The Issue The issues are whether Respondent committed an unlawful employment practice in violation of the Florida Civil Rights Act of 1992 when it terminated Petitioner's employment in December 2001, and if so, what relief is appropriate, if any.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner is an African-American female. She was born in November 1984, and she is currently 18 years old. Respondent is the largest franchisee of Popeye's Chicken and Biscuits (Popeye's) restaurants in the country. Respondent operates over 160 Popeye's restaurants in seven states, including Florida. Popeye's is a fast-food restaurant which specializes in fried chicken and biscuits. One of the Popeye's restaurants operated by Respondent is located in Sanford, Florida. Respondent acquired the franchise for the Sanford restaurant in mid-September 2000. In December 2000, Petitioner was hired by Respondent as a "crew member" at Popeye's in Sanford. Petitioner was 16 years old when she was hired. The general duties of a crew member include cleaning the interior and exterior of the store, battering and seasoning chicken, frying the chicken, working the cash registers, washing dishes, and other duties assigned by the shift manager. Crew members operate power-driven machinery, such as bakery-type mixers (for making biscuits) and meat marinators (for seasoning the chicken), and they also use slicing machines for preparing coleslaw and cutting chicken. Crew members work as a "team" and, because there are only four to five crew members per shift, each crew member is expected to be able to (and is often required to) perform each of the duties listed above. During the course of her employment, Petitioner typically worked as cashier at the drive-thru window or the counter in the lobby, although she did perform other duties. Petitioner acknowledged at the hearing that she could not perform some of the job duties, such as cooking the chicken, because of her age. Petitioner was often required to walk past the fryers where the chicken was cooked while performing her other duties, and she was thereby exposed to the hot grease which had a tendency to splatter when the chicken was frying. On occasion, Petitioner had to go into the walk-in freezer in the kitchen area of the restaurant. She also carried the hot water heaters used to make tea, and she used the bakery-type mixers and meat slicers. There are dangers inherent in the duties performed by crew members. For example, the grease in the fryers is in excess of 300 degrees, and it often splatters onto the floor making the floor slippery. The floor of the walk-in freezer can also be slippery due to ice. Because of the team approach utilized by Respondent and the nature of Popeye's business, it would be difficult to limit the duties performed by Petitioner (or other minors) to those not involving hazards such as exposure to hot grease or use of dangerous machinery. Petitioner's starting salary was $5.75 per hour. Her salary remained the same during the entire term of her employment at Popeye's. Crew members work either the "day shift" or the "night shift." The day shift begins at 8:00 a.m. and ends at 4:00 p.m.; the night shift begins between 3:00 p.m. and 4:00 p.m. and ends after the restaurant closes, which is often after 11:00 p.m. Petitioner primarily worked the night shift since she was still in high school during the time that she was working for Popeye's, and she worked later than 11:00 p.m. on occasion. Because of the small number of crew members working on each shift, it was highly impractical for minor employees to be provided the 30-minute breaks every four hours as required by the Child Labor Law. This was a particular problem on the night shift since a minor employee such as Petitioner, who began her shift at 3:00 p.m. or 4:00 p.m., would be taking a break between 7:00 p.m. and 8:00 p.m., which was one of the busiest times for the restaurant. Petitioner only worked part-time at Popeye’s. Her employment earning records for June 2001 through December 2001 show that even during the summer months she worked no more than 46 hours during any two-week pay period. Those records also show that Petitioner typically worked significantly fewer hours during the school year. Petitioner's employment earning records show that she worked an average of 29.25 hours per pay period or 14.625 hours per week. That average is a fair measure of the hours typically worked by Petitioner because the median is 29.24 hours per pay period and, even if the periods with the highest and lowest number of hours are not considered, the average would be 30.02 hours per pay period.2 In August 2001, Petitioner began to hear "rumors" from her co-workers and shift managers that she "had to be gone" soon. She understood those rumors to mean that she would be "laid off," and she further understood that it was because she was a minor. The "rumors" that Petitioner heard were based upon a new policy adopted by Respondent on August 6, 2001 ("the Policy"). The Policy was adopted by Respondent as a direct result of a series of administrative fines it received from the Florida Department of Labor and Employment Security for violations of the Child Labor Law. The violations included minors working more hours per day and/or per week than permitted, minors working in and around hazardous occupations (e.g., cooking with hot grease), and not providing minor employees with the required 30-minute breaks. The Policy was distributed to Respondent's district managers and area managers. Those managers were responsible for distributing the Policy to the store managers who, in turn, were responsible for implementing the policy and conveying the information in the Policy to the "front line" employees, such as Petitioner. Petitioner did not receive a copy of the Policy until after she had been fired. However, Petitioner was informed of the essential substance of the Policy through the "rumors" described above. The Policy states that "[i]t has long been [Respondent's] policy not to hire minors" who are not exempt under the Child Labor Law. The Policy required all minor employees to be "phased out" by December 1, 2001. The purpose of the four-month phase-out period was to enable the employees to find other employment. The Policy did not apply to minors who could provide documentation to Respondent showing that they were legally married, had their disability of non-age removed by a court of competent jurisdiction, were serving or had served in the Armed Forces, and/or have graduated from high school or earned a high school equivalency diploma. These criteria were taken directly from Section 450.012(3), Florida Statutes, which identifies those minors who are not subject to the state's Child Labor Law. Petitioner did not fall within any of these categories. Consistent with the phase-out schedule in the Policy, Petitioner's employment with Respondent was terminated effective December 1, 2001, although her last work day was actually in late November. Petitioner was 17 years old at the time. Petitioner did not look for other employment after she was fired by Respondent. Petitioner attended some type of summer program at Bethune-Cookman College (BCC) in Daytona Beach, Florida, between June 16 and July 27, 2002. Petitioner received an $800.00 stipend from BCC related to that program. Petitioner enrolled in Barry University (Barry) in Miami Shores, Florida, in August 2002. Had she still been employed at Popeye's at the time, she would have quit since she had always planned to attend college after high school and not to have a career working at Popeye's. Had Petitioner continued to work at Popeye's from December 1, 2001, until June 16, 2002, when she started the summer program at BCC in Daytona Beach, she would have earned $2,354.63.3 Had Petitioner been able to continue working at Popeye's while she was attending the BCC summer program and all of the way through mid-August 2002 when she left for college at Barry, she would have earned an additional $756.84,4 for a total of $3,111.47. The additional $756.84 that Petitioner would have earned by working at Popeye's from June 16, 2002, through August 2002, is less than the $800.00 stipend that she received from BCC. Petitioner obtained a part-time job through a federal work study program once she enrolled at Barry. She worked in that program from August 2002 to May 2003 when the school year ended. She was paid $5.50 per hour, and she earned approximately $2,250.00 in that program. In May 2003, Petitioner returned to Sanford for "summer vacation." Upon her return, Petitioner began looking for a summer job in Sanford, but as of the date of the hearing, she was not employed. The record does not reflect what type of job that Petitioner was looking for or whether she actually applied for any jobs. Petitioner will continue in the work study program when she returns to Barry in August 2003. But for the Policy, Petitioner would have not been terminated in December 2001. She was a good, hard-working employee and she had no disciplinary problems. Respondent is willing to rehire Petitioner now that she is 18. Petitioner is not interested in working for Respondent. She testified at the hearing that she does not want to go back to work for "a company that has done me like that," which is a reference to Respondent firing her based solely upon her age. There is no evidence that Petitioner was mistreated in any way or subjected to a hostile work environment while she was working at Popeye's, nor is there any evidence that such an environment currently exists or ever existed at Popeye's.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order which dismisses Petitioner's unlawful employment practice claim against Respondent. DONE AND ENTERED this 15th day of August, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 15th day of August, 2003.
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of a perceived handicap or disability of obesity and in retaliation for filing an earlier charge of discrimination alleging racial discrimination in violation of Section 760.10(1), Florida Statutes (1995). (All chapter and section references are to Florida Statutes (1995) unless otherwise stated.)
Findings Of Fact Petitioner is a member of a protected class. Petitioner is an African-American female. Respondent employed Petitioner as a registered nurse from sometime in November 1990 until Petitioner resigned from her employment on July 15, 1996. Petitioner claims that Respondent perceived Petitioner as being handicapped or disabled due to her obesity and discriminated against her by creating a hostile work environment that led to a constructive discharge on July 15, 1996. Petitioner also claims that Respondent created the hostile work environment in retaliation for a previous charge of racial discrimination that is not at issue in this proceeding. On February 25, 1995, a therapist employed by Respondent observed that Petitioner did not bend down to assist a patient suffering from a "pseudo-seizure" at Respondent's facility where the therapist and Petitioner both worked. The therapist concluded that Petitioner was physically unable to tend to the patient. Petitioner actually refused to tend to the patient. As Petitioner explained in her testimony, everyone at the facility knew the patient faked the seizures, and Petitioner was overworked and preoccupied with a more pressing matter. Petitioner did not refute the need for a competent health care provider to examine each seizure and ensure that it does not require medical attention. The therapist who observed the incident submitted an incident report to Respondent's director of human resources. The report stated that Petitioner was physically unable to attend to the patient. Respondent conducted an investigation of the incident. Respondent had recently appointed new management. The new personnel investigated the incident and discovered that Petitioner had absences from work of approximately 10 weeks since April 1994. On March 15, 1995, Respondent conducted a corrective action meeting with Petitioner to address the excessive absenteeism and the reported incident on February 25, 1995. The purpose of the meeting was to determine the cause of the absenteeism, including any health problems Petitioner may have been experiencing. Appropriate personnel counseled Petitioner at the corrective action meeting. Petitioner agreed to participate in a "Wellness Program" that provided weekly sessions for health and fitness and was available to all employees. The "Wellness Program" was voluntary, and Petitioner signed documents acknowledging her agreement with the corrective action. Petitioner signed the documentation without objection and did not separately voice any objection. Petitioner attended only one session of the "Wellness Program." Respondent took no adverse employment action against Petitioner for her failure to participate in the program. On April 20, 1995, Petitioner filed a charge of discrimination alleging racial discrimination. Petitioner claimed that Respondent forced her to attend weekly diet classes and keep logs on exercise and health but did not impose similar requirements on two overweight white females. The two white females did not have excessive absenteeism and no employees had filed incident reports against them. For similar reasons, Respondent did not recommend that another African-American female participate in the "Wellness Program." The Commission issued a finding of no cause in regard to the first charge of discrimination. The merits of that charge are not at issue in this proceeding even though the nature of the charge is part of the retaliation claim in this proceeding. Respondent did not change Petitioner's conditions of employment throughout her employment. Petitioner's job duties, responsibilities, schedule, and conditions of employment remained the same. Petitioner perceived that Respondent increased her workload to retaliate for her first charge of discrimination and to create a hostile work environment. An increase in work load did occur, but the increase was motivated by economic factors rather than discrimination. Economic factors forced Respondent to decrease staffing for the entire facility and to appoint new management. Neither Petitioner nor any other staff received a salary increase in 1995. Petitioner never expressed any complaints to management about the alleged hostile work environment. On July 15, 1996, a patient eloped from the unit where Petitioner was working as charge nurse. Petitioner was the person responsible for the patient. On the same day, Respondent scheduled another corrective action meeting. Immediately prior to the meeting, Petitioner resigned from her employment. The letter of resignation does not mention any hostile work environment or similar cause for her resignation. Respondent did not have an opportunity to counsel Petitioner concerning the patient who eloped. Respondent did not intend to terminate Petitioner from her employment. Except for the problems already discussed, Petitioner was a competent nurse that Respondent wished to retain. Competent medical providers are rare, and it was difficult to replace Petitioner. Petitioner failed to show by a preponderance of the evidence that Respondent discriminated against her on the basis of a perceived handicap or disability of obesity. The evidence was insufficient to show that Respondent constructively discharged Petitioner or retaliated against Petitioner for a prior charge of discrimination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding that Respondent did not discriminate against Petitioner, and denying Petitioner's Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 4th day of December, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Matthew Klein, Esquire Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A. 888 East Las Olas Boulevard 4th Floor Fort Lauderdale, Florida 33301 Barbara J. Morgan 2804 Rio Lane Orlando, Florida 32805 Barbara Tashlein, Human Resource Manager La Amistad R.T.C. 1650 Park Avenue, North Maitland, Florida 32751 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether or not Petitioner, Cynthia C. Barber, was harassed, and suffered constructive or retaliatory discharge from employment by Respondent, Modern Plumbing Industries, Inc. ("MPI"), as a result of racial and gender discrimination in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is a black female who, at all times material to the allegations of discrimination in the case, was employed as a plumbing apprentice by Respondent. Respondent is a Florida corporation which operates a commercial plumbing business. At any given time, Respondent may have 20-30 commercial plumbing jobs in Central Florida. These jobs run the spectrum from small residential repair jobs to major commercial installations in shopping centers. Petitioner began working for Respondent in 1996; first as a plumbing assistant, then, after being enrolled in a formal plumbing apprentice program, as a plumbing apprentice, assisting licensed plumbers. When she began working, Respondent sent Petitioner to a wholesale tool supplier where she purchased plumbing tools she would need. Respondent advanced Petitioner the money with which to purchase the tools; this advance was being paid back by automatic withdrawals from Petitioner's pay. In September and October 1997, Petitioner was working as a plumber's apprentice at a job known as the "Oviedo Mall" job. She was one of 10-40 MPI employees on the job. Steven Lewis was the project manager for all MPI jobs. Vincent Pizzuti was the job-site supervisor for the Oviedo Mall job. Chris Bateman was a MPI employee at the Oviedo Mall job working as a plumber. Mr. Bateman had no supervisory authority. In September 1997, an incident occurred wherein Mr. Bateman, who is a white male, threw paper which had been used to wrap a sandwich and a soda can in Petitioner's hard hat. Petitioner was offended by Mr. Bateman's actions and reported the incident to her crew foreman, Mike Higdon. Mr. Higdon immediately asked Mr. Bateman to stop; after a moment, Mr. Bateman stopped. Petitioner believed that this matter was handled satisfactorily. On October 1, 1997, late in the work day, while riding on a golf cart with Mr. Higdon, Petitioner was struck in the back with a "dirt rock." When she turned in the direction the "dirt rock" had come from, she saw Mr. Bateman and another employee looking her way and laughing. Petitioner confronted Mr. Bateman. When she returned to the golf cart, Mr. Bateman threw another "dirt rock." This time the confrontation became physical, and Petitioner and Mr. Bateman had to be separated by co-employees. Petitioner then reported the incident to Mr. Pizzuti who called a co-employee/supervisor on the radio and asked that Mr. Bateman be directed to come to MPI's on-site office. Mr. Bateman had either left the job-site or wouldn't respond to the directive to report to the office; as a result, Mr. Pizzuti advised Petitioner that he would talk to Mr. Bateman the following morning. Later that same evening Petitioner called Mr. Lewis, the project manager. Mr. Lewis advised Petitioner that Mr. Pizzuti had already advised him regarding the altercation, that Mr. Bateman's conduct was unacceptable, and that Mr. Bateman would be fired the following day. The following morning (October 2, 1997), Mr. Bateman was standing outside the job-site office when Petitioner arrived. During a discussion with a co-employee, Petitioner heard Mr. Bateman referring to her as a "bitch" and a "nigger." This resulted in another confrontation. Petitioner then went into the MPI job-site office and reported this incident to Mr. Pizzuti. Mr. Pizzuti then radioed Mr. Bateman's supervisor and directed that Mr. Bateman report to the office. After a few minutes, when Mr. Bateman had not reported to the office, Petitioner advised Mr. Pizzuti that she "could not work under these conditions" and left the job-site. Later that same day, Petitioner received a telephone call from Mr. Lewis who asked her "to come back to the job site, that something would be done" about Mr. Bateman. She told Mr. Lewis that the atmosphere was "too hostile." On October 2, 1997, shortly after Petitioner left the job-site office, Mr. Pizzuti met with Mr. Bateman about his conduct and attitude; an incident report authored by Mr. Pizzuti reflects that Mr. Bateman "became aggravated and stormed out of my [the] office in the middle of the conversation." At this point, Mr. Pizzuti terminated Mr. Bateman. Two days after being terminated, Mr. Bateman was rehired because he "begged for his job back"; MPI was desperate for help; and Petitioner was no longer working at the job-site. Approximately one week after leaving her job, Petitioner attempted to collect her last pay check. She was advised by Mr. Lewis that she had no pay coming because the money advanced for tools had not been paid back. He further advised her that she could be paid if she returned to work and the automatic deduction from her pay continued. During this discussion Mr. Lewis advised Petitioner (quoting Petitioner's testimony) that she "would not have to work with Chris Bateman," apologized for what happened, and assured her "this won't happen again." Petitioner elected to return to work and was assigned to a MPI job-site at Walt Disney World. Mr. McCandless was her job-site supervisor. Although the Walt Disney World job-site was not as convenient to her home as the Oviedo Mall job-site, Petitioner did not make any complaint to MPI management about the re-location. After she started working at the Walt Disney World job-site, Petitioner requested a Friday day-off for child- related reasons; her request was granted. The following Sunday, Petitioner called the MPI answering service to determine what job-site to report to the next day. This was a procedure that was normally used to determine where to report for work. The answering service advised that she was scheduled "off" for Monday. She repeated the process on Monday night and was again advised that she was scheduled "off" for Tuesday. On Tuesday morning, Petitioner telephoned the MPI office and asked to speak to Mr. Lewis and was advised that Mr. Lewis was on vacation. Petitioner then asked to speak to the owner of MPI; she was advised that the owner was not available. Petitioner did not telephone or visit the MPI office following the Tuesday morning telephone call. She did not attempt to call her job-site supervisor, Mr. McCandless. Petitioner just stopped working at MPI.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief herein should be dismissed with prejudice. DONE AND ENTERED this 9th day of August, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2002. COPIES FURNISHED: Cynthia C. Barber 1704 Hawkins Avenue Sanford, Florida 32771 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Amanda J. Green, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Did Petitioner suffer an adverse employment action as a result of an unlawful discrimination by the Department of Corrections (Department) in violation of Subsection 760.10(1)(a) and (7), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner is a female, African-American. Petitioner was first employed by the Department from June 8, 1990 through October 10, 1990. Petitioner notified the Department by letter dated October 5, 1990, that she was resigning her position with the Department effective October 11, 1990. Subsequently, Petitioner applied for a position as correctional officer with the Department on April 3, 1998, and again on October 23, 1998, but was not hired on either of these occasions. Petitioner filed a Charge of Discrimination with the Commission on February 3, 1999, alleging that the Department had discriminated against her by denying her employment while hiring less experienced white correctional officers and that the Department had denied her employment in retaliation for her participation in the USA Case against the Department. There is sufficient evidence to show that Petitioner was a member of the class action suit referred to as the USA Case. On September 8, 1999, Petitioner again applied for a position as a correctional officer with the Department and was hired as a correctional officer with the Department on November 15, 1999. However, Petitioner abruptly resigned that position on January 12, 2000, giving unfair treatment as the basis for her resignation. Petitioner's testimony, which is credible, was that sometime in 2000 she applied for a position as a correctional officer with the Department by sending an application to the Tampa Service Center (an administrative branch of the Department) and that the Tampa Service Center requested that she take a pre-employment drug test and physical. Petitioner testified that since the Department requested that she take the pre-employment drug test and physical it was incumbent upon the Department to offer her the position. Petitioner failed to present sufficient evidence to show that the Department's policies required that she be offered a position once she was asked to submit to a pre-employment physical and drug test. Offers of employment by the Department are conditional only and are contingent upon a satisfactory background check. However, before any job offer was extended to Petitioner, the Tampa Service Center closed down and its records were forwarded to the Orlando Service Center (another administrative branch of the Department). Subsequently, Petitioner contacted the Orlando Service Center concerning her application. The Orlando Service Center was unable to locate any application from Petitioner or any data that could have been electronically stored. Nevertheless, sometime during the latter part of 2000, Petitioner was allowed to resubmit her application to the Orlando Service Center and was considered for a position. The Orlando Service Center determined that Petitioner failed the required background check based on Petitioner's short tenures on two previous employment occasions followed by abrupt resignations. Petitioner's application for employment was rejected on this basis. Petitioner presented evidence that an employee of the Department, Scott MacMeeken had resigned on at least two occasions and had been rehired. However, Petitioner failed to present any evidence as to MacMeeken's race or whether MacMeeken was equally or less qualified than Petitioner. Likewise, Petitioner failed to present sufficient evidence to show that white applicants for the positions which Petitioner had applied for but was not hired, were equally or less qualified than Petitioner. Petitioner failed to present sufficient evidence to show that, during the period of time in question, the Department hired less experienced white correctional officers over equally qualified or more qualified non-white correctional officers, or that the Department, in its hiring process, during this period of time, gave preference to white applicants for correctional officer positions over non-white applicants for correctional officer positions. Petitioner failed to present sufficient evidence to show that either her race, African-American, or her participation in any prior law suits, specifically the USA Case, or the filing of the Complaint with the Commission formed the basis for the Department's rejection of her applications in 1998 or 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 11th day of March, 2002, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Gloria J. Browdy 12042 Villa Road Spring Hill, Florida 34609 WILLIAM R. CAVE 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 11th day of March, 2002. Violet D. Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ernest L. Reddick, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact At all times material hereto, the Dade County Police Benevolent Association (Respondent) was the collective bargaining agent for the bargaining unit of the City of Hialeah Police Department (CHPD). Warren D. Brown (Petitioner) is a black male. At all times material hereto Petitioner was a law enforcement officer with the CHPD, a member of the bargaining unit and a dues paying member of the Respondent. On or about May 11, 1992, Petitioner was attempting to exit a secured and locked double doorway located on the east side of the CHPD's building. Upon pushing a switch, a lock mechanism releases the lock, and a door can be opened. However, at this particular time, the lock was not immediately released. Petitioner applied greater force to the door, which caused it to swing open forcefully (when the lock did release) and strike another officer who was attempting to enter the building through the same door. Petitioner was heard to chuckle after exiting the door. Approximately two to three days later (May 13 or 14, 1992), the officer who was struck by the door filed an internal complaint against Petitioner. The officer had discussed the incident with a CHPD sergeant who had had problems with the Petitioner in the past and who had filed several internal complaints against Petitioner. The officer alleged in his complaint that Petitioner intentionally hit him with the door. The internal complaint was referred to CHPD's Internal Affairs for investigation. The investigation included taking statements from Petitioner, the officer and any witnesses. When the internal complaint was filed against Petitioner, he contacted Respondent for assistance, and Respondent's Senior Attorney, James Casey, represented Petitioner. Casey was present with and represented Petitioner at the initial questioning by Internal Affairs. On or about June 16, 1992, Internal Affairs issued its findings to CHPD's Chief of Police (Chief). The Internal Affairs investigator concluded that Petitioner had intentionally hit the officer with the door. On July 7, 1992, the Chief issued a disposition of the complaint. The Chief determined that the complaint against Petitioner was sustained and that the appropriate discipline was a 10-hour suspension without pay. Further, the Chief scheduled a pre-disciplinary hearing for July 21, 1992. On or about July 13, 1992, the Chief had prepared a recommendation to the Mayor of the City of Hialeah that Petitioner be suspended without pay for 10 working hours from the CHPD. The letter included a summary of the incident, the rules and regulations violated by Petitioner and the disciplinary action for such violations. However, the recommendation was never forwarded to the Mayor for his approval. 1/ The pre-disciplinary hearing was held and, as a result of that hearing, a CHPD Captain was requested to view the photographs of the door which were taken at the time the incident occurred and to examine the door itself. On August 3, 1992, in a memorandum to the Chief, the Captain indicated that it was possible that the door did stick and that Petitioner was not aware of the officer's presence. Furthermore, the Captain recommended that one of the doors be labeled for entering and the other for exiting and that a caution zone be established to alert individuals that they should use caution when opening the doors. Casey was also present with and represented Petitioner at the pre- disciplinary hearing. After the pre-disciplinary hearing, Petitioner contacted Respondent almost on a weekly basis inquiring about the status of his case. Each time Respondent had nothing to relate to Petitioner indicating that nothing had been done by the CHPD and the Mayor. In August 1992, Casey terminated his employment with Respondent. He was replaced by Michael Braverman. Petitioner continued his weekly inquiry to Braverman and received the same response as before. On or about October 20, 1992, the Chief changed the discipline to a written reprimand. However, again, this disciplinary recommendation was not forwarded to the Mayor for his approval. On or about November 19, 1992, Braverman recommended to Petitioner that he accept oral counseling, or an oral reprimand, and end the matter. Petitioner refused. Finally, on or about December 6, 1992, Petitioner forwarded an internal memorandum to the Chief inquiring about his case, reminding him that, according to the collective bargaining agreement, the complaint should have been resolved within 60 days and allowing him five working days to resolve the complaint before he appealed to the next level. On or about December 11, 1992, the Chief informed Petitioner that the complaint was sustained for violation of courtesy conduct but that the disciplinary action (a written reprimand) was rescinded due to "unreasonable delay in imposing the written reprimand." Even though the written reprimand was rescinded, the Chief recommended to the Mayor that Petitioner receive oral counseling which was in essence the same as an oral reprimand. The Mayor approved the oral counseling. Petitioner contacted the Mayor who confirmed that the sanction was oral counseling. Article 26, entitled "Disciplinary Review Procedures," Section 2 of the collective bargaining agreement entered into between the City of Hialeah (City) and Respondent 2/ provides in pertinent part: k. The employee who is the subject of a complaint or allegation shall be promptly notified of the disposition upon the conclusion of the investigation. In any investigation in which the charges against the officer cannot be substantiated, the officer shall be deemed to have been exonerated of any charges. * * * o. Any internal investigation, except where criminal charges are being investi gated, shall be completed within sixty (60) days from the date the officer is informed of the initial complaint. No officer may be subjected to any disciplinary action as a result of any investigation not completed within that time period. Oral counseling is not considered by Respondent or the City as discipline. As a consequence, there is no appeal of such an action against an employee of the City who is also a member of the bargaining unit represented by Respondent. However, oral counseling is considered "progressive discipline" which means, in essence, that CHPD can consider it if another complaint against Petitioner is sustained involving a violation of courtesy conduct and impose a sanction which is considered disciplinary. Because of this possibility of a disciplinary sanction being imposed in the future, Petitioner objected to the oral counseling. Petitioner contacted Respondent to appeal the oral counseling. Petitioner discussed the situation with Braverman, Respondent's attorney. Braverman informed Petitioner that there was nothing to appeal since oral counseling was not discipline but that, pursuant to the collective bargaining agreement, Petitioner could respond in writing to the oral counseling and have the response placed in his personnel file. Consequently, Braverman informed Petitioner that Respondent could provide no representation. Article 44 of the collective bargaining agreement, entitled "Personnel Records," provides: Section 1. Each bargaining unit employee shall have the right to respond, in writing, to any and all derogatory material placed in their personnel file and have that response placed in their personnel file. Section 2. Employees who complete two (2) years of discipline free service shall have all counseling and/or written reprimands removed from their personnel files pursuant to State of Florida Department of Archives guidelines. This complaint against Petitioner was not the first complaint against him but was one of many. The Chief and certain uniformed supervisors of the CHPD have a history of filing complaints for internal investigation against Petitioner. 3/ Respondent was well aware of that history and has, in fact, represented Petitioner in many of the complaints. Historically, Respondent has not been free of discriminatory practices toward black officers. In 1972 a federal court held that the Miami PBA 4/ had discriminated against black officers by not permitting them to become members of the PBA, but permitting white officers to become members. The federal court ordered the Miami PBA to allow black officers to become members and to offer them the same benefits as white officers. Adams v. Miami Police Benevolent Association, 454 F.2d 1315 (5th Cir. 1972), cert. denied, 409 U.S. 843 (1972). However, since that federal case, there has been no legal showing of discrimination by Respondent. Contrastingly, through court action, Respondent eliminated a discriminatory practice by the City that benefited a black officer. Sometime in 1980, 5/ several white officers and one black officer 6/ were denied the opportunity to take the examination for police chief by the City. They contacted the Respondent for legal assistance,which represented the officers in a court action against the City. The court ordered the City to administer the exam to the officers. Notwithstanding, the City permitted the white officers, but not the black officer, to take the police chief exam. The black officer again approached Respondent for legal assistance. Respondent denied him such assistance. Respondent's position was that, even though the court had ordered the City to permit him to take the police chief examination, at that point in time the City had already appointed the police chief. Furthermore, Respondent indicated that to pursue the matter further would provide no meaningful redress. Respondent's Policy No. 84-2, entitled "Request For Legal Assistance" (Legal Assistance Policy), controls the Respondent's legal representation of its members. The Legal Assistance Policy defines legal assistance as "the representation of Association members at administrative and disciplinary hearings as well as taking judicial action on behalf of Association members, in accordance with the provisions of this policy." Under this Policy, a member of the Respondent is eligible for legal assistance "if the matter arises out of the scope of the member's employment" and the member was in "good standing" 7/ at the time of the incident and remained in good standing throughout the course of any legal action pertaining to the matter. Also, pursuant to the Legal Assistance Policy, a member who is approved for legal assistance must accept Respondent's attorney for representation. Other counsel may be used only when the Respondent's attorney has a conflict and when approved by the Legal Assistance Coordinator or the Board of Directors. Furthermore, benefits provided pursuant to the Legal Assistance Policy are applicable only to administrative and trial level actions and may be applicable to appellate level actions under certain specific situations. The Legal Assistance Policy also defines "Legal Defense Benefit" as Respondent's Policy No. 3-80 which provides "coverage for members, in good standing, for incidents within the scope of employment resulting in criminal or civil prosecution." Policy No. 3-80 (Legal Defense Benefit Policy) provides that Respondent will provide its members with this benefit "only in those cases where a lawsuit or criminal indictment results from professional acts or omissions which arise out of and in the scope of their duties as a law enforcement officer." Further, it provides that the benefit consists of Respondent paying "attorney's fees and directly related Court costs." Petitioner never requested the Respondent to file an action against the City or the CHPD on the grounds of racial discrimination in the CHPD's disciplinary action(s) against him. Petitioner believed that he was not required to make such a request because it was obvious what the City or CHPD was doing and that the Respondent should have taken the initiative and filed a discrimination action. Even though the Respondent's action of allowing the CHPD to continue the investigation of the complaint against Petitioner for several months beyond the 60-day limitation is suspect, there was insufficient evidence of any disparity presented at hearing to conclude that the Respondent had acted any differently when dealing with the same or similar complaints against white officers who were members of the Respondent. Moreover, there was no evidence presented that the Respondent acted any differently with white officers who had been given oral counseling as a result of a complaint against them. There was no evidence that the Respondent failed to appeal Petitioner's oral counseling because of race, and there was insufficient evidence of any conduct by Respondent from which it can be inferred that the actions of Respondent were based on race. The Respondent's failure to insist upon no disciplinary action against the Petitioner at the expiration of the 60-day investigation limitation was nondiscriminatory. Moreover, the Respondent's failure to appeal Petitioner's oral counseling was legitimate and nondiscriminatory and its denial to appeal was without discriminatory motivation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order DISMISSING the Petition for Relief. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of April 1994. ERROL H. POWELL 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 7th day of April 1994.
The Issue The issues to be resolved in this proceeding are whether the Petitioner was discriminatorily dismissed from her employment by the Respondent on the basis of race and whether she was retaliated against by the Respondent for filing a complaint of discrimination with the City of Jacksonville.
Findings Of Fact The Respondent, the University of Florida, is a state university located in Gainesville, Florida. The Respondent, through its Institute of Food and Agricultural Sciences, operates a Cooperative Extension Service, which maintains a county extension office in each of the 67 counties in the State of Florida. Each of these offices is headed by a county extension director. On September 13, 1991, the Petitioner, Pamela R. Dallis, was hired by the University of Florida as a part-time secretary for the Expanded Food and Nutrition Education Program (EFNEP) in the Duval County Extension Office located in Jacksonville, Florida, which is headed by Mr. Thomas Braddock. The Petitioner was hired in a temporary position known as Other Personal Services (OPS). The Petitioner was initially interviewed for a permanent position, but she did not meet the minimum qualifications for the position because she did not achieve the required score (35 c.w.p.m.) on the typing test. The Respondent changed the classification of the position from permanent to temporary in order to be able to hire the Petitioner despite her typing deficiency. As an OPS employee, she did not have permanent status in the position and was not subject to a probationary period or to periodic written evaluations concerning her performance. The Petitioner's immediate supervisor, Ms. Deborah Patterson, provided the Petitioner training as to the policies and procedures applicable to her position. Specifically, the Petitioner received training concerning data entry, reimbursement of expenses incurred for EFNEP and travel reimbursement vouchers. The Petitioner was also provided assistance concerning computer data entry from another employee in EFNEP. The Petitioner was provided oral counseling concerning deficiencies in her performance on several occasions beginning on January 7, 1992. By June 22, 1992, Respondent considered dismissing the Petitioner from her employment because of her performance deficiencies. Due to budgetary constraints, the decision was made to work more closely with the Petitioner because if she were dismissed, there was no assurance that her position could be filled by another individual. On July 6, 1992, in order to provide closer supervision to the Petitioner, the Respondent moved the Petitioner's work station to a location close to her supervisor's office. Prior to this time, the Petitioner's immediate supervisor had requested to Mr. Braddock that this move be made. Mr. Braddock did not approve the request and recommended that the Petitioner be counseled concerning her work performance. In July, 1992, Mr. Braddock agreed to the move because the Petitioner's performance had not improved despite the performance counseling provided. On July 24, 1993, a few weeks after the Petitioner's work station was moved, she reported to Mr. Braddock an incident that had occurred with a white co-worker, Rachel Fleming. Mr. Braddock spoke separately with each employee and asked for their written description of the incident. There were no other witnesses to the incident. Mr. Braddock received conflicting reports from the Petitioner and Ms. Fleming. The Petitioner stated that on July 24, 1992, after informing Ms. Fleming of her dislike for "chain letters" while talking in the printing room, Ms. Fleming placed a chain letter on the Petitioner's desk with her name on it. The Petitioner scratched her name, placed Ms. Fleming's name on the letter and taped it on Ms. Fleming's desk drawer. The Petitioner stated that she later went to the restroom, and as she was exiting, Ms. Fleming came in, blocked her exit, pushed and grabbed her, and said, "I don't like you no more than you like me, bitch!" Ms. Fleming then allowed her to exit. Ms. Fleming acknowledged in her statement that she had an exchange of words with the Petitioner concerning a chain letter that she had given the Petitioner. Ms. Fleming stated that the Petitioner told her, "This is stupid and so are you." Ms. Fleming also stated that about 15 minutes later, she saw the Petitioner as she was leaving the restroom, asked to speak with her, but the Petitioner "brushed past her" saying nothing. Ms. Fleming grabbed the Petitioner, turned to face her and told her that they did not like each other and to "leave me the hell alone". Ms. Fleming denied pushing the Petitioner or calling her a "bitch". She said she called the Petitioner "a biddy". Based upon the unsubstantiated conflicting reports given by each employee, Mr. Braddock determined that no disciplinary action was warranted and counseled each employee. A few weeks after the incident with Ms. Fleming, the Petitioner filed a complaint of discrimination with the Equal Employment Opportunity Office of the City of Jacksonville on the basis that Ms. Fleming had not been disciplined. After having learned of the complaint, the Petitioner's second level supervisor, Ms. Halusky, advised the Petitioner that the proper avenue for her to file a complaint was through the University's Office of Equal Employment Opportunity, not the City of Jacksonville. The City of Jacksonville did not proceed with the Petitioner's complaint because she was not an employee of the City of Jacksonville. The Petitioner never filed a complaint with the University of Florida. Despite the performance counseling and assistance provided to the Petitioner, her performance did not improve. The deficiencies concerning the Petitioner's data entry skills continued. Two reports that were due in September, 1992 at the main EFNEP office in Gainesville were late because the work done by the Petitioner had to be redone. The Petitioner's supervisor decided that the Petitioner's continuing performance deficiencies were causing additional work for the EFNEP staff and, even without the assurance of a replacement, it was better to have the position vacant rather than having to redo the Petitioner's work to correct the mistakes. By letter dated September 10, 1992, the Petitioner's immediate supervisor advised her of her termination effective at the close of business that day. The reason given for her dismissal was that she had not developed in her job as expected and because of performance deficiencies. Sixty-six percent of the employees in EFNEP in the Duval County Office are African American. They serve a clientele that is 75 percent African American. Thus, EFNEP is interested in hiring and retaining African American employees for the program. Three of the individuals who testified at the Petitioner's request are African Americans who work at the Duval County Extension Office. They testified that they had not experienced discrimination in their employment at the Duval County Extension Office. Two of those three employees are in EFNEP. One has been an employee in the office for 23 years, and the other has been an employee for 14 years.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's petition for relief. DONE AND ENTERED this 1st day of December, 1994, in Tallahassee, 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 2nd day of December, 1994. APPENDIX TO RECOMMENDED ORDER The Respondent's proposed findings of fact are all accepted. The Petitioner filed no proposed findings of fact. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esq. General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Pamela R. Dallis 8050 Arlington Expressway #C-401 Jacksonville, FL 32211 Isis Carbajal de Garcia, Esq. Associate General Counsel University of Florida 207 Tigert Hall Gainesville, FL 32611
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged by Petitioner.
Findings Of Fact Age Discrimination Petitioner, Ila Sharpe, was employed by FCHR from June 28, 2002, until February 6, 2006. Regina Owens is the housing investigations manager for FCHR. In approximately May 2004, Ms. Owens hired Petitioner into the housing unit upon the suggestion of the deputy director, Nina Singleton. Ms. Owens placed Petitioner in a vacant Senior Clerk position under her supervision in the housing unit. At the time, Ms. Owens became Petitioner’s supervisor, Ms. Owens was 51 years old. Petitioner was approximately 50 years old at that time. After Petitioner was in the Senior Clerk position for six or seven months, Ms. Owens promoted Petitioner to the position of Investigation Specialist I. Ms. Owens waived the requirements of a college degree and investigative writing experience for this new position, because Petitioner already worked for FCHR and had expressed an interest in moving up. The Investigator Specialist I position is a Selected Exempt Service position which included investigating cases, as well as “intake” duties. Ms. Owens explained to Petitioner that she would be doing investigations after about four months on the job. Petitioner was promoted to this position in January 2005. Ms. Owens sent Petitioner to Washington D.C. for training on three occasions in 2005: February, June, and December. Each training session lasted about a week and was conducted by the National Fair Housing Training Academy. After attending the February week-long training session, Petitioner continued to perform solely “intake” duties. Following the February training, Ms. Owens asked Petitioner if she was ready to take on an investigative caseload. Petitioner indicated that she was not ready to do so at that time. After Petitioner attended the June 2005, training session, Ms. Owens again spoke to Petitioner and determined that Petitioner was still not ready to take on investigative duties, although she had been in the position more than four months. In September 2005, Ms. Owens had e-mail communications with Petitioner, which gave her cause for concern that Petitioner might not know the answers to matters on which she had received training. In particular, Ms. Owens was concerned that Petitioner’s e-mail responses to her indicated that Petitioner was confused as to whom an investigator should be dealing with in a particular situation. Petitioner attended the third week-long training session in December 2005. After a discussion with Petitioner, Ms. Owens was still concerned about Petitioner’s reluctance to take on investigative duties despite her training and length of time on the job. Petitioner had been in the investigator specialist position for nearly a year but never investigated a case. In late December 2005, Ms. Owens developed a test for employees of the housing unit. The purpose of the test was to test employees’ working knowledge of the HUD manual and research skills in using the manual, specifically regarding the intake process. The “Housing Unit Intake Test” was based on the HUD manual, which is the book that all investigators have and use. The test was similar to the test the investigators had to take in Washington during training. The test developed by Ms. Owens is now given to all new investigators during their training. On January 5, 2006, Petitioner was first given the test using a “closed book” administration. The test pertained to the HUD manual materials, and Petitioner was given an hour to complete the closed book test. The purpose of the closed book administration was to assess the employee’s working knowledge of the subject matter. Petitioner scored ten correct answers out of 34 test questions. On January 6, 2006, Ms. Owens again gave Petitioner the same test questions. However, this second administration of the test was “open book” with two hours allowed to take the test. The open book administration was designed to assess the employee’s ability to do research, find the answers in the HUD manual, and to answer the questions correctly. Petitioner scored 11 correct answers out of 34 test questions. Also on January 6, 2006, Ms. Owens administered the same test to investigation specialist Julina Dolce. Ms. Dolce’s score on the closed book test is unclear from the record. However, on the open book test, Ms. Dolce received a score of 27 correct answers out of 34 test questions. After taking the test, Petitioner spoke to Ms. Dolce about what was on the test. However, there is no evidence in the record that Ms. Owens was aware that Ms. Dolce had a “heads up” on the test content prior to taking the test. The test was also given to Marshetta Smith on January 6, 2006. At the time she took the test, Ms. Smith was a senior clerk who did not do much intake work, and was approximately 30 years old at the time. While not an investigator, Ms. Smith was given the test to assess her working knowledge and research skills for potential upward mobility. Ms. Smith had 11 correct answers out of 34 test questions. Ms. Smith has since been terminated from employment with Respondent. About two weeks after administering the first test, Ms. Owens administered a different test, the “55+ exam”, which pertained to housing regulations for older persons. Petitioner scored 14 correct answers out of 20 test questions on the closed book administration and 16 correct answers out of 20 test questions on the open book administration of the test. Based upon her reluctance to take on an investigative caseload and upon her poor performance on the intake test, it was determined that Petitioner would be demoted to a senior clerk position. A meeting was held on January 26, 2006, with Ms. Owens, Petitioner, and the human resources manager, informing Petitioner of the intended demotion to be effective February 10, 2006. On January 30, 2006, Petitioner submitted her letter of resignation to Ms. Owens effective February 6, 2006. Her resignation was accepted, effective the close of business February 6, 2006. Consequently, the demotion did not take place as Petitioner resigned from employment with Respondent prior to the effective date of the intended demotion. After Petitioner’s resignation, Respondent moved Ms. Dolce into Petitioner’s position of investigation specialist. At that time, Ms. Dolce was 31 years old. While making a vague assertion that Ms. Owens made innuendos regarding younger people “some time ago”, Petitioner acknowledged that Ms. Owens never said anything derogatory to Petitioner about her age. Sherry Taylor began working at FCHR in 1999 as a senior clerk. She moved into an investigator position in April 2000. When Ms. Owens came into the housing unit in 2004, Ms. Taylor was an investigator II. Ms. Taylor was demoted in the fall of 2006 to an investigator I because the quality of her work “went downhill." At the time of her demotion, Ms. Taylor was 30 years old. There is no competent evidence that FCHR used age as a criterion in its decision to demote Petitioner. Timeliness Petitioner sent a document entitled “Technical Assistance Questionnaire for Employment Complaints” to the EEO Office, which alleged that she had been discriminated against by FCHR on the basis of her age. The fax cover sheet shows a date of January 19, 2007, but no “received” stamp appears on the document. The document included a request from Petitioner that the “complaint” not be forwarded to FCHR for investigation. Despite this request, the EEO office forwarded the completed questionnaire to FCHR on January 31, 2007. This date is confirmed by the date stamp indicating receipt, as well as the fax transmittal notation at the top of each page. However, the investigation was conducted by the EEO Office. The Determination: No Cause dated July 30, 2007, issued by FCHR to Petitioner states in part that “the timeliness and all jurisdictional requirements have been met.”
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 11th day of June, 2008, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 2008.
The Issue The issues for determination are whether the Florida Commission on Human Relations (Commission or FCHR) lacks jurisdiction under Chapter 760, Florida Statutes (2003), over the claims in the Charge of Discrimination because the claims are barred by the doctrines of collateral estoppel and res judicata; the claims are time-barred by Subsections 760.01(1) and (5), Florida Statutes (2003); or both.
Findings Of Fact Respondent employed Petitioner in Respondent's Code Enforcement Division as a Program Coordinator from sometime in November 1999, until Petitioner resigned his employment on June 13, 2003. On April 2, 2002, while Petitioner was employed with Respondent, Petitioner filed identical charges of discrimination simultaneously with the Commission and the United States Equal Employment Opportunity Commission (EEOC). The charges alleged that Petitioner's employer discriminated against Petitioner on the basis of his race through disparate treatment in pay and promotion, retaliated against Petitioner, and created a hostile work environment for Petitioner. The EEOC assigned case number 150A201984 to the charge of discrimination. On April 29, 2002, the EEOC issued a Dismissal and Notice of Rights. On July 26, 2002, Petitioner filed a civil action in the United States District Court for the Middle District of Florida. The initial Complaint and subsequent Amended Complaint contained the same allegations as those set forth in the charges of discrimination filed with the Commission and the EEOC. The complaints alleged that Petitioner's employer violated Title VII of the Civil Rights Act of 1991 and the Florida Civil Rights Act by discriminating against Petitioner on the basis of race, through disparate treatment in promotion and pay; by retaliating against Petitioner; and by creating a hostile work environment. On February 12, 2004, Petitioner voluntarily dismissed his racial harassment claims in the federal civil case. On March 17, 2004, the federal court entered a Summary Judgment for the employer on all remaining claims and dismissed Petitioner's case with prejudice. The Summary Judgment expressly includes allegations of discrimination through the date of Petitioner's resignation from Orange County on June 13, 2003. On or about June 10, 2004, Petitioner appealed the Summary Judgment to the United States Court of Appeals for the Eleventh Circuit. On September 30, 2004, the Eleventh Circuit affirmed the Summary Judgment. On April 7, 2004, Petitioner filed the Charge of Discrimination over which the Commission determined it has no jurisdiction. The Charge of Discrimination alleges in its entirety: I believe I have been discriminated against pursuant to Chapter 760 of the Florida Civil Rights Act, and/or Title VII of the Federal Civil Rights Act, and/or the Age Discrimination in Employment Act, and/or the Americans with Disabilities Act as applicable: Once I filed a discrimination complaint (EEOC # 150A201984) I was retaliated against and subjected to disparate treatment because of my race (Black). Specifically, I was subjected to different terms and conditions, demoted and unfairly disciplined. Once I filed my complaint I was not invited to attend bi-weekly senior staff meetings and my job duties were diminished and reassigned to other staff. In addition, the entire Citizen Coordination Section which I supervised was eliminated and I was transferred to another Division in a position that had non-supervisory status. The position provided no opportunity for promotion and had minimal job duties. I was unjustifiably given a written reprimand for rude behavior and being absent without proper notification. After I grieved the reprimand it was reduced to an oral warning. One non-African American supervisor received numerous pay increases and unwarranted promotions. Eventually, he surpassed me in salary. Another non-African American supervisor was paid at a higher salary than myself, but did not qualify for the position and falsified the employment application. I filed a complaint with the Orange County Office of Professional Standards but they failed to conduct a fair and thorough investigation. Once I filed my complaint I was subjected to racial discrimination, retaliation and subjected to a hostile working environment from various members of County Administration which defamed my character and good name after working in County government for six years; thus purposely ruining my career to serve as a public servant in Orange County government. Ultimately, I was constructively discharged on June 13, 2003. Joint Ex. 18. The Commission investigated Petitioner's allegations in the Charge of Discrimination. The Commission provided Petitioner with an opportunity to explain how the allegations differed from the matters that the federal court disposed of in the Summary Judgment. Petitioner responded to the Commission in a timely manner. On July 28, 2004, the Commission determined that it did not have jurisdiction over the claims in the Charge of Discrimination. In relevant part, the Commission specifically stated: The Respondent is an employer within the meaning of one or more of the following laws: (a) the Florida Civil Rights Act of 1992, as amended, §760, Florida Statutes (2002); (b) Title VII of the Civil Rights Act of 1964, as amended; (c) the Age in Discrimination in Employment Act (ADEA); and/or (d) the Americans with Disabilities Act (ADA), however, all jurisdictional requirements for coverage have not been met. Federal case law interpreting Title VII is applicable to cases arising under the Florida Civil Rights Act because the Florida act was patterned after the federal civil rights laws. Florida State University v. Sondel, 685 So. 2d 923, 925 (Fla. 1st DCA 1996). On or about May 17, 2004, the Middle District of Florida, Orlando Division, decided the Complainant's claims against Respondent for discrimination and retaliation on summary judgment and dismissed all claims with prejudice. The failure to promote claim was dismissed for failure to exhaust administrative remedies. Complainant's complaint consists of substantially the same claims decided by the civil court. A dismissal of claims with prejudice is a final order. See Kobluer v. Group Hospitalization and Medical Services, Inc., 954 F. 2d 705 (11th Cir. 1992). As such, the appellate court has jurisdiction to decide such issues. Id. See also Solar v. Merit Systems Protection Bd., 600 F. Supp. 535 (D.C. Fla. 1985). The Commission does not have the authority to re-investigate and re-decide issues that were decided by the civil court, even if the reason for dismissal was failure to exhaust administrative remedies. See DOAH Docket Sheet filed 9-1-04. The Charge of Discrimination and Petition for Relief in this proceeding do not allege any acts or violations that were not raised in, and ruled on, by the federal court in prior litigation. Several of the allegations refer to matters that occurred more than 365 days before the filing of the Charge of Discrimination on April 7, 2004, including allegations contained in the charges of discrimination that Petitioner filed simultaneously with the Commission and EEOC on April 1, 2002. Other allegations of discrimination, hostile work environment, and retaliation through June 13, 2003, when Petitioner resigned from his employment with Respondent, are included in the Amended Complaint filed in federal court. It is undisputed that the allegations in this proceeding concerning demotion and transfer to a non-supervisory position refer to a transfer to Respondent's Neighborhood Services Division on June 16, 2003. The Summary Judgment expressly states that the Neighborhood Services Division "transfer has also become a part of this suit." The Summary Judgment notes that the transfer to the Neighborhood Services Division is an incident of retaliation alleged by the employee and ruled that the transfer was not retaliatory. Petitioner included the transfer in his Initial Brief to the United States Court of Appeals for the Eleventh Circuit and also argued that the elimination of his duties, his exclusion from key meetings, and the closing of the Citizen Coordination Section that he had supervised all supported his retaliation claim. The order affirming the Summary Judgment considered the issue of the alleged retaliatory transfer, the elimination of Petitioner's job duties over time, and an allegedly unwarranted written reprimand, and determined there was no retaliation. The Charge of Discrimination in this proceeding alleges, in relevant part, that the elimination of the Citizen Coordination Section that Petitioner had supervised was discriminatory and/or retaliatory. The order affirming the Summary Judgment considered the issue of the elimination of Petitioner's job duties over time and did not find retaliation. It is undisputed that the allegations in the Charge of Discrimination in this proceeding refer to a written reprimand issued by Petitioner's supervisor in March 2003. The written reprimand was part of the federal litigation, including the employee's Statement of Facts in Response to Orange County's Motion for Summary Judgment and in the employee's supporting exhibits. The order affirming the Summary Judgment specifically referred to the written reprimand and did not determine that the reprimand constituted retaliation. Moreover, neither DOAH nor the Commission has statutory authority to consider allegations concerning the written reprimand because those allegations involve acts that occurred more than one year before the filing of the Charge of Discrimination within the meaning of Subsection 760.11(1), Florida Statutes (2003). It is undisputed that allegations in the Charge of Discrimination in this proceeding concerning disparate pay for two non-African American supervisors referred to higher pay for supervisors, identified in the record as Mr. Robert Hildreth and Mr. Ed Caneda, that occurred in March 2002. The federal civil court previously analyzed Petitioner's claims of pay disparity related to both supervisors. The court found that Petitioner was not similarly situated to either supervisor. The Charge of Discrimination in this proceeding alleges that Respondent subjected Petitioner to a hostile working environment when various members of the Orange County Administration defamed Petitioner's character and good name. Petitioner fully addressed the allegations of harassment and hostile work environment in his response to the motion for summary judgment in federal court. Petitioner stipulated to a dismissal with prejudice of his hostile work environment claims, and the federal court ruled that Orange County was the prevailing party on Petitioner's claims for hostile work environment. It is undisputed that the Charge of Discrimination in this proceeding does not contain any allegations concerning the failure to promote Petitioner. However, Petitioner did raise this issue and litigated the issue in federal court. The federal court ruled that Petitioner did not exhaust his administrative remedies concerning allegations that Respondent failed to promote Petitioner and that the claim arose in January 2002, prior to date when Petitioner filed simultaneous claims with the EEOC and FCHR. More than two years passed before Petitioner filed the Charge of Discrimination in this proceeding. Accordingly, Petitioner's claim of promotion discrimination falls outside the statutory one-year filing requirement prescribed in Subsection 760.11(1), Florida Statutes (2003). In any event, the claim that Respondent failed to promote Petitioner is not a new issue that was beyond the scope of the Summary Judgment. It is undisputed that allegations in the Charge of Discrimination in this proceeding concerning the alleged failure of Respondent's Office of Professional Standards (OPS) to conduct a fair and thorough investigation of his discrimination complaint referred to an investigation into Petitioner's complaint in March 2002. OPS issued its final report on July 3, 2002, approximately 21 months before Petitioner filed the Charge of Discrimination in this proceeding. Accordingly, the complaints about the OPS investigation fall outside the statutory one-year filing requirement set out in Subsection 760.11(1), Florida Statutes (2003). The federal litigation included identical allegations concerning the OPS investigation. During the federal case, Petitioner's attorney deposed Mr. William Moore, the manager of OPS, and questioned Mr. Moore extensively about the way OPS investigated Petitioner's complaint. In response to the motion for summary judgment, Petitioner specifically claimed that the investigation undertaken by OPS was unfair and discriminatory. The complaint in the Charge of Discrimination in this proceeding is not a new issue or claim, but is identical to the issue litigated in federal court. Allegations in the Charge of Discrimination that Respondent excluded Petitioner from key meetings refer to events in September 2001. The same allegations were litigated in federal court. Petitioner outlined his allegations to the federal court that allegedly showed his exclusion from key meetings. Petitioner also appealed the issue of exclusion to the appellate court. The Charge of Discrimination presents no new issue, and the issue falls outside the one-year filing requirement in Subsection 760.11(1), Florida Statutes (2003). It is undisputed that the allegation in the Charge of Discrimination that Respondent constructively discharged Petitioner, refers to being demoted, reprimanded, excluded from meetings, and transferred to the Neighborhood Services Division. The allegation of constructive discharge is not a new claim, but is the same claim that was litigated in federal court.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order dismissing this proceeding for the reasons stated in this Recommended Order. DONE AND ENTERED this 25th day of January, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan T. Spradley, Esquire Deborah L. La Fleur, Esquire Gray Robinson, P.A. Post Office Box 3068 Orlando, Florida 32802 Kelvin D. Bodley Post Office Box 680507 Orlando, Florida 32686-0507 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Danny Michael Shipp is a black male who was employed at the Jacksonville, Florida, aluminum can plant of Respondent Kaiser Aluminum and Chemical Corporation. This period of employment was from October 29, 1978 until November 19, 1978. Mr. Shipp was hired as an equipment tender. In that position his duties included loading pallets, maintaining six paint spray guns and generally checking on equipment to ensure that is was functioning properly in the assembly of aluminum cans. His job required no special skills or qualifications. At the tame Mr. Shipp was hired, Kaiser was adding 70 to 80 people to its working force because it was starting up a new production shift. There were approximately 500 applicants and around 300 people were interviewed by plant management. A background check was made by Pinkerton's of Florida, Inc. on the newly-hired personnel including Mr. Shipp and another employee K.M. 1/. Of the 70 to 80 people hired, only K.M., who is white, and Mr. Shipp were reported to have a criminal record. Mr. Shipp's Pinkerton's report indicated: 7-2-77 Case number 77-2789 Possession of Contra. Substance (more than 5 grams) WHASJ Guilty 19 Month Probation. Released on $751.00 Bond. 3-26-70 Case number 701455 Assault and battery, case discharged 4-7-70 Case number 70 1454 Malicious Mischief, sugar in gas tank of Gail Shipp. K.M.'s report stated: 4-30-76 Case number 21013 possession Narcotics implements Nol. Press. Possession controlled substance Marijuana, over 5 gr. $250.00 Fine 7-31-78 Case number 3105 Sale of controlled substance, 80 days Duval County jail, 1 year Probation. There were other charges which were later shown as misdemeanor's. (sic.) On the job application form filled in by Mr. Shipp, Kaiser asked if he had been convicted of a felony within the last seven years. Mr. Shipp answered by checking a box "no." After several weeks of employment, Mr. Shipp on November 19, 1978, was invited to a conference with Mr. Rice, the Kaiser administrative manager; the plant manager; and the plant superintendent. This was still during his thirty- day probation period when he could be fired without cause and without the right to grieve a discharge. He was told by Mr. Rice that he was being terminated due to the Pinkerton's report. When Mr. Shipp asked for a specific reason for his discharge, Mr. Rice responded: (From Hearing Transcript p. 142) "He said, Well what are you talking about specifically?' And I said, 'Well, based on the evidence, the background check, that we no longer want to keep you as an employee. He said, 'Well, what specifically are you talking about?' And I said, 'Well,' I said, 'You currently are on probation?' He said, 'Yes, sir.' And I said, 'Well, let's just let it go at that, and I'm not going to talk about it anymore.' And that's basically what we did. And then Mr. Carlson walked back to the lockerroom with Mr. Shipp and we all walked out to the front, shook hands, and that was it. On October 21, 1977, Mr. Shipp was placed on probation, adjudication withheld for the felony possession of more than 5 grams of marijuana. His probation successfully expired on April 21, 1979, subsequent to his discharge at Kaiser. On his application with Kaiser, gave "layoff" as the reason for leaving a former employer, Jacksonville Shipyard. In fact, as was brought out during his cross examination, he was terminated there due to being absent from work. Kaiser's primary reason for discharging Mr. Shipp was because of his arrest record. At the time of his termination, Mr. Rice believed after consulting with Kaiser counsel, that Mr. Shipp had not been convicted of any felonies. He further believed that for the purpose of terminating an employee, K. M.'s report was the equivalent of Mr. Shipp's. K.M. who was also in his probationary period as an equipment tender was dismissed by Kaiser because of his arrest record. Kaiser has and had no custom, policy (written or otherwise) or practice of terminating an employee for his arrest record, conviction or criminal probation status. The decision to fire Mr. Shipp and K. M. was made spontaneously by Mr. Rice, Mr. Gene Miller, the plant manager, and Mr. Curtis Thompson, who collectively are the top management at the Jacksonville plant. There is no proof that anyone has ever been fired either before or after the termination of Mr. Shipp and K.M. because of their arrest record, convictions or criminal probation status. After his discharge, Mr. Shipp spoke with his probation counselor, Mrs. Susan Karl, about his discharge. She wrote a letter to Mr. Kaiser on November 28, 1978, in which she explained Mr. Shipp's legal status and gave her opinion about his currently being a law-abiding citizen. She asked that Mr. Shipp be considered for reemployment. He was not rehired. A copy of the Notice of Failure of Conciliation in Mr. Shipp's case was sent to him on March 10, 1980. He filed his Petition for Relief with the Commission on April 8, 1980. For reasons not appearing in the record, a Second Notice of Failure of Conciliation was sent to Mr. Shipp on March 28, 1980. During his employment at Kaiser, Mr. Shipp received three weekly evaluations as a probationary employee. For the first week his evaluator rated him as "fair" and commented that he "overreacted and needs to study more for the test." During the second week he received a "good" with the note that he "Works good on line, picks up on job fast." Finally, on November 17, 1980, he was given a "good" rating with the comment that "Danny's performance has been consistently good overall (He was late once)." With respect to Mr. Shipp's complaint charging Kaiser with race discrimination the Commission by its Executive Director has made a determination of reasonable cause to believe that an unlawful employment practice occurred.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the petition for relief filed by Danny Michael Shipp and supported by the Commission. DONE and RECOMMENDED this 8th day of January, 1981, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
