Findings Of Fact Petitioner, James A. Wade, Jr., began employment with Respondent, Li'l General Stores, Inc. (Li'l General), on October 4, 1979. He had responded to an advertisement in the Orlando, Florida, newspaper for applicants for its management candidate program, one of the criteria for which was a college degree. There was no other training called for as a prerequisite, though an examination was required. Petitioner was a college graduate with a bachelor of science degree in Business Administration. The examination Petitioner took showed he lacked adequate retail experience, but he was kept in the program with the understanding he would be retested within one year. Though Petitioner requested retesting of his superior several times (he contends at least six), he was never retested, and whenever he requested retesting, he was told the prior failure to do so was an oversight and that someone would be up to test him in a few days. No one ever came to do so, however, even though Respondent's division manager over Petitioner, Val Draper, admits he recommended that Petitioner be retested. Petitioner worked for Respondent for two and one-half years as a store manager, even while awaiting retesting, having overall supervision of the stores in his charge. His immediate supervisor during the majority of this time was Ed Curtis, who, Petitioner contends, rated him on several occasions. All of these ratings, he contends, were good even though, for the most part, they were oral ratings not reduced to writing. There is, however, included in Respondent's Composite Exhibit A, a "Training Supervisor Orientation Program Training Report" dated January 20, 1981, and signed by Harry Economou, a training supervisor for Respondent, which bore "good" ratings (the highest available) in all four rated areas and the additional comment, "qualified for training supervisor." It is also noted that a payroll change form signed by Ed Curtis on December 17, 1980, when Petitioner was given a promotion and pay raise from $4.40 per hour to $4.80 per hour, bears the comment, "James has been doing a good job as manager at Store 1402-69 and is being transferred to Store 1402-44 (later properly identified as Store 1402-09), as the training store manager." During all this time, claims Petitioner, the position he wanted in the management candidate program was still open, as evidenced, he states, by the fact that the recruitment advertisements were still being run in the commercial paper and the position was listed in the internal newsletter received in the store. The management candidate program trains personnel for employment as district managers. The store manager positions he held do not come within the program. During the last two weeks of his employment with Respondent, Petitioner worked for a Ms. Porter, who replaced Mr. Curtis as District Manager, the position he had wanted. She came to his store several times during this period, at which times Petitioner asked her about his retesting. He finally told her if he was not retested, he would go to the "EEOC." It was at this point, he contends, his troubles began. Within a short while of his former comment to Ms. Porter, his store was audited on January 5, 1982, by Respondent's personnel, who found a shortage of in excess of $1,800.00. On the same day, Ms. Porter gave Petitioner a memorandum on the security of the cigarette cabinet, referring to a discussion they had had the week previous on the same subject. This memorandum also reflects two handwritten notations dated January 8, 1983, that the cabinet was found unlocked at 6:00 p.m. that date. Petitioner contends that in the oral discussion with Ms. Porter about the cigarette cabinet, she merely told him to keep it locked. He contends he was not told then that any disciplinary action would be taken against him for failing to do so. That argument is not persuasive, however, as the Respondent's Employee Rules of Conduct clearly reflect "automatic discharge" as the penalty for any "gross negligence which results in substantial cash loss," and permit suspension or termination for "failure to control inventory shortages." Though there is no direct evidence Petitioner was given a copy of this, presumably he was. As to the audit shortage, Petitioner contends that, based on the inventory methods utilized by Respondent, there is no way to show what items are missing--only a dollar amount and that the failure to control security of the cigarette cabinet could not have accounted for the $1,800.00 loss because his physical count of the cigarettes done when Ms. Porter talked with him the first time it was left open revealed the only cigarettes not in there were an off brand which had been sold. Mr. Draper, on the other hand, indicates that shortages can generally be identified through a comparison of section counts to the reports of previous audits. Cigarette and beverage cooler counts are done in the stores on a daily basis. Audits are conducted by a professional auditor who physically counts the store (inventory) and compares that count with the Division figure. While there was no showing by direct evidence that this was done here, again, presumably a regular procedure was followed here. Petitioner also attacks the accuracy of the shortage found in the audit through his testimony that approximately ten days before the audit, he had trouble with the cash register in the store, and for approximately four days, he had no working cash register. Petitioner contends he reported this to Ms. Porter and also called the supplier, who, he contends, called the Respondent corporation to get permission to put in a noncompany register while the broken one was being fixed. This offer was reportedly refused by Respondent. Again, there is no direct evidence that this happened with the recitation coming only from Petitioner, and Mr. Draper contests this. The ultimate responsibility for insuring a store has a cash register lies with the District Manager, and it is Draper's policy to either have the machine fixed on the spot or replaced with a loaner from Respondent's stocks. To the best of Draper's knowledge, this store was not left without a register for four days. He cannot, however, equivocally state what Petitioner contends is not true. Weighing the probabilities, however, the scale here tilts in favor of Respondent. It is not likely that a firm so large as Respondent, whose operation is so open to theft and pilferage as this is, would allow one of its stores, which evidence shows does from $15,000 to $30,000 per month in business, to go without a cash register for 4 1/2 days. Petitioner contends, as an additional basis for his complaint, that he did not receive a pay raise during the 2 1/2 years he was employed by the company and that all he received was a gas premium and pay for a management trainee. He further contends that all of the Caucasian store managers received higher pay raises than he. This latter contention is rebutted in documentation submitted by Respondent without objection by Petitioner which indicates that of 20 store managers listed, only four were earning more than Petitioner and one of those had prior convenience store experience. As to the former, it appears that on December 11, 1980, Petitioner was given an hourly pay raise from $4.40 to $4.80. The increase is identified as "salary" and "hourly," not to gas premium, and is justified by his transfer to another store and assignment as a training store manager. With the increase in responsibility goes the increase in pay. Petitioner contends that when he was discharged, he was given no reason for that action by Ms. Porter or Mr. Draper when he went to Draper's office to request one. He was terminated on January 12, 1982, by Ms. Porter, who on the Employee Action form listed as reasons therefor violations of company policy and continued poor performance, inter alia. It is not known whether these reasons were communicated to Petitioner, but from the state of the evidence, it may be concluded he was not. However, Ms. Porter's reasons for taking the termination action are clearly outlined in her memorandum relating to Petitioner found as the first attachment to Respondent's Composite Exhibit, admitted without objection of the Petitioner. This memo reflects a lack of leadership by Petitioner in correcting his employee attitude and performance and substandard performance in both store condition and the accomplishment of paperwork. The factor culminating in Petitioner's discharge is the repeated failure to control the cigarette cabinet, and Petitioner's contention that it was his assistant manager who was the culprit does not excuse him. As the manager, he was the responsible party and must bear the consequences of his failure to shoulder that responsibility. This situation is not offset by the fact that he had previously warned Ms. Porter that one of his employees had a record of dishonesty and was prevented from discharging this person, who, it must be added, was working in the store during the period of the inoperative register. 13,. Mr. Wade also contends that on one occasion, he was advised (by whom is unknown) that he must transfer to a different store located in a tough, black neighborhood because he is black. He refused the voluntary reassignment and states that while he was subsequently on vacation, he was involuntarily transferred there and told that if he wanted to stay with the company, he would have to accept the assignment.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED THAT the Petition of James A. Wade, Jr., be denied. RECOMMENDED this 29th day of May, 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1984. COPIES FURNISHED: Diana Kilpatrick, Esquire Post Office Box 2009 Daytona Beach, Florida 32017 Mr. Phillip S. Youtz Personnel Manager Gold Coast Region Li'l General Stores, Inc. 4191 North State Road 7 Lauderdale Lakes, Florida 33319 John R. Ficarro, Esquire Post Office Box 13198 Tampa, Florida 33681 Aurelio Durana, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303 Mr. Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303
The Issue The issue is whether Respondent discriminated against Petitioner based on Petitioner’s race.
Findings Of Fact Petitioner, Che Johnson, worked as a helper to full-time installers of hurricane shutters with Respondent. He was training to become a full-fledged installer. Respondent, AABC, d/b/a Roll-A-Guard (“Roll-A-Guard” or “Respondent”), is a company that installs hurricane shutters from its offices and warehouse in Largo, Florida. Petitioner filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations against Respondent, stating, under penalty of perjury, that Respondent had 15+ employees. When asked by Respondent’s president why he believed 15 people were employed by Respondent, he was unable to give an answer. Petitioner admitted he never saw 15 people at the warehouse when he was working there. Roll-A-Guard, between October 21, 2016, and January 20, 2017, which covers the entire time Petitioner was employed with the company, never had more than seven employees on the payroll. This was substantiated by a payroll report from Respondent’s Professional Employer Organization and by testimony of Respondent’s president. This number of employees is substantially below the statutorily required number of employees (15) for Roll-A-Guard to be deemed an “employer” for purposes of the Florida Civil Rights Act of 1992. Petitioner, an African-American male, claimed that he was discriminated against on the job by his boss and president of Roll-A-Guard, Andrew J. Ayers, referring to him in a racially discriminatory way when calling on customers on several occasions. Petitioner claims that Mr. Ayers asked customers on three to four occasions whether they thought Mr. Johnson “was as cute as a puppy dog.” This offended Mr. Johnson, and he believed the statement to be discriminatory against him on the basis of his race. Mr. Johnson offered no additional testimony, nor any additional evidence, other than his own testimony that these remarks were made by Mr. Ayers. Mr. Ayers denied, under oath, that he had ever referred to Mr. Johnson as a “puppy dog,” and was especially offended not only that Mr. Johnson never raised the issue with him, but that Mr. Johnson went to the company’s Facebook page after his employment was terminated, and posted comments about Roll-A-Guard being a racist company that discriminated against African- Americans. The other employees of Roll-A-Guard, who testified at hearing, also never heard the “puppy dog” remarks allegedly made, nor did they believe Mr. Ayers was prejudiced in any way against Mr. Johnson. Although the lack of 15 employees by Respondent fails to invoke the jurisdiction of the Civil Rights Act of 1992, the evidence at hearing demonstrates Mr. Johnson’s termination from employment was unrelated to his claim of having been called a “puppy dog” by Mr. Ayers. On the day Mr. Johnson was terminated from employment, January 20, 2017, Mr. Ayers informed the workers that no one should leave the warehouse for lunch due to a rush job on a substantial order of hurricane shutters. Despite Mr. Ayers’ warning, Mr. Johnson left for lunch in the afternoon and was unreachable by Mr. Ayers, who attempted to text him to order him to return to work. Mr. Johnson did not immediately respond to the texts. Although Mr. Johnson eventually responded to the texts from Mr. Ayers after 45 minutes to an hour, Mr. Ayers was perturbed by that point, and actually hired a new worker to replace Mr. Johnson, and told Mr. Johnson not to return to work since he was fired. Mr. Ayers fired Mr. Johnson, in part, because he believed Mr. Johnson was not only leaving for lunch, but for the weekend. Other witnesses working that day confirmed this by testifying they heard words to the effect of “See you Monday.” Mr. Johnson admitted he left for lunch, but testified that he intended to return that afternoon after he had eaten.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, Roll-A-Guard, is not an “employer” and, therefore, not subject to section 760.10, Florida Statutes, or any of the provisions of the Civil Rights Act of 1992, and dismissing Petitioner’s charge of discrimination against Respondent. DONE AND ENTERED this 3rd day of January, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2018. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Che Johnson 2428 Fairbanks Drive Clearwater, Florida 33764 (eServed) Andrew J. Ayers Roll-A-Guard Suite 206 12722 62nd Street Largo, Florida 33773 (eServed) Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent, Superior Optical Shop (Respondent), violated the Florida Civil Rights Act of 1992, Sections 760.01– and 509.092, Florida Statutes, by subjecting Petitioner, Janice Jennings (Petitioner), to discrimination in employment and by discharging Petitioner in retaliation for Petitioner’s opposition to Respondent’s discriminatory employment practices.
Findings Of Fact Petitioner is an African-American female. Respondent is a corporation with its corporate headquarters located in Ocean Springs, Mississippi. Respondent operates an optical shop in a Veteran’s Administration (V.A.) Hospital located in Lake City, Florida. At its Lake City location, Respondent fills prescriptions written by eye physicians at the V.A. Hospital, assists patients with choosing frames, and fits patients with their prescription eye glasses. Respondent’s optical shop in Lake City is fast-paced, with a constant stream of patients, averaging 50-to-60 patients a day. If the optical shop is running behind schedule, it is problematic because often physicians at the V.A. Hospital are waiting to see the patients served by the optical shop. In 2009, Petitioner interviewed for a position at Respondent’s optical shop in Lake City, Florida. During her interview, Petitioner advised Respondent that she had competent computer skills and significant experience working in an office environment and with eye doctors. On May 27, 2009, Respondent hired Petitioner as a part- time clerk at the optical shop. Petitioner was terminated prior to working 90 days for Respondent. When Petitioner was hired, two full-time employees worked at the optical shop: office supervisor, Jean Hartup, and optician, Kathleen Denton. Ms. Hartup has been employed with Respondent for approximately five years. Ms. Denton has been with the optical shop for approximately two and a-half years. As office supervisor, Ms. Hartup can be distant with employees and “hard” at times. She can also be “direct” when speaking to employees. Ms. Hartup demonstrates these traits with all of the employees at the optical shop. Ms. Hartup has written up Ms. Denton in the past and the two have had personality conflicts. Both Ms. Hartup and Ms. Denton assisted with training Petitioner. Evidence indicated that Petitioner received adequate training to perform the tasks she was assigned to perform as a clerk. She often had to be re-trained on the same tasks. Respondent’s optical shop in Lake City is a very small room, approximately ten-feet by ten-feet square inside the V.A. Hospital. There are two small desks in the shop and it is very crowded. Petitioner was aware of the small working environment at the time she accepted employment with Respondent as a part- time clerk. Past and present employees at the optical shop have had to share desk space. Sometimes work has to be performed in the hallway because of the small office space. All new hires for Respondent are subjected to a 90-day probationary period. As explained in Respondent’s “Employee Handbook of Office Policies and Benefits,” of which Petitioner was aware: There will be a 90-day probationary period during which time the employer may terminate the employee at any time for any reason or for no reason regardless of any other provision of these policies. Sick leave and personal days are accrued but cannot be used during this period. Respondent’s Employee Handbook of Office Policies and Benefits also provides: [Respondent] does not and will not tolerate any employee discriminating against their work peers for any reason i.e., race, color, religion, sex, national origin or handicap. Any known verifiable discrimination will be grounds for immediate termination. Once on the job, Petitioner was not proficient on the computer and, despite repeated training, failed to show any improvement and was slow in performing her job duties. Because of this, service to patients at the optical shop slowed down and the optical shop was frequently behind, resulting in physicians having to wait for patients being served by the optical shop. Ms. Hartup became frustrated with Petitioner’s unsatisfactory job performance and the resulting delays. In addition, Petitioner began to show a lack of interest in her job and even stated that she “didn’t really need a job; she just wanted to be out of the house.” Despite repeated training and opportunities to improve her work performance, Petitioner failed to improve. Petitioner was given a notebook with information from the American Board of Opticians for review but she failed to read it or return it to Respondent. Prior to the end of her employment with Respondent, Petitioner called Respondent’s corporate headquarters in Mississippi and spoke to Mary Walker. Petitioner complained to Ms. Walker that Ms. Hartup was being too hard, was impatient, and was expecting too much of her. Petitioner did not raise concerns with Ms. Walker that she was being discriminated against based on her race, or that she had been subjected to a hostile work environment because of her race. In fact, there is no evidence that Petitioner ever complained of race discrimination or a hostile work environment based on race discrimination while she was still employed by Respondent. During that first telephone conversation with Petitioner, Ms. Walker suggested to Petitioner that she should talk to Ms. Hartup about the problems. Petitioner assured Ms. Walker that she would. Two days later, Ms. Walker called Ms. Hartup and inquired whether Petitioner had discussed her concerns with Ms. Hartup. Petitioner, however, had not spoken to Ms. Hartup about her complaint. Ms. Walker gave Ms. Hartup the authority to run the optical shop at Lake City, including making hiring and firing decisions. Ms. Walker did not discipline Ms. Hartup because of Petitioner’s complaints. Rather, Ms. Walker told Ms. Hartup to handle the situation regarding Petitioner’s complaints. Ms. Hartup then met with Petitioner and they spoke about Petitioner’s concerns that Ms. Hartup was being too harsh and about Petitioner’s poor work performance. As a result of that meeting, Ms. Hartup felt the situation had been resolved. Petitioner subsequently advised both Ms. Denton, as well as Ms. Walker at Respondent’s headquarters, that the conversation with Ms. Hartup had gone well and that their issues had been resolved. Petitioner’s work performance, however, did not improve. Prior to the end of her 90-day probationary period of employment, Respondent terminated Petitioner from employment for poor work performance, for failing to reach her capabilities as an employee, and because her poor work performance was a detriment to Respondent’s Lake City optical shop. Petitioner testified that, from her point of view, she truly felt as though she had been discriminated against because of her race. That testimony, however, was without further support and was unpersuasive, especially in view of the fact that there is no evidence that Petitioner ever mentioned to anyone during her employment with Respondent that she believed she was being discriminated against. There was otherwise no evidence presented at the final hearing that would support a finding that Respondent’s decision to terminate Petitioner was in retaliation for Petitioner’s complaint against Ms. Hartup. Further, the evidence produced at final hearing does not support a finding that either the manner in which Petitioner was treated during her employment with Respondent, or her termination from that employment, was based on Petitioner’s race. Respondent filled the position of part-time clerk left vacant after Petitioner’s termination by hiring a Native- American male.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 29th day of July, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 29th day of July, 2010.
The Issue Whether the Respondent unlawfully discriminated against the Petitioner on the basis of race or handicap in discharging him from employment on February 25, 1992; and whether the Respondent unlawfully discriminated against the Petitioner and other black employees in pay for similar jobs.
Findings Of Fact During the summer of 1988, Larry Jelks, a black male, approached Jerry Sikes, the Director of Public Works of Suwannee Country, seeking employment. Petitioner, Jelks, explained and Sikes was aware that Petitioner had significant experience as a welder. Several weeks later, Sikes contacted Jelks and offered him a job as a laborer. The Petitioner began work of August 16, 1988 with a starting pay of $5.00/hour in the position of laborer, an entry level, unskilled job classification. The Petitioner received a copy of the employer's regulations. On August 24, 1988, the Petitioner was promoted to Serviceman, and his pay increased to $6.00/hour. On October 12, 1988, Sikes hired Mr. Praley, a white male, as a welder, although his expertise was as a mechanic and Praley was subsequently assigned duties as a mechanic by Sikes. Praley was paid a starting salary of $6.50/hour. The welder/mechanic position was open when Jelks was hired. On November 24, 1988, Petitioner completed his 100 day probation and given his annual 5 percent raise, increasing his pay to $6.30/hour. Other black employees also had their pay raises delayed until after their probation was completed. White employees, including Praley, received their annual raises in the year of their initial employment, notwithstanding their probationary status. This discrepancy in treatment of employees was not explained by the County. On September 30, 1989, the Petitioner laterally transferred to the position of truck driver for the refuse collection service because he did not enjoy the work of a serviceman. One October 1, 1989, Petitioner received an annual raise of 4 percent, to $6.56/hour. Subsequently, the axle in Petitioner's truck broke, and when he was questioned about it, he asked for a transfer. On March 3, 1990, the Petitioner was transferred to a shop position in which he repaired rusted or damaged garbage bins (dumpsters), by welding new sides and bottoms on them. The sheets of steel which Petitioner welded on the bins were 6 feet by 12 feet in size and 1/16" thick, and weighed approximately 180 pounds. These sheets were generally cut into smaller pieces prior to being moved from the stack in which they were stored. These pieces of material had to be moved into position to be cut and welded. The bins were moved using backhoes and forklifts. The Petitioner was responsible for moving the pieces of sheet steel and using the equipment to move the bins. On March 17, 1990, the Petitioner received a 5 percent pay increase to $6.89/hour. On April 28, 1990, the Petitioner received a 5 percent raise to $7.24/hour. On October 1, 1990, the Petitioner was given a 5 percent raise to $7.61/hour. In early 1991, the Petitioner's child became critically ill, and the Petitioner obtained leave to be with the child. In addition, Jerry Sikes approved flexibility in the Petitioner's scheduling to permit him be with the child conditioned upon Petitioner letting his supervisors know what he was doing and when he was going to be away from his job. Problems were encountered with Petitioner's attendance, and he was counseled about this and given a copy of the Country's leave policy. Generally, however, the Petitioner's performance was satisfactory, and he was considered a good and valued employee. On September 23, 1991, the Petitioner suffered a job- related injury, and was placed upon workers' compensation leave. The Petitioner received workers' compensation and disability benefits during his leave. During his absence the other employees performed his welding duties. While on leave, the Petitioner received a 3 percent pay increase to $7.84/hour. On November 25, 1991, Sikes wrote Petitioner a letter advising that he was required to submit doctor's notes concerning his absences while on workers compensation leave. On December 20, 1991, John B. Roberts, the County's workers' compensation (rehabilitation) consultant contacted Sikes and asked Sikes to identify an alternative position the duties of which the Petitioner could perform. Sikes advised Roberts that the County had no light duty jobs, but that driving a truck was one of the least physically demanding jobs in the County's maintenance department. He advised Roberts that he would assign the Petitioner to drive one of the light dump trucks if he returned to work. These trucks have an especially rough ride when operated off road, as these were. Roberts looked at the duties of the job, and determined that the Petitioner ought to be able to perform these duties. Roberts discussed returning to work and performing the duties of a truck driver with the Petitioner; however, the Petitioner advised Roberts that he wanted to talk with his attorney prior to returning to work. The Petitioner did not return and assume the duties of driving a truck in December as Roberts had arranged. On January 2, 1992, the Petitioner was sent a copy of a letter which was to Mr. Larry Sikes from Dr. Cason who had been treating Petitioner. The letter stated that the Petitioner was released from treatment to return to regular work activities as of January 2, 1992. On January 3, 1992, the Petitioner returned to work. He had a 4 percent permanent impairment, but his employer was not advised of this. His doctor advised the rehabilitation counselor that the Petitioner be placed on light duty because he would have to toughen up after returning to work. Sikes did not afford the Petitioner the opportunity to work back into the job. The Petitioner's work area was outside, behind the regular shop, exposed to the elements. It was very cold at the time the Petitioner returned to work. The Petitioner's production was low because he could not physically manhandle the large sheets of steel as he could prior to his injury. He asked that an inmate be assigned to work with him all the time, but assistance was denied to the Petitioner. The Petitioner asked for a backhoe, which he had previously modified, to move the bins and sheets around; however, this piece of equipment had been sent to the landfill. He was told to use a front end loader to do this work; however, he went to the landfill and retrieved the backhoe because he had difficulties climbing into the cab of the front end loader. His demands and getting the backhoe without permission created additional conflicts between the Petitioner and his supervisors. On January 8, 1992, Sikes issued the Petitioner a memo concerning his poor productivity and failure to follow the instructions of his supervisor. Prior to his injury, the Petitioner repaired approximately one bin per day. During the period after his return to work, he did approximately one bin every two to three days. When presented with the memorandum, the Petitioner advised that he was unable to do that which he had formerly done. The Petitioner was told that he was expected to do all his regular work. This motivated the Petitioner to return to the doctor and seek a clarification of what he could and could not do. In addition, Petitioner was also seeing a chiropractor regularly for treatment. Petitioner left work almost daily to see the doctor, and frequently did not return. He did not provide his employer with documentation of these visits. The Petitioner asked that an overhead chain hoist, similar to the one which was inside the shop area, be installed in his work area to move the sheets of steel to assist him. His direct supervisor, Mr. Horton, denied the request because it was expensive and required additional construction to support the mechanism. On January 13, 1992, the Petitioner received a second warning for being absent from work without notifying his supervisor. Sikes advised the Petitioner that he would have to comply with the County's personnel regulations which required prior notification and a note from the doctor. Although the Petitioner testified he was absent attending doctor's visits, he presented no other substantiation of these visits at the hearing. On January 22, 1992, the Petitioner submitted, as requested earlier, a report from Dr. James B. Slatery of Gainesville Orthopedic Group, advising that the Petitioner could return to work, but should avoid climbing and limit his lifting over 50 pounds to an occasional basis. A similar report was submitted by Dr. A. C. Bass. The metal sheets the Petitioner was lifting weighed over fifty pounds. The County failed to make accommodations for the Petitioner's physical problems upon his return to work in a manner it had for white employees. The county had placed recovering white employees in positions where they were flagmen, directed traffic, and in similar positions. The county placed the Petitioner back at his regular duties, stated it had no "light duty" positions, and demanded Petitioner perform all his duties to pre-injury standards of productivity. When the Petitioner asked for assistance in lifting the sheets of steel which were in excess of the weight allowance set by his doctor, the County told him to seek assistance from his coworkers, who were instructed to assist him. He had to wait until they finished with their immediate task, and they were less than happy about these interruptions, and going outside where the Petitioner worked. This slowed his production for which he received criticism from his supervisors. The conditions imposed by the employer were not so bad as to constitute a constructive discharge. However, had Petitioner filed an action at that time, he would have proven that he was treated differently than white employees who were accommodated for their physical problems when returning from workman's compensation leave. There was a verbal exchange between the Petitioner and one of his coworkers, Earnest Johns, arising out of their interactions in the shop. The Petitioner told Johns that he "would pass up a bus load of white girls, to make him (Johns) his bitch." Johns complained to Sikes about the Petitioner, and told Sikes, "he needed to do something about that Nigger." Sikes told Johns that he would take care of it and to calm down. Johns, who was very upset, subsequently apologized to Sikes for his confrontational manner in raising the matter with him. On January 25, 1992, Sikes sent the Petitioner another memo confirming a verbal warning about his poor work habits, wasting time, and absenteeism. On January 30, 1992, Sikes sent the Petitioner another memo regarding his poor work habits. In February, the Petitioner's wife, from whom he was separated, died, and he was granted three days bereavement leave for February 11-13, 1992. On February 18, 1992, the Petitioner called the shop and left word with a secretary that he would not be at work for the rest of that week. He did not submit a leave request for this period of time. Subsequently, the Petitioner was absent without permission from February 14 until February 24, 1992. The Petitioner did not obtain permission from his supervisors prior to taking this leave, did not request leave without pay, and did to explain his absence. Neither did his doctor, the rehabilitation counselor, his chiropractor, his attorney, or a member of his family or a friend report his absence and give any explanation. During this period, he appeared once at work to pick up his pay check on February 21, 1992. On this occasion the Petitioner did not address the matter of his absence with Sikes or Horton, although Horton advised he Petitioner that Sikes wanted to speak with him. The Petitioner had exhausted all of his sick and vacation leave prior to February 14, 1992. Under the County's rules, an employee had to request leave without pay after exhausting sick and annual leave, and the request had to be approved by the County Commission. The Petitioner did not make a request for leave without pay. Although the Petitioner asserts that he had not exhausted his sick leave because he was visiting the doctor during his absences which was covered by workers' compensation leave, he did not provide medical substantiation for the alleged treatments and doctors' visits as required by the employer's rules in order to obtain workers' compensation leave. On February 25, 1992, the Petitioner returned to work at starting time wearing work clothes. Horton stopped him on his way to his work area, and advised him that Sikes wanted to talk with him. Horton accompanied the Petitioner to Sikes office. Sikes asked the Petitioner were he had been, and the Petitioner answered that he had been attending to personal business. Sikes asked him for a more detailed explanation of his absence, and the Petitioner again told him that he had been tending to business and that Sikes should either fire him or get off his back. Sikes warned the Petitioner that unless he provided some explanation for his unauthorized absence, he would have to terminate him. The Petitioner refused to provide any additional explanation, but asked that his firing be put in writing. The Petitioner left the work place after the meeting, and did not return to work or attempt to explain his absences. Sikes viewed the Petitioner's absences and refusal to obey the personnel regulations as undermining his credibility as a supervisor. Several days after the confrontation on February 25, 1992, Sikes wrote a letter terminating the Petitioner for (1) continued or gross neglect of duty; (2) absence without leave; incompetence or unwillingness to render satisfactory service; insubordination; and (5) habitual absences, as provided in Parts X and XI of the County personnel regulations. Sikes extended special consideration to all employees of the department, who were permitted to take leave or be absent without applying for leave. The Petitioner was permitted to take leave without applying for it, and that considerable latitude was extended to the Petitioner regarding his absences prior to his being discharged. A white male, who was not handicapped, was hired on May 28, 1992 to file the position from which the Petitioner was discharged. The Petitioner appealed his discharge under the County's rules, and after an evidentiary hearing in which the Petitioner was represented by counsel, the county's hearing officer found that the dismissal was for cause in a Final Order dated September 24, 1992. Discrimination in Promotion and Pay among Blacks. The population and labor market statistics offered by the Petitioner in support of his contention that Blacks were discriminated against in promotion fail to support the proposition for which they were offered. For example, the Petitioner limits the labor pool to those persons who are over 16 and worked in 1989. However, there are those persons who are over 16 and would like to work, but who have not been hired. If the Petitioner's contention is correct, one would expect that for every white employee hired, there was a black applicant who was not hired. Therefore, comparisons based upon persons actually hired understate the percentage of Blacks in the labor pool. The relevant labor market for this dispute is Suwannee County, Florida, and the relevant labor pool are those people over 16 years of age who are now seeking, or who have in the past sought employment. According to the 1990 census, 14.7 percent of the population of the County is black. Blacks constitute 13.8 percent of the County's employees. The work environment was not overtly racist, and while, as stated above, racially charged verbal barbs were occasionally exchanged, there is no evidence that this was common or tolerated by the employer. The best evidence of discrimination by the employer were the actual practices engaged in by the County. During the 12 years prior to the termination of the Petitioner, the County had never had a Black supervisor. From 1989 to September 23, 1992, the County hired one black employee of 30 employees who it hired. Its top 10 highest paid employees were all white. The highest paid black was the forty-first highest paid employee of the County. Kevin Praley was placed in a welder's position despite the fact he was a mechanic at $6.50/hour; and Petitioner, who was a professional welder, was hired as a laborer at $5.00/hour in 1988. At the time Praley was hired, the Petitioner was making $6.00/hour, so that the differential between their pay was $.50/hour in 1988. After four years, Praley, who was hired after the Petitioner, was paid $2.01/hour more than the Petitioner for work which Sikes and others said was similar. This reflects continuing discrimination in hiring and paying Blacks. Blacks were hired in the lowest paying, menial jobs within the county, and this was not on the basis of education. All of the county's custodial employees are black. Only one of the county's secretaries is black. Until very recently, there were no black supervisors in the county's maintenance department. Most of the County's increases in Black employment and promotions occurred after institution of this case. The Clerk of the Circuit Court/Clerk of the Board of County Commissioners has not published a salary discrimination review required by Section 28.34, Florida Statutes. Further, the County's Equal Opportunity Program of 1992 provided for annual assessment of its progress in equal opportunity. As of May 9,1994, the County and not compile an annual report pursuant to its plan. The County did not train Black employees to assume greater responsibility, and did not utilize them as heavy equipment operators until after the institution of this action. The county did not pay Jelks and other Black employees annual pay raises while they were on probation; however, it did pay white employees Praley, Hardin, Simmons, Mobley, Luanne Mixon, Tervola, and Brother annual pay raises while they were on probation. These white employees were all hired prior to or during the year the Petitioner was hired. Jelks received the raise at the end of his probation period on November 24, 1988. Helen Stoudermire, Mattie L. Weatherspoon, Tyrone Tillman, and Marvette Gwinn, all black employees of the Respondent, did not receive annual raises while in probationary status, contrary to the treatment afforded white employees. The amounts of their collective salary losses were not presented as a finding of fact. The county did discriminate against the Petitioner and other black employees in pay and promotion during the period 1989 until February 25, 1992.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the Florida Commission of Human Relations enter a Final Order directing that: The Petitioner's Petition for Relief relating to his discharge be dismissed; Black employees of the County be certified as a class for the period beginning August 1988 until the present; The County be ordered to cease and desist its discriminatory practices in pay and promotion against the class of black employees; The County's Clerk be ordered to file reports on salary differentials are required by statute; and Reasonable attorney's fees and costs be awarded to Petitioner's counsel. DONE and ENTERED this 8th day of September, 1994, 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 8th day of September, 1994. APPENDIX CASE NO. 93-5330 Both of the parties submitted proposed findings which were read and considered. The following states which findings were adopted, and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 2 Paragraph 2 Rejected as contrary to more credible facts. See Paragraph 41. Paragraph 3 True, but part of statement of case. Paragraph 4 Paragraph 11. Paragraph 5 Paragraph 1. Paragraph 6 Subsumed in Paragraph 11. Paragraph 7 Subsumed in Paragraphs 11 and 17. Paragraphs 8,9,10 Paragraph 44. Paragraph 11 Conclusion of Law Paragraph 12 Paragraph 57. Paragraph 13 Contrary to facts. The Petitioner returned to duty. Paragraph 14 Irrelevant. Paragraph 15 Paragraph 48 Paragraphs 16,17,18 Paragraph 51 Paragraph 19,20 Contrary to more credible evidence. Paragraph 21 Subsumed in paragraph 54. Paragraph 22 Paragraph 56. Paragraphs 23,24,25 Paragraphs 2,3,4,58,60 Paragraph 26 Paragraph 26. Paragraphs 27,28 Paragraph 42. Paragraphs 29,30 Subsumed in 2,3,52,53. Paragraph 31 Rejected because Jelks received the raise at the end of his probation period on November 24, 1988. His reduction in pay was $.30/hour for October and November, or 8 weeks X 40 hours X .30 = $96.00. Paragraph 32 County's claims were rejected on this point. Paragraph 33 Paragraph 18 Paragraph 34 The statistical record is rejected for lack of credibility because it considers averages of both groups compared when there are findings which show whites held higher paying jobs. Paragraph 35 Subsumed in paragraph 32. Paragraph 36 Subsumed in paragraph 54. Paragraph 37 Rejected as contrary to better evidence. Paragraph 38 Subsumed in Paragraphs 26,27. Paragraph 39 Paragraphs 29,30. Paragraph 40 Is not addressed specifically because it violated the HO's directions that findings be kept short, and address specific factual matters, and is mostly argument. Paragraph 41 Subsumed in Paragraph 17. Paragraph 42 Paragraph 20. Paragraph 43 The County did accommodate some whites. Paragraph 44 Rejected as contrary to best evidence. Paragraph 45 Paragraph 50. Paragraph 46 Subsumed in Paragraph 55. Paragraph 47 Rejected. Welder and mechanic were the same job description. Paragraph 48 Irrelevant. Paragraph 49 Rejected because "handicap" relates to permanent conditions, and his permanent handicap was only 4 percent. It was his temporary condition which impacted his ability to perform the work. Paragraph 50 Irrelevant. Paragraph 51,52 The name calling by employees, to include Johns, occurred in the context of an angry exchange with Sikes, who cautioned Johns to calm down. Johns subsequently apologized to Sikes, and neither were aware that his comments had been overheard by Jelks. Paragraph 53 Paragraph 51. Respondent's Recommended Order Findings Paragraphs 1-5 Paragraphs 1-6 Paragraph 6 Subsumed in part in 1-6, and rejected in part as contrary to most credible evidence. Paragraphs 7,8 Paragraph 6 & rejected as contrary to most credible evidence. Paragraph 9 Rejected as contrary to most credible evidence. Paragraph 10,11 Paragraph 8 Paragraph 12,13,14 Paragraph 9,10 Paragraph 15 Paragraph 29 Paragraph 16 Paragraph 49 Paragraphs 17-23 Paragraphs 11-17 Paragraph 24 Paragraph 21 Paragraph 25 Paragraph 19. Paragraphs 26,27 Irrelevant. Paragraph 28 Paragraph 25 Paragraph 29 Paragraph 17 Paragraph 30 Rejected as contrary to most credible evidence. Paragraph 31 Paragraph 28. Paragraph 32 Irrelevant. Paragraph 33 Rejected as contrary to most credible evidence. Paragraph 34 Paragraph 20. Paragraphs 35,36 Paragraph 19 & rejected as contrary to best evidence. Paragraph 37 Paragraph 23. Paragraph 38 Paragraph 24. Paragraph 39 Paragraph 25. Paragraph 40 Paragraph 31. Paragraph 41 Rejected as irrelevant. Paragraph 42 Paragraph 33. Paragraphs 43,44 Paragraph 32. Paragraph 45 Paragraph 35. Paragraph 46 Paragraph 36. Paragraph 47 Irrelevant. Paragraph 48 Subsumed in paragraphs above. Paragraph 49 Subsumed in Paragraph 33. Paragraph 50 Paragraph 35, best evidence. Paragraph 51 Paragraph 32. Paragraph 52 True, but part of law. Paragraph 53 Paragraph 34. Paragraphs 54-58 Paragraphs 37,38,40,41 Paragraph 59 Irrelevant. Paragraph 60 Duplicative. Paragraphs 61,62 Irrelevant. Paragraph 63 Rejected as contrary to most credible evidence. Paragraph 64 Paragraph 48. Paragraph 65 Subsumed in Paragraph 41. Paragraph 66 Subsumed in Paragraph 48. Paragraph 67 Irrelevant. Paragraph 68 The wage disparity was the result of hiring Blacks in the lowest paying jobs. Paragraph 69 Subsumed in Paragraph 54. Paragraph 70 Paragraph 50. Paragraph 71 See comments to Paragraph 68. Paragraphs 72-83 Subsumed in Paragraphs 54, 55. COPIES FURNISHED: Michael Mattimore, Esquire Kimberly L. King, Esquire Suite 305 215 South Monroe Street Tallahassee, FL 32301 Toby Buel, Esquire Three Rivers Legal Services 817 West Duval Street Lake City, FL 32055 C. Dean Lewis, Esquire Post Office Box 8 Live Oak, FL 32060 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Petitioner is a black female who was employed by the Respondent on or about March 21, 1989. Petitioner's job with the Respondent was to assemble and wire electrical devices in a designated configuration and to a specified standard. Petitioner was the only black employee stationed in her job location, but the company employes other blacks in other areas of production. Petitioner's job was an entry level position which required minimum skills but aptitude for the work and attention to detail were necessary. During her employment with the Respondent, Petitioner was supervised by Charlie Goodman. Mr. Goodman was known to be a demanding and sometimes brusk individual. Petitioner perceived the corrections Mr. Goodman required to be personally directed toward her. Others besides Mr. Goodman observed Petitioner's work and deemed it inadequate to the requirements of the job. Both Mr. Gardner and Ms. Giles observed that Petitioner made errors or took too long to perform routine tasks. Mr. Gardner confronted Petitioner on two occasions regarding her work performance. In both cases, Petitioner responded by claiming Mr. Goodman was "nit picking" her work and was demeaning to her personally. Finally, on May 5, 1989, when Petitioner's work performance did not improve, Mr. Gardner advised Petitioner that she was terminated. Respondent is an employer within the definition of Section 760.10, Florida Statutes. Respondent did not terminate Petitioner on account of her race but because her work performance fell below company standards. Subsequent to Petitioner's termination, Respondent's production demand decreased resulting in layoffs. Those positions, including Petitioner's, have not been filled.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination against this Respondent. RECOMMENDED this 22nd day of October, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3619 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 3, 5, and 6 are accepted. All other paragraphs are rejected as irrelevant, argument, or unsupported by the weight of the credible evidence presented in this case. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. COPIES FURNISHED: Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Sheila D. Crawford 3650 Washington Street Sanford, Florida 32771 Stuart I. Saltman ABB Power T & D Company, Inc. 630 Sentry Park Blue Bell, PA 19422
The Issue Whether Petitioner was discriminated against by Respondent, based upon his race in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is an African-American male. As such, he is a member of a protected class. Petitioner was employed as a co-manager at a Delchamps grocery store in Destin, Florida. The Destin store was a high- volume operation. In January 2001, Bruno's, Inc., acquired the Delchamps' Destin store and converted the store to a Bruno's supermarket. Petitioner was retained in the co-manager position while Bruno's conducted a full assessment of the staff and store. Under the Bruno's assessment, the company found several employees, including white employees, underperforming pursuant to Bruno's goals for high volume stores. Petitioner was one of the individuals found to be underperforming at the Destin store. On November 4, 2001, Bruno's moved Petitioner as a co- manager to a lower volume store in Niceville so that he would have a better opportunity to grasp management protocol under the Bruno's umbrella and develop professionally. During the same time period, another employee at the Destin store, Steve Aaron, who is Caucasian, was transferred to another store for the same reason. Petitioner’s duties and work conditions at the new store did not materially change. As before, all managers in the store, including himself, regardless of race, had the same hours, had the same working conditions in the store and closing the store, had the discretionary authority to hire additional staff as needed, and had an opportunity to use their discretionary authority in managing and operating the store. Petitioner’s pay and benefits at the new store, also, did not change. The transfer was abrupt since Petitioner was told to and did report to his new store immediately. The reason for the transfer was not fully explained to him. However, other than to inquire about the reason for the transfer, Petitioner did not complain about or object to the transfer even though he was aware of Bruno’s policy against racial discrimination and the various mechanisms to report such activity. There was no evidence that Petitioner’s transfer was based on Petitioner's race. Neither the abruptness nor the lack of explanation supports a finding that the transfer was based on Petitioner’s race since the transfer was part of Bruno’s review and adjustment process for the stores it had acquired, and other employees who were not members of Petitioner’s protected class were also transferred. Indeed, the evidence showed that employees of all races were and continue to be transferred from one store to another under Bruno's operations for business reasons, such as the reason that precipitated Petitioner’s transfer. Such employee development and training are legitimate, non-discriminatory reasons for the transfer of Petitioner to another store. Petitioner offered no evidence that demonstrated the reason for his transfer was pretextual. Moreover, Petitioner's first complaint based on race regarding his transfer was filed on January 14, 2003, more than a year after his transfer and is therefore time barred. In June 2002, Bruno's Supermarkets received separate complaints from four female employees at the Niceville store that Petitioner had subjected them to unwelcomed touching, rubbing, massaging and/or kissing. The complaining employees were Dawn Lawson, Christina Gore, Donna Ermilio, and Erin Epperson. None of the young women that placed complaints against Petitioner were at risk of losing their job nor did they have anything to gain in placing the complaints against Petitioner. Dawn Lawson was an assistant deli bakery manager and subordinate of Petitioner. She complained that while at work Petitioner would rub her arms, massage her shoulders, and kissed her once while she was on the phone. All the aforementioned was unwelcomed by Ms. Lawson and made her feel uncomfortable. Petitioner did not deny these actions, but thought he was making an effort to comfort Ms. Lawson who was experiencing some personal problems. Ms. Lawson also accused Petitioner of spending an inordinate amount of time in the deli area of the store. However, the evidence demonstrated that Petitioner had been instructed to closely monitor the deli operation because it was below the standards Bruno’s expected of its deli operations. Ms. Lawson also complained that while at work, Petitioner gave her several gifts of alcohol and a card in which Petitioner wrote, "Know you are a very special someone" and drew several ‘X’s and ‘O’s. Petitioner admitted to giving the alcohol and card to Ms. Lawson, but again thought he was being friendly and trying to comfort her. Petitioner denied drawing the ‘X’s and O’s on the card. However, Petitioner’s denial is not credible since the drawing is in the same type of ink as the writing and the letters are similar to the handwritten portions of the card. Additionally, on New Year's Eve, December 31, 2001, Petitioner gave Ms Lawson a miniature bottle of Southern Comfort. Later, Petitioner called Ms. Lawson twice at her home in the early morning between 1:30 a.m. and 3:00 a.m. Ms. Lawson felt very uncomfortable regarding these calls. Clearly, the kiss, the late night phone calls, and the note violated Bruno’s anti-harassment policy. More importantly, at the same time Petitioner gave Ms. Lawson the Southern Comfort, he gave Erin Epperson, a co- worker of Ms. Lawson, a miniature bottle of alcohol. Petitioner knew Ms. Epperson was 19 years old and under the age at which she could legally possess or drink alcohol. Petitioner denied giving Ms. Epperson any alcohol. However, given the demeanor and candor of the witnesses, Petitioner’s denial is not credible. Providing alcohol to a minor was in violation of state law, could have caused the store to lose its liquor license or incur other penalties, and violated the store's policy of not providing alcohol to minors. This act alone justified Petitioner’s termination. Donna Ermillio, a cashier, utility clerk, and a subordinate of Petitioner similarly complained that while she was at work Petitioner would rub her arms, massage her shoulders, compliment her arms, feet and hands and tell her she was beautiful and too much "of a woman to be as young" as she was. All the aforementioned was unwelcomed by Ms. Ermillio and made her feel uncomfortable. Again, Petitioner thought that he was trying to soothe Ms. Ermilio, who was clearly nervous around him. He noticed others’ hands and feet because he had a friend who was a hand and foot model. However, Ms. Ermilio’s complaints are consistent with the other complaints received by Bruno’s and show a pattern of intrusive behavior on Petitioner’s part. Christina Gore, a cashier, customer service representative, and subordinate of Petitioner complained that Petitioner rubbed her, massaged her, and kissed her while she was at work. All the aforementioned was unwelcomed by Ms. Gore and made her feel uncomfortable. Petitioner admitted kissing Ms. Gore because she had graduated from high school. The kiss occurred after her boyfriend had walked away and Petitioner, jokingly, told Ms. Gore that he couldn't have kissed her while her boyfriend was around. Again, Petitioner’s actions were overly intrusive. In response to these complaints, the company conducted a timely and thorough investigation. The investigation included interviews and statements from Petitioner, Ms. Ermillio, Ms. Lawson, Ms. Gore, and Ms. Epperson. The evidence did not demonstrate any deficiency in the investigation. At the conclusion of the investigation, the investigator, the district manager, the store manager, a representative from the legal department, and the human resources director met and reviewed the investigation and evidence. After all the aforementioned parties assessed all the evidence, the team unanimously decided to terminate Petitioner’s employment. Bruno's terminated Petitioner because he violated the company's anti-harassment policy and gave alcohol to a minor employee. There was no evidence that Bruno’s did not consistently apply these policies to other employees in its organization. The only evidence Petitioner presented regarding the consistent application of these policies was that a Danny Johnson allegedly sexually harassed Dawn Lawson and was not terminated and that a Dan Gaston also allegedly sexually harassed "someone." However, Dawn Lawson never complained to the company regarding Danny Johnson and testified that Mr. Johnson had never harassed her. Petitioner had no personal knowledge about Mr. Gaston's alleged harassment and could not provide any details. The human resources director for the store testified that no one had ever made a sexual harassment complaint against Mr. Gaston. Therefore, Petitioner failed to present evidence showing a similarly situated employee that allegedly committed the same acts as Petitioner and was not terminated. Based on the evidence, Petitioner had legitimate, non- pretextual reasons for terminating Petitioner, and this action should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing this action. DONE AND ENTERED this 16th day of June, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Robert L. Young, Jr. 409 Elaine Avenue Fort Walton Beach, Florida 32548 Dan Burchfield Bruno's Food World 800 Lakeshore Parkway Birmingham, Alabama 35211 Faye R. Rosenberg, Esquire Corporate Counsel Bruno's Food World 800 Lakeshore Parkway Birmingham, Alabama 35211 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner, Mose Howard, Jr., was hired by the Respondent, K-Mart Corporation, as a night maintenance man at its store number 7339 located at 2620 N. Hiawassee Road in Orlando, Florida on July 10, 1984. According to Mr. Howard, his job was to help clean up after the store closed for the evening and to -notify the store authorities if and when the alarm went off during that period. His duty hours were from 9:00 p.m. to 7:00 a.m., Monday through Friday. He worked at the store for approximately six weeks during which time, according to him, he was never told by anyone in authority that his work was unsatisfactory. On August 16, 1984, Mr. Howard was called in by Mr. King who advised him that his work was not satisfactory. Mr. Howard contends that at the time in question, Mr. Ring gave him two pieces of paper to sign and advised him that if he didn't perform better, he'd be laid off. At the time, Mr. Howard looked at the papers and determined that his name was on them, but nothing else. The form in question was a Personal Interview Record consisting of two pages and Mr. Howard contends that that portion of the record dealing with the summary of discussion held between the parties at the interview was left blank. According to Mr. Howard, he signed the form in blank because he thought it was merely a notice that he was being placed on probation. In fact, though he may not have known it, he was on a probationary period from the time he was hired. During the course of the discussion, Mr. King advised him that the store had been receiving complaints about his work from undisclosed sources and also information that he had been sleeping on the job. Mr. Howard categorically denies having slept on the job at any time during the period of his employment and Respondent produced no evidence that he had. He admits, however, that his cleaning duties may have been, from time to time, accomplished in a less than satisfactory fashion. From time to time, when he was cleaning up paper and other debris from under the counters, crews of the contractor hired to maintain the floors in the store, whose job it was to strip and re-wax the floors periodically, were working on other aisles of the store. He contends that when this crew would go from one aisle to another, they would turn off and on the lights. Because he could not turn the lights on where he was working if the crew had previously turned them off, it was too dark for him to see and clean up well. He believes that it was this inability to clean up properly because of lack of lighting that formed the basis of the complaints against him. In addition, he states, the burglar alarms would periodically sound and when this happened, it would be necessary for him to call someone to come in and turn them off. This caused him to lose work time because when the alarm sounded, he felt he had to stop working and leave-the store because, had he stayed in there, the police might think he was breaking in. While denying, unequivocally, that he ever slept on the job, Mr. Howard admitted he would sit down from time to time in the break room but only on his two 15 minute breaks or during his 30 minute meal period. There were other times, he admits, that because of the lighting situation, he was unable to work in the store while the floor crew was there. In that case, he would sit down and wait until the crew would finish where it was working and he could go back to work. Sometimes this would be for an hour or even a couple of hours and during the period of enforced break from sweeping, he would try to find something else to do like cleaning the restrooms. In this regard, according to Mr. King, the cleaning of the restrooms was an integral part of Petitioner's responsibilities and his accomplishment of these duties was also periodically and repeatedly unsatisfactory. After the personnel interview conducted on August 16, 1984, Mr. Howard finished work for the evening and left. When he returned the following evening, a Friday, he was called in by another supervisor and advised that he was discharged. He says that at this point he was not given any reason for his discharge. However, he waited around outside the store until the closing time of 9:30 p.m. (approximately a half-hour after he came to work and was fired), went into the office, and picked up his paycheck from Payroll. The check he received that night was for all that was owed him up to the end of the pay period. A few days later, (the following Monday), he went back and was given another check for the day and a half wages owed him for the new pay period up until he was discharged. Mr. Howard denies having received a call in advance to advise him his work was unsatisfactory nor was he given a reason for being fired. Nonetheless, he did not question the basis for his firing either on August 17, or the following Monday, but merely accepted the pay due him and left. Even though Mr. Howard says he was not given a reason for his discharge and does not know why he was fired, he is convinced the discharge action was taken on the basis of his race because he always did his duty to the best of his ability and worked extra hours without pay on many occasions. It is because of his own satisfaction with his duty performance that he contends his discharge must have been racially motivated. However, he admits that no one from K-Mart Corporation or the store in which he worked ever gave him any indication of a desire to get rid of him or other black employees. Further, during the period of time he worked there, he never heard any racial comments or slurs from any employees, either upper management or low level, except from one young stockboy who used the term "nigger" frequently. He admits to being told on one occasion by an employee of the contractor that he had missed an area in his sweeping and had to go back and do it again and, on several occasions, he observed areas he missed and went back and cleaned them on his own, but aside from those instances, he contends no one from the corporation ever complained to him about the way he was performing his duties until the night of August 16, 1985, when he was interviewed by Mr. King about his performance. Even on that occasion, according to Petitioner, there were few specifics in Mr. King's comments. As he remembers it, Mr. King merely stated that he was deficient in keeping the floors, the walls, the restrooms, etc. clean but Mr. Howard states that these allegations are all lies. Mr. King, on the other hand, indicates that when Mr. Howard was hired, he was fully briefed on the nature and scope of his duties and was taken around the store and shown where and how things were to be done. At that time, the routine janitorial. duties such as wet mopping the floors, cleaning the restrooms and the cafeteria, and the other items of a similar nature were clearly made known to him. In the interim, Mr. King has personally discussed his performance, which was not up to par with Mr. Howard on at least three or four separate occasions, including in his comments such things as the stools not being kept clean, the floors not being mopped, spots being left on the mirrors. These duties and others of a similar nature were solely the responsibility of the Petitioner on the nights he worked. On each occasion, Mr. King found Petitioner's attitude to be negative. Mr. Howard gives the impression he feels he is performing satisfactorily and if management doesn't like the way he's doing his job, that's too bad. Though Mr. Howard contends that the problems he faced in accomplishing his duties were caused by the low availability of light in the store after closing hours due to the actions of the contractor's crew, he never complained to anyone about this. He didn't feel he had to say anything to the contractor's employees because he did not work for them and he felt that they could see the problem because it was obvious. He also contends that he cleaned the ladies' room as he was required to do and that any unsatisfactory condition may well have been caused by two white contractor's employees who would sleep in there from time to time. Again, he did not say anything to the contractor or anyone else about this because he thought what was happening was obvious. Petitioner's deficiencies and the counselings he received for them ultimately culminated in the personal interview reduced with a written memorandum on August 16, 1985. At that time, Petitioner was told that if he didn't improve, it would be necessary to get someone else to do the job. The personal interview on August 16, 1984 was the last effort on the part of K-Mart management to get Petitioner to do a better job. The description of his deficiencies, according to Mr. King, was placed on the interview form before the interview and was given to Petitioner to read at the time. Mr. King is quite certain that Petitioner looked at the form containing these comments and signed it. The personnel manager for the store was present at the time. When the work was not done properly that August 17, 1984 when he came to work, he recommended Petitioner's termination to the store manager. The other assistant manager, Mr. Avera, concurred in this recommendation on the basis that Petitioner was simply not getting the job done. Mr. King unequivocally denies that his recommendation for termination was racially motivated. He has, in the past, recommended only one other termination of an employee. This employee was white. The list of all employees terminated by this K-Mart store from August , 1983 through November, 1984, with reasons therefor, reflects that of the three other night maintenance personnel terminated during that period, two were white and one was black. The reasons for termination include sleeping on the job, unsatisfactory performance and drug possession. Of the fifteen total employees discharged during the period, at least ten were white, four were black, and one is not identified by race. On balance it is clear that Mr. Howard was terminated not as a result of any racial motivation but simply because he was a probationary employee and management was dissatisfied with his performance during the period of probation. Mr. Howard rejects Mr. King's evaluation of him on the basis that Mr. King did not personally supervise his work and that his analysis is based on matters outside his personal knowledge. He contends that his work was always done to the best of his ability and he does not accept the possibility that his performance could have resulted in his termination. Nonetheless, he does not know if any other black maintenance employees were discriminated against or, for that matter, if any other black employees in any job were discriminated against at this facility. Mr. Howard denies signing the separation report that was prepared on the night of his discharge even though, admittedly, it bears his signature. It is for this reason as well as because of his denial that any detail was included on the interview report when he signed it that a question is raised as to the accuracy of his analysis of the situation. In substance, there is ample evidence with specifics to establish the legitimate ground of inappropriate performance as the basis for his discharge and very little evidence other than his allegation to support a claim of racial prejudice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Petition of Mose Howard, Jr. be denied. RECOMMENDED this 30th day of September, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1985. COPIES FURNISHED Mose Howard, Jr. 67 West Michael Gladden Blvd. Apopka, Florida 32703 Janice Paulsen, Esq. International Headquarters K-Mart Corporation 3100 West Big Beaver Road Troy, Michigan 48084 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303 Aurelio Durana General Counsel Florida Commission on Human Relations 325 John Knox Road Building F - Suite 240 Tallahassee, FL 32303
The Issue The issue presented for determination is whether Respondent, Dillard’s, discriminated against Petitioner, Tanya Chun, based on her age, in violation of section 760.101, Florida Statutes (2012),1/ when it did not hire her for a sales associate position.
Findings Of Fact Ms. Chun was born April 4, 1957. Ms. Chun applied for a position as a sales associate at Dillard’s Department Store No. 209 in Lakeland, Florida, on June 7, 2012. At the time, she was 55 years old. Ms. Chun completed the employment application at a kiosk in the store linked to Dillard’s personnel system. Ms. Chun’s application disclosed only two periods of employment. The most recent was with Golf Plus, Inc., as a bookkeeper handling accounts receivable and accounts payable from January 1998 to May 2012. The other was employment at Macy’s in New York City from April 1993 to October 1994 in clothing sales and customer services as a retail sales associate. At the time, the Lakeland Dillard’s store had five openings--two in cosmetics, two in ladies’ shoes, and one in men’s shoes. At all times relevant to this proceeding, Walter Soto was operation sales manager at the store with authority to hire people to fill the openings. Mr. Soto interviewed Ms. Chun and seven other applicants for the five positions. During the interview and hiring process, Mr. Soto relied upon the information the applicants provided in their applications and the interviews. Mr. Soto hired five of the applicants. He did not hire Ms. Chun. During Ms. Chun’s interview, Mr. Soto asked her a number of questions about Macy’s sales procedures and common sales procedures and practices. Ms. Chun was not familiar with common concepts, such as sales per hour and items per transaction. These are concepts with which someone with retail experience and knowledge should be familiar. The five people Mr. Soto hired are Emil Pancorbo, Angelique Schoenmakers, Taylor Swallow, Ashley Thirion, and David Tilton. All were younger than Ms. Chun, although Ms. Schoenmakers was only three years younger. The information available to Mr. Soto about Emil Pancorbo, which he relied upon, indicated that Mr. Pancorbo had recent retail experience at large retailers, JCPenney from October 2008 to April 2011, and Guitar Center from April 2011 to September 2011. Mr. Soto considered this experience in deciding to hire Mr. Pancorbo, instead of Ms. Chun. The information available to Mr. Soto about Angelique Schoenmakers, which he relied upon, indicated that she had recent retail experience as a counter manager for Elizabeth Arden and that she worked for Macy’s from October 2010 to April 2012. Ms. Schoenmakers was recruited to work for Dillard’s. Mr. Soto considered Ms. Schoenmakers’ employment history in deciding to hire Ms. Schoenmakers, instead of Ms. Chun. Ms. Schoenmakers was born January 15, 1960, making her only three years younger than Ms. Chun. The information available to Mr. Soto about Taylor Swallow, which he relied upon, indicated she had recent retail experience, working for Kohl’s from August 2011 to June 2012. Ms. Swallow also had cosmetic experience. She had applied makeup on clients. Mr. Soto considered Ms. Swallow’s employment history in deciding to hire Ms. Swallow, instead of Ms. Chun. The information available to Mr. Soto about Ashley Thirion, which he relied upon, indicated she had recent retail experience working at a Clinique cosmetics counter at Macy’s from June 2011 to November 2011. Clinique is a cosmetics line that Dillard’s also carries. Mr. Soto considered Ms. Thirion’s employment history in deciding to hire Ms. Thirion, instead of Ms. Chun. The information available to Mr. Soto about David Tilton, which he relied upon, indicated that Mr. Tilton had recent retail experience at a large retailer, Bealls from May 2010 to May 2012. Mr. Tilton worked in the shoe department for Bealls. Mr. Soto considered Mr. Tilton’s employment history in deciding to hire Mr. Tilton, instead of Ms. Chun. Based on the information from the applications and interviews available to him, Mr. Soto made a fair and rational decision to hire applicants other than Ms. Chun. In particular, the fact that the retail experience of each of the applicants was more recent than that of Ms. Chun supports Mr. Soto’s decision. All of the applicants, except Ms. Swallow and Ms. Thirion, also had more retail experience than Ms. Chun. Ms. Swallow and Ms. Thirion both had cosmetics experience, and two of the positions that Mr. Soto was filling were for the cosmetics department. The Dillard’s employment procedure includes preparing an applicant summary for each individual interviewed. For the hiring cycle involved here, eight of the applicant summaries, including Ms. Chun’s, indicate the person was hired. In order for the Dillard’s system to permit obtaining a background check, Mr. Soto had to change an applicant’s status on the applicant summaries to “hired.” At the time, Mr. Soto was not following the Dillard’s procedure of only conducting a background check for an employee after the employee was hired. He did not think the procedure was fair to the applicants, who may be hired and then “un-hired” after the background check. Mr. Soto chose to conduct background checks before extending job offers. The status on Ms. Chun’s applicant summary states “hired.” But she was not hired, just as Ricky Davis and William Guadalupe, whose summaries state “hired,” were not hired. The status for all the applicants said “hired,” only because Mr. Soto changed the status in order to run a background check. If Dillard’s hires an employee, a Basic Employee Information sheet is prepared. There is no Basic Employee Sheet for Tanya Chun because she was not hired. There are Basic Employee Information sheets for Emil Pancorbo, Angelique Schoenmakers, Taylor Swallow, Ashley Thirion, and David Tilton. If an employee is hired, Mr. Soto conducts reference checks. He did not conduct a reference check for Ms. Chun because she was not hired. Ms. Chun maintains that Mr. Soto told her at the interview’s conclusion that she was hired and that they agreed to a start date and compensation of $10.00 per hour with full medical and dental insurance. She also maintains that Mr. Soto told her she would undergo a routine background check and requested that she sign a consent form and provide her identification card for the background check. Ms. Chun says that Mr. Soto stated that she did not “look that old” after he looked at her identification. She also claims he then said he had to talk to someone else and left the room for about five minutes. Mr. Soto denies Ms. Chun’s descriptions of the conversation. Ms. Chun, according to her own testimony, called for Mr. Soto a few times in the days following the interview to check on her employment status. She was correctly told that he had been transferred. On June 18, 2012, Ms. Chun sent a letter with the following text to Mr. Soto: I am writing to inquire the status of my employment application and I would like to receive your written response. Early last week, I applied for employment at Human Resources. The next day I was called in for an interview by you and when we met, before you offered a position you stated that I seemed to be a good candidate, and requested my identification and social security card, made photocopies, then stated that you will do a background check. As you reviewed my identification papers, your tenor changed and you stated that you will get back to me. I am writing to ask the status. I would like to request a copy of the documents I completed, as I do not have them for myself--both the application and the background disclosure form. And I would like to know why my identification with date of birth was requested before I was offered a position, and why my identification became the basis of your change of discussion. Thank you for your prompt attention. She did not receive a response. On February 28, 2013, Ms. Chun sent another letter, this one to the Dillard’s Human Resource Department. It states: I wrote the attached letter [June 18, 2012, letter] to your company more than six months ago, and I have received no response. My discussion with Walter at the interview, before being requested to provide my ID showing my age, was that I was going to be hired. Then, when my ID revealed my age I was told “we will get back to you” and I have requested an explanation and copies of the documents pertaining to my application, but you have totally disregarded my letter. I am writing to reiterate my request, and I request that you respond within five business days. Neither letter, both of which are specific and articulate, includes the claim Ms. Chun now makes that Mr. Soto said she did not “look that old” after seeing her identification. Dillard’s did not respond until March 11, 2013. A woman named “Arlie” called that day and told Ms. Chun it was Dillard’s policy to obtain identification and again advised that Mr. Soto had been transferred to another location. The weight of the credible, persuasive evidence does not establish Ms. Chun’s version of the events. The factors resulting in this determination include the fact that she testified that Mr. Soto told her she was hired and that they agreed upon a start date. Yet, she also testified that she called several times to check on the status of her application. Calling to check on the application’s status is inconsistent with having accepted a job and having agreed to a start date. If Ms. Chun had been offered and accepted a job, she would have reported for work, not called to check on the status of her application. In addition, Mr. Soto’s testimony about the process and the events is consistent with the documents for the applicants he interviewed. Finally, Ms. Chun did not make her very specific claim about what Mr. Soto said, “you don’t look that old,” in either of her letters or her initial Complaint of Discrimination filed with the Commission. From April to November of 2013, Mr. Soto hired at least ten individuals born in 1957, like Ms. Chun, or born earlier. This is persuasive evidence corroborating Mr. Soto’s testimony that he does not weigh an applicant’s age against the applicant when making his hiring decisions. Mr. Soto hired five applicants other than Ms. Chun because he found their qualifications superior for the open positions. Ms. Chun’s age was not a factor in Mr. Soto’s decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny Ms. Chun’s Petition for Relief. DONE AND ENTERED this 19th day of June, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 19th day of June, 2014.
Findings Of Fact The Petitioner was employed with the Respondent from August 3, 1985 until May 10, 1986, as a waitress in the dining room of the Kings Inn Restaurant in Pensacola, Florida. In March, 1987, the Petitioner became pregnant. She then informed her employer, Mr. Judge of her pregnancy. He told her initially that she could work as long as the doctor allowed her to. Shortly thereafter, he told her that she could not work after five months of pregnancy. On another occasion, his assistant manager, Mr. Dungan, told her that she could not work after she "started showing." Once the Respondent, Mr. Judge, learned of the Petitioner's pregnancy, he began a regime of harassing treatment. For instance, Mr. Judge made her do the "side work," filling up all the salt and pepper shakers and sugar bowls for all of the waitresses and waitress stations. It had always been uniform policy that each waitress had the responsibility to do her own side work for her own station and tables. Mr. Judge also began yelling and cursing at her in front of her workers and customers, causing her great humiliation and embarrassment. He criticized her publicly about her posture and the way she serviced customers, although she had always had an excellent record as a competent waitress and had no complaints from customers or former employers, before announcing that she was pregnant. Mr. Judge also began a practice of constantly questioning other employees about the Petitioner's job performance, although he apparently learned of no substandard performance in both her duties and her attitude toward her customers. He also took her to task about her "charge tips" being less than other employees, apparently the measure he used to determine if a waitress was serving her customers appropriately and adequately. This situation, however, was caused by his discriminatory conduct toward her in giving her fewer tables to serve and thus, reducing her tip income. Mr. Judge additionally assigned her to clean up a portion of the kitchen area, particularly the "bread shelves" when normal policy had been for kitchen personnel to perform all kitchen clean-up duties, with any clean up of the bread shelf area being rotated amongst the dining room personnel. The Petitioner, however, was singled out for this duty exclusively after it became known that she was pregnant. The Petitioner was also required to stay late and perform certain closing duties at the end of business late at night, much more often than other waitresses. In addition to performing restaurant closing duties, she was frequently required to wait on cocktail tables as late as 2:00 in the morning on many of the "late duty" occasions, even though she was hired as, and until she became pregnant worked exclusively as, food waitress. Petitioner's testimony and Petitioner's exhibit 2, in evidence, establishes that, although Petitioner was only scheduled to stay late three times in March, three times in April and once in May that, in fact, she worked late, that is, after all other employees or waitresses had been released for the evening seven out of nine days that she worked in March; nine out of twelve days she worked in April; and six out of the seven days she worked in May. Indeed, on May 10, 1986, the last day she worked for the Respondent, Mr. Judge required her to stay late and to "bus" all the tables, that is clean all the tables, in the dining room, allowing the waitress who was scheduled to stay late that night to leave early. The Petitioner became quite upset at this turn of events and resigned her position, due to the repeated pattern of harassment as described herein. Although Mr. Judge initially told the Petitioner that she could work as long as the doctor allowed her to during her pregnancy, in fact, on April 11, 1986, Mr. Judge hired the Petitioner's replacement. He hired Pamela Modes and had the Petitioner train her in her waitress duties. He stated to Ms. Modes privately when hiring her "that he needed a food waitress" because "he's got a girl that's pregnant." Additionally, he told the Petitioner that he objected to her working because of her pregnancy and claimed his insurance would not allow him to employ her after she was five months pregnant. These statements, coupled with the statement by his assistant manager, Mr. Dungan, to the effect that she would not be employed there "once she started showing" reveal an intent by the employer to terminate the employee, the Petitioner, because of her pregnancy. Instead of terminating her outright, the Respondent chose to put sufficient pressure on the Petitioner through extra, unscheduled work duties and the other above-mentioned forms of harassment, so as to coerce her into leaving the Respondent's employ. The Petitioner thus made a prima facia showing that she was forced to terminate employment due to her sex and her pregnancy, and no countervailing evidence was adduced by the Respondent.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and the demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida Human Relations Commission finding that an unlawful employment practice has occurred through the Respondent's discrimination against the Petitioner because of her sex (pregnancy) and that she be accorded all relief allowed under the above- cited section, including backpay and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ORDERED this 21st of March, 1989, in Tallahassee, Leon County, 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 21st day of March, 1989. COPIES FURNISHED: Debra A. Larson, Pro Se 9742 Aileron Avenue, Apt. 606 Pensacola, Florida 32506 Dracut Corporation d/b/a Kings Inn Restaurant Lawrence F. Judge, Jr. Owner/General Manager 1309 Maldonado Pensacola Beach, Florida 32561-2323 Donald A. Griffin Executive Director Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The central issue in this case is whether the Respondent terminated the Petitioner from his employment in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner is a black male who was employed by the Respondent, City Gas Company of Florida, from June, 1966 until October 31, 1988. At all times material to this case, the Respondent had an after hours policy which prohibited its employees from working for other gas companies, contractors, self employment, or any gas related field without prior permission from the Respondent's executive office. Failure to abide by that policy would subject an employee to immediate termination. The Respondent's policy for services performed while on duty required the employee to work only on behalf of the company. Monies for services rendered by Respondent's employees while on company time were to be remitted to the Respondent's office with the appropriate paperwork within a timely manner. Normal business practice would be for a repairman to remit monies and paperwork either the afternoon of the job or the next business day if a same day return to the office would be impractical. In April, 1988, the Petitioner was given a work assignment at the home of a customer named Mrs. Rhodes. Petitioner was to turn on Mrs. Rhodes' furnace. After inspecting the unit, Petitioner advised Mrs. Rhodes that the furnace should be cleaned. Subsequently, she authorized that work and the Petitioner dismantled and cleaned the furnace while on company time. Upon completing the task, Petitioner asked for and received from Mrs. Rhodes two checks: one payable to Respondent to cover the turn on and deposit; one made payable to Petitioner personally for the cleaning of the unit. The Petitioner cashed the second check, in the amount of $25.00, and remitted the other check to the company. Sometime later, the Respondent received a complaint from Mrs. Rhodes concerning the furnace. Mr. Hixon, vice president and general manager for the company, confronted the Petitioner regarding the matter. During that conference Mr. Hixon asked Petitioner for an explanation regarding the second check which Mrs. Rhodes had reportedly paid to him. Petitioner did not admit that he had performed additional work on company time (beyond the routine turn on). Also, Petitioner did not admit that he had received monies payable to himself, and that he had cashed that second check. Bill Joynt is a white male employed by Respondent. In September, 1988, Mr. Joynt was assigned to make a service call for a customer named Mr. Cox. After installing a valve on Mr. Cox's furnace, Mr. Joynt received $80.00 cash from the customer. Later Mr. Cox contacted the Respondent to complain that the furnace was still not operating correctly. Mr. Cox advised the company that he had paid $80.00 for the repair but that he was unsatisfied with the work. Mr. Hixon contacted Mr. Joynt and confronted him as to why the $80.00 had not been remitted to the company. Mr. Joynt immediately acknowledged that he had forgotten to turn in the payment. Subsequently, Mr. Joynt turned in the $80.00 to the company. Because he readily admitted his error, the Respondent suspended Mr. Joynt for three days without pay and allowed him to return to work. Because he did not admit his error (in fact, Petitioner continued to deny it until the day of the hearing in this cause), the Respondent terminated Petitioner from his employment. Petitioner's lack of forthrightness, not his race, was his own undoing. The vacancy created by Petitioner's termination was filled under the terms of the Company's bargaining agreement with the union. A white male was entitled to and did fill the vacant position. Since leaving Respondent's employment, Petitioner has become employed by the Brevard County School Board but earns less than his prior employment afforded him.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination. DONE and ENTERED this 13th day of May, 1991, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1991. APPENDIX TO CASE NO. 90-5856 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: None timely submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraph 1 is accepted. The first sentence of paragraph 2 is accepted. With regard to the remainder of the paragraph, it is accepted that Petitioner knew all on duty work was to be done for the company; off duty work was performed by employees, including this Petitioner, with Respondent's approval and assistance. Paragraphs 3 through 6 are accepted. With the deletion of the word "repeated" paragraph 7 is accepted. With the clarification that Mr. Joynt agreed to turn the money in when he was confronted (perhaps found out), paragraph 8 is accepted. Paragraphs 9 and 10 are accepted. Paragraph 11 is rejected as irrelevant or hearsay. The first sentence of paragraph 12 is accepted. The remainder of the paragraph is rejected as contrary to the weight of the evidence. The company loaned Petitioner tools and sold him appliances to install during his off duty time. His failure to the company resulted from his on duty activities in his own cause and his failure to readily admit his error when confronted. Paragraphs 13 through 16 are accepted. COPIES FURNISHED: Susan K. Erlenbach 503 South Palm Avenue Titusville, Florida 32796 C. Graham Carothers Post Office Box 391 Tallahassee, Florida 32302 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
