The Issue Whether Respondent subjected Petitioner to an unlawful employment practice based on Petitioner’s race, in violation of section 760.10, Florida Statutes (2016)1/; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Aaron Pittman, a black male, was at all times relevant hereto employed at Sunland Center (Sunland) by the Agency for Persons with Disabilities (APD). Sunland Center is an assisted-living facility operated by APD in Marianna, Florida, serving clients with intellectual and developmental disabilities. Petitioner was first employed at Sunland on August 7, 1987, as a Maintenance Mechanic. Petitioner’s full-time job was to maintain wheelchairs for use by residents. According to Petitioner, the work was very steady, with continuous repairs to footrests, wheels, seats, and many other parts of well-used wheelchairs throughout the facility. Petitioner remained in that position for 17 years. In 2007, Petitioner was promoted from Maintenance Mechanic to Electronics Tech II. The duties of the Electronics Tech II include installation of televisions, cleaning fire detection and other safety equipment, conducting fire drills, and repairing all manner of electronics. After Petitioner was promoted to Electronics Tech II, an employee with the last name of Moss was assigned to wheelchair maintenance. Apparently Mr. Moss was not capable of performing the duties of wheelchair maintenance and requested Petitioner’s assistance with those duties. Mr. Moss left Sunland sometime in 2010. When Mr. Moss left, John Kramer, Maintenance Supervisor, asked Petitioner to help out “temporarily” with the wheelchair maintenance. Petitioner testified that he agreed to resume wheelchair maintenance “temporarily” because Mr. Kramer was “a nice man and [Petitioner] wanted to help him out.” Petitioner first worked overtime on a night shift to complete the wheelchair maintenance work. However, Petitioner did not request prior approval for the overtime and was instructed to take time off to compensate for the overtime. Clarence Holden, Sr., a black male, was employed at Sunland for 40 years. Mr. Holden began in an entry-level position, but was promoted to a supervisory position. Mr. Holden supervised Petitioner during Mr. Holden’s last five years of employment in the position of Telecommunication Specialist. Mr. Holden also supervised Keith Hatcher, the only employee other than Petitioner in the Maintenance Department. Mr. Hatcher retired sometime before Mr. Holden. Mr. Holden retired in 2014, leaving Petitioner as the only employee in the Maintenance Department. Petitioner testified that he “took over [Mr. Holden’s] duties” when Mr. Holden retired, but was never compensated for essentially working two jobs. Petitioner never supervised any employees at Sunland. Petitioner did not have any authority to hire or fire other employees or perform evaluations of other employees. After Mr. Holden’s retirement, Petitioner asked Allen Ward (whose position in the chain of command was not identified) about applying for the Telecommunication Specialist position. Petitioner was told management was “holding” that position. Petitioner testified that Mr. Ward advertised and filled the position of Telecommunication Specialist “while [Petitioner] was out.” Petitioner admitted that the position of Safety Specialist3/ was eventually advertised, and that Petitioner did not apply for the position. Amanda Johnson, former Employee Relations Specialist at Sunland, met with Petitioner sometime in 2012 regarding his complaint about working two positions without additional compensation. In June 2013, Petitioner received a ten-percent salary increase “for additional duties and responsibilities for maintaining resident wheelchairs and electric/mechanical hospital beds.” Petitioner seeks back pay for performing duties of two positions beginning in 2010. Petitioner separately complains that he was subject to harassment based on his race and Respondent failed to do anything about it. Petitioner testified that there used to be an employee who used the “N word,” and under a previous administration the supervisor would “take care of it,” but that under the current administration “nothing happens.” Petitioner indicated that other employees used to “make postings about lynching.” Petitioner did not identify any specifics of those incidents--when they occurred, who made the posting, or whether there were consequences to those employees. Petitioner complained that a fellow employee once wrote “Trump” on a dirty work truck. However, when the incident was reported, the manager washed the truck. Petitioner complained that white employees sit around and talk with each other for extended periods without any consequence, but that if he sits to talk with a fellow employee for 15 minutes “people complain.” Petitioner has never been disciplined by Respondent. Respondent is managed by a black Superintendent and black Deputy Superintendent. Sunland employs a number of black mid-level managers and supervisors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief from an Unlawful Employment Practice filed by Petitioner against Respondent in Case No. 201700575. DONE AND ENTERED this 30th day of March, 2018, 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 30th day of March, 2018.
The Issue The issue is whether Respondent engaged in an unlawful employment practice by discharging Petitioner because of her age.
Findings Of Fact Respondent, the Pasco County Board of County Commissioners, is a governmental entity, and the Pasco County Library System is one of its departments. Petitioner, a female, was born on July 2, 1955. Respondent first employed Petitioner on or about September 8, 1997, as a Library Assistant II, a paraprofessional position. When Respondent hired Petitioner to this position, she was 42. On April 9, 2001, Petitioner was promoted to a Librarian I trainee position, at the age of 45. On February 4, 2002, Petitioner was promoted to a Librarian I position, at the age of 46, after she earned a Master's Degree in Library Science. The position of Librarian I is an at-will position, meaning that the person serving in such position can be terminated for no cause. Petitioner continued to work in the position of Librarian I until Respondent terminated her on or about March 24, 2005. Prior to 2002-2003, Petitioner's annual evaluations were favorable. Even after Petitioner was promoted to the Librarian I position, her annual evaluations rated her job performance in several categories, as well as her overall job performance, as "meets standards." The rating of "meets standards" indicates that the employee's performance "generally meets the supervisor's expectations on most performance criteria." Notwithstanding Petitioner's overall ratings of "meets standards," in the annual evaluations for 2002-2003 and 2003- 2004, her performance in some categories was rated as "needs improvement." Petitioner's annual evaluation for the period from April 2, 2002, to April 9, 2003 (the 2002-2003 evaluation), rated Petitioner's performance as "needs improvement" in several sub-categories under the following three categories: (1) Application of Professional Skills; (2) Performance of Routine and Special Assignments; and (3) Working Relationship, Communication, and Coordination with Other Personnel. Under each broad category, there were four sub-categories as well as a sub-category for the total rating in that particular category. On Petitioner's 2002-2003 evaluation, under the category, "Application of Professional Skills," Petitioner was rated as "needs improvement" in one sub-category. That sub- category was, "no unnecessary delays are encountered in performing assignments or resolving problems." On the 2002-2003 evaluation, under the category, "Performance of Routine and Special Assignments," Petitioner's performance in all sub-categories was rated as "needs improvement." These sub-categories were as follows: (1) conformance with schedules, standards, and plans does not require close supervision; (2) deviations in instructions, work schedules, and standards are approved by supervisor or corrected; (3) new and additional assignments are readily accepted and performed; and (4) work is of sufficient quality and quantity to meet supervisor's expectations. With regard to the category, "Performance of Routine and Special Assignments," the supervisor's written comments on the evaluation indicated notes that Petitioner should be at her assigned work location at scheduled times, and should obtain approval in advance from her supervisor prior to changing her work location and/or assigned work times. The written comments on the evaluation also stated that Petitioner had difficulty accepting a new supervisor, but indicated that Petitioner was responsible for readily accepting and implementing instructions from her supervisor. The 2002-2003 evaluation rated Petitioner's performance in all the sub-categories under the category, "Working Relationship, Communication, and Coordination with Other Personnel," as needs improvement. The sub-categories were as follows: (1) conflicts or problems in working relationships are usually resolved without intercession of higher authority; (2) needs, problems, and procedures are communicated to affected parties; (3) desired results are accomplished through subordinate and other personnel; and (4) few and only minor problems occur because of inadequate communication and coordination of activities. With reference to the category, "Working Relationship, Communication, and Coordination with Other Personnel," on the 2002-2003 evaluation, Petitioner's supervisor wrote, Petitioner has the propensity for starting projects at the last minute which negatively affects other team members. Furthermore, in the written comments on that evaluation, the supervisor directed Petitioner to communicate regularly with other team members when collaborating on projects and to communicate needs and problems to her supervisor before deadlines. On the 2002-2003 evaluation, under the category, "Other Factors Important to Supervisor," Petitioner's supervisor noted that Petitioner "is encouraged to learn and adapt to change." Petitioner's second annual evaluation (the 2003-2004 evaluation), while employed as a Librarian I, covered the period of April 9, 2003, to April 9, 2004. Petitioner's 2003-2004 evaluation, like her 2002-2003 evaluation, rated her overall performance as "meets standards." However, on the 2003-2004 evaluation, Petitioner's supervisor rated her performance in three sub-categories as "needs improvement." In the 2003-2004 evaluation, the first category in which Petitioner was rated as "needs improvement" was "Application of Professional Skills." The specific sub-category in which Petitioner was rated as "needs improvement" was "no unnecessary delays are encountered in performing assignments or resolving problems." With regard to the category, "Application of Professional Skills," on the 2003-2004 evaluation, Petitioner's supervisor wrote that Petitioner has excellent reference skills, is resourceful and determined to provide good customer service, has highly developed problem solving skills, and has made many helpful and logical suggestions that have benefited the library. However, the supervisor's written comments also noted that, "the strength of some of [Petitioner's] ideas may occasionally make it difficult for [her] to adjust quickly when a decision is made to proceed in a fashion that differs from the way she believes is correct." On the 2003-2004 evaluation, in one of the four sub- categories under the category, "Performance of Routine and Special Assignments," Petitioner's performance was rated as "needs improvement." That sub-category was "new and additional assignments are readily accepted and performed." With regard to the category, "Performance of Routine and Special Assignments," the supervisor's written comments on the 2003-2004 evaluation indicate that Petitioner served as reference support for many branches throughout the county, that her efforts are appreciated by staff and supervisors at those branches, and that her willingness to travel to the various locations on an ever-changing basis is commendable. The supervisor further noted that in addition to her other assignments, Petitioner developed a series of on-line tutorials. However, in addition to the foregoing commendations about Petitioner's work, the supervisor wrote that "there has been occasional reluctance to initiate some assignments in a timely fashion on [Petitioner's] part." The third area in which Petitioner was rated as "needs to improve" was a sub-category under the category, "Working Relationship, Communication, and Coordination With Other Personnel." The specific sub-category under that category in which Petitioner's performance was rated "needs to improve" was "conflicts or problems in working relationships are usually resolved without the intercession of higher authority." With regard to this category, the evaluation notes that Petitioner is a respected member of the Pasco County Library System. However, the evaluation states that Petitioner "is reminded that she should strive to complete her assigned duties in a timely fashion so as not to affect her co-workers in a negative way." Petitioner's 2003-2004 evaluation also made detailed comments in an area designated "Other Areas Important to Supervisor." While acknowledging that Petitioner is an intelligent and thoughtful employee, and that her suggestions are consistently logical and well thought out, the supervisor's written comments on the evaluation stated, "[Petitioner] has been told . . . that she needs to develop her ability to accept and implement decisions that she may not agree with. She has also been told to focus more of her efforts on being a team player rather than defending her own position (no matter how defensible that position may appear)." Petitioner received and signed the 2002-2003 and the 2003-2004 annual evaluations, and was verbally counseled by two of her supervisors. There is no dispute that Petitioner was a competent librarian and well trained for the position. Moreover, Petitioner did a good job on her work-related assignments if they were assignments that she liked, but she tended to ignore assignments that she did not want to do. Such conduct created problems on the job by requiring other employees to do some work-related tasks assigned to Petitioner. Following Petitioner's 2002-2003 and 2003-2004 evaluations, there was an work-related assignment which ultimately culminated in Respondent terminating Petitioner's employment. The assignment was an important, extensive, and comprehensive project that required team work. That assignment, referred to as "weeding," was given to all librarians in or about October 2003. The project required the librarians to "weed" assigned sections in the library by removing outdated and damaged books and materials. New books and materials were to be ordered to replace those outdated and damaged books and materials. Petitioner believed the "weeding" project was a 15- month project with a projected completion date of December 2004. In April 2004, Petitioner's supervisor asked her when she would complete her portion of the weeding project. Petitioner did not respond to her supervisor's question. Instead, Petitioner asked her supervisor if the deadline for completing the project had changed. In August 2004, Petitioner's supervisor again asked her when she would have her assigned weeding project complete. As she had in April 2004, Petitioner responded to this inquiry by asking her supervisor if the "deadline" had changed. Petitioner never gave her supervisor a specific or approximate time when she would complete the project, but only said she would complete the project "soon." This response was non- responsive and gave the supervisor no information regarding how much of the Petitioner's weeding assignment was complete, how much of the assignment remained to be done, or when she would complete the assignment. After Petitioner failed to respond to her supervisor's inquiry about when she would complete the weeding assignment, the supervisor pulled Petitioner off the weeding assignment. He then assigned another librarian to complete Petitioner's weeding assignment that she had not yet completed. That librarian completed Petitioner's assigned weeding in about a day and a half. Based on Petitioner's failing to complete her assignment described in paragraph 25, Petitioner's supervisor conferred with appropriate human resources personnel about terminating Petitioner's employment. Upon completion of the review process, Petitioner's employment was terminated. In a letter dated March 24, 2005, Respondent notified Petitioner that, effective immediately, her services at the Pasco County Library Services were no longer required. The letter did not give a reason for Respondent's termination. Petitioner's employment as a Librarian I was an at- will position. Accordingly, Respondent was under no duty to give Petitioner a reason for her termination and could, in fact, terminate her for no cause. Petitioner alleged that she was terminated in retaliation for following a supervisor's directive that Petitioner terminate the services of a library volunteer. Petitioner also alleged that Respondent terminated her employment, based on her age, in order to bring in younger librarians and to move out the older librarians. Petitioner's allegation that she was terminated based on her age is not supported by the evidence. First, the allegation that her employment was terminated because she followed a supervisor's directive to terminate the services of a library volunteer does not in any way establish that Petitioner was terminated because of her age. Second, although Petitioner alleges that there was an effort to bring in young librarians and to move out the older librarians, the evidence established that there was no interest in or effort to hire only young librarians and fire the older librarians. Rather, there was an effort to promote persons currently in Librarian I positions with the Pasco County Library System, regardless of their age, and to bring in new librarians into the entry level positions. The average age of professional and management staff in the Pasco County Library System is 46, even though the Librarian I is an entry level professional position and may attract younger candidates. The reason Petitioner was terminated as a librarian, with the Pasco County Library System, was because of her job performance and not because of her age.
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 committed no unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 31st day of January, 2007, 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 31st day of January, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Barbara DeSimone Pasco County Board of County Commissioners d/b/a Pasco County Library System 7530 Little Road New Port Richey, Florida 34654 Cyd Johnston Stewart 3801 Allen Road West Virginia, Florida 33541 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues in this case are whether, in violation of the Florida Civil Rights Act, Respondent terminated Petitioner's employment on the basis of her race, or retaliated against her for engaging in protected activity; and whether Respondent subjected Petitioner to a hostile work environment.
Findings Of Fact Respondent Cole, Scott & Kissane, P.A. ("CSK"), is a law firm having offices throughout the state of Florida. Petitioner Latasha McCleary ("McCleary"), an African-American woman, worked for CSK in its Orlando office as a legal assistant from August 7, 2017, through July 31, 2018. However, because McCleary began taking medical leave on June 6, 2018, and never returned to work, her last day in the office was June 5, 2018. Thus, the period of time in which McCleary actually functioned as a regular CSK employee was ten months. During her tenure with the firm, McCleary provided secretarial and administrative support to several attorneys, including partner Bartley Vickers and associates Jeremy Beasley and Shawn Gibbons. McCleary's direct supervisor was the then office manager, Lilliam Hernandez. CSK regarded McCleary as a valued and high-performing employee. Although, as will be discussed, McCleary complains that she was subjected to unfair criticism during the last weeks of her time in CSK's Orlando office, she was never reprimanded, disciplined, or subjected to an adverse employment action. For the first nine months of her employment, McCleary got along well with the attorneys for whom she worked, including Mr. Vickers, and she has no complaints about their treatment of her during this period. The only noteworthy incident or incidents of relevance to have occurred in this time frame are a secretary's use, on one or perhaps more occasions, of the "n- word" in McCleary's presence. An employee's use of this racial epithet in the workplace is, of course, extremely offensive and inflammatory, to say the least, and, if unchecked, could create a hostile work environment. That did not happen here, however. The legal assistant who made the offensive remark (apparently in the presence of peers only, not supervisors or managers) apologized to McCleary when the latter expressed her discomfort. McCleary never reported the incident(s) in writing to the firm's management, as the Employee Handbook required——a fact from which the undersigned infers that she accepted her co-worker's apology——and the bad behavior stopped. The upshot is that this upsetting incident was resolved informally among the affected employees without initiating an investigation by the firm, and a nascent problem was nipped in the bud. The watershed moment in this case occurred on May 7, 2018, at the beginning of McCleary's tenth month with CSK. An expert witness retained by CSK was scheduled to conduct an on- site inspection that day but failed to appear, forcing a last- minute cancelation which caused opposing counsel to incur travel expenses that CSK had to reimburse. McCleary mistakenly had failed, on the previous business day, to confirm the expert's availability, as the firm's routine required, and thus, she bore some responsibility for the unwanted results. That said, there is no evidence that this situation was other than a relatively minor inconvenience that could be fixed, learned from, and forgotten. When the problem came to light on May 7, 2018, Ms. Hernandez, the office manager, sent an email to McCleary reminding her that the inspection "should have been confirmed" beforehand to avoid a "waste[] [of] time and money." McCleary apologized for making a "human error" and promised it would not happen again. On May 9, 2018, Mr. Vickers, the partner, sent an email to McCleary and Mr. Gibbons, the associate, telling them that "some form of confirmation is needed" "for confirming inspection dates." He added: "This is a mistake that I imagine will not happen again, and I am glad we can move past it and look to the future without these types of issues again." The only thing remarkable about these emails is how unremarkable they are. Two points of interest will be mentioned. First, as just suggested, the tone of each message was neither derogatory nor personal, but measured and professional. There was a touch of criticism, to be sure, as would be expected, but the criticism was constructive in nature, not harsh or angry in tone. Second, McCleary was not the only one called to account. Mr. Vickers's email was directed as much to the associate attorney as to McCleary. The next day, Thursday, May 10, 2018, Mr. Vickers conducted a training meeting for the legal assistants in his group, which McCleary attended. There were a number of topics on the agenda, covering a range of administrative tasks that CSK expected its litigation support staff to carry out. Although Mr. Vickers brought up that week's scheduling snafu as an example of miscommunication-driven consequences, no evidence suggests that McCleary's mistake had prompted the meeting. Further, McCleary was not identified in the meeting as having been at fault or involved in the incident. McCleary, however, complains that she was "singled out" during the meeting, "80% [of which, she maintains,] covered what happened with [her] in regards to the May 7th re-inspection." The greater weight of the evidence does not support her characterization of the training session. According to McCleary, Mr. Vickers, who had been a good boss for the previous nine months, suddenly turned into a tyrant around May 10, 2018. McCleary alleged in an email written a few weeks later, on June 1, 2018, that soon after the canceled inspection, Mr. Vickers had begun asking her "idiotic questions to be sure [she knew] her job," and been constantly micromanaging [her] with multiple emails" accusing her of making numerous mistakes. Yet, although this entire period spans just 18 business days, McCleary produced none of Mr. Vickers's alleged, accusatory emails. The greater weight of the evidence does not support McCleary's allegations concerning Mr. Vickers's treatment of her during the month of May 2018. Sometime near the end of May, McCleary sent out notices of taking deposition duces tecum that did not have the document requests attached. McCleary was not solely to blame for this oversight; the attorney handling the case should have reviewed the papers to make sure that everything was in order before service. Still, as the legal assistant, McCleary should have spotted the omission and brought it to the attorney's attention. On the morning of May 31, 2018, after the problem had been discovered, Mr. Vickers sent an email to McCleary and Mr. Beasley, the associate, admonishing them to "stay focused" when preparing deposition notices for service. Similar to the canceled inspection earlier in the month, the incomplete deposition notices were a problem that CSK obviously would rather have avoided; inattention to detail, moreover, is something any reasonable employer should want to correct. There is no evidence, however, that CSK generally, or Mr. Vickers in particular, made a big deal about this incident. Mr. Vickers told McCleary and the associate that he hoped "it would not happen again"——and that, it seems, would be that. Except it wasn't. Later that day, May 31, 2018, McCleary spoke to the office administrator, Johnson Thomas. During this conversation, McCleary complained about working for Mr. Vickers and asked to be transferred to a different group of attorneys. On Friday, June 1, 2018, McCleary again contacted Mr. Thomas, sending him the email mentioned above. This email was the first written notice that CSK received from McCleary concerning her complaints about Mr. Vickers. In the email, McCleary did not allege racial discrimination, per se, but she did include some language which clearly indicated that such a charge might be forthcoming: "I refuse to subject myself to further retaliation, oppression and disrespect from Mr. Vickers. He is creating a hostile working relationship between us. I cannot concentrate on work and am in need of immediate transfer." (emphasis added). The following Tuesday, June 5, 2018, CSK approved McCleary's request to be transferred, assigning her to the work group headed by partner Melissa Crowley. When the announcement was made, Ms. Crowley sent an email to McCleary stating, "Welcome Latasha! I look forward to working with you." McCleary never reported for duty under Ms. Crowley. Instead, she took a sick day on June 6, 2018, and applied for unpaid medical leave. Despite McCleary's having presented somewhat nonspecific reasons, such as heart palpitations and anxiety, the firm granted McCleary's application and placed her on medical leave through July 11, 2018. In mid-July, McCleary provided CSK with a note from her mental health counselor in support of a request to extend the unpaid medical leave until September 5, 2018. On July 12, 2018, the firm informed McCleary that it would not be able to keep her position open that long without hiring a replacement, but agreed to let her remain on leave until July 31, 2018. CSK made it clear to McCleary that she needed to return to work on August 1, 2018, or face dismissal on grounds of abandonment. McCleary did not return to work on August 1, 2018, and the firm terminated her employment. Ultimate Factual Determinations There is no persuasive evidence that CSK took any actions against McCleary motivated by discriminatory animus, or created (or acquiesced to the creation of) a hostile work environment. Indeed, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of unlawful racial discrimination could be made. There is no persuasive evidence that CSK took any retaliatory action against McCleary for having opposed or sought redress for an unlawful employment practice. Ultimately, therefore, it is determined that CSK did not discriminate unlawfully against McCleary on any basis.
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 CSK not liable for race discrimination, retaliation, or creating a hostile work environment. DONE AND ENTERED this 20th day of December, 2019, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 20th day of December, 2019. COPIES FURNISHED: Reshad Favors, Esquire Mosaic Law Firm Tenth Floor 1875 Connecticut Avenue Northwest Washington, DC 20009 (eServed) Robert Alden Swift, Esquire Cole, Scott & Kissane, P.A. Tower Place, Suite 750 1900 Summit Tower Boulevard Orlando, Florida 32810 (eServed) Barry A. Postman, Esquire Cole, Scott & Kissane, P.A. Second Floor 1645 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue to be resolved in this proceeding concerns whether the Respondent discriminated against the Petitioner because of his alleged disability.
Findings Of Fact The Petitioner, Charles H. Miller, was employed by the Respondent, Department of Transportation, for approximately 15 years. In October 1999, Mr. Miller injured his ankle in a work-related accident. He experienced chronic pain and mobility limitations as a result of the accident and continually received medication and psychological and/or physical therapy to help relieve the symptoms of his condition. Mr. Miller wore a brace on his injured foot and took various narcotic pain relievers. On May 2, 2001, Petitioner began seeing Lewis Fabrick, Ph.D., a licensed clinical social worker. Dr. Fabrick determined that Mr. Miller was suffering from depression, anxiety and stress that resulted partly from the pain from the physical injury and partly from the side effects of the medication. However, the Department was not aware of the nature or extent of Mr. Miller's mental or emotional issues. Prior to December 2000, Mr. Miller reported directly to Thomas Malerk, the State Materials Engineer. At that time, Mr. Miller was acting as the data center manager and supervised several other employees. Around November 2000, Mr. Malerk assigned another employee to supervise Mr. Miller and eliminated Mr. Miller's supervisory responsibilities. Mr. Miller's pay and benefits were not affected by this change. Mr. Malerk took this action to correct problems with the data center that had resulted in complaints about Mr. Miller and the data center. Mr. Miller's physical condition was not a factor in Mr. Malerk's decision to change Mr. Miller's job. In December 2000, Mr. Miller complained to the Department's ombudsman that coworkers were making fun of his ankle brace and physical limitation. Mr. Miller alleged that Mr. Malerk had joked about Mr. Miller needing a boot on the other foot to match and that the personnel officer, John Cooper, would pretend to "draw like a cowboy" in a manner that ridiculed Mr. Miller's condition. Mr. Miller also alleged that another co-worker, Gale Page, was harassing him by making fun of his physical limitations. Neither Mr. Cooper or Mr. Page had any supervisory responsibility over Mr. Miller. After receiving Mr. Miller's complaint, the ombudsman contacted Mr. Cooper and Mr. Malerk to inform them of Mr. Miller's concern. At approximately the same time, Mr. Miller also told Mr. Cooper that he was being harassed by Mr. Page, Mr. Malerk, and Mr. Cooper. When Mr. Cooper asked Mr. Miller to specifically identify the harassment that had occurred, Mr. Miller only specifically reported that Mr. Page had made fun of his walk or his leg. Mr. Cooper then informed Mr. Malerk of Mr. Miller's complaint and approached Mr. Page. Mr. Cooper told Mr. Page that he should refrain from making comments about Mr. Miller's condition. When Mr. Malerk learned of Mr. Page's remark to Mr. Miller, he reprimanded Mr. Page and requested that he apologize or otherwise clear the matter. Mr. Malerk also discussed the matter with Mr. Miller. Mr. Malerk apologized to Mr. Miller for anything he might have said that was insensitive and asked Mr. Miller if he had made any inappropriate remarks. Mr. Miller told Mr. Malerk that they did not have a problem and that he considered the matter with Mr. Page closed. Other than the incident with Mr. Page, and the accompanying accusations involving Mr. Malerk and Mr. Cooper, neither Mr. Cooper or Mr. Malerk had any reason to believe that any Department employee might be harassing Mr. Miller or making jokes about his injury or condition. Contrary to Mr. Miller's claim, the evidence does not indicate that either Mr. Malerk or Mr. Cooper even made fun of Mr. Miller's condition. Mr. Miller and Mr. Malerk have known each other since 1997 and were friendly with each other. On May 22, 2001, the Department dismissed Mr. Miller. The decision to dismiss Mr. Miller was based upon a number of violations of the Department's conduct standards, including Mr. Miller's insubordination, absence without authorized leave, display of an uncooperative or antagonistic attitude, and a violent outburst by Mr. Miller on May 21, 2001, when he was advised of the Department's intention to dismiss him. The issues relating to Mr. Miller's dismissal were fully litigated in a proceeding before the Public Employees Relations Commission, which culminated in a Recommended Order and Final Order upholding the Department's decision to dismiss Mr. Miller for violation of the Department's conduct standards. Mr. Malerk was responsible for requesting Mr. Miller's dismissal. Mr. Malerk requested Mr. Miller's dismissal for the violations of the Department's conduct standards that were included in the dismissal letter and was not motivated to request his dismissal in any part by Mr. Miller's physical problems.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has been subjected to discrimination within the meaning of the relevant provisions of Chapter 760, Florida Statutes, based upon alleged sexual harassment in the course of her employment and retaliation for her complaints concerning the alleged sexual harassment.
Findings Of Fact The Petitioner was an employee of the Respondent at times pertinent hereto. It is undisputed that that Respondent is an employer within the meaning of Chapter 760, Florida Statutes, and that timeliness and jurisdictional requirements have been met. The Respondent obtained a contract with the United States Navy for a project to be performed at the Naval Air Station in Pensacola, Florida. It became the contractor for the project in approximately December of 1991. The contract, in pertinent part, provided that the Respondent would provide local cartage trucking services for the Navy on and in the environs of the Pensacola Naval Air Station. The project involved loading and transportation of aircraft parts and related supplies and equipment. The Petitioner was hired as a truck driver, delivering aircraft parts for the naval aviation depot (NADEP). During the course of that employment, there came a time when the Petitioner contended that she had been discriminated against because of her gender. The Petitioner contends that in a meeting in December of 1991, she was told by Terry Meyers, an employee of the Respondent and the Petitioner's supervisor, that she "didn't look like a truck driver" and that she had three weeks to look for another job. The meeting in which the statements were allegedly made was a meeting called by the Petitioner's supervisor and the project manager, Mr. Danny Francis, to address certain deficiencies in the Petitioner's performance. Another employee, Mr. Braughton, was also counseled at the meeting concerning his performance as a truck driver. His was the same type of employment position as that occupied by the Petitioner. Mr. Braughton is a white male. The Petitioner maintains that she informed a white male employee, Mike Morris, of the statements allegedly made at the meeting and that he immediately made a telephone call to Mr. Frank Moody, the president of the corporation, to put the president and the corporation on notice of sexual discrimination against the Petitioner. The Petitioner, however, was not present when Mr. Morris made that telephone call to Mr. Moody. Even had he made reference to alleged sexual discrimination in his telephone call to Mr. Moody, Mr. Morris only learned of the purported sexually-discriminatory statements from the Petitioner. The Petitioner maintained that Mr. Morris informed her that he had heard the statements made while standing at the door of the room in which the meeting occurred and that Mr. Morris initiated the telephone call on his own volition to Mr. Moody, based upon hearing those statements. Mr. Morris, however, testified to the contrary, stating that the Petitioner approached him and claimed that she was on probation and was fearful of being laid off from employment and that the Petitioner told him of the alleged sexually-discriminatory statements and that he did not hear them himself. He further testified that the Petitioner instructed him to contact Mr. Moody concerning her fears about her job and the alleged discriminatory statements or she would contact "HRO and EEO and have the contract shut down". Mr. Morris, indeed, called Mr. Moody but never mentioned the statements alleged by the Petitioner to have been made to her by Mr. Meyers during the performance evaluation meeting. In fact, it has been demonstrated by Mr. Morris' testimony, which the Hearing Officer accepts as more credible, that the Petitioner never complained to Mr. Morris about a sexually-discriminatory statement or purported sexual discrimination. Mr. Morris, instead, spoke to Mr. Moody about problems he saw occurring in the operation in Pensacola which he attributed to the project manager, Mr. Danny Francis. He told Mr. Moody that Mr. Francis was allowing employees to leave work early without Mr.. Moody's knowledge and still crediting them with working a full day on such occasions which, in effect, cost the corporation additional salary monies which were unearned. The meeting in which the Petitioner was allegedly confronted with the statement that she did not look like a truck driver and had three weeks to look for another job was called and conducted by Mr. Francis and Mr. Meyers was present. It is undisputed that Mr. Moody terminated Mr. Francis shortly after the telephone conversation with Mr. Morris. He replaced Mr. Francis with the current project manager, John Jacobs. Mr. Moody testified that in a telephone conversation with the Petitioner that she never mentioned to him the alleged sexually-discriminatory statements referenced above. Instead, he was told by both Mr. Morris and the Petitioner that she was concerned that she might lose her job because of the results of the meeting with Mr. Francis, in which he told her that she needed to improve her job performance. In fact, the management of the Respondent perceived a genuine job performance problem involving the Petitioner's conduct of her job duties. This was disclosed in the testimony of both Mr. Jacobs and Mr. Morris, where it was revealed that the Petitioner had had a continuing problem performing her job correctly and that Mr. Morris and the management personnel had worked with her constantly during the course of her employment term with the Respondent, taking more time and personal attention with her than with other employees. This was done in order to repetitively explain her job duties and give her additional chances to improve her work performance, in comparison to the lesser degree of attention and remedial help that they accorded other employees. Prior to February 3, 1993, the Petitioner had been employed with the Respondent for over a year. The testimony of Mr. Jacobs established, however, that even though her probationary period had long since elapsed, he still considered the Petitioner to be, in effect, an employee in training because she was deficient in correctly accomplishing all of the duties of her job. She was slow in performing her job duties, including preventive maintenance inspections of her vehicle and in making the "pickups and deliveries" of freight she was required to transport on her truck in the performance of her duties. The counseling session concerning her work performance occurring in December of 1991, referenced above, was during her probationary period. The white male employee, Mr. Rick Braughton, who was also counseled about deficient work performance on that occasion, was informed that he might not remain employed past his probationary period unless his performance improved. The Respondent had a regular practice and procedure, as part of its truck safety and preventive maintenance program, that employees, who were drivers, were required to give a preventive maintenance and safety inspection of their vehicles each day prior to leaving the company facility or terminal to transport aviation parts or other freight. This was regarded as crucial to proper job performance by the employer because of the concern about safety of the drivers and avoidance of damage, and liability for damage, to the expensive equipment and parts which the Respondent was required by its contract to transport, such as expensive military aircraft parts and related equipment. Among these preventive maintenance inspection duties that driver/employees, such as the Petitioner, were required to perform daily was the requirement to check the air in the truck tires and "top off" the tires with the required air pressure, if necessary. 10 Mr. Jacobs established that there came a time when the Petitioner was noted to have failed on multiple occasions, in the same week, to check and air her tires. Finally, upon this deficiency coming to his attention again on February 3, 1993, Mr. Jacobs suspended the Petitioner for a day without pay, for failing to check and air her tires. The Petitioner claims that she was the only employee singled out for this treatment concerning failure to inspect and air her tires. The testimony of Mr. Jacobs is deemed more credible, having observed the candor and demeanor of all of the witnesses, and it is determined that the employer had a good-faith belief that the Petitioner was deficient in this regard and that the reprimand, consisting of the one-day suspension, was justified. It was not demonstrated that, even if the Petitioner's version of events is true and that other driver/employees were not disciplined for failure to air their tires, that such a circumstance occurred as a result of the employer's knowledge of other driver/employees failing to air their tires and arbitrarily choosing not to discipline them. In fact, it was not demonstrated by preponderant, non-self-serving evidence that other employees had not been disciplined for failure to air their tires. In fact, it was not shown, other than by the self-serving testimony of the Petitioner, that other employees had failed to air their tires when required. The other drivers are mostly male, but one is a female. There was no showing that she was treated any differently than the male drivers. In summary, it has been established that the employer accorded the reprimand to the Petitioner because of a good-faith belief that her performance had been deficient, on repeated occasions, in this respect. It is undisputed that prior to the date the Petitioner received the reprimand, consisting of one-day suspension without pay, that the Petitioner had a generally good attitude about her job insofar as management was able to observe. Even though management had had some concerns about her performance and the slow manner in which she was learning certain aspects of her job, with resulting deficient effects upon her performance, management forbore from using these concerns to reduce her performance rating. She received good evaluations of her performance, insofar as her personnel record is concerned, prior to the time she was suspended for one day on February 3, 1993. After the Petitioner received the suspension she developed a "bad attitude" insofar as her perception of management was concerned. She began to complain frequently about vehicle safety or purported concerns she had about the condition of her vehicle related to safety, particularly the truck brakes. Prior to her suspension, she had never complained in this regard. Management also perceived that she appeared to show down her work performance and management came to believe that it was an intentional delay of her work performance on an ongoing basis. Prior to receiving the reprimand, she was never known to complain to management concerning discrimination on account of her gender. She had never informed the project manager or any other supervisory personnel concerning her purported belief that employee Meyers was "following her". Only after she received the reprimand on February 3, 1993 did she elect to file a sexual discrimination charge with the Commission. Mr. Meyers had some supervisory authority over the Petitioner. His job duties also required that he drive his truck around the Naval Air Station and the immediate vicinity in the normal performance of his duties. This circumstance resulted in his being in close proximity to the Petitioner during the course of their respective work days. He contends that he was not purposely following her for the purpose of harassing her. The overall evidence of record reveals, however, that he, indeed, did follow or stop in her vicinity on a number of occasions to observe her work performance. This was not shown to be out of the ordinary scope of his supervisory duties, especially because of management's concern that the Petitioner was not progressing in the learning and performance of her job duties as well as other employees, including the other female driver. The project manager, Mr. Jacobs, felt that the Petitioner's attitude continued to decline after the February 3, 1993 reprimand. He felt that her attitude and performance reached its lowest level on the date she was observed to be loading "unauthorized equipment" (apparently a portion of a helicopter assembly weighing approximately 4,000 pounds) on the flatbed trailer of her assigned work truck. She was not authorized to load that equipment and apparently, according to her testimony, she did so in order to provide a substantial amount of weight on her trailer for the purpose of having her brakes inspected by the quality assurance official for the project. She went to an unauthorized area for approximately one hour to have this inspection performed without the approval of the Respondent's management. Further, it was not necessary, in order to evaluate the brakes on the vehicle for proper function and safety, to have the weight of the unauthorized load placed on the trailer. If, indeed, the brakes had been defective, it would have been entirely possible that the expensive aircraft parts she had placed on the trailer without authorization could have been substantially damaged, the truck or other property could have been damaged, and, indeed, the Petitioner or other persons could have been injured. Additionally, the Petitioner misrepresented the reason she was in the unauthorized area where she had her brakes inspected by Mr. Lett, the quality assurance officer. In this connection, because she had begun to complain repeatedly about the condition of her brakes and her vehicle (after her reprimand), the project manager, Mr. Jacobs, had had certain other employees come in on several occasions at approximately 6:00 a.m., before normal working hours, and before the Petitioner arrived on the job site, to inspect the Petitioner's truck for safety and appropriate preventive maintenance purposes. These employees were not informed that it was the Petitioner's truck they were inspecting at the time they were told to do the inspections. The Respondent was attempting to ascertain the true condition of the Petitioner's truck and determine whether her reports concerning safety problems, particularly with her brakes, were accurate or not. In fact, on the morning of the day when the unauthorized load was placed on the truck and the Petitioner had Mr. Lett perform the inspection of her brakes at the unauthorized area, one of the Petitioner's co-employees had inspected her brakes before she arrived to take custody of her truck that morning. He had determined that the brakes were operating properly. The Petitioner and Mr. Lett apparently felt that the brakes were deficient when they were inspected early in the afternoon of that day. The record does not reveal whether the brakes were deficient when Mr. Lett inspected them or that some change in the adjustment of the brakes or other problem had arisen since the employee inspected them early that morning and found them to be in proper operating order. Be that as it may, management was of the belief on that day and prior thereto that the Petitioner, although reporting brake deficiency problems, did not truly experience such brake deficiency problems with her truck. This belief was based upon management perceptions concerning the Petitioner's attitude after her reprimand and upon the independent, confidential inspections management had other employees do on the Petitioner's truck. Accordingly, whether its belief was accurate or not, management was of the good-faith belief, on the date she was observed loading unauthorized, expensive equipment onto the flatbed truck, in an unnecessary fashion, for the purpose of having her brakes inspected, while being absent from her work assignment for one hour in an unauthorized area, that it had performance-related reasons to terminate her, which it did. This decision was made against the background of the increasingly poor attitude displayed by the Petitioner since her reprimand and because of the continuing problems management had experienced with the Petitioner's job performance since her initial employment one and one- half years previously. Although the Petitioner testified that as early as December of 1991, the management of the Respondent had spoken with her regarding her work performance and she interpreted that meeting as an attack on her gender and not upon her poor work habits, this contention was not verified by any other testimony. Having observed the candor and demeanor of the Petitioner versus that of the other witnesses, it is determined that her testimony is less creditable because of its self-serving nature. Although the Petitioner testified that a comment was made that "she did not look like a truck driver" and that she had three weeks to find another job, this was not verified through testimony of any other witness. To the extent that any other witnesses testified concerning these statements being made in a belief that discrimination had been exhibited toward the Petitioner, the evidence reveals that this information only came to these people through self-serving reports by the Petitioner herself. Meyers directly contradicts that these statements were made to the Petitioner and he states that he never heard anyone tell her that she had three weeks to look for a job or that she "didn't look like a truck driver". The petitioner provided no testimony or evidence which could show how these alleged statements constituted "sexual discrimination" or how the statements related to her sexual discrimination claim. It was not shown that any member of management, with employment-decision authority, made or condoned such statements even if it had been established that they evidenced gender-based discrimination, which was not done. The Petitioner did not complain of sexual discrimination per se until after she had received a reprimand from management. Likewise, she began to repetitively claim that her equipment was unsafe after the reprimand. The Petitioner may have been overly sensitive to management's concern for safety inspections of her truck because of being reprimanded for safety violations and was afraid she would "get into trouble" with management if she did not constantly report feared safety problems. The fact was established, however, that management had a genuine, good-faith belief that it was being harassed by these repetitive, unsafe equipment reports by the Petitioner, given the then- prevailing atmosphere surrounding the Petitioner's employment, characterized by her less than satisfactory attitude, as perceived by management, and the fact that management's confidential inspections of her equipment did not reveal any safety problems of the type reported by the Petitioner. Finally, it is especially noteworthy that during this period of time when the Petitioner made the claim of sexual discrimination and retaliation based upon her claim, that the Respondent had in its employ, in an identical job position, a female truck driver who had had no unsatisfactory experience by management with her performance, was not subjected to investigative or disciplinary measures, and who is still satisfactorily employed with the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the petition herein in its entirety. DONE AND ENTERED this 7th day of March, 1995, in Tallahassee, Florida. P. MICHAEL RUFF 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 7th day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1459 Petitioner's Proposed Findings of Fact The Petitioner has submitted proposed findings of fact which are not in separately-numbered, discrete paragraphs. The paragraphs contain some proposed findings of fact which the Hearing Officer accepts and some which are rejected as being not supported by preponderant evidence and subordinate to the Hearing Officer's findings of fact on the same subject matter. The proposed findings of fact submitted by the Petitioner are intertwined with argument and discussions of the weight of the evidence or testimony. Because the paragraphs in the proposed findings of fact contain both findings of fact which the Hearing Officer accepts and which the Hearing Officer rejects, discrete, specific rulings thereon are not practicable. It suffices to say that all of the proposed findings of fact submitted by the Petitioner are subordinate to, but have been considered and addressed in the findings of fact portion of this Recommended Order and have been in that fashion completely ruled upon. Respondent's Proposed Findings of Fact The same considerations are true of the Respondent's proposed findings of fact. Some portions of the findings of fact proposed by the Respondent consist of merely discussions and argument concerning the weight of the evidence and some are acceptable to the Hearing Officer based upon the Hearing Officer's determination of the weight and credibility of the testimony and evidence. Some are rejected as being unnecessary or subordinate to the Hearing Officer's findings of fact made on the same subject matter. Here, again, this Recommended Order completely and adequately addresses the proposed findings of fact submitted by the Respondent, and the Respondent's proposed findings of fact are accepted to the extent they are not inconsistent with those made by the Hearing Officer and to the extent they are inconsistent therewith, they are rejected as being not supported by preponderant evidence or as being immaterial, unnecessary, or subordinate to the Hearing Officer's findings of fact. COPIES FURNISHED: Barry W. McCleary, Esquire 3 West Garden Street Suite 380 Pensacola, FL 32501 Donna Gardner, Esquire 213 South Alcaniz Street Pensacola, FL 32501 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
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 The issue is whether the Respondent discriminated unlawfully against the Petitioner by discharging him because of a handicap contrary to Chapter 760, Florida Statutes, and, if so, the nature and extent of financial loss suffered by the Petitioner.
Findings Of Fact The Petitioner, Shannon M. Spence, was employed from March 1993 until May 1, 1993 by the Respondent. The Respondent is an employer as defined by Chapter 760, Florida Statutes. The Petitioner, who earned on average $125/week, was employed by the Respondent as a bouncer and "bar backer", a person who assisted the bartender. On or about April 29, 1993, the Petitioner suffered an on the job injury which was duly reported to the employer and for which the Petitioner was treated at a local hospital pursuant to arrangements made by the employer. The Petitioner's injury was determined to be a right inguinal hernia, and the Petitioner was cautioned against lifting more than 25 pounds and standing for long periods of time. The Petitioner reported for work the following day, and communicated to his supervisor his inability to lift and to stand for long periods of time. His supervisor, Jess Wall or J.W., placed the Petitioner on security detail for the parking lot and entrance. There were additional light duties available for security personnel within the employer's business in which the employee could have been placed. The Petitioner's employment was terminated later that evening. The testimony is conflicting regarding whether the Petitioner was discharged because he was dating another employee, or because he was injured, or quit in sympathy with Jess Wall, who was also terminated on that evening. The most credible evidence is that the Petitioner was discharged because of his injury, but was told it was because he was dating another employee. The prohibition against dating was a new rule, it was applied against the Petitioner without any prior warning, the female employee was not discharged, and the Petitioner was the only person discharged for this activity although there were others who dated employees. The alternative theory that Petitioner quit in sympathy with the head bouncer, Mr. Wall, is specifically rejected for lack of credibility of the various witnesses. The Petitioner subsequently settled his workman's compensation claim arising from this injury with the Respondent for $15,000. No details were received regarding the allocation of moneys for medical and wages. The Petitioner is entitled to back wages from his discharge until the hearing on April 27, 1995, less any mitigation, including any portion of the settlement of his workman's compensation claim attributable to lost wages, occurring after surgical repair of the hernia when the Petitioner was reemployed. The Petitioner is entitled to reasonable costs and attorneys fees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Commission find that the Petitioner was unlawfully discriminated against by the Respondent, and that the Respondent be ordered to pay the Petitioner his lost wages from May 1, 1993 until April 27, 1995 less any amounts the Petitioner earned during this period and any amounts included in the workman's compensation settlement specifically provided for wages; that the Commission retain jurisdiction for the award of damages and attorney's fees and costs; and the Commission remand the matter for a determination of the attorney's fees and costs and to permit the Respondent to present any evidence in mitigation of its damages. DONE and ENTERED this 20th day of June, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, 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 20th day of June, 1995. APPENDIX The parties filed proposed findings which were read and considered. The following states which of their findings were adopted and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1,2 Subsumed in Paragraph 1 and 2. Paragraph 3-5 Subsumed in Paragraphs 3-5. Paragraph 6-8 Subsumed in Paragraphs 6-9. Paragraph 9 Subsumed in 3 and 11. Respondent's Recommended Order Findings Paragraphs 1-3 Paragraphs 1-3 Paragraph 4 Rejected because the date was April 29, 1993. Paragraph 5 Subsumed in Paragraphs 4,5. Paragraph 6,7 Rejected as contrary to more credible evidence. Paragraph 8,9 Subsumed in Paragraphs 10,11. COPIES FURNISHED: James P. Tarquin, Esquire Michael B. Staley, Esquire P.O. Box 906190 Ocala, FL 34478 John Daley, Esquire 201 E. Pine Street 15th Floor Orlando, FL 32801 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue Whether Respondent Employer is guilty of an unlawful employment practice against Petitioner Employee.
Findings Of Fact On or about November 17, 2006, Petitioner filed an Employment Complaint of Discrimination (formerly known as a "Charge of Discrimination") on the basis of disability/handicap and national origin with the Florida Commission on Human Relations. On June 15, 2007, the Commission entered a Determination: No Cause. On or about July 2, 2007, Petitioner filed a Petition for Relief with the Commission. On or about July 5, 2007, this case was referred by the Commission to the Division of Administrative Hearings. On July 18, 2007, a telephonic conference was held to schedule a final disputed-fact hearing date. The hearing date agreed upon was October 1, 2007, and a Notice of Hearing and Order of Pre-hearing Instructions issued on July 18, 2007. Neither party complied with the Order of Pre-hearing Instructions. At the time noticed for October 1, 2007, Respondent appeared for hearing. In the Joint Response to Initial Order, filed July 16, 2007, and in a subsequent Motion filed September 26, 2007, Respondent referred to itself as "Wal-Mart Stores, East L.P. (incorrectly referred-to in the caption as Wal-Mart Stores)," but made no motion to correct the style of this cause. Respondent acknowledged in its pleadings, and its counsel acknowledged orally at hearing, that it was the appropriate Respondent in this cause, regardless of the case's style. After waiting 30 minutes, Petitioner still had not appeared for hearing. The undersigned made diligent inquiry to ensure that Respondent had done nothing to discourage Petitioner from appearing, and closed the hearing.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Employment Complaint of Discrimination and a Petition for Relief. DONE AND ENTERED this 3rd day of October, 2007, in Tallahassee, Leon County, Florida. S ___ ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2007. COPIES FURNISHED: 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 Amy Harrison, Esquire Lindsay A. Connor, Esquire Ford & Harrison 225 Water Street, Suite 710 Jacksonville, Florida 32202 Catrina Soriano 1826 Nekoma Court Tallahassee, Florida 32304
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Fredrick Bass, was subjected to employment discrimination by the Respondent, The University of West Florida, on account of his race or disability or as retaliation because of his past filing of an EEOC complaint against a former employer.
Findings Of Fact The Petitioner is a black male with a disability involving a post- traumatic, arthritic condition of the left knee. In his past work history, the Petitioner had been a firefighter. When he was thus employed, on one occasion, he filed a discrimination complaint with the Equal Employment Opportunity Commission (EEOC) against the fire department where he was employed. The Respondent is the University of West Florida, a state agency. It became embroiled in the disputes at issue when it first advertised for the filling of a vacancy for the position of Senior Custodial Supervisor and, after the advertising and interviewing process described below, hired another black male with a disability, instead of the Petitioner. The Respondent advertised to fill the vacancy for the position of Senior Custodial Supervisor because of the death of the person who had previously occupied that position. There was an insufficient response to the first advertisement of the vacancy, and Dan Simpler, the Director of Building Services for the Respondent, who would supervise the occupant of that position, requested that the position be re-advertised. The Petitioner had not responded to the first advertisement, in any event. The second advertisement was issued in August of 1993. This time, the Petitioner was one of the applicants who responded. Several applicants withdrew after learning that the salary for the position would be at the lower-end of the advertised salary range and was insufficient for their needs. This left the Respondent with only three remaining applicants, who appeared to meet the minimum qualifications for the position. One of the three applicants was the Petitioner. The Respondent, in the conduct of its application and selection process, inquired of former employers, concerning whether they would give an applicant a favorable recommendation. The Respondent so inquired of the Petitioner's former employers. The Respondent was unable to obtain a favorable recommendation from any of the Petitioner's former employers. In response to Mr. Simpler's inquiry, the Chief of the Fire Department at the Naval Air Station in Pensacola, Florida, the Petitioner's most recent former employer, informed Mr. Simpler that he would not rehire the Petitioner if given the opportunity to do so. The Petitioner had informed Mr. Simpler that he believed that the Chief of the Fire Department would not give him a favorable recommendation because the Petitioner had once filed a complaint with the EEOC against that employer. In any event, Mr. Simpler deemed that having a pool of only three applicants gave the Respondent insufficient choices for the position. Therefore, he requested that the position be advertised for a third time in order to obtain a larger pool of applicants. In response to the third advertisement, a number of other applications were received. One of them was that of James O. Rankins, who is a male, African-American, who also has a disability. See Respondent's Exhibit 6 in evidence. Mr. Rankins' application reflected considerable supervisory experience, both during his service with the United States Army and his position as a Site Manager for Service Master, Inc. at the Monsanto plant near Pensacola, Florida. He retired from the United States Army as a Sergeant Major, the highest non- commissioned rank. In the opinion of Mr. Simpler and others involved in the hiring at the University, this demonstrated a high level of leadership capability. Since his military retirement, in his capacity as the Site Manager for Service Master, Inc., the maintenance contractor, at the Monsanto chemical plant near Pensacola, Florida, he had supervised 45 custodial personnel. He was responsible for cleaning and maintenance of 150 buildings and shops, as well as over 250 offices and restrooms. The Petitioner was an applicant in the third pool of applications in response to the third advertisement. Mr. Simpler learned of a former employer, Lanyap Corporation, and questioned the former owner concerning the Petitioner's previous employment at that firm. Larry Wiggins, the former owner of Lanyap Corporation, told Mr. Simpler that he would not rehire the Petitioner if given the opportunity to do so. Mr. Wiggins advised Mr. Simpler that the Petitioner had not been employed as a Supervisor by Lanyap Corporation, although the Petitioner had indicated that to be the case on his application for employment filed with the Respondent. The five persons on the Respondent's selection committee, charged with hiring to fill the subject position, considered the qualifications and experience of all of the applicants. After evaluating all of the applicants, with the assistance of personal interviews, the committee recommended that James Rankins be employed as the Senior Custodial Supervisor. Members of the selection committee recommended Mr. Rankins for the position based upon his superior qualifications and experience, including his demonstrated leadership and supervisory abilities. The Petitioner's race and disability were not factors in the selection process. Indeed, Mr. Rankins is an African-American, also with a disability, as shown by the Respondent's Exhibit 6 in evidence. Ms. Bertha Mae Jones is the staff member at the University who interviewed the Petitioner, as well as Mr. Rankins. Ms. Jones is black and has been employed at the University for 27 years. She does not recall hearing the Petitioner mention his handicap or disability but stated that it would not have mattered if he had one, as long as he could do the job in question. She also interviewed Mr. Rankins and felt that Mr. Rankins had much superior qualifications and experience. He demonstrated that he had had a long-term ability for good supervision. Because of his superior qualifications, Ms. Jones recommended that Mr. Rankins be hired instead of the Petitioner. None of the members of the selection committee, other than the Director of Building Services, knew that the Petitioner had filed an EEOC complaint against one of his former employers. The filing of that complaint was shown to have had no effect on the hiring decision made by the Respondent's selection committee. The selection committee's recommendation that Mr. Rankins be employed to fill the position of Senior Custodial Supervisor was forwarded to the head of the department and to the Vice-President for Administrative Affairs. The recommendation was accepted. Mr. Rankins, a black male with a disability, was hired by the Respondent to fill the subject position.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order concluding that the Respondent, the University of West Florida, did not commit an unlawful employment practice, by employing James O. Rankins to fill the position of Senior Custodial Supervisor, instead of the Petitioner. DONE AND ENTERED this 3rd day of January, 1996, in Tallahassee, Florida. MICHAEL RUFF, 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 January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2450 Petitioner's Proposed Findings of Fact The following numbers assigned to proposed findings of fact by the Petitioner do not correspond to any numbered paragraphs in the Petitioner's letter/proposed recommended order because there were no such numbered paragraphs. The Petitioner did prove that he belonged to a racial minority, and that proposed finding is accepted. The Petitioner's assertion that he was qualified for the position in question has not been proven, and that is rejected. The Petitioner's proposed finding that, despite his qualifications, he was rejected for the position, is rejected because he was found to be less qualified than the applicant chosen for the position. The Petitioner's proposed finding to the effect that, after his rejection, the position remained open and the employer continued to seek applicants with his qualifications, is rejected as not in accord with the preponderance of the evidence. The relevant advertisement and interviewing process was that after the third advertisement, when the Petitioner remained an applicant and Mr. Rankins' application was received, the position did not remain open, Mr. Rankins was hired at the conclusion of that third advertisement and interview selection process. The remainder of the Petitioner's "proposed findings", in essence, constitute argument concerning the weight of the testimony and evidence but to the extent that he attempts to assert that it has been proven factually that Mr. Simpler had not talked to the fire chief, the Petitioner's former employer, because the telephone numbers at the relevant fire station were not the same as the fire chief's actual telephone number, does not prove that Mr. Simpler did not talk to the fire chief. In fact, it is found that he did. This proposed finding, to the extent that it is one, is rejected. The apparent proposed finding that the five board members on the selection committee found the Petitioner qualified, subject to the fact that it had received bad recommendations from former employers, is rejected as not in accord with the preponderant weight of the evidence. In fact, the Petitioner was not the best qualified person for the position, Mr. Rankins was. These are the only proposed findings of fact that can be gleaned from the letter filed by the Petitioner. The remainder constitutes an attempt at legal and factual argument which do not constitute proposed findings of fact amenable to specific rulings. Respondent's Proposed Findings of Fact 1-13. Accepted. COPIES FURNISHED: Fredrick Bass 75 South Madison Drive Pensacola, Florida 32505 M. J. Menge, Esquire SHELL, FLEMING, DAVIS & MENGE Post Office Box 1831 Pensacola, Florida 32598 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was unlawfully discriminated against due to her age, with regard to her termination from employment on June 19, 1996, and, collaterally, whether her claim is barred by the doctrine collateral estoppel because of Findings of Fact and Conclusions of Law entered by a hearing officer in an unemployment compensation appeals proceeding also related to her termination from employment.
Findings Of Fact Roberta McCabe, the Petitioner, was employed by the Respondent, Woodland Towers, Inc., as a dining room manager from October 22, 1991, through June 19, 1996. During her employment with Woodland Towers that entity employed more than fifteen employees. Ms. McCabe's initial date of employment was August 19, 1991, but she began her capacity as dining room manager on October 22, 1991. She served in that capacity until her termination date of June 19, 1996. She was terminated on that date against her will. Ms. McCabe was born on June 3, 1935, and at the time of her termination she was sixty-one years of age. After her termination, on June 21, 1996, the Petitioner filed a claim against Woodland Towers with the Florida Department of Labor and Employment Security, Division of Unemployment Compensation. In that claim she first raised the issue that she had been discharged due to her age. That claim was filed, of course, before a different state agency, with a different jurisdiction, although the parties were the same. The legal issues were not established to be the same, however, with the exception that in that case, as in this one, the Petitioner raised the question of discharge due to age discrimination. The statutory standards for liability for unemployment compensation, however, were not shown to be co-extensive and identical to those statutory standards and statutory-based legal issues which prevail in the instant case before a different state agency. While the issue of age discrimination may have been the reason offered by the Petitioner in the employment compensation case for her separation from employment, as opposed to what was ultimately found (discharge for misconduct) that legal concept was not shown to have the same definition under the Unemployment Compensation statutes involved in that proceeding, nor was it shown that those statutes support the same or similar actions and remedies as does Chapter 760, Florida Statutes, under which the instant proceeding arises. Therefore it cannot be determined that the legal issues or, for that matter the factual issues in the instant proceeding, are substantially identical to those extant in the unemployment compensation proceeding. In any event, Ms. McCabe timely filed a charge involving age discrimination with the Florida Commission on Human Relations, on or about August 26, 1996. The matter ultimately came on for hearing before the undersigned judge. Ms. McCabe testified at hearing that the only act of discrimination she contends occurred with regard to her termination from employment, on June 19, 1996, occurred on that date and involved discrimination on account of her age. She did not, however, establish that anyone at Woodland Towers ever actually made any discriminatory comments or remarks regarding her age. Ms. McCabe essentially inferred from her status as an older employee, and the fact that she was terminated, the conclusion that Woodland Towers had terminated her on account of her age. She offered no testimony other than her own to support her claim of age discrimination. Conversely, Eleanor Gustavsson and Sidney Roberts both testified that age had nothing to do with their decision to terminate her. Their testimony was unrebutted by the Petitioner. The testimony supporting Petitioner's position that age discrimination or animus resulted in her termination is based solely on the Petitioner's own testimony, chiefly involving her conjectural position, without corroborating evidence, that Woodland Towers intended to terminate her because of her years of seniority which resulted in higher pay and benefits and that therefore, resultingly, her age, with attendant higher pay and benefits, in her position, caused her to be terminated in a discriminatory way, predicated upon her age. Moreover, the Petitioner failed to describe any other co-employee who committed a similar infraction but who was treated more favorably than the Petitioner and did not show that there was any other employee of a younger age who was treated more favorably after committing a similar infraction. The Petitioner did produce the testimony of two fellow employees and offered to produce others to testify that another employee was rude and hostile to the Petitioner. This is insufficient, however, to establish that she was discriminated against because of her age. It was not shown that that employee was in a supervisory position over the Petitioner and merely being rude and hostile to a fellow employee does not rise to the level of Ms. McCabe's infraction. It is therefore unpersuasive to show that Ms. McCabe was the subject of disparate treatment because of her age. Uncontradicted evidence was presented at hearing which establishes that the Petitioner was allowing employees under her supervision, in her capacity as dining room manager, to report for duty before normal working hours and begin work without compensation for the extra time. It was established that she was aware of and indeed responsible for these employees "working off the clock" or before "punching-in." The evidence establishes that she was aware that this was contrary to federal law and Woodland Towers' policy. She was also aware that she was responsible for supervising those offending employees and enforcing the law and policy concerning hours of employment. The Petitioner took full responsibility for the law and employment policy violation in this regard and admitted during the hearing that her actions violated Woodland Towers' employment hours policy. Additionally, Woodland Towers presented credible evidence that Ms. McCabe was terminated solely for reasons of violation of that federal law and policy concerning hours of employment. Woodland Towers' evidence establishes that her age was not the reason for her termination, but rather that her violation of federal law and employment policy concerning the working hours of her employees was that reason. That showing was not rebutted.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and argument of the parties, it is RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by the Petitioner herein. DONE AND ENTERED this 5th day of April, 1999, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1999. COPIES FURNISHED: Robert W. Lloyd, Esquire Cobb, Cole and Bell Post Office Box 2491 Daytona Beach, Florida 32115 Roberta McCabe 701 North Ocean Street Jacksonville, Florida 32201 Sharon Moultry, Clerk Florida Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
