called to Mr. Rajasekhar‘s attention, he simply removed the arrow directions and started referring to the maps as ?flow lines? rather than ?flow ways.? The maps then didn‘t show the information that was needed, which Dr. Shirley explained to Mr. Rajasekhar. Mr. Rajasekhar stated in his applicant profile, ?[e]stuarine scientists would rate my knowledge of estuarine ecology at an experienced professional level.? Yet in working on a project in which a vendor was going to take satellite imagery, when it was necessary for Mr. Rajasekhar to determine the time of low tide, he asked Mr. Burgess how he could do this. Mr. Burgess had to show him how to read the NOAA tide chart. Within the same period of time, Mr. Rajasekhar also asked Dr. Shirley the same question, who showed him the same thing. In later conversations between Mr. Burgess and Dr. Shirley, they realized this had happened and discussed how odd this was, if Mr. Rajasekhar was an experienced professional of estuarine ecology. When asked to do a project, Mr. Rajasekhar would often say that in order to do it properly, he would need a certain amount of money, or new software, or additional hard drive space. Dr. Shirley would have to repeatedly explain that the Reserve was unfortunately on a limited budget and that a product would still be valuable if done under less-ideal conditions. Rather than delay the project, he would tell Mr. Rajasekhar that the analysis should be performed with the best technology practically available, and for Mr. Rajasekhar to annotate the data to indicate the level of accuracy. In early January, the Reserve was hosting a tour of the watershed for UF personnel working on the sea level rise project. The UF participants came over in two vans with lots of the students who were working on the project. The trip required four-wheel drive vehicles, and given the large number of people from UF and the limited number of vehicles, there was only enough room for a few Reserve personnel to visit the watershed. Dr. Shirley chose himself, as Director, Ms. Emily Montgomery, the coastal training program coordinator and a co-principal investigator on the grant, and Ms. Small, the watershed coordinator, who was giving the tour of Pringle Creek, one of her acquisition projects. Mr. Rajasekhar subsequently approached Dr. Shirley and said that he felt he had been excluded from the trip. Dr. Shirley explained why so few Reserve personnel could participate and why he had selected the ones that he did. In late January, when Dr. Shirley was on the road visiting a preserve site, the UF team asked Dr. Shirley which ?tiles? of LIDAR data were missing for Pellicer Creek, because they had decided to pick up the cost of filling in the missing pieces. The UF people were going to meet with the vendor that afternoon, so they wanted the information as soon as possible. Dr. Shirley e-mailed Mr. Rajasekhar to ask which tiles were still missing based on the map that Mr. Rajasekhar had shown him a month earlier. Mr. Rajasekhar‘s response only described background information regarding the map. Dr. Shirley replied that he only needed the number of tiles that were still missing. Again, Mr. Rajasekhar was argumentative and evasive: he gave explanations, but not the number of tiles that were missing. This dialogue went on for four or five e-mails. Ms. Small, who had been copied on all of the e-mails, finally e-mailed Mr. Rajasekhar to explain that all Dr. Shirley wanted to know was whether or not the imagery had been acquired and the number that were still missing. Mr. Rajasekhar finally provided that information to Dr. Shirley. Ms. Small and Mr. Rajasekhar were working in the same small office, which was only about 12 square feet, with their desks in opposite corners. After this incident, Ms. Small testified that Mr. Rajasekhar got up from his desk, put his hands on his hips, and said, ?[w]ell, I‘ve been excluded from the project, so I don‘t feel like I have to answer you,? or words to the effect. Ms. Small believed Mr. Rajasekhar was referring back to the UF watershed tour. Ms. Small felt that because she was a woman, Mr. Rajasekhar was not giving her the respect she deserved and that he was being insubordinate to her as his supervisor. Ms. Small told Mr. Rajasekhar that if he was going to be demeaning to her, he needed to leave the room. Mr. Rajasekhar did not leave, and Ms. Small decided that she should leave instead. After Ms. Small left the room, Mr. Rajasekhar e-mailed Dr. Shirley, with copy to Mr. Burgess, saying: ?A little while ago Andrea told me that I should not be working in this office and leave. Please let me know.? Mr. Burgess replied, ?Raj, You do not have to leave your office, continue working.? Dr. Shirley received complaints from both Ms. Small and Mr. Rajasekhar about the incident. Ms. Small told him she felt threatened and disrespected and Mr. Rajasekhar told him he felt as if his character had been attacked. Upon further inquiry, Dr. Shirley decided that Ms. Small had not been physically threatened, but rather that she was upset at Mr. Rajasekhar‘s ?posturing,? which she felt was inappropriate, as she was his supervisor. Dr. Shirley was very concerned with the misunderstanding that had occurred and with this type of interaction between his employees. Dr. Shirley was also concerned that he had not been able to easily get a simple answer from Mr. Rajasekhar. Dr. Shirley wanted to make things work. He wanted to get his employees working together and not lose the potentially very important contribution Mr. Rajasekhar could make to the Reserve. On January 30, 2012, Dr. Shirley met with Mr. Burgess, Ms. Small, and Mr. Rajasekhar to find out more details about the incident and to try to work out a plan for the future. In considering options to resolve the tensions, Dr. Shirley discovered after talking with Department personnel in Tallahassee that because Ms. Small and Mr. Rajasekhar were both serving in the position of Environmental Specialist I, that she could not technically be his supervisor, even though she had been serving in that role for about a month. On January 31, 2012, Dr. Shirley sent an e-mail to the three summarizing their meeting. The e-mail outlined several procedures to ?improve communication and efficiencies? with respect to GIS services. Among other items, the e-mail outlined that Mr. Rajasekhar would report to Mr. Burgess, Mr. Rajasekhar would provide a list of current GIS projects underway with milestones to completion, GIS projects would be completed using the best practically available data, notations would be made as to the accuracy of the product, and a summary report would be prepared by Mr. Rajasekhar at the completion of each project. The e-mail identified three projects as ?high priority?: SLAMM Model Inputs to the UF Team; the NERRS Habitat Mapping and Change Initiative; and the Reserve‘s Flow-Ways modeling effort. Dr. Shirley, Mr. Burgess, and Mr. Rajasekhar jointly developed a GIS analyst work plan for Mr. Rajasekhar. It listed seven major projects that he was to be working on, including the updating of ?burn maps,? SLAMM inputs to the UF group, the preparation of a GTMNERR Habitat Mapping plan, and generation of LIDAR based water flow ways. These projects included interim and final products, as well as due dates. Dr. Shirley was very pleased with the e-mail outlining workflow changes and the work plan, because he believed they reflected collaborative effort and he hoped and believed that they would improve operations at the Reserve and resolve some of the issues regarding Mr. Rajasekhar‘s employment. DEP Deputy Secretary Greg Munson was scheduled to visit the Reserve on May 25, 2012. Dr. Shirley prepared an agenda for the visit, establishing staff assignments and themes for various tours and briefings to complement DEP headquarters initiatives relating to restoration, ecotourism, and water resources. While some agenda items specified participation by specific staff members, Mr. Rajasekhar was not listed on any of these. Other items, including lunch at the Matanzas Inlet Restaurant, and a meeting with all Reserve staff, were open to everyone. Mr. Rajasekhar did not show up at the time and place scheduled for Deputy Secretary Munson to meet with staff, but Mr. Rajasekhar did meet with him for a short period shortly after the scheduled meeting time. Sometime in May, Mr. Rajasekhar e-mailed Dr. Kathryn Frank, head of the sea level rise project being conducted by the Reserve and UF, requesting that he be added as a co-principal investigator on the project ?for ethical reasons.? He did not let his supervisor, Mr. Burgess, or the director, Dr. Shirley, know that he was doing this. Dr. Frank explained to Mr. Rajasekhar that his contribution was appreciated, but that co-principal investigator status rested with the people who initially submitted the grant. Dr. Frank called Dr. Shirley to ask what was going on and to comment that the request was very strange. Dr. Shirley was concerned because of the important relationship between UF and the Reserve. On May 29, 2012, Mr. Rajasekhar was counseled by Dr. Shirley for inappropriately contacting the head of the UF project to request co-principal investigator status without even advising his superiors or getting their permission to do so. Mr. Rajasekhar indicated that he understood and would not do it again. On May 31, 2012, a meeting was held at UF on the sea level rise project. Dr. Shirley, Ms. Montgomery, Ms. Small, and Mr. Rajasekhar made the drive over. Mr. Rajasekhar was critical of the UF speakers and the SLAMM modeling that was presented. Dr. Shirley was not too concerned for the presenters themselves, because as scientists, he believed that they would be used to criticism. However, he later testified that he was concerned because Mr. Rajasekhar had offered no solutions, but had just criticized the accuracy of the model, with no constructive suggestions about how it could be improved. Then, during discussions at the meeting about emergency management issues relating to sea level rise and people getting away from the coast, Mr. Rajasekhar made the comment that he personally had a low income and would not be able to get out because he was at the poverty level. Dr. Shirley was concerned because he believed this personal reference was ?inappropriate,? that it was not true, and that it embarrassed the Department and presented the Department in a bad light. On June 4, 2012, Mr. Rajasekhar received an official ?oral? reprimand from Dr. Shirley for conduct surrounding the UF project team meeting and his comments regarding his personal income. The reprimand cited his behavior as a violation of DEP Standard of Conduct 435-7(a), Conduct Unbecoming a Public Employee. Mr. Rajasekhar was directed not to engage in further conduct that would bring discredit to DEP or to the State. The reprimand also noted that Mr. Rajasekhar ?barely spoke? on the two-hour drive to and from the meeting and did not walk with the rest of the delegation, but walked far in front of them. Dr. Shirley noted that this behavior was not unprofessional, but that it concerned him. The reprimand further advised that if Mr. Rajasekhar was having issues or problems that he felt he could not discuss with Dr. Shirley, that the Employee Assistance Program was available to him and to his family. When Mr. Rajasekhar was presented with the reprimand, he became defensive and argumentative. He denied having said that his income was at poverty level. However, Dr. Shirley did not believe this because the other Reserve employees present at the UF meeting confirmed that he had made that statement. Mr. Rajasekhar went on to tell Dr. Shirley that he felt he had been excluded from the Deputy Secretary‘s visit that occurred earlier in the month. Mr. Rajasekhar began talking about discrimination, saying that he had been a union representative at the Minnesota Department of Natural Resources and that knew what his rights were. Dr. Shirley was surprised at this response to the oral reprimand, because he considered it to be only a minor corrective action, not action leading toward dismissal or constituting significant discipline. Mr. Rajasekhar prepared a written response to the reprimand that same day. After presenting his differing recollection of the remarks regarding low-income housing and poverty-level incomes, his response went on to state in part: I appreciate you bringing your concerns about my behavior during the drive and the walk. Thanks for letting me know that the same is not un-professional. I participated in the work-related topics and fully acknowledge that I did not do so in non-work related topics (such as individual private matters). * * * Finally in future even if I am cautious, there inevitably would come some complaints that my conduct is unbecoming of a public employee in the eyes of some or few; for example when issues such as ethnicity/ demographics crop up. Would I then be subjected to more disciplinary action? Would minimizing (or possibly eliminating) my presence in public or other forums be helpful? Petitioner‘s presumably sarcastic reference to courses of conduct he should follow in the future when issues might arise involving ethnicity fell short of a direct claim that the oral reprimand was an act of discrimination. However, his response did indicate that Mr. Rajasekhar perceived some connection between his comments at the UF meeting, his national origin, and the reprimand. In response to Mr. Rajasekhar‘s statement during the meeting on the oral reprimand that he had felt excluded during the Deputy Secretary‘s visit, Dr. Shirley found the original e-mail that he had sent out to all of the staff with the agenda attached. Dr. Shirley forwarded this e-mail to Mr. Rajasekhar on June 4, 2013, stating that Mr. Rajasekhar had not been excluded and again explaining that due to the limited time, only a few aspects of Reserve functions that related to DEP priorities could be placed on the agenda. Shortly afterward, Ms. Zimmerman was coordinating preparation of NOAA Operations Grant progress reports. She sent out an e-mail at 12:38 p.m. on June 11 to several staff members, including Mr. Rajasekhar, explaining that two reports were due: progress report #4 on F0990; and the second progress report on F1001. Both of these reports were to cover the first half of the calendar year. She explained that she was attaching to the e-mail the remaining tasks from F0990 that she needed an update paragraph on, as well as a copy of progress report #3 so the staff could see what had been sent for the previous reporting period. She requested the update paragraphs by July 13, 2013, and advised that she would send out similar information on her request for the other grant report, F1001, shortly. At 2:37 p.m. on June 11, Mr. Rajasekhar replied to Ms. Zimmerman‘s e-mail by pasting two paragraphs from progress report #3 along with the following comments: I have gone through the documents and perused the items of relevance as requested by you. I seem to be in the dark and also somewhat confused. Below is the summary of what I just learned: (text pasted from progress report #3) * This is the first time; I am coming across this information in any significant way. I believe I have not been provided this document before for perusal. I have not been involved in any decisions either. (more text from progress report #3) * The above document contains much more information (GIS) and is concise (the way that would be ideal). However the information for most part is new to me. Flow ways update: I have not been privy to most of the information and neither have been involved (in any significant way) in any aspect of development. Habitat mapping and change plan Update: The same as above. Hence if you need professional, accurate and significant response from [sic], I request that I be more involved in the critical processes that produce these portions of the document so that I may be better equipped to do so. In addition it would greatly help some aspects of my work. Please let me know. Later that same afternoon, Ms. Zimmerman sent a second e-mail to several staff members, including Mr. Rajasekhar, specifically requesting input into the second progress report for NOAA F1001. She attached the original grant task text, as well as a copy of the previous progress report (July through December 2011) as an example of what she was looking for. The e-mail further identified the specific tasks each of the staff members was responsible for (Mr. Rajasekhar‘s were identified as Task 4, outcome 4; and Task 5, outcome 1), asking for an update paragraph by July 13, 2012. Ms. Zimmerman and Mr. Rajasekhar had further communications regarding the update paragraphs. He forwarded her e-mails he had sent earlier involving the two projects. She requested him to summarize this information into update paragraphs. He sent her another document. She asked him to carefully review her original e-mails and to submit an updated paragraph on each project. On June 12, 2012, Mr. Rajasekhar responded to Ms. Zimmerman, with copies to Dr. Shirley and Mr. Burgess, in part as follows: I have gone through the two documents (the relevant part). Both the documents contain information that is new to me for the most part. In addition, I have not been involved in producing or guidance of these documents. In fact very little of my time or efforts are spent on such activities. A very minor part of these large documents is in fact relevant to my performance. After spending significant time going through the documents and perusing the items of relevance, I am more confused. One document has items of relevance (4 & 1) as guided by you that I am not aware of till now. Had my work involved discussing or guiding these in any way, I would have been more equipped to adequately respond. More over when such documents come to my attention for response, I recommend that relevant part/s be sent to me so that I am not confused anymore and do not unnecessarily tax my time or efforts. These communications from Mr. Rajasekhar were not helpful to Ms. Zimmerman in preparing the progress reports. The tasks for which she was requesting update paragraphs from Mr. Rajasekhar involved the flow ways project and the Habitat Mapping and Change Plan, which were part of Mr. Rajasekhar‘s agreed-upon work plan and which had been identified as ?high priority? projects. Ms. Zimmerman sent an e-mail to Ms. Geraldine Austin, with copy to Dr. Shirley and Mr. Burgess, stating in part, ?[a]s a probationary employee the amount of oversight/direction needed of this employee and his response lead me to believe that termination is necessary.? On June 13, 2012, Dr. Shirley sent an e-mail to Mr. Larry Nall, interim CAMA Director, describing some of the incidents and concerns regarding Mr. Rajasekhar. In the discussion of the oral reprimand, the e-mail specifically mentioned Mr. Rajasekhar‘s references to discrimination. The e- mail also summarized the situation involving Ms. Zimmerman‘s attempts to update the progress reports for the NOAA grants. Dr. Shirley also forwarded the e-mail to Mr. Kevin Claridge, who had been hired to fill the open position of CAMA Director, but had not yet begun work. Dr. Shirley testified that he believed that the situations involving Mr. Rajasekhar were affecting staff, morale, teamwork, and the Reserve‘s partners. He found Mr. Rajasekhar‘s communications in response to requests from other staff members, including the assistant director and himself, to be often evasive and defensive. He believed that Mr. Rajasekhar defined his own duties very narrowly and that Mr. Rajasekhar‘s conduct and communications negatively impacted Reserve workflow and had the potential to damage the Reserve‘s partnerships. Mr. Rajasekhar was notified by letter signed by Mr. Kevin Claridge, Director of CAMA, that his employment was being terminated for failure to satisfactorily complete his probationary period, effective at close of business on June 29, 2012. This was a form letter used whenever it was found necessary to terminate the employment of a probationary employee. On October 5, 2012, Petitioner filed a complaint with the Commission, alleging that the Department had discriminated against him based upon his national origin, and had retaliated against him. In a November 7, 2012, Affidavit, Dr. Shirley set forth reasons for Mr. Rajasekhar‘s termination for submission to the Commission in response to Mr. Rajasekhar‘s complaint. It stated that Mr. Rajasekhar demonstrated ?inconsistent work performance and unacceptable behavior.? It noted that Mr. Rajasekhar had been counseled on occasions prior to his termination. It gave three reasons for Mr. Rajasekhar‘s dismissal: that his abilities were not consistent with the skills that had been reported on his job application, that Mr. Rajasekhar exhibited a defensive and negative attitude when confronted with expectations that were clearly within the scope of his job, and that on occasion Mr. Rajasekhar did not interact positively with other employees who depended on GIS support for their job functions. The Commission issued its Notice of Determination of No Cause on March 25, 2013, advising Petitioner of his right to file a Petition for Relief within 35 days. Petitioner filed his Petition for Relief on April 23, 2013. Mr. Rajasekhar was an excellent high-end geospatial analyst, but he had difficulty accepting any assignments not directly involving such analysis even though they were part of his job description. It is not entirely clear if this was because he was simply uncomfortable with some tasks, or unable to easily perform them, as appeared to be the case with some analyses involving hydrology or the calculation of Kappa statistics; or, alternatively, whether he simply felt such tasks were inappropriate for his position, which appeared to be the case with the preparation of burn maps and some tasks involving basic computer skills. In any event, his narrow definition of his job responsibilities adversely affected the work flow and made his work performance inconsistent. This affected team productivity at the Reserve. Mr. Rajasekhar never seemed to understand his role as part of the Reserve team. He made a request for a raise while still on probationary status, he made an inappropriate request for co-principal investigator standing directly to Dr. Frank without even notifying his superiors, and he indicated on more than one occasion that he believed he was being improperly excluded from events or activities at which his presence was not actually needed to support the Reserve mission. His relationship with other members of the Reserve team, including his superiors, was awkward, and at times his conduct was unacceptable and embarrassing to the Reserve. Mr. Rajasekhar was extremely sensitive to any comments about his performance. He became defensive and hostile at any suggestion that his performance was lacking in any way, and sometimes interpreted questions or comments that were not intended to question his performance as doing so. No evidence was presented to show that there were other probationary employees of the DEP who had received an oral reprimand and then continued to exhibit unsatisfactory behavior during the time that Mr. Rajasekhar was employed. Mr. Rajasekhar believed that he had been ?excluded? from the Secretary‘s visit and that there was a connection between his comments at the UF meeting, his national origin, and the reprimand. The comments Mr. Rajasekhar made in his oral and written responses to the reprimand to the effect that he had been discriminated against were statutorily protected activity. The actions of the Department toward Mr. Rajasekhar, and those of its employees, were not motivated in whole or in part by Mr. Rajasekhar‘s national origin. Mr. Rajasekhar‘s dismissal was not an act of discrimination or retaliation.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Mr. Dasyam Rajasekhar‘s Petition for Relief. DONE AND ENTERED this 11th day of September, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 11th day of September, 2013.
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 relevant to this proceeding, Petitioner, an African-American male, was employed by Respondent as a truck driver. In or around 1997, Respondent hired Petitioner as a forklift operator, a position he voluntarily abandoned (after roughly one year) to pursue other opportunities. Some six years later, in 2004, Petitioner returned to Respondent's employ as a truck driver. This second stint of employment continued until June of 2011, at which time Petitioner resigned his position——again, voluntarily——in order to "cash out" his 401K account. Tellingly, in his resignation letter, Petitioner thanked Respondent "for the opportunities [it] had provided [him] during the years," and noted that he "really enjoyed working for Mullins Lumber." Several months later, Respondent approached Petitioner about returning to his former truck-driver position. Petitioner agreed and resumed his employment with Respondent in August of 2011. For all that appears, Petitioner discharged his obligations suitably until the afternoon of August 14, 2012. On that occasion, Petitioner used a forklift to load materials onto his tractor trailer, a task he had performed numerous times. After the loading process was complete, Petitioner drove the forklift around the back of his truck and in the direction of the forklift shed. At one point along the way, it was necessary for Petitioner to make a blind turn around a truck belonging to a colleague, Wes Walker. Needless to say, such a maneuver presents a substantial danger to any person who might be nearby; for that reason, Respondent's forklift operator workbook, whose terms Petitioner was obliged to follow,2/ provides that drivers must: Slow down at cross isles [sic], exits, and blind corners; sound horn at once upon approaching any of these situations. (Emphasis in original).3/ Of the mistaken assumption that no other workers were in the immediate area because of inclement weather (a light rain was falling), Petitioner neither sounded the forklift's horn nor slowed to an appropriate speed as he negotiated the blind corner.4/ As a consequence, Petitioner accidentally collided with Respondent's vice president, Scott Mullins, who was conversing with Mr. Walker at the rear of the truck.5/ The evidence is undisputed that Scott Mullins suffered a broken tibia and fibula, injuries that required surgery and months of physical therapy to correct. Within hours of the accident, one of Respondent's owners and officers, Clarke Mullins, suggested to Petitioner (who was noticeably distraught) that he take the rest of the week off and return to work the following Monday. Petitioner agreed and departed the worksite shortly thereafter. Over the next several days, Clarke Mullins conducted a brief, yet adequate, investigation of the events of August 14, 2012. The investigation included an interview of Mr. Walker, an African-American, who confirmed that Petitioner's operation of the forklift was lacking. Upon the completion of his investigation, Clarke Mullins concluded that the accident of August 14 warranted the termination of Petitioner's employment.6/ Petitioner was thereafter replaced by an African-American driver some three years and seven months his junior.7/ During the final hearing in this cause, Petitioner offered no direct evidence in support of his claim of age discrimination. Although the age disparity between Petitioner and his replacement is sufficient to raise an initial inference of impropriety, Petitioner has failed to prove that Respondent's proffered reason for the firing——the accident——is a mere pretext for age discrimination. On the contrary, the undersigned credits Clarke Mullins' testimony that the accident was the sole basis for Petitioner's termination.8/ The charge of race discrimination fares no better. Petitioner's conclusory assertions notwithstanding, the record is devoid of any evidence, direct or otherwise, suggesting that Petitioner's termination was motivated by racial considerations. Quite the opposite, in fact: Petitioner was replaced by a member of his own race; and, as noted above, the undersigned credited Clarke Mullins' testimony that Petitioner was fired for the accident alone.
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 14th day of August, 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 14th day of August, 2014.
The Issue Whether Respondent committed the unlawful employment practice 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 Respondent is a construction company. Petitioner is a black male who was employed by Respondent for almost six years as an electrical helper until his termination on February 2, 2015. The incident giving rise to Petitioner’s termination occurred on February 2, 2015, in Port Everglades, Florida. On that date, Petitioner was working on a project as an electrical helper. Petitioner and another employee in the area of the work reportedly violated Respondent’s “Lock out/Tag out” (“LOTO”) safety policy. LOTO is required to cutoff electrical power whenever construction, modification, testing, start-up, servicing, or maintenance is being performed on equipment or systems in which the unexpected energization, start-up, or release of stored energy, could cause injury to people or damage equipment. Any employee of Respondent whose job requires him or her to operate or use a machine or equipment on which construction, modification, testing, start-up, servicing, or maintenance is being performed under a LOTO, or whose job requires him or her to work in an area in which such activities are being performed, must comply with LOTO. Petitioner and another employee reportedly failed to comply with LOTO in an area in which they were working on February 2, 2015. Respondent considers the failure of an employee to comply with LOTO to be a terminable offense. Both Petitioner and another employee in the area were discharged by Respondent on February 2, 2015, for failing to comply with the LOTO policy. The persuasive and credible evidence adduced at hearing demonstrates that Petitioner was terminated for legitimate, nondiscriminatory reasons having nothing to do with his race, color, or national origin. Petitioner’s charge of discrimination is based on speculation and conjecture, and Petitioner failed to prove that Respondent’s reasons for his firing are a mere pretext for intentional race, color, or national origin discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 19th day of December, 2016, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 19th day of December, 2016.
