Findings Of Fact The Petitioner was employed by the Respondent as an Accountant II on December 1, 1987 and in December of 1993, was promoted to Tax Auditor II. In September of 1991, the Respondent received a complaint regarding Petitioner from a taxpayer. The taxpayer alleged that the Petitioner had accused the taxpayer of attempting to sabotage the Petitioner's van. When questioned about the complaint, the Petitioner stated that the taxpayer had attempted to damage his van because the Petitioner had denied the taxpayer's refund claim. The Petitioner's supervisor investigated Petitioner's claims, counseled him and suggested that the Petitioner participate in the Employee Assistance Program (EAP). The Petitioner declined assistance. In October and November of 1992, the Petitioner began making bizarre allegations about his co-workers and supervisors engaging in outrageous and deviant sexual conduct and activities, and began to behave strangely. The Petitioner told his supervisors that his co-workers were engaging in sex with his mother, aunt, uncle and other members of his family. According to the Petitioner, these sexual activities were taking place in the office. The Petitioner was upset particularly at one co-worker, who Petitioner stated had moved in next door to him or into his neighborhood in order to spy on Petitioner. In addition, Petitioner stated that the "sex police" were observing him at Walmart. The police would get on top of his van to spy on him according to Petitioner. During this time, the Petitioner filed a "sexual harassment" complaint with the Respondent's Inspector General. Petitioner's statement to the investigators repeated the bizarre accusations outlined above regarding his co- workers. After investigating the Petitioner's claim, the Respondent's Inspector General found no evidence to substantiate these allegations and statements. Because the Petitioner's increasingly bizarre behavior, the Respondent became concerned about the Petitioner's ability to perform his duties as a Tax Auditor I. Therefore, the Respondent requested that the Petitioner go to a psychiatrist for an evaluation. The Petitioner agreed and went to the Apalachee Center for Human Services, where he was examined by Dr. Terence Leland, a psychologist and Dr. Inez Bragado-Spence, a psychiatrist. The evaluation consisted of three, one- hour interviews and various written tests. It was understood that the results of this examination would be shared with Respondent. Dr. Leland reported to the Respondent that the Petitioner had made delusional statements of the type made to and investigated by the Inspector General and found to be baseless. The Petitioner reported that co-workers and others were spying on him. The Petitioner reported alleged sexual liaisons at the office between various employees and supervisors. The Petitioner reported plots against him by various conspirators and "hit men" of the Respondent. Dr. Leland's diagnosis was that the Petitioner suffered from a delusional (paranoid) disorder, persecutory type. It was Dr. Leland's opinion that the Petitioner clearly needed treatment. Dr. Leland felt that the Petitioner could not perform his duties without treatment, and recommended requiring treatment as a condition of the Petitioner's continued employment. During this period, the Petitioner's job performance suffered. Based upon Dr. Leland's reports, the Respondent required that the Petitioner obtain treatment as a condition of continued employment. The Petitioner and the Respondent entered into an agreement which required the following as a condition of continued employment: Seeking psychiatric treatment within 40 days. Furnishing documentation that treat- ment had commenced and was continuing for as long as treatment was recommended. Following the prescribed treatment so long as it was recommended. The Petitioner commenced treatment in June of 1993, Dr. Prasad, a psychiatrist, prescribed medication for the control of Petitioner's illness and Suzan Taylor, a counselor associated with Dr. Prasad, held regular counseling sessions with Petitioner. As a result of his treatment, the Petitioner was asymptomatic, his work improved, and he was promoted to Tax Auditor II in December of 1993. In the summer of 1994, approximately one year after commencing treatment, Dr. Prasad and Suzan Taylor began to suspect that the Petitioner was no longer taking his medication when he again began making delusional statements. At the same time, the Petitioner's supervisor began to notice the reoccurrence of Petitioner's prior conduct. When confronted by his doctors in November of 1994 about the failure to take his medication, the Petitioner stated that he had quit taking it. He was given the option of getting shots of the same medication on a regular basis, but he declined. On November 18, 1994, the Petitioner had an altercation with a co- worker and received a one-day suspension. Dr. Prasad had diagnosed the Petitioner as having major depression with psychotic features of persecution and delusion. Dr. Prasad's opinion was that the Petitioner could not perform his essential job functions without treatment. On or about November 21, 1994, the Petitioner told his supervisor that his last visit to Dr. Prasad was on November 16, 1994. Dr. Prasad was contacted by Petitioner's employer, and Dr. Prasad issued a final report dated November 23, 1994, in which she stated that the Petitioner refused to take any further medication or follow her directions; therefore, there was nothing further she could do to help him if he refused her recommended treatment. She did not release Petitioner from treatment. The Respondent issued its proposed letter of termination based upon the Petitioner's refusal to continue treatment contrary to his agreement and the Petitioner's behavior on the job. In a response to the letter of termination, the Petitioner made bizarre statements about the co-worker with whom he had had the altercation with on November 18, 1994. At a pre-determination conference conducted by William Fritchman, the Respondent's Chief of Personnel and Training (at the time), it was suggested that the Petitioner go to another doctor for evaluation and treatment, if necessary. The Petitioner stated that he would not seek further medical help and stated that he would not take any drugs. The Respondent had real concerns about the Petitioner's ability to perform his job duties, his interaction with taxpayers, and potential harm to fellow employees. Based upon Dr. Prasad's diagnosis and opinion that Petitioner required continuing treatment and Petitioner's declining job performance, Mr. Fritchman issued the Final Action Letter of Termination citing the Petitioner's breach of the conditions of employment, as agreed in the letter of April 30, 1993, which constituted insubordination. Petitioner offered no evidence showing he was sexually harassed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's claim be dismissed. DONE AND ENTERED this 28th day of October, 1996, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1996. COPIES FURNISHED: Jack E. Franklin Post Office Box 572 Tallahassee, Florida 32302-0572 Gene T. Sellers, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32311-6668 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue to be resolved in this proceeding concerns whether the Respondent discriminated against the Petitioner because of his alleged disability.
Findings Of Fact The Petitioner, Charles H. Miller, was employed by the Respondent, Department of Transportation, for approximately 15 years. In October 1999, Mr. Miller injured his ankle in a work-related accident. He experienced chronic pain and mobility limitations as a result of the accident and continually received medication and psychological and/or physical therapy to help relieve the symptoms of his condition. Mr. Miller wore a brace on his injured foot and took various narcotic pain relievers. On May 2, 2001, Petitioner began seeing Lewis Fabrick, Ph.D., a licensed clinical social worker. Dr. Fabrick determined that Mr. Miller was suffering from depression, anxiety and stress that resulted partly from the pain from the physical injury and partly from the side effects of the medication. However, the Department was not aware of the nature or extent of Mr. Miller's mental or emotional issues. Prior to December 2000, Mr. Miller reported directly to Thomas Malerk, the State Materials Engineer. At that time, Mr. Miller was acting as the data center manager and supervised several other employees. Around November 2000, Mr. Malerk assigned another employee to supervise Mr. Miller and eliminated Mr. Miller's supervisory responsibilities. Mr. Miller's pay and benefits were not affected by this change. Mr. Malerk took this action to correct problems with the data center that had resulted in complaints about Mr. Miller and the data center. Mr. Miller's physical condition was not a factor in Mr. Malerk's decision to change Mr. Miller's job. In December 2000, Mr. Miller complained to the Department's ombudsman that coworkers were making fun of his ankle brace and physical limitation. Mr. Miller alleged that Mr. Malerk had joked about Mr. Miller needing a boot on the other foot to match and that the personnel officer, John Cooper, would pretend to "draw like a cowboy" in a manner that ridiculed Mr. Miller's condition. Mr. Miller also alleged that another co-worker, Gale Page, was harassing him by making fun of his physical limitations. Neither Mr. Cooper or Mr. Page had any supervisory responsibility over Mr. Miller. After receiving Mr. Miller's complaint, the ombudsman contacted Mr. Cooper and Mr. Malerk to inform them of Mr. Miller's concern. At approximately the same time, Mr. Miller also told Mr. Cooper that he was being harassed by Mr. Page, Mr. Malerk, and Mr. Cooper. When Mr. Cooper asked Mr. Miller to specifically identify the harassment that had occurred, Mr. Miller only specifically reported that Mr. Page had made fun of his walk or his leg. Mr. Cooper then informed Mr. Malerk of Mr. Miller's complaint and approached Mr. Page. Mr. Cooper told Mr. Page that he should refrain from making comments about Mr. Miller's condition. When Mr. Malerk learned of Mr. Page's remark to Mr. Miller, he reprimanded Mr. Page and requested that he apologize or otherwise clear the matter. Mr. Malerk also discussed the matter with Mr. Miller. Mr. Malerk apologized to Mr. Miller for anything he might have said that was insensitive and asked Mr. Miller if he had made any inappropriate remarks. Mr. Miller told Mr. Malerk that they did not have a problem and that he considered the matter with Mr. Page closed. Other than the incident with Mr. Page, and the accompanying accusations involving Mr. Malerk and Mr. Cooper, neither Mr. Cooper or Mr. Malerk had any reason to believe that any Department employee might be harassing Mr. Miller or making jokes about his injury or condition. Contrary to Mr. Miller's claim, the evidence does not indicate that either Mr. Malerk or Mr. Cooper even made fun of Mr. Miller's condition. Mr. Miller and Mr. Malerk have known each other since 1997 and were friendly with each other. On May 22, 2001, the Department dismissed Mr. Miller. The decision to dismiss Mr. Miller was based upon a number of violations of the Department's conduct standards, including Mr. Miller's insubordination, absence without authorized leave, display of an uncooperative or antagonistic attitude, and a violent outburst by Mr. Miller on May 21, 2001, when he was advised of the Department's intention to dismiss him. The issues relating to Mr. Miller's dismissal were fully litigated in a proceeding before the Public Employees Relations Commission, which culminated in a Recommended Order and Final Order upholding the Department's decision to dismiss Mr. Miller for violation of the Department's conduct standards. Mr. Malerk was responsible for requesting Mr. Miller's dismissal. Mr. Malerk requested Mr. Miller's dismissal for the violations of the Department's conduct standards that were included in the dismissal letter and was not motivated to request his dismissal in any part by Mr. Miller's physical problems.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of his race in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact No findings are made concerning the alleged discrimination. Petitioner did not appear and did not submit any evidence to support findings of fact. Findings are required concerning the adequacy of notice of the administrative hearing. On March 9, 2005, Petitioner, through his qualified representative, filed Petitioner's Request for Final Hearing and Petitioner's Request for the Reopening of Discovery. Petitioner received adequate notice of the administrative hearing. The Commission referred this matter to DOAH by cover letter dated July 19, 2004. DOAH assigned the matter to ALJ Fred L. Buckine and transferred it to the undersigned on October 26, 2004. The record shows that the two ALJs issued 10 notices or orders in this proceeding between August 12 and December 1, 2004.1 DOAH properly addressed, stamped, and delivered each notice and order by U.S. mail to the address of record for Petitioner, 1527 South Central Avenue, Apopka, Florida 32703. On and after August 30, 2004, DOAH also delivered a copy of each notice and order by U.S. mail to the qualified representative. The address of record for the qualified representative is the same as that for Petitioner. No notice or order was returned to DOAH as undelivered. During the four months preceding the administrative hearing, Petitioner declined to participate in discovery due to the poor health of his qualified representative. Respondent requested two continuances in an effort to complete discovery. Petitioner declined to complete discovery, and Respondent moved to dismiss for failure to complete discovery. Respondent alleged the qualified representative was "physically unqualified" to represent Petitioner. The undersigned denied Respondent's motion to dismiss and granted a motion for continuance filed by Petitioner on November 30, 2004. The motion for continuance was part of a document entitled, "Petitioner's Request for Continuance of Final Hearing and Injunctive Relief Against Retaliatory Termination" (Petitioner's Motion for Continuance). Petitioner's Motion for Continuance discusses numerous grounds for the continuance and only parenthetically states that his qualified representative was in poor health. The Order Granting Continuance and Re-scheduling hearing included the following notice to Petitioner: The undersigned deems Petitioner's motion for continuance to be based on the illness of Petitioner's Qualified Representative. Petitioner has had ample time to obtain a replacement for his Qualified Representative or to proceed pro se. The undersigned will grant no further continuances based on the illness of the Petitioner's Qualified Representative. Order Granting Continuance and Re-scheduling Hearing, dated November 30, 2004. Petitioner's Motion for Continuance expressly admits that Petitioner received delivery of relevant documents in this proceeding. In relevant part, Petitioner states: On or about November 25 and 26, 2004, the Friday and Saturday following Thanksgiving, Petitioner, who receives the mail in this case at his address for both him and his Qualified Representative (who has been repeatedly hospitalized during this case for the sudden occurrence of life- threatening congestive heart failure), received in those days' mail the following pleadings. . . . (emphasis added) Petitioner's Motion for Continuance at 6. Petitioner had actual notice of the administrative hearing. During the week preceding the hearing, staff at DOAH contacted Petitioner, in the normal course of prehearing procedure, and provided information concerning the date and time of the hearing. Petitioner had ample time between the last order continuing the administrative hearing and the date of the hearing to file any motion for relief to which he was entitled for good cause or extreme emergency. Petitioner did not file a motion for relief. Petitioner did not represent that no other person was competent or capable of representing Petitioner except for his qualified representative. At the administrative hearing, the undersigned telephoned Petitioner at a telephone number of record. Petitioner answered, and the undersigned asked Petitioner if he intended to attend the hearing. Petitioner refused to answer and directed the undersigned to Petitioner's qualified representative. DOAH provided Petitioner and his qualified representative with adequate notice of the administrative hearing, and the undersigned conducted the hearing. Petitioner chose to neither request a continuance of the hearing or attend the hearing. Petitioner now seeks to begin the process anew by filing post-hearing motions for an administrative hearing. The record does not support the remedy requested by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of March, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 2005.
The Issue On April 27, 1995, Petitioner filed a charge of discrimination alleging that Respondent discriminated against him on account of his race when it discharged him from employment. The issue for disposition in this proceeding is whether that discrimination occurred and, if so, what remedy is appropriate.
Findings Of Fact The Center for Drug Free Living Center is a not-for- profit corporation which operates substance abuse and juvenile justice programs in central Florida. It works in four counties with approximately 500 employees. The Center receives state and federal grants and contracts and also receives funds from United Way and various local governments. Approximately 5 years ago the Center expanded from a substance abuse treatment program into a program that also targets young juvenile offenders. Its largest facility for juvenile offenders is a 100-bed residential facility in Intercession City, Florida. That facility is called the Adolescent Residential Campus (ARC). Youths at the ARC are involuntarily committed for a variety of offenses, from property crimes to violent crimes against persons. ARC provides educational treatment, skills training, health care, and a broad range of residential services with the goal of returning the youths to productive lives in their communities. The entire ARC staff is trained in crises intervention. Dana Monroe is an African-American male who was hired by the Center on October 21, 1993, to work as a night monitor at the ARC. On June 15, 1994, retroactive to April 16, 1994, he was promoted to counselor and received a raise from $15,000.00 to $18,000.00. The new hire and promotion were both approved by the Center president, Donald J. "Jerry" Feulner. Bill Ferguson was the ARC program director when Dana Monroe was hired. Mr. Ferguson was a cordial, low-key professional administrator. When Mr. Ferguson left he was replaced with Scurry Miller sometime in late 1994. Mr. Miller's management style was very different from his predecessor's. As described by both superiors and subordinates, Mr. Miller was bold, abrasive, unorthodox, and strict. He began disciplining employees for matters which Mr. Ferguson had evidently ignored. Some employees found him a charismatic leader; others found him disagreeable and offensive. In December 1994, Dana Monroe received his first verbal warning for inappropriate use of physical force. A written memorandum documenting the meeting between Dana Monroe and Scurry Miller is dated December 15, 1994. A copy was provided to Finn Kavanaugh, the assistant director of ARC. The incident confirmed Mr. Kavanaugh's own observations of Dana Monroe's growing tendencies to yell and use physical intervention with clients or to inappropriately lose his temper. On March 3, 1995, Mr. Kavanaugh personally counseled Dana Monroe, by telephone, after Mr. Monroe failed to appear for work the preceeding day, March 2. Mr. Monroe's immediate supervisor, Vince Hennessy, an African-American male, had called Mr. Monroe at home when he did not appear for work and was told that Mr. Monroe was ill. The nature of the work and need for adequate staffing required that ARC employees give at least 2 hours prior notice for absenteeism due to illness. Also in the March 3 telephone conversation Finn Kavanaugh informed Mr. Monroe that Vince Hennessy had documented a written warning for Mr. Monroe's loss of professional composure with a client subsequent to the incident that was addressed by Mr. Miller in December. When asked what could be done to help him, Mr. Monroe denied that he had a problem. On March 31, 1995, Scurry Miller documented another verbal warning to Dana Monroe when two clients escaped while under his supervision. Mr. Monroe does not dispute the escape but claims that he was occupied with other clients at another location and was not responsible. On April 17, 1995, Finn Kavanaugh issued another written warning to Dana Monroe for two incidents of tardiness: April 2 and April 17. In a meeting that same date, among Mr. Kavanaugh, Mr. Miller, and Dana Monroe, Mr. Monroe became belligerent and abusive and refused to calm down. The meeting was terminated. On April 20, Scurry Miller and Finn Kavanaugh again met with Dana Monroe. Mr. Miller offered Mr. Monroe the opportunity to resign, based on his continued poor performance and lack of response to supervision. When Mr. Monroe refused to resign he was told that Mr. Miller would recommend his termination. As Center president, Jerry Feulner accepted the recommendation and Finn Kavanaugh notified Dana Monroe, by letter, that he was terminated effective April 21, 1995. There is no credible evidence that Dana Monroe's termination was based on racial discrimination. At the time of Dana Monroe's employment and continuing to the time of hearing, approximately half of the ARC employees were African-American; several of Mr. Monroe's immediate supervisors were African-Americans whom he conceded also disciplined him on occasion. Mr. Monroe heard Scurry Miller say "you guys" or "you people," but never any specific racial references. Those comments are not themselves evidence of racial animus and could be directed to any group, of any racial composition. Scurry Miller used profanity with staff and with clients and was counseled for that. White employees, including Mr. Monroe's witness, Ms. Parker, viewed him as disrespectful to all staff, not just the African-Americans or minorities. In June 1995, the Center hired Mr. Monroe's replacement, another African-American male.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Dana L. Monroe's charge of discrimination be dismissed. DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1999. COPIES FURNISHED: Dana L. Monroe 5116 Hernandes Drive Orlando, Florida 32810 Kimberly A. Wells, Esquire Jackson, Lewis, Schnitzler, & Krupman 390 North Orange Avenue, Suite 1285 Orlando, Florida 32801 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 34303-4149 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 34303-4149
Findings Of Fact Petitioner is a white female born April 23, 1933. She began work as a cook for Respondent in 1982, eventually working her way up to head cook. Respondent is Mid-Florida Child Care Division, a child care facility located in Brooksville, Florida, which is part of Hernando-Sumter Head Start. Either or both entities employs in excess of fifteen full-time employees. Petitioner went into the hospital in 1989 and had a craniotomy. A cerebral aneurysm was "clipped" with resultant subarachnoid hemorrhage. In other words, her initial situation was complicated by a cerebral vascular accident (CVA or stroke) which resulted in hemiparesis on the right side and some speech impairment. Thereafter, she was off work for a period of time. At all times relevant to these proceedings, Petitioner continued to have mild problems with fine motor control of the right upper extremity, found it difficult to locate and use the correct word when she was under stress, and was unable to write or do arithmetic. She is "aphasic," which, among other definitions, refers to an individual who retains full intelligence but who has difficulty with deliverance of that intelligence at times. On August 11, 1989, James R. Cummings, M.D., a general practitioner, released Petitioner to return to work with no mention of any residual impairment in her ability to work. Dr. Joseph C. Williams, M.D., Petitioner's treating neurologist, wrote that Petitioner "can return back to work without restrictions as of 8/15/89." Due to the length of time Petitioner has been off work, Respondent did not hire Petitioner back as head cook but as an undercook. In her absence, another woman had replaced her as head cook, and Petitioner started anew as a probationer in the lower position. There is no clear evidence as to how long her probation was to last or lasted. On August 11, 1989, Dr. Cummings performed a complete examination of Petitioner on behalf of Respondent and by a September 12, 1989 form, informed Respondent that he and Dr. Williams concurred that Petitioner could return to work but "continues to have mild problems with fine motor control of R [right] upper extremity, some difficulty with word finding at times." By communication of October 16, 1989, Dr. Williams stated, in pertinent part, that: She [Petitioner] was released back to full work duties. This does not mean that the patient, at this time, is able to tolerate a full working day. It is my opinion that the patient's activities are unrestricted at work but I do feel, based on her current examination, as well as history, that she, at this point at least, is ready only for working one half day. Because Petitioner could not write and had trouble working a full day, Respondent permitted her to work only a four- hour day as an undercook. At some point after her return to work, Petitioner missed 3-5 consecutive days of work one time due to her mother's death and another time due to a second stroke/seizure. It is not clear whether she missed work of several eight-hour days or several four-hour days on those two occasions. Several employee witnesses expressed the belief that Petitioner missed several days of work on other occasions, but some of these witnesses seemed to think she was always working eight-hour days. Petitioner denied such absences or did not remember them. No contemporaneous absentee records maintained by the employer were introduced into evidence. She was not cited for absenteeism and the absences seem to have been of more concern to co-employees than to supervisors. For those reasons and because it is not clear whether Petitioner was working four or eight hours on those occasions, it is not possible to accurately determine how many hours of absences she had. Upon the foregoing evidence, it is found that Petitioner's absenteeism was not chronic and was not a source of constant concern to the Respondent's employer. On February 9, 1990, Dr. Williams notified Respondent that Petitioner was: ". . . doing extremely well after suffering a neurologic problem. At this point, I believe that the patient can return to her full duties working full time without restrictions." On March 8, 1990, Dr. Cummings wrote the Assistant Director of Mid- Florida Child Care Division, Head Start, in response to a letter inquiry of hers which is not in evidence, and stated, in pertinent part as follows: In regard to the two page job description given to me for dietary aide grade I, September 19, 1988: The patient should be able to perform all of the activities which are listed, one through twenty-one on the first page and one through thirteen on the second page. As you know Dr. Williams has given the patient a complete release to return to work, with some understanding of the basic duties of her job. From all indications from notes from Dr. Williams as well as from the speech therapist, Peggy Cockin, and from my own evaluation and questioning of the patient, she should be able to perform the above duties without major difficulty. She does occasionally have some mild difficulty with word finding and her speech is somewhat staggered, but totally appropriate and understandable. The patient gives indications to me that she has been able to perform her functions without major difficulties; that on occasion it has been difficult, but work is hard at times for anyone. Unless someone can give evidence that the patient is not functioning properly in her work setting, I see no reason that she shouldn't continue in her current occupation, based on my understanding of her current capabilities. On March 14, 1990, Dr. Williams advised Respondent's Assistant Director, Viennessee Black, in pertinent part, as follows: Constance Fiedorowicz is a patient under my care. She, at this time, is showing a very good recovery from her neurologic event. At this time I feel that Constance can perform all of the duties that you have listed. The only stipulation I would have is that the patient seems to have some difficulty with expressing herself, particularly if she becomes nervous, as well as, in writing. Otherwise, her mental faculties seem to be intact and at this point, at least based on my examinations in the office, I feel that she probably would be able to perform the other tasks that are outlined. The only way of knowing for sure would be to have the patient attempt to do the tasks and evaluate her performance of these. Petitioner testified that she was assigned the job of transporting food to the "Bypass School," a location different from her usual cooking location and that job was taken away from her upon the grounds that she allegedly had a weak leg and could not use the car brake quickly and accurately. She denied that she had any problem with a car brake. No other witness indicated any direct knowledge of why Petitioner was removed from this task, although many had "heard" she could not use the car brake pedal. In any case, she was reassigned to work in one location which apparently corresponded with her pre-handicap duties. On one occasion, while performing her kitchen tasks, Petitioner broke a cup and cut her hand. Her hand bled, but she did not know it until she saw the blood. The same was true of some nicks she made with a knife on her thumb. These incidents caused great concern to her coworkers, but not to Petitioner. The employer made no contemporaneous record of these incidents. A record was made of an incident on March 26, 1990 which occurred when Petitioner either put a dutch oven in a sink of hot water or bumped her left arm, the side unaffected by the stroke. This incident resulted in a "knot in a vein" swollen under the skin on Petitioner's left hand or forearm. The injury responded to elevation and subsided within five minutes. Petitioner continued to work. Only a bruise remained when Petitioner left early for speech therapy that same day. The employer required that some workers' compensation forms be filled out due to the March 26, 1990 incident, but none were offered in evidence. There is no evidence that Respondent had to pay workers' compensation or medical benefits to Petitioner as a result of this incident. One time, Petitioner forgot and left a knife in the freezer and another time she left a knife in among the canned goods. There was some unfocused concern by the new head cook and co-employees about sanitation on these occasions, but the employer offered no evidence to show how a knife, among intact cans of food or solidly frozen goods, could cause an unsanitary condition. Petitioner made some errors in counting lunches. The United States Department of Agriculture (U.S.D.A.) reimburses Respondent per child per meal. Petitioner's errors in counting sandwiches resulted in the Respondent not being reimbursed by the U.S.D.A. for two units at the end of one month. This was a rather serious financial loss in the opinion of the new head cook, but the actual monetary cost was never explained nor was it explained in relation to the number of children or meals the Respondent services; therefore, there is insufficient evidence upon which to find Respondent's counting error caused a substantial monetary loss to Respondent. The biggest functional problem that Respondent was able to demonstrate was that Petitioner sometimes ran dish water too hot for co-employees to use, used it herself when co-employees thought it was too hot for her, grabbed trays without gloves after being warned the trays were too hot and got burned, and grabbed one coworker too hard with her right hand instead of grabbing a pot. However, one coworker, Pinkie Bostic, who testified to most of these incidents, was of the opinion that Petitioner "could probably do the job if not around hot things like pots and water." One coworker testified that Petitioner had begun to have a personality change shortly before her stroke. However, it is not clear from this witness' testimony whether Petitioner's alleged personality problem manifested itself before the 1989 operation and CVA, which occurred while Petitioner was still head cook, or whether the alleged personality problem occurred later, just before a second stroke or seizure which occurred at some unspecified time after the Petitioner returned to employment as an undercook with Respondent (See Finding of Fact 11 supra). Petitioner and all the other employees who testified at formal hearing specified that when Petitioner returned to work after her operation and stroke she began to be difficult to get along with and it was then that she was frustrated and "touchy" in dealing with coworkers. Upon the foregoing, it is found that Petitioner's "touchiness" only began when she first evidenced aphasia after the operation/first stroke and came back to work as an undercook and that her "touchiness" continued thereafter through the second stroke/seizure. Petitioner also had at least two serious emotional outbursts about being unable to sign in or out on her timesheet and what she could do and/or was allowed to do on the job. These incidents were complicated by Petitioner's anger and frustration at not being able to adequately express herself orally when under strain. Petitioner perceived her co-employees as uncooperative with her due to their lack of understanding of her aphasia. She felt they treated her as "retarded." She testified that they intervened whenever she tried to do food preparation and cooking chores and would not allow her to complete those chores, thus making her frustrated and angry. Petitioner's co-employees testified that Petitioner had made this same complaint to them and each stated that they had offered advice as to how she should do things and had taken jobs away from her occasionally because they feared she would cut or burn herself. Petitioner also had complained to co-employees about being left by them to do only the dirty work, including but not limited to mopping up. Supervisors and Petitioner's adult daughter testified that mopping up was part of Petitioner's job description but not all of it. Tracey Ramsey, the new head cook, testified without refutation, that on some occasions, Petitioner refused to do the work that was intentionally left over for her to do because her co-employees were not talking to her. Petitioner's adult daughter and her husband observed Petitioner prepare food at home both before and after each stroke. Petitioner's husband and daughter observed that Petitioner could do her own cooking at home at all times. The daughter observed Petitioner prepare food on the job after the first stroke, and confirmed that after the first stroke, Petitioner was "protected" by Ms. Cummings, a supervisor, who would not let her do much and who would stop Petitioner from doing more complex tasks and send her to wash pots and pans instead. It is undisputed that washing pots and pans was also part of Petitioner's job description. The daughter observed that Petitioner could do her physical food preparation job but no longer could do its paperwork. On April 26, 1990, Petitioner had a three-hour conversation with Ivory J. Gray, Respondent's local director, in which Petitioner expressed her frustration on the job, asked that Ms. Gray give her another leave of absence without pay, and said she was considering quitting. Ms. Gray told Petitioner she did not have the authority to grant a further leave of absence and would have to refer the request to her own supervisor. That evening, a staff meeting was held in Lake Panakoffsky. Petitioner requested that Linda B. Blevins, Educational Consultant, read a prepared statement from Petitioner to the staff. Permission for this reading was secured from Ms. Gray, and the prepared statement was read. This document was not offered into evidence. However, upon the credible testimony of Petitioner and Ms. Blevins, it is found that regardless of others' perception of this document, Petitioner's prepared statement was meant to convey her frustration with the work situation and that she intended to "stick it out" and persevere with overcoming her disability, particularly her speech problem, and with holding her job. In the parking lot after the staff meeting, Petitioner and Ms. Gray had a conversation. Ms. Gray testified that on that occasion, Petitioner told her: "Friday will be my last day," meaning Petitioner was quitting her job. Petitioner denied that she quit. Martha Lawson testified that she overheard Petitioner tell Ms. Gray she was quitting. Petitioner's husband observed the physical location of all three women in the parking lot and testified that Martha Lawson was not even in the vicinity of the conversation between Petitioner and Ms. Gray. Respondent has consistently relied upon this conversation to show that Petitioner voluntarily quit her employment and was not fired. Regardless of what was said or understood or misunderstood in the parking lot conversation, that conversation is not determinative of this case because Petitioner orally and by all of her subsequent conduct, including reporting for work each day, evidenced her desire to retain her job, and because Respondent subsequently reacted as if Petitioner could remain employed if she were medically fit to do so. Petitioner reported to work as usual on Friday, April 27, 1990. Neither she nor any supervisor said anything about her quitting. On Monday, April 30, 1990, Petitioner again reported to work as usual. At that time, Viennessee Black was directly supervising Petitioner. Ms. Gray telephoned Ms. Black to say Petitioner had resigned. Ms. Black told Ms. Gray that the Petitioner was working there as usual. Ms. Gray then composed a memo which read in pertinent part: As per our conversation on the evening of April 26, 1990, at the Staff Meeting; you informed me that you were resigning, effective Friday, April 27, 1990. Ms. Gray presented Petitioner with the memo and asked her to sign it as a letter of resignation. Petitioner refused, asserting that she had not resigned. Respondent ceased to pay Petitioner and would not let her perform her job after April 30, 1990. Petitioner sought to continue to work. The situation became acrimonious with the Respondent employer giving consideration to psychological counseling for Petitioner with and without the participation of her co- employees. On June 15, 1990, a two hour conference was held with a psychologist, Dr. Bernard Lax, Petitioner and her husband, Ivory J. Gray, Michael Georgini, Director of Head Start, and Viennessee Black. Petitioner was again asked to provide specific information regarding her medical status, prognosis, and job analysis from her physicians and the speech pathologist. She was told that a decision would be made regarding her employment upon receipt of this information by the Head Start Program. Mr. Georgini asked to meet with Dr. Williams. Petitioner authorized the meeting. An appointment for the meeting was made for July 3, 1990. The results of this meeting, if it actually took place, are not in evidence. Petitioner thereafter submitted no further written medical assessments to Respondent. On July 3, 1990, Petitioner's speech/language pathologist wrote Mr. Georgini in pertinent part: Her speech rate is considered to be 80-90% fluent. She continues to experience some hesitations of speech when feeling "rushed" but she is fully capable of discussing almost all everyday problems or topics if given time to respond and not interrupted [sic]. She now has the foresight to know her strengths and limitations and well [sic] ask for assistance either with speech or a task. Comprehension of conversation and verbal information is well within the normal adult level. Connie continues to have difficult [sic] with writing and arithmetic calculations. Connie si [sic] fully aware of these limitations and will be the first to admit her inability to do so. This is not to say that she is not capable of using measuring device but rather would not be able to calculate a budget, or write a check, etc. She is capable of copying words and numbers without difficulty. Emotionally, Connie has had to regain her courage, confidence and self worth. She is fully aware that others around her do not understand her "Aphasia" and may acquaint this to a retardation disorder. As you know, an aphasic individual retains full intelligence but has difficulty with deliverance at times. Connie has always had a strong sense of determination and motivation. She has also learned the art of being able to laugh at herself and her mistakes. On July 23, 1990, Ms. Gray wrote Catholic Social Services saying the Respondent would not pay for counseling for Petitioner after her July 9, 1990 session.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter a Final Order which: Cites the Respondent for an unlawful employment practice and orders Respondent to cease and desist such practice. Orders Respondent to pay Petitioner the equivalent of salary and all emoluments for four-hour workdays for all workdays from April 30, 1990 until Respondent re-employs her. Requires Respondent to re-employ Petitioner in a job description commensurate with her handicapped capabilities. RECOMMENDED this 22nd day of February, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1993. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-2681 The following constitute specific rulings, pursuant to S120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: Accepted that Petitioner did not voluntarily resign. The characterizations of burdens of proof and legal arguments are rejected. Immaterial in part unproven in part. In response to specific questions of the undersigned, Petitioner replied that pay stopped 4/30/90 and she was kept off premises as of July. Accepted that Petitioner demonstrated behavioral problems prior to one stroke or seizure but not dispositive. Covered in Findings of Fact 11 and 22. Subordinate and non-dispositive, but covered in substance. Immaterial, but covered in substance. Respondent's PFOF: The "Statement of the Issues" is treated as "Proposed Findings of Fact." 1. Rejected as not proven, as legal argument, and as a different point in time than that under consideration. 2,3,4,5 Rejected as not supported by the greater weight of the record evidence and as conclusory, not a proposed finding of fact. Covered in Findings of Fact. "Findings" is also treated as "Proposed Findings of Fact". Rejected as not supported by the greater weight of the credible evidence. Rejected as not supported by the greater weight of the credible evidence. Rejected as not supported by the greater weight of the credible evidence. COPIES FURNISHED: Constance Fiedorowicz 460 Hale Avenue Apt. 20 Brooksville, FL 34601 Ivory J. Gray, Director Mid Florida Community Services, Inc. Post Office Box 896 Brooksville, FL 34605-0896 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, FL 32303-4113 Dana Baird, Esquire General Counsel Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, FL 32303-4113
The Issue The issue is whether Respondent engaged in an unlawful employment practice by subjecting Petitioner to gender discrimination and retaliation in violation of the Florida Civil Rights Act.
Findings Of Fact Southgate is a student housing and dining facility located in Tallahassee, Florida, near the campuses of Florida State University, Florida A&M University, and Tallahassee Community College. On September 16, 2004, Southgate hired Petitioner Devon Rozier as a dishwasher in the cafeteria dish room. The cafeteria is open seven days a week and currently employs approximately 34 employees, some part-time and some full-time. Petitioner had just turned 16 years old when Ken Mills hired him based upon a long-standing relationship with Petitioner's father, who had worked at Southgate for many years and was an exemplary employee. Petitioner worked as a part-time employee on the night shift, 3:30 p.m. until 8:00 p.m., for a total of 20-25 hours per week. Petitioner later received a promotion out of the dish room to the grill, and also worked other positions such as attendant and greeter. Petitioner also worked in various positions to assist as needed, as did other employees in the cafeteria. At the beginning of his employment, Petitioner exhibited good performance. As time progressed, Petitioner's performance began to decline, and he openly disrespected management. Various disciplinary techniques were employed by his supervisors in efforts to improve his performance, but the improvements always proved to be short-lived. On April 30, 2009, Petitioner and his supervisor, Rasheik Campbell, had an altercation, and Petitioner left the facility. Mr. Campbell warned Petitioner before he left the facility that such action would constitute job abandonment. Despite Mr. Campbell's warning, Petitioner left the facility. Mr. Campbell took the position that Petitioner abandoned his employment with Southgate. Petitioner was no longer placed on the schedule. On May 4, 2009, Southgate sent Petitioner a letter confirming his resignation. As months passed, Petitioner made attempts to regain his position with Southgate by calling his supervisors Mr. Campbell and Mr. Jason McClung. When his attempts were met with resistance by his supervisors, Petitioner bypassed them and went directly to Ken Mills, Southgate's General Manager and Petitioner's former supervisor. Petitioner presented his case to Mr. Mills in July and August 2009, regarding his desire to return to work. Mr. Mills had previously intervened on Petitioner's behalf, out of respect for Petitioner's father, to help him keep his job when difficulties with management had arisen. This time, Mr. Mills instructed Petitioner that Mr. McClung and Mr. Campbell were his direct supervisors and that they had ultimate responsibility regarding his desired return to work at Southgate. In August 2009, at the request of Mr. Mills, once again doing a favor for Petitioner based upon the long-standing work history of Petitioner's father at Southgate, Mr. Mills, Mr. McClung, and Mr. Campbell met with Petitioner and his mother, Jennifer Rozier. At the meeting, they discussed Petitioner's request to return to work at Southgate. During the meeting, Mr. McClung and Mr. Campbell did not feel that Petitioner exhibited any improvement in his behavior and respect for authority. As a result, Mr. McClung and Mr. Campbell chose not to re-hire Petitioner. Petitioner claims the following conduct he witnessed while working at Southgate was discriminatory: a) females were allowed to sit down at tables and eat while on the clock; b) females were allowed to use the computer while on the clock; and c) Petitioner was required to perform the females' work when they failed to show up or wanted to leave early. Petitioner further claims that his firing was retaliatory based upon one complaint he made to Mr. Campbell in February 2009 about having to perform the tasks of others who failed to come to work. Other employees, including Jodece Yant, Petitioner's girlfriend, and Darnell Rozier, Petitioner's own brother, testified that both males and females could be seen eating or using the computer while on the clock, and all were told to perform others' tasks when they failed to come to work or left early. Petitioner conceded that on occasion he engaged in the same behaviors he alleges to be discriminatory. Petitioner obtained a full-time job at Hobbit American Grill on January 21, 2010, and, as of the date of the hearing, continued to work there. His rate of pay at Hobbit American Grill is currently $7.25 per hour, and he testified he is better off there than at his former employer, Southgate. Petitioner is currently earning the same hourly wage ($7.25) as he was earning when employed at Southgate. Southgate had policies and procedures in force that prohibited, among other things, discrimination on the basis of gender or any other protected characteristics. Southgate's policies and procedures also prohibited retaliation. Petitioner received a copy of the employee handbook, which contained Southgate's anti-discrimination policies and was aware that Southgate had such policies in place.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of November, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2010. COPIES FURNISHED: Desiree C. Hill-Henderson, Esquire Littler Mendelson, P.C. 111 North Magnolia Avenue, Suite 1250 Orlando, Florida 32801 Micah Knight, Esquire 123 North Seventh Avenue Durant, Oklahoma 74701 Devon A. Rozier 7361 Fieldcrest Drive Tallahassee, Florida 32305 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on his age.
Findings Of Fact The following Findings of Fact are based on the testimony adduced at the final hearing, matters subject to official recognition, and the entire record in this proceeding. Title 49 C.F.R. § 391.1(a) provides that “[t]he rules in this part establish minimum qualifications for persons who drive commercial motor vehicles as, for, or on behalf of motor carriers.” During the time relevant to the instant case, 49 C.F.R. § 391.41(a)(1)(i) mandated that “[a] person subject to this part must not operate a commercial motor vehicle unless he or she is medically certified as physically qualified to do so. . . .” Title 49 C.F.R. § 391.41(b)(6) specifies that a person is qualified to operate a commercial motor vehicle if he “[h]as no current clinical diagnosis of high blood pressure likely to interfere with his ability to operate a commercial motor vehicle safely ” A driver of commercial motor vehicles must obtain the aforementioned certification every two years. See 49 C.F.R. § 391.45(b)(1)(mandating that any driver who has not been medically examined and certified during the preceding 24 months must be medically examined and certified in accordance with § 391.43 of this subpart as physically qualified to operate a commercial motor vehicle).1/ CRST Trucking initially hired Mr. Williams approximately 15 years ago as a commercial truck driver. At that time, Mr. Williams was 75 or 76 years old. Mr. Williams regularly performed drives for CRST Trucking that exceeded 1,000 miles. On one occasion, he drove an 18-wheeler from Florida to California and back. According to Mr. Williams, CRST Trucking wrongfully terminated him in 2010 because he supposedly was unable to safely get in and out of his truck. After he passed the required medical examination, CRST Trucking rehired Mr. Williams in 2015 when he was 88 years old.2/ At some point thereafter, Mr. Williams’ employment with CRST Trucking ended again. Mr. Williams reapplied with CRST Trucking in 2017 when he was 90 years old. After he failed the 2017 examination because his blood pressure exceeded the allowable limit, CRST Trucking did not rehire him. Mr. Williams does not dispute that his blood pressure was high during the examination, but he attributes that to his failure to take his blood pressure medication beforehand. While Mr. Williams testified that CRST Trucking hired younger drivers, he presented no evidence that CRST Trucking hired younger drivers who failed to obtain the required certification. Mr. Williams was a very compelling and articulate witness and should be commended for his strong desire to continue being a productive member of society. Even though Mr. Williams failed to present a prima facie case of age discrimination, the undersigned is convinced that he is capable of performing meaningful work as an employee or a volunteer.
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 Howard B. Williams’s Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 26th day of February, 2019, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 26th day of February, 2019.
