Findings Of Fact Petitioner Linda Mae Krueger, a white female, became a manager at One Stop Oil's Riverview, Florida, store on April 1, 1986. Petitioner's first immediate supervisor was Mr. Tom McBeth, area supervisor for six stores. Mr. McBeth was replaced by Mr. John Richardson on January 26, 1987. Upon becoming area supervisor, Mr. Richardson implemented certain changes in the manner in which all store managers under his supervision were to perform their duties. Petitioner disagreed with Mr. Richardson's changes and failed to follow some of Mr. Richardson's instructions regarding these changes. Petitioner developed a great deal of hostility towards Mr. Richardson and refused to accept the fact that the changes in operation were within Mr. Richardson's managerial capacity. The basis of Petitioner's claim of discrimination was Mr. Richardson's attempt to implement operational changes which Petitioner disagreed with and which were clearly not sexually discriminatory in nature. At the hearing, Ms. Krueger testified that she felt like she was treated unfairly by Mr. Richardson, but admitted that Mr. Richardson placed the same requirements on all other store managers. Petitioner, in June of 1988, told Mr. Richardson that she was considering leaving employment during the beginning of July. Petitioner marked on her store's calendar that she was leaving employment on July 2, 1988. Petitioner, on August 12, 1988, again gave verbal notice to One Stop Oil that she was separating employment with the company on August 27, 1988. At the time the Petitioner gave One Stop Oil this verbal notice of separation, Petitioner was planning to move with her family to North Carolina. On August 17, 1988, Petitioner quit her position as store manager at One Stop Oil's Riverview store. She quit because of a pay dispute over the amount of her bonus check. Petitioner and her husband expected a larger check. When Petitioner's husband saw the actual amount of the check he called the Jacksonville office of Respondent and told them he was closing the store and they had "better get somebody down there." Petitioner and her husband then left the store. Respondent sent Mr. Richardson to the store. He called in Cheryl Chipman and began accounting for the store receipts. He discovered that $1,700 in deposits was missing. Petitioner had given the deposit money to her husband on the day the check dispute arose. Petitioner's husband could not adequately account for the missing money. 1/ Respondent obtained Petitioner's store keys from her without any discussion. The keys were voluntarily turned over by Petitioner. Petitioner never reported for work afterwards. Petitioner's position was filled by Ms. Cheryl Chipman, a white female.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the petition against Respondent be dismissed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of January, 1989. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1989.
Findings Of Fact Vince Campbell was employed as a corrections officer for the Alachua County Department of Criminal Justice Services from 1985 until his termination on August 8, 1991. Numerous incidents led up to his termination. During 1985-1987, Campbell had repeated problems with tardiness and absenteeism, for which he received numerous disciplinary actions including warnings and suspension at no pay. On August 2, 1989, Campbell was arrested by the Alachua Police Department for multiple charges including resisting arrest with and without violence. Campbell was observed running two stop signs. When he was stopped, he became agitated and refused to give his name or driver's license. He resisted arrest and struggled with the officers. One officer was injured. At the police station, Campbell continued to struggle and kicked an officer in the stomach. Throughout this time, Campbell was exhibiting vast mood swings and was alternating among belligerence, laughing, crying, and making irrational threats, such as telling the officers that they would have to kill him before he would let himself be taken to the jail in which he worked. After Campbell was released, he was advised that he could return to work pending resolution of the criminal charges. Nevertheless, Campbell failed to appear for work on August 3 or 4, 1989, and did not call in to advise that he would not be at work. He received a warning for his failure to come to work or call in. On April 23, 1990, Campbell instigated an incident at work which involved his verbal abuse, pounding on a window, cursing and yelling at coworkers and finally publicly giving the finger and saying "fuck you" to a coworker. He received another warning for that incident. Campbell received another warning and letter of reprimand on May 14, 1990, for an incident where his negligence allowed an inmate to receive money belonging to another inmate. On May 5, 1990, Campbell was again arrested for resisting arrest, battery on a law enforcement officer and breach of the peace. This arrest occurred in Union County even though Campbell was on probation for the first criminal offenses and was not allowed to leave Alachua County without permission of his probation officer. The Union County arrest involved an altercation which occurred at a hospital after Campbell had taken his brother there for treatment of injuries received in a melee at a local bar and dance hall. Campbell was cursing and yelling at the nurses. The Union County Sheriff, Jerry Whitehead, went to the scene and Campbell screamed and swore at the sheriff. When he was told to leave the hospital, he refused and he was placed under arrest. He resisted arrest and fought with Sheriff Whitehead and a deputy, causing injuries to the sheriff. As a result of that incident, Campbell was suspended with pay until May 25, 1990, at which time he was suspended without pay pending resolution of the charges. Sentencing occurred on July 8, 1991, and Campbell met with his superiors on July 11, 1991. Major Garrahan, Chief of Security, proposed termination on July 17, 1991, and held a pre-termination hearing on July 29, 1991. As a result of Garrahan's recommendation and having reviewed all the relevant information, the Department Director, Walter P. Byrd, terminated Campbell on August 8, 1991. In addition to the incidents described above, Byrd also had information regarding other events involving Campbell. On one occasion, Campbell was at the firing range for routine in-service firearms instruction. While on the line with his firearms, he was displaying severe mood swings, including alternately laughing hysterically and crying and becoming angry when one of the instructor cautioned him about safety on the firing line. All firing had to be delayed while Campbell regained his composure. He had to lay his shotgun on the ground to wipe tears from his eyes. On another occasion at the firing range, Campbell requested to speak with "Melda," a fellow officer. He was anxious, nervous, and crying. He told Melda that he was seeing officers hiding in the woods around his house and that they were after him. Campbell was referred to Employee Assistance for a review of his mental state and stability. Byrd was also advised that Campbell's driver's license had been suspended on two occasions because of failure to pay traffic fines, but Campbell had not advised his employer that his license was suspended. Possession of a valid driver's license is one job requirement for a correctional officer. Byrd considered the arrests and convictions, Garrahan's recommendation, the in-house incidents, Campbell's emotional stability and the danger to Campbell's safety and that of inmates. He was very concerned that the County may be exposed to liability for Campbell's actions and apparent volatility and uncontrolled outbursts, if Campbell remained employed by the department. Byrd did not believe that Campbell was fit for continued employment because he was not emotionally stable. Byrd is black, as is Campbell. At no time was race a consideration in Campbell's termination. Campbell alleges that two white male employees were reinstated with back pay despite similar criminal charges. However, Campbell presented no evidence to support these allegations. One of the others resigned rather than be terminated and the other was not shown to have had similar charges or to have been reemployed by the department.
Recommendation Based upon 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 filed by Vince Campbell. DONE and ENTERED this 4th day of November, 1992, in Tallahassee, Florida. DIANE K. KIESLING 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 4th day of November, 1992. COPIES FURNISHED: Robert M. Ott Litigation Attorney Office of Alachua County Attorney Post Office Box 2877 Gainesville, FL 32602-2877 Vince Campbell Post Office Box 964 Alachua, FL 32615 Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32303-4149
The Issue In her charge of discrimination Ms. Alexander alleges that her employer created a hostile work environment and unfair conditions of employment when it singled her out as a thief of a stolen purse, denied her overtime, disciplined her for the size of her earrings, and made insulting statements about African Americans. The issues in this proceeding are whether that discrimination occurred, and if so, what relief is appropriate.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the FCHR enter its final order dismissing the complaint by Felicia A. Alexander against Dynair. DONE AND ENTERED this 2nd day of August, 2000, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Felicia A. Alexander Post Office Box 549 Sanford, Florida 32772-0549 Gabriel G. Marrero, Administrator Dynair Services, Inc. Two Red Cleveland Boulevard, Suite 205 Orlando-Sanford International Airport Sanford, Florida 32773 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent engaged in discriminatory employment practices contrary to Chapter 760, Florida Statutes, as alleged in the Charge of Discrimination filed by Petitioner.
Findings Of Fact Petitioner is a 51-year old white male currently employed by ACS, formerly known as Concera Corporation, which is an employer within the definition of Chapter 760, Florida Statutes. Respondent operates a call center that provides information on Medicaid and other programs to residents of the state. Petitioner is a telephone counselor. Prior to coming to work for Respondent, Petitioner held many positions, principally in sales, with various companies. He worked in positions that would be described as entry-level to middle-management positions with these companies, prior to falling victim to reductions-in-force in the recent down-turn in the economy. After working for the state's employment service, setting up a program for mid- and upper-level executives seeking re-employment, Petitioner took his present position with Respondent. Since going to work for Respondent, Petitioner has applied for, from between five and twenty, various positions with Respondent. There was conflict regarding the number of positions for which Petitioner applied. Petitioner's testimony is deemed more credible. These positions were at various levels within the company's hierarchy and had varying levels of responsibility ranging from supervision of other telephone counselors to managing the call center itself. Petitioner has not been promoted. Petitioner has been given pay raises, has received training as a trainer for the company, and has consistently been eligible for incentive bonuses for his work. The loss of the additional income from these bonuses resulted in Petitioner leaving the training program for which no additional pay was provided, and that interfered with qualifying for bonus awards. His leaving the training program was considered a negative by his supervisors; however, his participation in the training program had little impact upon his consideration for promotion. Many of the recipients of Medicaid in Florida are Hispanic and Haitian. As a result, the contract Respondent has with the state requires that a portion of counselors be bilingual and speak Spanish or Haitian Creole French. Petitioner does not speak either language. This lack of language skill is given as the reason that Petitioner has not been promoted to the first line supervisory level. There have been four vacancies for first line supervisor for which he applied. Three vacancies were filed by persons who are bilingual, one male and two females. When one of those positions again became vacant, he applied the fourth time, and a Black female was promoted into the position who was not bilingual. Petitioner testified that he applied for many additional positions to include positions that were more managerial in nature. Respondent stated that they had no record of his applying for these positions. Petitioner testified regarding his application for positions and the procedures for applying for openings. His testimony is more credible. The process did not require filing a new application for openings when one had a recent application/vita on file. The basis for not promoting Petitioner for these positions was that he did not have experience managing call centers and was not bilingual. Respondent presented testimony that Petitioner lacked leadership skills, failed to show up well in interviews, and lacked experience. However, Petitioner was one of Respondent's most productive operatives and was selected to be a trainer for Florida and other states. In summary, Petitioner could not get to be a supervisor without being bilingual and could not be promoted higher without having supervisory experience in a phone center. While a significant number of the persons who were promoted in lieu of Petitioner were female, there were a number of younger men who were promoted, mostly into managerial positions. The evidence reflects that those who were promoted in lieu of Petitioner shared the fact that they were young, or Hispanic and bilingual, with the exception of Shonnice Booker, a Black female who was not bilingual. Respondent justifies its selection of these individuals by reference to its contract with the state requiring some of the counselors be bilingual in Spanish or Creole French. Information was provided by both Petitioner and Respondent on the various individuals who were promoted into the positions for which Petitioner had applied. The following is a summary of the information. Because Respondent was careful to point out all the individuals who were bilingual, in the case of those about whom no language information was provided, it is assumed the applicant did not have a second language. Positions in which language was an identified issue are indicated by (L) after the position title. "Principal reason" indicates summarily the reason given for the individual's promotion. The positions are listed by date: May 1999: Field Counselor: Sheila Slik; no language; female; race and age unknown. Petitioner's supervisor recommended him for the job; however, he was told by his supervisor, Judy Cooper, that Slik was being hired. June 1999: Deputy Operations Manager: Phyllis Underwood; no language, female, 30's. Principle reason: Managed contracts similar to the contract Respondent had with the state. June 1999: Call Monitoring Specialist(L): Miriam Ruez; bilingual; female, Hispanic; age unknown. Principle reason: bilingual. October 1999: Choice Counselor Supervisor(L): Gladys Hernandez; bilingual, female; Hispanic; 50's. Principle reason: bilingual. October 1999: Choice Counselor Lead(L): Tai Lee Ro; no language; female, 50's. Principle reason: Ro had been there six months. October 1999: Call Monitor Specialist(L): Johnny Gonzales; bilingual; male; Hispanic; 30's. Principle reason: bilingual. March 2000: Call Center Supervisor (Kidcare): Johnny Gonzales; bilingual; male; Hispanic; 30's. Principle reason: bilingual. March 2000: Call Monitor Specialist(L): Lourdes Colorado; bilingual; female; Hispanic; age unknown. Principle reason: bilingual. May 2000: Deputy Operations Manager: Unfilled. June 2000: Field Choice Supervisor: Unfilled until a later date. No information on incumbent provided. July 2000: Scheduling/Quality control Supervisor: Mike Dalvon; no language; male; age unknown. Principle reason: managed large call center. July 2000: Call Center Supervisor: Ida Safari; bilingual; female; Hispanic; age unknown. Principle reason: bilingual. November 2001: AHCA Supervisor: Myra Martin; bilingual; female; Hispanic; 20's. Principle reason: health care background and bilingual. November 2001: Call Center Supervisor (Kidcare): Shonnice Booker: no language; female; Black; age unknown. Principle reason: had been with Kidcare program previously. November 2001: Operations Supervisor: Paul Henrichs; no language; male; White; 30's. Principle reason: call center management experience. November 2001: Operations Supervisor: Jacqui Zarba; no language; female; 30's. Principle reason: prior experience. November 2001: Operations Supervisor: Becki Smith; no language; female; 30's. Principle reason: prior experience. November 2001: Operations Supervisor: Pat Gray; no language; female; 50's. Principle reason: prior experience. Respondent provided no information on the percentages of its clients who were Spanish or Creole, or the number of employees having language qualifications, or the breakdown of its employees by national origin to rebut the presumption that it was discriminating on such a basis. Respondent refused to respond to discovery requests for information on these issues.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter its final order finding that Respondent engaged in a discriminatory employment practice, and order Respondent to desist from such practice; to promote Petitioner immediately to a call center supervisory position; and pay Petitioner the difference between his base salary and that of a call center supervisor from November 2001 to the date of the entry of FCHR's final order. DONE AND ENTERED this 8th day of July, 2004, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2004.
The Issue The issues in this case are: (1) Whether Petitioner filed her charge of discrimination with the Florida Commission on Human Relations within 365 days after the alleged discriminatory act; and (2) Whether Respondent unlawfully discriminated against Petitioner in connection with Petitioner’s employment by Respondent on the basis of her national origin, gender, or pregnancy.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Olivera is a Cuban-American female. The City hired her, effective March 8, 1993, to work as a secretary in the City Manager’s office. After one week, Olivera was promoted to the position of Office Manager, a more demanding job that entailed much greater responsibilities. The evidence regarding Olivera’s performance as Office Manager is in conflict. Her supervisors believed that Olivera was a marginal employee who failed to discharge her duties satisfactorily. The City has placed in evidence a number of contemporaneous memorandums and other documents that memorialize one or another of Olivera’s perceived performance deficiencies. In contrast, Olivera believed she was performing well, and that her supervisors’ complaints about her were, for the most part, false, exaggerated, or unfair — and worse, a pretext for unlawful discrimination. (Olivera admitted that she had had problems with tardiness during her first year of employment, but all agreed that Olivera had corrected this particular deficiency.) In short, Olivera perceived that she had been singled out for disproportionately harsh treatment and had been made the scapegoat when others failed to do their jobs. More ominously, Olivera accused the City Manager, R.J. Intindola, of constantly having made racist comments about Blacks and Cubans. She claimed that Mr. Intindola uttered racial slurs with such frequency that the workplace became hostile. Further, Olivera asserted that her complaints about Mr. Intindola’s behavior fell on deaf ears. As with the issues pertaining to Olivera’s job performance, the evidence regarding Mr. Intindola’s conduct is in conflict. Mr. Intindola himself denied having uttered the slurs that Olivera put on his lips, yet he admitted that “one time,” in Olivera’s presence, he had referred to another employee, Christy Dominguez, as a “crazy Cuban.” Mr. Intindola claimed that everyone present knew that he was kidding and laughed at the repartee between him and Ms. Dominguez. No one who testified at hearing corroborated Olivera’s account of Mr. Intindola’s conduct. Indeed, Ms. Dominguez, who has been employed with the City since May 1974, disclaimed having witnessed any discriminatory behavior in the workplace there, despite having been the subject of the one possibly derogatory comment that Mr. Intindola indisputably made. On or around April 24, 1995, Olivera was asked to resign her employment with the City to avoid being fired, which would be the consequence of her refusal. Faced with this choice, Olivera submitted a letter of resignation dated April 24, 1995. Thereafter, she received severance pay equal to two-months’ salary. Some time later, most likely during the first few weeks of March 1996, Olivera filed both a Charge Questionnaire and an Affidavit (collectively, the "Federal Forms") with the United States Equal Employment Opportunity Commission ("EEOC"). In the Federal Forms, Olivera alleged that the City had discriminated against her, primarily on the basis of her national origin. The EEOC notified Olivera by letter dated March 22, 1996, that, because her charge had not been timely filed under Title VII of the Civil Rights Act of 1964, the commission had forwarded the Federal Forms to the FCHR. On May 6, 1996, according to a date stamp on the face of the document, the FCHR received a Charge of Discrimination that appears to have been signed by Olivera on April 14, 1996. In this Charge of Discrimination, Olivera again alleged that the City had discriminated against her on the basis of national origin, in violation of her rights under the Florida Human Rights Act. Ultimate Factual Determinations The evidence in this record is not sufficient for the trier to ascertain whether, as a matter of objective historical fact, Olivera adequately performed on the job or not. Suffice it say that a preponderance of evidence fails to establish anything except that Olivera, on the one hand, and her supervisors, on the other, sincerely believed the opinions they expressed on this subject. In other words, Olivera honestly believes that she performed competently and was discriminated against. Her supervisors at the City, in turn, honestly believe that Olivera did not measure up to the Office Manager’s position and needed to be let go for that legitimate reason and no others. The upshot of this inconclusiveness is that Olivera has failed to demonstrate, by a preponderance of evidence, that the City violated her civil rights. Olivera’s conviction that she was the victim of unlawful discrimination, no matter how sincerely and firmly held, is not proof of the fact, at least not without more than the evidence in this record establishes. By the same token, the evidence does not exactly exonerate the City, in the sense of proving that its hands were completely clean or that it acted honorably in respect of Olivera. Rather, more likely than not, Mr. Intindola did on occasion make offhand comments about Cubans at which some persons could take offense. A preponderance of evidence fails to show, however, that he uttered these remarks with a discriminatory intent; that Olivera (or anyone else) suffered any material harm or humiliation as a result of hearing them; or that he did so with such frequency or in such fashion that his conduct could be called extreme. In sum, while it is fair to infer, and the trier so finds, that Mr. Intindola was not always as sensitive to the feelings of others as, in hindsight, he probably should have been, there is nevertheless insufficient evidence to support a finding that he acted willfully or that Mr. Intindola’s occasionally insensitive behavior was so consistently and frequently repeated as to become a condition of Olivera’s employment with the City. Likewise, the greater weight of evidence fails to establish that the environment in which Olivera worked was a hostile or abusive one. On this record the trier cannot say that, more likely than not, the workplace was permeated with discriminatory intimidation, insult, and ridicule. Further, the evidence does not establish that Olivera was treated differently than similarly situated employees who were neither Cuban- American, female, nor pregnant. In the final analysis, then, considering the totality of the circumstances, the evidence presented at hearing demonstrates no more than that the City terminated the employment of an at-will employee for performance-related reasons unrelated to her national origin, gender, or medical condition (pregnancy).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Olivera's Petition for Relief. DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2001.
The Issue Whether Petitioner was wrongfully terminated from his position as a janitor with Respondent because of his handicap, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner, Lee, was hired by Respondent in August 1994 as a custodial worker at the Tallahassee Mall in Tallahassee, Florida. As a janitor Petitioner's duties included bending, stooping, and lifting. He was assigned to zone 3 in the Mall. Up until 1996, when Petitioner was injured, Petitioner received good evaluations on his job performance. Indeed Petitioner was very proud of the quality of his work and took special care to do his job well. Sometime prior to May 20, 1996, Petitioner, while at work and in the scope of his employment, stepped on a set of stairs which were not properly attached to a stage in the Tallahassee Mall. The steps slipped causing Petitioner's feet to come out from under him. Petitioner fell flat on his back. As a consequence Petitioner suffered a permanent back injury for which he received workers' compensation. The injury impairs his ability to work and therefore is a handicap. Around May 20, 1996, Petitioner was released by his doctor and was given orders for light duty with no bending, stooping, or heavy lifting. Petitioner gave these orders to his supervisor, Mr. Navin, when he returned to work on May 20, 1996. Respondent had light duty work available which Petitioner was qualified to perform. However, Respondent did not assign Petitioner to light duty work, but changed his work area from zone 3 to zone 1. Zone 1 is located at the front entrance to the mall and requires more work to maintain. Petitioner attempted to perform his duties but could only work for 3 1/2 hours before being overcome by pain from his injury. Petitioner could not work the next four working days because of the aggravation of his injury. On May 28, 1996, after returning to work, Petitioner was again given full duty work. Petitioner attempted to perform his custodial duties for about 2 weeks. However, the pain from his injury was so severe he again requested light duty work. Petitioner's supervisor asked Petitioner to bring him another notice from his doctor. Petitioner's doctor faxed the supervisor a second notice and Petitioner was placed on light duty work. Once Petitioner was placed on light duty work, the mall manager, Mr. Renninger, followed Petitioner around the mall watching him all the time while he worked. On July 8, 1996, prior to the mall opening for business, Petitioner was helping one of the mall store owners with a problem. Such aid was part of Petitioner's job. The mall manager walked up to Petitioner and began to yell at him in a very rude and disrespectful manner. The manager would not listen to Petitioner's explanation of the event. The manager gave Petitioner a written disciplinary notice for his aid to the mall store owner. The manager continued to follow Petitioner around the mall while he worked. Sometime around August 15, 1996, the mall manager advised the mall's employees that they should take their respective vacations prior to October. Petitioner thought it would be a good time for him to take the 4-day vacation time he had accumulated during his employment with the mall. He could use the time to allow his back to heal more. On August 15, 1996, Petitioner requested vacation leave and vacation pay for the period beginning September 3, 1996 and ending September 9, 1996. Initially, the request was denied. Petitioner's supervisor felt he had missed too much work and been late too often. However, Petitioner had only been absent or late in relation to his back injury. Petitioner explained that fact to his supervisor. His supervisor agreed and approved Petitioner's vacation. Petitioner returned to work on August 10, 1996. An argument with the administrative assistant occurred when she refused to recognize that Petitioner was entitled to be paid for his vacation time. She was not going to turn in any time for him so that Petitioner could get paid while on vacation. Getting a paycheck was a serious matter to Petitioner, and Petitioner, understandably, became gruff with the administrative assistant. Petitioner only raised his voice at the administrative assistant. He was not abusive and did not curse at her. In fact, the administrative assistant yelled at Petitioner when he raised the subject of his pay "Now, before you start bitching." Petitioner called the headquarters of Respondent and confirmed he had vacation time and pay accrued. After this incident Petitioner was fired ostensibly for mistreating the administrative assistant. The administrative assistant, who was incorrect, was not terminated. The reason appears to be a pretext. Petitioner's pay was $5.35 per hour and he worked a 40-hour-work-week. After his termination, Petitioner actively sought employment but could not find any until September 1, 1997. At that time he began work for Tallahassee Community College as a custodial worker with light duties at a higher rate of pay. Petitioner's search for work was reasonable.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding Respondent guilty of an unlawful employment practice against Petitioner and awarding Petitioner backpay in the amount of $11,770.00. DONE AND ENTERED this 27th day of October, 2000, in Tallahassee, Leon County, Florida. 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 27th day of October, 2000.
The Issue Whether Respondent violated the Florida Human Rights Act by maintaining racially segregated restroom facilities, as alleged by Petitioner; and, if so, the affirmative relief which should be granted.
Findings Of Fact At all times material hereto, the COMPANY operated a business establishment located at Pompano Beach, Florida. BOYKIN a black male, was employed by the COMPANY during a one-week period in 1978. During BOYKIN'S employment, the COMPANY maintained separate restroom facilities, segregated on the basis of race. (Testimony of Boykin.) The COMPANY'S two restroom facilities were racially segregated by the use of signs affixed to the outside door of each restroom--one sign labeled "Colored," and the other, "White." (Testimony of Boykin.) The COMPANY'S maintenance of racially segregated restrooms was offensive to BOYKIN, and the other black employees. (Testimony of Boykin.) As of September 26, 1980, the offending signs by which the COMPANY racially segregated its restrooms were no longer affixed to the restroom doors. (Viewing by hearing officer, accompanied by parties.) The COMPANY presented no evidence controverting BOYKIN'S allegation that it maintained racially segregated restrooms during the time in question. Neither did it assert a legitimate, nondiscriminatory purpose for maintaining segregated restroom facilities. BOYKIN presented no evidence to establish that the COMPANY employed 15 or more employees for each working day in each of 20 or more calendar weeks during 1977 or 1978.
Conclusions Conclusions: Respondent company maintained racially segregated restrooms for Petitioner and its other employees. The signs, by which the restrooms were labeled, "Colored" and "White" were no longer affixed to the restrooms at the time of final hearing. However, Petitioner failed to prove an essential elements of his claim-- that Respondent is an "employer" within the meaning of the Human Rights Act. Recommendation: That the Petitioner for Relief be DISMISSED. Background: On November 27, 1978, Petitioner Michael C. Boykin ("BOYKIN") filed with the Florida Commission on Human Relations a complaint of unlawful discrimination against Respondent H. L. Westberry Paving and Trucking Company ("COMPANY"). The gravamen of BOYKIN'S complaint was that he was subjected to an unlawful condition of employment by virtue of the COMPANY'S maintenance of racially segregated restroom facilities. After investigation, the Commission on Human Relations issued its determination that there was reasonable cause to believe that the COMPANY had engaged in an unlawful employment practice, as alleged, in violation of the Human Rights Act, Sections 23.161, et seq., Florida Statutes. After an unsuccessful effort to effect voluntary conciliation of the dispute, the Commission issued a Notice of Failure of Conciliation on June 11, 1980. Within the requisite 30-day period thereafter, BOYKIN filed a Petition for Relief from the alleged unlawful employment practice. Notwithstanding the COMPANY'S failure to file any pleading responding to BOYKIN'S Petition for Relief, or request a hearing thereon, the Commission forwarded it to the Division of Administrative Hearings on July 10, 1980, for the assignment of a hearing officer. By Notice of Hearing, final hearing was thereafter set for September 26, 1980. At final hearing, counsel for the COMPANY represented that on September 25, 1980, he received a telephone call from an unidentified employee of the Commission purporting to cancel the hearing scheduled for September 26, 1980. As a result, he asserted his witness was not present at final hearing; he then proffered that, if present, his witness could testify that signs indicating "Colored" and "White" were not now affixed to the doors of the separate restrooms located on the COMPANY'S premises. In order to avoid continuing the hearing, the parties agreed that the undersigned hearing officer should determine whether or not the described signs were present by conducting a viewing of the COMPANY'S premises. In light of this viewing, the COMPANY declined to request a continuance, and indicted that it wished to present no further evidence. The COMPANY also moved to dismiss the Petition for Relief, claiming that the Commission lacked jurisdiction based on: (1) federal preemption of the area by Title VII of the Civil Rights Act of 1964, and (2) failure of the Commission to complete its proceeding within 120 days from the Federal Equal Employment Opportunity Commission's deferral of this matter to the Florida Commission on Human Relations. Respondent's Exhibit 1 was offered, and received in support of the motion, after which the motion was denied. The only witness who testified at final hearing was BOYKIN. No other exhibits were offered by either party. The Florida Commission on Human Relations was not represented at final hearing; BOYKIN represented himself, in proper person, and without assistance by the Commission.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended: That the Petition for Relief filed by Petitioner be DISMISSED. DONE AND ENTERED this 10th day of October 1980 in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October 1980. COPIES FURNISHED: Michael C. Boykin 801 Powerline road, #161 Pompano Beach, Florida 33060 Thomas P. Quinn, Esquire 2455 East Sunrise Boulevard Suite 605, International Building Fort Lauderdale, Florida 33404
The Issue Whether Respondent, David Costa Enterprises, Inc., d/b/a McDonald’s (“Costa Enterprises”), discriminated against Petitioner, Labrentae B. Claybrone, in violation of the Florida Human Rights Act; and, if so, what penalty should be imposed?
Findings Of Fact Mr. Claybrone is an African-American male, approximately 25 years of age. He resides in Fort Walton Beach, Florida, with his mother. At all times relevant to this proceeding, Mr. Claybrone was working at one or another of the 21 McDonald’s restaurants operated by Costa Enterprises. Mr. Claybrone presents as a somewhat effeminate person, with braided, colored hair, earrings, polished fingernails, etc. He admits to being either gay or bisexual despite being married to-–but not living with-–a woman. In his Petition for Relief filed at FCHR, Mr. Claybrone refers to humiliation being imposed on him due to his “transgender and sexual orientation.” In March 2015, Mr. Claybrone was hired as a shift worker at the McDonald’s restaurant located inside the WalMart in Destin, Florida (hereinafter the “WalMart McDonald’s”). He had been hired by the general manager of that store, Ligaya Mumford. Mr. Claybrone did not at any time discuss his sexual orientation with his employer or other store personnel. On or around April 28, 2015, Mr. Claybrone thought he heard the general manager, Mrs. Mumford, refer to him as “ma’am.” He said that Mrs. Mumford also made comments about the way he walked and talked and that he reminded her of a female. Mrs. Mumford, whose testimony under oath at final hearing was entirely credible, denies making any such comments to Mr. Claybrone. Rather, Mrs. Mumford remembers talking to a young female employee on that day as they stood at the grill in the restaurant. The young lady was very respectful and always called Mrs. Mumford “ma’am,” so Mrs. Mumford had responded to the employee in kind, calling her “ma’am” as well. Mrs. Mumford believes Mr. Claybrone mistakenly believed she was referring to him when in fact she was not. As to the other comments Mr. Claybrone testified about, Mrs. Mumford categorically denied making them at all. When Mr. Claybrone went home that night and told his mother what he thought had happened, his mother insisted he complain about the comments. Mr. Claybrone says that his mother immediately called Roza Atanasova, general manager of the WalMart McDonald’s and another store known as the Destin McDonald’s. By virtue of her position as general manager, Ms. Atanasova was Mrs. Mumford’s supervisor. Ellie Montero, shift manager at the Destin McDonald’s, later notified Mrs. Mumford that Mr. Claybrone’s mother had called Ms. Atanasova with a complaint. Mrs. Mumford attempted to call Mr. Claybrone and sent him texts asking Mr. Claybrone to call her. He intentionally ignored the calls and texts because he did not want to talk to Mrs. Mumford. When Mr. Claybrone came to work for his next assigned shift, Mrs. Mumford apologized to him for the comment he (thought he) had heard. According to Mrs. Mumford, Mr. Claybrone was a good employee and never gave anyone trouble. He was kind to the customers and worked hard. She had absolutely no problem with Mr. Claybrone being one of her shift workers. Mrs. Mumford is one of Costa Enterprises’ most dependable, respected, and admired workers. She has received numerous citations and awards relating to her work ethics and skills. She is known to help employees in need, lending them her car, loaning money, and providing other assistance. Within a week after the misunderstanding with Mrs. Mumford, Mr. Claybrone heard that another co-employee, Ken Hislop, had mentioned to a fellow worker that he (Hislop) was surprised to hear that Mr. Claybrone had a child because Mr. Hislop presumed Mr. Claybrone was gay. Mr. Hislop cannot fully remember making the comment, but he meant nothing negative about Mr. Claybrone, it was just an observation. When he was advised that Mr. Claybrone was offended, Mr. Hislop offered an apology. He did not feel like the apology was accepted by Mr. Claybrone. Mr. Claybrone did not feel like the apology was sincere. Mr. Claybrone said that he was uncomfortable working with Mrs. Mumford and Mr. Hislop after the alleged slurs. At some point, it was mutually agreed by Mr. Claybrone and Costa Enterprises that Mr. Claybrone would be transferred to a different store, the Destin McDonald’s. Mr. Claybrone was transferred to the Destin McDonald’s and was, at first, a dependable worker. Then he began to be tardy and to miss his shifts, even though the Destin McDonald’s was closer to his home than the WalMart McDonald’s had been. After a while, Mr. Claybrone’s supervisor reduced his weekly hours in an effort to motivate him to do better about his attendance. Mr. Claybrone took offense to the reduction in hours and, after clocking in one day, immediately clocked out, left the store as he cursed loudly, and did not return. Mr. Claybrone effectively abandoned his position. Meanwhile, Mr. Claybrone filed a complaint with the Florida Commission on Human Relations, which ultimately led to the instant action at DOAH. Mr. Claybrone admitted that the alleged discriminatory events all transpired within a few days, no longer than a week in duration.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Costa Enterprises, Inc., d/b/a McDonald’s, did not discriminate against Labrentae B. Claybrone. DONE AND ENTERED this 21st day of October, 2016, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 21st day of October, 2016.
