The Issue Whether Petitioner, a member of a protected class, was terminated from the position of a District Manager with the Respondent on or about December 21, 1992, on the basis of his national origin (Hispanic), in violation of Section 760.10(1)(a), Florida Statutes (Supp. 1992).
Findings Of Fact Respondent, The Silent Witness, Inc., is a corporation engaged in providing worker's compensation investigative services for insurance companies. It currently employs approximately forty (40) employees. In December, 1992, it employed approximately 71 employees. Respondent is an employer under the Florida Civil Rights Act of 1992. Respondent has been in business since 1988. Bob Gott, President of Respondent, and Phil Sanford, Vice President, were owners of the Company at all times relevant to this case. At the relevant time, a company Directorate had been established for managing the day to day operations of the company. The Directorate was made up of five (5) employees, Jim Yockey, Director of Operations (Atlanta), Tom Overton, Director of Operations, Jo Branton, Director of Sales, Sheila Harold, Director of Administration, and Keith Freeman, Director of Human Resources. The Respondent has adopted and had in effect at all times pertinent, a written policy of equal employment opportunity. Respondent has employed and promoted Hispanic and African-American employees in the past. Petitioner, Juan Falcon, is an American male of Hispanic (Puerto Rican) descent. Petitioner was employed by Respondent from August 10, 1992 until December 21, 1992 as a Division Manager. Petitioner was hired a rate of pay of $500 per week and received a $100 per week raise in September, 1992. During the course of his employment, Petitioner was not reprimanded for poor performance. Petitioner was interviewed and hired into a management position (Division Manager) upon the recommendation of Keith Freeman who had known and supervised him at a previous employer, Florida Claims Bureau. During the relevant time period, there were three division managers in the Respondent's investigative division, Petitioner, Danny Laughlin and Tom Overton. Petitioner and Danny Laughlin, an African-American, reported to Tom Overton, a white male, Director of Operations, who also acted as a Division Manager. In the fall of 1992, the owners, Bob Gott and Phil Sanford, and the Directorate became concerned with problems in the Operations Department. These problems related to communications with other departments, loss of customers, and lack of follow up by the Operations Department after additional training. In December, 1992, Bob Gott came to Keith Freeman and stated to Freeman that he had found an audio tape on his desk. Gott stated that he did not know where the tape came from or who had placed it there but he had listened to it. Gott stated to Freeman that the substance of the tape was indicative of attitude problems the Petitioner and others were having and important enough to discuss at the next Directorate meeting. The tape apparently consisted of conversations between Laughlin and the Petitioner and investigators working under each of them. The conversations included debriefings of the investigators. Gott believed the tape demonstrated poor attitudes on the part of the Division Managers and investigators involved. Gott came to the Directorate meeting on December 8, 1992. He advised the Directorate that he had a tape, that he did not know where the tape came from, that he was disturbed by the contents of the tape, and that he wanted the Directorate to review the tape and take appropriate action. Gott then left the meeting. The Directorate listened to the tape and appointed Tom Overton to conduct an investigation into the problems reflected on the tape. Overton was to report back to the Directorate at the next meeting with an analysis of what he felt was wrong with the Operations Department and how to improve its operations and fix the problems. The Directorate specifically ordered Overton not to discuss the investigation with anyone other than the members of the Directorate or the owners. Overton contacted all of the employees who were on the tape, except one, and played the tape at a meeting in his home. Petitioner and Danny Laughlin, who were Division Managers, as well as Mark Jarrett and John Bagley who were investigators were present. Jarrett worked under the Petitioner and Bagley worked under Laughlin. Theresa Miller, who worked under Laughlin, was also on the tape but was not present because she was out of town. Overton told those present not to say anything about the tape and not to admit that they knew the tape existed. Gott found out that Overton had played the tape for those on it and had divulged the existence of the investigation to other people in the company. When confronted by Gott, Overton initially denied he had let his employees listen to the tape, but eventually admitted it sometime before December 21, 1992, the date when Petitioner was terminated. On or about December 17, 1992, Gott spoke briefly with the Petitioner concerning the Petitioner's knowledge about the tape and the meeting at which Overton played it. The Petitioner denied any knowledge of any tape recordings because he believed he might lose his job. Gott came to Freeman and asked him to meet with Gott and the Petitioner. Gott was concerned that the Petitioner had denied any knowledge of the tape because everyone else involved had said the Petitioner was at the meeting where Overton played the tapes. Gott was aware of Freeman's relationship with the Petitioner and wanted Freeman to meet with Gott and the Petitioner to try to alleviate the Petitioner's concerns and try to get him to honestly answer the questions. Later the same day, Freeman and Gott met with the Petitioner in Freeman's office. Freeman told the Petitioner that he had known the Petitioner for years, that he had helped bring the Petitioner into the company and that the Petitioner did not need to be concerned about his position as long as he told the truth. Freeman also told the Petitioner that if a manager had told the Petitioner to do something the Petitioner was uncomfortable with, the only person he had to be honest with was the owner of the company. The Petitioner was specifically asked if he heard the tape, if he had any knowledge of the tape, and if he was in a meeting with Overton. The Petitioner stated that he was not aware of any tape recordings made between investigators and their managers and he did not attend a meeting called by Overton. At the next meeting of the Directorate, the Directors discussed the fact that Overton had divulged the investigation and contents of the tape to outside parties and discussed it with other people besides the Directorate. Overton was not at the meeting because he had admitted this to Gott. The Directorate voted to terminate Overton for direct violation of the Directorate's orders; however, because of Overton's longevity with the Respondent it voted to offer Overton a demotion. The Directorate voted to terminate Laughlin for lack of performance. The Directorate voted to terminate the Petitioner for dishonesty. On December 21, 1992, Overton was called into the Directorate meeting and was terminated and then offered a demotion. The Petitioner was called in next and was terminated for being dishonest to an executive officer and for lack of performance. Laughlin was called in and informed of his termination. The day after Petitioner's discharge, Ed Coglin, a white investigator was promoted to the position of Division Manager at a rate of pay of $650 per week. Coglin had not passed his division manager's test at the time of his promotion. At the end of the week, Phillip Sanford, Vice President of the Respondent, called Laughlin and offered him a job in a demoted position as a senior investigator. Laughlin indicated he had had a number of other offers with other companies and declined the offer. Sanford did not contact the Petitioner to offer him a position because of his dishonesty in response to Freeman and Gott's questions about the tape. The week after their termination on December 21, 1992, Laughlin and the Petitioner filed a complaint with the Altamonte Springs Police Department concerning the tape of their conversations with their investigators. The complaint was forwarded to the State Attorney's office, which took no action. Between January, 1992 and June 1993, at least eight other employees besides the Petitioner have been terminated for poor work performance. Of those eight, two were Hispanic, five were white and one was black. Two other employees, one white and one Hispanic, were terminated for dishonesty in 1990. The Petitioner was specifically informed that he could be terminated without notice for dishonesty when he was first employed. In fact on August 10, 1992, the Petitioner signed and acknowledged the list of termination offenses. The Respondent's employee policy handbook also states that dishonesty in dealing with clients or management are grounds for immediate termination. At the time of the Petitioner's termination, two employees were promoted to Division Manager, i.e., Reginald McCutchen, black, and Ed Coughlin, white. One Division Manager position was eliminated. McCutchen was in the Atlanta office at the time. Coughlin and Overton performed the duties of Division Manager in Orlando. Respondent has employed twenty division managers since 1989. Of those twenty, seven were non-Caucasians. The longevity of the division managers is delineated below: Caucasian division managers: 5 years 2 4 years 1 3 years + 5 2 years + 2 1 year + 2 6 months 1 TOTAL 13 Non-Caucasian division managers: 2 months 1 4 months 1 1 year + 2 (Laughlin + McCutcheon who worked in Atlanta) 2 years + 2 As of October, 1994, no Hispanic investigators were working for Respondent. Petitioner claimed that Bob Gott, the Company President, was a racist and treated him discriminatorily by behaving coldly to him and never greeting him and because he was a "very cold distant type individual". Gott lacked interpersonal skills, could be moody, had an abrasive personality, and often spoke abruptly to other employees both Hispanic and non-Hispanic. The evidence failed to show that Gott had a "racist" attitude toward Hispanics. The Petitioner claims he was treated differently than similarly situated non-Hispanic employees when he was terminated. The Petitioner failed to present sufficient evidence to show that he was terminated on the basis of his national origin (Puerto Rican). As of Tuesday, December 22, 1992, the date of Petitioner's discharge, he was earning $600 per week. As of the date of the Division of Administrative Hearing's hearing Petitioner had accrued 94 weeks of back pay at the rate of $600. per week. Following his discharge, Petitioner earned $14,897 in 1993 and he had earned $10,598 as of the date of the Division of Administrative Hearing's hearing on October 11, 1994. Thus, the information shows the following: INCOME AT SILENT WITNESS 94 x 600 = 55,200.00 INCOME ACTUALLY EARNED SINCE DISCHARGE: 1993 14,897 1994 10,598 25,495.00 TOTAL LOST INCOME 29,705.00
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief. DONE AND ENTERED this 17th day of March, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 17th day of March, 1995. APPENDIX The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact: Accepted in substance: p.1, paragraph A.1 (in part); p.2, paragraphs 1, 2, 3; p. 3, B2; p.4, paragraph C.1 (in part); p.5, paragraph C.2.2; p.5, paragraph C.2.3. (in part); p.6, C.2.4.; p.6, C.2.5 (in part); p.7, D.1, D.2. Rejected as contained in the Preliminary Statement: p.1, paragraph A.1 (in part); p.5, paragraph C.2.1, or subsumed. Rejected as a argument on comment on the evidence and irrelevant and immaterial: p.3, paragraph B.1.; p.4, paragraph B.4, C.1 (in part); p.6, C.2.6. Rejected as against the greater weight of evidence or hearsay: p.4, C.1 (in part); p.5, paragraph C.2.3. (in part); p.6., C.2.5 (in part). Respondent's proposed findings of fact: Accepted in substance: paragraphs 1, 2, 3, 4 (in part), 5, 6, 7, 8, 9, 10 (in part), 11, 12, 13 (p.4), 13 (p.5), 14, 15, 16, 17, 18, 19, 20, 21, 22, 23. Paragraphs rejected as argument or a comment on the evidence and irrelevant and immaterial: Paragraphs 4 (in part), 10 (in part). COPIES FURNISHED: Carol Swanson, Esquire 801 N. Magnolia Avenue Ste 302 Orlando, Florida 32803 Dorothy F. Green, Esquire Richeson & Brown, P.A. Post Office Box 3006 Orlando, Florida 32802 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent engaged in discriminatory employment practices contrary to Chapter 760, Florida Statutes, as alleged in the Charge of Discrimination filed by Petitioner.
Findings Of Fact Petitioner is a 51-year old white male currently employed by ACS, formerly known as Concera Corporation, which is an employer within the definition of Chapter 760, Florida Statutes. Respondent operates a call center that provides information on Medicaid and other programs to residents of the state. Petitioner is a telephone counselor. Prior to coming to work for Respondent, Petitioner held many positions, principally in sales, with various companies. He worked in positions that would be described as entry-level to middle-management positions with these companies, prior to falling victim to reductions-in-force in the recent down-turn in the economy. After working for the state's employment service, setting up a program for mid- and upper-level executives seeking re-employment, Petitioner took his present position with Respondent. Since going to work for Respondent, Petitioner has applied for, from between five and twenty, various positions with Respondent. There was conflict regarding the number of positions for which Petitioner applied. Petitioner's testimony is deemed more credible. These positions were at various levels within the company's hierarchy and had varying levels of responsibility ranging from supervision of other telephone counselors to managing the call center itself. Petitioner has not been promoted. Petitioner has been given pay raises, has received training as a trainer for the company, and has consistently been eligible for incentive bonuses for his work. The loss of the additional income from these bonuses resulted in Petitioner leaving the training program for which no additional pay was provided, and that interfered with qualifying for bonus awards. His leaving the training program was considered a negative by his supervisors; however, his participation in the training program had little impact upon his consideration for promotion. Many of the recipients of Medicaid in Florida are Hispanic and Haitian. As a result, the contract Respondent has with the state requires that a portion of counselors be bilingual and speak Spanish or Haitian Creole French. Petitioner does not speak either language. This lack of language skill is given as the reason that Petitioner has not been promoted to the first line supervisory level. There have been four vacancies for first line supervisor for which he applied. Three vacancies were filed by persons who are bilingual, one male and two females. When one of those positions again became vacant, he applied the fourth time, and a Black female was promoted into the position who was not bilingual. Petitioner testified that he applied for many additional positions to include positions that were more managerial in nature. Respondent stated that they had no record of his applying for these positions. Petitioner testified regarding his application for positions and the procedures for applying for openings. His testimony is more credible. The process did not require filing a new application for openings when one had a recent application/vita on file. The basis for not promoting Petitioner for these positions was that he did not have experience managing call centers and was not bilingual. Respondent presented testimony that Petitioner lacked leadership skills, failed to show up well in interviews, and lacked experience. However, Petitioner was one of Respondent's most productive operatives and was selected to be a trainer for Florida and other states. In summary, Petitioner could not get to be a supervisor without being bilingual and could not be promoted higher without having supervisory experience in a phone center. While a significant number of the persons who were promoted in lieu of Petitioner were female, there were a number of younger men who were promoted, mostly into managerial positions. The evidence reflects that those who were promoted in lieu of Petitioner shared the fact that they were young, or Hispanic and bilingual, with the exception of Shonnice Booker, a Black female who was not bilingual. Respondent justifies its selection of these individuals by reference to its contract with the state requiring some of the counselors be bilingual in Spanish or Creole French. Information was provided by both Petitioner and Respondent on the various individuals who were promoted into the positions for which Petitioner had applied. The following is a summary of the information. Because Respondent was careful to point out all the individuals who were bilingual, in the case of those about whom no language information was provided, it is assumed the applicant did not have a second language. Positions in which language was an identified issue are indicated by (L) after the position title. "Principal reason" indicates summarily the reason given for the individual's promotion. The positions are listed by date: May 1999: Field Counselor: Sheila Slik; no language; female; race and age unknown. Petitioner's supervisor recommended him for the job; however, he was told by his supervisor, Judy Cooper, that Slik was being hired. June 1999: Deputy Operations Manager: Phyllis Underwood; no language, female, 30's. Principle reason: Managed contracts similar to the contract Respondent had with the state. June 1999: Call Monitoring Specialist(L): Miriam Ruez; bilingual; female, Hispanic; age unknown. Principle reason: bilingual. October 1999: Choice Counselor Supervisor(L): Gladys Hernandez; bilingual, female; Hispanic; 50's. Principle reason: bilingual. October 1999: Choice Counselor Lead(L): Tai Lee Ro; no language; female, 50's. Principle reason: Ro had been there six months. October 1999: Call Monitor Specialist(L): Johnny Gonzales; bilingual; male; Hispanic; 30's. Principle reason: bilingual. March 2000: Call Center Supervisor (Kidcare): Johnny Gonzales; bilingual; male; Hispanic; 30's. Principle reason: bilingual. March 2000: Call Monitor Specialist(L): Lourdes Colorado; bilingual; female; Hispanic; age unknown. Principle reason: bilingual. May 2000: Deputy Operations Manager: Unfilled. June 2000: Field Choice Supervisor: Unfilled until a later date. No information on incumbent provided. July 2000: Scheduling/Quality control Supervisor: Mike Dalvon; no language; male; age unknown. Principle reason: managed large call center. July 2000: Call Center Supervisor: Ida Safari; bilingual; female; Hispanic; age unknown. Principle reason: bilingual. November 2001: AHCA Supervisor: Myra Martin; bilingual; female; Hispanic; 20's. Principle reason: health care background and bilingual. November 2001: Call Center Supervisor (Kidcare): Shonnice Booker: no language; female; Black; age unknown. Principle reason: had been with Kidcare program previously. November 2001: Operations Supervisor: Paul Henrichs; no language; male; White; 30's. Principle reason: call center management experience. November 2001: Operations Supervisor: Jacqui Zarba; no language; female; 30's. Principle reason: prior experience. November 2001: Operations Supervisor: Becki Smith; no language; female; 30's. Principle reason: prior experience. November 2001: Operations Supervisor: Pat Gray; no language; female; 50's. Principle reason: prior experience. Respondent provided no information on the percentages of its clients who were Spanish or Creole, or the number of employees having language qualifications, or the breakdown of its employees by national origin to rebut the presumption that it was discriminating on such a basis. Respondent refused to respond to discovery requests for information on these issues.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter its final order finding that Respondent engaged in a discriminatory employment practice, and order Respondent to desist from such practice; to promote Petitioner immediately to a call center supervisory position; and pay Petitioner the difference between his base salary and that of a call center supervisor from November 2001 to the date of the entry of FCHR's final order. DONE AND ENTERED this 8th day of July, 2004, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2004.
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based upon her race.
Findings Of Fact Respondent is an "employer" within the meaning of section 760.02(7), Florida Statutes. Petitioner, an African-American female, submitted an application for employment directly with the store manager, Jerry Wienhoff. Mr. Wienhoff personally interviewed Petitioner and hired her within 48 hours of her application for the afternoon clerk position. She began working for Respondent on July 21, 2009. Petitioner received a notice of a disciplinary issue on March 9, 2010. Respondent cited Petitioner for failure to complete her work in a timely manner. Petitioner was warned that if her work did not improve, her employment would be terminated. Not long after issuance of this disciplinary notice, Mr. Wienhoff, the store manager and Pensacola Regional Manager for 17 years, began receiving complaints about Petitioner's behavior. One complaint came from a long-time customer, while another came from a co-employee. The complaints were that Petitioner treated them rudely. During her employment, Petitioner complained that her work duties were heavier than those of the morning clerk. Mr. Wienhoff relieved Petitioner of certain duties related to tagging each garment dropped off during the afternoon shift. None of the other stores out of the four area stores had similar requests to remove this duty. Petitioner testified that the morning clerk, a white female, Amanda Sidner, was given a lighter workload. Petitioner further testified that Ms. Sidner was given additional hours during Petitioner's vacation, yet Petitioner was not given additional hours during Ms. Sidner's vacation. Mr. Wienhoff testified and Petitioner admitted that she took vacation days during the same week that Ms. Sidner took vacation days. Further, Petitioner was given additional hours during the days Ms. Sidner was on vacation, and the balance of those hours that Petitioner was not interested in working went to Petitioner's daughter, Anastarsia Martinez, also an African- American female. On December 14, 2010, Petitioner was issued her second and final corrective action report by Mr. Wienhoff. At that time, Mr. Wienhoff terminated Petitioner due to the ongoing complaints about her behavior in the workplace. Respondent also established the racial composition of every employee under Mr. Wienhoff's supervision. The company profile in Pensacola shows a racially diverse mix of employees. Petitioner candidly testified that she never heard Mr. Wienhoff make racially insensitive comments to her or any other employee. Her claim of discrimination is based upon favoritism. She believes that other employees were treated better than she, but did not tie this perceived favorable treatment to their race.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that no act of discrimination was committed by Respondent and dismissing the Petition for Relief. DONE AND ENTERED this 27th day of January, 2012, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Thomas A. Groendyke, Esquire Douberley & Cicero 1000 Sawgrass Corporate Parkway, Suite 590 Sunrise, Florida 33323 Mary Cottrell 776 Backwoods Road Century, Florida 32535 Christopher J. Rush, Esquire Christopher J. Rush & Associates, P.A. 1880 North Congress Avenue, Suite 206 Boynton Beach, Florida 33426 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was unlawfully terminated from her position with Respondent because of her race (Caucasian), in violation of the Florida Civil Rights Act of 1992 (hereinafter "FCRA"), Section 760.10(1)(a), Florida Statutes (2001).
Findings Of Fact Based upon the testimony of the witnesses and documentary evidence received at the hearing, the following relevant facts are determined: Respondent is a corporation, licensed to do business in Florida, that provides cleaning services to business clients; and is an employer, as that term is defined, under the FCRA. Petitioner began her employment with Respondent on January 1, 1997. Petitioner was hired as a restroom cleaner, and remained in that position until her termination from employment with Respondent on August 6, 1998. Throughout her employment with Respondent, Petitioner's supervisors were: Cecilia Haimes ("Haimes"), a Caucasian female; Danna Hewett ("Hewett"), a Caucasian Female; and Carlos Ramirez ("Ramirez"), an Hispanic male. Additionally, throughout her employment with Respondent, Petitioner was assigned to work at the Orange County Convention Center ("OCCC"). Hewett began her employment with Respondent as a restroom cleaner. Shortly thereafter, she was promoted by Ramirez to the position of lead restroom cleaner. Shortly after that, she was once again promoted by Ramirez, to the position of supervisor. As a supervisor, Hewett supervised Petitioner. Hewett became Petitioner's supervisor in or around August 1997. In her capacity as supervisor, Hewett was informed by other employees at OCCC that Petitioner was spreading rumors and gossiping about alleged affairs between certain employees and/or supervisors. Hewett and Ramirez discussed Petitioner's behavior, and they concluded that such behavior was extremely disruptive to the work environment. Specifically, such behavior by Petitioner affected employee morale and employees' respect for their supervisors. Based on these allegations, Ramirez contacted Ronald Jirik ("Jirik"), the Central Florida Regional Manager, to inform him of Petitioner's behavior. Upon meeting with Hewett and Ramirez, Jirik informed Ramirez to meet with Petitioner to try to get her to stop spreading such rumors. Ramirez met with Petitioner shortly thereafter. He attempted to resolve the problem and instructed her not to gossip or spread rumors. However, the problem persisted. Jirik contacted Ramirez to follow up on whether or not Ramirez was able to resolve the problem. Ramirez informed Jirik that he was unable to stop the rumors, and that he believed that Petitioner was continuing this improper behavior. Jirik then informed Ramirez that it would probably be best if Petitioner was transferred from the OCCC, and be given the option to transfer to another facility that was of equal distance from her home. Jirik is Caucasian. Jirik suggested that Petitioner be transferred to the Orlando Sentinel building due to the fact that, based on the information in Petitioner's personnel file, this location would have been of equal distance from her home. Additionally, such a transfer would not have changed any of the terms and conditions of Petitioner's employment, including but not limited to, pay, benefits, responsibilities, or shifts. Based on the foregoing, Ramirez met with Petitioner and she was offered a transfer to the Orlando Sentinel building location. However, Petitioner refused to accept the transfer. Thereafter, Petitioner's employment with Respondent was terminated on August 6, 1998. The evidence proved that Ramirez reprimanded Spanish- speaking and Caucasian employees in the same manner. Additionally, there was no credible evidence to show that Ramirez gave any form of favoritism to Spanish-speaking employees. Respondent's reason for terminating Petitioner was based on Respondent's perception that her conduct was disruptive to the work force. The allegation that Petitioner was terminated based on a discriminatory animus is unsubstantiated by the testimony and other evidence. There is no evidence that Respondent terminated Petitioner based on her race (Caucasian).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order which DENIES the Petition for Relief. DONE AND ENTERED this 7th day of March, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 2002. COPIES FURNISHED: Sharon Attas-Kaplan, Esquire Fisher & Phillips, LLP 450 East Las Olas Boulevard, Suite 800 Fort Lauderdale, Florida 33301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Mary J. Hall 1821 Ernest Street Maitland, Florida 32794 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2008),1 by discriminating against Petitioner based on her color and/or her age.
Findings Of Fact The Town is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner was hired by the Town in November 2004 as an administrative assistant to Mayor Anthony Grant. Petitioner is a dark-skinned African-American woman who was 51 years of age at the time of the hearing. Petitioner was interviewed and hired by a committee appointed by Mayor Grant. The committee included town clerk Cathlene Williams, public works director Roger Dixon, and then- chief administrative officer Dr. Ruth Barnes. Mayor Grant did not meet Petitioner until the day she started work as his administrative assistant. The mayor's administrative assistant handles correspondence, filing, appointments, and anything else the mayor requires in the day-to-day operations of his office. For more than two years, Petitioner went about her duties without incident. She never received a formal evaluation, but no testimony or documentary evidence was entered to suggest that her job performance was ever less than acceptable during this period. In about August 2007, Petitioner began to notice a difference in Mayor Grant's attitude towards her. The mayor began screaming at her at the top of his lungs, cursing at her. He was relentlessly critical of her job performance, accusing her of not completing assigned tasks. Petitioner conceded that she would "challenge" Mayor Grant when he was out of line or requested her to do something beyond her job description. She denied being disrespectful or confrontational, but agreed that she was not always as deferential as Mayor Grant preferred. During the same time period, roughly July and August 2007, Petitioner also noticed that resumes were being faxed to the Town Hall that appeared to be for her job. She asked Ms. Williams about the resumes, but Ms. Williams stated she knew nothing and told Petitioner to ask the mayor. When Petitioner questioned the mayor about the resumes, he took her into his office and asked her to do him a favor. He asked if she would work across the street in the post office for a couple of weeks, to fill in for a post office employee who was being transferred to the finance department; as a team player, Petitioner agreed to the move. While she was working as a clerk at the post office, Petitioner learned that the mayor was interviewing people for her administrative assistant position. She filed a formal complaint with the Town. For a time after that, she was forced to work half-time at the post office and half-time in the mayor's office. On or about October 22, 2007, Petitioner was formally transferred from her position as administrative assistant to the mayor to the position of postal clerk in the post office. Her salary and benefits remained the same. At the hearing, Mayor Grant testified that he moved Petitioner to the post office to lessen the stress of her job. Based on his conversations with Petitioner, he understood that Petitioner was having personal or family problems. He was not privy to the details of these problems, but had noticed for some time that Petitioner seemed to be under great stress. The post office was a much less hectic environment than the mayor's office, and would be more amenable to her condition. Ms. Williams, the town clerk, testified that the mayor told her that Petitioner was stressed and needed more lax duties than those she performed in the mayor's office. Mr. Dixon, the public works director, testified that Petitioner had indicated to him that she was under pressure, but she did not disclose the cause of that pressure. He recalled that, toward the end of her employment with the Town, Petitioner mentioned that she felt she was being discriminated against because of her skin color. Petitioner denied ever telling Mayor Grant that she was feeling stressed. She denied telling him anything about her family. Petitioner stated that the only stress she felt was caused by the disrespect and humiliation heaped upon her by Mayor Grant. Petitioner's best friend, Gina King Brooks, a business owner in the Town, testified that Petitioner would come to her store in tears over her treatment by the mayor. Petitioner told Ms. Brooks that she was being transferred to the post office against her will, was being forced to train her own replacement in the mayor's office,3 and believed that it was all because of her age and complexion. Mayor Grant testified that he called Petitioner into his office and informed her of the transfer to the post office. He did not tell her that the move was temporary. He did not view the transfer from administrative assistant to postal clerk as a demotion or involving any loss of status. Mayor Grant testified that an additional reason for the change was that he wanted a more qualified person as his administrative assistant. He acknowledged that Petitioner was actually more experienced than her eventual replacement, Jacqueline Cockerham.4 However, Petitioner's personal issues were affecting her ability to meet the sensitive deadlines placed upon her in the mayor's office. The mayor needed more reliable support in his office, and Petitioner needed a less stressful work environment. Therefore, Mayor Grant believed the move would benefit everyone involved. Mayor Grant denied that Petitioner's skin color or age had anything to do with her transfer to the post office. Petitioner was replaced in her administrative assistant position by Ms. Cockerham, a light-skinned African- American woman born on October 17, 1961. She was 46 years of age at the time of the hearing. Documents introduced by the Town at the hearing indicate the decision to hire Ms. Cockerham was made on March 26, 2008. Ms. Williams testified that she conducted the interview of Ms. Cockerham, along with a special assistant to the mayor, Kevin Bodley, who no longer works for the Town. Both Ms. Williams and Mayor Grant testified that the mayor did not meet Ms. Cockerham until the day she began work in his office. Petitioner testified that she knew the mayor had met Ms. Cockerham before she was hired by the Town, because Mayor Grant had instructed Petitioner to set up a meeting with Ms. Cockerham while Petitioner was still working in the mayor's office. Mayor Grant flatly denied having any knowledge of Ms. Cockerham prior to the time of her hiring. On this point, Mayor Grant's testimony, as supported by that of Ms. Williams, is credited. To support her allegation that Mayor Grant preferred employees with light skin, Petitioner cited his preferential treatment of an employee named Cherone Fort. Petitioner claimed that Mayor Grant required her to make a wake-up call to Ms. Fort every morning, because Ms. Fort had problems getting to work on time. Ms. Fort was a light-skinned African-American woman. Under cross-examination, Petitioner conceded that Mayor Grant and Ms. Fort were friends, and that his favoritism toward her may have had nothing to do with her skin color. Petitioner claimed that there were other examples of the mayor's "color struck" favoritism toward lighter-skinned employees, but she declined to provide specifics.5 She admitted that several dark-skinned persons worked for the Town, but countered that those persons do not work in close proximity to the mayor. As to her age discrimination claim, Petitioner testified that a persistent theme of her conversations with Mayor Grant was his general desire for a younger staff, because younger people were fresher and more creative. The mayor's expressed preference was always a concern to Petitioner. Petitioner testified that she felt degraded, demeaned and humiliated by the transfer to the post office. She has worked as an executive assistant for her entire professional career, including positions for the city manager of Gainesville and the head of pediatric genetics at the University of Florida. She believed herself unsuited to a clerical position in the post office, and viewed her transfer as punitive. In April 2008, Petitioner was transferred from the post office to a position as assistant to the town planner. Within days of this second transfer, Petitioner resigned her position as an employee of the Town. At the time of her resignation, Petitioner was being paid $15.23 per hour. Petitioner is now working for Rollins College in a position she feels is more suitable to her skills. She makes about $14.00 per hour. The greater weight of the evidence establishes that there was a personality conflict between Petitioner and Mayor Grant. Neither Petitioner nor Mayor Grant was especially forthcoming regarding the details of their working relationship, especially the cause of the friction that developed in August 2007. Neither witness was entirely credible in describing the other's actions or motivations. No other witness corroborated Petitioner's claims that Mayor Grant ranted, yelled, and was "very, very nasty" in his dealings with Petitioner.6 No other witness corroborated Mayor Grant's claim that Petitioner was under stress due to some unnamed family situation. The working relationship between Mayor Grant and Petitioner was certainly volatile, but the evidence is insufficient to permit more than speculation as to the cause of that volatility. The greater weight of the evidence establishes that, due to this personality conflict, Mayor Grant wanted Petitioner transferred out of his office. He may even have used the subterfuge of a "temporary" transfer to exact Petitioner's compliance with the move. However, the purpose of this proceeding is not to pass judgment on Mayor Grant's honesty or skills as an administrator. Aside from Petitioner's suspicions, there is no solid evidence that Mayor Grant was motivated by anything other than a desire to have his office run more smoothly and efficiently. Petitioner's assertion that the mayor's preference for lighter-skinned employees was common knowledge cannot be credited without evidentiary support. Petitioner's age discrimination claim is supported only by Petitioner's recollection of conversations with Mayor Grant in which he expressed a general desire for a younger, fresher, more creative staff. Given that both Petitioner and Ms. Cockerham were experienced, middle-aged professionals, and given that Mayor Grant had nothing to do with the hiring of either employee, the five-year age difference between them does not constitute evidence of discrimination on the part of the mayor or the Town. Petitioner was not discharged from employment. Though Petitioner perceived it as a demotion, the transfer to the post office was a lateral transfer within the Town's employment hierarchy. Petitioner was paid the same salary and received the same benefits she received as an administrative assistant to the mayor. A reasonably objective observer would not consider working as a clerk in a post office to be demeaning or degrading.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Town of Eatonville did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 17th day of February, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 2009.
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 Whether Respondent, Milos, illegally terminated Petitioner based on her race (Black), in violation of the Florida Civil Rights Act ("FCRA"), section 760.10, Florida Statutes (2018).
Findings Of Fact The undersigned makes the following findings of material and relevant fact: Petitioner is a Black female who worked for Milos as a line cook. Respondent is a Greek restaurant located in Miami, Florida. On January 12, 2016, Respondent hired Petitioner for a line cook position. Petitioner was interviewed and hired by Arsan. Arsan supervises all back-of-the-house staff and was Petitioner's supervisor throughout her entire 20-month period of employment. On May 30, 2016, approximately four and a half months after Petitioner's hire at Milos, Arsan gave Petitioner a raise in pay because he felt that she was performing well. Many of the employees Arsan supervises at Milos are Black. PETITIONER'S PERFORMANCE ISSUES AT MILOS On September 23, 2016, Petitioner was suspended for insubordination and violating company policies and procedures. Resp. Ex. 7 and 8. More specifically, Arsan was notified by the sous chef that there had been an argument between Petitioner and a coworker. Arsan attempted to investigate the dispute and found Petitioner to be very emotional and aggressive during the investigation. She was asked to leave but refused. Eventually, she left the premises. This incident came on the heels of another similar incident involving a verbal argument with a coworker, which occurred on September 17, 2016. Subsequently, on April 28, 2017, Petitioner was involved in another workplace argument with an employee named Rosa Salazar ("Salazar"). Resp. Ex. 10. The manager on duty intervened and attempted to resolve the dispute and calm the parties down. After he did so, Petitioner left work without permission and left early the following day as well. On June 27, 2017, a third employee named Ishay (a.k.a., Ayse Akbulut) complained that she could not work with Petitioner at their assigned station because Petitioner was "being rude and territorial." Resp. Ex. 11. Arsan spoke to Petitioner and resolved the matter between the two employees. However, he documented the incident as other employees had previously complained about Petitioner creating a hostile working environment. On June 30, 2017, Petitioner reportedly was involved in yet another workplace incident with Sonya Cabret ("Cabret"). Cabret complained that Petitioner made racially charged and demeaning comments to her based on Cabret's Haitian national origin. More specifically, Cabret complained that Petitioner called her an "ignorant Haitian," a "f ing Haitian," and stated that Cabret does not know how to speak English and that Cabret could not find a job anywhere else. Two months prior, Salazar had also complained that Petitioner made derogatory remarks to her based on Salazar's Latin ethnicity. Resp. Ex. 12 and 13. Salazar recounted that Petitioner had called her a "f ing Latino." Arsan disciplined Petitioner by counseling her and sending her home for the day. Each of the above incidents occurred prior to Hurricane Irma in September 2017. The undersigned finds that these incidents, and their related warnings and discipline, are relevant to the ultimate decision to discharge Petitioner and have some bearing on the propriety and necessity for termination. PETITIONER'S FAILURE TO RETURN TO WORK AFTER HURRICANE IRMA At some point in time on Wednesday, September 6, 2017, Arsan informed all employees that Milos would be closed at the end of the work day due to the approaching landfall of Hurricane Irma. Petitioner had been scheduled to report to work on September 6, 2017, at 10:00 a.m., but she did not do so. At 12:40 p.m. on September 6, 2017, Petitioner texted Arsan that she could not report to work because she was evacuating to Georgia due to Hurricane Irma. However, she hoped to return to work the following Tuesday (September 12, 2017). Resp. Ex. 14. After the hurricane had passed, on September 10, 2017, Arsan sent a group text message to all back-of-the-house staff alerting them that the restaurant was "closed for Monday" (September 11, 2017) and "we will be probably open for Tuesday" (September 12, 2017). Resp. Ex. 15. Petitioner received this text message. Petitioner never informed Arsan that she would not be back from Georgia by September 12, 2017, as she mentioned in her text message on September 6, 2017. Believing Petitioner would be back in Miami on September 12, 2017, Arsan scheduled Petitioner to work Wednesday, September 13, 2017. Resp. Ex. 16. On September 13, 2017, Petitioner did not call in or report for work. That same day, Arsan called Petitioner to find out why she did not report to work. Petitioner did not answer or return Arsan's call. On September 14, 2017, Petitioner again failed to call in or report for work. Arsan again attempted to reach Petitioner by telephone, but she did not answer. Arsan then sent Petitioner a text message notifying her that she was scheduled to be at work. Petitioner responded to Arsan's text messages on September 14, 2017, and the following discussion ensued: Arsan: "Denise you are scheduled to work today[.]" Petitioner: "Nobody called me and told me anything I cannot get out until Tuesday or Wednesday I'll [sic] area was hit bad and the bus is [sic] down here start running Wednesday[.]" Arsan: "Denise everybody is at work except you. How the bus starting [sic] on wednesday, [sic] half of staff is using the bus and they are here, The buses working [sic] fine." Petitioner: "When you come to my family I don't care about no job [sic] that's not my life we had an emergency down here we don't have any lights some of the buses is not running my house got water in it I am coming from Georgia so I might not be back until Thursday I have a lot of stuff to take care of in my house[.]" Arsan: "Please help let [sic] me understand your situation are you in Miami? or Georgia? Petitioner: I will be in Miami tonight I still have a lot of stuff to do at my. . . . Resp. Ex. 14. Arsan and Petitioner did not have any further communications after this text message exchange. Further, Petitioner did not initiate or attempt to send any more text messages to Arsan after the September 14, 2017, exchange. Petitioner did not report for work scheduled on September 15, 16, 17, 18, 19, or 20. Petitioner testified that she did not report to work from September 13, 2017, to September 20, 2017, because she was attending to damage to her home caused by the hurricane. Based on Petitioner's text message that she does not "care about no job [sic]," Arsan, after consulting with Milos' outside contracted human resource company, removed Petitioner from the schedule for the week of Monday, September 18, 2017, to Sunday, September 24, 2017. On September 21, 2017, Petitioner showed up at Milos to work. Arsan believed Petitioner had abandoned her job and did not expect her to report to work again. After she arrived, Arsan directed Petitioner to speak to Faundez, Milos' outside human resource representative at Eleva Solutions. Contrary to what Petitioner told Arsan (i.e., that she missed work because she was attending to damage in her home from the hurricane), Petitioner gave Faundez three different reasons for her failure to call in or show up for work the preceding week: she did not know that she was supposed to be at work; there was no bus transportation; and (c) Petitioner had to be evacuated. Faundez concluded that Petitioner's reasons for failing to appear for work were inconsistent and conflicted with each other. She also did not believe that Petitioner had provided a definitive or plausible answer explaining why she had not returned to work. After consultation, Faundez and Arsan decided together to terminate Petitioner's employment. Arsan was not the sole decision-maker with respect to Petitioner's termination. Prior to her termination and despite having received Respondent's antidiscrimination policy and complaint procedures, Petitioner never complained that Arsan was discriminating against her because of her race. During the course of the hearing, Petitioner was unable to identify any employee(s) outside of her protected class who engaged in the same conduct and were not terminated from employment. Specifically, on cross-examination, Petitioner admitted that she was unable to identify a single non-Black employee who failed to show up for work following the hurricane and who was not terminated from employment. The evidence Petitioner offered to support her race discrimination claim was vague, unpersuasive, and included only conclusory and general allegations by her that Arsan "was a racist" and is a "nasty human being." There were no emails, texts, documents, or other direct evidence from Petitioner or Arsan supporting her claim that she was fired by Milos because of her race. Likewise, Petitioner called no witnesses to offer any compelling facts or circumstances to support her claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss Petitioner's Petition for Relief with prejudice and find in Respondent's favor. DONE AND ENTERED this 23rd day of October, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2018.
The Issue The issues to be resolved in this proceeding concern whether the Respondent committed an unlawful employment practice by termination of the Petitioner for discriminatory reasons, based upon her national origin (Panamanian/Hispanic).
Findings Of Fact The Petitioner is an Hispanic female of Panamanian origin. She began working for the Delta Health Group, the Respondent, as a Certified Nursing Assistant (CNA) on or about May 5, 2000. She was generally described by her supervisors as being a good worker. During times pertinent hereto, the Petitioner worked on an evening shift at the Respondent's nursing care facility. One of the residents assigned to her care was L.M., an elderly person. The Petitioner cared for Ms. M. for approximately one year. The Respondent is an employer with more than 15 employees. During times pertinent to this case it operated a nursing care facility located in the vicinity of Destin, Florida, at which the Petitioner was employed as a CNA. The Respondent, in its nursing facility operation, is closely regulated by the State of Florida, Agency for Health Care Administration and, as to its licensed personnel (CNA's, RN's, LPN's, etc.) are subject to licensure and practice standards and regulations of the Department of Health, Board of Nursing, etc. The operative regulations include, as to AHCA, requirements to report any incident involving harm or injury to a nursing home resident, as well as departures from nursing home operational regulation standards and nursing practice standards. There are extensive charting and record- keeping requirements with regard to all care and incidents involving residents. On or about the evening of January 2, 2006, the Petitioner was caring for Ms. M., when Ms. M. told her she wanted to wear some earrings that her grandson had given her. She asked the Petitioner to help her place the earrings in her ears. The Petitioner asked Ms. M. if her ears had been pierced and Ms. M. apparently told her that they had been. The Petitioner put the earrings in Ms. M.'s ears as requested. One went in easily, but the left earring felt somewhat tight. Ms. M. wore the earrings to dinner that night. At bedtime, the Petitioner asked her if she wanted to remove the earrings, but Ms. M. wanted to keep them in. She did ask the Petitioner to remove the earring from her left ear and purportedly asked her to put a string through the hole. The Petitioner maintains that the pierced hole in Ms. M.'s left ear was not opened well enough, and was "clogged-up and dirty." The Petitioner concedes that she put a string through Ms. M.'s left ear by tying it to the left earring and passing the string through the hole, through use of the earring, as Ms. M. purportedly requested. The evidence is conflicting somewhat on this. The Respondent's version of events, it purports to have gleaned from Ms. M., was to the effect that the Petitioner used a needle which she sterilized with a cigarette lighter before passing it through Ms. M.'s ear with the string. The Respondent relies on the out-of-court statement purportedly made by Ms. M., the resident, to its investigating personnel concerning the facts surrounding the piercing (or not) of the ear in question, how the string was inserted, and for what purpose. A hearsay objection was raised about testimony which relied on this statement and the Respondent relies on the hearsay exception for elderly or disabled adults contained in Section 90.803(24), Florida Statutes.1/ Starla Lindaas, LPN, came on duty on January 3, 2006, and noticed the string in Ms. M.'s left earlobe. Ms. Lindaas stated that Ms. M. told her that the Petitioner had pierced her ears. When she examined Ms. M.'s ears, however, she did not notice any redness, irritation, discharge or other issues indicating that any medical problem was occurring. The Risk Manager, Connie Hamilton, knew of and investigated the so-called ear piercing incident, but did not report it to the Department of Children and Family Services, or the Agency for Health Care Administration, because the Petitioner caused no abuse, neglect, or harm to the resident, nor did she intend to do so. The Petitioner was interviewed during the investigation of the incident by the Respondent, on January 3, 2006. The Petitioner related the version of events concerning the ear issue as first described above. The resident, Ms. M., purportedly described them to the Respondent's supervisory personnel as involving the Petitioner "piercing" her ear or ears, by the use of a needle for piercing of her earlobe, inserting the string, or both. CNA's are allowed to place earrings in pierced earlobes for residents, if the ears are already pierced. They are not authorized, and it is beyond their scope of practice, to carry-out ear piercing, however. In any event, the Respondent elected to rely on the version of events related by the resident in her statement, which therefore amounted, in the view of the Respondent, to the Petitioner acting beyond the scope of her CNA practice. She was therefore terminated from her employment on January 3, 2006. The Petitioner's salary at the time of her termination was $31,825.14 annually. During the year of her termination, after her termination, she earned from part-time employment $5,513.28 and also received $6,999.00 in unemployment compensation benefits. The Petitioner adduced testimony concerning a number of instances of what she maintains were disparate treatment occurrences, which she claims amount to national origin discrimination against her status as a Panamanian. She, in essence, claims that the comparator employees, who were all white, or non-Hispanic, were treated disparately by being treated more favorably in purportedly similar instances of employee misconduct and discipline. This testimony applies to both one element of her prima facie case of discrimination based upon national origin, regarding disparate treatment as compared to other employees not of her protected classification, as well as to an attempt to establish an ongoing pattern or pervasiveness of discrimination against Hispanics, as it relates to her attempt to establish discriminatory intent or motivation underlying the employment action of which she complains. This evidence relates to her ultimate burden of persuasion and her burden to show that the employer's reasons were pretextual. In this connection, in May 2004, the Petitioner was reprimanded ("written-up") for cutting a resident's hair, some three months after the event. She maintained that the nurse supervising her asked her to cut the resident's hair. She was written-up for cutting the resident's hair, because it is against policy at the Respondent's facility and beyond the range of practice for a CNA. A beautician is used for all haircutting and similar cosmetic duties at the facility. The Petitioner maintains that one Megan Teibo, a white female, also cut a resident's hair. The Petitioner states that she reported Ms. Teibo to her supervisors, and to the facility's management, but that Ms. Teibo was not disciplined. The Petitioner also contends that it was common practice for employees to be tardy arriving at work for their shift because of the very heavy traffic between Ft. Walton and Destin, the location of the Respondent's facility. She testified that it was routine for employees to call ahead and inform the supervisors that they would be late for work. The Petitioner maintains that she had to do this a number of times and yet she was written-up for being tardy, while other employees who are white were not so reprimanded. Additionally, in February 2004 she was out sick for six days. She had a doctor's excuse justifying her missing work for illness. When she returned to work, however, she contends she was written-up by the administrator and that four or five non-Hispanic employees who where out sick for six or seven days were not written-up. Additionally, Sandy Port, a nurse, was out sick and had a doctor's excuse and was not purportedly written-up. The Respondent's witnesses maintain that all employees, regardless of race or national origin, etc., were treated the same. If they were tardy they were counseled or written-up depending on the situation and the same was true if they were absent from work. They were counseled or "written-up" depending on the circumstances such as repetitiveness and severity. In this connection, the Petitioner only testified to these matters based upon her own opinion and undocumented, uncorroborated conversations she maintained she had with her co- workers, thus purportedly learning that those others who were absent or tardy were not reprimanded or disciplined for it. She offered no evidence, as for instance, obtained through discovery of the Respondent's employee records, that any non-Hispanic, non-Panamanian employees were treated differently for similar conduct involving tardiness (magnitude or degree, etc) and were treated more favorably. The same is true with regard to the category of absences from work for sickness or other reasons. Thus the record testimony in favor of the Petitioner is only the Petitioner's own unsupported opinion concerning these matters. The testimony adduced by the Respondent demonstrates that the Petitioner could not have known directly of any circumstances or details regarding the other employees' disciplinary situations regarding their tardiness or absence records, because she had no access to their records. Thus her testimony is only based on her own subjective opinion and, at most, out-of-court hearsay declarations by non-present, non-appearing, declarants. In July 2004, according to the Petitioner, the Respondent's facility needed CNA's to work the morning shift, which was shorthanded. The Petitioner asked her administrator if she could move from the evening shift to the morning shift and he told her that there were no openings at that time. She contends that white, non-Hispanic employees were, however, allowed to move to those positions, while she was not. In June or July of 2005, Caroline Gatewood, a resident of the Respondent's facility, suffered a fall. Nurse Toni Acosta grabbed her or picked her up without doing an assessment. She started pushing the resident, apparently trying to get her back to her room according to the Petitioner. The incident was reported to the Director of Nursing, and Ms. Acosta was suspended for several days during an internal investigation conducted by the Director of Nursing. The results of that were reported to the Agency for Health Care Administration. Ultimately, however, the nurse was determined to have not been at fault, and was restored to duty and paid for the days she had been suspended without pay. Thus no discipline was actually imposed against her. The Petitioner maintained that about one month after that incident nurse Acosta was accused of verbally abusing the same resident, but no action was taken against her. Ms. Acosta is a white female. The Petitioner merely stated her opinion or her subjective, hearsay-based knowledge regarding the situation, and had no corroborative evidence to show that Ms. Acosta was actually determined to have been guilty of any misconduct about either the pushing incident or the alleged verbal abuse one month later. Thus, it was not persuasively established that Ms. Acosta was disparately and more favorably treated than the Petitioner. In fact, it was not shown that the employees, Acosta and the Petitioner, were similarly situated, by committing similar purported acts of misconduct, concerning which they were allegedly disparately disciplined, or not disciplined, for that matter. In March 2005, the Petitioner was verbally accosted by a cook at the facility by the name of Mark. He apparently became angry and yelled at the Petitioner, using obscenities directed at her. She reported the conduct to the Assistant Director of Nursing, the Director of Nursing, and the Administrator. She maintains that no action was taken against the cook. Here again she is testifying of her own subjective knowledge or belief. She did not establish that she was aware of all facts concerning whether counseling or other disciplinary action may have been taken against the cook. In any event, even if no action was taken, it was not established that the Respondent condoned such conduct or allowed it to recur, once the Respondent knew of it. Such an isolated incident does not constitute the condonation of discriminatory conduct by a co- employee, on the part of a supervisor. Finally, in October 2005 the Petitioner had to go to Panama for several weeks for the funeral of her father and her brother. When she returned to work she maintains that she was written-up for a tardy instance "for three minutes," which occurred approximately a month before that. She maintains that employees "Todd," "Shauna," "Art," and "Deena" had come to work late and were not written-up. Here again this is her unsupported, subjective opinion without reference to any documentation from the Respondent's employee records, for instance. In fact, witness Nicole Coffield, for the Respondent, rebutted this testimony by establishing that these employees, indeed, were disciplined for their tardiness. Moreover, it was not shown that their degree or repetitiveness of tardiness, or the other circumstances surrounding it, were the same or similar to the Petitioner's. It was thus not established that these purported comparator employees indeed were similarly situated to the Petitioner in the circumstances of their conduct and any discipline (or the degree thereof). Additionally, the Petitioner recounted an instance in which she was accused of stealing cash donations, and was suspended for several days. She was accused of taking a "donation bucket" from a nurses station, and the money it contained, for her personal use. The matter was investigated and the Respondent concluded it by accepting the Petitioner's explanation. She had taken the money, with her supervisor's approval, to buy flowers or a gift for a co-worker, who was absent and gravely ill. The Petitioner was exonerated by the Respondent, restored to duty, and paid for the days she was suspended. The suspension during the pendency of the investigation was a routine practice according to the Respondent's established, normal policy concerning disciplinary procedures. In summary, the Petitioner admitted putting the string through the resident's ear and that she did not ask her supervisor for permission. The Respondent investigated the report purportedly made by Ms. M., the resident. The investigation was conducted by the Director of Nursing, the Risk Manager, and the Director of Human Resources. The Petitioner was suspended pending the results of the investigation, according to the Respondent's regular stated policy. In its investigation the Respondent determined to accept the version of events attributed to the statement or statements of Ms. M., the resident, as corroborated by the testimony of Ms. Lindaas, the LPN. Whether or not the resident's statement was true and whether or not it is inadmissible hearsay, the Respondent established that it relied upon that report in deciding the outcome of its investigation. Since the Respondent relied on the statement after corroborating it by Ms. Lindaas's reporting of the events, it established that it had a reasonable basis at the time for believing that the relevant events involving the Petitioner occurred in that way. The Respondent thus determined that the Petitioner had departed from the proper practice and appropriate conduct of a CNA and that this was a "category one offense" under the Respondent's corporate polices and disciplinary procedures. A category one offense requires suspension pending an investigation, and then either termination, or restoration of employment, with payment for the suspended period of time, depending on whether the allegations are determined true or not. In this instance, based largely on Ms. M.'s statement, corroborated by the statements of other personnel, who had observed or conversed with Ms. M., the Respondent determined that the Petitioner had not merely placed the earrings in the resident's ear, but had actually pierced the resident's ear with a needle. This was an inappropriate departure from the standards of conduct and practice of a CNA, which the Respondent established was a category one violation in its disciplinary policy, for which she was therefore terminated.
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, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 28th day of November, 2007, in Tallahassee, Leon County, Florida. S 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 the Clerk of the Division of Administrative Hearings this 28th day of November, 2007.
The Issue The issue is whether Respondent, Higbee Company, d/b/a Dillard’s (“Dillard’s”), discriminated against Petitioner based upon his national origin or disability, in violation of section 760.10, Florida Statutes (2016).2/
Findings Of Fact Dillard’s is an employer as that term is defined in section 760.02(7). Dillard’s is a department store chain. Petitioner, a Mexican male, was hired as a sales associate in the men’s department of Dillard’s store at Tallahassee’s Governor’s Square Mall on May 13, 2014. Petitioner’s job was to sell men’s fragrances directly to customers at the store. Allen Gustason was manager of the Dillard’s store at Governor’s Square Mall during the time Petitioner was employed there. Dee Thomas was the assistant store manager. Mark Kronenberger, who testified at the final hearing, was the men’s department sales manager and was Petitioner’s direct supervisor during the entire time that Petitioner worked at Dillard’s. Petitioner started at a salary of $12.00 per hour as a sales associate. His job performance and pay increases were assessed primarily on the basis of sales. On January 6, 2015, Petitioner received a raise to $12.60 per hour. On April 14, 2015, Petitioner was promoted to the position of fragrance specialist and received a raise to $14.50 per hour. Petitioner’s promotion did not change his basic duties, i.e., direct sales to customers. Petitioner’s employment at Dillard’s ended on November 28, 2015. Dillard’s did not dispute Petitioner’s testimony that he was a good and effective salesperson. Petitioner developed a regular clientele of Spanish-speaking customers who liked his ability to communicate with them in their native language. At the time of his hiring, Petitioner received, read, and agreed to abide by Dillard’s Associate Work Rules and General Policies, which among other things forbade insubordination by sales associates. “Insubordination” was defined to include failure to follow lawful instructions from a supervisor and engaging in contemptuous or taunting conduct that undermines the authority of management. As noted in the Preliminary Statement above, Petitioner claims that he is a Mexican male with a disability. The claimed disability is the human immunodeficiency virus (“HIV”). Dillard’s did not dispute that Petitioner has HIV. Petitioner claims that he was harassed by fellow employees because of his Mexican national origin. Petitioner claims that he complained to his supervisors, Mr. Kronenberger and Mr. Gustason, about the harassment. Petitioner claims that no effective action was taken to curb the harassment. Petitioner described a pervasive sense of discrimination at Dillard’s of which he became conscious only after about a year of working there. He testified that he is from California and had no real concept of being discriminated against because of his Mexican heritage. It took some time for him to realize and acknowledge to himself that it was happening. However, Petitioner was unable to describe many specific instances of discriminatory behavior by fellow employees. People were “mean,” or “picked on me,” or “didn’t like me,” but few of Petitioner’s complaints pointed toward racial discrimination as opposed to personal dislike. He complained that co-workers planned parties and get-togethers away from work but never asked him along, even for Mr. Kronenberger’s birthday party, but could only speculate as to the reason for his exclusion. Petitioner testified that he was an aggressive and successful salesperson. While its salespeople are assigned to specific departments, Dillard’s allows them to cross-sell in other departments. Several of the incidents described by Petitioner began when he took customers to other departments to sell them something. The undersigned infers that at least some of the bad feelings toward Petitioner were due to his perceived “poaching” of sales from other sections of the store. Petitioner testified that an employee named Carol would yell at him, apparently without provocation, so consistently that he went out of his way to avoid crossing her path. Petitioner stated that one day Carol screamed that he was good-for-nothing and was a “damn Mexican,” in front of customers and co-workers. Petitioner testified that he had no idea why she did this because he had done nothing to provoke her. He walked away, covering his ears from her abuse. Petitioner testified that he went upstairs and spoke to Mr. Gustason about the incident but that nothing was done. Petitioner stated that he returned to the sales floor. Other employees told him that Carol had worked for Dillard’s for many years and was a friend of Mr. Gustason and that he should not expect anything to be done about her behavior. Petitioner testified that an employee named Eric, who worked in the men’s department, made fun of his accent, particularly Petitioner’s difficulty in pronouncing “Saturday.” Petitioner testified that another fellow employee, a white woman named Amber who also worked in fragrance, was constantly rude and mean to him. In front of customers, Amber would say that she did not know why Petitioner was there, that he was only good for cleaning the counters. Petitioner repeatedly complained to Mr. Kronenberger about Amber. Mr. Kronenberger told him to continue doing a good job and not to focus on Amber. Petitioner stated that Mr. Kronenberger directed Amber to stay away from Petitioner’s counter, but she ignored the order and continued to harass him. Petitioner stated that matters came to a head when he was helping some female customers and went to Amber’s counter one day. He reached behind her to get the fragrance the customers wanted and Amber struck him with her elbow. The customers were aghast and complained to Dillard’s management despite Petitioner’s entreaties that they let the matter drop. Petitioner and Amber were called to the office to meet with Mr. Kronenberger and Yami Yao, the manager of women’s cosmetics. Amber denied everything. The supervisors told Petitioner and Amber to get along. They told Amber to stay away from Petitioner’s counter. Petitioner testified that Amber ignored the instruction and continued to harass him. Petitioner testified that on another day he was approached by a customer who wanted to pay Petitioner for a pair of shoes. Petitioner testified that he asked Mr. Kronenberger about it, because he did not want to steal a sale or anger anyone. Mr. Kronenberger told him that he was there to sell and that cross-selling was fine. As Petitioner was completing the sale, an older white man working in the shoe department threw a shoe at Petitioner and said, “You damn Mexican, I’m going to raise hell against you.” Petitioner testified about an altercation with Risa Autrey, a fragrance model who worked in Dillard’s and who Petitioner stated was another longtime friend of Mr. Gustason. One day, Ms. Autrey approached Petitioner--again, with zero provocation, according to Petitioner--and began berating him, saying that she had no idea why Dillard’s kept Petitioner around. This occurred in front of co-workers and customers. The customers went upstairs and complained to Mr. Gustason, who followed up by admonishing Petitioner to stop telling people to complain to him because nothing was going to come of it. Petitioner testified that a day or so after the incident with Ms. Autrey, he met with Mr. Gustason and Mr. Thomas.4/ During the course of this meeting, Petitioner disclosed his HIV status. Petitioner testified that Mr. Gustason’s attitude towards him changed immediately, and that Mr. Gustason had him fired two weeks later on a pretextual charge of stealing and insubordination. Petitioner testified that he got sick a few days before Black Friday, which in 2015 was on November 27. When he returned to work on November 25, he attempted to give Mr. Gustason a doctor’s note that would have entitled Petitioner to paid leave, but Mr. Gustason would not talk to him. Petitioner worked a long shift on Black Friday. On Saturday, November 28, 2015, he was called to Mr. Thomas’s office about an altercation he had on November 25 with Ms. Yao, the woman’s cosmetics manager. Mr. Kronenberger was also in the office. Petitioner testified that Mr. Thomas accused him of stealing, as well as insubordination to Ms. Yao, and fired him. Two mall security officers, the Dillard’s security officer, and Mr. Kronenberger escorted Petitioner out of the store. Petitioner testified that he was given no paperwork to memorialize his firing or the reasons therefor. Mr. Kronenberger testified at the final hearing. He testified that Petitioner constantly complained about someone not liking him or picking on him. Petitioner never gave him specifics as to what happened. Mr. Kronenberger stated that Petitioner never complained about racial slurs or that any of his alleged mistreatment had a discriminatory element. It was always, “This person doesn’t like me.” Petitioner had issues with tardiness and absenteeism throughout his employment with Dillard’s. Mr. Kronenberger testified that there would be days when Petitioner simply would not show up for work, or would send a text message to Mr. Kronenberger saying that he had things to do or someone he had to meet. Employment records submitted by Dillard’s supported the contention that Petitioner was frequently late for, or absent from, work. Mr. Kronenberger testified that Petitioner was erratic in his communications. Petitioner would send a text message saying he could not come in. Then he would send a text telling Mr. Kronenberger how happy he was to have the job. Mr. Kronenberger recalled once receiving a text from Petitioner at midnight that read, “I know I’ve been bad.” In November 2015, Petitioner had six unexcused absences, including four consecutive days from November 21 through 24. Mr. Kronenberger testified that Petitioner finally admitted that he needed to cut his hours in order to qualify for some form of public assistance. Mr. Gustason told Petitioner that something could be worked out to cut his hours, but that just not showing up for work was unfair to Mr. Kronenberger and the other employees. Mr. Kronenberger testified that Dillard’s would normally terminate an employee with six unexcused absences in one month under the heading of job abandonment. He stated that Mr. Gustason bent over backward to work with Petitioner and keep him on the job. When Petitioner was absent, Mr. Gustason would leave messages for him, asking him to call and let him know what was going on. During the string of November absences, Mr. Kronenberger phoned Petitioner, who said that he was afraid to come into work for fear that Mr. Gustason would fire him. Mr. Kronenberger assured Petitioner that Mr. Gustason had no such intent, but that in any event no one would have to fire him because he had not been to work in a week. Petitioner was effectively “firing himself” by abandoning his position. Petitioner showed up for work on November 25, 2015, at 4:50 p.m. He had been scheduled to come in at 9:45 a.m. Mr. Kronenberger testified that he was not present for Petitioner’s altercation with Ms. Yao, but that Ms. Yao reported she had attempted to counsel Petitioner about gifts with purchases. The promotional gifts were to be given away only with the purchase of certain items, but Petitioner was apparently disregarding that restriction and giving the gifts with non-qualifying purchases. Ms. Yao told Mr. Kronenberger that Petitioner quickly escalated the counseling into a shouting match in front of customers and co-workers. He yelled, “You’re not going to talk to me that way.” Ms. Yao told Petitioner that she worked in another department and did not have to deal with his antics. She told him that she was going to report the matter to Mr. Kronenberger and Mr. Thomas.5/ Mr. Kronenberger testified that his conversation with Ms. Yao was brief because there was no need to give many particulars. He was used to getting reports of employee run-ins with Petitioner and did not need much explanation to get the gist of what had happened. Mr. Kronenberger decided not to raise the issue with Petitioner on Black Friday, the busiest day of the year at the store. On the next day, November 28, Petitioner was called into the office to meet with Mr. Kronenberger and Mr. Thomas. Mr. Kronenberger testified that this meeting was not just about the incident with Ms. Yao but also Petitioner’s absences. In Mr. Kronenberger’s words, “[I]t was to follow up with the incident with Yami, and it was to follow up with, ‘Hey, you’ve just missed a week, you’ve been back a day, and you’re having this blow-up with a manager on the floor.’ Like, ‘What’s going on?’” Mr. Kronenberger testified that neither he nor Mr. Thomas went into this meeting with any intention of terminating Petitioner’s employment. However, two minutes into the conversation, Petitioner was on his feet, pointing fingers, and shouting that he knew what they were trying to do and he was not going to let them do it. He was quitting. Petitioner walked out of the office. Mr. Thomas asked Mr. Kronenberger to walk Petitioner out of the store so that there would be no incidents on the floor with the other employees. Mr. Kronenberger accompanied Petitioner to the fragrance area, where Petitioner retrieved some personal items, then walked him to the door. They shook hands and Petitioner left the store. Mr. Kronenberger was firm in his testimony that no security personnel were involved in removing Petitioner from the store. Petitioner was not accused of stealing. His parting with Mr. Kronenberger was as cordial as it could have been under the circumstances.6/ After Petitioner left his office, Mr. Thomas prepared a “Separation Data Form” confirming Petitioner’s dismissal for “violation of company work rules.” The specific ground stated for Petitioner’s dismissal was violation of the Associate Work Rule forbidding insubordination. Mr. Kronenberger testified that in his mind the “insubordination” included not just the scene with Ms. Yao, but the explosion Petitioner had in the meeting with Mr. Thomas. At the time of Petitioner’s dismissal, Mr. Kronenberger was unaware of Petitioner’s HIV status. Mr. Kronenberger credibly testified that Petitioner’s HIV status had nothing to do with his dismissal from employment at Dillard’s. Mr. Gustason, who apparently was aware of Petitioner’s HIV status, was not at work on November 28, 2015, and was not involved in the events leading to Petitioner’s dismissal. Mr. Thomas, the assistant store manager, made the decision to treat Petitioner’s situation as a dismissal for cause.7/ Mr. Kronenberger’s testimony is credited regarding the circumstances of Petitioner’s dismissal and as to the general tenor of Petitioner’s employment at Dillard’s. Petitioner was constantly in the middle of conflicts, but never alleged until after his termination that these conflicts were due to his national origin or disability. Petitioner’s demeanor at the hearing was extremely emotional. He cried frequently and seemed baffled that Mr. Kronenberger was disputing his testimony. The undersigned finds that Petitioner’s version of events was genuine in the sense that it conveyed Petitioner’s subjective experience of his employment as he recollected it. However, the undersigned must also find that Petitioner’s subjective experience did not conform to objective reality. However, Petitioner internalized the experiences, it is not plausible that Dillard’s employees were yelling at Petitioner without provocation, hitting him, throwing shoes at him, and calling him a “damn Mexican” in front of customers. It is not plausible that Petitioner’s superiors would ignore such flagrant discriminatory behavior when it was brought to their attention. Petitioner’s feelings about the motives of his co-workers and superiors cannot substitute for tangible evidence of unlawful discrimination. Petitioner offered the testimony of two Dillard’s customers, neither of whom saw behavior from Petitioner’s co- workers that could be attributed to anything beyond personal dislike or sales poaching. Santiago Garcia testified that he noted other Dillard’s employees rolling their eyes at Petitioner, but he thought the reason might be that Petitioner talked too loud. Mr. Garcia also saw “bad looks” from other employees and believed that the atmosphere among Dillard’s employees was “tense,” but did not offer a reason for the tension. Claudia Pimentel testified, through a Spanish language interpreter, that she always went directly to Petitioner because she speaks only Spanish and Petitioner was able to help her. Ms. Pimentel noted that a female Dillard’s employee got mad at Petitioner because he sold Ms. Pimentel a cream from her counter. During the years 2015 and 2016, the Dillard’s store in Governor’s Square Mall terminated two other sales associates for insubordination. Neither of these sales associates was Mexican. One was a black female and the other was a black male. Neither of these sales associates had a known disability at the time of termination. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reason given by Dillard’s for his termination. Petitioner offered no credible evidence that Dillard’s stated reason for his termination was a pretext for discrimination based on Petitioner’s national origin or disability. Petitioner offered no credible evidence that Dillard’s discriminated against him because of his national origin or his disability in violation of section 760.10.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Higbee Company, d/b/a Dillard’s, did not commit any unlawful employment practices, and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 24th day of October, 2017, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October 2017.
Findings Of Fact Petitioner was employed by VOTRAN from June 6, 1977, until his discharge on January 19, 1982. He started as Serviceman; was promoted to Mechanic B on October 31, 1977; to Night Leadman on August 7, 1978; to Mechanic A on January 13, 1980; and to permanent Night Leadman on November 30, 1981. He was the senior mechanic in the maintenance department and, prior to December, 1981, was Leadman on the day shift. Effective November 30, 1981, the position as Leadman on the day shift was abolished and these duties were absorbed by the Maintenance Superintendent, Owen Davis. Pursuant to the Union contract in effect at VOTRAN, available jobs are bid by seniority and go to the most senior qualified man seeking the position. When the Day Leadman position was abolished, Petitioner bid on the Night Leadman position and, as senior mechanic, was awarded the job. Working days (or nights) for the Night Leadman are Tuesdays through Saturdays, with Sundays and Mondays off. This was known to Petitioner at the time he submitted his bid and was awarded this position. After a short time as Night Leadman, Petitioner requested leave on Saturday to attend an uncle's funeral in Georgia. Davis told Petitioner this would leave them shorthanded. Petitioner then told Davis that he did not like working on Saturday and wouldn't come in. Davis reported this incident to the General Manager, Kenneth Fischer. Late in December Petitioner met with Fischer, at which time Petitioner told Fischer he was unable to handle the job of Night Leadman. Fischer offered Petitioner the option of swapping jobs with a Mechanic A on the day shift but that job paid less and Petitioner turned it down. On another occasion, Fischer learned Petitioner had called in and said he could not come to work on Saturday because he had to move furniture. That resulted in a memo of January 12, 1982 (Exhibit 3) memorializing the December 29, 1981, meeting between Petitioner and Fischer in which Fischer repeated his warning to Petitioner against calling in sick on Saturdays unless his illness could be documented. This memo was delayed getting into Petitioner's box and was not received by him until the following Friday. Fischer was off Saturday, Petitioner was off Sunday and Monday, and on Tuesday, January 19, 1982, Petitioner met with Fischer. After Fischer had entered his car in the parking lot around 6:00 p.m. preparing to go home, Petitioner approached the car and told Fischer he would like to speak to him. Fischer got out of his car, they walked back into the building, Fischer unlocked his office, and they entered. Petitioner tossed the memo of January 12, 1982, on the desk complaining that he thought he was being discriminated against and that if the rules respecting sick leave of less than three days were being changed they should apply to all employees and not just to Petitioner. The meeting quickly escalated into a confrontation with Petitioner telling the younger Fischer that Petitioner was a 40-year-old man with a family, and that Fischer was not man enough to fire him. Whereupon Fischer told Petitioner to "hit the door." Petitioner then told Fischer that he would get VOTRAN's "shit" together and for Fischer to get Petitioner's "shit" together, and Petitioner left. Petitioner's voice immediately prior to his departure was sufficiently loud to be heard by two employees from 200 feet down the hall from Fischer's office. Petitioner's testimony conflicted with the above finding of what went on at the fateful meeting of January 19. Petitioner testified that he remained calm during the meeting, that he never told Fischer that the latter was not man enough to fire him, that he told Fischer they should discuss the matter like grown men, that he used the word "shit" to indicate personal property, and that Fischer is the one who got angry and told Petitioner to "sit down" before he told Petitioner to "hit the door." Petitioner also testified that during the little ever a month he was Leadman on the night shift he missed one or two Saturdays, that the memo of January 12 made him feel he was being treated differently from others, and that he and Fischer had at least three conferences before January 19, 1982, when he was fired. VOTRAN is a publicly owned transportation company subsidized by Volusia County and originally financed by the Federal Government. While funded by the Federal Government VOTRAN was subject to and in compliance with all federal laws proscribing discrimination. Of the 83 employees of VOTRAN, 20 are black. In Volusia County blacks constitute approximately 13 percent of the population. While employed at VOTRAN, Petitioner attended three schools to improve his training and VOTRAN paid the tuition. Although there was a discrepancy between Petitioner's testimony that he was the only black mechanic employed by VOTRAN, and VOTRAN's testimony that there were two blacks employed as mechanics, the evidence was unrebutted that following Petitioner's discharge another black mechanic was hired by VOTRAN. To further support his claim that he was fired because of his race, Petitioner testified that as a Leadman he was never issued a white shirt, that white shirts and blue pants were provided supervisors (including leadmen) by VOTRAN, and that blue shirts were issued to other workmen except in the bodyshop where the workers were issued white pants and shirts. Petitioner mentioned this difference to one of the shop's stewards who told Petitioner that if he felt wronged he should file a grievance. Petitioner never filed a grievance and neither the Superintendent nor the Director of Maintenance was asked by Petitioner to provide him with a white shirt. Other witnesses testified that some leadmen wore white shirts, others wore blue shirts, and it was generally left to the choice of the leadman which color shirt he wore. One witness called by Petitioner testified that he once overheard a Fischer and Davis conversation at which the phrase "dumb niggers" was used. Both categorically denied ever making such a racial slur. No other witness testified to any incident which could lead to a conclusion that Fischer was in any manner prejudiced or racially discriminatory. His reputation among the bus drivers is that he "goes by the book." As another ground to support his charge of racial discrimination, Petitioner testified that while he was Night Leadman he was not provided a key to the Superintendent's desk which other night leadmen had been provided; and that when it was necessary to get into the desk for special tools kept there, it was necessary to call the Superintendent, who would come down and unlock the desk. The Superintendent, Davis, confirmed that Petitioner had not been issued a key because a short time before Petitioner started the night shift too many keys had been issued, all of these keys had been called in, and, when he found his presence was frequently required at night to open the desk, he reissued a key to the Night Leadman. By this time Petitioner had been terminated. The contract between VOTRAN and the Teamsters Union provided for arbitration of grievances. This document also provides that neither employer nor Union will discriminate against any individual with respect to recruitment, hiring, training, promotion, or other employment practice for reasons of race, etc. (Exhibit 1, Article 9). When Petitioner told the shop's steward (also black) that he had been fired, he did not indicate he was fired by reason of race. Petitioner was advised by the shop's steward that he could file a grievance with the Union and his firing could go to arbitration if not settled prior to that step. Petitioner was not a dues-paying member of the Union, and, although covered by the contract, did not feel he would get a sympathetic ear from the Union. The General Manager, William Barrett, who preceded Fischer, was called as a witness by Petitioner. Barrett was General Manager when Petitioner was hired, approved the various training programs taken by Petitioner at VOTRAN's expense, and found Petitioner to be a good and reliable employee. Barrett further testified that it was necessary to maintain discipline in order to operate effectively and that if an employee challenged his authority he would have no choice but to fire the employee immediately.
