Findings Of Fact Born in Rio de Janeiro, petitioner Paul Sergio Inacio emigrated to the United States from Brazil in 1961, when he was still a teenager. He first worked for respondent for a brief time in 1976. On June 6, 1980, he returned to respondent's employ as a journeyman welder mechanic at Crist Electric Generating Plant, a position he still held at the time of hearing. A "mile square with seven generating units" (T.187), the plant is in Florida, as are respondent's headquarters. Several hundred people work for respondent at Crist Electric Generating Plant alone. In "late June, 1980" (T.235) somebody began calling Mr. Inacio "Julio," nicknaming him after a Hispanic character in a television series (Sanford & Son). The actor portraying Julio "used to drag a goat through the living room . . . and acted . . . stupid." T.236; T.64. Despite (or perhaps because of) petitioner's telling people he did not like being called "Julio," the sobriquet caught on. Even during his initial eight-month probationary period, he made his objections known. T.115, 180. He felt freer to press the point, once the probationary period ended, although at least one friend advised him to do so might be counterproductive T.235-6. Mr. Inacio never referred to himself as Julio. T.28, 99-100, 115, 146-7, 180, 194, 198. Once "he almost got in a fight with [a co-worker] because the guy called him my little Puerto Rican buddy Julio." T.28. Before he retired from his employment as a supervisor with respondent, on July 30, 1987, Murdock P. Walley repeatedly addressed, or referred to petitioner in his presence, as "Julio," "wop," "spic," and "greaser." Mr. Walley's last day at work was "in April or along about then." T.472. Behind petitioner's back, Mr. Carnley heard Mr. Walley refer to petitioner as "wetback," "wop" or "the greaser." T. 27. Co-workers have called him "spic," "wetback," and "greaser" to his face, (T.30) as well as behind his back. Mr. Peakman, another maintenance supervisor, testified that he was guilty of a single lapse: I didn't see him and I asked, "Where's Julio?" And then I caught myself, I said, "Excuse me, where's Mr. Inacio?" I corrected myself right then. T.455. In or about January of 1989, (T.271), Jimmy Lavon Sherouse, maintenance superintendent since May of 1987, referred to petitioner as "Julio" at least once, in the break room. Willard A. Douglas, a supervisor of maintenance at the plant since December of 1981, referred to petitioner as "Julio" frequently. Described as abrasive, Mr. Douglas, also known as "Bubba," has "single[d] Paul out." T.46. But it appeared at hearing at least as likely that Mr. Douglas singled petitioner out because of a run-in which had nothing to do with Mr. Inacio's background, as that he discriminated against him on account of national origin. Prior to June of 1989, continuously since 1981 (T.29), Howard Keels, Calvin Harris, Mike Taylor, Ronnie Yates, and Bill Sabata, Control Center supervisors, C. B. Hartley, supervisor over the coal docks, John Spence and David Hansford, both maintenance supervisors at the time, Mike Snuggs, Joe Patterson, Ed Lepley, Tommy Stanley and Dennis Cowan, supervisors of the laboratory department, Dennis Berg and Joe Kight, schedulers, Tom Talty, the assistant plant manager, Joe Lalas and Larry Swindell, both operations supervisors, all called petitioner "Julio" "[t]o his face in [the] presence" (T.27) of Ricky Carnley, a fellow welder mechanic who testified at hearing. T.21-26. Others also heard supervisors call petitioner "Julio." T.79-80, 110, 144-6, 178-9, 195-6, 237-9, 537-8. Not without reason, petitioner came to feel that "(a)nything associated with Hispanic heritage that could come up, I was called at some point or other by practically anybody." T.267. Angelo Grellia, a fellow mechanic who testified "I'm a wop, you know" (T.79) (emphasis added) remembered co-workers calling petitioner a "wop." A newspaper cartoon posted on a bulletin board in the employee break room (not the bulletin board reserved exclusively for management's use) depicted a man using a two-by-four. Petitioner "is known for using two-by-fours a lot to move stuff, pry stuff for leverage." T.34. The cartoon was labelled "Julio." Another time somebody posted a newspaper clipping, a report of a parricide, complete with picture; the killer's name had been lined through and Mr. Inacio's had been substituted. T.112, 158, 179. After two days, a fellow employee took it down (T.158), apparently without Mr. Inacio's ever seeing it. Still another time somebody posted "a National Geographic picture" (T.181) that resembled petitioner "and the caption said, can you guess who this is." T.181. Somebody had guessed and written in "Julio." T.243. According to uncontroverted testimony, white Anglo-Saxon men "were not selected to be the butt of these sorts of jokes." T.159. Over the plant's public address system, in Mr. Talty's presence, Charles Brown referred to petitioner as "Paul Inasshole," a play on his surname. T.25. No other employee was ridiculed in such a fashion, as far as the evidence showed, (T.49) but broadcasts in a similarly offensive vein ("An asshole" "A nasty hole") took place repeatedly over respondent's public address system. T. 24-25, 48-49, 71, 144-146, 163, 240. At all pertinent times, respondent had widely disseminated written equal opportunity and affirmative action policies with the stated "intent . . . to provide all employees with a wholesome work environment." Respondent's Exhibit No. 2. "Company policy prohibits intimidation or harassment of its employees by any employee or supervisor." Id. But, as Barbara Louise Mallory, an "Equal Employment Opportunity representative" (T.477) in respondent's employ, conceded, the "conduct that went on was against [Gulf Power's] policies and against the law." T.484. Respondent's Exhibit No. 2 stated that employees "subjected to conduct which violates this policy should report such incidences to their immediate supervisor, a higher level of supervision, or the Company's Equal Employment Opportunity Representative in the Corporate Office." Id. In the present case, both respondent's immediate supervisors and "a higher level of supervision," were well aware of the harassment to which petitioner was subjected, before he officially reported it. Supervisors were themselves guilty of harassment. On February 8, 1988, Mr. Sherouse, the maintenance superintendent, addressed "a routine shift meeting with employees [and] discussed with them the need to refrain from destruction of employees' or company property." Respondent's Exhibit No. 8. Mr. Sherouse "essentially said . . . some employees . . . were being singled out . . . . " T.295. He told employees at the meeting that "such an incident . . . could result in an action up to termination." Id. At the same meeting he "also discussed cartoons and calendars that could be considered . . . racial or sexual harassment . . . [directing that] they must be removed now." Respondent's Exhibit No. 8. These matters were also discussed at an employee information meeting in January of 1989. Petitioner's Exhibit No. 1. But harassment of petitioner continued. "[Q]uite frequently . . . thick heavy grease would get smeared on his toolbox, underneath the drawers of his toolbox." T.34. The lock on his locker was glued or "zip-gripped" shut several times, and had to be cut to open the locker. Respondent's Exhibit No. He is the only employee (T.39) who had to change clothes because some sort of itching powder was put in his clothes. Somebody put "Persian Blue," a particularly persistent dye, in his glove. At respondent's counsel's behest a list was prepared of "employees who have experienced problems with someone tampering with their tools or person[a]l lockers," Respondent's Exhibit No. 10, during the two years next preceding the list's preparation on August 4, 1989. Of the nine employees listed, seven were white Caucasians whose tools or books had been lost or stolen. 1/ Unlike the native-born men on the list, petitioner and Debbie Mitchell, the only other person listed, were subjected to repeated instances of vandalism and other harassment, including unflattering references in cartoons posted on the bulletin board in the break room. Although petitioner did not request it, management assigned him a new locker, something they did for no other employee. According to a co-worker, petitioner, who once taught welding at Pensacola Junior College, "likes to do a good, clean, responsible job" (T.185) of welding. But, on October 22 and 23, 1988, when petitioner and Millard Hilburn worked on "the #7 bottom ash discharge piping," Respondent's Exhibit No. 21, at Willard Douglas' behest, they failed to stop seepage from the pressurized pipe (which was in use while they worked) by welding, and resorted to epoxy which, in Mr. Douglas' "opinion[,] . . . [was] bad judgement and very poor workmanship." Id. Of 30 or 40 welders respondent employed at Crist, only one or two "still have a clean record. Eventually somebody is going to get a leak." T.202. Petitioner's work record is basically a very good one, although not perfect. Nevertheless Mr. Sherouse, after putting petitioner's name on a list of three "employees who for different reasons are not performing their jobs," Respondent's Exhibit No. 7, summoned petitioner to a conference about his job performance, on January 20, 1989. The other two employees were Scott Allen, whose problem was "attitude . . . distrust, dislike . . . just unbelievable" (T.443; 420) and Ed Lathan who "hadn't been there since June of '87" (T.420) except sporadically "working light duty." T.420. Mr. Sherouse also prepared various memoranda concerning petitioner; and caused other managers to prepare still other memoranda. Only after the January conference was petitioner involved in the repair of a boiler tube that failed. (He welded one end of a replacement piece that may have been improperly sized and had already been welded in place by others.) In contrast to petitioner's involvement in two incidents (only one of which occurred before the filing of the complaint), at least one other welder mechanic working for respondent had made five welds that failed in short order. On April 11, 1989, petitioner was assigned the job of cleaning plugged nozzles on intake screens for units four and five (although ordinarily operators themselves did such routine maintenance.) He first went to the control room for units four and five and asked directions to the intake screens, which are part of the cooling system. Misunderstanding directions, he went to the wrong cooling system intakes, those for units six and seven, instead of those for four and five, and started work without finding a red tag (used to indicate that somebody from operations had "isolated" the equipment) and without placing his own tag on an electrical switch that equipment operators use. He did, however, place tags on valves that had to be opened in order for the system to operate. When Mr. Sherouse heard what had happened he sent Mr. Inacio home from work. Although Mr. Sherouse did not at that time "announce termination or non- termination, pay or no pay" (T.436), petitioner was eventually paid for the time off, which lasted two days during the purported pendency of an investigation, which consisted of "going back and looking at his files." T.437. Without credible contradiction, several people testified that mistaking one piece of equipment for another occurred not infrequently (T.85) at the Crist plant. The evidence showed that much more serious safety lapses had, in general, elicited much milder responses from management. Petitioner was criticized more harshly than non-minority employees for the same or comparable performance. T.31-33, 73-74, 112-120, 130-131, 148-9, 150-4, 186-7, 197, 257- 263. Petitioner's safety record was "better than most." T.424. An Indian who works at the Crist steam plant, Ron Taylor is known as "Indian" or "Chief." T.52. Supervisors referred to Nicholas Peterson as "a damned Greek" (T.111) when he worked at respondent's Crist plant. "From January 1982 until March 1990," just about every supervisor at Crist "refer[red] to some . . . blacks as being niggers." T.135. Objection was sustained to admission of colored Beetle Bailey comic strips crudely altered to depict cartoon characters engaged in oral sex. But Ms. Mitchell testified without objection to other "extremely vulgar cartoons" (T.157) she saw posted on the bulletin boards including one with her name on it. T.159. (When she complained to Mr. Sherouse, he eventually reported back to her that the reference was to a different Debbie.) At Crist Electric "they use the good ole boy theory . . . [i]f you fit into their select group, you're taken in, you're trained . . . you get better selection of jobs. If you're not, you're an outcast." T.136. Petitioner "definitely" got more than his share of "dirty jobs," specifically precipitator work and condenser work. T.183; 85-86, 147-8. Petitioner's "pride was hurt." T.265. He felt humiliated. Unfair criticism affected his morale. T.36. At least one co-worker "could sense . . . that he felt like he was not wanted there." T.37. He considered leaving his employment and even told at least one Gulf Power official that he was doing so. See Respondent's Exhibit No. 3. Discriminatory treatment affected his ability to concentrate, and so his job performance. T.36, 37.
Recommendation It is, accordingly, RECOMMENDED: That the FCHR order respondent to refrain from harassing or otherwise discriminating against petitioner on account of his national origin. That the FCHR award petitioner reasonable attorney's fees and costs. DONE and ENTERED this 14th day of May, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1991.
The Issue The issue in this case is whether Respondent, a restaurateur, unlawfully discriminated against Petitioners, who are African-Americans, by refusing to serve them based upon race.
Findings Of Fact On or about July 7, 2001, Petitioners Veronica King and Walter King (the “Kings”), who were then on vacation in Miami Beach, Florida, decided to eat dinner at La Playa de Varadero Restaurant (“La Playa”), a Cuban restaurant near their hotel.2 They entered the restaurant some time between 3:00 and 5:00 p.m. Though the dining room was full of patrons, there were a few empty tables. The Kings seated themselves. The Kings reviewed the menus that were on the table and conversed with one another. They waited for a server, but none came promptly. After waiting about 10 or 15 minutes, Mrs. King signaled a waitress, who came to their table and took their drink and food orders.3 The waitress brought the Kings their drinks without delay. The food, however, did not appear, and the Kings grew increasingly impatient and irritated. It seemed to the Kings, who are African-Americans, that other customers——none of whom was black——were being served ahead of them.4 After about a half an hour or so, having yet to be brought food, the Kings decided to leave without eating. On the way out of the restaurant, the Kings paid the cashier for their drinks. They complained to the cashier about the slow service and expressed to her their dissatisfaction at having waited so long, and in vain, for their meals.5 The Kings perceived that the cashier and other employees, including their waitress who was standing within earshot, were indifferent to the Kings’ distress. Ultimate Factual Determinations At the material time, La Playa was a “public food service establishment” within the reach of Section 509.092, Florida Statutes, and hence subject to liability for unlawful discrimination in violation of the Florida Civil Rights Act. The greater weight of the evidence fails to establish that La Playa refused to serve, or otherwise unlawfully discriminated against, the Kings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing the Kings’ Petition for Relief. DONE AND ENTERED this 19th day of February, 2003, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 19th day of February, 2003.
The Issue The issue is whether Respondent, Porky's Barbeque Restaurant, engaged in an unlawful employment practice by terminating Petitioner, Susan Coffy, from her position.
Findings Of Fact Petitioner is a female and, at all times relevant to this proceeding, was over the age of 40. From March 1, 2003, until October 28, 2003, Petitioner was employed as a waitress at Porky's, a barbecue restaurant. On October 28, 2003, Petitioner was terminated from her job as a waitress. Prior to March 1, 2003, Petitioner had worked as a waitress at another restaurant, Fat Boy's Restaurant (Fat Boy's), that had been operating at the same location as Porky's. Fat Boy's closed after the building in which that restaurant was located was purchased by Walter Milton. After Mr. Milton purchased the building, he opened his own business, Porky's, at that location. After Mr. Milton opened his restaurant, he employed many of the individuals who had been employed by Fat Boy's, but told them that their employment with Porky's was for a "trial period." Immediately after Porky's opened for business, Mr. Milton initiated operational directives that he believed were essential business needs for operating a barbecue business. He introduced these new directives to the employees of Porky's, many of whom had previously worked for Fat Boy's. While some of these employees were successful in making the transition to the new operation, there were employees, including Petitioner, who were resistant to the operational directives initiated by Mr. Milton. Even though Petitioner was resistant to the new operational directives that were implemented at Porky's, Mr. Milton continued to try to work with Petitioner. In fact, Petitioner worked as a waitress at Porky's the first eight months the restaurant was open. During the course of her employment, Mr. Milton found that Petitioner was an employee who failed to follow simple instructions. For example, Mr. Milton directed employees to knock on his office door when the door was closed. Notwithstanding this very simple directive, Petitioner refused to comply. One day Petitioner went to Mr. Milton's office and found the door to the office was closed. Instead of knocking as she had been previously directed, Petitioner simply barged into the office and stated that she needed a band-aid. After Petitioner barged into the office without knocking, Mr. Milton reminded her that she should knock on the door and wait for a response before coming into his office. About three minutes after this admonition, Petitioner returned to Mr. Milton's office. Although the office door was closed, Petitioner, again, did not knock on the door, but simply opened the door and went into the office. Mr. Milton was not pleased with Petitioner's failure to embrace the directives he initiated and implemented for Porky's. However, the "final straw" that resulted in Mr. Milton's terminating Petitioner's employment was an incident about a menu item. On October 28, 2003, Petitioner was very upset that Mr. Milton had included an item on the Porky's menu that also had been on the Fat Boy's menu. That menu item was referred to as "Jim's Special Burger." Mr. Milton included that item on Respondent's menu to honor Jim Kenaston, who had been the owner of Fat Boy's. On October 28, 2003, Petitioner "flew off the handle" and confronted Mr. Milton about his decision to include the item, "Jim's Special Burger," on the Porky's menu. Petitioner, who admits she was upset about this matter, confronted Mr. Milton and argued to him that he had no right to put the "Jim's Special Burger" on Respondent's menu. The confrontation started in the kitchen of the restaurant, but continued after Petitioner left the kitchen and proceeded into the restaurant's dining room. Although there were customers in the dining room, Petitioner continued to argue with Mr. Milton about the menu item. Petitioner's verbal criticism and objection to Mr. Milton's decision to include "Jim's Special Burger" on Respondent's menu created such a commotion in the restaurant that Respondent's bookkeeper heard Petitioner's outbursts from her office located behind the cashier's counter. After the bookkeeper heard Petitioner arguing with Mr. Milton, the bookkeeper left her office and in an effort to de-escalate the situation, escorted Petitioner out of the dining room to a back hall of the restaurant where there were no customers. On October 28, 2003, as a result of Petitioner's inappropriate and unprofessional conduct described in paragraphs 10 through 13, Mr. Milton terminated Petitioner's employment at Porky's. The same day that he terminated Petitioner's employment, Mr. Milton completed a "Separation Notice" on which he indicated that Petitioner was laid off due to lack of work. The reason Mr. Milton wrote this on the form was so that Petitioner could receive unemployment compensation. Petitioner presented no competent and substantial evidence that she was terminated from employment because of her age. Likewise, Petitioner presented no evidence that after she was terminated, she was replaced by a younger worker. At all times relevant to this proceeding, Respondent had four or five employees who were over 40 years of age. Petitioner presented several witnesses who testified that she was an excellent waitress when she was employed at Fat Boy's. However, Petitioner's job performance while working for her previous employer is not at issue or relevant in this proceeding. Even if that testimony is accepted as true, no inference can be drawn that Petitioner's performance remained the same or was viewed as such by her new employer. Notwithstanding the opinions expressed by her previous employers and co-workers, Petitioner was terminated from her employment at Porky's as a result of her unacceptable and unprofessional conduct on October 28, 2003.
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, Porky's Barbeque Restaurant, did not commit any unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 18th day of March, 2005, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Walter Milton Porky's Barbeque Restaurant 4280 South Washington Avenue Titusville, Florida 32780 Susan Coffy 2966 Temple Lane Mims, Florida 32754 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue In an order dated January 29, 1992, the State of Florida, Commission on Ethics found probable cause that the Respondent, as a city commissioner of the City of Cottondale, violated Section 112.313(7)(a), Florida Statutes, by having a contractual relationship with a business entity which was doing business with the city. The issue in this proceeding is whether the violation occurred and, if so, what penalty should be recommended.
Findings Of Fact Leonard Norsworthy served two two-year terms as a city commissioner for the City of Cottondale, a small community in the Florida panhandle. His tenure spanned from 1987 until July 1991. Mr. Norsworthy is sole proprietor of J. & L. Housepainting and Remodeling (J & L), a roofing and remodeling business. He has a State of Florida contractor's license. Sometime in 1990, the City of Cottondale, through its grants coordinator in Tallahassee, sought and obtained Community Development Block Grant (CDBG) funds for various needed public works. The project was advertised, and a bid was awarded to T & A Utilities Contractors, Inc. (T & A), a Lynn Haven, Florida, firm owned by Charles Williams. The total contracted amount of $244,282 included resurfacing two streets, a parking lot, a children's park, 8-inch water lines, and renovations to the city hall. Not all of the work was done immediately, as the city needed to get various permits. Due to changes in the scope of work, additional money became available for other projects, including renovating a public bathroom to make it accessible for handicapped persons. Some of the work was subcontracted by T & A to other firms. Charles Williams did not advertise for bids for the subcontracted work, but obtained proposals. He had obtained proposals from some Panama City firms for the bathroom and city hall renovations because he was not aware of firms closer to Cottondale. "Pete" Hilton was Cottondale's Public Works Director for eight years until he left in October 1992 for medical reasons. He told Charles Williams that he knew someone who could do the work for a good price, and shortly thereafter Leonard Norsworthy called Williams. Mr. Norsworthy's proposal was less than the prices quoted by the Panama City firms, and on June 5, 1991, T & A subcontracted with J & L for the renovation work for a total amount of $8,460. The sum was paid in three releases. The jobs performed by Mr. Norsworthy under the subcontract included redoing the bathroom and a handicap ramp entrance, installing rain gutters, removing a wall and plastering and finishing a wall. At no charge for his labor, Mr. Norsworthy also painted the building. Leonard Norsworthy knew about the city's revitalization contract with T & A because he was a city commissioner at the time. While the city was a party to the contract, the specifications and the background work were handled by the city engineer, who recommended the award to T & A. Leonard Norsworthy admits that he did the work and says, "You live and learn." He concedes that there are others in the area who could have done the work, but believes he gave a good price for the job. He says that work is scarce in the area and you have to take it where you find it. He knew that the law prohibited doing business with one's own agency, but he had no idea that the prohibition extended to subcontracts as well.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Commission enter its final order and public report finding that Leonard Norsworthy violated Section 112.313(7), Florida Statutes, and recommending a penalty of $300.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of April 1993. MARY CLARK 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 12th day of April 1993. COPIES FURNISHED: Craig Willis, Esquire Michael Ingraham, Esquire Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399 Leonard Norsworthy Post Office Box 299 Cottondale, Florida 32431 Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue Whether Respondent discriminated against Petitioner in employment in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact At all times relevant hereto, Petitioner was employed by Respondent as a patient transporter. On December 27, 2018, Petitioner sustained a back injury while on the job. Petitioner reported the injury to Lora Vitali, Director of Colleague Health, Respondent’s employee healthcare department. Ms. Vitali instructed Petitioner to take the rest of the day off work and treat the injury with ice and ibuprofen. On December 28, 2018, Petitioner returned to Colleague Health and reported that she was still in pain. Colleague Health nurse, Monica Hubmann, arranged massage therapy and pain medication for Petitioner and instructed her to report back to Colleague Health on Monday, December 31, 2018, for further evaluation. Petitioner presented to Colleague Health on December 31, 2018, and reported that she was still in pain. Nurse Hubmann referred Petitioner to Dr. Spencer Stoetzel, who evaluates and treats Respondent’s employees who are injured on the job. Dr. Stoetzel is employed by North Florida Sports Medicine & Orthopaedic Center, not Respondent. At Dr. Stoetzel’s direction, Petitioner received regular treatment, including both physical and occupational therapy, until March 25, 2019. Petitioner was on workers’ compensation leave from work during her treatment. On March 25, 2019, Dr. Stoetzel cleared Petitioner to return to work with no restrictions and a 0% impairment rating. Based on Dr. Stoetzel’s conclusion, Ms. Vitali released Petitioner to return to work effective March 26, 2019. Ms. Vitali informed Petitioner of her release to work on March 25, 2019. Petitioner’s supervisor placed Petitioner on the work schedule after she was released to return to work, but Petitioner did not return to work as scheduled, and did not return any one of several telephone calls from her supervisor. Therefore, Respondent discharged Petitioner for job abandonment. Petitioner disputes her dismissal for job abandonment because she maintains that she was unable to work due to continuing pain. Petitioner disputes Dr. Stoetzel’s conclusion that she could return to work beginning March 26, 2019. Petitioner testified that Dr. Stoetzel told her that, based on the results of magnetic resonance imaging (“MRI”), she had a lumbar tear in the L4-L5 region, yet the discharge summary excluded the results of the MRI. The discharge summary refers only to a “[l]umbar sprain or strain with discrepant pain as well as radicular symptoms [pain radiating down the leg].” In the discharge summary, Dr. Stoetzel concludes, “There is really nothing further I have to offer.” Petitioner testified that her pain is continuous, has increased in severity, and prevents her from wearing shoes, driving, doing household chores, and caring for her children. Ms. Pride testified that her daughter is in constant pain and that Ms. Pride has assumed care of her grandchildren during the day when Petitioner’s husband is at work. Petitioner maintains that she has been unable to work due to her injury from December 27, 2018, through the date of the final hearing. Petitioner did not introduce any evidence of discrimination on the basis of her race, sex, or in retaliation for engaging in a protected activity. With regard to age discrimination, Petitioner testified that Dr. Stoetzel once commented that her back pain was due to her age. Petitioner’s PRO includes no references to discrimination based on her age, sex, race, or in retaliation for engaging in a protected activity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order finding that Tallahassee Memorial HealthCare, Inc., did not discriminate or retaliate against Petitioner, and dismissing Petitioner’s Petition for Relief in Case No. 2019-18837. DONE AND ENTERED this 9th day of September, 2020, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk 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 9th day of September, 2020. Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Elaine Williams 411 Earline Hobbs Road Quincy, Florida 32351 Gerald D. Bryant, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 2nd Floor 215 South Monroe Street Tallahassee, Florida 32301 (eServed) Stephanie Clark, Esquire Pennington, P.A. Suite 200 215 South Monroe Street Tallahassee, Florida 32301 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue in this proceeding is whether the Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Respondent Great Southern Café is a restaurant located in Seaside, Florida. The restaurant is owned by James Shirley. As owner, Mr. Shirley did not generally involve himself in personnel decisions at the Café. Such decisions and the day-to- day management of the restaurant were the responsibility of the general manager, who at the time period relevant to this case was William “Billy” McConnell. Petitioner Janet D. Mayes is female. Petitioner has ADD, ADHD, OCD, and general anxiety disorder. She has been diagnosed with these conditions for 20 years and they are all controlled through medication. More importantly, the evidence did not demonstrate that Petitioner’s disorders interfered with her ability to work or significantly impacted any other major life activity. Indeed, Petitioner has worked in the restaurant business for about 30 years and has held a variety of different positions during that time, often working long hours. Since her disorders did not interfere with any of Petitioner’s major life activities, the evidence did not demonstrate that such disorders were disabilities or handicaps for purposes of employment discrimination. Sometime around March 2012, Petitioner interviewed for employment with Respondent. She was initially hired as a hostess for the restaurant by the then general manager, Jim Ruby. Shortly thereafter, Mr. McConnell, who was then assistant manager, replaced Mr. Ruby as general manager. At the time, Mr. McConnell had 35-40 years of experience as a restaurant manager in Alabama and Florida and had managed the predecessor restaurant to Great Southern Café known as “Shades.” Mr. McConnell’s management philosophy was to be patient with employees, to train them in the right way, and to ask employees to do their best. He would give employees the benefit of the doubt, and when disciplinary action was necessary, would sit down and talk with the employee to build confidence in them. Mr. McConnell’s disciplinary style was informal and it was not his general practice to issue formal written discipline to employees. Mr. McConnell liked Petitioner’s work ethic and thought she did a good job as hostess. Under Mr. McConnell’s management, Petitioner was promoted by Mr. McConnell to relief manager in May of 2012. In August 2012, she was again promoted by Mr. McConnell to full manager. Mr. McConnell did not know about, nor was he provided with any documentation regarding, Petitioner’s disorders. Indeed, the evidence showed that Petitioner’s disorders were not so obvious that anyone who encountered her necessarily would have known about those disorders. There was no evidence that Petitioner ever sought any kind of accommodation from Respondent for her disorders. Since Mr. McConnell worked only the day shift and Petitioner usually worked nights, their paths did not often cross at work. However, the evidence demonstrated that Mr. McConnell occasionally used the term “bitch” to refer to Petitioner. The evidence also demonstrated that he did so not in a malicious or discriminatory way, but in a joking manner because of Petitioner’s actions that he witnessed or that were described to him. Petitioner conceded that it was “like it was a joke” when Mr. McConnell referred to her as a “bitch.” There was no testimony that Mr. McConnell used this term on repeated occasions so that its use rose to the level of harassment or that he used it to belittle or demean Petitioner. Sometime in April 2013, the Café catered a very large event known as “JazzFest.” Petitioner assisted Mr. McConnell in the planning and execution of this event for the Café. Her husband, William, who had been unemployed, was hired to help in food preparation at the event. In general, JazzFest was stressful for all those who worked the event. Both Mr. McConnell and Petitioner worked many extra hours at the festival. During the course of JazzFest, Mr. McConnell, as manager, permitted the employees to get food from the banquet line since they had been working all day without breaks for nutrition. Petitioner and her husband loudly and inappropriately berated Mr. McConnell in public and in front of other employees about allowing employees to get food from the banquet line. Mr. Shirley witnessed the confrontation and considered the display to be an inappropriate method by Petitioner to communicate her disagreement regarding Mr. McConnell’s management decision. Mr. McConnell also observed that during JazzFest, Petitioner was “too pushy” and “too bossy” with the staff without having any good reason for such treatment of employees. Additionally, Mr. McConnell observed that Petitioner was “not herself” and “wound up a little too tight” during JazzFest. Further, Mr. McConnell was aware that Petitioner had some recent personal stressors, such as her husband having issues with unemployment and one of her sons being arrested and incarcerated. He believed Petitioner’s behavior was due to the pressures in her family life combined with the pressure from working Jazzfest. Therefore, Mr. McConnell decided to give Petitioner a week off, with pay, for rest and relaxation. He hoped that Petitioner would come back refreshed and ready for the busy beach season after her break. Mr. Shirley knew of and supported the time off for Petitioner and hoped that Petitioner’s time away from work would ease some of the undercurrent of negative feelings that had built up between Petitioner and some of the employees. After Petitioner returned from her week off, Mr. McConnell received reports from some of his employees that Petitioner was being unreasonable, raising her voice and losing her temper “numerous” times. He also received reports that Petitioner was “hard to work for,” and “a bully.” In addition, owner James Shirley received some complaints from employees that Petitioner was “going off on people.” Indeed, her treatment of the employees had gotten to the point that several employees no longer wished to work with her. These employees were considered good employees and were part of the restaurant team. The evidence showed that it is very important for restaurant staff to function as a team and that maintaining good working relationships among team members is one important component of a good functioning restaurant. Mr. McConnell spoke to Petitioner about the subject of the complaints and asked why she was pushing the staff so hard and creating a bad environment. Petitioner said she would try to do better. During this conversation, Mr. McConnell did not remember asking Petitioner whether her meds were “out of whack,” but he has stated this to other people as a figure of speech in the manner of “get your act together.” The evidence did not show that Mr. McConnell’s use of the phrase was discriminatory, harassing or demonstrative of any knowledge of Petitioner’s alleged disability or perception of the same. After his talk with Petitioner, things improved for a couple of days. However, Mr. McConnell received more and similar complaints about Petitioner from the same employees who previously complained about her, with some indicating they would quit if Petitioner continued to work at the restaurant. Mr. McConnell feared that if something was not done about Petitioner some of his good team employees would leave and he would not be able to run the restaurant. The better evidence demonstrated that Mr. McConnell met with Petitioner and offered her two weeks’ severance pay. He spoke with her about her inability to get along with the employees and function as a team member at the restaurant. The meeting lasted about 20-30 minutes. Ultimately, Petitioner refused the severance pay, handed over her keys, and left. There was no credible or substantial evidence that Petitioner’s termination was based on disability, perceived or otherwise. Similarly, there was no credible or substantial evidence that Petitioner’s termination was based on her sex. Although Petitioner asserted harassment from Mr. McConnell, no evidence to support this claim was adduced at the hearing. Respondent hired and promoted Petitioner to a manager position, allowed Petitioner to hire her husband and son (and at least one of her son’s friends), and gave her a paid week off after JazzFest to refresh and relax from a stressful event. The evidence showed that Mr. McConnell gave Petitioner the benefit of the doubt, as he did with all his employees, and only decided to terminate her after talking with Petitioner and determining that giving her time off did nothing to eliminate the negative energy Petitioner was bringing to the job. Based on these facts, Petitioner failed to establish that Respondent discriminated against her based on sex or disability when it terminated her from employment. As such, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter an Order dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of June, 2015, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2015. COPIES FURNISHED: Robert L. Thirston, II, Esquire Thirston Law Firm Post Office Box 19617 Panama City Beach, Florida 32417 (eServed) Timothy Nathan Tack, Esquire Kunkel Miller and Hament 3550 Buschwood Park Drive, Suite 135 Tampa, Florida 33618 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
Findings Of Fact Upon consideration of the evidence presented at the hearing, the following relevant findings of fact are made: The Respondent, Scarlet Manor, Inc., d/b/a Scarlet Manor is located at 13009 Lake Carl Drive, Hudson, Florida. At all times material to this proceeding, Respondent has been licensed by the Agency to operate an ACLF (facility) at 13009 Lake Carl Drive, Hudson, Pasco County, Florida, housing a maximum of 40 residents. Ray Dorman is the owner of Scarlet Manor and has operated the facility since 1984. The facility primarily serves clients who are or have been diagnosed as suffering from a mental illness. On January 14, 1994, the Agency conducted a biennial survey of the facility and found violations in 68 categories of Class III deficiencies. During an exit interview on January 14, 1994, following the completion of the biennial survey, the Respondent's employee was advised of the deficiencies and was told that the deficiencies had to be corrected by February 14, 1994. The Agency reported the results of its biennial survey in a Summary of Deficiencies For ACLF Licensure Requirements (Summary of Deficiencies). A copy of the Summary of Deficiencies was furnished to the Respondent, who acknowledged on February 21, 1994, that a copy of the Summary of Deficiencies had been received on February 19, 1994. As indicated by the Summary of Deficiencies, a large number of the deficiencies were cited due to the unavailability of records at the time of the biennial survey. The records were kept at Ray Dorman's residence rather than the facility and Mr. Dorman was not available on the day of the survey to produce the records. Another large number of the deficiencies pertain to record keeping, and one would have to strain to show that such deficiencies, individually or jointly, "indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents". At the time Respondent acknowledged receipt of the Summary of Deficiencies it requested an extension for correcting the deficiencies from February 14, 1994, until March 21, 1994. The Agency granted the request for extension. The Respondent did not request any further extension. On March 21, 1994, the Agency revisited the facility and determined that 15 deficiencies remained uncorrected. The Respondent was again provided with a Summary of Deficiencies which, under column (4), indicated March 21, 1994 as the date of revisit, the identifying number of the deficiency and whether the deficiency was corrected or not corrected on the date of revisit. By letter dated July 1, 1994, the Agency denied Respondent's application for renewal of its license to operate the facility which had expired on March 11, 1994. The specific basis for the Agency's denial was the Respondent's failure to maintain minimum standards for an ACLF as evidenced by the Respondent's failure to correct the 15 deficiencies previously identified in the Summary of Deficiencies as not being corrected within the Agency's extended time of March 21, 1994. The letter identified and listed only 11 uncorrected deficiencies. The difference in numbers of deficiencies in the Summary of Deficiencies (15) and those listed in the denial letter (11) results from the Agency combining deficiencies ACLF300, ACLF301 and ACLF303 as number 3; above combining deficiencies ACLF702 and ACLF703 as number 4 above; and failing to list deficiency F.S.28, a catch all deficiency, pertaining to the failure to meet all federal, state and local codes as evidenced by the other listed deficiencies. No documentation of radon testing. Deficiency ACLF203 in the Summary of Deficiencies alleges that the facility did not have proof that radon testing as mandated by Section 400.056, Florida Statutes, has been conducted. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. On January 14, 1994, the Respondent did not have documentation of radon testing for the facility because there had been no testing of the facility for radon. During the interim between January 24, 1994, and March 21, 1994, the Respondent was in the process of engaging someone to test the facility for radon. However, due to the cost of testing the facility for radon and the availability of people certified to test for radon, the Respondent was unable to have the radon test completed by March 21, 1994, but Respondent did have the radon test (analysis) of the facility completed and documentation available on March 28, 1994. No documentation that all employees are free from signs and symptoms of communicable disease. Deficiency ACLF508 in Summary of Deficiencies alleges that on January 14, 1994, staff did not appear to be free from apparent signs and symptoms of communicable diseases, as documented by a statement from a health care provider, in that there was no statement for five of the six employees reviewed; three of whom had been employed over 30 days. Also it was noted that two of the employees had T. B. and VDRL tests only. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. On January 14, 1994, the Respondent failed to produce certification from a health care provider certifying that employees Cheryl O'Shell, Cindy Plunkett and Arlene Hutchinson, who had been employed for over thirty days, were free of communicable diseases. Apparently the other four employees either had the required certification or had not worked for the Respondent over 30 days. Rule 10A-5.0131(2)(cc), Florida Administrative Code, defines a health care provider as physician duly licensed under Chapter 458 or 459, Florida Statutes, or an advanced registered nurse practitioner (ARNP) duly licensed under Chapter 464, Florida Statutes. On March 21, 1994, at the time of the Agency's revisit, facility employee Cheryl O'Shell had test results but no certification from a health care provider. On March 21, 1994, facility employees Arlene Hutchinson and Cindy Plunkett had test results and a certification signed by registered nurse rather than an health care provider. This deficiency has subsequently been corrected. Appropriate resident contracts were not on file or did not contain required elements. Deficiency ACLF300 in the Summary of Deficiencies alleges that: (a) a female resident had signed the resident contract on May 4, 1989, however, a legal guardian was appointed January 17, 1992 and the contract was not re- executed; and (b) another female resident did not have an executed contract in her record available for review. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. Facility resident Tina Mickler, the female resident referred to in 12(a) above, had signed a contract in 1989 upon admission to the facility prior to being adjudicated incompetent and having a guardian appointed by the court. After Tina Mickler signed the contract on admission, Tina Mickler and her father, jointly executed a contract with the facility before her father was appointed guardian on January 17, 1992. After the March 21, 1994, revisit, Tina Mickler's father, as guardian, executed a new contract with the facility on behalf of Tina Mickler. Facility resident Mary Heagrey, the female resident referred to in 12(b) above, had a signed contract on file with the facility on January 14, 1994 and on March 21, 1994, notwithstanding testimony of the Agency witness to contrary. Apparently, the contract was overlooked when reviewing her records. Deficiency ACLF301 in the Summary of Deficiencies alleges that the facility resident contract did not contain certain provisions required by statute and rule. It is further alleged that only one provision of the resident contract had been corrected at the time of the March 21, 1994, revisit. The Agency reviewed nine out of 28 resident contracts. Some of the nine contracts reviewed did not have all of the provisions that were required by statutes and rules as of January 14, 1994. There was no evidence that the contracts were not in accordance with the statutes and rules at the time they were executed by the resident. At the time of the revisit on March 21, 1994, the provision identified as number 1 under ACLF301, concerning prorated refunds for the unused portion of payments after termination, had been corrected. However, those provisions identified as numbers 2, 3 and 4 under ACLF301, concerning refunds if the facility discontinues operation, disbursement of refunds under Florida Probate Code for a deceased resident and the handling of funds where they are not disbursed under the Florida Probate Code, respectively, were not corrected in that those resident contracts lacking those provision had not been replaced with a newly executed contract with those provisions or had those provisions added to the contract with an addendum. This deficiency has subsequently been corrected. Deficiency ACLF303 in the Summary of Deficiencies alleges that on January 14, 1994, the facility did not have for review an admission package, and as such, it could not be determined that all information was included as required by Rule 10-5.024(2)(a)3., Florida Administrative Code. It is further alleged that this deficiency was not corrected at the time of March 21, 1994, revisit. The facility did not have an admission package per se for review during the Agency's January 14, 1994, or March 21, 1994, visits. However, the facility did have the necessary documents to review with a new resident but they were not contained in a packet to give to the resident; therefore, the Agency could not determined if all required information was included. This deficiency has been corrected in that the facility now has an admission packet. No documentation of social or leisure services activities and activities calendar were followed. Deficiency ACLF702 in the Summary of Deficiencies alleges that on January 14, 1994, that it could not be determined that opportunities were provided for social and leisure services to facilitate social interaction, enhance communication and social skills, and reduce isolation and withdrawal. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. Deficiency ACLF703 in the Summary of Deficiencies alleges that on January 14, 1994, the administrator or designee had not fulfilled his responsibility for the development and implementation of or arrangement for participation by residents in an ongoing activities program. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. While there appeared to be some effort on the part of the facility to fulfill its responsibility Rule 10A-5.0182(4), Florida Administrative Code, at the time of the January 14, 1994, survey and the March 14, 1994, revisit, regarding social and leisure services, to provide a activities calendar and to develop and implement arrangements for participation by residents in an ongoing activities program, the facility's effort fell short of what is required in this regard. However, the facility's efforts in this regard subsequent to the March 21, 1994, revisit have corrected those deficiencies. Residents rights and freedoms not protected or provided for. Deficiency ACLF705 in the Summary of Deficiencies alleges that the facility has a written policy that no one is allowed to go to the store after dark which is an infringement on the residents' rights and freedoms. There was testimony concerning a facility policy of requiring resident visitors to be cleared with the Administrator; however, this was not covered in the Summary of Deficiencies under deficiency ACLF705 or any other deficiency. At the time of both the January 14, 1994, survey and the March 21, 1994, revisit, the policy of the facility was not to allow residents to leave the facility after dark and that visitors were to be cleared by the administrator. The basis for these policies was the safety of the residents due the location of the facility, particularly, the policy of not leaving the facility after dark to go to the store. This is no longer a policy of the facility. The facility residents are free to come and go as they may desire. Lack of documentation of facilities response to resident complaints. Deficiency ACLF710 in the Summary of Deficiencies alleges that there was no documentation that the facility responded to resident complaints, in that there was no procedure available for review of complaints received and responses documented. While there was evidence that the facility did encourage filing complaints and did respond to complaints received, the facility did not have an established procedure whereby the review of complaints received and responses were documented. The facility now has an established procedure for documenting the review of complaints and responses. Furnishings not in good repair. Deficiency ACLF904 in the Summary of Deficiencies alleges that furniture was not in good repair, as evidenced by the worn, torn and broken sofa and chairs in the lounge area. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. At the time of the March 21, 1994, revisit there was a torn chair in the lounge area. Ray Dorman testified that the furniture observed on March 21, 1994, was not the same furniture observed on January 14, 1994, because that furniture had been thrown away. Dorman further testified that the torn chair observed at the time of the March 21, 1994, revisit had been torn by a resident in interim between the January 14, 1994, survey and the March 21, 1994, revisit. However, I do not find this testimony to be credible, particularly since the Agency employee conducting the revisit was not made aware of this by anyone at the facility. Proper care not being given to insect control. Deficiency ACLF905 in the Summary of Deficiencies alleges that there is lack of an effective control method to prevent against flies, rodents and other insects from entering the facility as evidenced by: (a) exit doors at end of each corridor did not close properly; and (b) doors to center patio did not close properly. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. This deficiency did exist on January 14, 1994, and was not corrected at the time of the March 21, 1994, revisit. However, this deficiency was corrected shortly after the March 21, 1994, revisit. Hot water exceeds maximum allowable temperature. Deficiency ACLF1023 in the Summary of Deficiencies alleges that hot water service to lavatories, showers and baths for residents' use had water temperature readings of 135 degrees thereby exceeding the maximum of 115 degrees provided for in Rules 10A-5.0221(3) and 10A-5.023(10)(e), Florida Administrative Code. This deficiency did exist on January 14, 1994, and was not corrected at the time of the March 21, 1994, revisit. This deficiency was corrected after the March 21,1994, revisit, and the day of the hearing the hot water temperature for the residents' use was at 115 degrees. Automatic smoke detectors not serviced. Deficiency F.S.17 in the Summary of Deficiencies alleges that there was no documentation of the automatic smoke detectors having the required sensitivity test during the past two years. The facility had documentation of annual inspections of the automatic smoke detectors for March 23, 1993, March 11, 1994 and March 13, 1995. Both the 1994 and 1995 report shows the automatic smoke detectors having the required sensitivity test. However, while the 1993 report does indicate that the required sensitivity test was conducted, Ray Dorman's testimony, which I find credible in this regard, was that the test was performed and paid for, but the failure to note that on the report was an oversight which he failed to note and have corrected. The evidence appears to show that the Agency was not provided with these reports at the January 14, 1994, or March 21, 1994, visits. Emergency lighting inoperable. Deficiency F.S.21 in the Summary of Deficiencies alleges that the emergency lighting was not maintained as evidenced by the lights in the corridors or dining room failing to operate when tested. This deficiency existed at the time of the January 14, 1994, survey. During the interim between January 14, 1994, and March 21, 1994, Ray Dorman caused the emergency lighting system to be checked and repaired. However, on March 21, 1994, there was one light out in the west corridor; therefore, the Agency considered the deficiency as not being corrected. There was no evidence that any of the above deficiencies was a repeat deficiency as that term is defined in Rule 10A-5-0131(2)(xx), Florida Administrative Code, or that they were recurring deficiencies. There was sufficient evidence to show that the above deficiencies, in the aggregate, did potentially threaten the health, safety, or welfare of the facility residents. The deficiencies cited in the administrative complaint in AHCA No.: 05-94-053-ACLF were the same deficiencies cited in the denial letter of July 4, 1994, which eventually resulted in a default Final Order being issued against Scarlet Manor on the basis of the administrative complaint on September 7, 1994. Administrative fines in the amount of $3,250 were assessed against Scarlet Manor, which fines remain unpaid and no payment plan has been arranged. A default Final Order was issued against Scarlet Manor in AHCA No.: 05-94-052-ACLF on September 7, 1994, wherein an administrative fine in the amount of $1,750 was assessed against Scarlet Manor, which fines remain unpaid and no payment plan has been arranged.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, and considered the factors set forth in Section 400.419(2), Florida Statutes, and Rule 10A-5.033, Florida Administrative Code, it is recommended that the Petitioner Agency For Health Care Administration enter a final order finding that Respondent Scarlet Manor has outstanding fines for which there has been no payment plan arranged. It further recommended that Respondent Scarlet Manor's renewal license be denied unless such fines are paid forthwith or a payment plan is arranged under the terms and conditions the Agency deems appropriate. RECOMMENDED this 21st day of June, 1995, in Tallahassee, Florida WILLIAM R. CAVE, 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 21st day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4475 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact: 1. Proposed findings of fact 1 through 23are adopted in substance as modified in Findings of Fact 1 through 39. Respondent's Proposed Findings of Fact: 1. Proposed findings of fact 1 through 9 are adopted in substance as modified in Findings of Fact 1 through 36. COPIES FURNISHED: Thomas W. Caufman, Esquire Division of Health Quality Assurance Agency for Health Care Administration 7827 N. Dale Mabry Highway, Suite 100 Tampa, Florida 33614 Eloise Taylor, Esquire Taylor and Wilkerson 11912 Oak Trail Way Port Richey, Florida 34668 Sam Powers, Agency Clerk Agency for Health Care Administration The Atrium, Ste. 301 325 John Knox Road Tallahassee, Florida 32303 Jerome W. Hoffman, General Counsel Agency for Health Care Administration The Atrium, Ste. 301 325 John Knox Road Tallahassee, Florida 32303
The Issue The issues in this case are: Whether Respondent, St. Joseph Garden Courts, Inc. ("Garden Courts"), discriminated against Petitioner, Lillian Craig ("Craig"), on the basis of her race (Caucasian) in violation of the Florida Fair Housing Act; and Whether Gardens Courts retaliated against Craig when she filed a discrimination claim.
Findings Of Fact Craig is an elderly Caucasian woman, who at all times material hereto resided at Garden Courts. Garden Courts is a federally-funded, multi-unit housing project that provides housing to elderly and lower income individuals under Section 202 of the Housing Act of 1959, as amended. On February 27, 2009, Craig entered into a "202 Project Rental Assistance Contract" (the "Lease") with Garden Courts. Craig agreed to lease Unit 311 for the sum of $465.00 per month, plus $60.00 per month for utility services. Craig agreed to abide by all terms and conditions of the Lease, including the Rules and Regulations attached thereto as an addendum. The Rules and Regulations attachment contains the following provision at paragraph 30: Authorized personnel will enter the apartment periodically for routine inspections, maintenance replacement/repairs, and pest control. Routine inspections, as required by HUD, are conducted to determine the condition of the dwelling unit, that the unit is decent, safe and sanitary, and in good physical condition. Inspections may reveal possible lease violations. Photographs will be taken if determined necessary. Any lease violations found during these inspections may result in termination of tenancy. On October 10, 2010, Garden Courts conducted a routine housekeeping and maintenance inspection of Unit 311. Mott, as property manager, headed up the inspection. Mott used a form checklist consistent with Department of Housing and Urban Development (HUD) guidelines for the inspection. Inspections of several other units were performed on the same day. The inspections were conducted by Mott with the assistance of Rudy (last name not provided), the maintenance director. Generally, Mott would inspect the kitchen and bathroom, while Rudy inspected the bedroom(s). Inspections were performed to assure cleanliness, orderliness, and compliance with all safety requirements. Upon inspection of Unit 311, Mott determined that there was one minor deficiency, a dirty stovetop, and one major problem, a fire hazard in the bedroom. The apartment was deemed free of roaches and vermin, free of trash and garbage, and in a "fair" state of cleanliness. Photographs were taken on the unit to document the major deficiency. The situation causing a major fire safety problem in the unit was that Craig had boxes and furniture stacked up in the bedroom which blocked the outside window. Inasmuch as there need to be two methods of ingress/egress for each room, the boxes illegally blocked one of the escape routes. The boxes also were stacked so high that the inspectors could not reach the smoke detector to determine whether it was functional. Further, the boxes blocked the electrical outlets so that they could not be tested. The fact that the boxes contained lots of paper was a concern to Garden Courts due to the possibility of fire. Due to the deficiencies, a follow-up inspection had to be scheduled. Garden Courts usually asked the tenant whether he or she wanted the re-inspection to occur within 15 days or 30 days. In this case, Craig asked for some time to rectify the problem and requested re-inspection a month later. Garden Courts honored her request and scheduled a re-inspection for the unit on September 10, 2010, one month after the initial inspection. Craig was advised by Mott that the boxes and furniture in the bedroom were the cause of Craig's apartment not passing the inspection. There is no credible evidence that Mott told Craig to move the boxes or face eviction. The best evidence is that Craig understood the need to move the boxes and volunteered to do so if she was afforded ample time. When Mott came back to re-inspect the unit a month later, the boxes had been moved. Craig claims she was treated differently from other tenants during her inspection. On the same date that Unit 311 was initially inspected, Mott and Rudy also inspected Units 210, 217, 306, 325, 119, and 116. The tenants of each of those units were Hispanic. Craig asserts that she was treated differently, because she was not Hispanic. That is, Unit 116 also had an issue relating to stacks of boxes, but Mott did not take a picture of that apartment. According to Mott, that was because the other unit was not, in her opinion, as severe a problem as Craig's unit. Each of the Hispanic tenants was given two weeks to a month to correct his or her cited deficiencies, depending on the nature and severity of the issues. Craig was allowed one full month to correct her deficiencies. The tenant of Unit 116 was ultimately given additional time to move the boxes in her apartment due to her physical condition. That tenant asked for and received additional time; Craig did not ask for additional time, because she was able to move her boxes before the scheduled re-inspection. Shortly after the re-inspection, Craig contacted the Jacksonville HUD office to complain about her treatment by Mott. Craig actually filed a Housing Discrimination Complaint with HUD, alleging discrimination based upon her race, Caucasian. HUD notified Mott about the complaint and asked Mott to speak to Craig about the allegations. Mott then tried to contact Craig to discuss the complaint. However, the phone number Mott had for Craig did not have a voice mailbox set up, so Mott was not able to leave Craig a message. On September 15, 2010, Craig returned to Garden Courts after doing some grocery shopping. As she walked through the lobby, Mott asked her to stop and talk for a moment concerning the HUD complaint. Craig indicated that she could not talk at that time because she had to get her groceries put away. Mott told Craig that attempts to leave Craig a message on her cell phone were thwarted due to the fact that the message box had not yet been set up. Craig disputed that statement, saying that she was receiving messages from other people. Craig says that Mott grabbed her arm and yelled at her. Mott remembers only speaking to Craig in a normal tone of voice and requesting a meeting. There is no persuasive evidence as to how the conversation actually occurred. Mott awaited a return call or visit from Craig for a few hours, then drafted a letter to Craig when there was no further contact. The letter again asked Craig to contact Mott to discuss the HUD complaint. The letter included the cell phone number that Mott had on file for Craig and asked Craig to contact Mott by the end of the following day. Craig, however, was apparently unwilling to talk with Mott on her own, so she went to speak with an attorney, rather than contacting Mott. There is no indication that Mott and Craig ever had a meaningful discussion between themselves about the fire hazard issue. At some point in time, a meeting was held that both Mott and Craig, along with legal counsel, attended. However, the results of that meeting are not in evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Lillian Craig in its entirety. DONE AND ENTERED this 13th day of July, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 July, 2011.
