The Issue Whether Petitioner properly issued the Stop-Work Order (“SWO”) for Respondent’s failure to comply with Petitioner’s Request for Production of Business Records (“Request to Produce”).
Findings Of Fact The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation law that requires employers to secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. Respondent is a Florida limited liability company, organized on September 18, 2014, engaged in business in Florida. Mary Atwood is the listed manager and owner of Boss Lady Co. The nature of Respondent’s business was a disputed issue at the final hearing. Mrs. Atwood testified that she obtained a license to engage in construction as a minority female business owner. The record contains a handwritten list of jobs provided by Mrs. Atwood to represent the work performed by Respondent, which included color sealer (application), partial color sealer (removal), privacy fence repair, and privacy fence (installation). On May 18, 2017, Mr. Byrnes observed a truck parked in front of a property with a magnetic sign indicating, Boss Lady Concreate Company. The sign indicated the company worked on patios, driveways, foundation, flat work, and privacy fences. He then stopped at the property to perform a random check. During the random check, Mr. Byrnes encountered two men when he approached the property. The first man, Joshua Brown, was operating a pressure washer. Mr. Byrnes told Mr. Brown his name and the purpose of his visit. Mr. Brown told Mr. Byrnes that his boss, Mary, was in the back of the house. Mr. Brown stated that it was his first day working for Mrs. Atwood and that he was expecting to receive beer money for the day. The second man, Kenneth Archibald, stated that he works for Mrs. Atwood off and on and had done so for some time. He stated he was generally paid eight or nine dollars per hour and that he expected to be paid his general wage for that day’s work. Mrs. Atwood denied that Mr. Archibald and Mr. Brown were her employees and stated that they were just helping her out for the day. However, Mrs. Atwood transported the two men to the property for the purpose of pressure washing the driveway. While Mrs. Atwood continued to deny that she intended to pay the gentleman for the work performed, she testified that the men wanted beer money and she was “going to give them a couple of dollars for beer.” No one was paid for anything that day. Neither of the two men alleged to have been working for Mrs. Atwood testified at the hearing. Mrs. Atwood’s testimony is the only direct evidence presented at hearing of the payment arrangement for the two men at the property location. Mr. Byrnes checked the Department's Coverage and Compliance Automated System ("CCAS") database to determine whether Mrs. Atwood had secured the payment of workers' compensation insurance coverage or had obtained an exemption from the requirements of chapter 440. CCAS is a database that Department investigators routinely consult during their investigations to check for compliance, exemptions, and other workers' compensation related items. CCAS revealed that Mrs. Atwood had an exemption for herself for construction, effective October 5, 2016. There was no evidence that Respondent had workers’ compensation coverage for any employees. Based on his jobsite interviews with the alleged employees and Mrs. Atwood, and his CCAS computer search, Mr. Byrnes concluded that Mrs. Atwood had two employees working in the construction industry and that she had failed to obtain workers’ compensation coverage for those employees in violation of chapter 440. As a result, Mr. Byrnes issued a SWO that he personally served on Mrs. Atwood on May 18, 2017. Also on May 18, 2017, Mr. Byrnes served Mrs. Atwood with a Request for Production, asking for payroll records, accounting records, disbursements, contracts for work, subcontractors’ documents, and documentation of subcontractors’ workers’ compensation coverage for the period from February 13, 2017, through May 18, 2017. The request for payroll records included income tax documents. Mrs. Atwood provided Mr. Byrnes with a list of jobs performed, including the amount paid for work performed, in response to the Request for Production. Mrs. Atwood testified that she produced the only records she had in her possession because she did not have payroll records, bank records, or billing records. Mrs. Atwood also testified that Boss Lady Co. filed taxes, yet it did not provide tax records because Mr. Byrnes allegedly did not request the records. The undersigned is not persuaded by Mrs. Atwood’s testimony regarding failure to produce the income tax records. The evidence supports a finding that Boss Lady Co. had tax records for the covered time period which were not produced to the Department. The evidence produced at hearing clearly and convincingly demonstrated that Mrs. Atwood was covered by an exemption (related to the construction industry) from workers’ compensation insurance exemption. There is direct evidence that Mr. Byrnes saw Mr. Brown operating the pressure washer, and that, at the very least, Mrs. Atwood intended to pay him a couple of dollars for beer. Thus, the undersigned finds that Mr. Brown was working for Respondent on May 18, 2017. However, there was no direct evidence that Mr. Archibald was observed performing any work. The only evidence as to whether Mr. Archibald worked for Respondent or how he was paid was hearsay statements of Mr. Archibald as restated by Mr. Byrnes. Mr. Archibald was not available at hearing to corroborate Mr. Byrnes testimony. Mrs. Atwood testified that Mr. Archibald was merely plugging in the pressure washer. The Department did not demonstrate by clear and convincing evidence that Mr. Archibald was performing work for Respondent on May 18, 2017. Mr. Byrnes testified that the work he observed on May 18, 2017 (pressure washing) was non-construction work. Although the work performed on that day may not be classified as non-construction work, the evidence demonstrates that Boss Lady Co. is an employer with one or more employees engaged in the construction industry. Thus, Boss Lady Co. was required to maintain workers’ compensation coverage for its employees. The Department has demonstrated that issuance of the SWO was proper, pursuant to chapter 440. The Department has demonstrated by clear and convincing evidence that Respondent was in violation of chapter 440 by failing to produce tax records in response to the Request to Produce.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department entered a final order finding: the Department properly issued the Stop-Work Order against Boss Lady Concreate Co., LLC; and Boss Lady Concreate Co., LLC, failed to comply with the SWO by failing to provide tax records as requested by the Department’s Request to Produce. DONE AND ENTERED this 16th day of November, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 16th day of November, 2017.
The Issue The issues are whether Petitioner has a claim that is cognizable under Section 760.11(1), Florida Statutes, and if so, whether Respondent committed an unlawful employment act in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact Petitioner, a black female, began working for Respondent as a child protection investigator (PI) in Respondent's District 13, Unit 42, Ocala, Marion County, Florida, in 1993. Petitioner transferred to Respondent's Marion County office from Dade County, where she held a similar position. Petitioner's supervisor in Marion County was Ms. Charlene Bartsch. At first, Petitioner and Ms. Bartsch had a good working relationship. Ms. Bartsch did not testify at the hearing. In 1994, Petitioner learned that she was diabetic. From that time forward, Ms. Bartsch occasionally expressed her concern to Petitioner that the stress of the job was exacerbating Petitioner's medical condition. Petitioner's testimony that Ms. Bartsch made these comments to persuade Petitioner to find another job is not credible. Persuasive evidence indicates that in the beginning of their professional relationship, Petitioner often freely discussed the stress of her job and personal life with Ms. Bartsch. Moreover, there is no evidence that Ms. Bartsch ever suggested that Petitioner think about looking for another job. Ms. Bartsch gave Petitioner an "achieves" on an annual performance appraisal signed by Ms. Bartsch on February 11, 1994, and by Petitioner on February 14, 1994. The appraisal gave Petitioner an overall rating of "achieves performance standards." Petitioner believed that she had earned the higher overall rating of "exceeds performance standards" on the appraisal. Ms. Bartsch wrote the following comment in the February 1994 performance appraisal: During this period of time, Ms. Ausby has found herself on numerous occasions apologizing for something said that was misunderstood or taken wrongly. Ms. Ausby is aware that others at times have difficulty coping with her admittedly outspoken nature. Since she is aware of the problem, I'm sure that she will now work on the professional demeanor needed for working with co-workers and the public. It is only because of this area that Ms. Ausby does not meet the "exceeds overall." Petitioner complained to Respondent's personnel manager about her performance appraisal. The personnel manager did not change the rating but gave Petitioner an opportunity to respond point-by-point in writing to the appraisal. Petitioner testified that Ms. Bartsch gave Gerard King, a white male PI, an "achieves below performance standards" on a performance appraisal in January 1994. Petitioner also testified that Respondent's management subsequently changed Mr. King's appraisal to "achieves." The basis for Petitioner's knowledge of these facts is unclear. In any event, there is no competent evidence that the circumstances under which Respondent changed Mr. King's performance appraisal were similar to the circumstances under which Respondent declined to change Petitioner's performance appraisal. In January 1994, Ms. Bartsch decided to let the employees have the option of working a four-day week. Petitioner opted to work Monday through Thursday with Friday through Saturday off. Petitioner, and all other employees who elected to do so, worked this four-day work schedule for approximately four months. In May 1994, Ms. Bartsch required all employees to return to a five-day work schedule. Persuasive evidence indicates that the unit as a whole voted to return to a five-day work schedule on a day that Petitioner was not in the office. A subsequent memorandum written by Petitioner shows that she believed she had a right to negotiate her work schedule with Ms. Bartsch on an individual basis because Ms. Bartsch was the person who hired her. There is no credible evidence that Ms. Bartsch made this decision based solely on the complaint of a white male PI who claimed that the unit received more cases on Friday, a day that Petitioner was off and the white male was at work. On February 15, 1994, Ms. Bartsch had a conference with Petitioner. A memorandum created during this conference and signed by Ms. Bartsch and Petitioner contains the following comments: Strengths: being perfectionist; works in timely manner helps other people; always available lot of knowledge re HRS/investigations hard worker organized Areas Needing Improvement: (1) personality problems with co-workers The following changes will be made: isolate and stay from others letting Gloria speak in place On April 14, 1994, Ms. Bartsch had another conference with Petitioner. The memorandum documenting this conference and signed by Ms. Bartsch and Petitioner states as follows: Issues: court problems. calendar needs organization getting not enough support from attorneys doing better at getting along with people continue not allowing others to lean too much There is no credible evidence that Ms. Bartsch ever yelled at Petitioner for helping her co-workers. Persuasive evidence indicates that Ms. Bartsch at times commended Petitioner and her co-workers for helping each other and working as a team. Petitioner testified that Ms. Bartsch began to assign Petitioner to more "on-call" weekend duty than other PIs in May 1994. The documentation that Petitioner offered to support her testimony is not competent. Petitioner's testimony in this regard did not take into consideration the different lengths of employment and levels of experience of other PIs, as well as their race and gender. Petitioner's testimony alone is not credible and is insufficient to determine at any point in time that Ms. Bartsch assigned Petitioner more "on-call" duty than other similarly situated white and/or male PIs. On May 10, 1994, Ms. Bartsch had a third individual conference with Petitioner. The purpose of the conference was to discuss Petitioner's work and interpersonal relations in the office. The memorandum documenting this meeting and signed by Ms. Bartsch and Petitioner states as follows: Issues: fantastic - no backlog work on trying to UPS or petition without removing kids if not in imminent danger interpersonal relations ignore other's comments say nothing to hurt people's feelings Cindy feels co-workers are venting their anger and causing friction in the unit and specifically towards her She feels best way to handle is to withdraw On May 26, 1994, Ms. Bartsch assigned a June 1994 "on-call" weekend to Petitioner when she had plans to attend a social function. As a general rule, Ms. Bartsch let employees switch "on-call" weekends with each other. Petitioner testified that Ms. Bartsch questioned a colleague's offer to switch "on-call" weekends with Petitioner on the relevant weekend. According to Petitioner's testimony, Ms. Bartsch became upset and stated that she wanted Petitioner to work her assigned weekends. Petitioner's testimony did not consider whether there were other circumstance existing in the unit at the time, making it necessary for all PIs to abide by the pre-assigned weekend duty roster, established by a rotating log. Petitioner admitted during the hearing that she and her co-worker were allowed to switch "on-call" duty in the month of June 1994. Respondent requires its investigators to keep their cases updated in the computer. In June 1994, Ms. Bartsch told Petitioner to update her cases on the computer. Petitioner only had one case, which she was unaware of, to update. There is no credible evidence that Ms. Bartsch treated Petitioner differently from her white male co-workers in this regard. This is true even if one co-worker, a white male, had cases that had not been updated since 1993. During some staff meetings, Petitioner felt that Ms. Bartsch allowed other supervisors and/or co-workers to treat Petitioner rudely. On one occasion, Respondent's operations program assistant, Lynn Peirson, agreed with Petitioner that Ms. Bartsch should have intervened on Petitioner's behalf during a meeting. There is no evidence that Ms. Peirson's comment related to a specific incident where a white and/or male employee was rude to Petitioner. Persuasive evidence indicates that Ms. Bartsch often inappropriately tolerated unprofessional conduct among all members of her staff, regardless of their race or gender. Additionally, there is no credible evidence that Ms. Bartsch assigned Petitioner to an "on-call" weekend in retaliation for complaining to Ms. Peirson. Petitioner testified that Ms. Bartsch assigned Petitioner more cases to work than other investigators. Petitioner also testified that Ms. Bartsch gave Petitioner the most difficult cases. There is no competent evidence that the case assignments given to Petitioner were more numerous or difficult in relation to the race, gender, length of employment, or experience of other PIs. Petitioner often expressed her opinion and complained to her co-workers that she worked harder than they did. There is evidence that Petitioner was the most experienced PI in the unit and that she worked hard but no harder than other similarly situated PIs. Petitioner testified that Ms. Bartsch interpreted Petitioner's complaints about her workload as meaning that Petitioner felt she worked harder than her co-workers. There is no competent evidence to support this testimony. There is persuasive evidence that Petitioner often misinterpreted Ms. Bartsch's statements. There is no credible evidence that, at some point in time, two of Respondent's white male employees called Petitioner "nigger" or that Ms. Bartsch ever called Petitioner an "uppity nigger." Likewise, there is no credible evidence that a white male co-worker left one of Ms. Bartsch's staff meetings, calling Petitioner a "bitch" and slamming the door. In fact, the most persuasive evidence indicates no one in Respondent's employ ever used such inappropriate language directed toward Petitioner. To the extent that such inappropriate language was used, Petitioner never informed anyone in a position of authority in time to give Respondent an opportunity to correct the transgression. Petitioner did not include a timely reference to any of these racial slurs in any of her numerous memorandums that expressed her displeasure in the unit's operations or Ms. Bartsch's management style and that set forth her claims of discrimination and disparate treatment. Petitioner admitted during the hearing that she was raising the allegation that Ms. Bartsch called Petitioner an "uppity nigger" for the first time. There is competent evidence of friction and personality conflicts between the employees in general, and specifically between Petitioner and her co-workers. On October 13, 1994, Ms. Bartsch sent a memorandum to her staff. In the memorandum, Ms Bartsch announced that Petitioner and Erwin Crawford would be the designated staff to take cases to court. Ms. Bartsch asked her staff to properly investigate and document each of the cases before transferring them to Petitioner or Mr. Crawford. The October 13, 1994, memorandum requested the staff to propose new performance standards for the office and to put future complaints in writing. Ms. Bartsch stated that she would start responding to the staff's concerns in writing. Ms. Bartsch's October 13, 1994, memorandum encouraged the staff to work as a team. She acknowledged that everyone was at each other's throats. She wanted staff members to find a way to solve problems with their co-workers. Ms. Bartsch advised that she would start documenting more and using more oral and written reprimands. Ms. Bartsch's October 13, 1994, memorandum listed some regulations that she thought were problems in the office and added her comments. Regarding "disruptive conduct," including speaking rudely or contemptuously to others and the slamming of doors, Ms. Bartsch stated that problems occur when people accuse each other of things. She stated as follows: "Shouting matches are out. Swearing is out. Yelling at your clients is out. Rudeness to anyone is out." Ms. Bartsch advised everyone to sign up for a class entitled "Working with Difficult People" and also suggested that everyone take a stress management class. Regarding "failure to follow instructions," Ms. Bartsch's October 13, 1994, memorandum instructed the staff to take whatever cases they are assigned without complaint. This included taking cases as they were received according to the rotation of names on a rotation log. Ms. Bartsch's October 13, 1994, memorandum also included definitions of insubordination and falsification of records or statements. On December 7, 1994, Petitioner sent Ms. Bartsch a memorandum. Petitioner explained that she no longer wanted to represent the office in filing legal petitions to remove children from their homes with the court. Petitioner made this decision because she felt her co-workers did not respect and appreciate her. Instead, Petitioner believed that the other PIs, regardless of race or gender, left work undone on cases before prematurely transferring the cases to Petitioner, making her job more difficult. On one occasion, Petitioner had so much work to do preparing three court petitions, with no help from any other PI except for one white male, that she was late getting to court and had to apologize to the judge. In this memorandum, Petitioner announced that she was returning all cases to Ms. Bartsch for reassignment that were not originally assigned to her. Petitioner's memorandum makes it clear that from that time forward she was only willing to help one other PI who appreciated her work. On December 19, 1994, Ms. Bartsch wrote a memorandum to Petitioner. This memorandum was subsequently placed in Petitioner's personnel file. Ms. Bartsch's December 19, 1994, memorandum discusses Ms. Bartsch's concern for the stress that Petitioner was experiencing at work and the negative impact that the stress was having on Petitioner's job performance. The December 19, 1994, memorandum states as follows in pertinent part: Admitted stress of dealing with your co-workers. It is my understanding at the class on "How to Deal with Difficult People," you made it very clear to the group that your problem was getting along with your co-workers. You also dramatically distanced yourself from other members of your unit. The stress of trying to work court cases. This was impacted by what you felt was lack of support from your co-workers. Stress affecting your judgment on some cases. I.E. Spragg--where you did not want to shelter even though I insisted; Coleman where the doctors adamantly state it was a situation of child abuse. Our attorney states you have a misperception of what it takes to shelter a child. Your method of coping with others in the unit by distancing yourself by staying in your room with the door shut and not interacting unless absolutely required causes other concerns. There is added stress when you compare your reputation and acceptance working with Dade County judges and attorneys with how the Marion County judicial process works. Stress from me, your supervisor. Our communication has had some strains because you interpret things differently than what I feel I've expressed to you. You've shared some personal stressors from your home situation. No doubt the stress as well in your personal life only helps to compound the issue. * * * This is to be considered a letter of counsel. The next step in the changed order of career service rules is what is called a PIP or Performance Improvement Plan. There are two "core" standards which must be met on the new RAPP form. They are: Courtesy - Treats customers, the public and staff with courtesy, respect and dignity and presents a positive public image. Team Work - Supports the unit, department and/or organization and works with others in an effort to accomplish the goals of the unit, department and/or organization. You have made tremendous strides in the aspect of courtesy with our clients. I have not been receiving the phone calls of complaints as I used to do. Your ability to make corrections in this area has obviously been dramatic. Now I would ask that you also make those changes towards your co- workers. You view them as people who do not work as hard as you. You are critical of the way they work their cases. You have been quite vocal to everyone about this. They strongly take this as lack of respect towards them on your part. Team work is an issue that we have been addressing for months. I'm sure the easiest way for you to deal with the stress has been through isolation. But I did not make the new standard; I do strongly endorse it and encourage you to make changes in this area also. You have tremendous skills and abilities that have been of great help to children and families in the past. I want this to continue. But I'm also very serious about the fact that you must get the help you need, now, for the stress you are under before your health is more seriously affected. In the past you have made great strides to correct things that have been pointed out to you. No one doubts your conscientiousness about the way you approach your work. I'm sure you will see the importance of dealing with these issues. Petitioner responded to the December 19, 1994, memorandum with a long memorandum dated January 3, 1995. Petitioner's written response was directed to Don Dixon, Respondent's assistant district administrator who was a black male, requesting him to remove Ms. Bartsch's December 19, 1994, memorandum from Petitioner's personnel file. Petitioner's January 3, 1995, memorandum responded point-by-point to the matters of concern raised by Ms. Bartsch's December 19, 1994, memorandum. In general, Petitioner denied that she had a stress problem. Instead, Petitioner indicated that Ms. Bartsch was the problem because of Ms. Bartsch's failure to address Petitioner's complaints and Ms. Bartsch's retaliatory conduct. Specifically, Petitioner disputed Ms. Bartsch's representation of the facts as follows: (a) Regarding the class on "How to Deal with Difficult People," Petitioner denied that she isolated herself from the other staff members because she always chose to sit up front when given the opportunity and admitted making the statement that she wanted to determine if her problems with her co-workers were her own fault, and if so, what she needed to do to change; (b) Regarding Petitioner's management of her court cases, Petitioner claimed that on December 7, 1994, Petitioner had to prepare three court cases and was late to court because only one person offered to help; In regard to the Coleman case, Petitioner insisted that there was not enough evidence to show that the child was abused until a doctor provided that evidence at a later date; (d) In regard to the Spragg case, Petitioner stated that, based on later evidence, a court petition to remove the children for neglect would have been rejected because the family had access to electricity; (e) Petitioner admitted that she and Ms. Bartsch occasionally disagreed on the removal of children from their homes, but asserted that no attorney on Respondent's legal staff made a statement regarding Petitioner misunderstanding of what it takes to shelter a child; (f) Petitioner asserted that she works with her door closed to avoid distractions and so she can concentrate on her work like other employees do without receiving a letter of counsel; (g) Petitioner took the position that most employees have trouble with the judicial system but accept what cannot be changed; (h) Petitioner asserted that in reprisal for her complaints, she received more cases to work than her co-workers as reflected by her overtime hours; (i) Petitioner asserted she revealed her diabetic condition, which was controlled by taking medicine, and the problems she had with a child in her custody only for purposes of stating a reason for taking leave and that in the future, the only reason Petitioner would give for taking leave would be to state it was "personal." In conclusion, Petitioner's memorandum stated that she agreed to attend a stress class but requested a job transfer. On January 19, 1995, Petitioner wrote a memorandum to Respondent's personnel manager, Jeff Carr. She again responded to Ms. Bartsch's December 19, 1994, memorandum, requesting that it be removed from Petitioner's personnel file. On January 19, 1995, Mr. Crawford complained to Ms. Bartsch that he had 24 court cases and needed some relief. Ms. Bartsch sent Mr. Crawford's memorandum to the office staff asking everyone to help Mr. Crawford. Mr. Crawford was sick at the time with AIDS. On January 24, 1995, Ms. Bartsch wrote a memorandum to her staff. In the memorandum, Ms. Bartsch explained that Mr. Crawford would no longer just handle court cases. Instead, Mr. Crawford would carry a normal caseload and everyone would be responsible for his or her own court cases. There is no credible evidence that Ms. Bartsch treated Petitioner differently than Mr. Crawford in this regard. In fact, Ms. Bartsch seemed to agree that the staff had not treated Petitioner and Mr. Crawford fairly by stating as follows in her memorandum: "Would you want to do that . . . many court cases in a row: I think you were being somewhat unfair if you weren't willing to be a partner for awhile with either Cindy or Erwin. Anyway, it is too late now." In 1995, Petitioner was a member of Respondent's equal employment opportunity committee. In time, one of Petitioner's co-workers asked Petitioner to represent her in an employee grievance hearing. There is no credible evidence that the head of the committee told Petitioner she might be blackballed if she got involved in the grievance proceeding. During the hearing, Petitioner presented insufficient details about the alleged grievance proceeding to determine whether there were any repercussions. Sometime thereafter, Respondent's personnel manager and Ms. Bartsch pulled Petitioner's mileage reimbursement/travel vouchers for audit. Ms. Bartsch took the time to verify Petitioner's mileage claims, finding numerous errors and miscalculations. On May 23, 1995, Petitioner wrote Ms. Bartsch and Ms. Peirson a memorandum. The memorandum reviewed the issues discussed in a meeting that Ms. Bartsch and Ms. Peirson had with Petitioner concerning her travel vouchers from March 15, 1995, through May 7, 1995. The memorandum also outlines Petitioner's responses to each allegation that her travel vouchers needed to be corrected. Persuasive evidence indicates that Petitioner did not dispute the need to correct some of the vouchers. There is no competent evidence that Ms. Bartsch and Ms. Peirson singled Petitioner out from her white and/or male co-workers to audit her travel vouchers or that they did so for any retaliatory purpose. On June 20, 1995, Petitioner wrote a memorandum to Respondent's assistant district administrator, Don Dixon, regarding the removal of Ms. Bartsch's December 19, 1994, memorandum from Petitioner's personnel file. At this time, Petitioner advised that she had accepted a job with Respondent's office in Lake County, Florida. At some undetermined point in time, Ms. Bartsch accepted Petitioner's suggestion that the office go into the community schools to advise teachers about abuse and neglect of children. Ms. Bartsch then assigned a co-worker to perform this function. This action by Ms. Bartsch may have caused Petitioner to feel slighted, but is not evidence that Ms. Bartsch was deliberately harassing Petitioner. There is no evidence that Petitioner ever requested to be designated as the unit's spokesperson. On June 14, 1995, Petitioner resigned from Respondent's equal employment opportunity committee. Petitioner resigned from the committee because she felt she was being discriminated against. There is no credible evidence to indicate that any of Respondent's employees told Petitioner that she would be blackballed if she filed a civil rights action. Persuasive evidence indicates that Petitioner voluntarily resigned from the committee because she no longer had confidence in an organization that she believed was discriminating against her. On July 20, 1995, Ms. Bartsch wrote Petitioner a "Letter of Counsel." This letter advised Petitioner that her failure to properly claim mileage reimbursement in the future could result in discipline, including dismissal. The letter states that the current problem would be dealt with under a performance improvement plan (PIP). On or about July 21, 1995, Ms. Bartsch prepared a PIP for Petitioner. The plan was based on the following work deficiency: "Travel vouchers not being filled out properly not in a timely manner." The plan included an attachment, outlining the corrective action to be taken. The corrective action included the following statement: "These corrective actions may be modified to meet Lake County guidelines, if so desired by your new supervisor, Chuck Herkel." When Petitioner got the job in Lake City, Florida, a copy of the July 20, 1995, memorandum and the July 21, 1995, PIP was sent to Mr. Herkel. Petitioner's testimony that Ms. Bartsch's sent this information to Mr. Herkel in an effort to continue her alleged discrimination, harassment, or retaliation is not supported by competent evidence. Moreover, the sending of the information to Mr. Herkel necessarily occurred after July 21, 1995, the date that FCHR has identified as the last date that an alleged violation occurred. On July 28, 1995, Petitioner began working for Respondent in Lake City, Florida. On January 19, 1996, Mr. Herkel, her supervisor, made the following comments about Petitioner's job performance on a review and performance planning form covering the period of time from July 28, 1995, through January 19, 1996: Cindy transferred to Lake County from Marion County 07-28-95. Cindy is an experienced P.I. who has excellent knowledge of her program. Cindy believes in child protection and family preservation. Cindy has an excellent work ethic, is dependable, and believes in teamwork. Cindy is commended for her good work. At the time of the hearing, Petitioner continued to work for Respondent as a specialist, providing policy and guidance for Respondent's protective services and foster-care programs in Lake City, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter an order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 28th day of August, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2001. COPIES FURNISHED: Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cynthia Ausby 5 Hemlock Loop Lane Ocala, Florida 34472 Ralph McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158
The Issue The issue presented for decision herein is whether or not the Petitioner, Margie Ann Sims, was unlawfully terminated (by Respondent), Niagara Lockport Industries, Inc., due to her age in violation of the Florida Human Rights Act of 1977, Section 760.10, Florida Statutes (1983).
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings. Petitioner is forty eight (48) years old. She commenced work for Respondent, Niagara Wires, a subsidiary of Niagara Lockport Industries, Inc., located in Quincy, Florida during 1965 as an Accounts Payable Clerk. Petitioner was terminated on August 5, 1983, as a result of a reduction in staff and unsatisfactory work performance.1 During Petitioner's job tenure, she held various accounting and secretarial positions. Petitioner's initial duties were that of an accounting clerk and she later progressed to Assistant Chief Accountant. She later served as Corporate Bookkeeper and Secretary. Throughout her employment, her job duties were very broad and encompassed many areas of responsibility including overseeing accounts receivable, billings, payroll, bank statements, journal entries, wire transfers and financial statements. During 1975, Respondent's corporate office was moved to Quincy, Florida and Petitioner handled accounting and secretarial duties for the corporate office, dealt with banks making fund transfers, loan balancing and note arrangements; managed financial consolidation of Respondent's eight companies on a quarterly basis; maintained all pension plan records for Respondent's fourteen pension plans which included calculations of pension benefits, submission of wages and credited service to actuaries in preparation of various pension reports. Petitioner's other duties involved maintenance of company minute books, typing, submission and maintenance of files for all letters of credit issued; keeping patent and trademark files and assisted with telecopy, switchboard and TWX. (Petitioner's Exhibit 2). During 1976, Petitioner worked directly for Respondent's corporate secretary/treasurer, Robert Worrall. The assignment occurred as a result of a recommendation by Respondent's manufacturing manager, Don Anderson. Petitioner was considered the best of the three employees available to work for Worrall. Thereafter, several changes were made in Respondent's corporate makeup including the addition of the Lockport Felt Division in 1977. As a result, additional employees were placed in the accounting department and Petitioner's duties became more secretarial and clerical in nature than accounting. This situation remained unchanged until Petitioner's termination in 1983. Although Petitioner worked directly for Worrall, she was also expected to perform secretarial and clerical work for others in the accounting department, specifically including Harry Kurtz, Vice-President of Finance, Bruce Kennedy, Controller and Hank Burnett, Corporate Administrative Manager. While Petitioner's primary responsibility was to complete Worrall's work, she was also expected to perform work for other accountants and fiscal employees in the accounting department as she was the only trained employee in the accounting department available for typing duties. (TR 35, 106, 133-134, 117-119, 138, 142 and 153). Respondent has not maintained a formal policy concerning employee discipline or warnings for salaried employees, as Petitioner. (Testimony of Cairns and Worrall, TR 19, 46-47, 60 and 77). Commencing in 1980, Worrall became unhappy with Petitioner's work performance. This unhappiness took the form of counseling with Petitioner during year-end annual reviews and included the following deficiencies: "away from her work station when needed; too much time spent socializing with others; unwilling to work; pushing work back on Worrall; untimeliness and failing to timely complete work as assigned." (TR 85, 110, 116- 117). Like Worrall, other employees in the accounting department for whom Petitioner worked were dissatisfied with her performance during the years 1980-1983. Harry Kurtz, Vice- President of Finance, experienced problems with Petitioner's work quality including errors in typing and formatting, misspelled words and inaccurate numbers to the point where he did not want her (Petitioner) to perform his (Kurtz) work. He was thus forced to seek assistance from persons outside the accounting department, including Pat Simmons who replaced Petitioner, to perform his work. Kurtz related these problems to Worrall. (TR 128, 129-133, 131 and 136). Bruce Kennedy, Controller, experienced similar problems with Petitioner's work quality. He noted Petitioner frequently misspelled words and transposed numbers. Kennedy experienced problems concerning timeliness and the invalid excuses by Petitioner for failing to complete assigned work as scheduled. (TR 137-139). Based on Petitioner's poor work quality, Kennedy went outside the accounting department to get assistance in performing his clerical and secretarial duties. Kennedy informed Worrall of his dissatisfaction with Petitioner's work. Hank Burnett, Corporate Administrative Manager, also experienced problems with Petitioner's work quality in regards to accuracy and neatness. Burnett related an incident where Petitioner used so much "white-out" to make corrections that numbers on ledger sheets were not legible. Burnett also experienced problems with Petitioner in getting work returned timely. He also found it necessary to go outside the accounting_ department to solicit the assistance of Pat Simmons to perform his work. Burnett related to Worrall his dissatisfaction with Petitioner's performance. (TR 128, 150). Linda Jaudzimas is presently employed with Niagara Wire Weaving Employees Credit Union. She has held that position since approximately May of 1980. During the years 1978 through May of 1980, Jaudzimas was employed as an accounting clerk in the corporate accounting office for Niagara Lockport Industries. During that time period, she worked directly with Petitioner and Worrall. Jaudzimas described Petitioner and Worrall as having a very good work relationship and that Worrall depended upon Petitioner a lot. However, since May of 1980, Jaudzimas had only limited contact with Petitioner The typical degree of contact would be only to "pick up reports; I would get information from pensions for time reporting periods." (TR 54 and 58). Don Anderson is presently employed as the Manufacturing Manager for Respondent. Anderson has been in Respondent's employ since 1971. From 1971 through January 1, 1974, Anderson was Respondent's Chief Accountant. Anderson had no direct knowledge concerning Petitioner's work performance since January of 1974. Anderson corroborated Cairns and Worrall's testimony that Respondent had no formal policy concerning disciplinary action taken against salaried employees, as Petitioner. (TR 60). Respondent conducted informal evaluations of salaried employees, including Petitioner, at the end of each year in conjunction with salary increases. During Petitioner's 1981 work performance evaluation, Worrall discussed his concerns with Petitioner including the fact that she spent too much time talking to other people; that he always had to look for her and she pushed work back on him. Petitioner's time away from her work station and her negative attitude toward the company's insurance program were items of discussion. (TR 17; 84-88). An entire list of Worrall's concerns respecting Petitioner's job performance were placed in her personnel file during the 1981 annual performance review. (Respondent's Exhibit 1). Petitioner recalls Worrall using that list during their meetings. (TR 36). Petitioner's performance did not improve during the following year and Worrall expressed the same concerns to her during her annual work performance review during 1982. (TR 115-116). Petitioner received "good" salary increases during the late 70's however, due to her poor performance from 1980-1982, Worrall recommended that she receive only the minimum cost of living increases for the years 1981, 1982 and 1983. In mid 1983, Respondent made a decision to reorganize its corporate offices by moving the sales office of Niagara Lockport from Quincy to Starkeville, Mississippi and by making a change in the research and development department. Pat Simmons, age 41, was secretary for the vice-present of research and development. Worrall was familiar with Ms. Simmons and her work having seen it first hand. Additionally, she was highly recommended by her then supervisors. Finally, she had performed work considered to be "high quality" by other employees in the accounting department including Kurtz, Kennedy and Burnett. When Simmons became available due to the reorganization, Worrall decided to replace Petitioner with Simmons. Petitioner's job had become primarily secretarial and clerical in nature and Worrall desired a competent executive secretary to replace her. (TR 88 90, 92, 94, 121-122, 127). Petitioner was 45 years of age at the time of her termination. (Respondent's Exhibit 3). Petitioner's duties were assumed by Simmons (95 percent) and Elaine Hall (5 percent) who was retained since she- possessed requisite accounting skills. Hall was able to complete the cash report in two hours, a job that had taken Petitioner the better part of a day to perform. (TR 86). As a result of the reorganization, two other employees, Loretta Hood (mid 30's) and Virginia Jeffcoat (mid 50's) were terminated. Petitioner was terminated in August, 1983 for the reasons that her performance was not satisfactory and a qualified person (Simmons) had become available due to Respondent's corporate reorganization and staff reduction. This was told to Petitioner at the time of her termination. (Respondent's Exhibit 2; TR 68, 93). Subsequent to her termination, Petitioner requested that Worrall write her a letter of recommendation. Worrall complied, however, Petitioner was not pleased and asked him to write a second one giving him an example to follow (Respondent's Exhibit 7). Petitioner wanted a "good" letter of recommendation so that she could easily obtain another job. In writing the recommendation, Worrall followed his policy of not commenting on negatives but merely set out the type of work Petitioner performed. Petitioner was still unsatisfied with Worrall's second letter and she therefore asked the Respondent's President, Malcolm Cairns, to write a letter of recommendation for her. As with Worrall, Petitioner participated in the drafting of the letter for Cairns by providing him with an example. (TR 22, 23 and 70). Cairns did not include anything negative in the letter so that it would be easier for Petitioner to obtain another job.
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 finding that Petitioner was not terminated due to her age in violation of the Florida Human Rights Act of 1977, as amended. Section 760.10, Florida Statutes (1983) and that Petitioner's Petition for Relief be DISMISSED. DONE and ORDERED this 10th day of March, 1986, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1986. COPIES FURNISHED: Steven L. Seliger, Esquire 229 E. Washington Street Quincy, Florida 32351 Swift, Currie, NcGhee and Hiers, P.A., by Victor A. Cavanough 771 Spring Street, N.W. Post Office Box 54247 Atlanta, Georgia 30379-2401 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240/ Tallahassee, Florida 32303. Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
The Issue Did Respondent, State of Florida, Department of Professional Regulation, commit an unlawful employment practice by discriminating against Petitioner on the basis of race?
Findings Of Fact Petitioner is a 35-year-old Black male. Prior to December 1986, Petitioner was employed by Respondent in an OPS position in "Central Files". His work performance in Central Files was both superior and exemplary, and he was offered a State Career Service position as a Senior Clerk within Respondent's "Complaint Section". Upon accepting the Career Service position, Petitioner entered into a mandatory six months' probationary period. In the Senior Clerk position, Petitioner's primary duties were to answer the phone a specific 4-hour daily shift; to assist or act as backup for phone answering during Senior Clerk Terri Jones' (Black female) 4-hour daily phone shift; to prepare and distribute Class II complaint cases to Respondent's "Legal Section"; and to distribute mail and other materials as assigned by his immediate supervisor, Louise Bull (white female). On January 5, 1987, Petitioner took 4 hours unauthorized leave without pay for which he received a written reprimand on January 6, 1987. He had previously been orally reprimanded for the same practice. It was established by competent substantial evidence that Petitioner's immediate supervisor, Louise Bull, had had a number of absences without leave, some of which occurred before Petitioner's termination and some of which occurred after his termination, and that she also received at least one written reprimand for these absences. For some of her absences, Ms. Bull was required to reimburse money to the State, however it was not clear whether the reimbursement was because she was absent when she falsely claimed to be present or was standard reimbursement procedure when the leave actually taken is not covered by accrued leave time. Either way, Ms. Bull was not in a probationary status at any material time and, clearly, as Petitioner's supervisor, hers was not a substantially similar position to that of Petitioner. Petitioner and Cindy Dexter testified that many permanent employees in addition to Ms. Bull were playing fast and loose with tardiness and absenteeism, but their evidence is very indefinite and the race and gender of the employees accused was not established. Ms. Dexter's testimony was vague and not credible on this point. Their testimony on this subject was not confirmed by other credible witnesses nor was it ever established that any of the permanent employees accused by Petitioner held positions substantially similar to his. From almost the beginning of his probationary period, Petitioner had difficulty adjusting to his new position. He evidenced difficulty accepting supervision from Ms. Bull. This disrupted standard office practice. Over the probationary term, Ms. Bull orally counselled Petitioner approximately seven times concerning his lack of acceptance of her supervision as well as excessive tardiness and excessive personal phone usage. Diane Orcutt, the regular Complaint Office Supervisor and Ms. Bull's superior, described Petitioner as avoiding Louise Bull and coming directly to her about problems he perceived in the office operation. Petitioner and Terri Jones, his female job counterpart who is also Black, had an early but undefined job- related dispute, after which he sent her flowers to "make-up". On one occasion, after a loud and disruptive argument arose between Petitioner and Ms. Bull in the general office area, Evelyn McNeely, who was acting supervisor to them both during Ms. Orcutt's vacation, required Ms. Bull to prepare a memorandum clarifying Petitioner's job duties because, in Ms. McNeely's view, the Petitioner did not seem to understand his duties. This was done on June 17, 1987. This memorandum, headed "Performance Evaluation" from Ms. Bull to Petitioner also warned Petitioner that Ms. Bull would recommend extension of his probationary period because he was falling short on acceptable performance in several areas. Louise Bull prepared, delivered, and discussed with Petitioner her performance evaluation, indicating, based upon her personal observations, his failure to satisfactorily perform in the following areas: repeatedly tardy over the last several weeks; failure to properly handle routine telephone duties; failure to comply with their section's procedures for routing of case files; and continued failure to accept supervision under their section's chain of command. Ms. Bull admitted that she suffered emotional problems while Petitioner worked for her and apparently thereafter. She had crying jags and consulted a psychologist. She also received a prescription from some source for the tranquilizer valium. Ms. Bull denied that she and the psychologist ever identified a reason for her emotional state. Melinda Wagoner testified that Ms. Bull related to her that her emotional problems stemmed from living in a Black neighborhood and fighting with Black children when she was a child. The foregoing hearsay is admissible as an admission of a party (DPR) through its supervising agent (Louise Bull), but even if fully credible, this evidence would be insufficient to establish a nexus between Bull's behavior and the reason for Petitioner's eventual termination, in light of the record as a whole. Terri Jones, the permanent employee most substantially similar to Petitioner, was also a Senior Clerk. She is also Black. Her job duties were identical to those of Petitioner, except that they had primary responsibility for phone calls during different parts of each day. Ms. Jones had no supervisory problems of her own with Louise Bull. Ms. Jones asserted that Petitioner had excellent telephone manners but confirmed that Petitioner's regularity in answering the phone either on his shift or as her backup was often insufficient. The Complaint Section's phone was often placed on "hold" with no one waiting on the other end. Although anyone in the office could place a call on "hold" and any caller could hang up before an employee returned to the phone, the inference from all witnesses' testimony as a whole was that this "hold" procedure was being done excessively by Petitioner. Diane Orcutt, regular Complaint Office Supervisor, reviewed Petitioner's phone logs prior to evaluating him at the six months' point. The representative phone logs of the two substantially similar employees, Petitioner and Terri Jones, show that Petitioner logged only 34 calls in the same period that Ms. Jones logged 359. This vast discrepancy can be interpreted in a number of ways: either Petitioner was not answering the phone as directed, or he was not logging all calls as directed, or he was not maintaining the logs as directed. By any interpretation of this empirical data, Petitioner was not fulfilling a prime requirement of his job. At the time of his six months' evaluation, on June 22, 1987, Diane Orcutt made a joint decision with Louise Bull to extend Petitioner's six months probationary period by four months. Ms. Orcutt did this for a number of reasons: his early absences without leave, oral complaints from lower echelon employees that Petitioner would frequently neglect his telephone duties in one way or another, and the disruptive nature of his failure to accept Ms. Bull's supervision. In requiring the additional probation, Ms. Orcutt gave greater weight to the administrative/managerial friction and less weight to Petitioner's reprimanded early absences; however, with regard to the complaints of other employees, she testified that she felt sure Petitioner could do the work because of his past excellent performance on OPS and because of her personal observation but that he needed more time to actually do the job instead of engaging in uncooperative disputes with Ms. Bull. Additionally, Ms. Orcutt was giving Petitioner the benefit of any doubt by taking additional time to sort out whether the disruption problem arose from Ms. Bull or from Petitioner, because at that point, Ms. Bull had no problems supervising other Black or white employees; no oral complaints had been made by other employees against Ms. Bull; and oral complaints against Petitioner confirming Ms. Bull's unrecorded observations of Petitioner had been received personally by Ms. Orcutt. When presented with Orcutt's Mid-Cycle Appraisal and the 4 months' additional probation plan on June 22, 1987, Petitioner was hostile, refused to sign the appraisal, and another disruptive scene arose among Petitioner, Ms. Bull and Ms. Orcutt. Petitioner spent all of the workday of June 23, 1987 in "Personnel" complaining that his evaluation and the 4 months' additional probation was unjust. On two of the remaining successive days of that work week, Petitioner accomplished some work. On one of the remaining successive days in that week, he took his "Personal Leave Day". A weekend intervened, and on Monday, June 28, 1987, Diane Orcutt reassessed the situation, determined that Petitioner was not intending to cooperate, and terminated him, as had always been her option during his probationary period.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Human Relations Commission dismissing the complaint and petition for relief filed by Robert Baucham. DONE and ENTERED this 3rd day of November, 1989, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-0712 The following constitute specific rulings, pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (PFOF): Petitioner's Proposed Findings of Fact None filed Respondent's Proposed Findings of Fact Respondent's proposals have been accepted in substance and modified to conform to the record. Where they have not been accepted, they are rejected as misleading as stated or not supported by the record as stated. COPIES FURNISHED: Robert Baucham Hearings 1021 Idlewild Drive, P-161 Tallahassee, FL 32301 E. Harper Field Deputy General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Kenneth D. Easley, General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Donald A. Griffin, Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570
The Issue The issue to be resolved in this proceeding is whether Petitioner was the subject of unlawful employment practices by her employer because of her race and age.
Findings Of Fact Petitioner is a 28-year-old African-American female. Respondent operates one of the State’s largest psychiatric hospitals. In April 2004, Respondent had at least 3 openings for a full-time Secretary Specialist at different units of the hospital. In April 2004, Petitioner along with two other female applicants were contacted and asked if they were interested in being considered for three Secretary Specialist positions with Respondent. The positions’ duties involved, among other things, typing medical records and compiling reports on the units’ patients and recording, transcribing and disseminating all staff meetings held on these units. Petitioner and the two other women indicated that they would like to be considered for the positions. One of the women who applied for the positions was an older, white female who had worked at the hospital for at least 10 years. No evidence demonstrated the actual age of this older woman or how much older she was than Petitioner. The evidence also did not demonstrate if her work history extended beyond 10 years outside the hospital. The other applicant, like Petitioner, was a beginning employee at the hospital. Other than the fact she met the minimum qualifications for the positions, the evidence did not establish her race, age, or work experience. Petitioner’s application was not introduced into evidence. At the time, Petitioner had about 6 years of work experience as an office manager and /or an executive secretary. The experience does not appear to be in the medical or psychiatric field. As can be seen from a review of the evidence and pleadings in this case, Petitioner’s writing skills are very poor and are replete with poor grammar and incorrect word usage to the point of being almost incomprehensible. Therefore, the quality of her executive secretary skills are questionable. As part of her application packet, Petitioner submitted several educational/professional credentials to Respondent. The credentials consisted of certificates in the areas of Office Supervision II and III and Post Secondary Office Supervision and Administration. Petitioner claims that these credentials entitled her to a higher salary than she would have received as a beginning employee or at the least allowed her to negotiate for a higher salary. However, no evidence was offered that supported Petitioner’s contention that such credentials entitled her to a higher salary or that she lost her opportunity to negotiate for a higher salary. The fact that the position may have been advertised as “open-competitive” does not mean that an applicant is entitled to or will receive a higher salary offer. The classification only enables an employer or employee to negotiate a salary based on qualifications. The employer and employee are not required to negotiate and either may elect not to negotiate. Indeed, negotiation may be non-existent based on budget considerations and the availability of other applicants willing to work for less pay. At some point, an interview was scheduled for Petitioner by Deborah Joyce. In setting up the interview, Ms. Joyce advised Petitioner that the starting salary for the position was $766.52 every two weeks. Petitioner indicated that she wished to be interviewed for the positions. All three womens’ application packets were reviewed by a hiring committee. All three women were offered employment as Secretary Specialists at different units. Petitioner and the other beginning applicant were offered employment at $766.52 every 2 weeks. The older, white woman was allegedly offered employment at a higher salary than the two beginning employees. However, there was no evidence that demonstrated how much the older woman’s salary was, whether it differed from Petitioner’s and its relationship to the salary she had been receiving in her then current position at the hospital. Petitioner did not introduce into evidence the pay scale for the position to which she applied. Some evidence suggests that the offered salary was the beginning and lowest salary for that position. Petitioner testified that the offered salary was at the low-end of the scale for the position that she applied for. Her testimony in that regard is accepted. Petitioner was informed by telephone of the Respondent’s offer of employment to work on the unit known as Cypress Village. The telephone call was made by Lela Parker- Clark, a black female and the medical unit’s specialist (MUS). The unit’s treatment and rehabilitation director (UTRD) was Sateria Gunter, a black female. Ms. Gunter and Ms. Parker-Clark would be Petitioner’s supervisors. The evidence indicated that both women had been working on the unit for several years and apparently had done various routines and reports in the same manner for some time. No evidence was offered as to the actual age of Ms. Gunter or Ms. Parker-Clark, other than they were both older than Petitioner and had possibly worked their way up to their administrative positions from direct care staff. Because the offered salary was not what Petitioner desired, she inquired further of Ms. Parker-Clark about the salary. Petitioner learned that her educational credentials had been lost and possibly had not been reviewed by the committee. Ms. Gunter indicated that she would have the committee review its offer if Petitioner would fax her the documents. Petitioner faxed the documents to a fax machine at the hospital. It is unclear whether the documents were received and reviewed by the committee or whether the committee was made aware of Petitioner’s additional educational documents. The evidence conflicts on this point. At the time of the hearing, neither the original nor faxed documents were in Petitioner’s personnel file. Indeed, only copies of later-supplied documents that were specially marked by Petitioner are in Petitioner’s personnel file. In any event, the salary offer was not changed. No one from the committee testified at the hearing regarding the documents reviewed by the committee or otherwise made known to the committee. No evidence was offered that demonstrated that such added credentials would have made a difference in the salary offered to Petitioner. Petitioner offered no evidence that Respondent elected to negotiate any salaries with any of the people it hired as Secretary Specialists. The fact that a white, 10-year employee of Respondent may have been offered a higher salary than Petitioner does not demonstrate that the salary was negotiated or that Respondent otherwise discriminated against Petitioner based on her race or age since the employee in question was already an employee with more years of experience at the hospital. Without such evidence, it is impossible to determine whether the absence of the documents was deliberate or unintentional, motivated by Petitioner’s race or age or even caused an adverse impact in the conditions or terms of Petitioner’s employment. Ms. Gunter informed Petitioner that the position was still available at the original salary offer of $766.52. Instead of attempting to negotiate further by declining the offer, Petitioner accepted employment and began working at the unit on May 21, 2004. Petitioner accepted the offer because she needed the income. There was no evidence that demonstrated Petitioner, who is a competent adult, was somehow coerced into her decision to accept the offer by Respondent. In the beginning, the relationship between Ms. Gunter, Ms. Parker-Clark and Petitioner was reasonably good. However, once Petitioner began to question the manner in which Ms. Parker-Clark did things the relationship deteriorated. Ms. Parker-Clark became abrasive and, Petitioner claims, more strict regarding Petitioner’s leave than with co-workers. She would belittle Petitioner in front of co-workers. Ms. Parker- Clark had the security desk record when Petitioner arrived at work. Based on the recorded time, both women claimed Petitioner was falsifying her timesheet and forced her to change her claimed time on several occasions. Many of the accusations arose from the fact that Petitioner was often late because of difficulties with her daughter, who had learning disabilities. Additionally, Petitioner sometimes arrived early and sometimes stayed late; that, in Petitioner’s view, made up her time. However, per hospital policy, such early arrival or late stay was not credited unless pre-approved by Petitioner’s supervisor. Outside of Petitioner’s claims of forced time-sheet changes based on time she had to take to deal with her daughter’s disability or disallowed overtime, etc., there was no evidence that other similarly-situated employees were treated differently than Petitioner. In fact, the only testimony regarding Ms. Parker-Clark’s and Ms. Gunter’s treatment of other employees was that there were some employees they treated well and some employees they did not treat well and that there may have been ongoing “management problems” on the unit. There was no evidence that such treatment was based on the race or age of the individual employee. Petitioner assumes and asserts that she was entitled to family medical leave, credit for overtime for staying late or more flexible hours. However, she offers no proof that she was entitled to such. Without such evidence Petitioner cannot show that she has suffered an adverse impact in the terms or conditions of her employment. Petitioner also claims she received unwarranted disciplinary actions. Again there was no evidence offered that such discipline was unwarranted. Indeed Petitioner admits that actions she received written reprimands for occurred. Around September 28, 2004, relationships between Ms. Parker-Clark and Petitioner came to a head when Petitioner came to the conclusion that Ms. Parker-Clark had never placed her educational credentials in her personnel file. Petitioner based this conclusion on the fact that, while training herself to use the new computerized personnel system, Peoples First, adopted and, at the time, being implemented, by the State, she discovered that her educational credentials were not listed on the system. Petitioner was training herself because Ms. Parker– Clark refused to train her. Petitioner contacted the personnel office for the hospital and was told that her file was not in their office because it had been sent to Peoples First to be scanned into the system. Unfortunately, the Peoples First system is known for glitches and errors in its records. Petitioner met with Ms. Gunter and Ms. Parker-Clark in a very heated meeting to discuss the lack of information on the Peoples First system and her feelings that Ms. Parker-Clark had intentionally lost the educational documents. Petitioner also voiced her opinion that she was entitled to an increased salary based on her credentials. Petitioner was not satisfied with the response from Ms. Gunter in the meeting. Around October 5, 2004, Petitioner met with Ennis Harris, the assistant administrator of the hospital, over her “issues” with Ms. Parker-Clark and what she should do. Mr. Harris suggested she apply for a transfer to another unit. On October 7, 2004, Petitioner, applied for a transfer to the position of Internal Senior Clerk on another unit. He also indicated that he would approve flex-time for her if Petitioner requested it and that she might be entitled to leave under the Family Medical Leave Act. Around October 13, 2004, Petitioner requested flexible working hours. As promised, Mr. Ennis approved her schedule. At about the same time, Petitioner requested transfer to a Senior Clerk position on another unit. On October 18, 2004, Petitioner requested that her salary be increased by 16 1/2 percent and that she receive such increased pay from the beginning of her employment. There was no evidence that demonstrated the basis for a 16 1/2 percent increase or that such an increase was warranted. On October 21, 2004, the increase was denied by Ms. Gunter. On October 27, 2004, Petitioner grieved Ms. Gunter’s decision. Personnel policy requires that a grievance be filed within 14 days of the act that caused the grievance. The human resources manager returned the grievance without action because 14 days had passed since Petitioner began employment on May 21, 2004, and Petitioner had the opportunity to decline the offered salary if she so desired. On November 1, 2004, Petitioner’s request for transfer was declined because of personnel rules based on the Union contract with the State that prevented transfer of a probationary employee to a higher position. On November 10, 2004, Petitioner appealed the return of her grievance and appealed or grieved the denial of her requests for salary increase and transfer to the hospital administration. The denial was upheld. During this review, Ms. Gunter claimed that Petitioner’s educational/professional certificates had been reviewed by the committee and claimed that the documents in Petitioner’s file were the actual documents reviewed and considered. However, the documents were the certificates that had been specially marked by Petitioner and later placed in her file. Ms. Gunter was unaware of the special demarcation of the documents. Claims of dishonesty were now mutual. Eventually, Petitioner did not wish to deal with Ms. Parker-Clark, unless her job duties required such. Petitioner complained to various administrators of the facility often about her treatment on the unit. Mr. Harris told her that the salary issue was dead and all options to have her salary increased had been explored. On November 22, 2004, Petitioner submitted a letter of resignation at a future date not expected to go past December 13, 2004. In that letter, Petitioner requested overtime hours with pay to complete her job assignments. The same date, Ms. Gunter denied the requested overtime and requested Petitioner to supply a date certain for her resignation. On November 23, 2004, she filed complaints that Ms. Gunter and Ms. Parker-Clark discriminated against her based on her race and age with the hospital’s equal employment office and similar complaints at PERC. On December 7, 2004, Petitioner forwarded an e-mail to the hospital attorney that stated she was leaving early and did not know when she would be back because she was tired of the harassment she was receiving on the unit. Sometime after that e-mail, Petitioner met with the hospital attorney. The hospital did not want to lose Petitioner as an employee and in an effort to help Petitioner, on December 9, 2004, the administration transferred Petitioner to another unit where she has performed well. Even though Petitioner had been requesting a transfer, it is this transfer that Petitioner alleged as a discriminatory action by the hospital. On this point Petitioner’s claim of discrimination has no merit and was clearly not demonstrated by the evidence. Petitioner has also been approved for a promotion at a higher salary, but the promotion has not yet taken effect. The promotion has been on hold because the hospital administrator retired and his replacement had recently taken over prior to the hearing. No evidence demonstrated that the delay was due to any unlawful employment practice. There was no evidence offered regarding a paycheck discrepancy around December 10, 2004. Ultimately, Petitioner’s case rests on assumption and speculation about others’ intentions and terms of employment that she claims she was entitled to. The problem is that there was no or insufficient evidence offered to demonstrate such unlawful intentions or entitlement. Indeed, assuming that Petitioner’s treatment was unjustified, it is more likely that Ms. Gunter and Ms. Parker-Clark engaged in such treatment because Petitioner was a new employee who questioned the old way of doing things and did not hesitate to go around them when she felt a need to do so. Assumptions and speculations are not enough. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of September, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 16th day of September, 2005. COPIES FURNISHED: Viritti Jackson 2173 West 15th Street Jacksonville, Florida 32209 Scott D. Leemis, Esquire Northeast Florida State Hospital 7487 South State Road 121 Macclenny, Florida 32063 Carolyn Dudley, Assistant Staff Director Department of Children and Family Services Building 6, Room 123 1317 Winewood Boulevard Tallahassee, Florida 3239-9070 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, American Support, discriminated against Petitioner, Linda Dodge, in violation of the Florida Civil Rights Act of 1992 (the Act) sections 760.01–760.11 and 509.092, Florida Statutes, based upon her sex or in retaliation for participation in a protected activity.1/
Findings Of Fact American Support is a third-party telemarketing contractor for providers of cable and satellite service, with an office located in Daytona Beach, Florida. American Support is an employer within the meaning of the Act and Title VII of the Civil Rights Act of 1964, as amended. Petitioner is a 61-year-old female who was hired on August 19, 2008, as a telemarketer for Evergreen, a predecessor company to American Support. Petitioner worked in telemarketing for approximately one year, was laid off by Evergreen, but was shortly thereafter reemployed by Evergreen as a receptionist/administrative assistant. Between October 2011 and December 2011, Petitioner solely performed receptionist duties. Petitioner was replaced as company receptionist by Debora Jenkins, whom Petitioner helped train. Ms. Jenkins was hired on a full-time temporary basis as the company was transitioning to new ownership. In December 2011, Petitioner was promoted to Human Resources Assistant by Nancy Cantero, Human Resources Director for American Support beginning in November 2011. Petitioner’s duties were to initiate and process criminal background checks and credit checks on applicants, validate I-9 information received for newly hired employees, create personnel files for new employees, and manage employee personnel files. Employee personnel files contain personal identifying information including dates of birth, social security numbers, driver’s licenses, and the results of criminal background and credit checks. Both parties agree that keeping applicants’ and employees’ personal information protected is a high priority for the Human Resources Department. Ms. Cantero left American Support in February 2012 and was replaced by Steven Schaible, first as a Human Resources Generalist under contract, then as corporate Human Resources Manager in March 2012. In his capacity as Manager, Mr. Schaible supervised Petitioner and two Human Resources Recruiters: Warren Hernandez and Elaine Zoe. Ms. Zoe was a virtual recruiter operating from her home in Phoenix, Arizona. Petitioner described Mr. Schaible as very friendly and outgoing when he first became Human Resources Manager. In mid-April 2012, Mr. Schaible hired a third recruiter, Anthony Sarelli, at a rate of $17 per hour. No evidence was introduced to establish the hourly rate of either Mr. Hernandez or Ms. Zoe, but Mr. Hernandez earned less than $17 per hour. Petitioner earned $13.50 per hour as Human Resources Assistant. On Thursday, April 19, 2012, Ms. Jenkins, the temporary receptionist, gave her notice and stated that she would be starting a new job Monday, April 23, 2012. Ms. Jenkins’ last day on the job was Friday, April 20, 2012. Mr. Schaible, together with Mary Celle, Vice President of Operations, made a decision to eliminate the position of receptionist. Mr. Schaible had been unable to keep Ms. Jenkins busy full-time with receptionist duties such as answering and routing phone calls, accepting parcel deliveries, handing out job applications, and directing individuals to appropriate offices. Mr. Schaible determined Petitioner was competent to perform these duties, in light of her previous service as company receptionist. Petitioner had the day off on Friday, April 20, 2012. When she returned to work on Monday, April 23, 2012, Mr. Schaible informed Petitioner that she would take over the receptionist duties while continuing to serve as Human Resources Assistant. Petitioner was physically moved from her desk to the receptionist desk at the front of the building.2/ Neither Petitioner’s title nor her salary changed when she was moved to the receptionist desk. Mr. Schaible made efforts to reduce Petitioner’s duties as Human Resources Assistant, reassigning responsibility of managing Kahuna, a software program through which new telemarketers were assigned log-in and password information, to a payroll employee, Maryanna Hilton. Additionally, Mr. Schaible instructed Petitioner to discontinue sending personal faxes for other employees. The company had taken some steps to streamline the receptionist function to make it more efficient and less time- consuming. For example, the company moved from paper applications to an online application system. The receptionist was to direct persons inquiring about job applications to computer terminals located at the building entrance in front of the receptionist desk. Similarly, the company telephone system was changed from a switchboard to automatic routing of calls to direct extensions by department. Petitioner was instructed to continue her regular Human Resources duties, but to place personnel files in a locked Human Resources file room located ten feet from the receptionist desk when she was away from her desk. On April 24, 2012, Mr. Schaible arrived at work early and noticed a stack of employee personnel files on the receptionist desk. Petitioner was not at the desk. Mr. Schaible concluded that the files had remained on the desk overnight. The files contained copies of social security cards, driver’s licenses, and the results of criminal background checks and credit checks for newly hired employees. Mr. Schaible secured the files and addressed Petitioner about the issue later that day. Mr. Schaible stressed with Petitioner the importance of keeping personnel files secure, and offered to get her a rolling file cabinet. The next day, April 25, 2012, Petitioner sent Mr. Schaible the following e-mail: “I apologize for the files when I left . . . it won’t happen again.” The following day, April 26, 2012, Mr. Schaible found a personnel file containing personal identifying information on Petitioner’s desk. Mr. Schaible removed the file and placed it in the locked file room. Later that same day, Petitioner sent the following e-mail to Mr. Schaible: “Will make sure forms are upside down on my desk before I take a break . . . my bad.” Mr. Schaible spoke to Petitioner that same day and explained that turning files upside down on the desk in her absence was not sufficient. He explained that personnel files must be secured in the locked file room when she was not at her desk. On Monday, April 30, 2012, Petitioner was on vacation, and Mr. Schaible sat at the front desk for at least some part of the day.3/ He discovered in one of the desk drawers over 50 completed W-4 forms for current employees. Mr. Schaible discussed with Ms. Celle the need to initiate the company’s progressive discipline policy and give Petitioner a verbal warning.4/ Mr. Schaible planned to meet with Petitioner late in the afternoon on May 1, 2012, and deliver the verbal warning. Petitioner was back in the office on May 1, 2012. While Petitioner was on a break and Ms. Hilton was manning the receptionist desk for Petitioner, Mr. Schaible discovered six personnel files on the desk. Mr. Schaible removed the files and decided to modify the verbal warning to a written warning, in essence moving to the second step of the company’s progressive discipline policy. Mr. Schaible did not have a meeting with Petitioner on May 1, 2012, as planned. On May 2, 2012, Mr. Schaible planned to meet with Petitioner at 3:00 p.m. to present her with the written warning and discuss the confidentiality issues. He requested that Carrie Santana, Manager of Customer Care and Quality, attend the meeting as well. At 3:00 p.m., Mr. Schaible asked Petitioner to come to his office. She was busily working in the Kahuna program, adding two new employees at the request of a manager in the Jacksonville office. Petitioner requested Mr. Schaible to wait until she completed the log-in and password information for the new employees. Mr. Schaible became angry, told her that task would have to wait, and ordered her into his office immediately. Petitioner accompanied Mr. Schaible to his office, where Ms. Santana was waiting. Mr. Schaible confronted Petitioner with the W-4 forms he had found in the receptionist desk on April 30, 2012, as evidence of her failure to follow his directions to secure personal information of company employees. Before Mr. Schaible brought up the six personnel files he had removed from the desk the previous day, Petitioner stated, “I quit,” stood up and left Mr. Schaible’s office, then exited the building. Petitioner denies that she quit her job on May 2, 2012, instead testifying that she stated, “I quit this,” meaning she quit Mr. Schaible’s treatment toward her. However, Mr. Schaible’s testimony that Petitioner stated, “I quit” on May 2, 2012, was corroborated by Petitioner’s own e-mail dated May 3, 2012, to company President Matthew Zemon, as well as Ms. Santana’s written memorandum dated May 3, 2012, in which she memorialized the events of May 2, 2012. The evidence conflicted as to whether Petitioner returned to the office on May 2, 2012, following the disciplinary meeting. Mr. Schaible testified he did not see Petitioner after the meeting that day or the next day, May 3, 2012. Petitioner testified that she returned to the building within 30 minutes, stating first that she went into Mr. Schaible’s office to complain about his treatment of her, but later testifying that his office door was closed, so she did not go in to see him. Mr. Schaible’s testimony on this issue is credible and accepted by the undersigned. Mr. Schaible e-mailed Ms. Celle following the disciplinary meeting on May 2, 2012, informing Ms. Celle that Petitioner had resigned. Mr. Schaible then completed a Record of Termination for Petitioner showing a separation date of May 2, 2012. The evidence showed that American Support did not accept Petitioner’s resignation. In response to Petitioner’s email of May 3, 2012, Mr. Zemon e-mailed Mr. Schaible and asked him to contact Petitioner and offer her a position in inbound/outbound sales at the high end of the pay range. Mr. Schaible did so, but Petitioner did not accept the offer. Petitioner clearly considered her assignment to the receptionist desk to be demeaning. She was subjected to comments from other employees suggesting she had been demoted because she could not perform Human Resources duties. She felt that the Human Resources Assistant did not belong at the front desk. Petitioner was overwhelmed with performing Human Resources duties while assisting job applicants at the computers, answering telephone calls that were not automatically routed, accepting delivered parcels, and dealing with the myriad inquiries typically made of the receptionist at any business. Petitioner complained that it was impossible to secure applicants’ and employees’ personal information with other employees passing by the front desk on their way in and out of the building. She noted that running back and forth to the Human Resources file room every time she was required to get up from the desk -- even though it was only ten feet away -- rendered her work inefficient, if not impossible. In support of her argument that she was discriminated against based on her sex, Petitioner alleged that Mr. Schaible hired a second male recruiter out of a mixed pool of applicants, that Mr. Schaible made inappropriate comments about some applicants, and that he hired a male recruiter at a rate of $17 per hour -– higher than other Human Resources employees. Petitioner submitted no evidence to establish what comments were made about any applicant for the position of Human Resources recruiter. As to hourly rates of pay, Petitioner testified that the new recruiter was paid at a higher rate than Mr. Hernandez. Further, Petitioner did not produce any evidence as to the rates of pay for either Ms. Zoe or Mr. Hernandez. Petitioner also alleged that following her move to the receptionist desk on April 23, 2012, Mr. Schaible instructed her not to take breaks with Mr. Hernandez, not to check her work e- mails from home, and excluded her from meetings with other Human Resources employees. However, Petitioner was unable to testify with certainty that other employees were allowed to continue checking e-mails from home. Ms. Zoe, the female virtual recruiter on the team, continued to participate in Human Resources meetings. Petitioner likewise complained that she was denied a raise while Mr. Hernandez received one. On April 19, 2012, in response to Mr. Schaible’s request, Petitioner submitted a self- evaluation for Mr. Schaible’s consideration. Petitioner testified that Mr. Hernandez told her a week later that he received a raise. Petitioner then asked Mr. Schaible about the time period for a decision on her raise; Mr. Schaible responded, according to Petitioner, “Not sure about it yet.[5/]” Petitioner’s hearsay statement alone is insufficient to support a finding that Mr. Hernandez received a raise. No evidence was introduced as to the status of other employees’ evaluations or raises. Petitioner’s most-repeated claim is that Mr. Schaible treated her unprofessionally by speaking to her sharply in front of other employees, yelling when he ordered her into his office on May 2, 2012, and “slamming” the W-4 files on the desk during the disciplinary meeting. Petitioner felt his treatment of her was demeaning, harassing, and embarrassing. Petitioner presented no evidence, however, that Mr. Schaible’s treatment of her was related in any way to her status as a female. In fact, when Mr. Schaible hired a replacement Human Resources Assistant, he hired another female. Petitioner alleged that Mr. Schaible acted in retaliation, but could not articulate any event for which the retaliation was lodged. When questioned by the undersigned as to her retaliation claim, Petitioner testified, It just didn’t seem like the right thing for an office atmosphere, I should say, or speak to an employee in such a manner. So it’s just his mannerism and his attitude toward me that made me feel like it was a retaliation [sic] for something, and I couldn’t figure out what it was.[6/] Petitioner may very well have been put in an impossible work situation, treated unfairly, or forced to resign. However, there is no evidence that her treatment was related in any way to her status as a female. Petitioner did admit to improperly handling employee personnel files and applicant files on at least two occasions. She denies that leaving the six files on the desk when Ms. Hilton was covering for her break was improper because Ms. Hilton worked in the payroll department and had access to employee personal information. As to the W-4 forms in her desk, Petitioner admitted that even if the forms were left in the desk by Ms. Jenkins, Petitioner was ultimately responsible for securing those documents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 6th day of June, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 6th day of June, 2013.
Findings Of Fact Respondent, Duval News Management Company, d/b/a Newsouth Distributors, has its main office in Jacksonville, Florida. Respondent has been in the wholesale magazine, book and news distribution business in Jacksonville for the past 80 years. The Ocala, Florida branch where Petitioner was employed has been in operation since approximately 1974. Respondent employed 15 or more employees at all times pertinent to this proceeding. Christine Rios is the Petitioner. She was hired on September 20, 1974 in the book return department of Respondent's Ocala operation. In 1977, Petitioner was promoted from that position to an office job as accounts receivable clerk in the Ocala office. As the result of an automobile accident on October 14, 1992, Petitioner suffered a dislocated shoulder, cracked ribs and a cervical sprain. She returned to work part-time on December 17, 1992. Petitioner resumed full-time work duties on February 18, 1993, subject to the restriction that she not lift over 20 pounds. Her duties as accounts receivable clerk did not require lifting weights greater than 20 pounds. On April 14, 1993, Gil Brechtel, President of Newsouth Distributors, met with all employees of the Ocala branch that worked inside the facility. Excluded from the meeting were route salesmen. At the meeting, Brechtel announced that non-supervisory employee jobs within the facility were to be eliminated. Each employee, inclusive of Petitioner, was given the opportunity to transfer to the Jacksonville office or, in lieu of transfer, accept severance pay and other benefits. Each employee was given a letter confirming this announced reduction in the work force. Subsequently, all employees who worked inside the facility, except the office manager, were laid off at various times between May 1, 1993 and May of 1994. Petitioner was laid off on September 27, 1993, at which time she was given a termination letter with an attached summary of benefits and a severance pay check. Petitioner's check was in the total gross sum of $5,722.34 minus deductions for a net sum of $3,980.93. At the time of her layoff, Petitioner was performing essential functions of her job without any accommodations by Respondent. After the announced reduction in work force, Respondent employed one part-time employee to handle warehouse duties requiring lifting up to 60 pounds plus some clerical duties that were formerly performed by Petitioner. Although she had stated to others that she needed to work full-time, Petitioner asked Ron Nichols, the Ocala branch manager, if she could be considered for the position. Nichols told her that she could be considered if the lifting restrictions imposed by her physician were removed. No further inquiry was made of Nichols by Petitioner and she never attempted to explain at any time to Nichols how she might be able to perform the job with reasonable accommodation. Several different employees at different times filled the part-time receiver/stocker job until the consolidation and reduction in work force had been fully carried out. At that time, the office manager assumed the duties of receiver/stocker and some of the clerical functions formerly performed by the accounts receivable clerks, although the bulk of account receivable clerk tasks were transferred to the Jacksonville office. No one was hired to replace Petitioner following her termination on September 27, 1993. No new accounts receivable clerks were employed in the Ocala branch following Petitioner's termination. As a result of the reduction in work force, 18 employees were laid off. The only person currently performing any warehouse duties or office clerical work at the Ocala branch is the office manager, MaeDean Crabtree. At the time of Petitioner's employment, Respondent had in effect an employee handbook containing a policy prohibiting discrimination in employment on the basis of handicap. The same handbook also provides a complaint resolution procedure. If an employee has a complaint, the employee is directed to contact the supervisor or manager to discuss the matter. At no time prior to her termination or filing of her charge of discrimination did Petitioner contact her supervisor, Crabtree, or the manager, Nichols, with any allegations of job discrimination or failure to provide reasonable accommodation. At the final hearing, Respondent's stated non-discriminatory reason for the elimination of Petitioner's position, consolidation of operations with a resultant reduction in work force, was not disputed or negated by Petitioner. Petitioner's contention was that she should have been allowed to work part-time in the receiver/stocker position and was not given reasonable accommodation by Respondent in that regard. Petitioner provided no evidence demonstrating that she requested the position subject to reasonable accommodation. Petitioner failed to demonstrate at the hearing that she could perform the duties of the part-time position which required the ability to lift up to 60 pounds. Currently, Petitioner is employed with a temporary job agency performing office/clerical work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the Petition For Relief. DONE and ENTERED in Tallahassee, Florida, this 19th day of April, 1995. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-4. Adopted in substance, not verbatim. 5.-6. Subordinate to HO findings. 7. Adopted by reference. 8.-9. Rejected, weight of the evidence. 10. Rejected, relevance. Respondent's Proposed Findings 1.-10. Adopted in substance, not verbatim. COPIES FURNISHED: Michael B. Staley James P. Tarquin Attorneys At Law 2045 Northeast Second St Ocala, FL 33470 Allan P. Clark Attorney At Law 3306 Independent Square Jacksonville, FL 32202 Sharon Moultry Clerk Commission on Human Relations 325 John Knox Rd, Bldg. F, Ste. 240 Tallahassee FL 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, Fl 32303-4149
The Issue Whether Petitioner was subject to an unlawful employment practice by Respondent, Pacifica Senior Living Woodmont, on account of Petitioner’s age or race, in violation of section 760.10, Florida Statutes.
Findings Of Fact Petitioner is a 41-year-old African-American female who was at all times relevant hereto an employee of Pacifica Senior Living Woodmont. Petitioner was 40 years old at the time the alleged discriminatory act occurred. Respondent, Pacifica Senior Living Woodmont (Respondent or Woodmont), is a 98-bed assisted living facility located in Tallahassee, Florida. Petitioner was employed by Woodmont from June 22, 1996, until February 28, 2014, when her position as Interim Weekday Receptionist was eliminated. By all accounts, Petitioner was a dedicated, reliable, loyal, and hard-working employee. Petitioner was recognized as Employee of the Month in August 2004, and January 2006. Petitioner began her employment with Woodmont as a Dietary Server in the Dining Services Department. At various times during her employment, Petitioner also worked PRN (i.e., “as needed”) as the front-desk receptionist. The “as needed” basis brought Petitioner in to work reception occasionally in the evenings and on weekends. Other employees who worked reception PRN included Pamela Strange, a 48-year-old African-American female, and Barbara Youngblood, a 58-year-old white female. In June or July 2013, Woodmont initiated a significant renovation of the facility, adding a memory-care wing, two additional dining rooms, and a new security system. The renovations were completed approximately one year later. In October 2013, Woodmont’s full-time weekday receptionist, Allison Clark, suffered a severe physical injury and was on medical leave through late December 2013. During Ms. Clark’s absence, Petitioner, Ms. Strange, and Ms. Youngblood alternately performed the weekday, as well as weekend and evening, receptionist duties. Ms. Clark briefly returned to Woodmont in December 2013. Ms. Clark was terminated effective January 30, 2014. Emily Bearden was the Business Office Coordinator for Woodmont from January 2013 through May 2015. Ms. Bearden’s duties included accounts payable and receivable, payroll, and onsite Human Resources, as well as managing the front-desk team. On January 30, 2014, the date Ms. Clark was terminated, Ms. Bearden offered Petitioner the position of Interim Weekday Receptionist. Petitioner accepted the position. On January 30, 2014, Petitioner was removed from the Dietary schedule with Dining Services and began as Interim Weekday Receptionist. Her regular work hours were from 8:00 a.m. to 4:30 p.m. During her term as Interim Weekday Receptionist, Petitioner occasionally worked shifts for Dining Services. Those shifts were taken prior to 8:00 a.m. and after 4:30 p.m. Ms. Bearden reclassified the weekday receptionist position to that of Receptionist/HR marketing assistant. Ms. Bearden explained to Petitioner the duties of the new position, which would include assisting the marketer on development of brochures and handouts, making time-clock adjustments for employees who missed clocking in or out, and other duties with various departments. The position would require basic knowledge of the Excel spreadsheet program and use of Outlook for email with other departments. Petitioner did not immediately dismiss the idea of moving into the proposed position, but expressed concerns with the computer skills which would be required. Ms. Bearden offered to personally provide some training to Petitioner, and indicated that Woodmont could provide additional training through a third party. When Woodmont advertised the position of Receptionist/HR marketing assistant, Petitioner did not apply. In March 2014, Woodmont hired Laurie Love, a 45-year-old white female, as Receptionist/HR marketing assistant. Upon completion of the facility renovations, Woodmont made budget adjustments in order to staff the new memory care wing. Woodmont eliminated a full-time dishwasher position in Dining Services, reduced the full-time Activities Director position to part time, and eliminated the part-time evening receptionist position. The facility renovations included a new security feature for the front door, allowing after-hours’ visitors (i.e., between 5:00 p.m. and 7:30 p.m.) to be “buzzed in.” This feature eliminated the need for the part-time evening receptionist at Woodmont. On February 6, 2014, Ms. Bearden met with Petitioner regarding options for continued employment with Woodmont following conclusion of her stint as Interim Weekday Receptionist, and elimination of the part-time evening receptionist position. Ms. Bearden offered Petitioner a position in housekeeping, as well as a position transporting residents to and from medical appointments in the facility vehicle. Ms. Bearden also informed Petitioner that Dining Services was hiring to fill positions for the two new dining rooms. Petitioner responded that she was only interested in evening reception. Joyce Latimer is an employee of Senior Management Advisors, the company which manages Woodmont. Ms. Latimer became Assistant Director of Operations at Woodmont in October 2013. On February 14, 2014, Ms. Latimer called Petitioner into her office to notify her that her position had been eliminated, and deliver a termination letter with detailed information. Ms. Bearden was also present at the meeting. Ms. Latimer testified, credibly, that Petitioner did not seem to understand the ramifications of the facility reorganization. Ms. Latimer explained, more than once, the elimination of the part-time receptionist position, and opportunities for continued employment at Woodmont. The meeting lasted 40 to 45 minutes, much longer than similar meetings with other affected employees. During the meeting, Petitioner insisted that she wanted to stay in her current position. Ms. Strange and Ms. Youngblood were likewise affected by Woodmont’s restructuring and elimination of the part-time receptionist position. Ms. Strange accepted the position of full- time weekend receptionist. Ms. Youngblood declined any alternate position and was separated from employment at Woodmont. Ms. Latimer’s concern for Petitioner was genuine. She wanted to ensure that Petitioner understood she was not being terminated for poor job performance. Ms. Latimer offered to allow Petitioner to take time off to look for other employment, to write letters of recommendation on Petitioner’s behalf, and to otherwise support Petitioner, should Petitioner decide not to remain at Woodmont. Further, during the meeting, Ms. Latimer offered Petitioner the opportunity to return to a position in Dietary Services. On February 28, 2014, Woodmont hosted a going-away party for Petitioner at the facility. Petitioner made some comments to the assembled employees which led Ms. Latimer to believe Petitioner was upset. Ms. Latimer spoke privately with Petitioner during the party to address Petitioner’s concerns. Ms. Latimer again explained the restructuring and elimination of positions. Ms. Latimer reiterated opportunities for continued employment with Woodmont. Petitioner maintained throughout the proceeding that she was never offered continued employment at Woodmont, and that she repeatedly requested to return to her position as a Dietary Server, but was not allowed to do so. In arriving at the findings herein, the undersigned has carefully considered the demeanor and the testimony of the witnesses. Ms. Latimer’s and Ms. Bearden’s testimony is accepted as both credible and persuasive on this point. Following her last day of employment, February 28, 2014, Petitioner did not apply for any other position with Woodmont, nor did Petitioner request a letter of recommendation from Ms. Latimer.
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 Respondent, Pacifica Senior Living Woodmont, did not commit any unlawful employment practice as to Petitioner, Jacqueline Ash, and dismissing the Petition for Relief filed in FCHR No. 2014-00515. DONE AND ENTERED this 13th day of August, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 13th day of August, 2015.
The Issue The issue presented is whether Respondents are guilty of committing a discriminatory practice against Petitioner, in violation of the Florida Civil Rights Act of 1992, by denying her a promotion and/or by constructively discharging her from her employment.
Findings Of Fact Petitioner Dianna Decker, a white female, began her employment with Respondent Gadsden County School Board on July 14, 1998. Her first job position was as the Training Coordinator/Specialist. In July 2002, Petitioner absorbed the additional duties of Staff Development Coordinator. Respondent Reginald James, a black male, was elected Superintendent of Gadsden County Schools in November 2004 and has continuously served in that capacity due to his re-election in 2008. In July 2005, Superintendent James promoted Petitioner to Director of Staff Development and Personnel. Petitioner applied for this promotion on July 7, 2005, after James told her he would like her to take the job. This promotion included a $13,000 annual increase in her salary. On July 13, James directed the School Board's finance department to begin paying Petitioner at the increased pay rate retroactive to July 1. On July 26, the School Board officially appointed Petitioner to the position to which James had promoted her, with the retroactive effective date of July 1. For purposes of employment with the various school boards in Florida, the superintendent "recommends" that a person be hired for a particular position, and the school board approves or disapproves the recommendation. Respondent James also gave Petitioner an additional $1,500 increase in salary during the 2005-06 school year. Petitioner and James enjoyed a good working relationship. As Director of Staff Development and Personnel, Petitioner had at least daily contact with James. Throughout her employment with the School Board, Petitioner applied for a variety of employment positions outside of the Gadsden County School System. Some of the positions she applied for were education-related, and some were not. Some of the positions she applied for were in Florida, and some were outside of Florida. By her own testimony, Petitioner kept her eyes open for opportunities for growth and upward movement. Dr. James Brown was the Deputy Superintendent of the Gadsden County School System from prior to the beginning of Petitioner's employment until his retirement in July 2007. Petitioner, Superintendent James, Dr. Sonja Bridges, and other personnel attended weekly management-team meetings at which they discussed, among other things, the attempts being made to find a replacement for Dr. Brown. Prior to Dr. Brown's retirement date, the Deputy Superintendent position that Dr. Brown was vacating was advertised. Although Superintendent James interviewed several candidates for the position, he was unable to find an acceptable candidate to hire. During the months of searching for a deputy superintendent to replace Brown, Dr. Sonja Bridges told James that she would take the job if he could not find anyone else. In a letter dated July 10, 2007, Petitioner wrote to the Jefferson County Schools in Louisville, Kentucky, asking to be considered for the position of Director of District Personnel/Human Resources which was being advertised. The morning of July 11, 2007, Superintendent James asked Petitioner to post a job opening for an Assistant Superintendent for Academic Services position. Later that same day James announced that he had chosen Dr. Sonja Bridges to fill that position. Petitioner told James that Bridges was not qualified to fill the position as it was described in the job posting. James told Petitioner that they would modify the position so that Bridges would be qualified and instructed Petitioner to take down the job description that she had posted. Petitioner also did not meet the qualifications for Assistant Superintendent for Academic Services as the position was posted, and she did not apply for that position during the short time between its posting and its removal. At its July 24, 2007, meeting, in accordance with its standard practice, Respondent Gadsden County School Board proposed a rule change that would modify the job description for an Assistant Superintendent for Academic Services position. This proposed modification was required to be advertised to the public for 30 days to receive comments and could not be finalized until at a Board meeting following the conclusion of that notice period. On August 6, 2007, Petitioner re-posted the Assistant Superintendent for Academic Services position. The proper procedure would have been to wait until after the School Board had approved the rule change at a subsequent meeting, and then post the position. Neither James nor anyone else requested or authorized Petitioner to re-post the position prior to the position being approved by the School Board, and Petitioner re- posted it against established School Board procedure. Also on August 6 Petitioner completed her application for the position and handed it to Regina Gore, a secretary who reported to Petitioner. Petitioner gave Gore no instructions as to what to do with Petitioner's employment application. Petitioner's job responsibilities included compiling and submitting job applications and presenting them to Superintendent James for his consideration. However, Petitioner did not tell anyone other than Gore that she had completed an application for the Assistant Superintendent for Academic Services position, and she never compiled and submitted to James for his consideration her application and the other application that was received in response to her unauthorized August 6 job posting. At its August 2007 meeting, Respondent Gadsden County School Board adopted the rule change for the modified job description after receiving no comments from the public during the 30-day comment period. Respondent Gadsden County School Board then officially appointed Dr. Bridges to the position of Assistant Superintendent for Academic Services to which Superintendent James had promoted her, with a retroactive effective date of July 2, 2007. Dr. Bridges meets the qualifications for the modified Assistant Superintendent for Academic Services position, as does Petitioner. In her new position, Dr. Bridges became Petitioner's immediate supervisor. Prior to Bridges' promotion, she and Petitioner had a professional and friendly working relationship; however, after her promotion, Petitioner became uncomfortable working under Dr. Bridges and had difficulty taking directives from her new supervisor. During the time that Respondent James has been the Superintendent of Gadsden County School System, he has recommended, and Respondent Gadsden County School Board has approved, two Assistant Superintendents: Dr. Bridges and Ms. Bonnie Wood. There have been no other Assistant Superintendents under Superintendent James. Dr. Bridges is a black woman, and Ms. Wood is a white woman. Ms. Wood is the Assistant Superintendent for Business and Finance and, like Dr. Bridges, reports directly to Superintendent James. There were three applicants for Ms. Wood's position: Ms. Wood and two black males, and Superintendent James hired her. There have not been any Deputy Superintendents since Dr. Brown retired. On September 28, 2007, Petitioner was offered the position of Director of Human Resources, Certified Division, with Jefferson County Schools in Louisville, Kentucky. By letter that same day to Superintendent James, not to her supervisor Dr. Bridges, Petitioner voluntarily resigned from her position with Respondent Gadsden County School Board, effective November 15, 2007. After her departure, Petitioner's position was filled on an interim basis by a white male. At the time she voluntarily resigned from her employment with Respondent Gadsden County School Board, Petitioner earned $66,363 annually. Petitioner's salary at her job in Kentucky with the Jefferson County Schools as of the date of the final hearing in this cause was $119,000 annually. Superintendent James never saw Petitioner's application for the position filled by Dr. Bridges until Respondents' counsel showed him a copy in February 2009 in preparation for the final hearing in this cause. Furthermore, James never heard of Petitioner having any interest in that position until after Dr. Bridges' appointment was made official by Respondent Gadsden County School Board. Even then, he did not hear of Petitioner's interest in the position from her; rather, he learned of her disappointment in not having been given the job from comments made to him by others. On December 10, 2007, Petitioner filed a Complaint of Discrimination with the Florida Commission on Human Relations alleging that she had been discriminated against by Respondent James and Respondent Gadsden County School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner has failed to prove that Respondents committed an act of discrimination against her and dismissing Petitioner's petition for relief filed in this cause. DONE AND ENTERED this 6th day of May, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 6th day of May, 2009. COPIES FURNISHED: Bruce Alexander Minnick, Esquire The Minnick Law Firm Post Office Box 15588 Tallahassee, Florida 32317 Matthew Carson, Esquire Linda G. Bond, Esquire Rumberger, Kirk & Caldwell, P.A. 215 South Monroe Street Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, Department of Transportation, discriminated against Petitioner, Charles Bean, on the basis of his age and retaliated against him, as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2004).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent is a public agency of the State of Florida. It has offices throughout Florida commensurate with its responsibilities. Petitioner is a Caucasian male. He is a long-time employee of Respondent. By letter of July 1, 2003, Petitioner was dismissed from his position as a technician for insubordination and conduct unbecoming a public employee. Petitioner did not offer any evidence of his actual age or that, other than his stated opinion, his age was the reason he was discharged. He did indicate that his age and experience were mentioned referable to his capacity to teach inexperienced employees and to perform his job. Petitioner did not offer any evidence regarding a replacement for the position from which he was discharged or of any employee who was treated differently than he. Petitioner did not offer any evidence of retaliation. He made a vague statement that he was the victim of retaliation, but did not offer any basis for his opinion. Petitioner refused to complete work assignments in a timely manner. These assignments were appropriate for his job responsibilities. When questioned by his supervisor regarding his failure to complete a particular job responsibility, Petitioner became defiant refusing to provide a written explanation; his angry response to the request included expletives. He then threatened a fellow employee who overheard the exchange between Petitioner and his supervisor. Petitioner's immediate supervisor does not believe age had any bearing on Petitioner's discharge. In addition, he supervises two other employees, aged 53 and 63. Petitioner's conduct violated the published Disciplinary Standards for State of Florida Employees.
Recommendation Based of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief and finding that Petitioner failed to present a prima facie case and, additionally, that Respondent demonstrated, by a preponderance of the evidence, that Petitioner's termination was not based on unlawful discriminatory reasons. DONE AND ENTERED this 9th day of August, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 J. Ann Cowles, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Charles Bean 431 Buffalo Street West Melbourne, Florida 32904 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
