The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was terminated from his employment by the Respondent based on discrimination because of his race in violation of Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner is an African-American male. He was employed at times pertinent hereto until his termination, by the Respondent Mold-Ex, L.L.C. The Respondent is a manufacturing company located in Milton, Florida, which operates a manufacturing facility and operation on a multi-shift basis, engaged in the manufacturing of various plastic and rubber products, particularly automotive-related parts. The Petitioner began employment with the Respondent on September 8, 1989, as a press operator. He also worked as a machine operator for about four months and was promoted to Second Shift Supervisor in the injection department. This is an injection molding operation which molds plastic and rubber parts. The Petitioner was a Second Shift Supervisor in that department for eight and one- half years. The Petitioner reported to Jerry Decker, who was his supervisor. The Petitioner is an employee and the Respondent company is an employer within the meaning of Section 760.10, Florida Statutes. The Petitioner's duties included monitoring overall operation of the machinery, training, new employees, setting up machines and jobs, completing attendance reports and holding employee meetings. As many as twenty-three employees were supervised by him on the second shift. The Petitioner was the only black supervisor at Mold-Ex. The Petitioner was terminated from his employment on December 4, 1998. He was told by Mr. Decker, his supervisor, that he was being terminated because the company was "down-sizing" or reducing positions and the number of employees due to financial difficulties. The Petitioner elected to contest this by filing a Charge of Discrimination with the Commission, claiming that he was harmed because he was discharged because of his race. Beginning in early 1998, the corporate parent company which owned Mold-Ex, L.L.C., was experiencing significant financial difficulties. This resulted in part from the "reservoir seal project" which involved a contract for a certain part that the Respondent was to manufacture for the Delphi Division of General Motors Corporation. There were difficulties in manufacturing the reservoir seal successfully, it was difficult to manufacture and required extra labor. It was termed by the Respondent's president as a "real disaster" which caused serious financial drain on the company. The company had a great deal of difficulty in successfully manufacturing the part to the correct specifications and lost much revenue due to unfilled orders and/or improperly manufactured parts which had to be replaced. Additionally, and related to these difficulties, the parent company was having great difficulty meeting its debt service obligations. In fact, the parent company never actually recovered from the financial difficulties from 1998, such that ultimately the Respondent was sold to another corporation. These financial difficulties throughout 1998 resulted, by the fall of that year, in the parent corporation putting significant pressure on the Respondent's management in Milton to reduce costs substantially, including labor costs. The Respondent considered and implemented several ideas for cutting costs, including restructuring the supervision of the operation and otherwise seeking to reduce labor costs. In September of 1998, the Respondent employed an excess of people over those needed to operate efficiently. At that time the Respondent employed approximately three-hundred workers. Because there was an excess of employees and, therefore, payroll expense, a hiring freeze was instituted. This resulted in a steady reduction of employees through not filling positions that were voluntarily vacated by employees leaving the company, as reflected in the Respondent's Exhibit 10 in evidence. The overall operating officer of the Milton facility, Vice President Ettelson, established in his testimony that in late November of 1998, the hiring freeze resulted in a reduced head count which saved the company substantial amounts of money. Thus, by the end of 1998, the company employed only approximately 280 persons instead of the 300 who were employed in September of 1998. By April of 1999, the employment roster was down to approximately two hundred and fifty persons. The Respondent additionally restructured supervision in order to save money and to operate more efficiently, in terms of simply more effective manufacture and filling of orders, as well as in the saving of personnel and related expenses. This restructuring involved combining supervisory positions and re- allocating duties, such that one plant superintendent was placed in charge of all of the operations on the second shift rather than having approximately three supervisors overseeing the individual business units operating on the second shift. The Petitioner was a Second Shift Supervisor whose position was eliminated in this restructuring. His duties were distributed among Mr. Don Brumley, who was a long-experienced employee who was re-hired out of retirement and who became the Second Shift Plant Superintendent; an employee in the injection and molding department, referred to as a "lead-employee" and also to certain individuals on the first shift. The restructuring resulted in a savings of approximately $40,000.00 as to salaries by eliminating three positions and selecting Mr. Brumley as the plant superintendent for the second shift. The re-structuring concentrated on the second shift because the other two shifts required the management personnel that were currently in place. On the first shift, various improvement projects and process development efforts required more intense, active supervision and supervisory personnel that were already in place. On the second shift, because no improvement projects were being conducted, the differences in activity between the second and first shift allowed the company to supervise that entire shift, as to all departments, by placing a strong effective plant superintendent in charge of that entire shift; eliminating three supervisory positions for a substantial savings in expenses. On the third shift, no re- structuring occurred because it was only a small operation of approximately twenty-five employees. The highest management personnel present for that shift was already a lead person in the mixing department and a supervisor in the injection molding department. Additionally, the company management recognized a strong need for a superintendent such as Mr. Brumley who had a record of implementing better disciplinary measures and who could ensure consistency and efficiency of operation in all of the operating departments on the second shift. The re-structuring effort resulted in a change in the reporting system or "chain of command" as well. Prior to re- structuring, three managers, one for each of the three business units (profile extrusion, molding, and reinforced hose), reported directly to Vice President Ettelson. Below these three managers were the supervisors in charge in each individual department within the three business units. For example, in the molding department where the Petitioner worked as Injection Molding Supervisor on the second shift, supervisors in injection molding on the first and third shifts as well as a first shift supervisor in the trim department, for a total of four supervisors, reported directly to molding manager Jerry Decker. Four supervisors reported to the Reinforced Hose Manager, Sidney Hood. Two supervisors reported to Profile Extrusion Manager Steve Wieczorek. Those three managers reported to Vice President Ettelson. After the re-structuring, supervisors remained in place on the first and third shifts, but on the second shift no supervisors remained who would be reporting to the department managers Decker, Hood and Wieczorek. Instead, Don Brumley, re- hired from retirement as the second shift plant superintendent, reported directly to Vice President Ettelson. Don Brumley was therefore in charge of all three business units during the second shift. His duties were much more substantial than the Petitioner's. He managed approximately 60 people while the Petitioner had managed approximately 20 to 23 people. Mr. Brumley had more administrative duties than did the Petitioner. He had hiring and firing authority that the Petitioner did not have and had the responsibility for adherence to company policy on the entire second shift rather than in only one department. Molding Manager, Jerry Decker, established that the re-structuring organization functioned effectively. It resulted in the elimination of the Petitioner's position on or about December 4, 1998. Additionally, two white males in supervisory roles were terminated by the Respondent because of the re-structuring. The Petitioner maintained that one of those terminated white individuals, Dan Lowery, had been out of work seven months with tuberculosis and was permanently disabled and, therefore, was terminated because he was not qualified to perform his job duties. However, the Human Resources coordinator, Nick Bores, the person with probably the most knowledge and insight concerning Mr. Lowery's employment capabilities, established in a credible fashion that Mr. Lowery had indeed been on leave for a few months due to his illness but returned to his employment duties with a full clearance from his physician to perform all of his duties. This testimony was corroborated by that of molding manager Jerry Decker and Vice President David Ettelson and is accepted. The Petitioner also contended in his testimony, in essence, that racially discriminatory motivation for his termination existed as shown by two incidents. One incident in 1997 involved an employee who had been disciplined in some way by the Petitioner, who then purportedly placed a "swastika" symbol on the Petitioner's car in the parking lot. The Petitioner asserts that the employee was not disciplined for that act, which he contends was indicative of racially discriminatory animus toward him by the Respondent's management. In fact, however, the Respondent did not discipline that employee because, upon questioning, he denied the conduct. The Respondent had no independent proof that he was guilty of the act. The Petitioner himself was not disciplined on an occasion when he was accused of sexual harassment by a female employee, because he denied it and the Respondent had no independent proof that he was guilty of the alleged conduct. Moreover, at about the same time as the "swastika incident" the Petitioner received a written commendation, signed by CEO Thomas Henry and Vice President Ettelson. These facts, considered together, tend to show lack of racial animus by the company management. The other incident described by the Petitioner related to management reaction to observing an employee under the Petitioner's charge failing to wear safety goggles. Mr. Ettelson purportedly told the Petitioner he would "kick his butt" if his employees again failed to wear protective goggles. This statement, if made, may be coarse or harsh, but was not shown to be other than an isolated occurrence. Moreover, it does not evince a racially discriminatory motive or attitude on the part of an employment-related decision-maker. The Petitioner maintained that his replacement, Don Brumley, was not qualified for the position created by the re- structuring and that his "lead man," Eddie Byers, was the only person in the department who could have performed the duties that the Petitioner had performed. This testimony, however, is rebutted by the testimony of witnesses Decker, Ettelson and Thomas Henry, the CEO of the company. Their testimony establishes that Mr. Brumley was well-qualified to assume management of the entire second shift operations as Plant Superintendent which included the scope of the Petitioner's job but included other substantial duties and responsibilities as well. In fact, with the exception of being retired for approximately one year, Mr. Brumley worked for the Respondent since 1963 and was the company's first employee after it was founded by Mr. Henry, his father and Mr. Henry's brother. Prior to his retirement, Mr. Brumley functioned as Compression Molding Manager, which was a position above the Petitioner's position level in the hierarchy of the company and at the same level as the Petitioner's former supervisor, Jerry Decker. In fact, Mr. Brumley, at one time, had a supervisory role over the Petitioner. The Petitioner's experience was limited to one department during his tenure with the company. Mr. Brumley, however, had worked in all departments in his 36 years with the Respondent. Mr. Brumley knew the operations of the company very well and bringing him back to the company to function as the Second Shift Plant Superintendent, with his skills and experience, saved the company substantial expenses by allowing it to avoid the necessity of retaining other employees. Additionally, Mr. Brumley had a reputation as a strict disciplinarian and Mr. Ettelson and the company management felt that stricter discipline was required for the operations on the second shift. When the Petitioner was terminated he was offered a severance package of four weeks' pay at the time of termination, but elected not to accept that offer. He was not offered a different employment position with the Respondent because no suitable options, in terms of his skills and qualifications and in relation to his salary level, were available with the company at that time. The Petitioner was earning $7.80 per hour, at the time of his termination and his annual salary, without overtime, was $16,234.00. During 1998, which was his best year in terms of income, he earned approximately $27,000.00 when overtime was added to his regular salary. The Petitioner earned a total of $13,175.72, in 1999 and earned $3,117.00 in unemployment compensation in 1999. He earned $7,513.51, when employed by Britt Landrum Temporaries, Inc., in 1999, and earned $1,608.01 when employed by Interim Services, Inc., in 1999. Additionally, he was employed by Transport Leasing Contract, Inc., in 1999 and earned $937.20 with that employer. Since approximately January 2000, the Petitioner has been working at the Waterfront Mission and earned $6.50 per hour, and then in September 2000, was raised to $7.00 per hour. The Petitioner concedes that with his qualifications and experience he could obtain employment at more than $7.00 per hour, which he makes at the Waterfront Mission. He chose to work at the Waterfront Mission because that employment is compatible with his calling to be a minister. He desires to have work which is compatible with his duties as a pastor for two churches in the area. He has earned about $375.00 per month as a pastor for his two churches since approximately May 2000. The Respondent presented evidence by witnesses Ettelson, Decker and Bores, the Human Resources coordinator, all of whom testified that the re-structuring plan, which included the elimination of the Petitioner's position, was for the purpose of serving the above-referenced financial business needs in relation to reducing costs, as the reasons which led to the Petitioner's termination. All testified that the primary goal was reducing costs in order to help the company to survive its business downturn, including the fact, established by Mr. Henry's testimony, that the United Auto Workers strike of the Delphi Division of General Motors began in the summer of 1998. This caused a loss of approximately one-million dollars per month. That is the reason that the re-structuring was effected which allowed them to bring in a more experienced man, Mr. Brumley, who was qualified to run the entire department at lower costs as the Plant Superintendent on the second shift, rendering the Petitioner's job and position unnecessary. Their testimony that these business reasons were the cause of the re- structuring and the Petitioner's termination is accepted, rather than the Petitioner's contention that the reasons for his termination involved his race.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations denying the Petition for Relief. DONE AND ENTERED this 6th day of April, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 2001. COPIES FURNISHED: R. John Westberry, Esquire Holt & Westberry, P.L. 1108-A North 12th Avenue Pensacola, Florida 32501 Heather Fisher Lindsay, Esquire Gordon, Silberman, Wiggins & Childs, P.C. 1400 South Trust Tower Birmingham, Alabama 35203 Azizi Coleman, Agency Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Kasper Corporation, a speciality subcontractor, was formed during April 1987, and is engaged in the business of performing concrete gutter work, curb elements, traffic separators, barrier walls, sidewalks, formation of ditch and slope pavement, pipe culverts, and storm sewers. Most of its business activities are conducted in the area of Pasco, Hillsborough, Pinellas, Hernando, Citrus, Manatee and Sarasota counties. Ms. Deneweth purchased 100% of the stock of Kasper Corporation in September, 1988 for the sum of $10.00. Ms. Deneweth contends that she has deposited approximately $9,000.00 into the corporation between September and December, 1988 and has withdrawn approximately $6,000.00 as a withdrawal of capital. No documentation was provided to substantiate either the deposit or the withdrawal of funds by Ms. Deneweth. Prior to Ms. Deneweth's purchase of Kasper Corporation, she had no training or experience in the principal business activities in which Petitioner is engaged, having graduated from high school during June 1981, and having been employed as receptionist/secretary and office manager for a regional medical center, a physician and an engineering firm from 1981 thru 1987. Kasper Corporation's field supervisor is Steven D. Kasper, a nonminority, whose training and experience includes substantial concrete construction work. Steven Kasper is responsible for preparation of job estimates and the submission of bids to prime contractors. Kasper works in cooperation with Michael R. Knox, a civil engineer who is also a nonminority. Knox is employed by Petitioner as a consultant. Ms. Deneweth, the only minority involved in the internal operations of Kasper Corporation, has limited experience in the principal operations of Kasper Corporation. Ms. Deneweth has no training or working knowledge of the requirements and procedures for bid preparations, of the type of equipment or materials required to perform the principal activities of Kasper Corporation. Ms. Deneweth lacked familiarity with all significant details of Petitioner's internal operations, field operations, financial operations and the bidding procedures. All significant bidding, principal construction activities and financial requirements are carried out by the two nonminorities, Messrs. Kasper and Knox.
Recommendation Based on the foregoing findings of fact and conclusions of law it is recommended that Respondent enter a Final Order denying Petitioner's application for recertification as a disadvantaged business enterprise pursuant to Chapter 14-78, Florida Administrative Code. RECOMMENDED this 24th day of April, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 24th day of April, 1990. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Marianne Deneweth, President KASPER CORPORATION 5006 Trouble Creek Road Suite 215 New Port Richey, Florida 34652 Robert Scanlan, III, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
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 issues are whether Respondent General Aviation Terminal, Inc. (Respondent) discriminated against Petitioner Keneka Jones (Petitioner) based on her sex, gender, and/or disability and retaliated against her for complaining about said discrimination in violation of Section 760.10, Florida Statutes (2005).
Findings Of Fact Respondent is a foreign corporation that is licensed to do business in Florida. Respondent is an employer under the Florida Civil Rights Act of 1992, Sections 760.01 through 760.11, Florida Statutes (2006). Respondent provides contract services to airports and airlines around the country. The services include aircraft cleaning, baggage handling, and other services. Respondent calculated its bid for the Delta Air Lines, Inc. (Delta) cabin cleaning service at the Tallahassee Regional Airport, Tallahassee, Florida, based on eventual staffing of six full-time dedicated cabin service ramp agents (cabin service agents). The contract required Respondent to service the daily inbound flights with each employee having two days off each week. The contract required Respondent to have the cabin service up and running by the end of January 2006. The contract did not include the additional costs and hiring delays that Respondent would have incurred if it created a part-time for one employee, then looked for a second part-time employee in order to fill one of the six full-time positions. Respondent could not perform its contractual obligation to Delta with a part-time cabin service ramp agent. Petitioner, a black female, is a resident of the State of Florida. She has a learning disability that made her eligible for exceptional student education (ESE) classes in public school. Petitioner was retained in the 1st grade, the 9th grade, and the 12th grade. She received a special high school diploma but was unable to attend college because of her inability to pass the graduate education diploma (GED) examination. At some point in time, the Federal Social Security Administration determined that Petitioner suffered from mental retardation. Based on that determination, Petitioner became eligible for a monthly Social Security Disability (SSD) check. No health care provider has diagnosed Petitioner as having a disability that prevents her from working a full-time position. At times Petitioner suffers what she describes as anxiety or panic. However, there is no competent evidence that Petitioner suffers from panic attacks as a disability, which prevents her from working on a full-time basis. According to Petitioner, she takes medication and splashes water on her face when she begins to feel anxious. The only time Petitioner referred to her anxiety at work was when she came out of the restroom on one occasion and told a co-worker that she had just had a panic attack. To the extent that Petitioner suffers from anxiety attacks, her medication appears to quickly correct any impairment she may suffer. There is no competent evidence that the alleged anxiety substantially limits Petitioner’s major life activities. Petitioner has a noticeable speech impediment. The speech impairment is not so severe as to interfere with Petitioner’s ability to work. Respondent employed Petitioner in Tallahassee, Florida, as a full-time cabin service agent from January 7, 2005, until February 28, 2005. Petitioner’s primary job duty was to clean and service the interior cabins of airplanes, owned and operated by Delta at the Tallahassee Regional Airport. Petitioner was also expected to perform general maintenance of the restrooms inside Respondent's break room and other airline offices, including emptying garbage cans and dusting between arrivals of the various flights at least two times a day. Petitioner's job required her to clean and service four to six daily inbound flights. As a general rule, the flights were spaced out by one or more hours, depending on the schedule. Petitioner worked with two other full-time cabin service agents: (a) Stacy Bennett, lead agent and Petitioner’s direct supervisor; and (b) co-worker, Hillary Bennett. Respondent’s contract with Delta required each aircraft cabin to be serviced in approximately seven minutes. Over the course of an eight-hour shift, Petitioner and the two other employees in her position worked a total of only two to three hours. During the five to six hours of each shift that Petitioner was not required to perform any work duties, she was free to watch television, talk with co-workers, eat, or engage in other activities of her choosing, as long as she remained on the airport premises. Petitioner was qualified to perform her job duties without the need for any accommodation. The station manager, Cory Howell, interviewed and hired Petitioner. During the interview, Petitioner told Mr. Howell that she wanted to work part-time because she received SSD benefits and full-time work would cause her to make too much money, subjecting her SSD benefits to reduction or termination. Petitioner did not tell Mr. Howell that she needed part-time work as an accommodation for a disability such as panic attacks, mental retardation, or speech impairment. Petitioner's request for part-time work is consistent with her application in November 2004. However, the most persuasive evidence indicates that Petitioner accepted a full- time position with the understanding that Respondent did not have any positions for part-time ramp agents at that time. Mr. Howell did not promise Petitioner part-time work in the future but said he would see what he could do to honor her request. Due to a clerical error that affected the records of several full-time employees, Petitioner's personnel records erroneously indicate that Respondent hired her on a part-time basis. Despite the clerical error, Petitioner began working a full-time schedule on or about January 12, 2005. On her first day at work, Petitioner worked until 6:00 p.m. On her first or second day at work, Mr. Beitzel told Petitioner which two days a week would be her regular days off, and which five days a week she would be scheduled to work. Petitioner told Mr. Beitzel that she did not want to work full- time. Mr. Beitzel told Petitioner to speak with Mr. Howell. Later in January, Petitioner spoke to Mr. Howell on several occasions about her desire to work part-time. She told him she did not want to make too much money because she would lose her SSD benefits. She did not tell him that working full- time was causing her to have anxiety attacks or that she needed to work part-time as an accommodation for any disability, other than to preserve her SSD benefits. Mr. Howell consistently told Petitioner there were no part-time ramp agent positions. Respondent has employment practices prohibiting discrimination based on sex, gender, handicap, or retaliation for complaining about any type of discrimination. When Respondent hired Petitioner, she received copies of these policies as well as Respondent's policies regarding reasonable accommodation of disabilities. Petitioner read these policies and solicited help from other people on parts she did not understand. The policies state that employees should report any concerns regarding perceived harassment/discrimination or failure to provide a disability accommodation to their immediate supervisor or Respondent's human resources director. At all times material here, Dawn Middleton served as Respondent's Director of Human Resources. Petitioner had an opportunity to meet Ms. Middleton during the first few weeks of Petitioner's employment. During a lengthy conversation, Ms. Middleton explained her job responsibilities in detail. Petitioner did not tell Ms. Middleton that Petitioner was unhappy with her job in any respect. Respondent posted the daily flight schedule of aircraft that Petitioner and the other cabin service agents would need to service in the break room on a daily basis. Ms. Bennett also informed Petitioner about the daily schedule. On several occasions, Petitioner was not immediately available when an aircraft arrived for service. Because her mother was dead, Petitioner had custody of her younger sister, who was pregnant when Petitioner went to work for Respondent. Mr. Howell told Petitioner in advance that she would not be able to miss any work due to the baby's impending birth. Early one morning about two weeks after beginning her employment, Petitioner took her sister to the emergency room with symptoms that turned out to be false labor. Petitioner followed correct procedure by calling Mr. Beitzel, Respondent's training supervisor and second-in-command at the Tallahassee office, as soon as possible, to let Respondent know about the emergency and that she would be late to work. That same morning, Ms. Bennett complained to Mr. Howell that Petitioner had missed or been late to service a scheduled aircraft and that Petitioner was not assisting with cleaning the restrooms. When Petitioner arrived at work, Ms. Bennett and Mr. Howell, in the presence of Mr. Beitzel, verbally counseled Petitioner, informing Petitioner that her performance needed to improve. During this counseling, Petitioner was loud, argumentative, and refused to accept responsibility for her poor performance. After the counseling session, Petitioner's performance improved for a short time. However, Petitioner began having problems with her co-workers. At times, Petitioner and other employees would yell at each other. On one occasion, Mr. Howell was aware of verbal conflict between Petitioner and other employees sufficient to make him leave his office and enter the break room to inquire whether anything was wrong. Petitioner, in the presence of her co-workers, denied that there were any problems. It is clear that Mr. Howell was aware that Petitioner was having problems with some of the male employees because she complained on several occasions that the male employees were “messing” with her. However, other than the one inquiry reference above, Mr. Howell took no steps to verify or disprove Petitioner's complaints. The male employees routinely joked about Petitioner amongst themselves. They said she must have taken ESE classes, that she was special, and that she was a slow learner. The men told each other that Petitioner was a “pretty-ass girl,” until she opens her mouth. They joked about having sex with Petitioner if she were not "a little bit off." These types of comments were made when Petitioner was in the same room. The greater weight of the evidence is that Petitioner heard at least some, if not all, of the inappropriate comments about her mental disability. Petitioner was embarrassed and humiliated by the comments she heard and the knowledge that the men were making fun of her mental disability even when she could not hear precisely what they were saying. The men asked Petitioner whether she had ever taken English classes, sarcastically referring to her inability to speak properly. They told Petitioner someone needed to teach her how to speak correctly. Some of the male employees had crushes on Petitioner but did not want the other men to know their feelings for fear of being teased. Sometimes a man would tell Petitioner that she looked good. Occasionally, Petitioner would smile at and flirt with the men. One day Petitioner arrived at work with her hair in disarray. The men laughed among themselves, when one of them stated that Petitioner must have been out F------ all night. The greater weight of the evidence indicates that Petitioner did not hear this inappropriate comment. The most persuasive evidence indicates that Mr. Howell was aware that Petitioner was mentally retarded/learning disabled. In view of the close proximity of the break room to Mr. Howell's office, his ability to overhear discord among the employees, and Petitioner's complaints that the men were picking on her, Mr. Howell knew or should have known that the male employees were routinely harassing Petitioner, joking about her mental disability, and thereby creating a hostile work environment for Petitioner. On February 28, 2006, Petitioner and her supervisor, Ms. Bennett ate breakfast in the break room. They quietly began watching television after finishing their meal. After 30 or 40 minutes, Carlos Byrd, a male employee, entered the break room and began playing cards with another male employee. Next, Terryl Crenshaw (nicknamed Bama) entered the break room and asked Mr. Byrd what game they were playing. After Mr. Byrd responded, Mr. Crenshaw told Petitioner to move over. Petitioner knew Mr. Crenshaw wanted her to move so that he could play cards with Mr. Byrd and the other male employee. When Petitioner did not move, Mr. Byrd ordered Petitioner to "move your ass over." Petitioner continued to ignore the men. Mr. Crenshaw then abruptly shoved Petitioner's chair from behind, causing her to fall out of her chair. Petitioner got up yelling profanities at Mr. Crenshaw, telling him that he had no right to touch her chair. Mr. Howell, who was in his office, heard the men order Petitioner to move over. Mr. Howell did not hear Petitioner respond until he heard the chair being shoved. Mr. Howell entered the break room as Petitioner and Mr. Crenshaw exchanged hostile words. Because Petitioner was crying and obviously emotionally upset, Mr. Howell told Petitioner to calm down and to go into his office. Petitioner was very agitated and continued to express her feelings in a loud voice. Petitioner told Mr. Howell that he favored the male employees over her and that he always took their side rather than hers. Petitioner continued to shout at Mr. Howell when Mr. Beitzel entered the office. Mr. Howell could not get Petitioner to calm down. Instead she called Mr. Howell an "asshole" and a "mother- f ," daring him to fire her. All of the employees in the break room could hear Petitioner's tirade. Mr. Howell finally told Petitioner to hand over her security badge and leave the premises because she was terminated. Petitioner refused to surrender her badge or leave until a security officer arrived to escort her out of the building. Mr. Howell verbally counseled Mr. Crenshaw for his part in the disturbance. He took no other disciplinary action against Mr. Crenshaw. If Petitioner had calmed down as requested, Mr. Howell would have verbally counseled her without terminating her employment. Competent evidence indicates that use of profanity was common in the workplace. The male employees and the management joked with each other, had dinner together on out-of- town trips, and routinely used rough language amongst themselves, but never in an angry, hostile, or insubordinate manner like Petitioner's extended outburst. The only time a similar incident occurred in the past, Mr. Howell fired a male employee. Petitioner's personnel records erroneously indicate that she was discharged for unsatisfactory work performance. Petitioner's continued disruptive behavior and her profane and abusive language was insubordinate, leaving Mr. Howell with no choice but to terminate her employment. After her termination, Petitioner worked for a single day at a nursing home. Petitioner resigned that job, at least in part, because she did not want to lose her SSD benefits. There is no evidence that Petitioner has ever maintained a full- time or part-time job for a significant period of time. She certainly did not make a good-faith effort to mitigate her damages in this case.
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 discriminated against Petitioner based only on her mental disability relative to harassment and a hostile work environment. DONE AND ENTERED this 28th day of November, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th of November, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Carolyn D. Cummings, Esquire Carolyn Davis Cummings, P.A. 462 West Brevard Street Tallahassee, Florida 32301 Joanne B. Lambert, Esquire Jackson Lewis LLP Post Office Box 3389 Orlando, Florida 32802-3389
The Issue Did Respondent engage in unlawful employment practices against Petitioner on the basis of race, and if so, what remedies are available to redress the wrong? Sections 760.10 and 760.11, Florida Statutes.
Findings Of Fact Petitioner meets the definition of "person" in Section 760.02(6), Florida Statutes, entitled to assert claims for relief under the Florida Civil Rights Act. It was not disputed that Respondent is an "employer" within the meaning Section 760.02(7), Florida Statutes. Based upon the record it is inferred that Respondent is an employer subject to the Florida Civil Rights Act in the conduct of its employment practices. Respondent is a corporation with three shareholders who each have a one-third interest in the business. In the corporation the shareholders are Vehad Ghagvini and his brothers. Vehad Ghagvini is the president of the corporation and responsible for the day-to-day operation. Vicki Goodman serves as the Human Resources Administrator for the company and is responsible for matters associated with claims of discrimination by company employees. At times relevant Larry Smith was a supervisor for Respondent. On two separate occasions Petitioner worked for Respondent. The first occasion was from November 8, 1999, through June 7, 2000. His position with the company was that of a laborer. When he separated from employment on June 7, 2000, it was based upon his own decision. At that time it was indicated in his personnel record that Petitioner would be subject to being rehired and it was commented that Petitioner was considered to be a hard worker and reliable. The personnel records show the signature of Larry Smith as supervisor when Petitioner terminated his employment with Respondent on June 7, 2000. Petitioner returned to employment with Respondent in October 2000, and was involuntarily terminated on December 5, 2000, from his position of a laborer. According to the papers describing his separation from employment on December 5, 2000, he was terminated for "failure to attend job responsibilities; excessive absences on Saturdays." The form indicated that his work evaluation was poor. It was indicated that Respondent did not intend to rehire Petitioner beyond that date. Other comments in the discharge indicated that Petitioner "was a reliable and diligent worker during previous employment with the company but failed to work to same standards this time around." Petitioner was required to work on Saturday. He did not work on October 7, 2000, a Saturday, the Saturday of the week of October 9, 2000, the Saturday of the week of October 23, 2000, the Saturday of the week of October 30, 2000, the Saturday of the week of November 13, 2000, and Saturday, December 2, 2000. During this time frame Petitioner worked as a service truck operator with duties that included fueling Respondent's equipment on road construction jobs that were ongoing on the Saturday dates that Petitioner missed. Before his termination Petitioner had been counseled on October 17, 2000, and in November 2000 concerning his absences on Saturdays. Petitioner's testimony that he was only required to work on Saturday on a voluntary basis and that meant that he only needed to work one Saturday in his more recent employment is not accepted. Attached to Respondent's Exhibit numbered 5 is an EEO summary from Respondent pointing out that employees of various races had been subject to termination in a pattern that does not discriminate based upon race. Petitioner's termination on December 5, 2000, is in keeping with that practice. Petitioner has portrayed his dismissal from employment with Respondent as originating with his mistreatment by his supervisor, Larry Smith, not his absence from the job. As Petitioner describes it, about a week or two before he was terminated in December 2000, Larry Smith approached Petitioner and told Petitioner that he did not want Petitioner having conversations with females on the job. Petitioner is an African-American. At that time there were two Caucasian females working at the same location Petitioner worked. In particular, one of the females on the job asked Petitioner to take her position directing traffic on the roadway while she went to the restroom. Before she returned Mr. Smith pulled up and saw Petitioner holding the flag for directing traffic. Mr. Smith asked Petitioner why he was holding the flag. Petitioner explained that he was helping the female employee while she went to the restroom by directing traffic until she returned. Later Mr. Smith came back and told Petitioner that he did not want Petitioner having conversations with that female employee. Petitioner surmised that the reason that Mr. Smith had for Petitioner not speaking to the female employee was in relation to the difference in their races, Petitioner's race and that of the female employee. This opinion was reinforced in Petitioner's mind because a similar conversation about not speaking to the female employee occurred three times. Mr. Smith stated his position in such a manner as to have his comments pertain to both female employees on the job. Mr. Smith's remarks were not stated in a manner where he literally said that he did not wish Petitioner to speak to the female employees because Petitioner was an African- American or Black and that the other persons were Caucasian or White. Another incident described by Petitioner was one in which an African-American employee of Don Olsen Tire Company came to repair a tire on a piece of equipment belonging to Respondent. One of the female employees asked for a ride with that individual in his truck back to another location where her van was located. Petitioner, the Don Olsen truck driver, and the female employee rode in the tire repair truck. This was observed by Mr. Smith. Mr. Smith approached the female employee and told her that he did not appreciate that she was disrespecting him and his wife by being in the truck with two black guys. Later that day, a Friday, Mr. Smith approached Petitioner and stated that he did not want Petitioner having a conversation or anything to do with females on the job. The following Monday Petitioner was terminated. Petitioner believes that he was terminated because of the circumstances with the female employees of another race that have been described. Mr. Smith also told the Don Olsen employee that he did not want that individual back on the job site fixing anything because the white female employee had been in that individual's truck. There was no showing that Petitioner made Respondent's upper level managers aware of Mr. Smith's comments concerning conversations which Petitioner had with Caucasian females on the job. According to company records, at one time Petitioner had been informed by Respondent concerning the procedures for making complaints about employment practices related to issues of alleged discrimination. At the time that Petitioner was terminated, Mr. Smith pulled up beside him on the job site and commented to the effect "I don't need you no more." That was the only reason given at a subsequent time when Petitioner spoke to Mr. Ghagvini concerning Petitioner's termination. Mr. Ghagvini said that he had heard from Superintendent Smith and that he was going to leave it at that. Petitioner presented no evidence concerning his claim that Whites were allowed to stand around and talk and that black employees were not allowed to do so, or that black employees were in any manner worked harder than white employees. Notwithstanding the prospect that Mr. Smith's motives when telling Petitioner not to speak to female employees on the job was racially motivated, the reason for Petitioner's dismissal was in relation to his failure to attend his duties on Saturday at various times. That explanation was not created as a pretext to divert attention from racial discrimination. After his termination from Respondent, Petitioner filed for unemployment and received those unemployment payments until his eligibility ran out. In that time period he looked for jobs. Eventually Petitioner obtained a position as a pipe layer with Sayaler Utility. He began employment with that company in October 2002, and the employment was continuing at the time of the hearing. Petitioner receives $8.00 an hour for his work and works on an average 35 hours a week. When he was dismissed from his employment with Respondent, Petitioner was receiving $8.50 an hour and was working an average of 35 hours a week.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by FCHR dismissing Petitioner's Petition for Relief in all respects. DONE AND ENTERED this 14th day of February, 2003, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 14th day of February, 2003. COPIES FURNISHED: Lonnie Jennings Post Office Box 782 Greenville, Florida 32331 Vehad Ghagvini, President Vicki Goodman, Personnel Representative Sandco, Inc. 2811 Industrial Plaza Drive Tallahassee, Florida 32310 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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 Respondent's working conditions or termination of Petitioner as its employee on July 12, 1996, constitutes unlawful employment practices based on Petitioner's race (African-American)?
Findings Of Fact Petitioner is a Black male.2 Petitioner's Charge of Discrimination before the Florida Commission on Human Relations is not before the undersigned because it was not included in the referral package nor admitted in evidence. The Petition for Relief vaguely alleged "harassment" and clearly asserted termination on the basis of race - "Black." 3 Petitioner was employed by Respondent in its Quincy, Florida, furniture manufacturing plant from January 25, 1983, to July 12, 1996, when he was terminated. Most, but not all, of Respondent's employees are Black. Petitioner was replaced by another Black male, William Baker. The decision to terminate Petitioner, as well as the decision to promote Mr. Baker into the position vacated by Petitioner, was made by Hershel Shepard, plant manager. Mr. Shepard, who died before the evidentiary hearing, was white. The plant manager is the highest-ranking person in the factory. Petitioner was initially hired in 1983 as a double- ended tendon (D.E.T.) machine operator. A D.E.T. machine is a wood-working machine which cuts off two opposite ends of a board at the same time. It requires pre-setting, and it throws out debris and sawdust which is hazardous to employees' eyes. The factory also utilizes other types of wood-working equipment, all of which throw out debris and sawdust which are hazardous to employees' eyes. On January 25, 1983, his hiring date, Petitioner received written safety rules requiring him to wear safety glasses at all times. On May 1, 1986, he signed for an updated set of similar rules. In 1988, Petitioner was promoted to D.E.T. "lead hand," with two or three employees subordinate to him. Petitioner was uniquely valuable to Respondent because he was the only person in the factory who knew how to adjust the D.E.T. machine. That is, he was the only person who knew how to set it up to do specific tasks. However, other employees could run the D.E.T. machine after Petitioner had, in essence, "programmed" it. In 1991, Petitioner hurt his back and was required by his orthopedic physician to wear a back support belt when lifting. He did not go out on workers' compensation leave/pay, but continued to report for work and was given time off to go to therapy. At some point, Petitioner and Mr. Shepard had a dispute about how the belt was supposed to be worn, and Mr. Shepard threatened to "write-up" Petitioner. There is no evidence that Petitioner was, in fact, "written-up" for this. On May 5, 1991, after his back injury, Petitioner was evaluated by Mr. Shepard to the following effect: that he could do the job, but perhaps not as fast as it should be done; that he had a problem keeping his machines running and coordinating loads; that he did "okay" on instructions, but that he had lost his initiative to get the job done and to take an interest in new products; and that he needed to improve his work habits. Mark Maxwell, a white male, supervised Petitioner for two to three months immediately prior to Petitioner's next promotion in 1993. Mr. Maxwell could not get Petitioner to produce the furniture parts from the D.E.T. machine when they were needed. According to Mr. Maxwell, Petitioner's cooperation and/or output fluctuated. Sometimes, Mr. Maxwell ordered Petitioner to run certain parts and the parts were not run. On one occasion, he had ordered Petitioner to run drawer fronts, and Petitioner set up to do another type of piece. Nonetheless, Petitioner was promoted to D.E.T. supervisor in approximately 1993. As such, Petitioner regularly supervised four employees. Mr. Shepard may or may not have had input as to Petitioner's first promotion in 1988, but it was solely his decision to promote Petitioner in 1993. Petitioner was promoted at that time, despite the unfavorable aspects in his employment record. Petitioner continued to have disciplinary problems with management after his 1993 promotion. On October 2, 1995, Mr. Maxwell, by then a middle- manager, wrote-up Petitioner because, knowing a particular type of pine chest of drawers was to go on the assembly line the next day, Petitioner allowed his crew to go home at the regular quitting time of 4:00 p.m., showing very little regard or devotion to Respondent employer. Employees often were required to work overtime on short notice in order to set up for the next day. Petitioner's failure to have the furniture parts ready from the D.E.T. machine the night before would cause several employees to stand around, drawing pay, with no assembly line work to do the next morning. Mr. Maxwell, who personally has worked overtime on short notice, considered working overtime on short notice to be part of the furniture-making business, and he expected that commitment from all Respondent's employees, including Petitioner and Petitioner's subordinates. Mr. Sheperd approved the write-up. Sometime in 1995, Petitioner was suspended without pay for three days as the result of damaging a bookcase and not repairing it. Petitioner contended at hearing that he had repaired the bookcase's top. At hearing, Petitioner acknowledged receiving two written warnings concerning his repeated failure to wear safety glasses on the job. One warning was undated. The other was dated March 25, 1996, and signed by Mr. Shepard. It specified that Petitioner had previously been warned in writing on September 18, 1995, October 2-3, 1995, and November 17, 1995, and that Mr. Shepard had warned Petitioner orally on each of the six consecutive days immediately preceding the March 25, 1996, written warning. At hearing, Petitioner did not refute the accuracy of the March 25, 1996, warning or claim its content was untrue. He also acknowledged that he was supposed to wear safety glasses at all times on the job and that as D.E.T. supervisor, he was supposed to be an example to his subordinates. Petitioner claimed to have seen white employees not wearing safety glasses, but there was no corroborative evidence that this was so. Petitioner also claimed that white employees who did not wear safety glasses were never written-up, but there was no corroborative evidence that this was so or any explanation of how Petitioner would know if any other employee had been warned or written-up for any reason, including but not limited to wearing safety glasses. In 1996, Petitioner's job as D.E.T. supervisor was basically to report to work, receive a list specifying the furniture parts (such as drawers or front rails) which he was to "run" on his machine(s), and run/create those listed parts. Sometimes, Petitioner disagreed with the order of parts as listed by his supervisors because, in his opinion, the list could have been better organized to ensure maximum efficiency at subsequent points on the furniture assembly line. Petitioner blamed the list and felt he was unfairly blamed by his supervisors when assemblers ran out of all parts they needed or they ran out of Part A pieces before they ran out of Part B pieces. Other recurring job problems from Petitioner's point of view were that the night crew broke his machine and/or would not set-up so that he could immediately start work when he came on the premises with the day crew each morning and that his FT01 machine was old and its settings would slide, making mistakes on cutting or forming wooden furniture parts out of round or in slightly flawed lengths and shapes. Mr. Maxwell confirmed only that some machines were old and that sometimes it was hard to get parts for the machines. He reiterated that Petitioner's conduct and output fluctuated. Management viewed it as Petitioner's job duty to run the correct furniture parts to the correct specifications, in the correct order, so that the correct size and shape of the correct type of part arrived at the next stage of the assembly line in sufficient quantities, at the right time, without delay. According to Petitioner, his troubles with Mr. Shepard began on an unspecified date when Petitioner had been ordered to run some impounds. Because he was short-handed due to two absentees, Petitioner requested help, and the machine room foreman promised to send Petitioner two helpers as soon as he could. Mr. Shepard saw that Petitioner was not working and demanded to know why Petitioner was not running the impounds. Petitioner explained that he was waiting for two more laborers. Then Mr. Shepard demanded, "Bubba, why you not running the machine?" Petitioner replied, "Herschel, you know, I would appreciate it if you wouldn't call me Bubba. My name is Lonnie." Mr. Shepard walked off without a word. Petitioner contended that thereafter, Mr. Shepard "harassed" him; however, Petitioner conceded that Mr. Shepard never again addressed him as "Bubba."4 Petitioner was terminated with abusive and profane language by Mr. Shepard on July 12, 1996. Mr. Shepard stated on Petitioner's termination papers that Petitioner had cut an entire run of bases one inch shorter than the 22-3/8 inches they were supposed to have been cut and that there was no more rough lumber in the plant with which to run more bases. In testimony, Petitioner stated that he believed he had correctly set his machine to cut the bases the correct length and that he had run about 200 bases correctly and someone else ran 900 incorrectly. However, he could not "remember whether I had run just enough to get them started that morning or someone else ran the load." He conjectured that the night shift might have run the incorrect bases, but he could not remember either way whether there had been, or had not been, a night shift in 1996. Petitioner also believed there had been available enough rough lumber to run a new load. Mr. Maxwell acknowledged the possibility that someone other than Petitioner could have run the useless bases, but he testified that he knew there had been no night shift in July 1996. Therefore, the night shift could not have been responsible for running the useless bases. Although Petitioner did not know whether or not he had personally cut the load short, he conceded that as D.E.T. supervisor, he was responsible for overseeing his suborindates' work on the machine. Petitioner's brother, Benjamin, also worked for Respondent in 1996, the year Petitioner was terminated, and for some unspecified period of time before that. In Petitioner's and his brother's opinions, working conditions in Respondent's factory were those of a "concentration camp," because of poor wages, because people were spoken to "as if they were not human," and because no one was given a day off. However, Benjamin McMillon described being let off early when he requested it, and both Petitioner and Mr. Maxwell described an incentive pay plan based on being paid more money for producing more product. Benjamin McMillon described employees, including one white woman, who feared Hershel Shepard's power over them and who feared that Hershel Shepard might terminate them. The following exchange, at pages 36-37 of the Transcript, sums up Petitioner's testimony as to the effect of his race on conditions at Respondent's factory: Q: You don't have any evidence that anything that happened between you and Mr. Hershel Shepard happened because you were black; is that right? A: No, but I know he was harassing me.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying all claims and dismissing the Petition for Relief. DONE AND ENTERED this 9th day of April, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 2001.
Findings Of Fact The Parties. The Petitioner, June M. Smith, is a female. The Respondent, the Department of Management Services (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department was formerly known as the Department of Administration. The Department's Division of Facilities Management. The Division of Facilities Management (hereinafter referred to as the "Division"), is a division of the Bureau of Maintenance (hereinafter referred to as the "Bureau"), a bureau of the Department. The Bureau's offices were located at Koger Executive Center (hereinafter referred to as "Koger"), in Tallahassee, Florida. The Division's Grounds Section had offices and a storage/maintenance area (hereinafter referred to as the "Grounds Section Shop"), located at 1018 South Bronough Street, Tallahassee, Florida. At all times relevant to this proceeding, the following individuals constituted the management structure immediately above the Division and the management structure of the Division: K. Wayne Smith was the Chief of the Bureau. Franklin Hatcher was the Deputy Bureau Chief of the Bureau. Mr. Hatcher left the Bureau in March of 1992. Tom LeDew was the Superintendent of Grounds. Mr. LeDew filled this position until June 20, 1991. Jack Smith became Superintendent of Grounds in March of 1992. Prior to March of 1992, Jack Smith was an "OPS" employee of the Division in charge of landscaping and irrigation. Olin Collins was under the supervision of the Superintendent of Grounds. Mr. Collins was a Supervisor III. There were three Supervisor I's under the supervision of Mr. Collins: Lawrence Medlock, Jeremiah Gee and Darren Miller. Each of the three Supervisor I's was responsible for the supervision of a crew of groundskeepers and laborers. Each crew usually consisted of between five to eight crew members. The Department's Decision to Employ Ms. Smith. Prior to January of 1990, Ms. Smith worked at Koger. She was employed by the company that was responsible for landscaping and maintenance of Koger's grounds. Ms. Smith assisted in landscaping and maintaining the grounds. She was involved in weeding, planting, mulching, trimming and minor spraying. Ms. Smith worked at Koger for approximately three years. During the last year of her employment at Koger, Ms. Smith was a supervisor of two individuals. At the suggestion of an employee of the Department that had observed Ms. Smith's work at Koger, Ms. Smith expressed interest in employment with the Department. Prior to her filing an application for employment with the Department, Ms. Smith spoke with Mr. Hatcher about employment with the Division's Grounds Section. Mr. Hatcher expressed his interest as Deputy Bureau Chief in hiring Ms. Smith when a position became available. Subsequent to her conversation with Mr. Hatcher, Ms. Smith filed an application for a laborer position with the Division. Ms. Smith was hired by the Department as a laborer and began her employment on January 19, 1990. Ms. Smith was continuously employed by the Department in the Division's Grounds Section until November 30, 1992. The decision to hire Ms. Smith was made by K. Wayne Smith, Bureau Chief, Mr. Hatcher, Deputy Bureau Chief, Mr. LeDew, Superintendent of Grounds, and Lawrence Medlock, one of the Supervisor I's. Ms. Smith was hired because she was the best candidate for the position. The evidence failed to prove that anyone was forced to hire Ms. Smith. In particular, the evidence failed to prove that Mr. LeDew was forced to hire Ms. Smith against his will as alleged in the Amended Petition for Relief filed in this case. The evidence also failed to prove that there was any resistance to Ms. Smith's employment by the Department. The Department did not have any policy against the hiring of women in the Grounds Section of the Division. The fact that there were few women employed at any given time in the Grounds Section was based upon the fact that few women applied for positions with the Grounds Section. At best, the evidence concerning the reaction within the Division to the employment of Ms. Smith proved that there were a few crew members who expressed their displeasure with the fact that a woman had been hired in the Division. One individual made a comment after Ms. Smith was hired that indicated he did not believe a woman should be hired because a man that needed to support his family needed the job more. The evidence failed to prove, however, that the individual who made the comment was a supervisor, that the Department was aware of the comment, that Ms. Smith was aware of the comment, or that the individual who made the comment treated Ms. Smith differently because of her sex. The evidence concerning the Department's attitude about hiring Ms. Smith was very positive. It was a Department Deputy Bureau Chief that suggested she apply for a position with the Department, Mr. Hatcher encouraged Ms. Smith to apply for a position, a group of four supervisors concluded that Ms. Smith was the best candidate for the position she applied for and the Department in fact hired her the first time that a position became available. The Department also paid Ms. Smith a starting salary which was 23 percent higher than the base salary for her position. Only one other employee, a male, was hired by the Division during 1990 and 1991 at a starting salary that was above the base salary. In that instance the individual transferred from another agency and received only a 10 percent increase above base salary. Ms. Smith's First Supervisor. Upon the commencement of her employment with the Department, Ms. Smith was assigned to Mr. Medlock's crew. Ms. Smith remained under Mr. Medlock's supervision for approximately 2 to 4 weeks. Very soon after Ms. Smith first began her employment under Mr. Medlock's supervision, Mr. Medlock made a comment to another employee that the work the crews performed "ain't a woman's type of work" and that a woman "ain't going to make it down here around with all these guys." The evidence failed to prove that Ms. Smith was made aware of Mr. Medlock's comments while employed by the Department. The evidence also failed to prove that Mr. Medlock treated Ms. Smith differently than he treated other employees because of her sex. Although the comments were inappropriate, the evidence failed to prove the comments had any direct or indirect impact on Ms. Smith's treatment by Mr. Medlock or the Department. On one occasion while under Mr. Medlock's supervision, Mr. Medlock took Ms. Smith by the arm. Mr. Medlock placed his hand around the back of Ms. Smith's upper arm. Although Ms. Smith described this incident as sexual and indicated that Mr. Medlock "caressed" her arm, Ms. Smith's testimony was not credible. Ms. Smith did not say anything to Mr. Medlock when he touched her or at any other time. Ms. Smith also did not report the incident to any supervisor or employee of the Department until almost three years after it took place. Mr. Medlock often took employees by the arm when he talked to them. He also had a habit of getting closer to employees than some of them would have liked when he talked to them. Mr. Medlock treated employees in this manner whether they were male or female. Mr. Medlock treated employees in this manner in an open manner. At least one supervisor, Mr. LeDew, was aware of Mr. Medlock's conduct. The evidence failed to prove that Mr. Medlock touched employees in a sexual way. The evidence also failed to prove that any employee complained to Mr. Medlock or any other supervisor about Mr. Medlock's conduct. The evidence also failed to prove that Mr. Medlock touched Ms. Smith in a sexual way. Ms. Smith's Second Supervisor. Ms. Smith was transferred from Mr. Medlock's supervision to Mr. Miller's supervision approximately two to four weeks after she began her employment with the Department. She remained under Mr. Miller's supervision for approximately one year. Mr. Miller did not tell Ms. Smith or any other person that he did not want Ms. Smith or women in general working on his crew. Mr. Miller did not have any problem having a woman work on his crew. Mr. Miller's crew was responsible for landscaping and maintenance of the grounds around the Florida Capitol complex. At some point shortly after Ms. Smith was assigned to Mr. Miller's crew, a personality conflict between Mr. Miller and Ms. Smith began to develop. A number of incidents led to this conflict. The evidence failed to prove that any of those incidents, however, were attributable to Ms. Smith's sex. The conflict between Mr. Miller and Ms. Smith was caused, in part, by the fact that Ms. Smith did not believe that Mr. Miller was a good supervisor and she let Mr. Miller know how she felt: Ms. Smith frequently questioned Mr. Miller's instructions to her. Ms. Smith believed that she knew how to accomplish her assigned tasks in a manner better than the manner in which Mr. Miller instructed her to accomplish those tasks. When Ms. Smith felt that way, which was often, she let Mr. Miller know. Although Ms. Smith's actions in questioning Mr. Miller did not reach the level of insubordination, her actions did cause friction with Mr. Miller; Ms. Smith also complained to Mr. Collins and another employee about the fact that Mr. Miller suffers from epilepsy and suggested that his condition negatively impacted his ability to supervise. On more than one occasion Ms. Smith also told Mr. Miller that she had a problem with his condition; Ms. Smith believed that Mr. Miller had trouble relating to people. The conflict between Mr. Miller and Ms. Smith was also caused in part because of Mr. Miller's concern about whether he would be replaced as supervisor by Ms. Smith. This fear was based upon the following: Mr. Miller saw Mr. Hatcher speaking with Ms. Smith, and not other employees, on several occasions at the Capitol; Mr. Hatcher suggested to Mr. Miller that Ms. Smith be made a crew leader instead of other crew members that had been on Mr. Miller's crew longer than Ms. Smith; Ms. Smith was allowed to attend an educational session at Florida A & M University that other laborers did not attend. Although Ms. Smith had requested permission to attend the session, Mr. Miller was not aware of this and believed that Ms. Smith was simply receiving special treatment by management; Finally, Mr. Miller actually heard a rumor that Ms. Smith would be promoted to supervisor and that she would replace him. Mr. Miller was so concerned about the rumor that he spoke to Mr. LeDew about it. Mr. LeDew assured Mr. Miller that the rumor was not true and spoke to Mr. Miller's entire crew in an effort to squelch the rumor. Toward the end of the time that Ms. Smith was assigned to Mr. Miller's crew, Mr. Miller requested that Ms. Smith meet with him to discuss the problems they were having. Mr. Miller asked Ms. Smith what her problem with him was. Nothing was resolved between Mr. Miller and Ms. Smith as a result of this meeting. Despite the personality conflict between Mr. Miller and Ms. Smith, Mr. Miller did not take any disciplinary action against Ms. Smith. Mr. Miller did not take any action to isolate Ms. Smith or treat her differently than he treated male employees. There were times when Mr. Miller assigned Ms. Smith to perform a task by herself. Ms. Smith believed that these assignments were based upon her sex or were intended as punishment. The evidence failed to support Ms. Smith's belief. The weight of the evidence proved that Mr. Miller's assignments of Ms. Smith were based upon his judgment as to how a task should be performed. The evidence failed to prove that Mr. Miller attempted to keep other crew members away from Ms. Smith. The evidence also failed to prove that Mr. Miller attempted to turn other crew members against Ms. Smith. The evidence also failed to prove that Mr. Miller or male employees and supervisors intentionally misled Ms. Smith. In particular, Mr. Miller did not inform Ms. Smith that Mr. Hatcher did not want her to be a crew leader. Mr. Miller actually told Ms. Smith that Mr. Hatcher had suggested she be made a crew leader and that Mr. Miller did not believe it would be fair to make her a crew leader instead of other crew members who had been with the Division much longer than Ms. Smith. Safety Meetings. For approximately three months after Ms. Smith began her employment with the Department, safety meetings were held every Tuesday. The meetings were held at the Grounds Section Shop. The safety meetings were attended by all of the grounds crews, including Ms. Smith's crew. The purpose of the safety meetings was to discuss safety issues. There were times, however, when the crew members were also reminded that cat calls and vulgar or sexual comments to females they saw while working were not appropriate. These reminders were usually made when a complaint had been received about the crews violating the policy against such conduct. There were instances when male workers used profane or vulgar language during safety meetings and Ms. Smith heard them. The evidence concerning whether supervisors of the Department were present when profanity was used during safety meetings in front of Ms. Smith was contradictory at best. The evidence presented by Ms. Smith was overly broad, lacking in specifics as to what was said, by whom comments were made, who was present and, whether supervisors that were present were also aware that Ms. Smith heard any comments. Based upon the weight of the evidence, it is concluded that supervisors of the Department did not routinely hear profanity being used by employees in Ms. Smith's presence, and, when they did, employees were not allowed by supervisors to use vulgar language while safety meetings were being conducted. On one occasion an employee used vulgar language in front of Ms. Smith during a safety meeting when a supervisor was present and the supervisor warned the employee to "watch your mouth." On other occasions, Mr. LeDew admonished one particularly troublesome employee, Bill Ojala, to not use vulgar language. Mr. Ojala was not a supervisor. Vulgar language was used by a small group of the non-supervisory employees immediately before and after safety meetings. Ms. Smith overheard employees using vulgar language before and after safety meetings on some occasions. The evidence failed to prove, however, that Ms. Smith told management of the Department about those instances when she overheard the use of vulgar language. The group safety meetings were discontinued approximately three months after Ms. Smith began her employment with the Department. The group meetings were discontinued largely because they had turned into "gripe sessions" instead of meetings to discuss safety. Separate safety meetings were continued by each ground crew. The evidence failed to prove that vulgar language was used by Ms. Smith's crew during the separate safety meetings conducted for her crew. Troy Sullivan's Employment by the Department In approximately August of 1990, eight months after Ms. Smith began employment with the Department, she applied for a groundskeeper position with the Division. Troy Sullivan, a male, was another applicant for the same groundskeeper position Ms. Smith applied for. Mr. Sullivan was hired by the Division to fill the groundskeeper position. Mr. Collins made the decision to hire Mr. Sullivan. Mr. Sullivan was hired at a salary below that being paid to Ms. Smith at the time he was hired, even though his position was a higher position than Ms. Smith's. Mr. Sullivan had approximately two or three years of experience with grounds maintenance prior to being employed by the Department. Most of that experience, however, was part-time and included some time when he mowed yards while in school. Mr. Sullivan worked full-time performing landscaping and grounds maintenance for approximately three months prior to his employment by the Department. Mr. Sullivan was assigned to Ms. Smith's crew. After speaking to Mr. Sullivan about his experience, which was not as extensive as hers, Ms. Smith complained to Mr. Miller about the failure of the Division to promote her to the groundskeeper position. The evidence failed to prove that Mr. Miller or anyone else told Ms. Smith that she was not promoted because she was a female. Mr. Miller arranged a meeting for Ms. Smith with Mr. Collins. Mr. Collins met with Ms. Smith and Mr. Miller. After hearing from Ms. Smith, Mr. Collins attempted to explain that he believed that Mr. Sullivan was the best candidate because of his experience and because Mr. Miller believed that she had evidenced resistance to authority during her employment with the Department. Mr. Collins gave Ms. Smith a specific example of an incident which he believed evidenced her resistance to authority. Mr. Collins had given Ms. Smith instructions concerning spraying an ant bed. Ms. Smith did not follow those instructions. Although Ms. Smith had an explanation for why she had not sprayed the ant bed (someone else did it before she could do it), the evidence failed to prove that Ms. Smith had told Mr. Collins why she had not sprayed the bed until after the decision had been made to hire Mr. Sullivan. Ms. Smith ended the meeting before Mr. Collins could give further explanation for his decision to hire Mr. Sullivan. In addition to the specific incident Mr. Collins informed Ms. Smith of, Mr. Collins had also been told by Mr. Miller of the difficulties he was having with Ms. Smith and her resistance to his instructions. Based upon Mr. Collins' understanding of the spraying incident at the time of his decision to hire Mr. Sullivan and his understanding of the difficulties Mr. Miller had experienced with Ms. Smith, his decision to hire Mr. Sullivan and not to promote her to the groundskeeper position was reasonable. Ms. Smith also complained to Mr. LeDew about the decision not to promote her. The evidence failed to prove that the decision to hire Mr. Sullivan and not to promote Ms. Smith to groundskeeper was based upon sex. All of the laborers, including Ms. Smith, were reclassified as groundskeepers effective October 26, 1990 and received a 10 percent increase in pay. Bricks in Your Pants. In January of 1991 Ms. Smith was pulling a sod roller over an area around the Capitol. The roller was very heavy and Ms. Smith appeared to be having some difficulty with it. Jack Smith walked past where Ms. Smith was pulling the roller. Jack Smith was an OPS worker at the time of this incident. Jack Smith said to Ms. Smith "you don't have enough bricks in your britches to pull that thing." Ms. Smith threw her hands down at her side in disgust. Jack Smith, believing that Ms. Smith was angered by his comment, apologized to Ms. Smith and indicated he did not mean to upset her. Jack Smith also told Ms. Smith that he did not have enough bricks in his britches to pull the roller by himself and suggested that there was one area where she should not attempt to pull the roller by herself. Jack Smith came by Ms. Smith later and, at her request, helped her pull the roller over a small hill. Jack Smith told Ms. Smith to suggest to Mr. Miller that they use a "Toro" to pull the roller. Ultimately, the Toro was used to pull the roller. Jack Smith reported his comment to Mr. LeDew. Jack Smith's comment to Ms. Smith was meant to indicate that Ms. Smith did not have enough weight and strength to pull the roller. Ms. Smith's belief that the comment had a sexual connotation was unfounded. I. Ms. Smith's Third Supervisor. In early 1991, Ms. Smith and Dewayne Earnest, a co-worker and friend of Ms. Smith, met with Mr. Hatcher, Jack Smith and Mr. Collins to complain about Mr. Miller's supervision. As a result of the meeting, it was decided that Ms. Smith and Mr. Earnest would be moved to another supervisor. This decision was made because of the personal conflict that had developed between Ms. Smith and Mr. Miller. The decision to move Ms. Smith was not based upon Ms. Smith's sex. The evidence failed to prove that the decision to change Ms. Smith's supervisor was made in retaliation for alleged complaints about alleged harassment and abuse of Ms. Smith by Department employees. The evidence failed to prove that Ms. Smith was told during the meeting that Mr. Miller would be demoted. Ms. Smith was placed under the supervision of Jeremiah Gee. Ms. Smith remained under Ms. Gee's supervision until November 16, 1992. Ms. Smith testified that she did not have any problem with Mr. Gee's supervision of her. Ms. Smith complained, however, about several alleged incidents involving Mr. Gee. Ms. Smith complained that, for some unspecified period of time, Mr. Gee required that she keep notes of the work performed each day. Mr. Gee, when questioned by Ms. Smith about why she was being required to keep notes, told her that she was good at keeping records. The evidence failed to prove that male employees were never required to take notes for Mr. Gee before or after Ms. Smith took notes. The evidence also failed to prove that Mr. Gee's decision to require that Ms. Smith take notes was based upon her sex. Ms. Smith also complained that Mr. Gee had required that she go to the Grounds Section Shop to pick up 15 to 20 one-gallon potted plants and bring them in a truck to a landscaping site. The evidence failed to prove that this assignment was unreasonable, that it was meant to be punishment, that it was a more difficult task than Mr. Gee assigned to male workers or that the assignment was based in any way on Ms. Smith's sex. In fact, Mr. Gee had instructed Ms. Smith to request assistance if she had any difficulty lifting any objects. Ms. Smith also complained about an incident that took place on a rainy day on or before September 25, 1991. Because of the rain, the crews remained at the Grounds Section Shop. Mr. Gee instructed Ms. Smith to clean machinery and tools. Mr. Gee observed Ms. Smith talking to another crew member, Mr. Holland, rather than cleaning machinery and tools. Mr. Gee gave Ms. Smith a written counseling for failing to follow his instructions. Mr. Collins was also present when the written counseling was given to Ms. Smith. Ms. Smith refused to sign the counseling. Ms. Smith wrote a response to Mr. Gee's written counseling alleging that she had been discriminated against. The evidence failed to prove that the written counseling given Ms. Smith by Mr. Gee was based in any way upon her sex. The evidence also failed to prove that Mr. Gee "continued the attitude of sex based hostility toward Petitioner." The evidence also failed to prove that "Bill McCray, then-Crew Leader of Petitioner's crew, told other supervisors including Gee that they needed to be harder on Petitioner with the hope that she would quit working with the Department." There was no evidence presented to support this allegation. Additionally, "crew leaders" were informally designated supervisors without a great deal of authority and, therefore, it is unlikely that a crew leader would be giving instructions to Mr. Gee or any other Supervisor I. Slashed Tires, Vandalized Equipment and Rocks on Ms. Smith's Windshield. While Ms. Smith was under Mr. Gee's supervision, Ms. Smith drove her daughter's automobile to work one day. The automobile was parked at the Grounds Section Shop. During the day a tire on her daughter's car was slashed. The evidence failed to prove who was responsible for this incident, that it was based upon Ms. Smith's sex or that the Department acted unreasonably. On another occasion, the Grounds Section Shop was broken into one night. The truck that Ms. Smith's crew used had the words "bitch, bitch, bitch" spray painted on it and the word "bitch" was spray painted on a pillar in front of the truck. Jack Smith's departmental vehicle had also been spray painted. The door to the restroom used by Ms. Smith and a few male employees had been kicked in. Tools and equipment used by Ms. Smith's crew were thrown around the maintenance area. Other equipment had also been moved, but not to the same extent as Ms. Smith's crew's equipment. Communications equipment had also been misplaced and a telephone had been taken. The Capitol police were informed of the incident and came to the Grounds Section Shop to investigate. The police were unable to determine who had caused the damage at the Grounds Section Shop. Ms. Smith was very upset about the incident and talked of quitting. Jack Smith encouraged her not to quit and told Ms. Smith that she was the best worker he had. It is likely that the incident was directly related to Ms. Smith and involved an employee of the Division who did not like Ms. Smith. The evidence, however, failed to prove who the individual or individuals were that vandalized the Grounds Section Shop. The evidence also failed to prove that any action of the Department in response to the incident was based upon Ms. Smith's sex. The evidence also failed to prove that the Department did not respond in a reasonable manner to the incident. Ms. Smith also complained that she believed that someone had gotten into her personal truck and that her purse, which she had left in the truck, had been searched. The truck, which was locked, had not been broken into and nothing was taken from her purse. She reported the incident to Mr. Collins and Mr. Medlock. The weight of the evidence failed to prove that anyone had actually gone into Ms. Smith's truck. The evidence also failed to prove that any action of the Department related to this incident was unreasonable or based on Ms. Smith's sex. During the summer of 1992, Ms. Smith reported to Jack Smith that, while exiting the Grounds Section Shop at the end of work, rocks had been thrown on her vehicle when the tires on a truck driven by another employee spun out. Jack Smith spoke to the other employee, who explained that it had not been intentional. The individual indicated that he was having problems with his transmission, which Jack Smith knew to be true. Jack Smith reported back to Ms. Smith. The evidence failed to prove that this incident was related in any way to Ms. Smith's sex. The Incinerator Incident. Ms. Smith reported to Jack Smith that two co-workers from another crew had been drinking alcohol. While Ms. Smith had not seen the individuals drinking, she had smelled what she believed alcohol when she walked into a room that the individuals were in. One of the workers was Earl Thomas. Jack Smith told Ms. Smith that there was nothing that he could do about employees drinking unless he actually caught them drinking. Jack Smith also told Ms. Smith that he would get the Capitol police to investigate, because he believed there was a drinking problem. Although Jack Smith asked Capitol police for assistance, none was immediately given and Jack Smith did not follow-up on his request. The evidence, however, failed to prove that Jack Smith's reaction to Ms. Smith's complaint, or the lack of effort to follow up on the problem, was related to her sex. The Department did not simply ignore drinking. Mr. Ojala had previously been counseled about drinking alcoholic beverages during working hours. Subsequent to reporting Mr. Thomas for his alleged drinking, Ms. Smith drove her crew's truck to the incinerator to drop off trash. Other crew members were with Ms. Smith. While at the incinerator she saw Mr. Thomas. Mr. Thomas made the following statement: "if that fucking bitch was my fucking wife I'd kick her fucking ass." Ms. Smith overheard the statement. The evidence failed, however, to prove that any other individuals heard the statement. Mr. Earnest's testimony about this incident was not credible. Mr. Earnest and Ms. Smith discussed essentially all of their problems at the Department. It was not until the final hearing of this case that Ms. Smith heard that Mr. Earnest had allegedly overheard Mr. Thomas' statement. Because of Mr. Earnest's lack of candor concerning this matter, very little weight was given to any of Mr. Earnest's testimony. Ms. Smith reported the incident to Jack Smith. Jack Smith told Ms. Smith that he "would take care of it". Jack Smith spoke to Mr. Thomas about the incident. Mr. Thomas denied that he made the comment to Ms. Smith. Jack Smith believed that there was no way he could determine whether Mr. Thomas or Ms. Smith was telling the truth. Therefore, no disciplinary action was taken against Mr. Thomas. Instead, Jack Smith told Mr. Thomas that, if he did make the comment, not to make any further comments to Ms. Smith and, if he did not make the comment, he should stay away from Ms. Smith. Jack Smith did not take any disciplinary action against Mr. Thomas. The evidence failed to prove that the Department's actions relating to the incident at the incinerator were based upon Ms. Smith's sex or that the Department acted unreasonably. The evidence also failed to prove that a subsequent change in Ms. Smith's supervisor was based on the incinerator incident. Ms. Smith's Unspecified Complaint About an Unnamed Supervisor. On or about December 16, 1991, a meeting was held at Ms. Smith's request with Ms. Smith, K. Wayne Smith, Mr. Hatcher and Mr. Collins. The meeting had been arranged after Ms. Smith told Mr. Gee that she had a problem with a supervisor and that she wanted to discuss the problem with management. She would not tell Mr. Gee who the supervisor was or what the problem was. Ms. Smith also told Mr. Gee that she did not want to see Mr. Collins. During the December 16, 1991 meeting Ms. Smith indicated that she would rather not discuss her complaint with Mr. Collins present. Mr. Collins, therefore, left the meeting. After Mr. Collins left the meeting, Ms. Smith stated that there was a supervisor in the Division that hated women. When asked to identify the supervisor, she refused. The evidence failed to prove any specific incident that Ms. Smith raised other than the written counseling previously given to Ms. Smith. Following a discussion of the written counseling, Ms. Smith was told that the written counseling would be returned to her and that no copy of the document would be placed in her file. Rather than the written counseling, Ms. Smith only received an oral counseling for the incident. When asked if there were any other problems she was having, she replied "no". Following the December 16, 1991, meeting Mr. Collins spoke to several people in an effort to determine if Ms. Smith was being discriminated against on the basis of her sex. Mr. Collins learned on one incident involving Raymond Hines. Raymond Hines' Inappropriate Comment to Ms. Smith. While under Mr. Gee's supervision, Raymond Hines acted as a "crew leader". This was an informal position and Mr. Hines lacked disciplinary authority. Ms. Smith and Mr. Earnest worked with Mr. Hines. Mr. Hines had instructed Ms. Smith concerning how to plant daisies. Mr. Hines became upset with Ms. Smith when she questioned his instructions and made the comment that "she needed to be home taking care of her babies." When Ms. Smith learned of Mr. Hines comment she reported it to Mr. Gee and Mr. Collins. Ms. Smith indicated that she did not wish to file a complaint against Mr. Hines because she did not want for him to get into any trouble. Mr. Collins directed Mr. Gee not to allow Mr. Hines to act as a crew leader any longer. The next day, Mr. Hines was no longer allowed to act as a crew leader. The evidence failed to prove that the Department's actions with regard to Mr. Hines' inappropriate comment to Ms. Smith were unreasonable or unresponsive. Mr. Ojala. The Department had a number of problems with Mr. Ojala and three other individuals. They became known as the "Parkway 4." Ultimately, three of the Parkway 4, including Mr. Ojala, were terminated in the Spring of 1991. The fourth member was suspended in May of 1991. On one occasion immediately before or after a safety meeting, Mr. Ojala pulled his shirt out to indicate "breasts" and said he did not have any of "those." These actions were directed at Ms. Smith. The evidence failed to prove that any supervisors were aware of this incident. The evidence also failed to prove that Mr. Ojala or any other employee of the Department touched Ms. Smith's breasts. Mr. Ojala was reprimanded orally on March 20, 1989, for the use of profane, obscene or abusive language. At some time while employed by the Department, Mr. Ojala came out of a restroom at the Grounds Section Shop. Mr. Ojala was still tucking his shirt into his pants when he came out of the restroom. Mr. Ojala made no effort to hide what he was doing even though Ms. Smith was present and Mr. Ojala saw her. Ms. Smith reported the incident to Jack Smith. Jack Smith questioned Mr. Ojala about the incident. Mr. Ojala denied that he was coming out of the restroom when the incident occurred. Mr. Ojala stated that he was outside the building in the morning between two automobiles tucking his pants in when Ms. Smith drove past and saw him. The evidence failed to prove that the Department's actions with regard to Mr. Ojala's actions around Ms. Smith were unreasonable or based upon her sex. Ms. Smith's Final Supervisor. In November of 1992 Jack Smith decided to rearrange the areas each of the crews were responsible for. This decision was based upon Jack Smith's conclusion that the areas needed to be more contiguous in order to reduce the amount of travel time required by the supervisors and crews to cover their respective areas of responsibility. The evidence failed to prove that this decision was unreasonable or that it was based in any way on Ms. Smith's sex. The rearrangement of areas did not change the work load or duties of the crews. Nor were the crews required to work in a significantly different work area. As part of the rearrangement of work areas, Jack Smith decided to move the supervisors to different crews. As a result of this decision, Mr. Medlock became the crew leader of Ms. Smith's crew. Ms. Smith and her crew were informed of the change in their supervisor by Mr. Gee. Mr. Gee informed Ms. Smith that Jack Smith had made the decision. After learning of the change in supervisor, Ms. Smith asked Jack Smith not to put Mr. Medlock in charge of her crew. Jack Smith declined her request. After speaking to Jack Smith, Ms. Smith asked Mr. Gee to arrange a meeting with someone that would be able to stop the change in her supervisor. A meeting was arranged. On or about November 15, 1992 a meeting was held with Ms. Smith, K. Wayne Smith, Jack Smith and Glenn Abbott, a Management Review Specialist of the Department's Bureau of Personnel, Mr. Earnest and a union representative also attended the meeting. Ms. Smith and Mr. Earnest stated that they did not want to be placed under Mr. Medlock's supervision. Ms. Smith gave several reasons why she was opposed to working for Mr. Medlock. Ms. Smith then stated for the first time that Mr. Medlock had touched her when she had first been employed by the Department. Ms. Smith indicated that she believed the touching was sexual; that Mr. Medlock had "caressed" or "squeezed" her arm. Ms. Smith indicated that the incident had taken place almost two years earlier, that she had not previously reported it and that no further incidents had occurred during the almost two year period that had passed since the incident. Ms. Smith also did not report that there were any witnesses to the incident. Ms. Smith only reported one incident during the November 15, 1992 meeting and in her Amended Petition for Relief, although she contended for the first time at hearing that there were two or three incidents. After listening to Ms. Smith's complaint about Mr. Medlock, she was informed that the change in supervisors would still take place. K. Wayne Smith made the decision. K. Wayne Smith also told Ms. Smith to report any inappropriate actions by Mr. Medlock directly to him. The decision to decline Ms. Smith's request that Mr. Medlock not be assigned as her supervisor was based upon the amount of time that had passed since the incident, the fact that there were no witnesses to the incident, the non-sexual nature of the touching and the fact that Ms. Smith had not previously reported the incident. K. Wayne Smith and several other supervisors had previously met with Ms. Smith. K. Wayne Smith had asked Ms. Smith to report any problems she had experienced. Ms. Smith did not report the incident with Mr. Medlock to K. Wayne Smith or any of the other supervisors. Jack Smith had, on more than one occasion, asked Ms. Smith if she had any problems. Ms. Smith never reported the touching incident. Mr. Abbott reported the touching incident to the Department's personnel director. Mr. Abbott also intended to speak to Mr. Medlock about the incident, but Ms. Smith left the Department before he had an opportunity to do so. During the November 15, 1992, meeting, Ms. Smith asked if there were any other positions within the Department that she could be transferred to. K. Wayne Smith told her that, based upon her education and experience, the only position she would qualify for was a "maid's job". K. Wayne Smith was referring to custodial positions available at the Department. The meeting on November 15, 1992, although not uncontrollable, was somewhat heated. Despite the heated nature of the meeting, efforts were made to convince Ms. Smith of the benefits of remaining with the Department. The evidence failed to prove that Ms. Smith was told that she was a "troublemaker" or that she was told that the only way she could make it with the Department was to keep her mouth shut, her ears shut and look the other way. The evidence failed to prove that any comments made during the November 15, 1992, meeting, or that the actions taken by the Department as a result thereof, were based upon Ms. Smith's sex. By the time of this meeting, Ms. Smith had made numerous complaints about a wide variety of subjects. Ms. Smith had become a source of problems for management of the Division. Many of the problems were based upon hearsay and rumor and not based upon reality. Some of those problems were caused by Ms. Smith and some were caused by others. Of significance, however, is the fact that the problems were related to personality conflicts and not Ms. Smith's sex. In light of all these circumstances, the Department's actions following the November 15, 1992 meeting were reasonable and were not based upon Ms. Smith's sex. The evidence failed to prove that Ms. Smith was subjected to written discipline for insubordination as a result of questioning her assignment to Mr. Medlock's supervision. Ms. Smith's Next to the Last Day of Reporting to Work. On November 16, 1992 Ms. Smith was placed under Mr. Medlock's supervision. Jack Smith told Mr. Medlock to have someone with him when he gave Ms. Smith and Mr. Earnest instructions. Mr. Medlock's first encounter with Ms. Smith on November 16, 1992 was at the Grounds Section Shop. Mr. Medlock expected Ms. Smith and Mr. Earnest to approach him about their work assignment that morning. When they did not, Mr. Medlock eventually approached them. Ms. Smith and Mr. Earnest were still gathering their tools. When Mr. Medlock questioned them about why they were not ready to leave yet, they told him that there were too many people in the Grounds Section Shop. They also indicated that they were not paid to think and that he would have to tell them everything that they were suppose to do. Ms. Smith and Mr. Earnest were belligerent and angry. Mr. Medlock was also irritated about the situation. Mr. Medlock directed Ms. Smith and Mr. Earnest to go to the Union Bank building and trim shrubs. At approximately 8:20 to 8:25 a.m. Mr. Medlock and Mr. Collins drove past the Union Bank. Ms. Smith and Mr. Earnest were standing by their truck and had not yet begun working. At approximately, 8:35 to 8:40 a.m. Mr. Medlock and Mr. Collins returned to the Union Bank to see if Ms. Smith and Mr. Earnest had begun to work. Mr. Earnest was working on one small plant that was part of a hedge. Ms. Smith was not working until she saw Mr. Medlock and Mr. Collins approaching. When Ms. Smith saw Mr. Medlock and Mr. Collins she began to immediately work on the same small plant that Mr. Earnest was working on. Very little trimming had been done at this time. Mr. Medlock told Ms. Smith and Mr. Earnest that they needed to spread out and not work on the same small bush. Mr. Medlock demonstrated what he wanted them to do. Between an hour and an hour and a half later Mr. Medlock and Mr. Collins drove past the Union Bank again. Ms. Smith and Mr. Earnest were no longer there. Their truck was also gone. It was not time for their break and the evidence proved that they were not on break. Even if they were on their break, they were suppose to remain at the job site and they were gone more than the fifteen minutes allowed for breaks. Mr. Medlock and Mr. Collins looked for Ms. Smith and Mr. Earnest for thirty to forty-five minutes. They eventually saw them driving the truck back toward the Union Bank. Mr. Medlock and Mr. Collins returned to the Union Bank where they found Ms. Smith and Mr. Earnest. Very little work appeared to have been done. Mr. Medlock told Ms. Smith and Mr. Earnest that he would not tolerate them driving around in the truck and not getting any work done. Mr. Earnest told Mr. Medlock, "Nigger, I ain't got to put up with this shit" and "I ain't going to do a damn thing." Ms. Smith was present when Mr. Earnest made these comments. Ms. Smith did not say anything to Mr. Earnest about his use of profanity or the racial slur. Mr. Earnest then returned to the Grounds Section Shop and left for the day on sick leave. Ms. Smith left Union Bank a short time after Mr. Earnest had left. Ms. Smith also went home on sick leave. The evidence failed to prove that Mr. Medlock made any effort to touch Ms. Smith on November 16, 1992. Mr. Earnest resigned on November 17, 1992. At that time, Mr. Earnest referred to Mr. Medlock as "that nigger" in Jack Smith's presence. Ms. Smith's Last Day of Employment with the Department. Ms. Smith remained home on sick leave for several days trying to decide what to do. She was concerned about not having a job. She was also concerned that her position with the Department was in jeopardy. Ms. Smith stayed home on sick leave for a week. The Department made no effort to question Ms. Smith's use of sick leave during this time. On November 20, 1992, Ms. Smith signed a resignation form with an effective termination date of November 30, 1992. Ms. Smith asked Jack Smith what she should give as her reason for resigning. Jack Smith suggested that she could simply say "personal reasons." Jack Smith did not, however, attempt to make Ms. Smith use "personal reasons". Ms. Smith put "conflict of interest" as her reason for leaving. Ms. Smith was correctly informed that she could use her accumulated leave but that State policy required that she work her last day of employment. She was allowed to take sick leave between November 20, 1992 and her resignation date even though she was not sick. On Ms. Smith's last day of employment, November 30, 1992, Mr. Medlock was absent from work. Therefore, Mr. Gee was assigned to supervise Ms. Smith. Mr. Gee was not assigned to supervise Ms. Smith because of her fear of Mr. Medlock. The evidence failed to prove that Ms. Smith was constructively terminated by the Department. First, the evidence failed to prove that Ms. Smith was reasonably afraid of Mr. Medlock touching her or otherwise sexually harassing her. Ms. Smith's and Mr. Earnest's relationship with the Department had simply deteriorated to the point where it was becoming difficult for Ms. Smith's employment to continue. Secondly, Ms. Smith had another alternative to terminating her employment if her fear of Mr. Medlock had been the only reason why she did not believe she could return to work. Ms. Smith, as a career service employee, could file a grievance over the decision to place her under Mr. Medlock's supervision. Ms. Smith chose not to do so. Subsequent to Ms. Smith's resignation, an Exit Interview Report was completed by Mr. Medlock and placed in her file. Reemployment was not recommended in the report because of "bad attitude, didn't get along well with co-workers, and she didn't like to cooperate with supervisor." Ms. Smith suggested that she had never been told any of these things. This assertion, however, is not supported by the weight of the evidence. Sexual Harassment Policy/Training. During Ms. Smith's employment by the Department, sexual harassment in the workplace was not discussed with, or mentioned by management to, the employees of the Division. Employees of the Division were not provided with any training concerning sexual harassment in the workplace during the time that Ms. Smith was employed by the Department. The Department has promulgated rules concerning sexual harassment in the workplace. See Chapter 13J-5 (now Chapter 60-5), Florida Administrative Code. Respondent's exhibit 5. The Department's rules on sexual harassment were provided to all new employees of the Department. The Department's employee handbook also briefly addresses sexual harassment and refers to the Department's rules. Respondent's exhibit 6. A copy of the Department's employee handbook was provided to all new Department employees. Mr. Collins, the immediate supervisor of Mr. Medlock, Mr. Gee and Mr. Miller, has attended courses dealing with discrimination on the basis of race and sex. As a result of these courses and his involvement in hearings on sex discrimination and sexual harassment, Mr. Collins is mindful of the problems of discrimination on the basis of sex. The Use of Vulgar Language. It was the policy of the Department that profane, obscene or abusive language was not to be used by employees of the Division. See Chapter 13J-4 (now Chapter 60-6), Florida Administrative Code. Respondent's exhibit 4. It was the standard practice of the Division to provide a copy of Chapter 13J-4 to all employees when they were hired by the Department. Ms. Smith was provided a copy of Chapter 13J-4. The Department also required that all employees sign a memorandum dated January 24, 1990, which explained the Department's policy concerning profane, obscene or abusive language. The memorandum provided the following: The use of Profane, Obscene, or Abusive Language is a Violation of Rule 13J-4 of the State of Florida Administrative Code. Use of such language will at no time be tolerated within the Capital Center Grounds Section. Violation of this requirement will result in disciplinary action being taken against the offender. The normal progression, depending on the severity of the offense, of this disciplinary action will be an Oral Reprimand, Written Reprimand, Three (3)-Day Suspension, and Dismissal. The disciplinary chain is progressive and will be followed. See Respondent's exhibit 2. At least one employee did not sign the memorandum until April 10, 1991. Employees were, however, informed of the policy orally prior to the date of the memorandum. Despite the Department's policy, profane and obscene language was used at times by employees of the Division. There were also times when profane and obscene language was used by non-supervisory employees of the Department when Ms. Smith was present. Ms. Smith contended in this proceeding that she made numerous and continuous complaints about the use of profane and obscene language in her presence while she was employed by the Department and that management of the Division failed to take any action to remedy the situation. The weight of the evidence failed to prove Ms. Smith's contentions. The evidence in support of such findings was generally over-broad and lacking in specificity as to when and to whom she complained, what she alleged was said, who she alleged used profanity, whether supervisors were present, whether the person that used the profanity or supervisors were aware Ms. Smith was present, etc. The evidence failed to prove that Ms. Smith complained to Mr. Hatcher about the use of profanity or the telling of off-color jokes. The evidence did prove that, despite the Division's efforts to prevent the use of profanity, the use of profane or obscene language by employees of the Division was not uncommon. Words such as "damn", "shit", "bitch", and "cunt" were used. The evidence, however, failed to prove specific incidents when profanity was used in Ms. Smith's presence or the circumstances surrounding such occasions. The evidence also failed to prove any incident when Ms. Smith complained to management about the use of profanity when management did not take action. For example, Ms. Smith complained to Mr. LeDew at some point between January of 1990 and June of 1991 about the use of vulgar language. Mr. LeDew instructed Ms. Smith's supervisor to make sure vulgar language was not used. In approximately June of 1992 Ms. Smith also complained to Mr. Gee about an "OPS" worker telling off-color jokes. Mr. Gee reported the incident to Jack Smith who met with the OPS worker and informed him that the Division did not allow the telling of off-color jokes. The worker was also told by Jack Smith that he would be fired if he persisted in telling off-color jokes. Ms. Smith did not report any further problems with the worker. The General Treatment of Ms. Smith. The evidence failed to prove that male employees of the Department became suspicious or jealous of Ms. Smith and attempted to sabotage her performance and potential promotions. Mr. Miller did not tell Ms. Smith that she should not expect any promotions because women were never promoted in the Grounds Section. The evidence also failed to prove that Ms. Smith was treated differently by her supervisors at the Department than her male counterparts were treated. The evidence also failed to prove that Ms. Smith was given work assignments or otherwise treated differently because of the fact that she is a female. The evidence also failed to prove that Ms. Smith was held to a higher standard of performance than male workers. Ms. Smith received high evaluations while employed at the Department. Ms. Smith received "exceeds" performance standards throughout her employment with the Department. She was also promoted to groundskeeper with all the other laborers and received a letter of recommendation from Jack Smith. Ms. Smith was also the third highest paid employee of similar position within the Division while employed by the Department between March 16, 1990 and May 10, 1991. Ms. Smith was paid more than some equivalent employees who had more time with the Department. The two individuals that were paid more than Ms. Smith had been with the Department for 15 to 20 years each. The evidence also failed to prove that Ms. Smith was not allowed to seek assistance from co-workers under circumstances similar to those when her male co-workers would seek assistance. The evidence also failed to prove that she was denied assistance when it was necessary or that she was criticized inappropriately for "needing help from others." Comments on Ms. Smith's January 19, 1991 appraisal concerning seeking assistance were intended as constructive and not disciplinary. The comments were reasonable because of Ms. Smith's unreasonable preference for working with another co-worker rather than completing the task assigned to her by her supervisors. Ms. Smith was not disciplined for complaining about being assigned a task to be performed alone and she was not threatened with discipline by any supervisor for expressing her desire to work with Mr. Earnest or any other co- worker. There were tasks that required two or more workers to perform. There were also tasks that, while only requiring one person to perform, two or more workers were assigned to perform. The standard procedure was, however, for workers to work in the same general area, but to be performing different tasks. There were also times when all workers, including Ms. Smith, were required to work alone and independently of others. Ms. Smith did not like to work alone or on a task by herself and frequently complained about being denied her preference to work with another employee. The evidence failed to prove that Ms. Smith was segregated from her co-workers unreasonably, as retaliation or based upon her sex. There were times when Ms. Smith was not allowed to perform a task with Mr. Earnest, whom she preferred to work with most of the time, or other co- workers. The evidence, however, failed to prove that on those occasions when she was required to work independently, that she was being singled out to perform a job which would require two or more employees to perform. The evidence also failed to prove that Ms. Smith's sex played any role in any decision to require Ms. Smith to work independently. The evidence also failed to prove that Ms. Smith was treated with discipline for complaining about the workplace. The evidence also failed to prove that working conditions became worse as a result of her complaints about an alleged sexually hostile work environment. While it is true that Ms. Smith was viewed by management as a complainer and problem employee for a large part of her employment, that perception was not based upon her sex or allegations of sexual misconduct in the Division. The Department's reaction to Ms. Smith would have most likely been the same had she been a man. This conclusion is supported by the Department's treatment of Mr. Earnest. In many, although not all, respects Mr. Earnest joined Ms. Smith in the complaints raised by her to the Department. For a considerable part of the time Ms. Smith was employed with the Department, she insisted that Mr. Earnest be present when she spoke to supervisors, especially when she spoke to Jack Smith. Mr. Earnest, like Ms. Smith, was resentful of management, argumentative with supervisors and was viewed toward the end of his employment as a source of problems for the Division. With perfect hindsight, it would be easy to criticize some of the reactions of the Department to the complaints of Ms. Smith and Mr. Earnest. Some supervisors reacted with anger to the mounting number of complaints and accusations Ms. Smith and Mr. Earnest made. Any inappropriate reaction by management of the Department was not, however, based upon sex. Had it been, Mr. Earnest, a male, would not have been treated in the same general manner that Ms. Smith was treated. The fact that Mr. Earnest was treated similarly to Ms. Smith tends to refute any conclusion that the Department's actions were based upon Ms. Smith's sex. Miscellaneous Complaints. The evidence failed to prove that Jack Smith asked Ms. Smith or Mr. Earnest whether they were having sex with each other. The evidence failed to prove that any disciplinary or other adverse action was taken against Ms. Smith for asking Jack Smith if he had asked Mr. Earnest whether Mr. Earnest and Ms. Smith were having sex with each other. Ms. Smith's Subsequent Employment. After terminating her employment with the Department, Ms. Smith filed an application for employment with the Department of Labor and Employment Security. Not too long after leaving the Department, Ms. Smith moved to Virginia and lived with her sister for a relatively short period of time. She returned to Florida. The evidence failed to prove how long Ms. Smith unsuccessfully made a diligent effort to find employment after leaving the Department. Ms. Smith is currently employed as manager of the inside lawn and garden section of Lowe's in Tallahassee, Florida. Ms. Smith has been employed at Lowe's since February 19, 1993. She is paid more than she was being paid at the Department when she left. Ms. Smith's Complaint. Ms. Smith filed a Charge of Discrimination with the Commission on or about August 10, 1993 alleging that the Department had discriminated against her on the basis of her sex. On or about January 13, 1994, the Commission entered a Notice of Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice had occurred. On or about February 14, 1994, Ms. Smith filed a Petition for Relief contesting the Commission's determination. The Petition was filed with the Division of Administrative Hearings. On or about March 24, 1994, Ms. Smith filed an Amended Petition for Relief.
The Issue Pursuant to section 760.10(7), Florida Statutes (2015), the issue is whether Respondent has unlawfully discriminated against Petitioner in employment for opposing unlawful employment discrimination.
Findings Of Fact Petitioner is black and originally from Trinidad. He appears to be at least 50 years of age. Petitioner failed to prove that he is a Seventh-Day Adventist, but this omission is immaterial for the reasons set forth below. At all material times, Respondent has employed Petitioner as a Heavy Equipment Operator. Several years ago, after, on three occasions, Respondent declined to promote Petitioner to Pipefitter Supervisor. Petitioner complained to Respondent and later to the Florida Department of Environmental Regulation that Respondent had hired for this position three persons who lacked a Water Distribution Level III license and instead improperly used Petitioner's license to satisfy a requirement of the agency for the employment of a person holding such a license. It may be inferred that Respondent did not welcome these complaints, regardless of their merits. Petitioner's proof as to his attempts to secure a position as a Pipefitter Supervisor is sketchy, but, regardless of any evidentiary shortcomings, it appears that, at the time, he opposed Respondent's actions, not as actions of unlawful employment discrimination, but as a violation of an agency rule and improper use of Petitioner's license. The sole potentially retaliatory act identified by Petitioner occurred, several years later, when, in April 2015, Respondent refused to sustain Petitioner's appeal of a reprimand that he received for causing $25 worth of damage to a third party's mailbox while operating heavy equipment within the scope of his duties as a Heavy Equipment Operator. However, the evidence fails to prove that the refusal to sustain the appeal was retaliatory. Petitioner did not deny that his operation of heavy equipment damaged the mailbox. Although $25 is a modest amount of damage, heavy equipment is inherently dangerous and its negligent operation may require punishment, even when the damage is slight, in order to deter future negligence that might result in more serious damage or loss of life. Petitioner unpersuasively links the denied appeal of the ensuing reprimand to his job-related complaints several years earlier. Even if Petitioner had established that these complaints constituted opposition to unlawful employment discrimination, which he did not, Petitioner cannot link the evidently reasonable punishment of a reprimand for negligent operation of heavy equipment, years later, to Respondent's decisions not to promote him to Pipefitter Supervisor. As it is, Petitioner proved only that he is a member of several protected classes; several years ago, he complained that Respondent hired unqualified persons as Pipefitter Supervisors and used Petitioner's license to satisfy a state agency's rule; several years later, while operating heavy equipment for Respondent, Petitioner damaged a mailbox; and, as a consequence, Respondent reprimanded Petitioner and denied his appeal of the reprimand.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed on September 16, 2016. DONE AND ENTERED this 25th day of July, 2017, in Tallahassee, Leon County, Florida. S Robert E. Meale 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 25th day of July, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) William X. Candela, Esquire Dade County Attorney's Office 111 Northwest 1st Street, Suite 2810 Miami, Florida 33128 (eServed) Selwyn Don Titus Apartment 601 14030 Biscayne Boulevard Miami, Florida 33181 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent discriminated against Petitioners based on their race in violation of Chapter 760, Florida Statutes (2006) ("Florida Civil Rights Act").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: All Petitioners are African-American males; all were employed by Respondent. Petitioners Alexander, Daniels and West were discharged on September 20, 2006. Petitioner Cole was laid off on August 25, 2006. Respondent, Solid Wall Systems, Inc., is an employer as defined by the Florida Civil Rights Act; it constructs cast-in- place solid concrete wall structures for the production home industry. This construction methodology is typically employed in large residential developments, and the construction "critical path" requires timely completion of each construction progression. For example, if walls are not timely completed, roof truss installation will be delayed, erection equipment will be idle, follow-up subcontractors are delayed, and money is lost. Petitioner, Ralph Alexander, was employed by Respondent in July 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $14.00 per hour. Petitioner, Stevie Daniels, was employed by Respondent in March 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $13.00 per hour. Petitioner, Ernest West, Jr., was employed by Respondent in October 2004, as a laborer and paid $9.00 per hour. He received pay raises during the next several years. At his discharge, he was being paid $11.00 per hour. Petitioner, Carlos Cole, was hired in September 2003, as a yard helper with Space Coast Truss, a subsidiary of Respondent's corporate owner, being paid $6.50 per hour. In October 2003, he was transferred to Respondent and received $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, on August 25, 2006, he had been promoted to leadman and was being paid $15.00 per hour, but was working as a laborer. On September 11, 15 and 19, 2006, Petitioners Alexander, Daniels and West were "written-up." That is, they were disciplined for failing to follow the specific instructions of supervisors. On September 11, 2006, Petitioners Alexander, Daniels and West were on a "stripping" crew working at Wedgefield in East Orange County. Alexander was advised that the job had to be completed that day, because trusses were scheduled to be installed the following day. Notwithstanding direction to the contrary, the crew left the job without completing the stripping. The time cards of Petitioners Alexander, Daniels and West indicate that these Petitioners "clocked-out" at between 5:24 p.m. and 5:30 p.m. It is between 30 and 45 minutes from the job site and Respondent's yard. Petitioners would have spent several additional minutes cleaning up before "clocking- out." Not only did Petitioners fail to complete the job, they left the job site early. Petitioner Ernest West, Jr., had a part-time job working for Space Coast Cleaning, a janitorial service, from 6:00 p.m. to 9:00 p.m., Monday, Wednesday and Friday. The job was located in Viera approximately 15 to 20 minutes from Respondent's yard. September 11, 2006, was a Monday and a work day for West's part-time job. Petitioner West told Respondent's operations manager that they left the job site so that he could get to his part-time job on time. On September 15, 2006, Petitioners Alexander, Daniels and West were assigned to strip a multi-unit job site in Titusville. The crew was told to complete the stripping before they left the job site. Time cards indicate that Petitioners "clocked-out" between 3:30 p.m. and 4:00 p.m. Petitioners left the job unfinished, because they thought they would be unable to complete the job that day. On September 19, 2006, Petitioners Alexander, Daniels and West were assigned to strip a building at Viera High School. After a building is stripped, crews have standing orders not to leave any "cap" forms on the job site. This is a particular type of form that crews are specifically instructed to return to the main yard immediately after use and re-stock in bins for use on subsequent projects. On this day, Petitioner Alexander called Roy Brock, a field manager, and inquired regarding the "cap" forms. He was instructed to bring all forms to the yard. Brock visited the Viera High School job site after the stripping crew had returned to the yard and found several caps that had been left at the site. He loaded them on his truck and returned them to the yard. As a result of these three incidents, which were deemed acts of insubordination, Petitioners Alexander, Daniels and West were terminated on September 20, 2006. In May, June, and July 2006, the housing construction market suffered a significant decline. This was reflected by Respondent having a profit of $10,000 in May, a profit of $2,000 to $3,000 in June, and a $60,000 loss in July. In August, there was literally "no work." Respondent's employees were being sent home every day because there was no work. As a result of the decline in construction, Vince Heuser, Respondent's operations manager, was directed to lay off employees. Petitioner Cole was among five employees laid off on August 25, 2006. Of the five, three were African-American, one was Caucasian, and one was Hispanic. Seven Hispanic laborers were hired on July 5 and 6, 2006. Respondent had taken over the cast-in-place wall construction portion of two large projects from a subcontractor named "JR." The general contractor/developer, Welch Construction, requested that these seven Hispanic individuals, who had been "JR" employees, and had done all the stripping on these two Welch Construction jobs, be hired to complete the jobs. Hiring these seven individuals to continue to work on the jobs was part of the take-over agreement. In September 2006, three Hispanic laborers were hired. Two were hired to work on "amenity walls" which require a totally different forming process than does the standard solid- wall construction. The third was hired to work on the Welch jobs as he had worked with the "JR" crew previously.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter final orders dismissing the Petitions for Relief for Petitioners Ralph Alexander, Stevie Daniels, Ernest West, Jr., and Carlos Cole. DONE AND ENTERED this 31st day of January, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Adrienne E. Trent, Esquire Enrique, Smith and Trent, P.L. 836 Executive Lane, Suite 120 Rockledge, Florida 32955 Chelsie J. Roberts, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801
