The Issue The issue is whether Respondent, Handi House of Starke, Inc. ("Handi House") committed unlawful employment practices contrary to section 760.10, Florida Statutes (2008),1/ by discriminating against Petitioner based on his race by subjecting him to different terms and conditions than similarly situated employees outside of his protected classification, and by discharging Petitioner from his employment after a dispute with a similarly situated employee outside of his protected classification.
Findings Of Fact Handi House is an employer as that term is defined in subsection 760.02(7), Florida Statutes. Handi House sells and delivers portable storage buildings. Handi House is a family owned business. It is currently owned by Christina Hewes, who took over the company from her father, John Curles, in 2003. Handi House pays its employees in a variety of ways, including hourly wages, salaries, and commission, depending on the work performed. Ms. Hewes and Mr. Curles are white. Petitioner, a black male, worked off and on at odd jobs and manual labor for Handi House and for Mr. Curles personally for more than 20 years. Ms. Hewes conceded that Petitioner has been affiliated with the family business for as long as she can remember. Petitioner testified that he worked for Handi House for 28 years, but was never formally placed on the company payroll. He stated that he never received a W-2 from the company and that Social Security taxes were never deducted from his pay. Petitioner testified that he was paid roughly $7.00 per hour and received a check every week. He placed into evidence two checks that he had received from Handi House. The first check was dated October 9, 2009, and was for $236.00. The second check was dated November 25, 2009, and was for $198.00. Ms. Hewes could not testify as to the business arrangement that existed between Petitioner and her father, but she knew her father always tried to find something for Petitioner to do when he needed work. Petitioner worked at other jobs as well as at Handi House. Ms. Hewes stated that since she has taken over the company, Petitioner has worked for her intermittently between arrests, time in jail, and probation. Petitioner did not have a driver's license, which limited his value to Handi House, as he could only act as an assistant on deliveries. Petitioner worked as an unskilled laborer whenever Ms. Hewes had work for him to do and he was available to do it. Ms. Hewes testified that when Petitioner was sober and willing, he worked better and harder than 90 percent of the people she had ever hired. However, Petitioner was unreliable. Ms. Hewes testified that there were many occasions when Petitioner came in to bail her out of a tough spot, but just as many occasions when his failure to show up as scheduled or his showing up drunk left the business "high and dry." Docket sheets from the Bradford County Clerk of Court from 2006 through 2009 show that Petitioner was arrested for driving under the influence (guilty plea), aggravated battery (nolle prosequi), and possession of drug paraphernalia (guilty plea), as well as for procedural violations such as failure to appear in court. Petitioner conceded that Ms. Hewes has bailed him out of jail on several occasions since she took over Handi House. Despite Petitioner's unreliability, Ms. Hewes continued to find work for him at Handi House. Petitioner lived directly behind the business, which helped to make him available on short notice. Ms. Hewes continued to use Petitioner even after Petitioner's stepson, who lived with Petitioner, was arrested for breaking into Ms. Hewes' office and stealing checks from the company checkbook. Ms. Hewes disputed Petitioner's contention that Handi House never properly paid him or deducted payroll taxes from his paychecks. In fact, it was Petitioner who insisted on payment as an independent contractor rather than an employee. Ms. Hewes testified that in 2008, her accountant advised her that if she was going to pay Petitioner more than $5,000 per year, she either had to place him on the payroll and have him work regular hours, or give him a Form 1099 if he was going to continue with piecemeal work. Ms. Hewes offered to place Petitioner on the Handi House payroll as a full-time employee. Petitioner declined the offer because he owed back child support and feared that it would be deducted from his pay if he became a regular employee. At the hearing, Ms. Hewes presented a Form 1099 for Petitioner showing that Handi House paid Petitioner $13,211.25 in nonemployee compensation during the year 2009. Ms. Hewes' testimony that Petitioner was always paid for his work, that he was paid in the manner of his choosing, and that Handi House properly reported the payments, is credited. The events that precipitated the dispute in this case began on a Friday in November 2009, when Petitioner went out on a delivery with Terrell "Peanut" Odom, a full-time employee of Handi House who drove the delivery truck. Mr. Odom is white. Ms. Hewes' undisputed testimony was that Petitioner and Mr. Odom were friendly with each other. They spent time together away from work, and had sold cars to each other. On the day in question, Petitioner and Mr. Odom had an argument on the way to make a delivery. Petitioner declined to describe the subject matter of the argument, but it so angered Mr. Odom that he turned the truck around and drove back to Handi House. Mr. Odom told Ms. Hewes that he did not want to work with Petitioner, and drove off alone to make the delivery. On the following Monday, Mr. Owens continued to refuse to take Petitioner with him on deliveries. Because Mr. Odom was a solid, reliable employee, Ms. Hewes declined to force him to work with Petitioner. Rather, she found work for Petitioner to do on the company's lot in Starke. She hoped that with time, tempers would cool and matters would return to normal. Petitioner worked around the Handi House lot for five days. On the fifth day, Petitioner's wife, Barbara Fraizer, left an abusive voicemail message for Ms. Hewes, who testified that Ms. Fraizer sounded drunk. Ms. Fraizer made threats of violence against Ms. Hewes, Ms. Hewes' mother, and employees of Handi House. Ms. Hewes testified that this was the final straw. She advised Petitioner that he was not to set foot on the Handi House lot again. There was no credible evidence that Petitioner ever complained or even mentioned harassment or discrimination on the basis of race to anyone at Handi House. At the hearing, when Petitioner was asked whether he believed Ms. Hewes' motive in dismissing him was racial, he responded, "Not really." Petitioner offered no credible evidence that Handi House discriminated against him because of his race in violation of chapter 760, Florida Statutes. In an attempt to show disparate treatment between himself and similarly situated employees who were not members of the protected class, Petitioner testified that a white secretary named "Rebecca" was dismissed by Ms. Hewes on much more generous terms than was Petitioner. Petitioner testified that Rebecca received several checks at the time of and even after her dismissal, whereas Petitioner received only a few days of "piss work" after Mr. Odom refused to work with him. Ms. Hewes testified that Rebecca was not a secretary but a salesperson, and that the checks she received at the time of her dismissal and shortly thereafter were for commissions that she had earned. Ms. Hewes' testimony on this point is credited. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Handi House for his dismissal.2/ Partly out of loyalty to her father, and partly because of her genuine affection for Petitioner, Ms. Hewes continued to find work for Petitioner long after most business owners would have sent him packing. This is clearly not a case of racial discrimination, but something in the nature of a family argument that got out of hand. The evidence established that Petitioner was considered a good employee when he was sober and not in trouble with the law, and that Handi House made every good faith effort to keep him on the job. Ms. Hewes testified that she would have offered to bring Petitioner back to work at Handi House if not for his insistent pursuit of what she considered an unfounded and insulting claim of racial discrimination. The fact that Handi House had a long history of forbearance in regard to Petitioner's erratic behavior did not oblige it to continue that forbearance in perpetuity. When Ms. Hewes finally became fed up with Petitioner, she was not motivated by considerations of race, as Petitioner himself candidly admitted at the hearing.
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 Handi House of Starke, Inc., did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 26th day of May, 2011, 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 26th day of May, 2011.
The Issue Whether Petitioner timely filed her Employment Complaint of Discrimination ("Complaint") with the Florida Commission on Human Relations ("FCHR"), and, if so, whether FCHR has jurisdiction to entertain Petitioner's Complaint on the merits.
Findings Of Fact Petitioner was previously employed by Respondent as an attorney in its Miami, Florida office. On November 13, 2012, Petitioner tendered her resignation via correspondence entitled a "Notice of Constructive Discharge." The correspondence provided that her resignation would be effective on November 23, 2012. Petitioner's last date of employment with Respondent was November 23, 2012, and she was paid through that date. Petitioner completed a FCHR form entitled Technical Assistance Questionnaire for Employment Complaints ("Questionnare") and signed the same on November 20, 2013. The Questionnare provides on its face the following langauge: "REMEMBER, a charge of discrimination must be filed within 365 days of the alleged act of discrimination." Additionally, the Questionnare describes the principal purpose of the document as follows: The purpose of this questionnaire is to solicit information about claims of employment discrimination, determine whether the Florida Commission on Human Relations has jurisdiction over those claims, and provide charge filing counseling, as appropriate. On December 23, 2013, Petitioner filed an Employment Complaint of Discrimination ("Complaint") against Respondent with FCHR. The Complaint was stamped as received by FCHR on December 23, 2013 at 4:47 p.m. In the Complaint, under section C——"Cause of Discrimination"——Petitioner checked the boxes for sex and retaliation. Petitioner alleged discrimination pursuant to chapter 760 of the Florida Civil Rights Act. The Complaint further alleges that November 23, 2012, was the date that the "most recent discrimination took place." On March 20, 2014, following the completion of its investigation, FCHR issued a Determination: No Jurisdiction, on the grounds that "[t]he complaint was not timely filed."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject petition in its entirety due to lack of jurisdiction. DONE AND ENTERED this 24th day of July, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 24th day of July, 2014. COPIES FURNISHED: Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Dietrich Renee Jenkins, Esquire Unit 1503 1861 Northwest South River Drive Miami, Florida 33125 Laurie Michele Chess, Esquire Jones Walker, LLP Suite 2600 201 South Biscayne Boulevard Miami, Florida 33131 Kenneth E. Walton, II, Esquire The Walton Law Firm 1999 Southwest 27th Avenue Miami, Florida 33145 Elizabeth M. Rodriguez, Esquire FordHarrison LLP 100 Southeast 2nd Street Miami, Florida 33131 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Jupiter Medical Center committed the unlawful employment practices alleged in the employment discrimination charge filed by Petitioner and, if so, what relief should the Florida Commission on Human Relations grant Petitioner.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is from the Philippines and is a Filipino citizen. He is now, and has been since approximately February 2000, a legal resident of the United States. JMC operates a 156-bed hospital (Hospital) located in Jupiter, Florida, which has a medical laboratory (Laboratory) that is "open twenty-four hours a day, seven days a week." At all times material to the instant case, Kathleen Rogers was the director of the Laboratory and Sherry Miller was the assistant director of the Laboratory. Petitioner was hired by JMC in October 2000, as a medical technologist to work in the Laboratory. He worked in the Laboratory as a medical technologist, under Ms. Rogers' supervision, from October 2000, until his employment was terminated on June 6, 2003 (Employment Period). During the Employment Period, Jeanne Wiley also worked as a medical technologist in the Laboratory under Ms. Rogers' supervision. Ms. Wiley did not exercise any supervisory authority over Petitioner, nor was she part of the JMC management team. Ms. Rogers was responsible for Petitioner's hiring. She "hired him at the maximum [salary] that anybody coming in at th[at] level could be paid" under JMC's race/religion/gender- blind pay scale. Petitioner received pay raises during the time that he worked for JMC. There were other Laboratory employees who were paid less than Petitioner. None of these employees was Asian. John Lambiase was hired by JMC as a medical technologist to work in the Laboratory in 2003, shortly before Petitioner's termination. At the time of his hiring, Mr. Lambiase had less education and experience than did Petitioner. Nonetheless, Mr. Lambiase's starting salary of $17.80 per hour was $0.38 per hour more than Petitioner was making.2 This disparity in pay was the product of market conditions and had nothing to do with either Mr. Lambiase's or Petitioner's race. The position that Mr. Lambiase filled had been vacant for approximately eight months despite JMC's recruiting efforts. "[D]esperate" to fill the vacancy, Ms. Rogers requested and obtained from JMC's human resources department "special permission" to hire Mr. Lambiase at the going market rate. During the Employment Period, JMC had a human resources administrative policy and procedure manual (Manual), which was made available to all employees, including Petitioner. The Manual contained, among other things, an anti-discrimination and anti-harassment policy, a grievance procedure, a "Time and Attendance" policy, and a progressive discipline policy. The progressive discipline policy stated, in pertinent part, substantially the following with respect to "Verbal Warning[s]," "Written Conference Records," and terminations: Verbal Warning: "Informal counseling" will be regarded as a daily on-going process through which management may communicate necessary information to his/her staff. Such information may include both positive comments and/or areas in need of improvement. In either case, management may wish to utilize "Employee Action Assessment" for the following purposes: To justify pay for performance adjustment decisions and to confirm performance appraisal accuracy. To document excellence for promotional opportunities. To document "reoccurring" performance/behavior/work habit problems that individually do[] not yet require formal documentation, (i.e.) "Written Conference Record." Employee Action Assessment entries will be shared with the employee within a reasonable time of management's observation or date of discovery. Employee Action Assessments need not be shared with Human Resources but rather maintained by the appropriate manager to be used as outlined above. Written Conference Records: Unless immediate suspension pending investigation or termination is necessary, an employee will receive a documented "Written Conference Record" which will delineate steps toward correction of the problem. The completed Written Conference Record process should take place within (3) three business days of the date of discovery, unless the employee has been temporarily suspended pending investigation or if interrupted by a Medical Center holiday. In the case of the latter, the process should be completed by the next business day. The Chief Human Resource Officer or Assistant Director of Human Resources will review and approve all "Written Conference Records" prior to management meeting with the employee. All employee "Written Conference Records" shall be documented on a Jupiter Medical Center "Conference Record" form and ultimately filed in the Human Resources Department. The employee is encouraged to review and record personal comments and sign the form. While employees are encouraged to respond [to] and sign the form, responding to, or signing the form merely indicates that the action was discussed with the employee, not that the employee agrees or disagrees with the corrective action. All completed "Written Conference Record" forms should be received by the Human Resources Department within (3) business days. A completed "Written Conference Record" form will be appropriately signed and dated by the manager, employee, if agreeable, and a managerial witness from the same department. A witness's signature will acknowledge that the information was thoroughly discussed with the employee in an appropriate manner. Any combination of three appropriately documented "Written Conference Records" within an eighteen-month (18) period will constitute grounds for termination unless otherwise noted on the "Written Conference Record." In such instances, fewer than (3) repetitions of some violations may [warrant] termination. . . . No department, other than the Human Resources Department will maintain formal "Written Conference Records" in their files. Informal documentation such as "employee action assessments" and/or employee attendance record may be kept within individual department files. A "Written Conference Record" should be available to support any performance appraisal standard scored as "needs improvement." Suspension and Termination: * * * 5. Terminations reviewed and approved by the Senior Manger will be forwarded to the Chief Human Resource Officer or the Assistant Director of Human Resources for review and final approval. A letter of termination must be coordinated through the Asst. Dir. of Human Resource[s] outlining all documentation used to justify the termination and to act as a notice to the terminated employee regarding [his or her] grievance rights and need to return certain Medical Center property. * * * Petitioner's employment with JMC was terminated, consistent with the above-referenced progressive discipline policy, because, in less than 18 months, he had accumulated three "Written Conference Records" (all of which were given to him by Ms. Rogers and, before becoming a part of Petitioner's permanent record, were reviewed and approved by JMC's human resources department). Petitioner's race played no role whatsoever in his receiving these three "Written Conference Records"3 or in his being terminated. There has been no showing that any other employee at the Hospital received three "Written Conference Records" within an 18-month period and remained employed. Petitioner received the first of these three "Written Conference Records" in September 2002. It read as follows: REASON FOR CONFERENCE: . . . . On August 23, 2002, Ramuriel reported out a 7.3mmol/L potassium result.[4] Ramuriel did not meet laboratory competency standards because he did not follow the attached laboratory procedure: NOTIFICATION OF LABORATORY VALUES. Procedures specifically not followed are: -2.1.1 "Verify the quality of the specimen" and "Recollect specimens immediately if specimen is suspect" 2.1.3 "Notify the physician/patient care personnel when patient is outside the hospital." Ramuriel failed to meet Human Resources 6.7a, a Class II violation, "Performance of duties below standard that continue after a reasonable period of appraisal and training." ACTION PLAN FOR IMPROVEMENT: . . . Ramuriel will immediately improve his technical skills and follow all laboratory policies, especially G.4.2 "Notification of Laboratory Values." Failure to meet JMC standards of competency will lead to further disciplinary action, up to and including termination. Ms. Rogers learned of the violation cited in this "Written Conference Record" as a result of a "physician complaint" (and not from Ms. Wiley).5 In giving Petitioner this "Written Conference Record," she did not treat him any differently than she treated other medical technologists who committed similar violations. Petitioner did not grieve his receipt of this "Written Conference Record," nor did he write anything on this "Written Conference Record" in the space provided for "[e]mployee [c]omments." The next "Written Conference Record" Petitioner received concerned an on-duty verbal altercation Petitioner had in January 2003, with another medical technologist working in the Laboratory, Susan Goldstein. Ms. Goldstein also received a "Written Conference Record" from Ms. Rogers for her participation in the altercation. Petitioner's "Written Conference Record" read as follows: REASON FOR CONFERENCE: . . . . On January 17, 2003, Ariel requested another employee to work in the coagulation section. The fellow employee stated she was busy helping a new employee with chemistry. The workload did not justify his request (see attached report). The coworker stated Ariel called her lazy when she refused to leave chemistry. Coworkers and supervisors do not feel Ariel is a patient focused team player and are unable to discuss workflow and cooperation with him. It is the policy of the Laboratory and Jupiter Medical Center to complete all tasks and work as a team to the benefit of our patients. Ariel violated Personnel Policy 6.7 group II.y "Other actions determined by management to not be in the best interest of the Medical Center." ACTION PLAN FOR IMPROVEMENT: . . . Ariel will immediately put the patient first, and remain focused on patient testing. The evening shift must work together as a team, and Ariel needs to be a member of this team. Petitioner grieved his receipt of this "Written Conference Record." Petitioner's grievance was ultimately presented to JMC's Chief Operating Officer, who reached the following "conclusion," which she reduced to writing on March 25, 2003: This investigation has revealed substantial agreement about the facts of the incident itself by all parties. The facts regarding the incident do merit a Written Record of Conference in accordance with Jupiter Medical Center Policy. The Record should be amended to show that the lack of teamwork referenced was agreed by the Department Man[a]ger to be primarily limited to the one employee involved in this incident and does not extend to the entire Department. With the amendment, the Written Record of Conference should be a permanent part of the employment file of Mr. Orlino. Following his receipt of the Chief Operating Officer's written "conclusion," Petitioner took no action to "continue with [his] grievance." As a result, pursuant to the grievance procedure set forth in the Manual, the Chief Operating Officer's written "conclusion" became the final resolution of Petitioner's grievance. The last of the "Written Conference Records" Petitioner received was for repeatedly violating, after being warned on "multiple occasions" to stop,6 that portion of JMC's "Time and Attendance" policy, which provided that "employees will not badge in more than seven minutes prior to the start of their shift." This "Written Conference Record," which was given to Petitioner on June 6, 2003, read as follows: REASON FOR CONFERENCE: . . . . See attached list of dates and times of Ramuriel's timeclock punches. Beginning on March 17, 2003 through May 24, 2003, Ramuriel has failed to badge in at the correct time. Ramuriel is establishing an unacceptable pattern of badging in for work early and leaving early. Ramuriel has violated Human Resources Policy 6.7.a, "Insubordination- refusal or failure to follow instruction or established practices of the Medical Center," a Class I violation. Ramuriel was informed of the correct badging practice verbally on March 3, 2003 and by mailbox on March 17, 2003. Again the policy was reviewed at the April 2, 2003 general laboratory meeting, which Ramuriel attended, and [he] reviewed and initialed the minutes which included the time clock policy. ACTION PLAN FOR IMPROVEMENT: . . . See associated letter. There has been no showing that any other Laboratory employee engaged in similar insubordinate conduct and did not receive a "Written Conference Record." Petitioner did not grieve his receipt of this "Written Conference Record" because he knew that he was in the wrong; nor did he write anything on this "Written Conference Record" in the space provided for "[e]mployee [c]omments." The "associated letter" in the "Written Conference Record" was a June 6, 2003, letter to Petitioner from Ms. Rogers, advising Petitioner of his termination. It read as follows: On August 23, 2002, you failed to meet laboratory competency standards or follow laboratory procedure. This is a Class II violation of Human Resources Policy 6.7- Discipline (a) "Performance of duties below standard that continue[s] after a reasonable period of appraisal and training." On October 23, 2002, you failed to meet laboratory competency standards or follow laboratory procedure. This is a Class II violation of Human Resources Policy 6.7- Discipline (a) "Performance of duties below standard that continue[s] after a reasonable period of appraisal and training."[7] On January 17, 2003, you failed to work as part of a team. This is a Class II violation of Human Resources Policy 6.7- Discipline (y) "Other actions determined by management to not be in the best interest of the Medical Center." Beginning on March 17, 2003 through May 24, 2003, you failed to badge in at your scheduled time, which is a violation of Human Resources Policy 6.7- Discipline, "Insubordination - refusal or failure to follow instructions or established practices of the Medical Center." Mr. Orlino, as a result of your actions, as denoted above, Jupiter Medical Center is terminating your employment effective immediately. You have the prerogative to utilize Jupiter Medical Center's grievance procedure; human resource policy 4.1, if you feel your termination is unjust. If you decide to grieve such a decision should be made within five (5) business days of June 6, 2003. In your absence, Jupiter Medical Center has elected to hand deliver this correspondence to ensure your complete understanding of the above events. Any compensation that you are eligible to receive will be paid to you on the hospital's next regularly scheduled payday. Please be aware that any hospital property, such as your ID badge, employee handbook, keys, uniform, etc. should be returned to the Human Resources Department. The final decision to terminate Petitioner was made, in accordance with JMC policy, by JMC's human resources department. Ms. Wiley did not provide any input in the making of this decision. Petitioner did not grieve his termination. At no time during the Employment Period did Petitioner ever utilize the procedures available to him under the Manual to complain that he was being discriminated against or harassed on the basis of his race; and there is no indication in the evidentiary record that, as a JMC employee, he was ever the victim of race-based discrimination or harassment.8 On May 24, 2005, almost a year after his termination, Petitioner filed an employment discrimination charge with the FCHR, alleging for the first time that he was the victim of anti-Asian discrimination. There are currently three or four Asian employees working in the Laboratory. They were all hired by Ms. Rogers following Petitioner's termination. None of these employees has received a "Written Conference Record."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding JMC not guilty of the unlawful employment practices alleged by Petitioner and dismissing his employment discrimination charge. DONE AND ENTERED this 14th day of August, 2006, 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 14th day of August, 2006.
Findings Of Fact At the final hearing in this case on June 11, 1987, counsel for the Petitioner, Mary Ann Hunter, made a special appearance but did not present any evidence in support of her contention that the Respondent, Bank of South Palm Beaches, unlawfully terminated her employment for racial reasons, in violation of the Human Rights Act of 1977, as amended. Counsel for the Respondent was present with witnesses, and was prepared to proceed as the Respondent's interests might require. Without any evidence in support of the Petition for Relief, the allegations therein have not been substantiated. Accordingly, the Petition for Relief must be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition of Mary Ann Hunter be dismissed. This Recommended Order entered on this 15th day of June, 1987, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1987. COPIES FURNISHED: Margaret L. Cooper, Esquire Post Office Drawer E West Palm Beach, Florida 33402 Arlyne G. Warshall, Esquire 415 - Fifth Street West Palm Beach, Florida 33401 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 Regina McGriff, Clerk Human Relations Commission 325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925
The Issue What amount of attorney's fees is to be paid to Petitioner pursuant to the award of fees in the Final Order Awarding Affirmative Relief from Unlawful Public Accommodation Discrimination. What amount of costs is to be paid to Petitioner pursuant to the award of costs in the Recommended Order and Final Order.
Findings Of Fact A Recommended Order was entered by Daniel M. Kilbride, Administrative Law Judge, on October 17, 2002, awarding affirmative relief as follows: Finding that Respondent discriminated against Petitioner based on her race (African-American); Awarding Petitioner $500 in compensatory damages; Issuing a Cease and Desist Order prohibiting Respondent from repeating this practice in the future; and Awarding a reasonable attorney's fee as part of the costs. Respondent filed Exceptions to the Administrative Law Judge's Recommended Order, but did not file a transcript of the hearing as required in administrative proceedings. As a result of the failure, FCHR ordered the Exceptions stricken. FCHR's Final Order adopted the Recommended Order's Findings of Facts, Conclusions of Law, and remedies for the discrimination. No appeal was filed by Respondent. Respondent filed statement of defenses to the Motion for Hearing on Attorney's Fees and Costs in which Respondent denied that its action in the underlying proceeding was not justified and contended that the award requested by Petitioner would be unjust. The amount of reasonable attorney's fees and costs was sought pursuant to Section 509.092, Florida Statutes (2003), unfair discrimination by the operator of a public lodging establishment. Section 509.092, Florida Statutes (2003), which establishes a right of action pursuant to Section 760.11, Florida Statutes (2003), specifically states that an award of attorney's fees should be interpreted in a manner consistent with federal case law involving a Title VII action. Petitioner testified in the prior hearing that she was badly hurt by the treatment received at the Sleep Inn. When she was discriminated against, she threatened a suit against the hotel that night because she wanted them to give her a room. When she did not receive a room, she felt she had been treated in a humiliating fashion and was emotionally injured. She sought counseling professionally, then continued counseling with her sister, who was a licensed psychologist. Petitioner determined that the Sleep Inn was not going to apologize to her or do anything except back-up its staff member. She felt she had to leave it to legal remedies to secure relief for herself and others. When an offer was received from Respondent's attorney in a letter dated January 28, 2002, offering a sum to save costs of litigation, but denying any liability on the part of Respondent, Petitioner wanted to go forward with the matter to receive public acknowledgement that she had been discriminated against by Sleep Inn. Thus, Petitioner was satisfied with the Recommended Order and the Final Order of FCHR, even though the dollar amount awarded to Petitioner was only $500.00. Petitioner was aware that there were financial differences in damages for filing an administrative proceeding versus a civil action in circuit court. Petitioner understood that monetary damage for pain and suffering could not be awarded in the administrative procedures. Only documented economic damages could be awarded to Petitioner along with affirmative relief declaring that she was discriminated against and directing Respondent to stop condoning discriminating acts. Petitioner retained Tricia A. Madden, Esquire, on June 13, 2000, to represent her in seeking relief from the discriminatory act and signed a contingency contract. The contract states that Petitioner's attorney will be paid the greater of a reasonable attorney's fee awarded through the administrative process or a percentage fee from the total recovery. The contract further states that if the client prevails or if the contract is terminated, the client must pay the costs listed on the contract to include all costs in investigation, research, and litigating the claim, including, but not limited to, telephone charges, copying costs, postage, and transportation charges. A charge of discrimination was filed on October 18, 2000, with FCHR. When the charge could not be quickly identified as received by FCHR, a second charge was filed on May 23, 2001. Determination of Cause in favor of Petitioner was received after an investigation was conducted by FCHR. Respondent continued to deny liability and made no offers to accept liability or provide any relief to Petitioner. Thereafter, Petitioner's Petition for Relief was timely filed. An attorney appeared for Respondent and filed a Motion to Dismiss. It was withdrawn after discussions with Petitioner's counsel when Respondent's counsel was made aware that the specific motion was inapplicable to a public lodging discrimination case. Stephen F. Baker, Esquire, was substituted as counsel for Respondent on January 6, 2002. He filed a Motion for Summary Judgment on grounds which were not applicable to a public lodging establishment case and outside the jurisdiction of the Administrative Law Judge. The Motion for Summary Judgment was denied by the Administrative Law Judge. Petitioner's counsel has practiced law for 20 years and has practiced in the area of discrimination law in various types of cases, including public lodging establishment cases, employment discrimination cases, Americans with Disabilities Act cases, and education cases for disabled children in civil court and in administrative proceedings. She regularly takes such cases on a contingency basis, believing it is necessary in order to give Petitioner access to the courts. Petitioner's counsel said that although she had a very capable paralegal and staff to assist her in other cases, her paralegal and staff were not qualified to provide more than secretarial assistance in handling discrimination cases; and she has never been able to find a paralegal who was knowledgeable in discrimination cases. Therefore, all of the legal work, including directing the investigation, contact with witnesses, and all pleadings were handled by her in discrimination cases. Her time on the case covered three and a-half years, when the Final Order was entered, and Mr. Indest was attorney-of-record for 13 months. Mr. Indest testified on behalf of Petitioner as an expert on attorney's fees and costs and provided his curriculum vitae. Mr. Indest testified to extensive experience in teaching seminars and classes and writing publications on the subject of attorney's fees and the law, standards, and method of determining the reasonable amount of fees and costs. Mr. Indest is familiar with Florida Patients Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985); Standard Guaranty Insurance Company v. Quanstrom, 555 So. 2d 828 (Fla. 1990); and the Rule Regulating Florida Bar 4-1.5 and testified to each factor identified in the rule. Mr. Indest had a previous opportunity to observe Ms. Madden's skills when they were opposing counsel in a nursing home case and when Ms. Madden testified for him as an expert witness on issues, not attorney's fees, in an administrative hearing case where he represented a Petitioner versus the Department of Children and Family Services. He testified that Ms. Madden had a reputation in the community of being a very skilled and aggressive attorney with 20 years' experience representing plaintiffs and petitioners. He further testified she was the only attorney that he was aware of who took discrimination cases on a contingency basis and one of only three attorneys he knew that regularly took discrimination cases on behalf of an employee. Mr. Indest testified he had specifically surveyed other attorneys in the Orlando area as to the fees charged in administrative proceedings and discrimination cases. He testified the range of fees for handling discrimination cases and administrative cases in the Orlando metropolitan area is from $250.00 to $450.00 per hour for one attorney who had only 15 years of experience and from $400.00 to $500.00 for one attorney with 30 years of experience. Other attorneys with 20 years of experience charge fees from $300.00 to $450.00 per hour. Mr. Indest charges $350.00 per hour and is raising his fee as of January 1, 2005, to $400.00 per hour. Mr. Indest said Ms. Madden had only requested $300.00 per hour in this case and should raise her fees to be commensurate with her skills, knowledge of the area of law, and the fees usually charged in the Central Florida area. It was his opinion that $300.00 per hour was a very reasonable fee in the local market for this case. Mr. Indest reviewed the taxable costs submitted on the amended costs list and said that with exception of the Westlaw figures, which Ms. Madden had withdrawn, all costs were reasonable and had to be paid by Petitioner. They were less than he and others would have charged, were applicable, and should be awarded to Petitioner. Mr. Indest testified he had spent eight hours prior to the day of hearing and approximately two more hours before the hearing reviewing the file on the Vanessa Brown case and asking questions on the case and proceedings. He stated he had reviewed the file, but had not read the depositions in detail, although he had scanned the six depositions. He noted Ms. Madden's time for preparation and attendance included travel time, depositions, research, investigation of the witnesses, and the trial of the case. He had read the Recommended Order and, in his opinion, the necessary testimony to support the case was detailed. It was his opinion that it took a high level of skill to prosecute the case successfully. He stated the 122 hours claimed by Petitioner's counsel were very reasonable and that he would have probably had to spend closer to 200 hours preparing the case. He said Petitioner's counsel demonstrated her expertise and efficiency in handling the case by the fact that she prepared for and tried the case at hearing with successful results of her client with only 122 hours of work. Mr. Indest noted Respondent's counsel billed no preparation time for depositions and hearings. He found that unusual and puzzling, and stated that preparation time was certainly necessary for a petitioner's counsel. He said Petitioner had to carry the burden of proof and had to marshall the evidence and witnesses. Mr. Indest stated he could accept that Ms. Madden put in 11 hours or more on any given day at times on this case since he often had to work more than 11 hours a day. Mr. Indest observed that the Proposed Order prepared by Petitioner's counsel was well prepared. Respondent's attorney testified he had been an attorney since 1976 and had been retained by Respondent sometime in December 2001. Respondent's attorney said he felt the case was always a money case from his initial involvement. In the Proposed Recommended Order, Petitioner had asked for $15,000.00 as a monetary consideration. However, the monetary award was only $500.00. He agreed that the court costs claimed were reasonable. He would have discussed an apology if that was what Petitioner wanted with his client, who was a businessman. However, contrary to this suggestion that his client would have admitted liability, settlements normally do not admit liability or fault on the part of the defendant. Respondent's attorney said he spent 44 hours on this case with six depositions and two witnesses at trial. He argued that Petitioner's counsel claimed that she had 140 other active cases and could not possibly have spent three weeks' preparation time on this case. Mr. Young testified that he has practiced since 1976 and has handled a variety of cases. He said he has been involved in discrimination cases as the attorney for the City of Davenport and later the City of Winter Haven. He stated on cross-examination that he has not gone to trial on a discrimination case; that they were always settled before litigation. He reviewed Respondent's file to prepare his Affidavit for an hour and a-half. He spent another hour and a- half the day of the hearing to review Respondent's file to refresh his memory and review Petitioner's counsel's hours. He testified that the outcome of the case should have been apparent from the first, and it was a routine case. He did not read the depositions, but he read the Recommended Order and felt it was a simple case of limited complexity. He said in his opinion the case could have been done in five days of work altogether, with one-half day for all pleadings and one day to both prepare and try the case. It was a straight-forward presentation and story, and the fee should only be $200.00 per hour. He had not surveyed any other attorneys who had litigated discrimination cases or who represented plaintiffs/petitioners in discrimination cases. He said in Central Florida, fees are all over the block; and they had attorneys in Winter Haven who charged up to $450.00 per hour. He said litigation should be a last resort, and it was a public interest case with no monetary recovery. He was of the opinion that 40 hours at $200.00 was reasonable, and he had reduced the fee to $6,000 based on results obtained. The expert witness for Respondent alleged that the delay in response to interrogatories and a Request to Produce were demonstrations that Petitioner's attorney had not performed her role efficiently, had wasted the time of Respondent's counsel, and time for such actions should not be billed or awarded to Petitioner. Respondent wasted Petitioner's counsel time also with two erroneous motions, but Respondent's counsel billed his client for his motion as noted in his time statement. Urging clients to complete discovery is a known time requirement of attorneys, and the delay was caused by Petitioner's personal problems, not by Petitioner's counsel. Ms. Madden voluntarily withdrew the entry of eight hours on her item slips listed as time spent proofing the attorney's fees time delineation. Entitlement to attorney's fees and costs had already been established by this tribunal in the Recommended Order and Final Order. Petitioner's counsel also voluntarily deleted $356.35 for Westlaw research, as a cost not chargeable to Respondent.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered: Awarding attorney's fees to Petitioner in the sum of $54,900.00; and Awarding costs to Petitioner in the sum of $8,315.79, which includes $4,200.00 to be paid to Petitioner for payment of Petitioner's expert witness, George F. Indest, III, Esquire. DONE AND ENTERED this 23rd day of November, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 November, 2004. COPIES FURNISHED: Stephen F. Baker, Esquire Stephen F. Baker, P.A. 800 First Street, South Winter Haven, Florida 33880 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Tricia A. Madden, Esquire Tricia A. Madden, P.A. 500 East Altamonte Drive, Suite 200 Altamonte Springs, Florida 32701 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Petitioner was discriminated against on the basis of his race, color, or national origin in violation of Section 760.10, Florida Statutes (2000).1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Bamawo is a black male from Nigeria. Mr. Bamawo began working for the Department at the Dade Correctional Institution ("DCI") as a correctional officer in March 1993. At the times material to this proceeding, Mr. Bamawo was a career service employee whose duties included the care, custody, and control of inmates of the institution. Mr. Bamawo normally worked the third shift, from 2:00 p.m. to 10:00 p.m. During most of the time Mr. Bamawo was employed at DCI, Captain Scott Pardue, as the third shift supervisor, directly supervised Mr. Bamawo. According to Mr. Bamawo, he and Captain Pardue did not "see eye-to-eye" even though Mr. Bamawo tried to get along with Captain Pardue. The first incident that Mr. Bamawo considers discriminatory occurred in 1995, when Captain Pardue formally disciplined Mr. Bamawo for writing graffiti.3 Mr. Bamawo denies that he wrote the graffiti, and he made a verbal complaint to a superior officer identified as "Colonel Thompson." Mr. Bamawo also asserts that, in 1995, an Anglo corrections officer was promoted to sergeant, and Mr. Bamawo was required to follow his orders. Mr. Bamawo asserted that he made many complaints to Captain Pardue about this sergeant but that Captain Pardue did nothing. Also in 1995, Captain Pardue made two remarks to Mr. Bamawo that Mr. Bamawo considered offensive: On one occasion, Captain Pardue apparently was looking at a picture of an African woman in a National Geographic magazine when he asked Mr. Bamawo if "you people live in houses or sleep in trees"; Mr. Bamawo believed Captain Pardue was making a derogatory comment about Mr. Bamawo's being a native of Africa. Another occasion was at Thanksgiving, when Mr. Bamawo brought a can of corn to a covered-dish lunch; Mr. Bamawo opened the can of corn and set it on the table with the other food, and Captain Pardue asked if this was the way people in Africa ate corn. These remarks caused Mr. Bamawo to be humiliated and embarrassed in front of his co-workers. Mr. Bamawo asserts that Captain Pardue refused to approve his requests for time off the job but would approve time off for Anglo officers. When Captain Pardue refused Mr. Bamawo's requests for time off, Mr. Bamawo asked other captains for approval, and, when they refused to approve his requests for time off, Mr. Bamawo called in sick. Mr. Bamawo recalls that, on one occasion, he was forced to miss an appointment because Captain Pardue ordered him to work overtime. According to Mr. Bamawo, Captain Pardue accused Mr. Bamawo of being a minute late on one occasion and penalized him, although Mr. Bamawo recalls that Captain Pardue did not penalize others for being late. It was Mr. Bamawo's perception while he worked at DCI that, countless times, Captain Pardue changed the work assignments of Anglo officers when they requested a change, but that Captain Pardue never changed Mr. Bamawo's work assignment when he requested a change. Mr. Bamawo believed that he was given the assignments that no one else wanted. On March 21, 2000, Mr. Bamawo was involved in an altercation with Sergeant Frankie Tindall. Mr. Bamawo called Sergeant Tindall "bitch" and threatened to "blow away" Sergeant Tindall when Sergeant Tindall questioned Mr. Bamawo about trash that littered his post.4 On April 23, 2000, Captain Pardue designated Correctional Officer Orol as third-shift supervisor in DCI's north annex "Yard One"; Mr. Bamawo was one of three other correctional officers assigned to Yard One at the time. As designated supervisor, Mr. Orol had the authority to assign tasks to the three other officers. Mr. Bamawo protested Captain Pardue's choice of Mr. Orol because Mr. Orol had been out of the academy only six months; Mr. Bamawo felt that he should have been designated supervisor because he was the senior officer on the shift. Captain Pardue told Mr. Bamawo that he felt more confident with Mr. Orol in the position of supervisor. Mr. Bamawo told Captain Pardue that he was going to file a grievance. At some point during the daylight hours of the third shift on April 23, 2000, Mr. Orol told Mr. Bamawo to complete a check of the perimeter fence, which Mr. Bamawo considered a difficult job to do in the daylight because it was very hot work. Mr. Bamawo refused the order and told Mr. Orol that he would do the fence check when the sun went down. After a time, Mr. Orol called Mr. Bamawo on the radio and told him again to check the perimeter fence; Mr. Bamawo again refused, using a radio shorthand phrase meaning, "Do it yourself." Captain Pardue was monitoring the radio transmission and heard the exchange between Mr. Bamawo and Mr. Orol. Captain Pardue thought that Mr. Bamawo had responded to Mr. Orol in a "nasty" tone of voice, and, fearing that Mr. Bamawo and Mr. Orol might get into a confrontation, Captain Pardue radioed Mr. Bamawo and told him to come to the control room. Captain Pardue took Mr. Bamawo into a copy room and confronted him about his attitude toward Mr. Orol. Mr. Bamawo again complained about Captain Pardue's choice of Mr. Orol as supervisor rather than Mr. Bamawo. During the discussion, Mr. Bamawo became agitated, turned, and walked away from Captain Pardue. Captain Pardue called to him and told him to come back; Mr. Bamawo turned back and approached Captain Pardue with his fists clenched, called Captain Pardue "bitch," and said he would "bust" Captain Pardue.5 At this point, Captain Pardue, fearing for his safety, called Jeffrey Wainwright, who was the acting warden of DCI. After talking with Captain Pardue and Mr. Bamawo, Mr. Wainwright reassigned Mr. Bamawo to the women's facility across the street from DCI. Mr. Bamawo threatened to file a discrimination complaint if Mr. Wainwright did anything to him as a result of the incident with Captain Pardue. Mr. Bamawo was terminated from his employment with the Department on May 4, 2000. Mr. Bamawo appealed his termination to PERC, which found that the Department had just cause to terminate him based on the incidents of March 21 and April 23, 2000. Mr. Bamawo testified that, through the years, Captain Pardue made "countless" derogatory remarks about Mr. Bamawo's race and national origin. At first, according to Mr. Bamawo, he thought that Captain Pardue was joking, but that, eventually, he saw hate behind Captain Pardue's remarks.6 Mr. Bamawo also claims that Captain Pardue gave him bad work assignments; refused to give him days off; and used rookie officers like Mr. Orol to "agitate" him. Mr. Bamawo believes that he was terminated in retaliation for having threatened to file a grievance against Captain Pardue for unprofessional conduct because Captain Pardue designated Mr. Orol as the supervisor on April 23, 2000, and allowed him to give orders to more senior correctional officers. Other than his complaint to "Colonel Thompson" about the graffiti incident in 1995, Mr. Bamawo did not complain during the years he worked at DCI, either verbally or in writing, that Captain Pardue made racist remarks or derogatory remarks about his national origin or that Captain Pardue discriminated against him in any respect. Mr. Bamawo stayed in his job as a correctional officer at DCI because he liked the job, thought everyone was friendly, and liked working with the inmates. He had no problem with anyone on the job except Captain Pardue and Sergeant Tindall.7 Summary The evidence presented by Mr. Bamawo is not sufficient to support a finding that his termination by the Department was motivated by discriminatory intent or retaliatory. Mr. Bamawo failed to present any evidence to support a finding that the Department has ever imposed a lesser penalty on anyone not a black or a person of African origin for having threatened a Department sergeant or captain with violence. Mr. Bamawo has failed to present sufficient evidence to support a finding that his termination was retaliatory because he had not, at the time he was terminated, filed an employment discrimination complaint; rather, Mr. Bamawo had merely threatened Mr. Wainwright that he would file such a complaint if disciplinary action were taken against him for the April 23, 2000, incident involving Captain Pardue. The evidence presented by Mr. Bamawo is not sufficient to support a finding that he was subjected to continual harassment based on his race or national origin such that his ability to function as a correctional officer was impeded. Although Mr. Bamawo, as a black man of African origin, is a member of two protected classes, he did not present evidence sufficient to establish that he was treated differently from other correctional officers with respect to pay, assignments, time off, or any other aspect of his employment with the Department, and he did not present sufficient evidence to support a finding that he was forced to endure an abusive and hostile work environment at DCI. The evidence submitted by Mr. Bamawo is sufficient to establish that, in 1995, Captain Pardue made a remark about Africans sleeping in trees and a remark about the manner in which Africans served canned corn, but, even though Mr. Bamawo was humiliated and embarrassed by these boorish remarks, these two isolated instances of derogatory comments based on race and national origin are not indicative of a pervasively hostile or abusive work environment.
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 of Oghenerhoro Bamawo. DONE AND ENTERED this 18th day of September, 2003, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 18th day of September, 2003.
Findings Of Fact The Parties. The Petitioner, Andrea Bateman, is a female. At all times relevant to this proceeding, Ms. Bateman was 41 or 42 years of age. Ms. Bateman is an attorney. Ms. Bateman failed to prove that she was a member of The Florida Bar during the period of time at issue in this proceeding. The Respondent, the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department"), is an agency of the State of Florida. Ms. Bateman's Employment by the Department. In October of 1990, the Department employed Ms. Bateman as an attorney in the Department's Office of Child Support Enforcement. Ms. Bateman was required to be a member of The Florida Bar. Ms. Bateman's position with the Department was classified as a "Select Exempt Service" position. Pursuant to Chapter 22SE-1.002(5), Florida Administrative Code, and Part V, Chapter 110, Florida Statutes, persons employed in select exempt service positions may be terminated from employment without cause. Ms. Bateman's immediate supervisor was Chriss Walker. Mr. Walker is a Senior Attorney with the Department and, at the time Ms. Bateman was hired, also served as the Assistant Secretary for Child Support Enforcement. As of December 4, 1991, the Assistant Secretary for Child Support Enforcement, and Mr. Walker's immediate supervisor was Anne F. Donovan. At all times relevant to this proceeding, William H. Bentley was an Assistant Deputy Secretary of the Department with supervisory authority over the Department's Assistant Secretary's, including Mr. Walker and Ms. Donovan. "Productivity Enhancement" at the Department. During 1991, the Department was required to evaluate all employment positions at the Department and to reduce those positions in an effort to improve the productivity of the Department. Generally, all positions at the Department and the work performed by the persons filling those positions were considered and decisions were made as to which positions could be eliminated. The Department referred to the elimination of positions as "red-lining". The Department also made efforts to insure that any person affected by the elimination of their position would be placed in another position. Ms. Bateman's attorney position with Child Support Enforcement was identified for elimination. Another attorney position in Child Support Enforcement and Mr. Walker's Senior Attorney position were not identified for elimination. The decision to eliminate one of the attorney positions was based upon conclusion that the administrative duties of the two attorney positions could be handled by a paralegal position and the legal duties could then be handled by one attorney. Efforts to assist Ms. Bateman to find another position were not successful. Ultimately, the Department decided to find a position in which to continue to employ Ms. Bateman rather than to terminate her position and release her. The Department reclassified another vacant position so that Ms. Bateman could continue to be employed as an attorney for Child Support Enforcement. Mr. Walker was directed to create an attorney position for Ms. Bateman by the Assistant Secretary for Human Services. This decision was made during the early Fall of 1991. The Department's decision to continue to employ Ms. Bateman was based in part on the Department's concern about terminating an employee of the Department. The evidence failed to prove that the Department acted unreasonably with regard to the red-lining of Ms. Bateman's position. Ms. Bateman's Performance. During the year after Ms. Bateman began her employment with the Department, Mr. Walker, Ms. Bateman's supervisor, began to develop concerns about the adequacy of her work product. Ms. Bateman also began to evidence behavior which was not acceptable for an attorney of the Department. As a result of Ms. Bateman's odd behavior, Mr. Walker became concerned about Ms. Bateman's mental well-being. Mr. Walker memorialized his concerns about Ms. Bateman in a memorandum to Mr. Bentley dated December 2, 1991. The memorandum was revised December 19, 1991 to eliminate references to a counselor that Ms. Bateman had informed Mr. Walker she was seeing. Ms. Bateman's work deteriorated to an extent which necessitated other employees carrying out some of her duties. Among the difficulties experienced with Ms. Bateman which formed a reasonable basis for terminating her employment were the following: Ms. Bateman had difficulty communicating with other employees and her supervisor. As an attorney, Ms. Bateman was required to communicate orally and in writing. She was unable to do so in an adequate manner. Ms. Bateman failed to demonstrate good judgment and trustworthiness and, therefore, her supervisors were unable to rely upon her judgment as an attorney of the Department. Ms. Bateman's appearance was unacceptable for an employee of the Department who was required to meet and communicate with the public. Ms. Bateman's hair was unkempt and dirty, her clothes were often soiled and wrinkled, she failed to brush her teeth and she appeared not to be bathing based upon her appearance and her strong body odor. Although required to do so by Department policy, Ms. Bateman refused to give her supervisor a permanent home address or phone number. On one occasion Ms. Bateman was found asleep in the offices of the Department at night and on one occasion she was found asleep during working hours. Based upon the inadequacy of Ms. Bateman's performance, the Department had a reasonable basis for terminating Ms. Bateman's employment. Mr. Walker's Evaluation of Ms. Bateman. On December 18, 1991, Mr. Walker presented Ms. Bateman with a Professional Employee Performance Appraisal form he had completed on her performance. The Appraisal was reviewed by Ms. Bateman and signed by her on December 18, 1991. Mr. Walker gave Ms. Bateman's performance a rating of "effective" on the Appraisal. Of the factors evaluated on the Appraisal, Mr. Walker judged Ms. Bateman's performance as "excellent" on one factor, "effective" on eleven factors and "needs improvement" on nine factors. Mr. Walker gave Ms. Bateman's performance an "effective" rating despite his conclusion that her work product was not acceptable and despite his concerns about her inappropriate behavior. He did so because he had recently been directed to create a position to keep Ms. Bateman as an employee of the Department and in an effort to avoid litigation over Ms. Bateman's termination. Mr. Walker did not believe that his supervisors wanted to avoid any difficulties concerning Ms. Bateman employment. Mr. Walker failed to follow Department procedure in presenting the Appraisal to Ms. Bateman. The Appraisal was required to be reviewed and approved by Mr. Walker's immediate supervisor, Ms. Donovan, before it was given to Ms. Bateman. Mr. Walker, contrary to Department policy, presented the Appraisal to Ms. Bateman before Ms. Donovan had seen and approved it. Ms. Donovan was aware of the problems with Ms. Bateman's performance and would not have approved an "effective" rating. Upon receiving the Appraisal, Ms. Donovan discussed the Appraisal with Mr. Walker and rejected it, as it was her right to do. Ms. Donovan, consistent with Department policy, specified that Ms. Bateman would be evaluated again in sixty days. The Department's Request that Ms. Bateman Undergo a Psychological Evaluation. Although the Department had a reasonable basis for terminating Ms. Bateman's employment by the end of 1991 and in early 1992, the Department decided to attempt to discover the cause of Ms. Bateman's decline in performance and the onset of her odd behavior rather than terminate her employment. The Department made this decision in an effort to determine what assistance Ms. Bateman might need. Ultimately, the Department was attempting to determine what work, if any, Ms. Bateman was capable of performing. The Department's decision was based upon a number of incidents involving Ms. Bateman. Those incidents are included in Mr. Walker's Chronology of December 2, 1991 and his Revised Chronology of December 19, 1991 and are hereby incorporated herein. Although not all the incidents described in the chronologies were proved during the final hearing to have occurred, the Department's consideration of the incidents reported by Mr. Walker was reasonable. Due to the Department's concerns about Ms. Bateman, the Department requested that Ms. Bateman voluntarily participate in the Department's employee assistance program. Ms. Bateman refused. In order to determine what could be done to help Ms. Bateman, and to determine what duties and responsibilities she was capable of performing, the Department requested that Ms. Bateman undergo a psychological, or other, evaluation. Ms. Bateman refused. After discussing the matter with Ms. Bateman and legal counsel she had retained, the Department notified Ms. Bateman that her continued employment was conditioned upon her undergoing a psychological evaluation or some other evaluation which would allow the Department to determine what work she was capable of performing. In a letter of February 12, 1992, Ms. Bateman, through her representative, was informed of the following: As you also know, we are attempting to help Andrea address a problem which we believe exists and has been well documented over the past 16 months. In return, we need Andrea's help and cooperation. If Andrea chooses to agree to our request that she undergo a psychiatric evaluation and authorize the release to us of the psychiatrist's prognosis, diagnosis and recommendation for treatment, we will be glad to schedule an appointment for her with a psychiatrist, and will pay for such an evaluation. We will use the evaluation to determine an appropriate course of action. Ms. Bateman's Termination from Employment. Ms. Bateman continued to refuse to undergo any evaluation or to suggest any alternative course of action. Consequently, based upon Ms. Bateman's inadequate and unacceptable work performance, the Department terminated Ms. Bateman's employment with the Department on or about February 13, 1992. Ms. Bateman's termination from employment was effective February 28, 1992. Ms. Bateman was terminated from employment due to the fact that she was not adequately performing her job and she refused to cooperate with the Department to find out what could be done to help her become an effective employee. Ms. Bateman failed to prove that the Department's reason for terminating her employment was a pretext. Ms. Bateman's Charge of Discrimination. On or about September 15, 1992, Ms. Bateman filed a Charge of Discrimination against the Department with the Florida Commission on Human Relations. Ms. Bateman alleged that she had been discriminated against on the basis of sex and a perceived handicap. On February 10, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " Ms. Bateman filed a Request for Redetermination on March 4, 1992. On April 12, 1993, the Commission issued a "Redetermination: No Cause" affirming its decision. On May 12, 1993, Ms. Bateman filed a Petition for Relief seeking a formal administrative hearing. In the petition Ms. Bateman alleged that the Department had discriminated against her on the basis of sex, a perceived handicap and, for the first time, age. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Ms. Bateman. Alleged Sex Discrimination. Ms. Bateman failed to prove that any action of the Department was based upon Ms. Bateman's sex: she was not held to any standard or requirement based upon her sex, she was not terminated because of her sex and the Department's efforts to determine the cause of Ms. Bateman's problems was not based upon her sex. Ms. Bateman failed to prove that any Department policy or standard had a disparate impact on female employees. Ms. Bateman failed to prove that she was replaced by a male attorney. Ms. Bateman's grooming habits were discussed with her. Some of those discussions concerned the wearing of panty hose and her makeup. It must be inferred that such discussions were not carried on with male employees. The evidence, however, failed to prove that Ms. Bateman's termination was based upon these matters. Although grooming played a part in the decision to terminate Ms. Bateman's employment, it was grooming related to basic cleanliness and neat appearance required of all employees and not just female employees. Ms. Bateman failed to prove that the Department discriminated against her on the basis of her sex, female. Alleged Age Discrimination. At the time that Ms. Bateman was hired she was 41 years of age, and at the time she was terminated she was 42 years of age. Ms. Bateman failed to prove that age played any part in her treatment by the Department. This finding is supported, in part, by the fact that the difference between Ms. Bateman's age when she was hired and when she was terminated was only one year. Ms. Bateman failed to prove that she was replaced by a younger person. Ms. Bateman failed to prove that the persons who made the decision to terminate her employment were aware of her age. Ms. Bateman failed to prove that the Department discriminated against her on the basis of her age. Alleged Perceived Handicap. The Department did believe that Ms. Bateman was suffering from some mental problem. This belief was based upon Ms. Bateman's odd behavior and a concern that Ms. Bateman was "homeless". It was for this reason that the Department requested that Ms. Bateman undergo a psychological evaluation. Ms. Bateman failed to prove, however, that the Department treated her differently from the manner other employees of the Department were treated under similar circumstances. Ms. Bateman also failed to prove that the Department's request that she undergo a psychological or other evaluation to determine how to assist her to meet the requirements of her employment was made for a discriminatory reason. Under the circumstances, the Department's request of Ms. Bateman was reasonable. Ms. Bateman also failed to prove that she was terminated from employment because of any perceived handicap. The evidence proved that she was in fact terminated from employment due to her inability to satisfactorily carry out her job responsibilities. Ms. Bateman also failed to allege or prove that she has a handicap based upon her mental condition. Ms. Bateman also failed to prove that the Department discriminated against her on the basis of a handicap or a perceived handicap.
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
