Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that petitioner's complaint in this case be dismissed with prejudice. RECOMMENDED this 24 day of August, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1984.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was discriminated against on the basis of his race when the Respondent terminated his employment.
Findings Of Fact The Petitioner, Joseph Farris, is a black male who resides in Pensacola, Florida, and was an employee of the AES corporation at times pertinent hereto. AES produces thermoplastic elastomers and vulcanized rubber products, with operations in Pensacola, Florida, and with its headquarters in Akron, Ohio. On or about August 8, 1994, the Petitioner completed an application for employment having heard that the company was hiring. The Petitioner inflated his educational experience and work credentials on his application by including inaccurate information. The Petitioner was subsequently called for an interview and was interviewed by a committee of persons who were apparently all white. Mr. Farris testified, however, that the interview went very well and that no racial bias was involved. Shortly thereafter, the Petitioner was hired as a process technician as part of a class of 16 new employees. He commenced employment on November 14, 1994. Four of the new employees out of 16 were black. AES has an extensive training program for Process Technicians that is four to six months in duration. The training involves classroom instruction, field observation, and "hands-on" instruction. Upon completion of the training program, one is placed on a work-shift with other more trained technicians as part of a team approach. During the training period in which Mr. Farris and his class were involved, the classroom instructor was Bryon Shay. Mr. Shay was a process engineer in Pensacola from June 1992 to January 1995. In January 1995, he became the plant's Quality Assurance Manager. During the classroom training Mr. Shay observed that Mr. Farris was falling behind the rest of the class. He arranged special sessions with him to advance him up to the point where he was comparable with the rest of the class in training and ability. Mr. Shay met with him individually to help him "catch up." Charles Brown, the plant's Manufacturing Superintendent, also met with Mr. Farris during the training period concerning his falling behind the others in his training class and to find ways to help him advance satisfactorily. Mr. Farris testified that while he felt he was not falling behind, he accepted this idea and asked Mr. Brown what he needed to do to improve. In order to help Mr. Farris during the training period, the plant manager at that time, Mr. Caisson, recommended to Mr. Brown that Fred Lewis, an experienced process technician, work with Mr. Farris as well. Mr. Lewis worked with Mr. Farris for approximately one week on the Provox program, the company's computer program that helps run the various production lines and is located in the control room. Because of a disability, Mr. Lewis could not work in other areas of the plant with Mr. Farris. He reported to Mr. Brown that, based upon his observations, while Mr. Farris was unsure of certain things, he seemed to be grasping Provox-based information. Mr. Shay kept the class from graduating for a week so that Mr. Farris could catch up with them without informing the class or Mr. Farris that he was doing that for him. As each phase of the training is completed, a trainee receives a Certificate of Completion reflecting the segments completed. AES also provides its employees with a variety of human resource, group dynamics, and diversity training programs. The purpose of the programs is to foster communication among peers, as well as between employees and supervisors. If communication difficulties arise, an employee can request a confidential, Human Resource-facilitated meeting to resolve problems and map out strategies for communication enhancement. Diversity training workshops are also provided to enhance mutual respect and educate workers concerning racial and cultural differences within the workplace. These programs are often conducted by independent training professionals in the area. Employees are encouraged to contact Human Resource personnel in Florida and/or Ohio to express any concerns they may have. The company has a policy of "zero tolerance" for discriminatory conduct. Witnesses for both the Petitioner and the Respondent established that when such matters are brought to management's attention, they are dealt with swiftly and employees are disciplined for wrong-doing. Sometime in late March or early April 1995, Mr. Farris was assigned to "B shift." In May 1995, he was transferred to "A shift." Mr. Farris had felt that he was not getting the support he needed on "B shift." In this regard, during the April-May time period, another technician, Mr. Kouns, came to Mr. Brown to see if he could switch to "B shift" since it would allow him and his wife to spend more time together, given her own shift schedule as a nurse. Mr. Kouns also approached Mr. Farris to see if he was agreeable to making that change. While the company typically does not transfer technicians between shifts, Mr. Brown decided that the switch would benefit both employees. He believed too that the employees on "A shift" were very good people who would support Mr. Farris and help him grow in the job. Mr. Farris acknowledged that he had good rapport with the members of "A shift." "A shift" members included Willie Murphy, an experienced process technician, with whom Mr. Farris interacted and received guidance. Mr. Murphy is black. Shannon Payne, Patricia Neal and Neil Sammon, are also members of "A shift" and confirmed the pleasant relationship between all members of the shift. In 1995 through 1997, process technicians were typically under the direction of two supervisors, Henry Klug, the Packaging and Compounding Superintendent who oversaw the compounding area, and Charles Brown, the Manufacturing Superintendent who oversaw the "DVA" area. Mr. Klug and Mr. Brown typically divided up the process technicians for the purposes of providing performance evaluations. In early April 1996, Mr. Farris received his performance form for 1995 and received a "below expected" evaluation. Mr. Klug prepared that evaluation. Mr. Klug testified that on multiple occasions in 1995, he had observed Mr. Farris in both the compounding area and the DVA area and had spoken with him. He concluded that Mr. Farris was struggling with understanding how the process worked and was tentative in his decision-making. Mr. Klug further testified that he spoke with both Mr. Brown and the new plant manager, Mr. Bosse, about his concerns. Mr. Brown had also observed Mr. Farris struggling and concurred with Mr. Klug's assessment when they sat down to review Mr. Klug's findings of "below expected" performance. These findings were based on personal observation, as well as from information received from various employees. In this connection, because the evaluation was "below expected," Mr. Klug and Mr. Brown were required to meet with Mr. Bosse and the Human Resource Manager, Kimberly Wheeler, as a matter of company policy, to explain why a "below expected" rating had been given. On April 12, 1996, Mr. Klug sat with Mr. Farris to discuss the performance evaluation. Mr. Farris neither objected to the evaluation nor did he ever complain that it was racially motivated. During 1996, Mr. Farris continued to struggle in the areas of knowledge of the process, troubleshooting and decision- making. Mr. Klug testified that the behaviors that he had observed in 1995, were still present throughout 1996 and that he and Mr. Brown discussed ways to help Mr. Farris improve. Mr. Brown established that by the Fall of 1996, he had grown increasingly concerned that Mr. Farris was not only falling far behind his peers, but also that he did not understand the process. Accordingly, in November of that year he met with him and gave him a written assignment in order to assess whether he knew the process. This assignment included answering questions and drawing the process and the equipment involved on paper. The information on the assessment was drawn from the materials the Petitioner had received in training. Mr. Farris was not able to draw the equipment or correctly answer many of the questions, including questions pertaining to safety, for which he had received a reprimand approximately one week before. Mr. Brown established that Mr. Farris' lack of understanding of the process and the equipment had serious safety consequences, as well as consequences for productivity, decision-making and so forth. Upon reviewing the assessment with Mr. Farris he asked him to take the training manuals home to review, walk throughout the plant to observe and repeat the written assignment at home in order to master the concepts and the information he had received from observations. Mr. Farris also acknowledged that Mr. Brown took him to the engineering department to look at diagrams and advised him that if he could draw the equipment and picture it in his mind it would help him to troubleshoot better. In late November 1996, Mr. Farris complained to Ms. Wheeler that he felt he was having difficulty with Mr. Brown and requested her to set-up a "join-up" session with his supervisor to "iron things out." "Join-ups" are confidentially facilitated sessions designed to resolve communication difficulties between employees that might arise. Ms. Wheeler agreed to the request and scheduled a meeting for late January 1997. The facilitators included Robert Parker, AES's Manager of Human Resources and Global Training Coordinator. Mr. Parker had been Ms. Wheeler's mentor in Human Resources and spoke with her regularly about employee relation issues. Mr. Farris never raised the issue of racism or discriminatory conduct in his November meeting with Ms. Wheeler nor did he raise it in the January session with Mr. Parker. Mr. Parker and Ms. Wheeler, who are black, testified that had it been raised, the issue would have been addressed immediately. On March 18, 1997, Mr. Farris received his performance evaluation for 1996. He again received a "below expected" level evaluation. In paragraph six thereon it was noted that he "continues to fall further behind his peers. Joe's performance for the year was again less than expected." The evaluation also expressed concern about Mr. Farris' growing absenteeism. Mr. Brown had met personally with Mr. Farris in July and November 1996 to discuss the issue of his absenteeism. Before meeting with Mr. Farris, Mr. Brown, along with Mr. Klug, met with Mr. Bosse and Ms. Wheeler to discuss the evaluation. Mr. Bosse questioned them again, as supervisory personnel, concerning the basis for the findings and determined that the evaluation was appropriate. On March 26, 1997, Mr. Farris e-mailed Ms. Wheeler that he disagreed with the evaluation and met with Ms. Wheeler to discuss his concerns. He did not tell her that he believed that the negative performance review was racially motivated. Ms. Wheeler also met with Mr. Bosse to discuss the issue, as well as with Mr. Brown. It was determined that Mr. Brown, Ms. Wheeler and Mr. Farris should meet to develop a performance improvement plan. Mr. Brown was informed of and kept apprised of the plan. Mr. Klug was also aware of some of the drawings Mr. Brown had Mr. Farris work on and confirmed their importance as a means to create a visual map in a process technician's mind as to how the process worked. On April 3, 1997, Ms. Wheeler, Mr. Brown and Mr. Farris met at length to review performance and communication issues and to develop an improvement plan. Between April 3, and April 23, 1997, Mr. Farris and Mr. Brown worked on an improvement plan. In finalizing the plan, Mr. Brown extended the original deadline dates for completion of each component that Mr. Farris had set for himself. Mr. Brown testified that he wanted to give Mr. Farris ample time to master the material. Mr. Farris claimed that he felt Mr. Brown gave him a longer completion time to make him look bad. He introduced no evidence to substantiate that opinion, however. Ms. Wheeler testified that Mr. Farris told her that he was comfortable with the plan and could demonstrate what was being asked of him. In late May 1997, Mr. Farris submitted new drawings to Mr. Brown for review. Mr. Brown testified that he saw marked improvement and complimented Mr. Farris accordingly. Mr. Farris admitted that Mr. Brown had praised him on that occasion and acknowledged that in his deposition he had admitted that Mr. Brown had previously encouraged him to improve. On or about July 9, 1997, an independent Quality Assurance Agency conducted a "pre-audit" of Pensacola operations. This agency (BSI) was represented by Mildred LaCorte, and the Quality Assurance Manager for AES was Mr. Shay. The purpose of the pre-audit was to allow Ms. LaCorte to inspect the premises at random and question employees at random as well. During her "walk-through," Ms. LaCorte randomly stopped in the DVA control room where Mr. Farris was working and asked him questions about the process. She found that he did not understand the process or proper procedure. Mr. Shay, Mr. Brown, Mr. Klug and Mr. Bosse were present during the walk-through and testified that Mr. Farris had difficulty answering Ms. LaCorte's questions. Moreover, they observed him behaving nervously and excusing himself during the questioning and walking out. Mr. Farris testified that there had been a line problem that he had to correct. He provided no confirming evidence or testimony to support that rationale. He also testified that he did fine in response to the questions and that his peers congratulated him on how well he did. Mr. Brown was quite concerned by Mr. Farris' inability to respond to Ms. LaCorte's questions adequately and especially in light of his apparent improvement during May. As a consequence, he went first to Ms. Wheeler and then met with Mr. Farris in late July and asked him to draw the process once again. Mr. Farris could not do so and admitted that he did not do well. However, he claimed that his failure to perform adequately was because he felt that he should not have to do the drawings and that his supervisor was harassing him by asking him to do so. He provided no confirming evidence or testimony that Mr. Brown was harassing him in any way, however. Mr. Farris complained to Ms. Wheeler about having to do the drawings again. Ms. Wheeler testified that she told Mr. Farris that what he was being asked to do was part of the performance improvement plan, which items he had told her he could readily demonstrate and she told him that his supervisor had a right to set work standards and performance expectations. Even then Mr. Farris never complained that this purported harassment was racially motivated. Ms. Wheeler nevertheless apprised Mr. Bosse and Mr. Brown about the complaint. It was determined that an objective assessment of Mr. Farris' knowledge of his job should be undertaken by someone other than Mr. Brown. In early September 1997, Tim Caton, the Engineering Superintendent at the plant, who had a good rapport with Mr. Farris, met with him for three to four hours. He testified that he was surprised at Mr. Farris' lack of knowledge in several key areas and the level of difficulty he was having. After the meeting he reported his findings to Mr. Brown who wrote down the findings, which Mr. Caton confirmed at the hearing as true and accurate. Mr. Payne, Ms. Neal and Mr. Sammon all testified that Mr. Farris had been struggling for over two years, did not understand the process, had difficulty with troubleshooting and retaining information. Ms. Neal established that on one occasion when she was out working near the feed stock silos, she saw Mr. Farris out there with his clipboard and drawing looking around. She asked him what he was looking for and he responded that he was looking for the line two test bins. Ms. Neal testified that she told him that they were not in that area but were located on the other side of the building. She noted that what interested her was that after years on the job, he was looking in the line one compounding area for line two equipment. Subsequent to Mr. Caton's assessment, it was clear that Mr. Farris was having serious difficulties and was not at the competency level expected of a person with over two and one- half years of process technician experience. Sometime in late October 1997, Mr. Farris met again with Ms. Wheeler after he had been warned again by Mr. Brown about absenteeism. Mr. Farris complained that he was being discriminated against on the basis of race. This was the first time the race issue had been raised. Ms. Wheeler was surprised by the allegation because it had never been raised before. She spoke at length about the matter with Mr. Parker, as well as with Mr. Bosse. After being notified, Mr. Parker questioned Ms. Wheeler at length about the issue and also spoke with Mr. Brown. It was determined that Mr. Farris' allegation was not founded and the real issue with Mr. Farris was work performance. At some point, apparently in mid-October, Mr. Brown recommended that Mr. Farris be terminated. Termination recommendations are typically reviewed by the Human Resources Division and the plant manager in Pensacola (Ms. Wheeler and Mr. Bosse) and are then forwarded to the Human Resources legal counsel and senior executive personnel in Ohio (Mr. Parker, Mr. Liskiewicz, Mr. Kaluza and Mr. Voellmacke) for review. On November 11, 1997, after completion of the review of the termination recommendation, Mr. Farris was discharged. He filed separate racial discrimination complaints with the Escambia Human Relations Commission and the Florida Commission on Human Relations. Both Commissions investigated the matter and found no cause or that the allegations were unfounded. Several white employees in Pensacola had also been terminated, disciplined, and/or given "below expected" reviews by AES, including Kenneth Thompson, Tony Davis, Steven Carr, Jennifer Nowling and Mike Mosley. Mr. Carr, for example, was given an improvement plan by Mr. Brown. Mr. Brown evaluated the 1995 performance of Rodgi Campbell, an black process technician, and gave him an "above expected" rating. Mr. Klug was the evaluator for Mr. Campbell for 1996, and gave him an "above expected" rating as well. Mr. Brown was also the evaluator for Walter Williams, a black process technician, for 1995 and gave Mr. Williams an "above expected" rating.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject Petition in its entirety. DONE AND ENTERED this 8th day of April, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 8th day of April, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Suite 100 Tallahassee, Florida 32301 Jonathan D. Fishbane, Esquire Goodlette, Coleman & Johnson, P.A. 4001 Tamiami Trail North Suite 300 Naples, Florida 34103 Ronnie L. Williams, Esquire 814 Saint Francis Street Mobile, Alabama 36602
Findings Of Fact At all times material hereto, Petitioner has been employed by the Respondent as a multi-trades worker. On or about September 2, 1987, Petitioner was demoted from the position of multi-trades worker III to II, with a 5% reduction in pay. He currently remains in the multi-trades worker II position. Petitioner was demoted because he made discriminatory and derogatory racial remarks to employees under his supervision. Specifically, he referred to black employees as "niggers, sambos and blackies" on several occasions. He also told a female employee under his supervision that he would not promote her because she was a woman. Following his demotion, Petitioner appealed this action to the Civil Service Board of Hillsborough County. On or about December 16, 1987, the Civil Service Board upheld his demotion based upon its finding that Petitioner had "uttered racial slurs, racially derogatory remarks and other insulting and abusive language directed toward subordinate employees under his supervision over an extended period of time and on a number of occasions." On or about March 24, 1988, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations, and after investigation, a finding of No Cause was entered. Thereafter, Petitioner timely filed a Petition for Relief alleging that Respondent had unlawfully discriminated against him due to his national origin, Hispanic. No evidence in this record supports Petitioner's allegation.
Recommendation Based upon the foregoing, it is recommended that Petitioner's charge of discrimination against Respondent be DISMISSED. DONE AND ENTERED this 7th day of February, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1989. COPIES FURNISHED: Clemente Quintana 162 Venice Circle Land O'Lakes, FL 34639 Catherine P. Teti, Esquire Post Office Box 1110 Tampa, FL 33601 Margaret Agerton, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Donald A. Griffin Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
The Issue Whether Respondent Employer is guilty of an unlawful employment practice, as defined by Chapter 760, Part I, Florida Statutes, against Petitioner on the basis of his race (African- American).
Findings Of Fact White Oak Plantation is an "employer" as defined by Section 760.02(7), Florida Statutes. At all times material, Respondent was in the business of breeding, raising, selling, and showing thoroughbred horses. Petitioner is an adult African-American male. Petitioner was employed by Respondent from January 17, 1996 until March 19, 1999. Petitioner's employee evaluations showed that at all times material he met expectations or exceeded expectations. Petitioner was terminated by Billy Davis, his immediate superior, on March 19, 1999. Davis is a Caucasian male and at all times material was a Stable Manager. It is undisputed that Petitioner alleged in both his Charge of Discrimination and his Petition for Relief instances of racial harassment and the use of racially derogatory names against himself in the work place by Frank Gowen, a co-employee, and by Mike Brown, who at one point was a co-employee and who later was not an employee of Respondent. With regard to his termination, Petitioner's Charge of Discrimination alleged: 3. On March 19, 1999, Mr. Martin, Billy Farmer and myself were heading to clean the stalls. Mr. Martin called me "buckwheat" [sic]. He then grabbed a nearby hose and hosed me down, soaking my clothes with water. I stood there in shock as Mr. Martin ran out of the stable. He came back and began threatening to turn me White [sic] with lime. He threw the lime, and it landed on my shoes. I threw a bucket of water on him in self-defense, hoping he would leave me alone to do my job. Instead, he began punching and kicking me, and I protected myself. Mr. Davis then entered the stable and asked if there was horse-play [sic] going on. He then stated that everyone would be punished. When questioned later, I told Mr. Davis what happened, and he accused me of letting Mr. Martin take the fall. On March 24, 1999, I was unjustly terminated. On June 4, 2002, the Commission entered its Determination: No Cause. Petitioner timely filed a Petition for Relief, pursuant to Chapter 760, Florida Statutes, and the Rules of the Commission. His Petition alleged, with regard to his termination, as follows: 5. During my employment with respondent another incident that involved racial names being made to an African American [sic] employee by a white [sic] employee occurred. The African American [sic] employee complained to management. Both employees were terminated after the African American [sic] employee stated that he was defending himself after being called racial [sic] derogatory names by the white [sic] employee. The African American employee was rehired after EEOC intervined [sic]. I was defending myself and received serious injury to the right ankel [sic]. The ligament was torn out of place when another employee threw a 50# bag of shavings that hit me on the ankel [sic]. I suffer with a limp and serious pain from my ankel [sic] being reaggravated [sic] from the incident that occured [sic] on 03/20/99. I also suffer with anxity [sic] and depression from having been allowed to go through the comments alone when no one tried to stop it. I am seeking relief in the amount of 68000.00 [sic] for injuries sustained and for mental distress and anxity [sic]. After the case was referred to the Division of Administrative Hearings, a Notice of Hearing was issued, indicating that the disputed issues of material fact would be "as stated in the Petition for Relief." While Petitioner's testimony was vague as to dates, chronology, and relationship of some discriminatory events to other identifiable events, he testified concerning several incidents of racial harassment. Petitioner testified that sometime in 1996, a Caucasian male employee named Frank Gowen spotted another Caucasian male and an African-American male wrestling in one of Respondent's parking lots. Gowen asked aloud, in Petitioner's presence, "What does that Nigger think he's doing?" No other witness corroborated that this comment was made. Petitioner admitted that he never reported the comment to anyone in management until after he was terminated in 1999. Respondent's management employees, Billy Davis and Ronnie Rogers, Human Resources Officer, were credible in their testimony that they never knew of this incident until after Petitioner's termination. Petitioner testified that on another unspecified date, Gowen asked a Caucasian female employee, also in Petitioner's presence, what "Pontiac" meant, and then answered his own question as, "Pontiac means 'Poor Old Nigger Thinks It's A Cadillac.'" At hearing, the female employee denied this event happened. No other witness corroborated Petitioner's account of this incident. No other witness even seemed to understand the so-called joke or anagram for Pontiac. Petitioner admitted that he never reported this comment to any superior until after he was terminated in 1999. Respondent's management employees were credible that they never knew of this specific incident until after Petitioner's termination. There is sufficient evidence to corroborate Petitioner's account that in approximately January 1998, he had a knife in his hand, opening a feed sack, with the knife's point aimed at a Caucasian male employee, without any intended threat, and at that point, Gowen said to the other employee, something like, "You got to watch them Niggers. They'll cut you." Petitioner admitted that he never reported this incident to any superior until after he was terminated in 1999. Petitioner also testified credibly that on the same day as the "cutting" comment, Frank Gowen prevented him from sitting in the front of a flatbed dump truck with Gowen and another Caucasian male, Donovan Rewis, while saying something to the effect of "That's right. Let the Nigger ride in the back of the truck." Mr. Rewis corroborated that this discriminatory comment and event, in fact, occurred. On the same day as the "cutting" and "back of the truck" comments/events occurred, another male African-American employee named Clarence McClendon approached Billy Davis. McClendon told Davis that a bad situation was developing between Petitioner and Gowen. Exactly what McClendon told Davis is unclear, but it appears that Davis was at least made aware that the term "Nigger" had been repeatedly used by Gowen to Petitioner and was further made aware that the "cutting" and "back of the truck" incidents had occurred on the same day. Upon learning of the "cutting" and "back of the truck" incidents from McClendon, Davis immediately asked Petitioner to come to his office. Davis asked Petitioner to explain what had happened involving Gowen. Petitioner did not specifically describe the "wrestling" comment or the "Pontiac" comment, and it is unclear whether Petitioner described either the "cutting" or "back of the truck" incidents in the detail provided by the foregoing Findings of Fact, but Petitioner did explain to Davis that Gowen had repeatedly used the word "Nigger" in his presence and about himself. Davis then told Petitioner that Gowen's behavior was unacceptable behavior for a White Oak Plantation employee and that Gowen's comments and behavior would subject Gowen to discipline, which discipline could go as far as Gowen's termination. Petitioner then told Davis that he did not want Gowen to be punished or to get in any trouble for making the comments. Petitioner requested that Gowen simply be asked to make a sincere apology to him and to promise that he would never again make such comments. Davis specifically told Petitioner that he could inform Respondent's Human Resources Office of the incidents. Petitioner, however, requested that Human Resources not be involved and that, instead, the matter be handled by Davis. Petitioner testified that he simultaneously met with Davis and Rose Harley, an owner-manager, about the Gowen matter. It is important to Petitioner that all concerned know that Harley stated to him that the Gowen situation should have been brought to her attention sooner and that he would receive a record of the comments and management's response. Davis recalls only meeting with Petitioner alone and then meeting alone with Rose Harley to further discuss the situation. Petitioner is credible that at some point Harley made the statement to him which he related, but Davis is just as credible that Petitioner asked him not to involve the Human Resources Office. After meeting with Petitioner, Davis and Harley met with Gowen to discuss the matter with him. Davis told Gowen that he and White Oak Plantation were disappointed in his behavior. He instructed Gowen to apologize to Petitioner. Gowen, in fact, apologized to Petitioner. After the apology, Davis met with Petitioner again, and Petitioner told Davis that he was satisfied with the apology that he had received from Gowen. At this meeting, Davis instructed Petitioner to inform him if any further incidents occurred. He further told Petitioner that if Petitioner did not feel comfortable talking to him, Billy Davis, Petitioner could notify any other supervisor, which presumably would include Ms. Harley, or the Human Resources Officer, Ronnie Rogers. Although Petitioner claimed at hearing that he had told Davis by phone about Gowen's earlier comments, Davis denied that any such phone call took place, and no witness corroborated Petitioner's timeline. What is undisputed is that in 1998, no more than one day elapsed from the time McClendon notified Davis of Gowen's comments until the time the incident was resolved to Petitioner's apparent satisfaction. Davis continued to check with Petitioner, informally, in passing, on a regular basis, to ensure that Petitioner was not having any more problems with Gowen. Petitioner never indicated to Davis that any further discrimination problems existed. Mike Brown was a Caucasian male employee of Respondent who left Respondent's employ in 1999. How long he was a co- employee with Petitioner is not in evidence. While they were both employees of Respondent, Brown and Petitioner fell into a habit of addressing each other by nicknames. Brown referred to Petitioner as "Buckwheat." Petitioner referred to Brown as "Cracker," "Vidalia," "Onion Head,"1 and "Grand Wizard." Various Caucasian employees considered Petitioner and Brown to be only "cutting the fool" or "joking around" when they addressed each other this way. Other employees, including Brown's girlfriend, Missy Springer, also referred to Brown as "Vidalia." Apparently, Petitioner was always aware that the term, "Grand Wizard," inferred that Brown held that rank in the Ku Klux Klan, and Petitioner saw nothing wrong in addressing Brown that way, because Brown had asked Petitioner to call him "Grand Wizard." However, Petitioner initially did not think "Buckwheat" had any racial connotation or derogatory intent. Petitioner testified that he initially took the term "Buckwheat" to refer to the African-American character of the same name in "The Little Rascals" series of films; to be a joking nickname; and to be a harmless "stereotype."2 At some point, Petitioner contacted the National Organization for the Advancement of Colored People (NAACP) and was informed by that organization that references to the character "Buckwheat" in "The Little Rascals" series constituted disparagement of the Negro race, based on a stereotypical, uneducated, ragamuffin, Negro child who ate watermelon and behaved like a wild animal. The record does not reveal when Petitioner consulted the NAACP or whether the insult was explained to him in this way before or after Brown's leaving Respondent's employ. However, it is clear that Petitioner did not go to Davis or Rogers about the situation with Brown at any time. Once again, Petitioner's situation was reported to Davis by Clarence McClendon, after Brown left Respondent's employ. After Brown ceased to be one of Respondent's employees, Brown continued to come on Respondent's premises to provide transportation for his girlfriend, Missy Springer. During this period of time, the trading of offensive nicknames between Petitioner and Brown continued without any complaint from Petitioner to management. Over one year after the disciplining of Gowen, and after Brown was no longer Respondent's employee, McClendon reported to Davis that he had observed Brown call Petitioner "Buckwheat" and that Petitioner had called Brown "Vidalia" and "Cracker." At hearing, Petitioner claimed, without any corroborating testimony, that Davis was aware of Brown's racial disparagement of him at some time while Brown was still employed by Respondent, because Davis had been present in the break room once when Brown had telephoned, and when Petitioner answered the break room phone, Brown had addressed Petitioner, over the phone, as "Buckwheat." Petitioner testified that other employees in the break room laughed and Missy Springer told Davis that the caller had to be "Vidalia," a/k/a Mike Brown, because Brown was the only one who called Petitioner "Buckwheat." Davis categorically denied being present when any such event occurred, if it occurred. Based on the evidence as a whole, Davis is the more credible witness on this aspect of the case. Petitioner did not ever affirmatively approach Davis for redress of the nasty nickname situation with Brown. However, immediately after being informed by McClendon, Davis approached Petitioner about McClendon's allegations involving Brown. He asked if Petitioner wanted him to ban Brown from Respondent's premises. Petitioner agreed that was what he wanted done. In this discussion with Petitioner, Davis suggested that Ronnie Rogers, Human Resources Officer, be contacted regarding Brown's behavior, because Brown now was a member of the public. Petitioner agreed that Human Resources should be consulted. A meeting was held by Davis and Rogers with Petitioner. During this meeting, Rogers reviewed White Oak Plantation's Equal Employment Opportunity (EEO) statement with Petitioner. During Petitioner's employment, Respondent's EEO anti- discrimination and anti-sexual harassment statement had consistently been displayed at the time clocks of the East Stable, where Petitioner was assigned, and in the employee cafeteria, where employees daily received a free lunch. This statement prohibited racial disparagement or harassment. It set out to whom reports of such activities should be made, which included any supervisor. It stated that Respondent would not retaliate against anyone who made a good faith report of discrimination, even if that person turned out to be wrong. It did not promise confidentiality. In their meeting concerning banning Brown from the premises, Petitioner told Rogers that he was familiar with the EEO statement. Rogers agreed with Davis and Petitioner that Brown should be banned from the premises. Davis told Petitioner sometime during this period that if he experienced any repercussions as a result of Brown being barred from the property, Petitioner was to inform Davis immediately. Petitioner's testimony suggested that he now considers this statement to have been a threat by Davis or to demonstrate Davis's reluctance to ban Brown from Respondent's property, but Davis is more convincing that if he said anything close to this, it related to what Missy Springer might do or say. Rogers told Petitioner that if Petitioner experienced any future problems, whether those problems were related to Brown or not, Petitioner should immediately contact either his supervisor, Davis; another supervisor; or Rogers, himself, depending upon with whom Petitioner felt more comfortable. After meeting with Petitioner, Davis and Rogers immediately sought out Missy Springer, Brown's girlfriend whom he was transporting to and from work. They met alone with Springer and told her that Brown would no longer be allowed on Respondent's premises. They directed Springer to telephone Brown to tell him that. In the presence of Rogers and Davis, Springer telephoned Brown and instructed Brown that he was banned from coming onto White Oak Plantation property. Rogers then contacted Respondent's Head of Security and instructed him to post notices at both gates stating that Brown would no longer be allowed on White Oak Plantation property. White Oak Plantation maintains security guards on a twenty-four hour basis, seven days per week, and they were instructed not to allow Brown onto the property again. Since the date that the notices were posted and Brown was notified that he was barred from White Oak Plantation property, Brown has not returned. After the situation with Brown had been investigated and apparently resolved in late February 1999, Davis continued to check with Petitioner informally to inquire whether Petitioner was having any further problems. Petitioner was credible that he did, in fact, receive some unpleasant comments from other employees as a result of Rogers's and Davis's banning of Brown from the White Oak Plantation property. However, Petitioner did not report any such problems to Davis. Instead, he took a vacation for two weeks. After Petitioner returned to work, on March 19, 1999, Davis was shoeing a horse at the Forge, a small stabling facility about 100 yards from Respondent's East Stable. From the Forge, Davis had a direct line of sight to the East Stable. From the Forge, Davis witnessed two individuals running around and throwing water at each other. Because they were in the dark hallway of the stable, because of the distance, and because Davis was looking from lightness into darkness, Davis could not make out exactly who they were, but he could clearly see the conduct in which they were engaged. Respondent White Oak Plantation had gone out of business by the date of hearing. However, at all times material, White Oak Plantation was world renowned for its thoroughbred horse breeding program. It housed many mares valued in excess of $1,000,000.00 and foals with insurance values up to, and in excess of, $1,000,000.00. What Davis witnessed on March 19, 1999, was inconsistent with the training and instructions provided to employees working around such valuable blood stock. After contacting another employee to secure the horse in the Forge, Davis walked to the East Stable to investigate the commotion. Upon arriving at the East Stable, Davis discovered water in the hallway, disinfecting powder (lime) covering the black asphalt hallway, and a broken director's chair, normally reserved for guests, in the vicinity of a stall housing a young thoroughbred mare and her three-day-old foal. Davis approached the employees who were working at the East Stable at that time. They were Petitioner; Jason Martin, a minor Caucasian male; Clarence McClendon; and Billy Farmer, an adult Caucasian male. Davis noticed that Petitioner and Martin were both soaked with water, while McClendon and Farmer were dry. Davis asked Petitioner and Martin separately, but within earshot of each other, what had been going on, and both said they had been working. Davis then asked Farmer and McClendon, individually, what had occurred involving the water, lime, and broken chair. Both Farmer and McClendon avoided the question and responded that they did not want to get involved in the situation. Davis again asked Farmer and McClendon what had happened. Farmer and McClendon replied that they were working and that Davis should ask Martin and Petitioner what had happened. Davis asked Farmer and McClendon a third time what had occurred at the East Stable. Each of them replied that while they were working, Martin and Petitioner were horsing around. Davis then asked both Petitioner and Martin two or three times what had occurred, and each time Petitioner and Martin claimed that they had been working. Ultimately, Martin confessed that he had been involved in horse play and the commotion had been his fault. Davis immediately terminated Martin. Petitioner began to walk away from the situation, but Davis called after him something to the effect of "No, you can't let him take the fall for you. You are out of here, too." Petitioner protested that since Martin had confessed the incident was his fault, he, Petitioner, should not be terminated as well. The mare and three-day-old foal that were in the East Stable when Petitioner and Martin were horseplaying had a combined insurance value of between $750,000.00 and $800,000.00. The foal was only the mare's second or third birthing, and as a youngish mother she could be presumed to be nervous. Due to the age of the foal and the highly temperamental nature of young thoroughbred mares, the conduct in which Petitioner and Martin were engaged was very dangerous to the well-being of this mare and her three-day-old foal. It was conceivable that the mare could have been spooked and stepped on the foal, injuring it. Fortunately, that did not happen. Davis had trained all of his stable employees, including Martin and Petitioner, in the correct way to act around thoroughbred horses. Even though their horseplay was not actually in the stall with the new mother and foal, Davis considered Petitioner's and Martin's conduct with the water, lime, and broken chair to be inconsistent with the training provided. He accordingly terminated both Martin, the Caucasian boy, and Petitioner, the African-American man, because both had been involved in the event. Either orally or in paperwork, both Petitioner and Martin were terminated for engaging in horse play, for creating an unsafe work environment for themselves and their co-workers, and/or for reckless misconduct around the blood stock or thoroughbred horses. Petitioner pointed out that some or all of these reasons were not specifically listed as major offenses, subjecting an employee to termination, in Respondent's personnel manual at the time of his termination. That fact might be relevant in a case of unlawful termination pursuant to a contract of employment or collective bargaining agreement, but it is not material to the resolution of this case under Chapter 760, Florida Statutes. The manual does not purport to be exhaustive of the reasons an employee could be terminated. What is material here is that Petitioner agrees that he and Martin were terminated for the same reason or reasons, however phrased. Petitioner feels that his termination was unfair because Martin essentially took the blame for them both, but Davis's reason for terminating both employees may be summed up by the old adage, "It takes two to make a fight." On the day of his termination, Petitioner told Davis that he and Martin were fighting, and that he was defending himself, but he did not say anything to Davis about Martin making any racial comments towards him. During Mr. Davis's contemporaneous investigation of the incident in the East Stable, neither McClendon nor Farmer told him that Martin had used any racial terms while engaged in horse play with Petitioner. After Petitioner was terminated, he appealed to Respondent's Human Resources Officer, Ronnie Rogers, so Rogers conducted his own investigation of the facts surrounding Davis's terminations of Petitioner and Martin. In connection with that investigation, Rogers interviewed Farmer, McClendon, and Petitioner. McClendon told Rogers that on the day of Petitioner's and Martin's terminations, he witnessed Petitioner and Martin running, playing, and throwing water on each other. McClendon further stated that he saw either Martin or Petitioner push the other individual into the director's chair, breaking it. Farmer told Rogers that on the day of Petitioner's and Martin's terminations, he had witnessed Petitioner and Martin running around and playing for 10 to 15 minutes. Rogers concluded that Davis had made a proper decision in terminating both Martin and Petitioner. The Monday following Petitioner's termination, Petitioner telephoned Rogers to inquire whether he was still terminated. During the course of this conversation, Petitioner admitted to Rogers that he and Martin were horse playing in the stables where the thoroughbred horses were housed. During this conversation, Petitioner did not say anything to Rogers about Martin or any other individual using any racial or inappropriate language on the date of Petitioner's termination. Rogers and Davis met with Petitioner on March 24, 1999, five days after Petitioner was terminated. During this meeting, Petitioner reiterated what he had told Rogers, that he and Martin were playing around in the East Stable on the day of their terminations, but he also brought up the previous racial incidents involving Gowen and Brown and inquired whether Rogers was aware of them. Rogers had not been aware of the incidents involving Gowen and asked Petitioner if he were satisfied with the way that all the previous incidents involving both Gowen and Brown had been handled. Petitioner indicated that he was satisfied with the manner in which the incidents involving Gowen and Brown had been handled. Petitioner claimed at hearing that in the March 24, 1999, meeting, he related to Davis and Rogers that the March 19, 1999, altercation with Martin had been self-defense because he had been attacked by Martin and/or provoked by Martin's racist comments. Both Davis and Rogers credibly deny that Petitioner told them anything about racial comments by Martin. They also credibly deny that Farmer or McClendon reported any racial comments. They are less clear that Petitioner said nothing about self-defense or about Petitioner having to fight Martin, and I accept Petitioner's testimony only to the extent that he did claim both horseplay and self-defense as of March 24, 1999. Neither Davis nor Rogers independently observed or was aware of any racially inappropriate conduct or comments. At hearing, Petitioner testified that on March 19, 1999, the date of termination, Martin had called Petitioner "Buckwheat." Petitioner related that Martin had then stated that if Mike Brown were permitted to call Petitioner "Buckwheat," then he, Martin, should be allowed to call Petitioner "Buckwheat," too, and that Petitioner told Martin that he could not because Petitioner now knew it to be racist language. Petitioner related that Martin then hosed Petitioner down, soaking Petitioner's clothes with water. Petitioner said he let this event pass, because it was hot. He then filled a pail of water and spilled some. He poured the remainder of the water in his pail into a wash stall. Martin ran away from Petitioner, thinking Petitioner was going to throw water on him, and said something to the effect of "Since you think you White and you want to be White, I'm going to take this lime and throw it on you and turn you White." Petitioner related that Martin was referring to the lime used to disinfect the stalls. However, Petitioner did not testify that Martin picked up any lime. Rather, Petitioner testified that Petitioner picked up a bucket of water and threw it on Martin. Petitioner related that Martin reacted to being doused by Petitioner by getting Petitioner in a headlock and punching and kicking him. A fight ensued, in close vicinity to the young mare and her three-day- old foal, but not within their stall. Petitioner testified that the director's chair was broken when Petitioner threw Martin into it. The area was also flooded with water.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 11th day of December, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2002.
The Issue Did Respondent, State of Florida, Department of Professional Regulation, commit an unlawful employment practice by discriminating against Petitioner on the basis of race?
Findings Of Fact Petitioner is a 35-year-old Black male. Prior to December 1986, Petitioner was employed by Respondent in an OPS position in "Central Files". His work performance in Central Files was both superior and exemplary, and he was offered a State Career Service position as a Senior Clerk within Respondent's "Complaint Section". Upon accepting the Career Service position, Petitioner entered into a mandatory six months' probationary period. In the Senior Clerk position, Petitioner's primary duties were to answer the phone a specific 4-hour daily shift; to assist or act as backup for phone answering during Senior Clerk Terri Jones' (Black female) 4-hour daily phone shift; to prepare and distribute Class II complaint cases to Respondent's "Legal Section"; and to distribute mail and other materials as assigned by his immediate supervisor, Louise Bull (white female). On January 5, 1987, Petitioner took 4 hours unauthorized leave without pay for which he received a written reprimand on January 6, 1987. He had previously been orally reprimanded for the same practice. It was established by competent substantial evidence that Petitioner's immediate supervisor, Louise Bull, had had a number of absences without leave, some of which occurred before Petitioner's termination and some of which occurred after his termination, and that she also received at least one written reprimand for these absences. For some of her absences, Ms. Bull was required to reimburse money to the State, however it was not clear whether the reimbursement was because she was absent when she falsely claimed to be present or was standard reimbursement procedure when the leave actually taken is not covered by accrued leave time. Either way, Ms. Bull was not in a probationary status at any material time and, clearly, as Petitioner's supervisor, hers was not a substantially similar position to that of Petitioner. Petitioner and Cindy Dexter testified that many permanent employees in addition to Ms. Bull were playing fast and loose with tardiness and absenteeism, but their evidence is very indefinite and the race and gender of the employees accused was not established. Ms. Dexter's testimony was vague and not credible on this point. Their testimony on this subject was not confirmed by other credible witnesses nor was it ever established that any of the permanent employees accused by Petitioner held positions substantially similar to his. From almost the beginning of his probationary period, Petitioner had difficulty adjusting to his new position. He evidenced difficulty accepting supervision from Ms. Bull. This disrupted standard office practice. Over the probationary term, Ms. Bull orally counselled Petitioner approximately seven times concerning his lack of acceptance of her supervision as well as excessive tardiness and excessive personal phone usage. Diane Orcutt, the regular Complaint Office Supervisor and Ms. Bull's superior, described Petitioner as avoiding Louise Bull and coming directly to her about problems he perceived in the office operation. Petitioner and Terri Jones, his female job counterpart who is also Black, had an early but undefined job- related dispute, after which he sent her flowers to "make-up". On one occasion, after a loud and disruptive argument arose between Petitioner and Ms. Bull in the general office area, Evelyn McNeely, who was acting supervisor to them both during Ms. Orcutt's vacation, required Ms. Bull to prepare a memorandum clarifying Petitioner's job duties because, in Ms. McNeely's view, the Petitioner did not seem to understand his duties. This was done on June 17, 1987. This memorandum, headed "Performance Evaluation" from Ms. Bull to Petitioner also warned Petitioner that Ms. Bull would recommend extension of his probationary period because he was falling short on acceptable performance in several areas. Louise Bull prepared, delivered, and discussed with Petitioner her performance evaluation, indicating, based upon her personal observations, his failure to satisfactorily perform in the following areas: repeatedly tardy over the last several weeks; failure to properly handle routine telephone duties; failure to comply with their section's procedures for routing of case files; and continued failure to accept supervision under their section's chain of command. Ms. Bull admitted that she suffered emotional problems while Petitioner worked for her and apparently thereafter. She had crying jags and consulted a psychologist. She also received a prescription from some source for the tranquilizer valium. Ms. Bull denied that she and the psychologist ever identified a reason for her emotional state. Melinda Wagoner testified that Ms. Bull related to her that her emotional problems stemmed from living in a Black neighborhood and fighting with Black children when she was a child. The foregoing hearsay is admissible as an admission of a party (DPR) through its supervising agent (Louise Bull), but even if fully credible, this evidence would be insufficient to establish a nexus between Bull's behavior and the reason for Petitioner's eventual termination, in light of the record as a whole. Terri Jones, the permanent employee most substantially similar to Petitioner, was also a Senior Clerk. She is also Black. Her job duties were identical to those of Petitioner, except that they had primary responsibility for phone calls during different parts of each day. Ms. Jones had no supervisory problems of her own with Louise Bull. Ms. Jones asserted that Petitioner had excellent telephone manners but confirmed that Petitioner's regularity in answering the phone either on his shift or as her backup was often insufficient. The Complaint Section's phone was often placed on "hold" with no one waiting on the other end. Although anyone in the office could place a call on "hold" and any caller could hang up before an employee returned to the phone, the inference from all witnesses' testimony as a whole was that this "hold" procedure was being done excessively by Petitioner. Diane Orcutt, regular Complaint Office Supervisor, reviewed Petitioner's phone logs prior to evaluating him at the six months' point. The representative phone logs of the two substantially similar employees, Petitioner and Terri Jones, show that Petitioner logged only 34 calls in the same period that Ms. Jones logged 359. This vast discrepancy can be interpreted in a number of ways: either Petitioner was not answering the phone as directed, or he was not logging all calls as directed, or he was not maintaining the logs as directed. By any interpretation of this empirical data, Petitioner was not fulfilling a prime requirement of his job. At the time of his six months' evaluation, on June 22, 1987, Diane Orcutt made a joint decision with Louise Bull to extend Petitioner's six months probationary period by four months. Ms. Orcutt did this for a number of reasons: his early absences without leave, oral complaints from lower echelon employees that Petitioner would frequently neglect his telephone duties in one way or another, and the disruptive nature of his failure to accept Ms. Bull's supervision. In requiring the additional probation, Ms. Orcutt gave greater weight to the administrative/managerial friction and less weight to Petitioner's reprimanded early absences; however, with regard to the complaints of other employees, she testified that she felt sure Petitioner could do the work because of his past excellent performance on OPS and because of her personal observation but that he needed more time to actually do the job instead of engaging in uncooperative disputes with Ms. Bull. Additionally, Ms. Orcutt was giving Petitioner the benefit of any doubt by taking additional time to sort out whether the disruption problem arose from Ms. Bull or from Petitioner, because at that point, Ms. Bull had no problems supervising other Black or white employees; no oral complaints had been made by other employees against Ms. Bull; and oral complaints against Petitioner confirming Ms. Bull's unrecorded observations of Petitioner had been received personally by Ms. Orcutt. When presented with Orcutt's Mid-Cycle Appraisal and the 4 months' additional probation plan on June 22, 1987, Petitioner was hostile, refused to sign the appraisal, and another disruptive scene arose among Petitioner, Ms. Bull and Ms. Orcutt. Petitioner spent all of the workday of June 23, 1987 in "Personnel" complaining that his evaluation and the 4 months' additional probation was unjust. On two of the remaining successive days of that work week, Petitioner accomplished some work. On one of the remaining successive days in that week, he took his "Personal Leave Day". A weekend intervened, and on Monday, June 28, 1987, Diane Orcutt reassessed the situation, determined that Petitioner was not intending to cooperate, and terminated him, as had always been her option during his probationary period.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Human Relations Commission dismissing the complaint and petition for relief filed by Robert Baucham. DONE and ENTERED this 3rd day of November, 1989, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-0712 The following constitute specific rulings, pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (PFOF): Petitioner's Proposed Findings of Fact None filed Respondent's Proposed Findings of Fact Respondent's proposals have been accepted in substance and modified to conform to the record. Where they have not been accepted, they are rejected as misleading as stated or not supported by the record as stated. COPIES FURNISHED: Robert Baucham Hearings 1021 Idlewild Drive, P-161 Tallahassee, FL 32301 E. Harper Field Deputy General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Kenneth D. Easley, General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Donald A. Griffin, Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570
Findings Of Fact Petitioner is a black female. At all times material, Petitioner was employed by Respondent corporation in one of its general retail merchandise stores in Ocala, Florida. Petitioner was hired by Respondent's white male store manager, Mr. John Sasse, on October 20, 1992, as a stock clerk in the shoe department. Petitioner was terminated on January 10, 1993, within the ninety day probationary period published in Respondent's employee handbook. In making the foregoing finding of fact, it is recognized that Petitioner attempted to show that the probationary period for new employees was only sixty days. However, she only showed that the sixty day period was applicable in a different time frame than is material here. On October 31, 1992, while working in a stock room, Petitioner's back and neck were injured when a box fell on her. Supervisors called an ambulance, and Petitioner was transported to the emergency room of a local hospital. She was treated but not hospitalized. Respondent duly filed the "Notice of Injury" as mandated by Chapter 440 F.S., "The Florida Workers' Compensation Act," and began to pay Petitioner's medical expenses. Prior to her injury, Mr. Sasse considered Petitioner to be only a marginal employee. Petitioner was released by hospital doctors for return to work as of November 6, 1992. At that time, she had no work restrictions imposed by a doctor, so Mr. Sasse reassigned Petitioner to her usual duties. Petitioner worked at the tasks she felt she could do until November 11, 1992, when she returned to the hospital. She was examined and medicated. Later that same day, as is standard procedure with workers' compensation injuries wherein the employer pays for an injured worker's medical care and as a result has the legal right to specify which doctors attend the employee, Mr. Sasse ordered Petitioner to go to "Care One," a "walk-in" medical facility specializing in occupational medicine. Petitioner went to Care One, where she was again examined and medicated. Petitioner was released for work the same day with written work restrictions from the Care One doctor. Petitioner's resentment against Respondent that she had been injured in the first place apparently was a motivating force in her actions after she returned to work the second time. Petitioner's candor and demeanor while testifying, as well as her persistence in returning her testimony to the circumstances surrounding the box falling upon her in the storeroom, made it very clear that she considered it discriminatory, or at least unfair, that Respondent had "forced" her or anyone to work under the cluttered stock room conditions that had resulted in her initial accident or injury. In Petitioner's mind, at least, the fact that an accident or injury had occurred in the first place was sufficient to establish "dangerous working conditions" and "an unlawful employment practice." After November 11, 1992, she persisted with these complaints to the employer. However, no competent evidence established a nexus between Petitioner's race and her pre-injury job assignments, and no evidence demonstrated that after her accident, the Respondent-employer handled her workers' compensation medical care any differently because she was black. On November 11, 1992, Care One's written restrictions provided: Restricted Employee should avoid movements of the upper body and neck that would place undue stress on the neck, such as strenuous pushing and pulling, heavy lifting, and working above the shoulders. Employee should avoid lifting > 20 pounds, avoid frequent bending and twisting of the back, and avoid strenuous pushing and pulling. Mr. Sasse and his subordinate supervisors assigned Petitioner tasks consistent with Mr. Sasse's interpretation of Petitioner's written restrictions, as modified over time by subsequent information. On November 11, 1992, a position was created for Petitioner in the soft goods department. At this time, Petitioner became the only black clerk in the soft goods department. Initially, Mr. Sasse told her she was not to reach above her shoulders or bend to pick up anything below her knees. Petitioner complained that these tasks constituted too much physical exertion for her due to her physical condition. Petitioner continued to complain about the accident and her pain. The employer and insurance carrier continued to refer her back to Care One. There was a short delay with regard to some medical services requested by Petitioner or by referring and consulting doctors under the workers' compensation medical care delivery system, but the employer/insurance carrier in due course authorized physical therapy, a consultation with an orthopedic specialist, and magnetic resonance imaging (MRI) for further diagnosis. Derrick Proctor, a black male employee and Petitioner's friend, presented as a credible witness, even though he claimed to have been fired by Mr. Sasse under what Mr. Proctor termed "suspicious circumstances" and at the time of formal hearing had some type of action pending against this employer. Mr. Proctor described Petitioner as "embittered" against the employer because of the employer's refusal or delay in dealing with Petitioner's medical concerns and stress. However, it appears that Petitioner's problems, if any, were common disputes and communication delays inherent in the workers' compensation medical care delivery system. For instance, when asked, the doctors reported directly to the employer, insurance carrier, and store manager concerning the Petitioner- employee's medical condition, consultant treatment, and recovery progress. On December 10, 1992, Mr. Sasse told Petitioner that he had received an oral report on her December 9, 1992 MRI results and that they were negative. This conversation occurred before any of the doctors had reported the MRI results to the Petitioner, and Petitioner inferred therefrom that information was being withheld from her. Later, on December 22, 1992, Petitioner learned, during a reprimand and counselling session for insubordination and failure to work up to her capacities, that the employer had been informed much earlier that she could return to work with no restrictions. (See Findings of Fact 32-36) Although Mr. Sassy and others had told her this before December 22, 1992, the events of December 22, 1992 triggered a belief in Petitioner that the employer was "out to get" her. Notwithstanding the extreme light duty assigned her, Petitioner complained about the work assigned and was uncooperative about helping supervisors find a job description she felt she could perform. Although Petitioner may not have known about it until November 25, 1992, on November 20, 1992 Care One deleted the prior restrictions on lifting items over 20 pounds, bending, and strenuous pushing and pulling, and narrowed her restrictions to the following: Restricted. Employee should avoid movements of the upper body and neck that would place undue stress on the neck, such as strenuous pushing and pulling, heavy lifting, and work above the shoulders. In December 1992, Mr. Proctor was required to close his department, hardware, every night, and Petitioner closed the soft goods department some nights. Petitioner considered being required to close some nights to be discrimination against her since she was the only black employee in the soft goods department at that time and the white female employee in soft goods had been switched to the day shift in Petitioner's place. The greater weight of the evidence shows that the whole store's evening hours increased from midnight to 1:00 a.m. due to the Christmas season, and on December 6, 1992, Petitioner was assigned to work nights so that she could go to daytime medical and physical therapy appointments. The employer's accommodation of Petitioner's situation in this respect was comparable to the accommodation given a white female employee in soft goods. Beginning November 23, 1992, that white female employee, Ms. Audrey, had been assigned to a daylight shift so that her husband, who had bad night vision, could drive her to and from work. Race was not a factor in the accommodation rendered Ms. Audrey or Petitioner. Who closed the store during December 1992 depended upon who worked the evening shift, not race. It is not entirely clear on the record whether, on December 3, 1992, Petitioner withdrew from physical therapy because she could not do the weight training assigned her or was rejected by the physical therapist as a client because she would not cooperate in weight training. Petitioner testified that she returned to physical therapy thereafter for ultrasound treatment. It is clear that Petitioner believed she was rejected by the therapist because she could not lift the heavy weights assigned her by the therapist as part of Petitioner's planned recovery. It is also clear that the decision to end the weight phase of Petitioner's treatment did not have employer input. By December 5, 1992, Petitioner's personally professed physical limitations and complaints about Mr. Sasse's treatment of her had resulted in Mr. Sasse accommodating her by creating a "make-work" job description. Under it, she was asked to push a cart that other employees had hung clothes on; she was not required to load the car with clothes. She was required only to pick up single articles of clothing that were left in the women's dressing rooms and return them to the racks. She was told only to bend if an occasional article of clothing was found on the floor. She was also told to open dressing room doors for customers and, if requested, fetch more clothes for them to try on while they remained in the dressing room. Petitioner was permitted to wear her softly padded neckbrace at all times, even though she presented no written doctor's instructions to do so. Petitioner described it as an "agony" imposed on her by the employer when, on December 5, 1992, Mr. Sasse ordered her not to sit continuously on the sales floor in a chair she had removed from the women's dressing room. Petitioner had previously complained because she had been required to sit for long hours on a very hard chair Mr. Sasse had provided for her, and this time she had gotten a different chair herself. On December 5, 1992, Mr. Sasse told her she must leave the dressing room chair in the dressing room for the customers, that she was not permitted to sit all the time on the sales floor where customers could see her, and she must not just sit without doing any work, until all her work was done. He told her to do a variety of the tasks of which she was capable, including but not limited to sitting while pricing goods. Petitioner considered these orders to be contrary to her doctor's limitations and to constitute "physical abuse." Petitioner repeatedly requested time off with pay so that she could recover completely through bed rest. Mr. Sasse would not allow her time off for medical reasons without a doctor's written approval. Petitioner considered this condition imposed by management to be "abusive." Petitioner described Mr. Sasse as being rude to her on December 6, 1992, when he refused to discuss her accusations of "physical abuse" and her request for time off in the presence of other employees and customers in the public buffet area of the store, and walked off, leaving her there. Petitioner referred to this incident as at least part of her "opposition to unlawful employment practices" which she believed resulted in her termination. Petitioner presented no evidence that a doctor had ever recommended that she stay at home and do nothing so that she could heal. From all the evidence, it is inferred that as a probationary employee, Petitioner had no accrued sick leave to expend for this purpose. Ms. Gardner was a long-time white female employee who had her doctor's approval for knee surgery and who required a month of bed rest at home afterwards. The employer allowed Ms. Gardner to use earned compensatory time as sick leave for that purpose during the month of December 1992. By mid-December, 1992, Mr. Sasse was frustrated because Petitioner refused to do every job he devised, even the "make work" ones, and he believed that she only pretended to be busy when he was watching her. Mr. Sasse had told Petitioner that she could do normal work again and she would not accept this from him without hearing it also from her doctor. Mr. Sasse decided to discipline Petitioner for not working up to her limitations as he understood them and for insubordination. He directed the soft goods manager trainee, Ms. Lynn Tyler, a white female, to "write up" Petitioner. Ms. Tyler and the assistant store manager, Ray Harding, a white male, met with Petitioner on December 22, 1992 to discuss the contents of the prepared memo. One of the supervisors' concerns at the time Petitioner was "written up" was that they could not get Petitioner to do anything at all without an argument, even after pointing out various light work job duties on a walk around the whole store. They were also concerned that without Petitioner doing some tasks, the employer had to pay other employees overtime to accomplish what Petitioner was not accomplishing in her regular shift hours. It was stipulated that Petitioner was never asked to work overtime. Petitioner refused to sign the December 22, 1992 memorandum of reprimand because she did not agree with it and because Tyler and Harding were, in her opinion, "grudgeful." Petitioner was informed later on December 22, 1992 by her Care One doctor that he had, indeed, released her for normal work activities effective December 16, 1992. His December 16, 1992 report which had been previously received by the employer read: Please note employee's current duty status is as follows: Regular May return to normal work activities full time. After her accident, Petitioner was observed by Derrick Proctor doing some of the same types of physical exertion the employer had required that she do before the accident, including reaching above her head to put clothes on and take them off clothes racks and picking clothes up from the floor, but he never knew her medical restrictions other than what she told him. He also observed her in agitated conversations with Ms. Tyler and Mr. Sasse while she was wearing a neck brace. On January 7, 1993, he saw Ms. Tyler "very out of sorts" when talking to the Petitioner. At first, he stated that he did not consider Petitioner to be rude or insubordinate on these occasions because the topic was working conditions, but later he admitted that he could not overhear what was actually said on all these occasions. Mr. Proctor also observed that, "Mr. Sasse rode everybody pretty hard," including white workers. It was "his way of getting things done." Mr. Proctor once observed Petitioner hiding in another department, behind racks, to avoid management. Petitioner acknowledged and described her "hiding out" at that time to Mr. Proctor as due to her "feeling mistreated" and "avoiding management." In her formal hearing testimony, Petitioner described it as "opposing unlawful work practices and abusive treatment." After learning on December 22, 1992 of her release from all medical restrictions, Petitioner continued to be uncooperative with management. Petitioner's testimony conceded that she had understood that all doctors had released her with no restrictions as of December 28, 1992 and that she had still refused to reach and bend in the stock room when ordered to do so by Mr. Sasse and Ms. Tyler on January 7, 1993. After evaluating Petitioner's continued failure or refusal to perform even the lightest of duties, Mr. Sasse decided to terminate Petitioner before her ninety days' probationary period ended. Mr. Sasse, who was terminated by Respondent-employer sometime later in 1993 and who, at the time of formal hearing, was litigating an unemployment compensation claim against Respondent, had no reason to fabricate information or testify favorably for the Respondent-employer. He was credible to the effect that the decision to terminate Petitioner in January 1993 was his unilateral decision and that he made his decision without reference to, or motivation by, Petitioner's race. Specifically, it was Mr. Sasse's foundational assessment that Petitioner could physically do the light work he assigned her after reasonable accommodation for a temporary disability but that she would not do the work assigned by him that caused him to terminate her. Petitioner testified that she was replaced by a white female. In fact, a white female was hired approximately one or two weeks prior to Petitioner's January 10, 1993 termination, with a due date to report to work on January 11, 1993, which subsequently turned out to be the day immediately following Petitioner's termination. The employer did not hire this white female with the intent of replacing Petitioner, but she was ultimately placed into the soft goods department. Mr. Proctor testified that other blacks worked in soft goods after Petitioner's termination. Within four weeks of Petitioner's termination, three new employees were hired. None of these were assigned to the soft goods department. Mr. Standley Gillings, a black male, was originally employed in another of Respondent's Ocala stores. In October 1993, Mr. Gillings was demoted with a loss of pay and transferred to the store from which Petitioner had been fired ten months earlier. His new immediate supervisor in that store was also black. Respondent continued to employ Mr. Gillings under the black supervisor until Mr. Gillings found another job and quit.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing the Petition for Relief. RECOMMENDED this 25th day of August, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1994.
The Issue The issue herein is whether petitioner was unlawfully terminated from her employment with respondent because of race. Based upon all the evidence herein the following findings of fact are determined:
Findings Of Fact Petitioner, Ruby McKenzie, is a black female who was first employed by respondent, Bach Engineering, Inc. (Bach), on June 14, 1982, in the position of electronics assembler. She initially held a temporary position but was later placed in a permanent position in March, 1993. At the time of her termination on February 17, 1984, she was earning $4.82 per hour. Bach, which is located in Altamonte Springs, Florida, is a manufacturer of radio systems, components and parts for the airline industry. As such, it requires that workers have some degree of skill and precision. The business employs some 55 to 50 persons, of whom perhaps a dozen are black, and is functionalized into departments (e.g., quality control, repair, final assembly and stockroom). All departments are under the control of a supervisor. During much of her employment with Bach, McKenzie's supervisor was Ida Metzer, who was responsible for most of her performance evaluations and criticisms. However, Metzer was killed in an automobile accident in late 1984. At the time of her discharge, McKenzie was in the repair department where her supervisor was Karen Miller, a white female. Bach's personnel policies regarding attendance and tardiness are set forth in a document entitled "Personnel Manual." Although its president, Michael Bach, claimed that this document is disseminated to all employees, there was evidence that this was not true. Nonetheless, all employees including McKenzie, had the "understanding" that if they were going to be absent or late for work (which began at 7:00 a.m. each day Monday through Friday), they were to call their department supervisor before the beginning of the work day. This was generally consistent with the instructions in the personnel manual. Under company "policy", an employee with "excessive" absenteeism or tardiness is first given a verbal warning, then a written warning, and is then subject to termination. McKenzie understood that even after a verbal and written warning had been given, she would then be placed on probation for a 50 or 90 day period rather than being terminated. However, Michael Bach said his policy was that once a verbal warning is given, the employee is automatically placed on probation for "around" 90 days. In all cases, he stated that a verbal and written warning is given prior to an employee being discharged. Bach hires both temporary (part-time) and permanent employees. The temporary employees are generally supplied by a local agency that provides this type of employee. The rules regarding absenteeism and tardiness apply to both temporary and permanent employees, although Michael Bach stated that mode leeway is given temporary employees when enforcing the rules. McKenzie worked in various departments within the firm. She was described by Michael Bach and the operations manager as being capable of doing a food job, but did so only when she enjoyed the job she was performing. If she did not like her job, her work was described as being less than satisfactory. Nonetheless, she received at least a satisfactory rating for each six month period she worked at Bach, the last being for the period July 5, 1983 through January 5, 1984, or approximately six weeks before being discharged. Bach stated that even though McKenzie received a satisfactory rating, these evaluations were not always accurate, because if less than satisfactory ratings were given, it would tend to discourage a worker from performing satisfactorily during the next six months period. Despite the satisfactory performance evaluation, McKenzie's most recent performance on the job was characterized as "very poor" by the operations manager. She was also criticized for poor workmanship on the "boards," did not wear glasses as required by her job, and was slower than counterparts in performing her work duties. This was confirmed by a coworker (black) who stated that she worked twice as many boards each day as did McKenzie, and frequently had to do "rework" on McKenzie's errors. Bach gives each worker five days sick leave and five days vacation time annually. Employees are expected to use their vacation time during July of each year when the plant is shut down. McKenzie was absent from work or tardy a total of 100 hours during 1983, or more than her allotted amount of sick and annual leave, and 19.5 hours the first month and a half in 1984. In 1983, she received a verbal warning for her absenteeism and tardiness on March 31 and October 12, and a written warning concerning the same on April 19, 1983. She was again given a verbal warning on February 15, 1984. The next day she was discharged for "absenteeism, inconsistent (sic) in quality and quantity of work." Her termination prompted the instant proceeding. McKenzie's dismissal was ordered by Michael Bach after McKenzie's immediate supervisor (Karen Miller) complained to the operations manager (Sonja Schultz) about McKenzie's continued tardiness, absences and poor work. Indeed, most recently, she had been late on February 10 and 13, and simply left a message on February 15 that she "wasn't coming in." The termination notice reflected that the "employee was warned on several occasions about attendance and workmanship, failure to do acceptable jobs in areas required", and that she was ineligible for reemployment "due to attendance and workmanship." To substantiate her complaint, McKenzie points to two white female employees, Debbie Price and Connie McIntosh, both temporary employees, who had more absences than her when she was fired, but were allegedly not terminated by Bach. Mclntosh was absent 50.5 hours from October 13, 1983 through the end of the year, and 85.5 hours from January 1 through March 9, 1984 when she was laid off because of a production slowdown. However, more than half of Mclntosh's absences were due to her child's illness. She was given a verbal warning concerning her attendance on February 15, 1984, or just prior to being laid off. The other employee (Price) requested a change to a permanent status in her job, but was turned down because of poor attendance. Because of this, she quit her job on February 17, 1984, the same day McKenzie was discharged. A third employee, also a white female was fired on March 10, 1984, for excessive absenteeism after receiving two verbal warnings and two written warnings between September, 1953 and February, 1984. In the latter case, the employee had been absent 114 hours in 1983 and 90 hours in 1984 prior to her termination. Bach has been in operation for some five years. Its president has a policy of treating all employers equally, and claims its hiring and firing policies apply equally across the board to all employees regardless of race or sex. A number of employees (all black) confirmed this and denied the existence of any discriminatory practices employed by the company. Indeed, McKenzie herself could not identify any such practices, and merely "guessed" that the reason she was fired was because she was black. After being terminated by Bach, McKenzie was unemployed for approximately six weeks. She then obtained a job with Sonitrol Electronics Corporation at an hourly wage of $4.00, or .82 cents less an hour than she earned at Bach. She has been employed continuously with Sonitrol since obtaining that job. In this proceeding, she asks for the difference between her present salary and the salary she received at Bach, the loss of wages while she was unemployed, and reasonable attorney's fees and costs for prosecuting this complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that petitioner's petition for relief be GRANTED, that respondent be found guilty of unlawful employment practice, and that petitioner receive the relief set forth in paragraph 5 of the conclusions of law portion of this order. DONE and ORDERED this 8th day of May, 1985, in Tallahassee, Florida. Hearings Hearings DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 8th day of May, 1985. COPIES FURNISHED: Harry L. Lamb, Jr., Esquire 521 N. Fern Creek Avenue Orlando, Florida 32803 Mr. Michael C. Bach 654 N. Douglas Avenue Altamonte Springs, Florida 32301 Aurelio Durana, Esquire 325 John Knox Road, Ste. 240, Bldg. F Tallahassee, Florida 32303
The Issue Did the Respondent engage in a discriminatory employment practice by suspending the Petitioner from work?
Findings Of Fact The Petitioner, Joeann F. Nelson, is a Black female. In 1997, she was employed as an aide working with developmentally disabled persons at Sunrise Community, Inc. The Respondent, Sunrise Community, Inc. (hereafter “Sunrise”) is an employer within the meaning of the Florida Civil Rights Act of 1992. On or about April 24, 1997, the Petitioner was suspended from her employment for a number of days by Sunrise. The Petitioner filed a complaint with the Florida Commission on Human Relations (hereafter “the Commission”) on May 8, 1997, alleging that her suspension was racially motivated, and a violation of Chapter 760, Florida Statutes. The staff of the Commission investigated the complaint, and issued its Determination of No Cause on May 16, 2000. At the same time, the Commission gave the Petitioner notice of her right to an administrative hearing on the Commission’s findings. The Petitioner, while employed by the Respondent, was asked by her immediate supervisor to participate in taking residents of the facility to their group home. The Petitioner refused to take the residents complaining that another co-worker was scheduled to take the residents on the day in question. The supervisor told the Petitioner that the person who was scheduled to take the residents was too old to handle that job, and the Petitioner got into an argument about this matter. As a result of this refusal to take the residents and the argument, the Petitioner was suspended for a number of days. The refusal to follow the directions of her supervisor regarding her work and the confrontational argument with the supervisor over being asked to do a specific task that was within her job duties generally were sufficient cause for discipline. The Petitioner did not show that she was singled out or treated differently because of her race, either in being asked to perform the task or in being suspended for refusing to do the task. Subsequently, the Petitioner filed a second complaint with the Commission on June 30, 1997, and raised additional issues regarding her discharge when she asked for her formal hearing on the Commission’s determination of no cause on the original complaint. However, the only matter properly before the undersigned in these proceedings is her suspension.
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 complaint upon a finding that there was no cause. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2000. COPIES FURNISHED: JoeAnne Nelson Post Office Box 76 Crawfordville, Florida 32326 Steven M. Weinger, Esquire Kurzban, Kurzban, Weinger, Tetzeli, P.A. 2650 Southwest 27th Avenue Second Floor Miami, Florida 33133 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issues are whether the Respondents committed unlawful employment practices against Petitioner, and if so, to what relief is she entitled.
Findings Of Fact In the spring of 1994, Respondent CSD began operating a residential detention program for juvenile offenders pursuant to a contract with the Department of Juvenile Justice. The purpose of the program, commonly known as Hamilton House, was to provide redirection to the lives of its youthful residents/clients. Hamilton House had 48 beds divided between two dormitories. Respondent CSD assigned each resident to the appropriate dormitory, level six or level eight, depending on the type of security and rehabilitative services required. The program included an educational program as well as facilities for vocational and recreational activities. Respondent CSD employed Petitioner, a 51 year-old white female, as a resident advisor at Hamilton House from March 24, 1994 through June 30, 1996. Petitioner initially worked the 11:00 p.m. to 7:00 a.m. shift in the level six dormitory. At times she served as the acting shift supervisor though she was not paid a supervisor's wages. When Petitioner began working for Respondent CSD, she lived with her elderly mother, Lotus Musgrove, whose colon cancer was in remission. At that time, Mrs. Musgrove was able to live independently and did not need a caretaker. On April 24, 1994, some of the clients managed to gain access to a bottle containing an alcoholic beverage. Petitioner and other employees received a verbal warning for failing to adequately monitor the behavior and movement of the clients. A training letter was placed in each employee's personnel file. In May of 1995, Respondent CSD hired Bobby Williams, Sr., as a resident advisor in the level eight dormitory. Mr. Williams is a black male. He eventually assumed the position of shift supervisor for the entire facility. There is no evidence that Petitioner sought this full-time position or a similar supervisory position at any time during her employment with Respondent CSD. In October of 1995, some of the clients accused Petitioner and another staff member of inappropriate conduct including, but not limited to, furnishing them with prohibited magazines and movies. As a result of the allegations, Respondent CSD suspended Petitioner and her co-worker without pay on October 18, 1995. By letter dated October 20, 1995, Respondent CSD advised Petitioner in writing that there was insufficient evidence of misconduct to warrant termination of her employment. However, the letter stated that Petitioner had violated company policy and procedure by allowing a youth to leave his room for extended periods after curfew. Respondent CSD paid Petitioner and her co- worker for the time they were suspended during the internal investigation. Respondent CSD subsequently reassigned Petitioner and her co-worker to work in a different dormitory and on a different shift. The change in time and location of their work shift was necessary to ensure there was no contact between them and the clients who had accused them of improper conduct. Petitioner was assigned to work the 3:00 p.m. - 11:00 p.m. shift in the level eight dormitory. In a written statement dated October 23, 1995, Petitioner objected to the change in her shift. She preferred to continue working the 11:00 p.m. - 7:00 a.m. shift. She asserted that, during the day, she took care of her 78 year-old mother who had cancer. Respondent CSD did not immediately honor Petitioner's request. On or about November 24, 1995, Petitioner voluntarily purchased some supplies in the amount of $20.98 from a retail store. The supplies included the following: hand sprayers, cotton swabs, hydrogen peroxide, rubbing alcohol, highlighters, marker, Sharpies, and other miscellaneous items. Petitioner requested reimbursement from Respondent CSD because she intended to use the supplies at work. Respondent CSD declined to reimburse Petitioner for the supplies. There is no evidence that Respondent CSD ever authorized the purchase of the supplies. On December 11, 1995, a resident in the level eight dormitory attempted to discard a container of contraband tobacco. Petitioner detected his effort and responded appropriately. She received a letter of commendation for exemplary action which was placed in her personnel file. On January 23, 1996, the Office of the Inspector General of the Department of Juvenile Justice made a formal and final determination that "[i]t is inconclusive that staff members Julie Toughton and Alice Musgrove engaged in improper conduct with clients." On or about February 1, 1996, Petitioner took a box of pens and pencils from a client's desk. The client became upset and exhibited inappropriate behavior toward Petitioner. As a result of the client's tantrum, Petitioner took token-economy points from the client. Petitioner filed a written complaint dated February 4, 1996, with Respondent CSD after learning that one of her supervisors, Mike Myers, changed the client's point sheet. Petitioner's February 4, 1996, statement also asserted that Supervisor Myers was mishandling clients' mail. She complained that he was logging clients' mail and making the clients read their personnel mail to him. According to Petitioner, handling client mail was the responsibility of "line staff." On one occasion in February 1996, Petitioner was 30 minutes late reporting to her assigned duty station in the dormitory. She spent that time in the administration building because she refused to work with one of her co-workers. Supervisor Myers was responsible for changing Petitioner's time sheet to reflect a 30-minute deduction in regular time. On another occasion in February 1996, Petitioner and other employees worked two hours of overtime due to a crisis situation with one of the clients. Petitioner elected to "bank" the overtime rather than receive time-and-one-half of overtime pay. The other employees chose to receive overtime pay. Petitioner was off from work on February 22-23, 1996. When Petitioner arrived at work on February 24, 1996, her time sheet was not with the time sheets of other employees. Petitioner's time sheet was locked in a supervisor's office until February 26, 1996, because the supervisor was not at work. There is no indication in the record whether Petitioner's time sheet was locked up inadvertently or due to a dispute over Petitioner's wages. On March 1, 1996, Petitioner filed a written grievance with Respondent CSD regarding her pay. She claimed that Supervisor Myers was harassing her and discriminating against her by changing her time sheet without her knowledge. Specifically, Petitioner complained that Mr. Myers cheated her out of 30 minutes of regular time on one occasion and two hours of overtime on another occasion. She complained that her time sheet was locked in a supervisor's office for four days. On March 4, 1996, the Program Director, Dale Edwards, agreed that Petitioner should not be penalized for one-half hour of regular pay because she was in the administration building during the disputed time. Additionally, Mr. Edwards directed Supervisor Myers not to change an employee's time sheet without prior approval. He also requested that Petitioner furnish documentation that the company owed her for the two hours of overtime. Mr. Edwards was under the mistaken impression that the dispute over Petitioner's time sheet had been resolved. In March of 1996, Petitioner was working the midnight shift in dormitory eight consistent with her written request dated October 23, 1995. On March 18, 1996 and March 27, 1996, Petitioner made written requests for a change to the 7:00 a.m. - 3:00 p.m. shift. Petitioner specifically wanted to replace a Ms. Aikens on the morning shift. Respondent CSD did not honor Petitioner's request. However, there is no evidence showing that Ms. Aiken's position was ever filled, and if so, whether Respondent CSD selected a person of a different race or a younger to file the position. Petitioner was absent from work between April 8, 1996, and April 16, 1996, on April 22, 1996, and on April 29, 1996, due to illness and/or medical appointments. While she was absent, her inner-office mail box became so full that the mail had to be removed. The administrative manager gave Petitioner's mail to her supervisor. On April 23, 1996, Supervisor Myers completed Petitioner's annual performance appraisal for the period March 14, 1995 through March 14, 1996. Petitioner disagreed with the determination that she had difficulty communicating with others. Petitioner's mental health counselor, Christine Clark, sent Mr. Edwards an unsolicited letter dated April 23, 1996. According to the letter, Ms. Clark was treating Petitioner for family/employment related stress reduction. The letter states as follows in pertinent part: Due to the demands of her home environment, caretaking of her elderly mother who is dying from colon cancer, I am recommending that Ms. Musgrove be reassigned new working hours, namely a day schedule of approximately 8:00 AM until 5:00 PM in order to effectively and efficiently facilitate the evening and night care of her mother. In addition, Ms. Musgrove appears to have unresolved issues regarding her personnel file and salary still due to her for 30 minutes or .5 hour pay as well as two hours uncompensated work from several weeks ago. I personally read your approval for this compensation but apparently this has still not yet been indicated on her pay check. There also remain the allegations of her misconduct charges that appears not to be fully resolved. As an employee she does have the legal right to have these fully addressed and challenged. From my understanding that although the misconduct charges have been dropped, there are still areas that compromise Ms. Musgrove's reputation as a resident advisor. Mr. Edwards did not disclose the contents of Ms. Clark's letter to any employee of Respondent CSD other than his superiors, who advised him to get a release from Petitioner before responding to the letter. After receiving Ms. Clark's letter, Mr. Edwards had a telephone conversation with Petitioner's mother because Petitioner was not at work or at home. During the conversation, Mr. Edwards inquired about the mother's health. Mr. Edwards learned that Mrs. Musgrove's cancer had been in remission since 1993 and that she no longer required assistance with daily living activities. Mr. Edwards did not disclose any information regarding Petitioner's employment status, medical condition, or personal business to Mrs. Musgrove. Petitioner's sister placed an unsolicited telephone call to Mr. Edwards several days after he talked to Mrs. Musgrove. The purpose of the call was to thank Mr. Edwards for his concern over Mrs. Musgrove's health. During the telephone call, Mr. Edwards and Petitioner's sister did not exchange any information relating to Petitioner's employment, medical condition, or personal business. On April 29, 1996, all staff at Hamilton House received a memorandum advising them as follows, in pertinent part: As a result of the recent competitive bid conducted by District 3, Department of Juvenile Justice, Gator Human Services has been awarded the contract to operate the Hamilton County Youth Treatment Complex starting July 1, 1996. The memorandum also included information regarding the transfer of operations to the new service provider. Respondent CSD advised employees that, if requested, it would supply Gator Human Services the name, position title, hire date, and current salary of each employee of record. Respondent CSD stated that no other information would be given to the new organization without the consent of the employee. On May 1, 1996, Mr. Edwards wrote two memoranda regarding Petitioner's pay. First, Mr. Edwards directed the administrative manager to pay Petitioner for .5 hours of regular wages out of the company's petty cash fund and to get a receipt for the payment. Second, he directed the resident life manager to allow Petitioner to leave work two hours early (with pay) at a time of her choosing within the next work week. Petitioner could not "bank" the time indefinitely because Respondent CSD's contract was scheduled to expire on June 30, 1996. Mr. Edwards phoned Petitioner at home on May 2, 1996, to request a written release so that he could respond to Ms. Clark's letter. Petitioner wrote that release on May 3, 1996. The release gave Mr. Edwards permission to disclose confidential information to Ms. Clark. On May 3, 1996, Petitioner signed a written acknowledgment that receipt of $4.06 in payment for .5 regular hours would end the issue of the .5 regular hours owed to her. On May 10, 1996, Respondent Gator informed the staff at Hamilton House of the procedure for handling applications for employment with Respondent Gator's new program, Tiger Success Center. Applications were due on or before May 28, 1996. Interviews were to be scheduled between May 28, 1996, and June 7, 1996. Applicants would be advised of the final selections and employment offers by June 14, 1996. Respondent Gator requested that each applicant take a copy of their most recent performance appraisal to their employment interview. By letter dated May 13, 1996, Mr. Edwards responded to Ms. Clark's inquiry. First, he explained that questions regarding Petitioner's compensation had been resolved. Second, he stated that letters from the Department of Juvenile Justice and from the Office of the Inspector General had been added to Petitioner's personnel file, clearing her of all misconduct allegations. Third, he explained that the day shift would be the least desirable shift in terms of stress reduction because the activity level of the residents is highest during the day. Mr. Edwards also revealed that Petitioner's mother was treated successfully for cancer in 1993 and that her current health failed to support the need for a change in Petitioner's shift. Finally, Mr. Edwards noted that he had to consider the needs of the residents and other staff. A copy of Ms. Clark's inquiry and Mr. Edwards' response were placed in Petitioner's personnel file. Neither of the documents were disclosed to unauthorized persons. On May 22, 1996, the employees at Hamilton House received another memorandum advising them that after June 30, 1996, Respondent CSD would no longer operate the facility. The employees were encouraged to apply for employment with the new organization. Petitioner was scheduled for an employment interview on May 30, 1996. However, the interview was rescheduled because she was unable to keep the appointment. Petitioner's application for employment with Respondent Gator is dated May 31, 1996. She also furnished Respondent Gator with copies of three performance appraisals. Petitioner's signature on the application authorized Respondent Gator to make inquiries of references and former employers regarding her general character and past performance. There is no evidence that Respondent Gator ever made any such inquiries about Petitioner. A panel of three people representing Respondent Gator interviewed Petitioner. The panel asked her the same questions that they asked other applicants. Petitioner was very negative and critical of the existing program and Respondent CSD during her interview. After the interview, each member of the interview panel tallied their score sheets independently. All three agreed that Petitioner should not be given further consideration for employment with Respondent Gator because of her negative attitude and low interview scores. On June 13, 1996, Petitioner received a memorandum from Respondent Gator stating that the company was unable to offer her a position of employment. That same day, Respondent Gator offered employment to every other Hamilton House staff applicant except one black male, Mr. Humphrey. Respondent Gator hired a black female, Latasha Bristol, who worked in the level eight dormitory with Petitioner. Ms. Bristol is younger than Petitioner. However, she was not hired to replace Petitioner. Respondent Gator hired Ms. Bristol to work in the level six dormitory. Respondent Gator offered an employment position to a white female, Lucy Oxendine. Ms. Oxendine was over 60 years old at the time. She declined to accept a job with Respondent Gator for personal reasons. Mr. Edwards was hired by Respondent Gator to continue as program director after July 1, 1996. However, neither he nor any other employee of Respondent CSD shared any information about Petitioner with Respondent Gator or had any input into Respondent Gator's decision not to hire Petitioner. Respondent Gator based its decision not to employ Petitioner solely on the results of her interview which was very negative. On June 14, 1996, the staff at Hamilton House received a memorandum stating that anyone interested in accepting employment with Respondent Gator must sign up on June 19, 1996. On June 14, 1996, Petitioner's doctor faxed a medical excuse to Respondent CSD stating that Petitioner could not return to work for an undetermined period of time. The document indicates that Petitioner's diagnosis involved anxiety, depression, and work-related stress. The doctor commented that Petitioner was the primary caretaker of her mother who was terminally ill with cancer. The doctor's June 14, 1996, fax was received by Respondent CSD in the administrative manager's office. It was on her desk for a brief period of time before it was delivered to Mr. Edwards. There is no credible evidence that any employee of Respondent CSD disclosed the contents of the fax to unauthorized persons. Petitioner's doctor did not give her permission to return to work until after July 1, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that FCHR enter a Final Order dismissing Petitioner's Charges of Discrimination against both Respondent CSD and Respondent Gator. DONE AND ENTERED this 23rd day of July, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1998. COPIES FURNISHED: H. B. Stivers, Esquire Levine and Stivers 245 East Virginia Street Tallahassee, Florida 32301 Faye Musgrove Post Office Box 657 Live Oak, Florida 32064 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact Respondent is an employer within the meaning of the Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes. In May of 1990, Petitioner, a black male, began working as a delivery driver for the former owner of the Domino's Pizza franchise in Tallahassee, Florida. Respondent bought the franchise in March of 1992 and retained Petitioner as a driver to deliver pizza at store number 5131. On March 30, 1992, Petitioner signed a statement that he had read and understood the Respondent's Employee Orientation Manual setting forth, among other things, standards for personal conduct. This manual specifically advises that an employee may be disciplined or discharged for: (1) negligent handling of company funds; (2) insubordination and refusal to do assigned work; (3) disturbing the work force and/or creating a disturbance; and (4) harassment of team members. At all times material hereto, Scott Nelson was the store manager at Respondent's store number 5131. Mr. Nelson had authority to hire and fire employees at that location. Though it was against store policy, Mr. Nelson and other employees frequently used profanity and told vulgar off- color jokes while working. Sometimes the jokes involved inappropriate racial overtones. At times Mr. Nelson would call black customers "stupid niggers" after they left the store. Petitioner would also use the term "nigger" in conversations but in a context he believed to be acceptable. Mr. Nelson encouraged employees to discuss any problem they had with management in the privacy of the office at the rear of the store. Mr. Nelson told the employees that they could speak freely during these discussions and nothing they said would be taken personally. The purpose of holding the discussions in the office was to prevent customers from overhearing the conversations. Occasionally, Mr. Nelson and an employee would have a heated argument and curse at each other as long as no customers were in the store. Other employees heard these arguments but there is no evidence that the arguments took place outside the confines of the office. During some of these arguments, Mr. Nelson would threaten to fire employees but not follow through with his threats or report the incidents to his superiors. At all times material to this proceeding, Niki Supplee, a white female, worked as a delivery driver at Respondent's store number 5131. She and Mr. Nelson had heated arguments in which they cursed each other. She was never written up or disciplined after these outbursts. The record does not reveal the location or the subject matter of the arguments between Ms. Supplee and Mr. Nelson. At all times material to this proceeding, Ms. Supplee had a black boyfriend. Upon learning that her boyfriend was black, Mr. Nelson offended Ms. Supplee by asking why she was attracted to a black man. He wanted to know what was wrong with her and why she could not find a white guy. Once or twice when Ms. Supplee heard Mr. Nelson use a racial epithet, she informed him that she did not appreciate that kind of language. Subsequently, Mr. Nelson would use a racial slur then apologize to Ms. Supplee. Petitioner and Mr. Nelson occasionally had a beer together after work. On one of these occasions, Mr. Nelson admitted that he had been raised in an environment where there were very few black people. Mr. Nelson admitted that he had to learn how to get over certain feelings about being around black people when he first began working at Domino's Pizza. At the hearing Mr. Nelson admitted that on occasion he may have made racial slurs in front of his employees about customers after they left the store. However, prior to the incident which is the subject of this proceeding, no employee ever complained to Mr. Nelson's supervisor, Ron LeStourgeon, about Mr. Nelson's use of racial epithets or perceived racial prejudices. There is no evidence that Mr. Nelson ever used a racial slur directed towards his employees or in relation to an employment decision. During the period of Petitioner's employment, he was given verbal warnings about failing to be at work on time, making personal stops on company time without permission, and refusing to perform certain tasks on the premises. Mr. Nelson would occasionally instruct Petitioner to do an assigned task at the store when other white employees were standing around talking. However, there is no persuasive evidence that Mr. Nelson's instructions to Petitioner were anything more than a reminder to do a previously assigned routine job for the day. Mr. Nelson required Petitioner to sign a statement on September 7, 1993, as a result of his refusal to follow directions without complaint. Mr. Nelson prepared the statement in which Petitioner agreed to follow the direction of management staff promptly and without complaint or risk disciplinary action including termination. The statement advises Petitioner that he should go directly to Mr. LeStourgeon if Petitioner had a complaint he could not resolve with Mr. Nelson. There is no competent persuasive evidence that Mr. Nelson created written or verbal policies designed to adversely impact Petitioner and not other employees. Mr. LeStourgeon was in the store 275 to 300 times during 1993. Petitioner did not attempt to contact Mr. LeStourgeon regarding any perceived racial discrimination at work. Petitioner's testimony to the contrary is not persuasive. On October 21, 1993, Petitioner filed a claim with the United States Department of Labor, Wage and Hour Division of the Employment Standards Administration. This complaint alleged that Respondent did not pay Petitioner for all of the hours he worked. Mr. Nelson subsequently resolved this dispute by taking Petitioner's word that he was due the money and including that amount in the next pay check. There is no competent persuasive evidence that Respondent's decision to terminate Petitioner's employment was related to the filing of this claim. On October 21, 1993, Petitioner also went to the Florida Commission on Human Relations and spoke to an in-take counselor. He did not file a claim but wanted advice because he believed the problems he and other blacks were experiencing at work were due to racial discrimination. On November 16, 1993, Petitioner made a certain pizza delivery and inadvertently failed to turn in $8.55 when he checked out that night. Milton Finkelstein, the assistant manager on duty, realized after Petitioner left for a two-day vacation that the store was short by that amount. Mr. Nelson was not on duty that evening. Mr. Nelson returned to work on November 17, 1993, but Mr. Finkelstein had the day off. Mr. Nelson did not determine which driver was responsible for the missing money until Mr. Finkelstein returned to work on November 18, 1993. Petitioner lived very close to the store but had no telephone. On occasion, a driver was sent to Petitioner's house to ask him to report to work. However, Petitioner let the managers know that he did not want to be bothered at home when he was off. Petitioner did not return to work until November 19, 1993. Mr. Finkelstein showed the ticket for the missing money to Petitioner who confronted Mr. Nelson in the office. Because Petitioner denied that he made the delivery, Mr. Nelson called the customer who thought a black man delivered the pizza three days before. Petitioner was the only black driver on duty at store number 5131 on November 16, 1993. Petitioner's testimony that he worked at another Domino's Pizza store for most of that evening is not persuasive. After the telephone call, Mr. Nelson insisted that Petitioner would have to reimburse the store for the missing $8.55. Mr. Nelson also told Petitioner that he would have to pay future missing receipts even if management did not identify Petitioner as the responsible driver for three days. Petitioner began to argue loudly and yell at Mr. Nelson. As Petitioner stormed out of the office, he screamed back, "Fuck you, Scott," repeating it several times. Three employees in the front of the store heard Petitioner make these statements. Mr. Nelson then told Petitioner to, "Go get your money. Go get your mileage." Mr. Nelson was upset at the time of this incident because it was the most threatening scene that had ever occurred in the store. Petitioner and Mr. Nelson had argued in the past but Petitioner had never been so openly defiant. Mr. Nelson intended to take some disciplinary action but did not make an immediate decision to fire Petitioner. Petitioner's testimony that Mr. Nelson fired him before he yelled profanities is not persuasive. When Petitioner left the store on November 19, 1993, he had cash from that day's deliveries that belonged to the store. Mr. Nelson sent Mr. Finkelstein and another employee to Petitioner's home to retrieve the cash. Upon their arrival, Petitioner was uncooperative and verbally abusive. They returned to the store without the cash. Mr. Nelson called Mr. LeStourgeon, to advise him of the situation and ask him what, if any, disciplinary action should be taken. Mr. LeStourgeon directed Mr. Nelson to do what was necessary to retrieve the day's receipts and fire Petitioner for insubordination. Mr. Nelson called the Tallahassee Police Department. Two police officers interviewed Mr. Nelson then went to Petitioner's house. The officers returned to the store without the cash receipts. There is no evidence that Mr. Nelson ever signed a complaint. About 1:30 a.m. on November 20, 1993, Petitioner voluntarily returned to the store and gave the cash receipts from November 19, 1993, to Mr. Nelson. He did not pay the $8.55 which he owed the store. Petitioner inquired whether he was fired. Mr. Nelson informed Petitioner that he was fired for insubordination. Petitioner did not hire black people to work in the store then cut back their hours or fire them in order to replace them with more recently hired white people. Testimony to the contrary is not persuasive. Mr. Nelson was more than just insensitive at times to other people's feelings. He often failed to conduct himself in a professional manner. He had difficulty supervising and working with white and black employees. He no longer works for Petitioner as a store manager. Regardless of Mr. Nelson's inappropriate behavior and lack of management skills, his decision to report Petitioner's insubordinate conduct to Mr. LeStourgeon was not motivated by intentional racial discrimination. Rather, Mr. Nelson sought the advice of his superior because of Petitioner's gross insubordination: (1) he cursed the store manager in front of other employees; (2) he refused to pay $8.55 for the pizza delivered on November 16, 1993; (3) he refused to promptly turn in the cash receipts from November 19, 1993 upon request; and (4) he verbally abused the assistant manager and the other employee who attempted to retrieve cash receipts. Competent persuasive evidence indicates that Mr. LeStourgeon made the decision to fire Petitioner based on his conduct alone with no knowledge of Mr. Nelson's policies regarding profanity or vulgarity. Mr. Nelson's racial prejudices, if any, were unknown to Mr. LeStourgeon and not a consideration in the employment decision. Moreover, Mr. LeStourgeon would have fired Petitioner because of his blatant insubordination and threatening attitude even if he had been aware that Mr. Nelson had tolerated similar conduct in the past. The same decision would have been reached absent the presence of Mr. Nelson's alleged discriminatory motive. There is no evidence that Petitioner replaced Petitioner with another driver, white or black. Mr. Nelson hired Mr. Finkelstein's daughter, a white person, while Petitioner was still working for Respondent. She backed into a customer's car in the parking lot. Respondent gave the customer twenty-five free pizzas for damage to his car because Mr. Finkelstein agreed to pay Respondent for the pizzas. Mr. Finkelstein subsequently reimbursed Respondent. This incident does not show favoritism for white employees. During 1993, Respondent had approximately twenty-three (23) employees at store number 5131. Of those employees, sixteen (16) were white, five (5) were black, and two (2) were Hispanic. Petitioner was the only employee fired from Respondent's store number 5131 in 1993.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor or the witnesses, it is recommended that the Florida Commission on Human Relations enter a Final Order finding that Respondent did not discharge or otherwise discriminate against Petitioner on account of his race and dismissing the Petition for Relief. RECOMMENDED this 29th day of June, 1995, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, Hearing Officer 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 29th day of June, 1995. APPENDIX The following constitutes specific rulings on the Petitioner's Proposed Findings of Fact pursuant to Section 120.59(2), Florida Statutes. Respondent did not file Proposed Findings of Fact. Rejected. Testimony of management concerning this point is more persuasive. Rejected. See paragraph 20. Accepted as modified in paragraphs 5-7. Accepted as modified in paragraph 8. Rejected. See paragraphs 16-17. Rejected. Not supported by competent persuasive evidence. Rejected. See paragraph 30. Accepted as modified in paragraphs 5, 10, and 12. Reject the last sentence entirely as argumentative. Rejected. See paragraph 30. Rejected. See paragraph 16. Rejected. See paragraph 16. Rejected. See paragraph 25. Rejected. See paragraph 22. Rejected as not supported by competent persuasive evidence. Rejected. No evidence that Petitioner applied for promotion. COPIES FURNISHED: Lenny Fulwood, II 790 El Dorado Street Tallahassee, Florida 32304 Thomas Bean President of Seminole Pizza, Inc. 6005 Benjamin Road, Suite 100 Tampa, Florida 33643 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1570
