The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race, age, or sex in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, an African-American male, as a nursing assistant at the community healthcare facility known as Jackson Hospital in Marianna, Florida, at all times relevant to these proceedings. Petitioner obtained his designation as a Certified Nursing Assistant (CNA) subsequent to his employment by Respondent. Petitioner entered into a conversation with a female co-worker and CNA at Jackson Hospital on or about June 12, 2003. In the course of the conversation, he made an unwelcome sexual request of the co-worker. Petitioner was not on duty at the time and had returned to the hospital for other reasons. Subsequently, on June 12, 2003, the female co-worker filed a complaint with Respondent's human resource office at the hospital alleging unwelcome requests for sexual favors by Petitioner, inclusive of a request that the co-worker engage in sexual relations with Petitioner. In the course of his employment with Respondent, Petitioner was made aware of the strict guidelines and "zero tolerance" policy of Respondent toward sexual harassment. Respondent's policy expressly prohibits sexual advances and requests for sexual favors by employees. Discipline for a violation of this policy ranges from reprimand to discharge from employment of the offending employee. Petitioner has received a copy of the policy previously and he knew that violation of that policy could result in dismissal of an erring employee. Violations of this policy resulted in dismissal of a non- minority employee in the past. Corroboration of Petitioner’s policy violation resulted from interviews with other employees in the course of investigation by the hospital director of human resources. Further, in the course of being interviewed by the director, Petitioner admitted he had propositioned his co-worker for sexual favors. As a result of this policy violation, Respondent terminated Petitioner’s employment on June 16, 2003. At final hearing, Petitioner admitted the violation of Respondent's policy, but contended that termination of employment had not been effected for white employees for similar offenses in the past. This allegation was specifically rebutted through testimony of Respondent's hospital human resources director that a white male employee had been previously discharged for the same offense. Accordingly, allegations of Petitioner of dissimilar treatment of employees on a racial basis for violation of Respondent's policy are not credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ORDERED this 13th day of September, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 13th day of September, 2005. COPIES FURNISHED: James M. Bowles 4193 Evelyn Street Marianna, Florida 32446 H. Matthew Fuqua, Esquire Bondurant and Fuqua, P.A. Post Office Box 1508 Marianna, Florida 32447 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an act of discrimination or sexual harassment against Petitioner.
Findings Of Fact Petitioner was employed as a payroll, accounts-payable clerk for Respondent's furniture store from May 23, 2001 until May 20, 2002. Respondent operates a furniture store located at 6886 North 9th Avenue, Pensacola, Florida 32504-7358. Five months after commencing her employment with Respondent, Petitioner began to look for a new job. Petitioner believes that Mr. Alan Reese, Respondent's office manager and Petitioner's direct supervisor, began to follow her home in August 2001. Petitioner believes that, after ceasing to follow her when she confronted him about it, Mr. Reese began to follow her home again two months later. Petitioner accused Mr. Reese of following her home on numerous occasions, peeking into her windows, and sitting in his car and watching her while she tended to her garden. Petitioner was permitted to come to work late during October 2001, on occasion, when she was looking for a new place to live. Petitioner did not get along with Serita Coefield, her fellow accounting clerk at the furniture store. They often had disputes over the handling of invoices. In May of 2002, Petitioner met with Barbara Hoard, the Escambia County/Pensacola Human Resource Coordinator, to discuss the alleged harassment by Mr. Reese. Ms. Hoard told her to inform her employer in writing of her concerns and explained the availability of filing a complaint with the FCHR or the Equal Employment Opportunity Commission. On May 15, 2002, Petitioner delivered a memo to Mr. Reese in which she accused him of following her home, touching her improperly in the workplace, and asking her questions about her personal life. She also sent, by certified mail, a copy of the memo to Elmer Githens, Respondent's president. After receiving the memo, Mr. Githens conferred with Mr. Reese, then issued a memo to Petitioner on May 17, 2002, in which he set forth her work schedule for the dates of April 29 through May 16, 2002. Petitioner's regular work hours were supposed to be 8:00 a.m. to 5:00 p.m., with an hour for lunch. The May 17 memo, which was based upon Petitioner's actual time cards, showed that her start time at work ranged from 8:18 a.m. to 11:38 a.m. and her end time ranged from 4:01 p.m. to 6:12 p.m. Petitioner clocked in for a full eight- hour workday on only four of fourteen days during the time period reflected in the memo. Later in the day on May 17, 2002, Mr. Githens issued a second memo to Petitioner in which he noted that Petitioner had yelled at him when he gave her the first memo, and accused Serita Coefield of "being out to get her." The memo further stated that Petitioner "has alienated every one [she] works with due to [her] attitude." The memo continued with a discussion of Petitioner's work hours which were to be 8:00 a.m. to 5:00 p.m. with at least a 30-minute lunch break every day. Petitioner was informed that this was her final warning about her tardiness and her inability to get along with her co-workers. The memo concluded with the words "[t]he next time you will be dismissed." On Monday, May 20, 2002, Petitioner's next workday, Petitioner clocked in at 10:37 a.m. She was given a memo that day dismissing her for "willful misconduct after receiving ample warnings that termination of your employment was imminent if you continued present behavior of coming to work late, not putting lunch on your time card, clocking out after 5pm without permission and causing disturbances with fellow employees for no reason." Petitioner claims that, on the day she was fired, she arrived at Respondent's parking lot at 8:00 a.m., but sat in her car because she was having a "panic attack" due to her belief that Mr. Reese was continuing to stalk her. Both Petitioner and Mr. Reese live east of Respondent and travel, at least part of the way, in the same direction and on the same roads to go home after work. Mr. Reese denies knowing the location of Petitioner's home. Mr. Reese has never been to Petitioner's home. Mr. Reese admits he drove home in the same direction as Petitioner on numerous occasions since she drove along one of the routes he routinely took home. No one witnessed the alleged stalking of Petitioner by Mr. Reese. Petitioner claims to have contacted the police by telephone, but never filed a police report concerning the alleged stalking by Mr. Reese.
Recommendation is, Based upon the Findings of Fact and Conclusions of Law, it RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's claim for relief. DONE AND ENTERED this 12th day of January, 2005, 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 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 January, 2005.
Findings Of Fact The Petitioner Barbara Jerrel, became employed by Metropolitan Life Insurance Company, the Respondent, in May, 1987. She worked as a sales trainee in the field of life and health insurance sales and servicing. She was interviewed and hired by Doreen Blake in the "Gator Branch" office located in Gainesville, Florida. The manager of that office was Jerry Cummings, who was the Petitioner's supervisor. Mr. Cummings initially worked with the Petitioner in training her to solicit life and health insurance business and in making and closing sales of insurance policies both over the telephone and in person. When she initially became employed he accompanied her and supervised her in making sales solicitation calls on potential clients. On one occasion, soon after she was initially hired, the Petitioner maintains that she was working at her computer station in the office when Mr. Cummings sat beside her and began rubbing her arm. She states that she remonstrated with him about this conduct and told him to stop, whereupon he became angry and thenceforth instructed her to call him "Mr. Cummings." Soon after this alleged incident she was sent to a training school for approximately a month to learn the skills and requirements necessary to be a sales representative of Metropolitan Life Insurance Company. She received above average scores on graded work during her school period of instruction and received favorable reports on her leadership and sales ability from her instructors. After her school training was completed, she returned to the Gainesville office to work. On approximately June 23, 1988, she testified that she and Mr. Cummings were riding in her car to an appointment with a client. He was traveling with her in order to assist with her training in meeting and discussing insurance matters with clients and in closing sales. She maintains he began talking about things other than insurance and said "I hope you don't tell your husband what we talk about . . . because it's really making me hot." She also contends that he made a statement to the effect that he "wondered how long it would take before she got him to a motel room." The Petitioner testified that she went home that day and tried to decide whether to quit her job or not. She decided to seek a transfer to the Ocala office, where Mr. Wine was the manager. She conferred with Mr. Wine by phone and he allegedly told her that she could come to his office as a new applicant. In reality, as revealed by Mr. Wine in his own testimony, he did not want her to come to work in his office and did not encourage her to do so. In the meantime, Ms. Jerrel was appointed as a Sales Representative of Metropolitan at the "Gator" branch office in Gainesville, effective June 8, 1987, following her "pre-appointment training." That pre-appointment training provides job applicants with an opportunity to get acquainted with the company's business, to obtain necessary licenses, and enables the management to determine the aptitude of the applicant for the sale of the company's product. She was provided the same training accorded all such individuals after initial hiring. Following her appointment as a Sales Representative in the Gainesville office she continued to receive training and assistance as was provided all those newly appointed. Ms. Jerrel met the initial production requirement so that she could be appointed Sales Representative. However, her performance began to deteriorate in July, 1987. She had written 11 applications for insurance (with Mr. Cummings' assistance) by the time of her appointment as a Sales Representative and wrote five by July 10, 1987. Thereafter, she wrote no business at all for two of the next four weeks. She wrote one application for insurance in the week of August 3, 1987 and none for the next three consecutive weeks. She wrote one application in the week of August 31, and had none thereafter during her employment with the company. The Petitioner alleges that on or about August 28, 1987, Mr. Cummings made a suggestion that the Petitioner and Cummings and another couple "play golf, smoke pot, and go to the beach and make love." Petitioner apparently took offense at that, as it was one of the bases for the subject action. Upon her commenting about it to another female employee however, that employee, who knew Cummings for a longer period of time than the Petitioner, advised her to disregard it because it was her belief that he was "just joking." The Petitioner also alleged that several days after this incident on or about August 31, 1987, that Cummings was engaged in a conversation with her while kneeling beside her chair where she was working at her computer terminal. She alleges that he put his arm around her shoulder while conversing with her, let his hand rest on her breast and massaged her breast whereupon she states that she stabbed him with her "ink pen." These allegations are of somewhat dubious credibility. The Petitioner herself testified that after the August 31 date, at which the last of the above incidents allegedly occurred, Mr. Cummings still praised her as an employee and predicted that she would get the "Eagle Award." It is also established, by Petitioner's own testimony, that during this period of time in August, 1987, she was undergoing treatment for depression. There is some indication that she was having marital discord with her husband and, indeed, an incident occurred shortly after, on September 10, 1987, which indicates that her relationship with her husband might have interfered somewhat with her job performance. On that date she met agent Michael Ray from the company's Jacksonville office, whom she had known in insurance school. They went to a local establishment where, according to her own testimony, they had a "couple of drinks" whereupon she got sick and went home. Her husband apparently became upset by this episode and shortly thereafter went to the company's Jacksonville office in an attempt to confront agent Ray about apparently interfering with his relationship with his wife, the Petitioner. Later that day, the Petitioner called her own office in Gainesville to warn them that her husband might be coming there armed with a gun. While this is commendable on the Petitioner's part, it does indicate that there was some marital discord which may have interfered with her job performance and together with the fact of her depression and treatment for it, may have influenced her thinking and her perception of what was actually occurring in her encounters with Mr. Cummings. He was described by another employee as a "touchy person" who frequently touched people in an innocent manner while engaged in a conversation with them. These factors, considered together, coupled with Cummings' denial that the incidents occurred, in the case of his allegedly touching the Petitioner's breast, and his testimony that if he touched someone, it was without any wrongful intent, lead the Hearing Officer to find that the incidents either did not occur, that they did not happen in the manner perceived by the Petitioner, or that the motive behind them was misconstrued by the Petitioner. On September 16, 1987, Mr. Cummings offered to try to obtain a transfer for Ms. Jerrel to another office if she would like and offered to give her two weeks in which to decide whether she wanted a transfer and to "tie up loose ends." The Petitioner later refused his offer of a transfer to another office. The offer of transfer, according to the Petitioner, was because of her husband's influence on her performance in her work place, as evidenced, in part, by the incident referenced above. On September 20, a Sunday evening, Ms. Jerrel called manager Cummings at his home. She asked him to meet her at the office. Manager Cummings declined to go to the office, suggesting that they discuss whatever her problem was over the telephone. Ms. Jerrel refused to do that so then Cummings suggested that she come to his home (where his wife would be present) to discuss the matter with him and she declined. Ms. Jerrel then hung up but called back a few minutes later and said that if Manager Cummings refused to meet her at the office then she would file a sexual harassment charge against him. He was taken aback by this statement but then advised her to do what she chose but he was still not going to meet her at the office that evening. Mr. Cummings met with Ms. Jerrel in the branch office the next morning and telephoned his Regional Manager, in Ms. Jerrel's presence, to relay to him the information regarding her claim of sexual harassment. Arrangements were then made, in accordance with established company procedures, in evidence, for Agency Vice President, James Higgins, to meet with Ms. Jerrel on September 24, regarding her claim of sexual harassment. When Mr. Higgins met with her and heard her allegations, he advised her of the company's policy against sexual harassment, and assured her that if the incidents had occurred as alleged, he would correct the situation and there would be no recurrence. He also took that opportunity to discuss with Ms. Jerrel her performance as a sales representative. He advised her that upon review of her performance, he had noted that she had been "blank"; that is, without any sales or production for several weeks. He informed her that that was not a satisfactory performance level. He told her that she would have to produce a satisfactory record of sales accomplishments or her employment would be terminated. As a result of this discussion she agreed to submit an "action plan", delineating in detail what steps she proposed to take to correct her unsatisfactory production level. That action plan included her assurance that she would participate in "telephone prospecting classes" with her supervisor. Mr. Higgins also interviewed Manager Cummings with respect to Ms. Jerrel's allegations of sexual harassment. Mr. Cummings denied them. Mr. Higgins then warned Manager Cummings that if he were found to have engaged in such conduct, his employment would be terminated. Respondent's exhibit 14 is a letter from Mr. Higgins to Manager Cummings delineating the problems with the Petitioner's lack of sales performance. The exhibit contains a detailed discussion of her action plan goals designed to try to correct her lack of production of insurance sales. The letter admonishes Manager Cummings to monitor her performance, particularly her telephone prospecting time and methods, as well as her other prospecting and sales efforts and methods. The letter emphasizes, on the second page, the monitoring and establishment of a schedule of in-office telephone prospecting time, to be monitored by Mr. Cummings. In that letter is a handwritten memorandum of a telephone conversation which Mr. Higgins later had with Mr. Cummings, on the same day the letter went out to Mr. Cummings. Mr. Cummings informed Mr. Higgins that Ms. Jerrel had already missed two scheduled telephone prospecting classes which she had agreed to attend in her "action plan", designed to correct poor sales performance. Since she did not report to the scheduled telephone prospecting class sessions on September 25th and September 28th, Mr. Higgins ordered Manager Cummings to terminate her effective October 1, 1988. The reason for her termination was established to be her low- performance record and her failure to comply with the action plan which she, herself, prepared and submitted, designed to correct her poor sales performance. The termination did not result from the altercation that the Petitioner was involved in with her husband and agent Michael Ray of the Jacksonville branch office. In fact, the Branch Manager, Mr. Cummings' superior, had a discussion of that issue with Mr. Cummings and informed him that the New York home office had indicated that the Petitioner's husband's interference with her job or office operations was not a sufficient reason to terminate her. The company's policies and procedures regarding sexual harassment claims, equal employment opportunity, affirmative action and prevention of unlawful discrimination are in evidence. The record does not reflect that those policies were departed from in the situation at bar.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the petition of Barbara Jerrel be dismissed. DONE AND ENTERED this 27th day of March, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, 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 27th day of March, 1990. COPIES FURNISHED: Dana Baird, Esq. Florida Commission on Human Relations 325 John Knox Road, Suite 240 Building F Tallahassee, FL 32399-1925 Rodney W. Smith, Esq. P.O. Box 628 Alachua, FL 32615 Wi1liam G. Pappas, Esq. Metropolitan Life Insurance Company One Madison Avenue New York, NY 10010-3690
The Issue The issue is whether Respondent, Wal-Mart Stores East, LP (“Walmart”), discriminated against Petitioner, Ramon Santiago Lopez (“Petitioner”), based upon his national origin or age, and/or terminated his employment in retaliation for engaging in protected activity, in violation of section 760.10, Florida Statutes (2016).1/
Findings Of Fact Walmart is an employer as that term is defined in section 760.02(7). Walmart is a national retailer. Petitioner is a Cuban (Hispanic) male. He was 62 years old when he was hired by Walmart in November 2005 and was 72 years old at the time of his dismissal. Petitioner was initially hired to work at a store in Jacksonville, but transferred to Tampa. In June 2010, Petitioner requested a transfer back to Jacksonville and was assigned to Store 4444 on Shops Lane, just off Philips Highway and I-95 in Jacksonville. The store manager at Store 4444 was Scott Mallatt. Mr. Mallatt approved Petitioner’s transfer request and testified that he “very much” got along with Petitioner. Petitioner confirmed that he never had a problem with Mr. Mallatt. Petitioner testified that when he first started at Store 4444, he had no problems. After about four months, however, he began reporting to a supervisor he recalled only as “Lee.” Petitioner described Lee as “kind of a maniac.” Lee would harass Petitioner and give him impossible assignments to accomplish. Petitioner testified that he complained repeatedly to Mr. Mallatt about Lee’s abuse, but that nothing was ever done about it. Eventually, Petitioner gave up complaining to Mr. Mallatt. Mr. Mallatt testified that Petitioner never complained to him about being discriminated against because of his national origin or age. Petitioner apparently did complain about being overworked, but never tied these complaints to any discriminatory intent on the part of Lee. Petitioner testified that Lee no longer worked at Store 4444 in January 2016. From 2010 to 2015, Petitioner worked from 1:00 p.m. to 10:00 p.m. in various departments, including Grocery, Dairy, Paper, Pet, and Chemical. In 2015, Petitioner spoke with Mr. Mallatt about working at least some day shifts rather than constant nights. Mr. Mallatt approved Petitioner’s request. In August 2015, Petitioner was moved to the day shift in the Maintenance department. As a day associate, Petitioner typically worked from 8:30 a.m. to 5:30 p.m. Assistant Store Manager April Johnson transferred to Store No. 4444 in October 2015. Petitioner reported directly to Ms. Johnson. On January 14, 2016, Petitioner was scheduled to work from 8:30 a.m. until 5:30 p.m. He drove his van into the parking lot of Store No. 4444 at approximately 7:58 a.m. He parked in his usual spot, on the end of a row of spaces that faced a fence at the border of the lot. Petitioner liked this spot because the foliage near the fence offered shade to his vehicle. Closed circuit television (“CCTV”) footage, from a Walmart camera with a partial view of the parking lot, shows Petitioner exiting his vehicle at around 8:00 a.m. Petitioner testified that he could see something on the ground in the parking lot, 50 to 60 meters away from where his van was parked. The CCTV footage shows Petitioner walking across the parking lot, apparently toward the object on the ground. Petitioner testified there were no cars around the item, which he described as a bucket of tools. Petitioner stated that the bucket contained a screwdriver, welding gloves, a welding face mask, and a hammer. The CCTV footage does not show the bucket. Petitioner crosses the parking lot until he goes out of camera range.3/ A few seconds later, Petitioner returns into camera range, walking back toward his car while carrying the bucket of tools. When Petitioner reaches his van, he opens the rear door, places the bucket of tools inside, then closes the rear door. Petitioner testified that after putting the tools in the back of his van, he went to the Customer Service Desk and informed two female African American customer service associates that he had found some tools and put them in his car. Petitioner conceded that he told no member of management about finding the tools. Walmart has a written Standard Operating Procedure for dealing with items that customers have left behind on the premises. The associate who finds the item is required to take the item to the Customer Service Desk, which functions as the “lost and found” for the store. Mr. Mallatt and Ms. Johnson each testified that there are no exceptions to this policy. Petitioner was aware of the Standard Operating Procedure. On prior occasions, he had taken found items to the Customer Service Desk. Petitioner conceded that it would have been quicker to take the bucket of tools to the Customer Service Desk than to his van. However, he testified that he believed that he could have been fired if he had taken the tools to the desk before he had clocked in for work. Petitioner cited a Walmart policy that made “working off the clock” a firing offense. It transpired that the policy to which Petitioner referred was Walmart’s Wage and Hour policy, which states in relevant part: It is a violation of law and Walmart policy for you to work without compensation or for a supervisor (hourly or salaried) to request you work without compensation. You should never perform any work for Walmart without compensation. This language is plainly intended to prevent Walmart from requiring its employees to work without compensation. Petitioner, whose English language skills are quite limited, was adamant that this policy would have allowed Walmart to fire him if he performed the “work” of bringing the tools to the Customer Service Desk before he was officially clocked in for his shift. Therefore, he put the tools in his van for safekeeping and informed the Customer Service Desk of what he had done. Petitioner was questioned as to why he believed it was acceptable for him to report the situation to the Customer Service Desk, but not acceptable for him to bring the tools to the desk. The distinction he appeared to make was that the act of carrying the tools from the parking lot to the desk would constitute “work” and therefore be forbidden, whereas just stopping by to speak to the Customer Service Desk associate was not “work.” The evidence established that Petitioner would not have violated any Walmart policy by bringing the tools to the Customer Service Desk before he clocked in. He could have been compensated for the time he spent bringing in the tools by making a “time adjustment” on his time card. Mr. Mallatt testified that time adjustments are done on a daily basis when associates perform work prior to clocking in or after clocking out. Petitioner merely had to advise a member of management that he needed to make the time adjustment. Mr. Mallatt was confident that the adjustment would have been granted under the circumstances presented in this case. Petitioner did not go out to retrieve the tools after he clocked in. Mr. Mallatt stated that employees frequently go out to their cars to fetch items they have forgotten, and that Petitioner absolutely would have been allowed to go get the tools and turn them in to the Customer Service Desk. Later on January 14, 2016, Ms. Johnson was contacted by a customer who said tools were stolen off of his truck.4/ Ms. Johnson had not heard anything about lost tools. She looked around the Customer Service Desk, but found no tools there. Ms. Johnson also called out on the store radio to ask if anyone had turned in tools. Finally, the customer service manager at the Customer Service Desk told Ms. Johnson that Petitioner had said something about tools earlier that morning. Ms. Johnson called Petitioner to the front of the store and asked him about the missing tools. Petitioner admitted he had found some tools in the parking lot and had placed them in his vehicle. Ms. Johnson asked Petitioner why he put the tools in his vehicle. Petitioner told her that he was keeping the tools in his car until the owner came to claim them. Ms. Johnson testified that Petitioner offered no other explanation at that time. He just said that he made a “mistake.” Ms. Johnson explained to Petitioner that putting the tools in his vehicle was not the right thing to do and that he should have turned them in to “lost and found,” i.e., the Customer Service Desk. Petitioner was sent to his van to bring in the tools. After this initial conversation with Petitioner, Ms. Johnson spoke with Mr. Mallatt and Mr. Cregut to decide how to treat the incident. Mr. Cregut obtained approval from his manager to conduct a full investigation and to interview Petitioner. Mr. Cregut reviewed the CCTV footage described above and confirmed that Petitioner did not bring the tools to the Customer Service Desk. Ms. Johnson and Mr. Cregut spoke with Petitioner for approximately an hour to get his side of the story. Petitioner also completed a written statement in which he admitted finding some tools and putting them in his car. Mr. Cregut described Petitioner as “very tense and argumentative” during the interview. As the interview continued, Mr. Cregut testified that Petitioner’s reaction to the questions was getting “a little bit more hostile [and] aggressive.” Mr. Cregut decided to try to build rapport with Petitioner by asking him general questions about himself. This tactic backfired. Petitioner volunteered that he was a Cuban exile and had been arrested several times for his opposition to the Castro regime. Petitioner then claimed that Mr. Cregut discriminated against him by asking about his personal life and prejudged him because of his activism. Mr. Cregut credibly testified that he did not judge or discriminate against Petitioner based on the information Petitioner disclosed and that he only asked the personal questions to de-escalate the situation. Mr. Cregut’s only role in the case was as an investigative factfinder. His report was not colored by any personal information disclosed by Petitioner. At the conclusion of the investigation, Mr. Mallatt made the decision to terminate Petitioner’s employment. The specific ground for termination was “Gross Misconduct – Integrity Issues,” related to Petitioner’s failure to follow Walmart policy by bringing the tools to the Customer Service Desk. Mr. Mallatt testified that his concern was that Petitioner intended to keep the bucket of tools if no owner appeared to claim them. Mr. Mallatt credibly testified that had Petitioner simply taken the tools to the Customer Service Desk, rather than putting them in his vehicle, he would have remained employed by Walmart. Walmart has a “Coaching for Improvement” policy setting forth guidelines for progressive discipline. While the progressive discipline process is used for minor and/or correctable infractions, such as tardiness, “serious” misconduct constitutes a ground for immediate termination. The coaching policy explicitly sets forth “theft” and “intentional failure to follow a Walmart policy” as examples of serious misconduct meriting termination. Petitioner conceded that no one at Walmart overtly discriminated against him because of his age or national origin. He testified that he could feel the hostility toward Hispanics at Store 4444, but he could point to no particular person or incident to bolster his intuition. Petitioner claimed that his dismissal was in part an act of retaliation by Ms. Johnson for his frequent complaints that his Maintenance counterparts on the night shift were not adequately doing their jobs, leaving messes for the morning crew to clean up. Ms. Johnson credibly testified that Petitioner’s complaints did not affect her treatment of him or make her want to fire him. In any event, Ms. Johnson played no role in the decision to terminate Petitioner’s employment. Petitioner’s stated reason for failing to follow Walmart policy regarding found items would not merit a moment’s consideration but for Petitioner’s limited proficiency in the English language. It is at least conceivable that someone struggling with the language might read the Walmart Wage and Hour policy as Petitioner did. Even so, Petitioner was familiar with the found items policy, and common sense would tell an employee that he would not be fired for turning in customer property that he found in the parking lot. At the time of his dismissal, Petitioner had been working at Walmart for over 10 years. It is difficult to credit that he was completely unfamiliar with the concept of time adjustment and truly believed that he could be fired for lifting a finger to work when off the clock. Walmart showed that in 2016 it terminated three other employees from Store 4444 based on “Gross Misconduct – Integrity Issues.” All three were under 40 years of age at the time their employment was terminated. Two of the employees were African American; the third was Caucasian. Petitioner offered no evidence that any other employee charged with gross misconduct has been treated differently than Petitioner. At the hearing, Petitioner’s chief concern did not appear to be the alleged discrimination, but the implication that he was a thief, which he found mortally offensive. It could be argued that Mr. Mallatt might have overreacted in firing Petitioner and that some form of progressive discipline might have been more appropriate given all the circumstances, including Petitioner’s poor English and his unyielding insistence that he never intended to keep the tools. However, whether Petitioner’s dismissal was fair is not at issue in this proceeding. The issue is whether Walmart has shown a legitimate, non-discriminatory reason for terminating Petitioner’s employment. At the time of his dismissal, Petitioner offered no reasonable explanation for his failure to follow Walmart policy. Mr. Mallatt’s suspicion regarding Petitioner’s intentions as to the tools was not unfounded and was not based on any discriminatory motive. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Walmart for his termination. Petitioner offered no credible evidence that Walmart’s stated reasons for his termination were a pretext for discrimination based on Petitioner’s age or national origin. Petitioner offered no credible evidence that his termination was in retaliation for his engaging in protected activity. The employee who was allegedly retaliating against Petitioner played no role in the decision to terminate his employment. Petitioner offered no credible evidence that Walmart discriminated against him because of his age or national origin in violation of section 760.10.
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 finding that Wal-Mart Stores East, LP, did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 25th day of October, 2018, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 25th day of October, 2018.
The Issue The issue is whether Respondent, Mojo Old City BBQ ("Mojo"), committed unlawful employment practices contrary to section 760.10, Florida Statutes (2013),1/ by discriminating against Petitioner based on his gender.
Findings Of Fact Mojo is an employer as that term is defined in section 760.02(7), Florida Statutes. Mojo owns and operates a restaurant at 5 Cordova Street in St. Augustine. Mojo has put in place written policies and procedures that prohibit, among other things, discrimination or harassment on the basis of race, gender, national origin, or any other categories of persons protected by state or federal anti- discrimination laws. The policies also provide a specific complaint procedure for any employee who believes that he or she is being discriminated against or harassed. At the time of his hiring, Petitioner received an orientation that thoroughly explained the anti-discrimination and reporting policies. Testimony at the hearing established that Petitioner was again informed of these policies at an employee insurance meeting held in October 2013. Petitioner, a black male, was hired by Mojo on August 2, 2013, as a dishwasher. Petitioner testified that “from day one” he was called names and harassed by everyone at Mojo, employees and managers alike. He stated that an employee named Linwood Finley would yell that he didn’t want to work with a man who looked like a girl, or a “he/she.” Mr. Finley said, “I don’t want to work with a man that can't have kids.” Petitioner testified that the managers and staff would accuse him of looking between their legs. Employees would walk up to him and try to kiss him. He was told that he had to go along with these antics or find somewhere else to wash dishes. Petitioner testified that he believed he was fired for refusing to kiss other male employees. He had seen Mr. Finley and another male employee kissing behind the restaurant. He stated that two male employees had tried to kiss him and he refused their advances. Petitioner testified that he complained about the kissing to anyone who would listen. He said, “I’m not a woman, I’m a man. I got to come in here every day to the same stuff over and over. Y’all act like little kids.” Petitioner stated that when he complained, the harassment would stop for the rest of that day but would resume on the following day. Petitioner testified that there is a conspiracy against him in St. Augustine. For the last five years, he has been harassed in the same way at every place he has worked. Petitioner specifically cited Flagler College, the Columbia Restaurant, and Winn-Dixie as places where he worked and suffered name calling and harassment. Petitioner testified that he wanted to call several employees from Mojo as witnesses but that he was unable to subpoena them because Mojo refused to provide him with their addresses. Petitioner could provide no tangible evidence of having made any discovery requests on Mojo. Petitioner was terminated on November 29, 2013, pursuant to a “Disciplinary Action Form” that provided as follows: Roderick closed Wednesday night2/ in the dish pit. Again we have come to the problem with Roderick not working well with others causing a hostile work environment. This has been an ongoing issue. This issue has not resolved itself, and has been tolerated long enough. Roderick has been talked [to] about this plenty of times and written up previously for the same behavior. The documentary evidence established that Petitioner had received another Disciplinary Action Form on October 2, 2013, providing a written warning for insubordination for his hostile reaction when a manager asked him to pick up the pace in the evening. Laura Jenkins, the front-house supervisor at Mojo, was present at Mojo on the night of November 27, 2013. She testified that Petitioner had a history of getting into arguments with other kitchen employees that escalated into screaming matches during which Petitioner would commence calling the other employees “nigger.” Ms. Jenkins stated that on more than one occasion she had asked Petitioner to cease using “the ‘N’ word.” On the night of November 27, Petitioner was running behind on the dishes, so Ms. Jenkins asked another kitchen employee, Colin Griffin, to pitch in and help him. Petitioner did not want the help and argued with Mr. Griffin. Ms. Jenkins testified that Petitioner was screaming and cursing. The situation was so volatile that Ms. Jenkins felt physically threatened by Petitioner. She was afraid to discipline him that evening while she was the sole manager in the restaurant. On November 29, Ms. Jenkins met with kitchen manager Billy Ambrose and general manager Linda Prescott. They decided that Petitioner’s actions could not be tolerated anymore and that his employment would be terminated. Mr. Ambrose testified that on several occasions he sent people to help Petitioner in the dish pit and Petitioner refused their help. Petitioner would get into arguments with other employees over such things as the proper way to stack dishes. Mr. Ambrose named four different employees, including Mr. Finley, whom he sent to help Petitioner. Each one of them reported that Petitioner started an argument. Mr. Ambrose stated he went in to help Petitioner himself on one occasion and that Petitioner “kind of gave me attitude” despite the fact that Mr. Ambrose was his supervisor. Mr. Ambrose testified that Petitioner had an argument with Mr. Finley one morning that resulted in Mr. Ambrose having a cautionary talk with both employees. Mr. Ambrose sent Mr. Finley to help Petitioner in the dish pit. Petitioner stated, “Nigger, I don’t need your help.” Mr. Ambrose asked if there was a problem. Petitioner said, “No, we’re fine.” Mr. Ambrose asked Mr. Finley if everything was all right. Mr. Finley replied, “Yeah, I guess he’s just having a bad day.” Mr. Ambrose returned to his work only to find, five minutes later, that the two men were nose to nose arguing about the fact that Mr. Finley wasn’t washing dishes the way Petitioner liked. Ms. Jenkins, Mr. Ambrose, and Ms. Prescott all testified that they had never seen another employee harass Petitioner and had never heard of such a thing occurring. Petitioner never complained to any of these supervisors about discrimination or harassment of any kind. All three testified that they had never seen male employees kissing one another on the job nor seen any male employee attempt to kiss Petitioner. The three supervisors never heard any employee make comments about Petitioner’s appearing to be a girl. Ms. Jenkins testified that as a gay woman she would absolutely not allow any discrimination based on Petitioner’s gender orientation. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Mojo for his termination. Petitioner offered no credible evidence that Mojo's stated reasons for his termination were a pretext for discrimination based on Petitioner’s gender. Petitioner offered no credible evidence that Mojo discriminated against him because of his gender in violation of section 760.10, Florida Statutes. Petitioner offered no credible evidence that his dismissal from employment was in retaliation for any complaint of discriminatory employment practices that he made while an employee of Mojo. There was no credible evidence that Petitioner ever complained to a superior about the alleged harassment.
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 finding that Mojo Old City BBQ did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 23rd day of February, 2015, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 23rd day of February, 2015.
The Issue Whether Miami-Dade County committed the unlawful employment practices alleged in the employment discrimination charges filed by Petitioner and, if so, what relief should she be granted by the Florida Commission on Human Relations (FCHR).
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The County is a political subdivision of the State of Florida. Among the various departments of County government is the Finance Department. There are approximately 300 employees working in the Finance Department. At all times material to the instant case, Rachel Baum was the Finance Director responsible for overseeing the operations of the Finance Department. The Tax Collector's Office is administratively located within the Finance Department. There are approximately 210 employees assigned to the Tax Collector's Office. The Occupational Licenses section and the Tourist Tax section are operational units within the Tax Collector's Office. At all times material to the instant case, Xiomara Vuelta was the Manager of the Occupational Licenses section, Marie Esquivel was the Assistant Manger of the Occupational Licenses section, and Cristine Mekin was a Tax Records Clerk Supervisor I in the Occupational Licenses section. At all times material to the instant case, Allen Eagle was a supervisor in the Tourist Tax section. Harold Ginsberg was a superior of Mr. Eagle's. At all times material to the instant case, the County had in effect a policy prohibiting sexual harassment in the workplace. The policy was codified in Administrative Order No. 7-28, which read as follows: Statement of Policy: The policy of Dade County is to insure that all employees are able to enjoy a work environment free from all forms of discrimination, including sexual harassment. Employees who have experienced sexual harassment shall have the right to file complaints with the County's Affirmative Action Office and have those complaints properly investigated. Employees who are found guilty of sexually harassing other employees shall be subject to appropriate sanctions, depending on the circumstances. These may range from counseling up to and including termination. Definition: Sexual harassment consists of unsolicited, offensive behavior involving sexual overtures or conduct, either verbal or physical It does not refer to occasional comments of a socially acceptable nature; it refers to behavior that is not welcome, that is personally offensive, that lowers morale, and that, therefore, interferes with the work environment. As explained in the EEOC Guidelines: "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute[] sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment." Implementation: In order to effectively implement the above policy, all County employees must refrain from Threatening or insinuating, either explicitly or implicitly, that an employee's refusal to submit to sexual favors or advances will adversely affect another employee's employment, performance evaluations, wages, promotion, assigned duties, shifts, or any other condition of employment or career development. Creating a sexually harassing environment by such actions as offensive sexual flirtations, advances, propositions, verbal abuse of a sexual nature, graphic verbal commentaries about an individual's body, sexually degrading words, or such other conduct that has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment. Taking retaliatory action of any kind against any other employee as a result of that person's seeking redress for, or complaining of, sexual harassment under this policy or through other legitimate channels. Exhibiting any other conduct that falls within the above-stated definition of sexual harassment. It shall be the responsibility of each County supervisor to maintain his or her work place free of sexual harassment. This duty includes discussing this policy with all employees and assuring them that they need not endure insulting, degrading, or exploitive sexual treatment, and informing employees of their right to file complaints about such conduct. Complaint Procedure: Employees who believe they have been the subject of sexual harassment have the right to file a complaint with the County's Affirmative Action Office. Employees may, if they desire, also report such incidents of sexual harassment to their supervisor but are under no obligation to do so prior to filing a complaint. All complaints of sexual harassment will be investigated to determine whether the allegations are well- founded. If the investigations confirm the continuation of sexual harassment, the Affirmative Action Office will pursue prompt corrective action, including positive relief for the victim, and appropriate disciplinary action against the offender. Compliance: It shall be the responsibility of the Affirmative Action Office to provide compliance information to managers and supervisors concerning the County's sexual harassment policy, the gravity of such conduct, and the procedures to be employed in conducting sexual harassment investigations. The Affirmative Action Office shall also provide necessary training to managers and supervisors in the area of sexual harassment. This administrative order is hereby submitted to the Board of County Commissioners of Dade County, Florida. Documents describing the contents of Administrative Order No. 7-28 were posted at various County work locations. Petitioner is a black female who was employed by the County from 1984 until July of 2001, when she was terminated. At all times material to the instant case, Petitioner worked as a Tax Records Clerk II in the Finance Department, initially in the Tourist Tax section under the direct supervision of Mr. Eagle5 and then in the Occupational Licenses section under the direct supervision of Ms. Mekin. At no time did Mr. Eagle inappropriately touch Petitioner, discuss with her any matters of sexual nature, make sexual advances towards her, threaten to retaliate against her if she did not provide him with sexual favors, or otherwise, in his dealings with her, engage in conduct violative of the County's policy against sexual harassment. Nonetheless, in or around early 1999, Petitioner (who was aware of the County's anti-sexual harassment policy) falsely accused Mr. Eagle of having subjected her to such harassment. The County's Office of Fair Employment Practices (FEP) thoroughly investigated, in good faith, the allegations made by Petitioner. Petitioner was placed on administrative leave with pay during the investigation. Juan de Ona, an investigator with FEP, conducted the investigation, with the assistance Finance Department personnel who did not work in the Tourist Tax section (Marie Carpenter, the department's then-Personnel Manager, and Arlesa Leverette, the department's Affirmative Action Coordinator). Mr. de Ona interviewed Petitioner, Mr. Eagle, and others who worked with them in the Tourist Tax section and who would have been in a position to corroborate Petitioner's allegations of sexual harassment were the allegations true. Based on his investigation, Mr. de Ona reasonably concluded that Petitioner's allegations were unfounded. On May 27, 1999, Mr. de Ona issued a written report of his investigation, which contained the following "Findings and Recommendations": No evidence was found about any of Ms. Ferguson's allegations pertaining [to] Mr. Eagle's behavior. Testimony provided by all employees in the workplace directly contradicted all allegations made by the complainant. Witnesses all expressed shock, stating that such behavior would be out of character [with] the manner they are supervised by Mr. Eagle. They believe he's a fair, capable supervisor. There is no corroboration at all that sexual harassment took place between Mr. Eagle and Ms. Ferguson or to other incidents of a sexual nature as she alleged. Ms. Ferguson appears to have some serious problems about her perceptions of interpersonal relationships and communications in the workplace. In light of the following I recommend the following: Make it mandatory for Ms. Ferguson to participate in the Employee Support Services (ESS) program. Request through the ESS office, a fitness for duty test if that office supports the approach. If possible, transfer Ms. Ferguson to another work station under a different supervisor. As the head of the County department in which Petitioner worked, Ms. Baum received a copy of Mr. de Ona's report. On or about July 25, 1999, before any formal action had been taken by Ms. Baum in response to Mr. de Ona's report, Petitioner filed EEOC Charge No. 150993522 (which is described above). In accordance with Mr. de Ona's recommendation, Ms. Baum took the reasonable step of transferring Petitioner to the Occupational Licenses section effective on or about August 16, 1999, so that Petitioner would no longer be supervised by Mr. Eagle. This action was not taken to retaliate against Petitioner for having filed EEOC Charge No. 150993522. Ms. Baum had no reason to believe that Petitioner would have any difficulties with the supervisory personnel in the Occupational Licenses section, none of whom had been identified by Petitioner as being in any way involved in the alleged sexual harassment to which Petitioner claimed she had been exposed in the Tourist Tax section. Ms. Baum also followed Mr. de Ona's recommendation that Petitioner be referred to the County's Employee Support Services (ESS) program. She did so with the hope that Petitioner would benefit as a result of her participation in the program. Although she did not know "exactly what [Petitioner's] problem was," Ms. Baum felt that there were "issues there" because Petitioner had made allegations that were not true. In addition, Ms. Baum suspended Petitioner for five days for having made "false statements" about her co-workers in her complaint to the FEP.6 Ms. Baum took this action because "people's reputations were tarnished" by Petitioner's "false statements" and, in Ms. Baum's view, Petitioner "need[ed] to understand that you can't make [such] false statements" without retribution. Ms. Baum advised Petitioner of the referral to ESS and the five-day suspension by letter dated September 7, 1999, which read as follows: This is to advise you that you are being suspended without pay for five days on the following dates: September 13, 14, 15, 16 and 17, 1999. This action is a[] result of your failure to comply with Miami-Dade County Personnel Rule, Chapter VIII, Section 7, to wit: That the employee has been offensive in h[er] conduct toward fellow employees, Wards of the County or the Public. That the employee is antagonistic towards Superiors and fellow employees, criticizing orders, rules and policies and whose conduct interferes with the proper cooperation of employees and impairs the efficien[cy] [of] County Service." Specific charges are detailed in the discipline action report attached hereto. Upon return to work, you must attend sessions as designated by the Employee Support Services (ESS) . The initial appointment will be made for you. You must attend that meeting as well as all subsequent meetings set by ESS. You must also provide and maintain your current address and telephone number on file with your supervisor. It will be your complete responsibility to inform your immediate supervisor of any changes. While you were within your rights to file a discrimination complaint with the Office of Fair Employment Practices, it was unnecessary and irresponsible of you to include falsehoods and personal attacks directed towards your superiors and fellow employees. By doing so, you have demoralized your co-workers and damaged the overall morale of the Tax Collector's Office. This type of behavior exhibited by you is discouraging and cannot be tolerated. You may appeal your suspension to a Hearing Examiner within 14 days from receipt of this letter by requesting an appeal hearing in writing to the Director of the Employee Relations Department at the Stephen P. Clark Center, 111 NW 1st Street, Suite 2110, Miami, FL 33128. Petitioner did not appeal her suspension. When she reported to the Occupational Licenses section, Petitioner was trained by her immediate supervisor, Ms. Mekin. At the beginning, in training Petitioner, Ms. Mekin treated Petitioner no differently than Ms. Mekin would treat any clerical employee new to the section. Petitioner, however, was unable to grasp the basic procedures required to be followed by the section's clerical staff, so Ms. Mekin had to provide Petitioner with additional training beyond that which was standard for a new employee in the section to receive. Despite the extra help she was offered, Petitioner continued to make numerous mistakes of a serious nature. Ms. Mekin monitored Petitioner's work in the same manner and with the same frequency (on a daily basis) that she monitored the work of her other subordinates. Petitioner made far more errors than her co-workers (and, for that matter, any other employee who had ever worked under Ms. Mekin's supervision in the Occupational Licenses section7). Although Petitioner occupied a Tax Records Clerk II position (and was paid accordingly), she was assigned Tax Records Clerk I duties, which she performed at the "public counter" in the office. Petitioner expressed dissatisfaction with her assignment and asked Ms. Mekin to assign her Tax Records Clerk II work.8 Ms. Mekin declined to do so inasmuch as Petitioner lacked the "specialized knowledge" needed to perform such work. As Ms. Mekin explained in her testimony at the final hearing (which the undersigned has credited), "I couldn't get her trained as a [Tax Records Clerk] I, how could I put her in a specialized [Tax Records Clerk] II position?" There being no other assignment Ms. Mekin could reasonably make given Petitioner's limitations, Petitioner remained at the "public counter" performing Tax Records Clerk I duties. In addition to making many mistakes while at the "public counter," Petitioner engaged in disruptive workplace behavior, initiating confrontations with co-workers, as well as visiting members of the public. It reached a point where, due to Petitioner's offensive and abusive conduct, no one in the office wanted to be seated next to her at the "public counter." Also interfering with the efficient operation of the office was Petitioner's poor attendance. She had numerous absences and was frequently late reporting to work. In addition, there were instances when, before the end of the workday, Petitioner would just walk out of the office without permission and letting anyone know where she was going and not return until several days later. On occasion, after being out of the office, Petitioner submitted doctor's notes. None of the notes stated that Petitioner was suffering from any substantially limiting mental impairment, and there is no persuasive evidence to suggest that any supervisory personnel perceived her as having such an impairment and took adverse action against her based upon such a perception. Petitioner was counseled verbally and then in writing by her supervisors in the Occupational Licenses section concerning her shortcomings, but such counseling did not yield any positive results. Ms. Mekin waited well longer than usual to "write-up" Petitioner. She gave Petitioner this "extra leeway" because she knew that Petitioner had "personal problems" and was missing a lot of work. In or around late December of 1999, Petitioner received a written reprimand for "insubordination or serious breach of discipline which may reasonably be expected to result in lower morale in the organization or result in loss, inconvenience or injury to the County service or to the public" because she had stopped going to the psychiatrist (Dr. Charles Gibbs) to whom she had been referred by ESS.9 The "facts" upon which the written reprimand was based were described therein as follows: In the disciplinary action dated July 27, 1999 your continued employment with Miami- Dade County was contingent upon: "Seek assistance from Employee Support Services and attend sessions as designated by ESS. Failure to attend and participate in them will result in further disciplinary action up to and including dismissal." You have failed to follow the recommendation of the Employee Support Services Section. Further violation of the Disciplinary Action requirements will result in dismissal. Less than a month later, Petitioner received a Record of Counseling, dated January 14, 2000, which read as follows: A. That the employee is incompetent or inefficient in the performance of his/her duty. K. That the employee has hindered the regular operation of the Department or Division because of excessive absenteeism. V. That the employee has been habitually tardy in reporting for duty or has absented himself/herself frequently from duty during regular working hours, or has refused to perform a reasonable amount of emergency work after working hours when directed to do so by h[er] superior officer. Facts: The employee has been given the same training afforded any new employee, however the excessive absenteeism and habitual tardiness are negatively reflecting in the productivity and effectiveness of the employee's performance. The excessive absenteeism of the employee is disruptive to the section, resulting in a diminished effectiveness in the service to the public and reducing the inspectors['] field collections. See attachment II: Attendance and tardiness statistic table. "[A]ttachment II" reflected that, from August 26, 1999, to January 11, 2000, Petitioner had been absent 28.47 of a total of 86 work days and had been tardy 22 times. Petitioner received another Record of Counseling on March 10, 2000. This Record of Counseling read as follows: You have had several performance conferences regarding your numerous mistakes and have received copies of all your errors. I have pointed out ways in which you can improve your efficiency, nevertheless you have failed to improve your performance. In addition to the regular training afforded all new employees, you were re-trained when I observed that you were not improving and were repeating the same mistakes on a daily basis. Your poor performance negatively impacts our section[.] [I]t lowers our productivity and affects customer service. You must correct this situation immediately[.] [F]ailure to improve your performance will result in further disciplinary action. On Friday, May 12, 2000, Petitioner again was given a Record of Counseling. This Record of Counseling read as follows: You have been informed on multiple occasions that you had depleted your annual and sick time. Since you started to work with Occupational License[s] you have been habitually tardy in reporting for duty and have been excessively absent. In addition you have absented yourself frequently from duty during regular working hours. Your excessive and erratic pattern of absenteeism is disruptive to the Section, resulting in a diminished effectiveness in the service to the public. Furthermore, it affects the inspectors['] field productivity who must stay inside to cover your absences. You must correct the situation immediately by being on time everyday and by planning the usage of accrued time in advance. Failure to comply will result in a disciplinary action leading to dismissal. See attachment of attendance and tardiness table. The "attendance and tardiness table" attached to the Record of Counseling reflected that, from August 26, 1999, to Sunday, May 14, 2000, Petitioner had been absent a total of 303.25 hours out of a total of 1264 possible work hours. On June 1, 2000, Petitioner was sent a memorandum regarding her "[f]ailure to follow procedures." It read as follows: On May 25, 2000 you failed to follow the established procedures concerning licenses under legal status. You served a taxpayer at the counter who came to pay license #444002-0 (under sheriff warrant)[.] [T]his license owed $150.00 [to] Occupational License[s] and $70.00 to the Sheriff['s] Department. You ignored the intermediate screen with the message "Do not print application- Do not file maintenance. Check with your Supervisor first." This failure to follow procedures resulted in a loss to the County, since the taxpayer was not directed to pay the $70.00 Sheriff fee. This is to remind you that you must strictly adhere to the established procedures at all times. Further incidents of this nature will result in a Disciplinary Action up to and including dismissal. That same date, June 1, 2000, Ms. Mekin sent to Ms. Vuelta the following memorandum regarding a "[c]ounter [i]ncident": This is to inform you that Jacquelyn Ferguson claims that someone opened a stapled shopping bag full of papers she had inside her desk drawer, while she went to an assignment at the 1st floor. Ms. Ferguson accused co-workers of opening the paper bag and then passed inappropriate remarks to the clerks assigned to the counter. I informed Ms. Ferguson that no one had been at her desk while she was downstairs. Martha Manthorpe and Milagros Valdivia expressed to me how stressed and upset they feel about the false accusations Ms. Ferguson is making. She then approached Marie Esquivel to claim that for the second time someone had gone into her paper bag. Since Ms. Ferguson was assigned to the Occupational License[s] Section, she has antagonized each person that she has ever worked next to her. All clerks and inspectors have complained of her lack of teamwork skills, her constant harassment , false accusations, and uncooperative behavior. As you are aware, I had to train Ms. Ferguson twice because of her numerous mistakes, nevertheless, I had to give her a Record of Counseling for poor performance[.] [T]o this date she has failed to improve. In addition, I had to give her a second Record of Counseling because of her poor attendance. At this point I feel that I have exhausted all that is available to me as a Supervisor to motivate Ms. Ferguson to perform as expected of any County employee. It is extremely frustrating to divert time [to] constantly monitor Ms. Ferguson in order to diffuse incidents with other employees and taxpayers. This situation is causing undue stress and hardship to the other O.L. employees[.] [T]hey feel it is a punishment when I have to assign them to work next to Ms. Ferguson. Please advise on what my next steps [should] be regarding Ms. Ferguson. On June 21, 2000, a co-worker of Petitioner's, Martha Manthorpe, sent a memoranda to Ms. Vuelta complaining about Petitioner. The memorandum read as follows: I am writing to inform you that working with Jackie has caused considerable aggravation to my co-workers and [me]. I have worked in this department for over seven years, and have never had a problem with another employee. From the time that Jackie began working in our department, she has had problems with her co-workers. She never liked being trained or told what to do by a Clerk I, for no apparent reason, other than the fact that [that person's] classification is less than her[']s. Any clerk that has had to work next to her has endured constant negative comments and insinuating remarks. It has also been noted that she has this particular attitude towards her female co-workers only. Ranier Castro has noticed the different attitude & tone she demonstrates toward another co- worker, Milagros Valdivia, in comparison to him. This attitude has gotten to the point that Milagros was very thankful when she was moved from the counter desk to the mail desk. With me, she portrays an attitude that my job is to serve her alone and that I should drop whatever I am doing when she needs anything. If I do not know the answer to her question, she becomes upset that she needs to ask Cristina. If I am checking in inspectors or balancing their money, she will throw her paperwork in front of me, in order to force me to attend to her needs. Today, she became very rude towards me. She was arguing with Milagros regarding some ticket numbers that she claimed were missing and that someone had taken them. After Milagros told me what had happened, I then told Jackie that nobody had taken her numbers. She then turned her head away from me, put her hand up, and told me that she was not talking to me and that I was not to speak to her. She proceeded to repeat this a few more times while there were taxpayers in the lobby. Another problem that we have had with Jackie is that she has an extreme problem with smells either in the office or at the counter area. She will spray room deodorizers several times a day in front of taxpayers that are waiting to be served. In addition, Jackie has been noted to give incomplete information to taxpayers, specifically Hispanic taxpayers, or sending them to incorrect departments to solve their problems. It is very difficult & stressful to work in a[n] office environment with a co-worker that does not work as a team player & can be disrespectful to others. On June 22, 2000, Ms. Vuelta sent Petitioner a memorandum regarding an "[u]nauthorized [a]bsence." It read as follows: On Thursday, June 22, 2000 you left for lunch at 1:05 P.M. and did not return to work.[10] You have walked out of your job on several occasions since you started to work at Occupational License[s]. Once again you failed to inform your Supervisor about your absence[.] [T]his is considered an abandonment of your responsibility at the public counter, therefore creating a Customer Service crisis. On June 27, 2000, Ms. Vuelta, acting on the suggestion of Ms. Mekin, signed a Disciplinary Action Report (June 2000, DAR) recommending the termination of Petitioner's employment. "Attachment I" of the June 2000, DAR set forth the "charge[s]" against Petitioner. It read as follows: That the employee is incompetent or inefficient in the performance of [her] duty. That the employee has been offensive in [her] conduct toward [her] fellow employees, wards of the County or the public. D. That the employee has violated any lawful or official regulation or order, or failed to obey any lawful and reasonable direction given [her] by a supervisor, when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonabl[y] be expected to result in lower morale in the organization or result in loss, inconvenience or injury to the County Service or to the public. K. That the employee has hindered the regular operation of the department or division because of excessive absenteeism. S. That the employee is antagonistic towards superiors and fellow employees, criticizing orders, rules and policies, and whose conduct interferes with the proper cooperation of employees and impairs the efficiency of the County service. V. That the employee has been habitually tardy in reporting for duty or has absented [herself] frequently from duty during regular hours, or has refused to perform a reasonable amount of emergency work after working hours when directed to do so by [her] superior officer. "Attachment II" of the June 2000, DAR described the "specific actions [of Petitioner and the] statements" made by her, which warranted the termination of her employment: On March 10, 2000 you were given a Record of Counseling because of your poor performance[.] [T]his Record of Counseling had to be given to you because of your lack of response to repeated training sessions where your Supervisor pointed out your errors and outlined expectations. You also had several performance conferences where your Supervisor tried to motivate you to improve your efficiency[.] [A]s of this date you have failed to achieve the expectations of this unit. On several occasions you have been offensive and abusive with your co-workers in front of taxpayers[.] [Y]ou have also been abusive and offensive to the taxpayers in front of your co-workers. On April 14, 2000 you were given a memo in reference to a complaint letter from a taxpayer. Your behavior has created an intimidating and hostile working environment. D. On multiple occasions you have failed to comply with the rules, policies and directives of the section. This situation results in a disruption of the smooth operation of this unit, affecting both our effectiveness and our Customer Service. On December 20, 1999 you were given a Disciplinary Action for failure to follow the recommendations of the Employee Support Services. On June 1st, 2000 a memo had to be given to you for failure to follow procedure that resulted in an economic loss to the County. On May 12, 2000 you were given a Record of Counseling because of your excessive absenteeism. From August 1999 through May 14, 2000 you were absent 303.25 hours, with 209.00 hours of this total being a result of your calling in sick. S. On December 10, 1999 you were antagonistic with a Tax Record[s] Supervisor II from another section. You were advised to stay away from any other section of the Tax Collector and to resolve your differences using the proper channels. Furthermore we had had to rotate all Clerks and Field Inspectors to work next to you at the counter because they have all complained of your lack of teamwork, unreasonable conduct and your poor Customer Service. This situation has created an antagonistic environment interfering with your peers['] work performance. You have been verbally counseled by your immediate Supervisor, by my Assistant and by me on multiple occasions regarding appropriate behavior expected from you. V. During your time at Occupational License[s] you have been habitually tardy and have on several occasions walked out of the office abandoning your duties, without notifying any Supervisor. You were given written counseling on June 26, 2000 for the most recent occurrence. You have been with Occupational License[s] since August, 1999. During this time your inadequate and antagonistic conduct as well as your poor performance have caused an adverse working environment for your peers and your Supervisors, hindering the proper delivery of Customer Service. Petitioner was not served with the June 2000, DAR until a little more than a year after it had first been signed by Ms. Vuelta. Petitioner had stopped coming to work on June 25, 2002 (the same date that Ms. Mekin had recommended Petitioner's termination) and was not heard from until a month or two later when she contacted Geneva Hughes, who had replaced Ms. Carpenter as the Finance Department's Personnel Manager, and told Ms. Hughes that she was "not feeling well." At Ms. Hughes' suggestion, Petitioner applied for a year's leave of absence (retroactive to when she stopped coming to work in June). Ms. Baum granted the leave request because she "felt that [Petitioner] needed the time to get whatever [were] . . . the problems [Petitioner was experiencing] in order, and if [Petitioner] needed that time, then [Ms. Baum wanted to] be accommodating." At no time did Petitioner fill out the necessary paperwork to apply to participate in the sick leave pool, although Ms. Hughes explained to Petitioner what she needed to do to make such application. On or about December 19, 2000, before any formal action had been taken on the termination recommendation contained in the June 2000, DAR, Petitioner filed a second employment discrimination charge with the EEOC against the County, EEOC Charge No. 150A10614 (which is described above). Ms. Vuelta re-signed the June 2000, DAR on June 28, 2001, and the re-signed document was served on Petitioner after she returned to work from her year's leave of absence. Ms. Baum (who was responsible for making the "final decision" on the matter) accepted the recommendation of termination contained in the June 2000, DAR, and by letter dated July 10, 2001, which read as follows, so advised Petitioner: This letter is to advise you that you are terminated from County Employment, effective close of business Friday, July 06, 2001. This action was taken in accordance with Chapter VIII, Section 7, Paragraphs (A), (B), (D), (K), (S), and (V) of Dade County's Personnel Rules, as detailed in the Disciplinary Action Report presented to you on June 28, 2001 (copy attached).11 You may, if you desire, in accordance with Chapter VIII, Section 5, of the Dade County Personnel Rules, appeal this action to a Hearing Examiner by writing to Maria Casellas, Director, Employee Relations Department, 111 Northwest First Street, Suite 2110, Miami, Florida 33128. This appeal must be received within fourteen (14) days of the receipt of this letter. 61. Petitioner was terminated because she was "just not progressing and she was just not functioning" as an employee should. Neither her termination nor the "write-ups" that preceded it were motivated by a desire to retaliate against her for having previously complained that she was the victim of employment discrimination by the County or by any other illicit motive. Petitioner did not "appeal [her termination] to a Hearing Examiner," but the representative of the collective bargaining unit of which she was a member did file a grievance and seek arbitration on Petitioner's behalf. The collective bargaining representative ultimately "withdr[ew] the [grievance] without prejudice," explaining in its letter of withdrawal that it had been unsuccessful in its efforts to contact Petitioner concerning the grievance and, based on Petitioner's "non- respons[iveness]," it had concluded that Petitioner was "not interested in the pursuance of her dismissal arbitration." Thereafter the American Arbitration Association closed the file in the case. In summary, there has been no persuasive showing of any acts of commission or omission by the County adversely affecting Petitioner's compensation or other terms, conditions, or privileges of her employment with the County that were based on any protected status she enjoyed or any protected activity in which she had engaged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order in these consolidated cases finding that the County is not guilty of any of the "unlawful employment practices" alleged by Petitioner in EEOC Charge Nos. 150993522, 150A10614 and 150A13134 and, based upon such finding, dismissing these charges. DONE AND ENTERED this 10th day of July, 2003, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 10th day of July, 2003.
The Issue The issues in this case are: (1) whether Petitioner filed her complaint with the Florida Commission on Human Relations within 365 days of the alleged discriminatory event; and (2) whether Petitioner requested an administrative hearing within 215 days of the filing of her complaint.
Findings Of Fact Petitioner, Earlene Johnson, is an African-American. Prior to December 1996 Ms. Johnson filed a grievance when Respondent, Chautauqua Office of Psychotherapy and Evaluation (hereinafter referred to as "Chautauqua"), failed to promote her. On December 4, 1996, Ms. Johnson was terminated from employment with Chautauqua. At some time after her termination, Ms. Johnson engaged legal counsel with the intent of filing a complaint of discrimination with the Florida Commission on Human Relations (hereinafter referred to as the "Commission"). Toward this end, Ms. Johnson signed an Intake Questionnaire and an Affidavit on October 30, 1997. No copy of the Intake Questionnaire or Affidavit was provided by the Commission to Chautauqua within five days of their receipt. On May 4, 1998, more than one year after the alleged acts of discrimination, Ms. Johnson was sent a Charge of Discrimination by Joe Williams, an Intake Counselor for the Commission. Mr. Williams instructed Ms. Johnson of the following in the cover letter which accompanied the Charge of Discrimination: In order for the Commission to proceed further with this matter, you must: Review the complaint; Sign the complaint in the designated spaces in the presence of a notary public; Return the signed complaint to this office in the enclosed self-addressed envelope. Because a complaint of discrimination must be filed within the time limitation imposed by law (in most cases the limitation is 365 days from the date of the alleged discriminatory act), I urge you to complete these three steps as soon as possible. . . . . Ms. Johnson signed the Charge of Discrimination sent to her by Mr. Williams on the date it was sent, May 4, 1998. Ms. Johnson's Charge of Discrimination was not, therefore, filed within 365 days of the date of the last act of discrimination alleged by Ms. Johnson: Ms. Johnson's termination from employment on December 4, 1996. When the Commission failed to complete its investigation of Ms. Johnson's Charge of Discrimination within a reasonable period of time, Ms. Johnson requested an administrative hearing by letter dated August 3, 1999. Ms. Johnson's request for hearing was made one day short of one year and three months after the Charge of Discrimination was filed with the Commission. The Commission filed Ms. Johnson's request for hearing with the Division of Administrative Hearing on September 14, 1999. Chautauqua filed a Motion to Dismiss Petition. An Order to Show Cause was entered after Ms. Johnson failed to respond to the Motion. Ms. Johnson was ordered to answer the following questions: Did the events that Petitioner believes constitute discrimination occur on or before December 4, 1996? If not, when did the events take place? Did Petitioner file a Charge of Discrimination with the Florida Commission on Human Relations on or about May 4, 1998 (a copy of a Charge of Discrimination which appears to have been filed by Petitioner is attached to this Order.) If not, when was it filed? If the Charge of Discrimination filed with the Florida Commission on Human Relations was filed more than one year after the events which Petitioner believes constitute discrimination occurred, why wasn't the Charge filed sooner. Petitioner should provide a detailed answer to this question. Ms. Johnson responded to the questions asked in the Order to Show Cause as follows: The events that petitioner believe [sic] constitutes discrimination occurred before and on December 4, 1996. Petitioner signed a complaint of Discrimination which was signed on October 30, 1997 which was filed by Petitioner's former Lawyer. Which a copy is attached [sic]. Petitioner's Lawyer filed a charge of Discrimination less than one year before the events which the Petitioner believes constitutes [sic] Discrimination. Which a copy is attached [sic]. Petitioner's former Lawyer [sic] address and phone number is [sic] attached. Attached to Ms. Johnson's response to the Order to Show Cause was a copy of an Affidavit and an Intake Questionnaire signed October 30, 1997, a letter dated January 10, 1998, from Ms. Johnson's legal counsel, and the May 4, 1998, letter from Mr. Williams asking Ms. Johnson to sign a Charge of Discrimination. It is clear from Mr. Williams' letter that no Charge of Discrimination was filed by Ms. Johnson with the Commission until more than 365 days after the alleged act of discrimination, December 4, 1996.
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 complaint of discrimination filed in this case by Earlene Johnson. DONE AND ENTERED this 24th day of May, 2000, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2000. COPIES FURNISHED: Earlene Johnson 185 Cook Avenue DeFuniak Springs, Florida 32433 Robert P. Gaines, Esquire Beggs & Lane Post Office Box 12950 Pensacola, Florida 32576-2950 Sharon Moultry, Agency Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether the Florida Commission on Human Relations (FCHR) correctly determined that it lacks subject matter jurisdiction over Petitioner’s claim of unlawful employment discrimination because the complaint was received more than 365 days after the date of the alleged violation?
Findings Of Fact AAR Corp. (AAR) is an aviation support company which provides maintenance, repair, and overhaul services to air carriers at various facilities through the United States. AAR uses its own employees in addition to utilizing employees from its temporary staffing company, AMS. When AAR’s business increases, it increases its workforce by adding workers from AMS. When AAR experiences a downturn in business, it similarly reduces its workforce, typically, by reducing workers from AMS through layoffs. Business is usually slow for AAR and AMS during the peak airline travel times, including summer and the winter holidays. Business of AAR and AMS is also affected by AAR's contracts with major airline carriers for scheduled and non-scheduled maintenance to aircraft. Magri was hired by AMS on October 27, 2011, as a Sheet Metal mechanic at the AAR Miami International Airport facility. She began work January 16, 2012, and at all times material hereto, worked as an Interior Mechanic for AMS. Magri's last day physically working for AMS was October 10, 2013. In 2013, Pedro Estrada (Estrada) became Magri's immediate supervisor. According to Magri, Estrada frequently subjected Magri to sexual jokes, graphic comments about her body, and requests for sexual favors.2/ At the end of September or beginning of October 2013, Estrada came up behind Magri and placed his penis against her buttocks in a sexual manner. Shortly after making a sexual harassment complaint about her supervisor in September 2013, Magri was given a disciplinary memo for poor performance on October 4, 2013. Although there is no prior record of written discipline against Magri, this memo notified her that this was a "final warning" and any future violations could result in termination. On October 10, 2013, Magri was sent home by her then immediate supervisor, Plamen Ilonov (Ilonov), Manager of Interior, allegedly due to a lack of work. Approximately eight other AMS workers were laid off for the same reason on that date. AMS employees were aware of a likely work slowdown at that time because US Airways cancelled its contract with AAR in the fall of 2013 due to US Airways impending merger with American Airlines. However, neither Magri, nor her co-workers, were told by Human Resources or their supervisors, the anticipated duration of the layoff. In fact, it was common practice for AMS employees to be laid off and then returned to work within a week to a month due to the workflow fluctuations. This happened to Magri for a month in 2012. Laid off employees, including Magri, were directed to regularly call or text their supervisor to see when work was available. AMS had no system of notifying employees whether a layoff would be long or short term. When a layoff was anticipated to be long term, the AMS worker was removed from the Human Resources payroll system and internal paperwork was generated indicating termination, however, the employee was not notified of their status other than "lay off." At the time of an anticipated long-term layoff, the AMS Human Resources Department also deactivated the worker's security badge that would provide access to the facility. However, the employee was not asked to return the badge, nor was the employee advised that the badge was inactive. When she was sent home on October 10, Magri was instructed by Ilonov to check with him regarding when she might be returned to the work schedule. At this time she was not aware a decision was made that she would likely be laid off more than a month. For the next two weeks, Magri called and sent text messages to Ilonov looking for clarification as to when she might be returned to work. Magri sent a text message to Ilonov on October 11 asking "Why me." Ilonov responded that 10 people were affected, not just Magri. Magri asked, "Plamen do you think its [sic] layoff will take long time?" On October 12, after receiving no response, Magri texted Ilonov, "Good morning, Plamen, do you think I have to take out my tool box?" Ilonov replied, "Good morning, it is possible. I don't see much next 2-3 months." In a telephone conversation this same week, Ilonov indicated to Magri that work might be available October 21 if United Airlines planes arrived for service. Based on this, Magri had a legitimate expectation that she would be returned to the schedule. On October 20, Magri sent a text to Ilonov stating, "Do you don't [sic] know how long? I'm very scared without work." Ilonov did not reply. During this week, several employees were called to return to work. Ilonov did not return Magri to work because he only called back those he considered his "best" workers. On October 24, Magri sent several text messages to Ilonov seeking an explanation of when she might return to work or why she wasn't called back. Ilonov responded that he was calling whoever he thought he needed, and "We are really slowing down, and soon more changes." On October 25, Magri went to the facility to speak directly with Ilonov. During this meeting he made it clear to Magri for the first time that it was not his decision whether to put her back on the schedule, and that he did not think the "higher ups" wanted her to return. He told her he could not tell her anything further and that she would need to contact the Maintenance Manager, Luiz Gonzalez (Gonzalez). This was the first time Magri realized that this would not be a short-term layoff. At some point shortly thereafter, Magri spoke to Gonzalez by telephone, who told her she needed to look for alternative employment. Respondent maintains two conflicting factual assertions. Respondent contends the decision to terminate Magri's employment was made on October 10, 2013, as evidenced by its internal removal of Magri from the payroll system and the deactivation of her employee security badge (neither of which Magri was aware). Alternatively, Respondent claims there was no decision to terminate Magri and that she remains eligible for rehire. Regardless of whether Magri's separation from employment was a termination or long-term layoff, the earliest Magri knew or should have known that she suffered adverse action was October 24, 2013, when she became aware that although some of her co-workers were being immediately called back to work, she was not. Accordingly, Magri's charge, filed on October 16, 2014, which is 357 days from the alleged violation, was timely with regard to her claim of sex discrimination and retaliation arising from her termination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations decline jurisdiction of Petitioner's charge of sexual harassment, which allegedly occurred prior to October 10, 2013, and take jurisdiction of Petitioner's charge of sex discrimination and retaliation arising from her separation from employment on October 24, 2013. DONE AND ENTERED this 29th day of February, 2016, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 29th day of February, 2016.
The Issue The issue is whether Respondent committed an unlawful employment practice in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Petitioner was employed for approximately five years with Respondent as a salesman. RF Group, LLC, is a limited liability company, doing business as Respondent, McGowan's Heating and Air Conditioning, and is a company engaged in the heating and air conditioning business. Petitioner was a successful salesman for four and one- half years with the company until a new salesman was hired. According to Petitioner, the new salesman was given most of the sales leads and Petitioner was cut out. Eventually, Petitioner's salary was reduced due to a decrease in his sales performance. He attributes his decrease in sales production to Respondent choosing the new salesman over him. Although he claimed age discrimination in his initial complaint, Petitioner offered no evidence or testimony that he was not given the sales leads due to his age and that the younger salesman received the leads because Respondent considered Petitioner too old to conduct his business. Petitioner resigned his position with Respondent because he was not making enough salary. After his resignation, Petitioner went to work with Total Air Care, but his employment was terminated due to company lay-offs in October 2010.
Recommendation it is Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations issue a final order finding Respondent not guilty of the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 11th day of August, 2011, 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 11th day of August, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 G. Alan Howard, Esquire Milam, Howard, Nicandri, Dees & Gilliam, P.A. East Bay Street Jacksonville, Florida 32202 Luis G. Arias 3526 Laurel Leaf Drive Orange Park, Florida 32065 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues in this case are, one, whether Respondent corruptly used his official positions to sexually harass female subordinates in violation of Section 112.313(6), Florida Statutes; and, two, whether Respondent solicited or accepted sexual favors from female subordinates based upon any understanding that his vote, official action, or judgment would be influenced thereby, in violation of Section 112.313(2), Florida Statutes.
Findings Of Fact Respondent Rudy Maloy (“Maloy”) worked at the Florida Department of Transportation (“DOT”) from 1980 until October 21, 2001. The last seven years of his career in state government were spent in DOT’s Turnpike District Planning Office, where Maloy served as the “Public Involvement Manager.” In that capacity, Maloy conducted workshops and public hearings around the state concerning Turnpike projects. In 1992, Maloy was elected to the Leon County Commission as a Commissioner-at-Large. He was reelected twice, in 1996 and 2000. At the time of the final hearing, Maloy was a sitting Commissioner. Laurie Bradley When Maloy began working in the Turnpike District Planning Office on October 7, 1994, Laurie Bradley (“Bradley”) was already employed there in a career service position, namely, administrative assistant to the director of planning. Though she reported to the director, who was her immediate supervisor, Bradley performed secretarial functions for others in the office, including Maloy after his arrival. Maloy did not have the authority to promote Bradley, increase her salary, or let her go, but he was one of Bradley’s “bosses” in the sense that he could assign her tasks. Maloy and Bradley enjoyed a cordial relationship at work, at least by outward appearances. For example, Maloy frequently gave Bradley (and other co-workers) the complimentary tickets to events such as hockey games and concerts that he, as a County Commissioner, routinely received but could not always use himself. Bradley genuinely appreciated this token of Maloy’s generosity. She thought Maloy was a very friendly person, and she was friendly toward him. The two, in Bradley’s words, “got along fine.” At the final hearing, however, Bradley testified about other acts and practices of Maloy’s that she considered decidedly unfriendly. According to Bradley, Maloy touched her inappropriately on a number of occasions, as follows: Hugs. Bradley alleged that Maloy hugged her——from the side, around the waist——many times, and that after awhile this began to bother her. Shoulder rubs. Bradley alleged that “fairly often” Maloy stood behind her and rubbed her shoulders without ever being invited or encouraged to do so. Kisses. Bradley alleged that in or around February 1996, Maloy kissed her on the cheek. Bradley also claimed that a few weeks later, Maloy kissed her on the mouth, while the two were alone together in an elevator going down at the end of a workday. Caresses. Bradley asserted that on one occasion in May 1996, within hours, ironically, after they had received sexual harassment training, Maloy taunted her by stroking her arm and asking if such behavior constituted sexual harassment. Bradley further averred that Maloy expressed his opinion that if one person is bothered by another’s conduct in the workplace, then the two should resolve the problem privately, rather than reporting it to management. Finally, Bradley alleged that, as part of this episode of teasing, as she perceived it, Maloy stated that he might be able to get her a job with the county having a higher salary than her present position.1 Maloy testified that he never touched Bradley inappropriately, and he specifically denied her allegations to the contrary. Thus, the evidence is irreconcilably in conflict as to whether Maloy sexually harassed Bradley. It is significant, therefore, that not a single witness who testified at the final hearing had actually seen Maloy touch Bradley improperly or in an unwelcome manner. In contrast, one disinterested witness testified credibly that she observed Bradley hug Maloy once or twice as a friendly gesture of thanks for receiving tickets to a hockey game; this testimony is accepted as true. Several witnesses who lacked personal knowledge of any misconduct on Maloy’s part were called to establish that Bradley told others in confidence——at or near the time of the events in question——that Maloy was allegedly harassing her. There is no doubt that Bradley did share such information with others. In fact, her contemporaneous accusations were soon reported to persons in DOT’s management, who understandably insisted that an investigation be conducted. Consequently, Bradley submitted a formal written complaint about Maloy to her employer, and DOT investigated the matter.2 That Bradley complained to others about Maloy in 1996 is circumstantial evidence from which one might infer that the alleged sexual harassment occurred.3 It is relatively weak circumstantial evidence, however, because it ultimately rests largely, if not entirely, on the credibility of the very same person——Bradley——whose testimony it was offered to corroborate. Indeed, drawing the inference largely would beg the question of Bradley’s veracity, for doing so would require that her veracity (which Maloy disputes) be assumed.4 Having carefully weighed and evaluated all of the relevant, persuasive evidence, the undersigned is unable to find, without hesitancy, that Maloy engaged in the conduct of which Bradley has accused him. This determination, it should be stressed, reflects the fact-finder’s judgment concerning the weight of the evidence and nothing more; it is purposefully not a finding regarding what occurred or did not occur between Bradley and Maloy.5 The undersigned affirmatively finds that whatever transpired between them, Maloy did not intentionally use or attempt to use his official positions to secure a benefit for himself through the alleged harassment of Bradley.6 Likewise, it is found, by a preponderance of the evidence, that there was no understanding between Maloy and Bradley that Maloy’s votes, official actions, or judgment would be influenced by any thing of value that Maloy solicited or accepted from Bradley——assuming he requested or received any such thing, which was not clearly and convincingly proved. Ophelia Morris In December 1996, Ophelia Morris (“Morris”) replaced Bradley as the director’s administrative assistant in the Turnpike District Planning Office. As had Bradley, Morris served as a secretary to a number of managerial employees, including Maloy. She was a career service employee. Maloy could assign work to Morris, but he lacked the power to promote or fire her. Maloy and Morris became friends, and their friendship deepened over time. By 1999, the two were sufficiently close that Morris routinely confided in Maloy, sharing private information with him concerning the personal problems she was having with her then-fiancé, whom she planned to (and did) marry in May of that year. In June 1999, soon after Morris got married, Morris and Maloy began a mutually consensual sexual affair. While there are some conflicts in the evidence regarding certain immaterial details of their relationship,7 the fact-finder is convinced that neither party entered into this adulterous affair as the result of coercion, bribery, intimidation, harassment, or any type of untoward pressure, either express or implied; rather, each wanted to have an extramarital sexual relationship with the other. Some time in the autumn of 1999, Maloy offered Morris a job as his aide at the County Commission.8 The undersigned is not convinced that Morris had attempted, in any serious way, to break away from the ongoing affair with Maloy before he made this offer of employment. To the contrary, it is found that, more likely than not, Morris remained satisfied with——and had no present intention to end——the affair at the time Maloy proposed to hire her as his aide.9 Morris testified that, after initially demurring, she finally agreed to accept the at-will position as Maloy’s aide, wherein she would serve at his pleasure, but only on the condition that she and Maloy must cease having sex once she was on the county’s payroll. Morris claimed that Maloy reluctantly assented to this condition. Morris started working for Leon County as Maloy’s aide on Monday, December 20, 1999. At a Christmas luncheon that week, Morris met Denise Williams, a one-time aide to County Commissioner Cliff Thaell who was then employed in the county’s Public Works office. The two women quickly became friends and—— within a matter of days——lovers, commencing their own affair shortly after the start of the new year. In January 2000, some secrets were revealed. Denise Williams divulged to Morris that she, Denise, had slept with Maloy and asked whether Morris had done the same. Morris lied to Denise Williams and denied that she had slept with Maloy. Shortly thereafter Morris confronted Maloy with Denise Williams’s disclosure, and he admitted that the two had indeed had sex with one another. That same month, Denise Williams separately told Maloy about the affair she and Morris were having. Maloy was upset, angry, and hurt that Morris had been seeing Denise Williams. He urged her to end the affair with Denise Williams, but Morris did not immediately follow Maloy’s counsel. By February 2000, Maloy’s ongoing interest in Morris’s sexual relationship with Denise Williams was starting to cause Morris to become concerned that she would be fired because of that affair. Consequently, Morris stopped talking to Denise Williams, effectively suspending their relationship, and informed Maloy about the apparent breakup. In the meantime, Morris and Maloy continued their liaison, contrary to the supposed understanding that the sex would stop. At hearing, Morris claimed that she continued to participate in the affair with Maloy only because she feared he would fire her if she refused. However, while Maloy clearly had the power summarily to dismiss Morris, there is no convincing evidence that he ever expressly or impliedly threatened——or even intended——to take such action if she declined to have sex with him. In June 2000, unbeknownst to Maloy, Morris resumed her relationship with Denise Williams. Then, in July or August 2000, Denise Williams left a sexually explicit message for Morris on the county’s voice mail system, in a voice mailbox that Maloy checked on a routine basis. Maloy happened to hear this message before Morris did, and he was not pleased. The voice message incident was the beginning of the end of Morris’s employment as Maloy’s aide. Before long——and for a variety of reasons that are not relevant to this case—— Morris resigned, effective September 8, 2000. Two findings about Morris’s separation are made based on a preponderance of the evidence. First, Maloy did not fire Morris or force her to resign. Second, Morris did not leave because of her sexual relationship with Maloy.10 The purported understanding, mentioned above, that the affair between Maloy and Morris would terminate upon Morris’s becoming Maloy’s aide is the factual linchpin of the Commission’s case as it relates to Morris. The reason for this is that Morris clearly and candidly testified (and the undersigned has found) that her relationship with Maloy was mutually consensual and not the product of sexual harassment during the entire period she was employed with DOT. Thus, to establish that Maloy either intentionally misused his public positions to sexually harass Morris or, by sleeping with her, improperly accepted sexual favors as consideration for some official action, the Commission needed convincingly to distinguish and separate the mutually consensual “DOT phase” of the affair (which did not violate the ethics laws11) from the allegedly coercive “County Commission phase.” The undersigned is not convinced, however, that the subject affair comprised two such distinct phases. The evidence is too much in conflict regarding whether Maloy and Morris had an understanding about——or even discussed——ending their affair effective the date Morris started working as Maloy’s aide for the undersigned to find without hesitancy that such occurred.12 As a result, and in any event, it is not clear to the undersigned fact-finder that the affair between Maloy and Morris was coercive during the time she worked as his aide. The evidence in this regard, as the undersigned has evaluated and weighed it, is much too ambiguous to produce in the mind of the trier of fact a firm belief or conviction that, beginning in January 2000, Maloy was explicitly or implicitly forcing Morris to have sex with him——especially given the undisputed fact that Morris freely and voluntarily had been sleeping with Maloy for the previous six months because she wanted to.13 Additionally, the undersigned affirmatively finds, based on the greater weight of the evidence, that whatever transpired between them, Maloy did not intentionally use or attempt to use his official positions to secure a benefit for himself through the alleged harassment of Morris. Finally, it is found, also by a preponderance of the evidence, that there was no understanding between Maloy and Morris that Maloy’s votes, official actions, or judgment would be influenced by any thing of value that Maloy solicited or accepted from Morris. Denise Williams Denise Williams, introduced above, was an aide to Commissioner Thaell from October 1997 through November 1999. At hearing, Denise Williams testified that, in June 1998, Maloy——whom she had known since the mid-1980’s——began to “prey” on her after learning that she was separated from her husband. She alleged that Maloy frequently came into her office, uninvited, to look at her legs, rub her shoulders, or give her a hug. She asserted that this attention was unwanted but admitted that she never told Maloy to stop. To discourage Maloy, she claimed, she tried to dress in a less feminine way. At the same time, she acknowledged, she sometimes hugged Maloy back.14 The picture of Maloy that Denise Williams’s testimony ultimately paints——for which, it must be said, there is no independent, eyewitness corroboration——is that of a man pursuing her with dogged persistence, ignoring her constant attempts to turn him off.15 Maloy, in contrast, suggested that Denise Williams had taken the initiative, signaling her availability by often making mildly suggestive comments to him such as, “You could have been my husband.” It is not surprising, then, that while there is no dispute that the two had casual sex at Denise Williams’s apartment in February 1999, the evidence regarding how this came about is very much in conflict. Denise Williams testified that, despite having no desire whatsoever for Maloy, she finally gave in to his repeated requests for sex in order to “let him satisfy his curiosity” in the hope that he then would quit “bugging” her.16 For his part, Maloy depicted Denise Williams as the initiator who, one Tuesday or Wednesday, unexpectedly told him that her kids would be gone the next weekend and asked him to come over for a “visit” on Saturday, which invitation he accepted. It is undisputed that Maloy and Denise Williams had casual sex a second time, in July 1999, again at her place.17 Given the conflicts and ambiguities in the evidence, the fact-finder is not convinced, without hesitancy, that the events unfolded precisely as Denise Williams has described them. Yet, he is not able to find, by the greater weight of the evidence, that Maloy’s testimony is entirely accurate, either. Thus, there can be no affirmative findings, one way or the other, on the broad question whether Maloy sexually harassed Denise Williams. Concerning the particular charges, the fact-finder is not convinced that Maloy intentionally used or attempted to use his official position to secure a benefit for himself through the alleged harassment or “pursuit” of Denise Williams. Nor is he convinced that there was an understanding between Maloy and Denise Williams that Maloy’s votes, official actions, or judgment would be influenced by any thing of value that Maloy solicited or accepted from her. These determinations, it should be clear, reflect the fact-finder’s assessment of the quality and weight of the evidence; although properly made by the undersigned in his role as the trier of fact, they are not affirmative findings concerning what occurred or did not occur during the relevant timeframe.18 Tina Williams Tina Williams (no relation to Denise) was Maloy’s aide at the County Commission for about six months, from July 15, 1999, through the end of that year. Before coming to work for Maloy, she had worked as an accountant at the Florida Commission on Human Relations (“FCHR”), the state agency where persons who believe they have been discriminated against can file charges as a first step towards redress. Tina Williams had been introduced to Maloy in late 1998 by a mutual acquaintance, Edward Dixon, who at the time was not only a Gadsden County Commissioner but also was associated with the FCHR in some way. A few months later, Tina Williams had bumped into Maloy again at a local function, and he had asked her to apply for the position as his aide, which she later did. After having received favorable recommendations from Commissioner Dixon and from Ron McElrath, a fraternity brother of Maloy’s who was then the Executive Director of the FCHR, Maloy had hired Tina Williams. Tina Williams claims that Maloy sexually harassed her on numerous occasions, in various ways, starting before she was hired and continuing into September 1999. She testified, for example, that he frequently put his hand on her lap or attempted to do so, hugged and attempted to kiss her, talked dirty on the telephone, and made suggestive comments, including, once when they were on an out-of-town business trip together, “this is so soft” in reference to the bed in her hotel room. Tina Williams testified that the harassment stopped in September 1999, at which point, she asserted, Maloy became increasingly critical of her work and avoided her. Their relationship, she testified, seemed to improve in November 1999, but then in December Maloy asked for her resignation, which she tendered.19 Maloy testified that he hired Tina Williams to be his aide with high expectations concerning her abilities but soon became disappointed in her failure, as he saw it, to measure up. At hearing, Maloy asserted that Tina Williams had simply not worked out in the position for a number of reasons that need not be recounted here. Suffice it to say that Maloy testified he asked Tina Williams to leave in December 1999 because he was generally dissatisfied with her performance on the job. Maloy flatly denies that he ever said or did anything to Tina Williams that could be considered improper or untoward, including touching, kissing, hugging, shoulder-rubbing, suggestive comments, or like conduct. The conflicts in the evidence concerning Tina Williams’s allegations of harassment clearly cannot be attributed to individuals’ unique perspectives or differences of opinion. This is not a situation where two people have described the same historical event in different but reconcilable terms; instead, the testimony has produced two mutually exclusive versions of history. Determining which of the protagonists is telling the purest truth is a difficult task made tougher by several factors. First, there is no independent corroboration of either his testimony or her testimony by a witness having personal, firsthand knowledge of the facts. This is a greater problem for the Commission, of course, because Maloy did not have the burden to prove his innocence. Absent independent corroboration, the conflicting testimony presents a classic “he said-she said” dilemma whose resolution, if one must choose between the competing narratives,20 depends on whether “he” or “she” is deemed to be the more credible witness. In this particular case, because the Commission bears the burden of proving its case by clear and convincing evidence, Tina Williams must be judged not just credible, but considerably more credible than Maloy to sustain a finding of guilt.21 Herein, then, lies the second factor (or interrelated pair of factors) that complicates the fact-finding function: Neither participant’s testimony is inherently incredible;22 and conversely, neither one’s testimony is inherently more credible than the other’s. Tina Williams’s saga of sexual harassment cannot be rejected out of hand as a fabrication; it is obviously not fantastic. Upon hearing her story, one does not think, “That could not possibly have happened.” To the contrary, Tina Williams’s testimony is very believable. And yet, Maloy’s testimony, too, is eminently believable. He has not presented some half-baked alibi that tests credulity but rather has said exactly what one would expect an innocent man, falsely accused of sexual harassment, to say: “I did not do it.” What more, indeed, could he say, if in fact he were innocent? There was, really, no way for Maloy affirmatively to disprove the particular allegations that Tina Williams made. Third, having closely observed both Tina Williams and Maloy on the witness stand, the undersigned is unable to state with assurance, based on their respective demeanors, which of the two was probably telling the truth——or who was not. Both appeared to be sincere in recounting what had happened (or not happened) as they recalled the events in question. Neither appeared to the fact-finder to be lying. After carefully weighing all of the evidence with the foregoing factors in mind, the undersigned is not so convinced by either side’s proof as to conclude with confidence that any particular version of history advanced at hearing is highly verisimilar relative to the competing alternative. To the point, the evidence at bottom does not produce in the mind of this fact-finder a firm belief or conviction, without hesitancy, as to the truth of Tina Williams’s allegations.23 Thus, the fact-finder is not convinced that Maloy intentionally used or attempted to use his official position to secure a benefit for himself through the alleged harassment of Tina Williams. Based on a preponderance of the evidence, however, the undersigned finds that there was no understanding between Maloy and Tina Williams that Maloy’s votes, official actions, or judgment would be influenced by any thing of value that Maloy solicited or accepted from her——assuming he requested or received any such thing, which was not clearly and convincingly proved. Ultimate Factual Determinations24 The undersigned determines as a matter of ultimate fact that the Commission has failed to prove, by clear and convincing evidence, that Maloy violated either Section 112.313(2) or Section 112.313(6), Florida Statutes, as charged, in relation to his respective associations with Laurie Bradley, Ophelia Morris, Denise Williams, and Tina Williams. It is therefore determined, as a matter of ultimate fact, that Maloy is not guilty of the ethics violations with which he has been charged.
Recommendation The fact-finder having determined that the evidence fails clearly and convincingly to establish a factual basis for culpability on any ground charged, it is RECOMMENDED that the Commission enter a final order declaring Maloy not guilty of violating Sections 112.313(2) and 112.313(6), Florida Statutes. DONE AND ENTERED this 25th day of April, 2003, 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 25th day of April, 2003.
