The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race.
Findings Of Fact Petitioner is David L. Lucas. He was employed by Respondent, Marc Downs, Inc., a clothing store chain, from August of 1989 until January 28, 1990. Approximately two months before the conclusion of his employment with Respondent, Petitioner and other employees employed in the Marc Downs Store located in the Wal-Mart Shopping Center on East Apalachee Parkway in Tallahassee, Florida, began working under the supervision of a new store manager. The new store manager was Desiree DeVelder, a white female. In addition to DeVelder, there was one other white female employee on the store's sales staff. The remainder of the ten person sales force in the clothing store was black. Petitioner was the only black male member of that sales force. Petitioner and other employees became increasing aware of DeVelder's discomfort at working with a predominantly black sales force. She kept to herself when at all possible. She confided to Petitioner that she did not like the way that the black people acted and on one occasion she stated that there were too many blacks working in the store. On January 28, 1991, DeVelder called a meeting of the store employees after the store had closed for the day. She presented each of the black employees, but not the solitary white employee, with a form entitled "Employee Disciplinary Notice". The form had been filled out for each black employee recipient and documented that the employee was the subject of disciplinary action for "poor attitude and not following Marc Down's Employee Policy Manual". The form further documented that the corrective action was to be a 30 day probationary period for the employee and that unemployment compensation would not be paid if the employee quit or was dismissed from employment during the probationary period. Each form for each employee was signed by DeVelder. DeVelder asked each of the black employees to sign their individual forms. Petitioner asked for an explanation of the form. DeVelder refused to provide an answer and Petitioner said he would think about it and provide DeVelder with a decision the next day. As he turned to leave, DeVelder struck him in the back and began screaming at him that he was fired.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered granting the Petition for Relief and directing the payment to Petitioner by Respondent of back pay at the rate of $400 per month from January 28, 1990. DONE AND ENTERED this 13th day of May, 1992, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1992.
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
The Issue The issue is whether Respondent committed an unlawful employment action against Petitioner contrary to Sections 760.10(1)(a) and 760.10(7), Florida Statutes (2006).
Findings Of Fact Petitioner is an African-American female who worked for Respondent's Division of Administrative Services from September 1992 through May 2006. Throughout her tenure, Petitioner consistently received favorable personnel evaluations. During her employment, Petitioner received only the legislatively mandated annual state worker pay increases. However, at the time she was terminated in May 2006, Petitioner was the highest paid non-supervisory employee in Respondent's Division of Administrative Services. At that time, Petitioner was making $70,000. From September 1992 until November 1993, Petitioner worked as Respondent's human resources/relations administrator. Sandy DeLopez, a white female who served as Respondent's Director of Administrative Services, was on the selection team that hired Petitioner for the position of human relations administrator. In that position, Petitioner was charged with the intake and administration of race-based discrimination complaints within the agency. Petitioner supervised two employees in her position as human relations administrator. In November 1993, Respondent moved Petitioner to the Office of Employee Relations. This move occurred because the former human relations administrator wanted to return to her previous position. There is no evidence that Petitioner objected to being moved to the Office of Employee Relations. In the Office of Employee Relations, Petitioner reported to Ken Wilson, the manager. While under his supervision, Petitioner handled employee grievances and drug testing, as well as maintaining Respondent's Supervisor Assistance System (SAS), a statewide computer program for supervisors. In 1997, Respondent moved Petitioner into the Bureau of Personnel Services. This move was in conjunction with Mr. Wilson's move to the Bureau of Personnel Services as Bureau Chief. Petitioner's assignment was to continue handling special projects, including the drug testing program and the SAS computer program. The Office of Employee Relations became the employee relations section in the Bureau of Personnel Services when Mr. Wilson became Bureau Chief. The Bureau of Personnel Services had other sections, including benefits, pay and classification, and employment. In 1997, the pay and classification section was combined with the employment section, and referred to thereafter as the organization development section. When Mr. Wilson became Bureau Chief of the Bureau of Personnel Services, his previous job position as manager of employee relations remained vacant after being advertised two times. Petitioner told Mr. Wilson that she was interested in filling his former position but she did not apply for the position either time it was advertised. Mr. Wilson had a very open relationship with Petitioner. Petitioner frequently told Mr. Wilson that she wanted or needed more money. Mr. Wilson never told Petitioner that Ms. DeLopez would not let Petitioner fill his former position as manager of the employee relations section because Ms. DeLopez had a "hard-on" for Petitioner. Mr. Wilson never heard Ms. DeLopez make the following statements: (a) referring to Petitioner as another one of Mr. Wilson's experiments that had failed; and (b) Petitioner could have been one of "Ms. Ever's boys." There is no evidence that Petitioner ever complained to Mr. Wilson about any statement by Ms. DeLopez. From June 1995 to March 1997, Rene Knight, a white female, was manager of the benefits section in the Bureau of Personnel Services. As manager, Ms. Knight was a senior personnel manager with supervision responsibilities. In March 1997, Ms. Knight applied for, and was appointed to, the position of manager of the organization development section. Her title continued to be senior personnel manager. In June 1997, Ms. Knight began dating Jim Hage, a white male, who worked in the one of the areas under Ms. Knight's supervision. For that reason, Ms. Knight requested a job reassignment as manager of the employee relations section. Mr. Wilson granted Ms. Knight's request for the lateral reassignment that did not require advertisement or an increase in pay. In the Bureau of Personnel Services, the pay grade for the manager of employee relations had been downgraded from a pay grade of 26 to a pay grade of 24. Ms. Knight kept her pay grade of 24 after the lateral transfer. Petitioner's pay grade was 25. It would have been a demotion for Petitioner to accept the position of manager of employee relations. After Ms. Knight moved into the position as manager of the employee relations section, her old position was advertised as vacant. Petitioner did not apply for that position. Subsequently, Ms. Knight married Mr. Hage. Later in 2002, Mr. Hage applied for and was appointed as a manager in one of the sections in the Bureau of Personnel Services. There is no evidence that Petitioner applied for that job when it was advertised. In any event, Mr. Hage's managerial position would have been a demotion for Petitioner. In April 2002, Respondent transferred Petitioner into the Office of Program Support. The move was the result of a need to accommodate a disabled employee, who was put in charge of the drug testing program, formerly part of Petitioner's duties. There is no evidence that Petitioner objected to the transfer. In the Office of Program Support, Petitioner served as a management review specialist and worked under the supervision of Mallory Horne, Jr., then Chief of Staff. Mr. Horne reported directly to Ms. DeLopez. In the Office of Program Support, Petitioner participated in special projects, such as executing the STARS report and working on workers' compensation claims. In 2003, Ms. Knight became the Assistant Chief of Personnel Services just before Mr. Wilson retired. Ms. Knight received this lateral transfer/reassignment because she had served as a manager/supervisor in just about every office in the Bureau of Personnel Services. Ms. Knight was appointed Bureau Chief of the Bureau of Personnel Services when Mr. Wilson retired in May 2003. The Bureau Chief position was a promotion to a higher pay grade for Ms. Knight. The most persuasive evidence indicates that Petitioner was not qualified for the Bureau Chief job. Unlike Ms. Knight, Petitioner did not have five years of experience as a supervisor in the human resources area. In 2002 or 2003, Ms. DeLopez authorized Petitioner's participation in Respondent's Educational Leave with Pay Program. The program allows employees to be full-time students for the final year of their educational programs, with Respondent paying the costs of the programs, as well as their full salary and benefits. Ms. DeLopez also personally authorized at least one semester longer than the usual term for Petitioner because she needed extra time to complete the coursework for a doctorate in instructional systems. Petitioner completed the coursework but did not earn the doctoral degree. When Ms. Knight became Bureau Chief of the Bureau of Personnel Services, Ms. Knight recommended that Cindy Mazzar, a white female, apply for the position of manager of employee relations. Ms. Mazzar applied for and was appointed to the position. Petitioner did not apply for the job and never told Ms. Knight that she was interested in filling the position. In 2004, Kristen Watkins, a white female, applied for and was appointed to the advertised position of human resources manager. Petitioner did not apply for the job. The position of human resources manager would have been a lateral transfer for Petitioner if she had been interested. It would not have increased her pay grade. In 2006, Petitioner continued to work for Mr. Horne in the Office of Program Support as a management review specialist. In that capacity, Petitioner continued to serve as a special projects person. Among other things, Petitioner helped develop an agency-wide safety program. Toward the end of April 2006, Respondent decided to implement a realignment of some of its administrative offices. The reorganization called for the elimination of the Office of Program Support and for Petitioner to be transferred to the Bureau of Personnel Services, working under Ms. Knight as Bureau Chief, and under Ms. DeLopez as Division Director of Administrative Services. As with any reorganization, Respondent wanted to find a position for Petitioner rather than terminate her employment. However, there is no evidence that there ever was a vacant position to which Petitioner preferred to be assigned rather than moving to personnel services. On April 24, 2006, Petitioner received a telephone call from Ms. DeLopez, asking Petitioner to attend a meeting in Ms. Knight's office. During the meeting, Ms. DeLopez informed Petitioner that due to the realignment, effective May 1, 2006, Petitioner would work in Bureau of Personnel Services with Ms. Knight performing Petitioner's Annual Performance Evaluation. Petitioner's office furniture would be moved to her new office on May 3, 2006. Petitioner inquired whether the new job assignment was a promotion. Ms. DeLopez responded by commenting that Petitioner already was the highest paid employee in administrative services that was not a Bureau Chief. Ms. DeLopez also stated that when a Bureau Chief position became available, Petitioner could compete for it. On April 25, 2006, Ms. Knight scheduled a meeting with Petitioner to discuss her currently assigned work projects. The meeting was set for 3:00 p.m. on April 26, 2006, in the personnel services conference room. On April 26, 2006, Ms. Knight sent Mr. Horne an e-mail, requesting a copy of Mr. Horne's position description for Petitioner. Ms. Knight also wanted to know Petitioner's job responsibilities and assigned projects with timelines. On April 26, 2006, Petitioner sent Ms. DeLopez an e- mail, requesting an opportunity to discuss the personnel action being taken. Petitioner wanted Ms. DeLopez to know that Petitioner was seeking an opportunity to advance within the agency and that she wanted to discuss further options. Around 1:00 p.m. on April 26, 2006, Petitioner went to Ms. DeLopez' office uninvited and with no appointment. Ms. DeLopez was working in her office suite alone. Petitioner began talking to Ms. DeLopez about Petitioner wanting to make more money. As the conversation continued, Petitioner became agitated and hostile. When Petitioner would not stop talking, Ms. DeLopez stood up to leave the office. Petitioner, who was standing in the doorway, then stated that she would call 911 if Ms. DeLopez left the office. At that point, Ms. DeLopez felt threatened and decided to leave the room. Petitioner followed Ms. DeLopez down the hall to the office of Lieutenant Colonel Rick Gregory of the Florida Highway Patrol. Ms. DeLopez informed Lt. Col. Gregory that she could not make Petitioner disengage. Lt. Col. Gregory told Petitioner to go back to her office and asked Ms. DeLopez to stay in his office to talk to him. Lt. Col. Gregory went to Petitioner's office a few minutes before 2:00 p.m. He advised Petitioner about a meeting with Ms. Knight that afternoon at 2:00 p.m. In the 2:00 p.m. meeting, Ms. Knight explained that she would be the in-take officer for Petitioner's complaint against Ms. DeLopez. Petitioner stated that she did not want to discuss her complaint with Ms. Knight because both of them were subordinate to Ms. DeLopez. Petitioner also would not discuss her complaint without having someone else in the room. Petitioner then told Ms. Knight that Petitioner was leaving the meeting and that Ms. Knight should "just go ahead and call the police." Ms. Knight and Petitioner never had the 3:00 p.m. meeting to discuss Petitioner's new job responsibilities. Later on the afternoon of August 26, 2006, Petitioner had a meeting with Fred Dickinson, Respondent's Executive Director, David Westberry, Respondent's Deputy Executive Director, and Lieutenant Colonel Austin of the Florida Highway Patrol. Petitioner misunderstood the results of this meeting. She erroneously thought the following: (a) the planned move of her office location would be placed on hold; (b) she would not work for Ms. DeLopez or Ms. Knight; and (c) she would contact the Executive Director's office the week of May 8, 2006, to schedule an appointment to explore other options with the agency. On April 28, 2006, Ms. DeLopez sent Petitioner an e-mail. The message requested her work schedule, an outline of her work assignments, and a list of projects or activities that Petitioner was working on for the week of May 1-5, 2006. On May 1, 2006, Petitioner responded with the requested information by e-mail. In a letter to Mr. Westberry dated May 8, 2006, Petitioner described her employment history at the agency and samples of her work, including but not limited to a concept paper relating to technological innovations and workplace performance. The letter stated that Petitioner wanted to discuss employment options within the agency. The May 8, 2006, letter and attached documents were not responsive to the request that Mr. Dickenson and Mr. Westberry made in the August 26, 2008, meeting. The documents did not identify a position or place within the agency where Petitioner could be of value to the organization and benefit Petitioner at the same time. During a meeting on May 8, 2006, Petitioner gave the above referenced letter and documents to Mr. Westberry. Because Petitioner could not identify another vacant position in the agency that she preferred, Mr. Westberry directed Petitioner to coordinate with Ms. Knight about future job duties. On May 11, 2006, Petitioner participated in a meeting in Mr. Westberry's office where Ms. Knight and Petitioner sat together on a love seat. Later, Petitioner falsely accused Ms. Knight of having intentionally kicked Petitioner when Ms. Knight crossed or uncrossed her legs. In a letter dated May 11, 2006, from Petitioner to Mr. Westberry, Petitioner complained that Ms. DeLopez had subjected Petitioner to a hostile work environment, disparate hiring and promotional practices, and a form of retaliation. The letter states that Petitioner's complaint stems from an extended period of time during her employment and most recently on April 26, 2006. The letter requested that someone other than Ms. Knight be assigned as the complaint in-take officer. The letter did not specify race, gender, age, or any specific form of discrimination as a basis for the alleged mistreatment. In a letter dated May 12, 2006, from Mr. Westberry to Petitioner, he states that he received Petitioner's complaint naming Ms. DeLopez and Ms. Knight as parties. In the letter, Mr. Westberry directed Petitioner to go to Maggie Lamar, Senior Consultant in the employee relations section, who would serve as the in-take officer and investigator of Petitioner's complaint. Mr. Westberry advised Petitioner that Ms. Lamar would report directly to Judd Chapman, as Respondent's counsel, and Mr. Dickenson. In the mean time, Mr. Westberry directed Petitioner to continue under the direct supervision of Ms. Knight. Mr. Westberry specifically directed Petitioner to contact Ms. Knight prior to close of the business day to clarify work assignments and related responsibilities. On May 12, 2006, Petitioner sent Mr. Westberry a letter. In the letter, Petitioner states that she had contacted Ms. Knight to clarify job responsibilities. According to the letter, Ms. Knight had not provided Petitioner with information about Petitioner's work assignments and related responsibilities. The letter states Petitioner's concerns that Ms. Knight will abuse her authority as Petitioner's supervisor. The letter includes Petitioner's requests as follows: (a) that Respondent have Ms. Knight clarify Petitioner's work assignments and related responsibilities in writing pending completion of the investigation of Petitioner's complaint; and (b) that Respondent provide a witness during any meeting or conversations between Petitioner and Ms. Knight. In a letter dated May 16, 2006, Mr. Westberry acknowledged Petitioner's May 12, 2006, letter. Mr. Westberry then proceeded to clarify his previous instructions as follows: (a) Petitioner should attend a meeting with Ms. Knight and Mr. Chapman at 11:00 a.m. on May 17, 2006; and (b) In the absence of any documented threat to Petitioner's personal safety, Respondent would not provide a witness to document day- to-day discussions between Petitioner and Ms. Knight. Finally, Mr. Westberry reminded Petitioner of the appointment of Ms. Larmar as the in-take officer for Petitioner's complaint. On May 16, 2006, Ms. Knight sent Petitioner an email. The e-mail alleged that Petitioner had not been at work and had not requested sick leave or any other kind of leave on May 15, 2006. Ms. Knight had left Petitioner several written and telephone messages at Petitioner's office. Ms. Knight called Petitioner's home. Petitioner did not respond to any of the messages on the day in question. Ms. Knight's e-mail urged Petitioner to contact Ms. Knight as soon as possible to discuss work assignments. Petitioner responded to Ms. Knight's May 16, 2006, e-mail by requesting a 4:00 p.m. meeting on May 17, 2006. On May 17, 2006, Ms. Knight sent Petitioner an e-mail, confirming a meeting at 4:00 p.m. in Petitioner's office with Ms. Knight and Mr. Chapman. During the 4:00 p.m. meeting on May 17, 2006, Petitioner gave Ms. Knight a written statement. The statement asserts, in part, that Petitioner considered the meeting to be a continued abuse of authority by Ms. DeLopez and Ms. Knight with the intent to adversely affect Petitioner's employment. During the meeting, Petitioner for the first time accused Ms. Knight of kicking Petitioner on May 11, 2006, in Mr. Westberry's office. It was during this meeting that Ms. Knight first knew about Petitioner's unhappiness with being transferred to the Bureau of Personnel Services. On May 17, 2006, Petitioner sent Ms. Knight an e-mail referencing the 4:00 p.m. meeting. The message provided Ms. Knight with Petitioner's schedule for May 18 and 19, 2006. Petitioner stated she was available to meet with Ms. Knight at her convenience within the confines of that schedule. On May 19, 2006, Ms. Knight visited Petitioner's office at 2:45 p.m. because Ms. Knight wanted to make sure Petitioner knew about the meeting scheduled with Ms. Knight on May 23, 2006, at 9:30 a.m. During the visit, Ms. Knight and Petitioner discussed their professional relationship. Ms. Knight advised Petitioner that everything would work out as long as Petitioner refrained from making further false allegations. Petitioner then said she knew Ms. Knight had not meant to bump Petitioner with her foot in the May 11, 2006, meeting in Mr. Westberry's office. Ms. Knight answered that if Petitioner knew it was an accident, why did Petitioner accuse Ms. Knight of kicking her in front of Judd Chapman in the May 17, 2006, meeting. After the meeting with Ms. Knight on May 19, 2006, Petitioner sent an e-mail to Kay Pietrewicz, Ms. Knight's personal assistant. The e-mail states that Petitioner wanted to change the time of the 9:30 a.m. meeting on May 23, 2006, with Ms. Knight because it conflicted with an unspecified commitment that Petitioner wanted to honor. The message went on to express Petitioner's view of her employment issues, including details of the alleged kicking incident and subsequent conversations with Ms. Knight regarding that incident. After work on May 19, 2006, Ms. Knight got a call at home from Ms. Pietrewicz. During that conversation, Ms. Knight learned about Petitioner's e-mail to Ms. Pietrewicz. Ms. Knight subsequently sent Petitioner an e-mail, giving her a direct order to cease communications relative to her employment issues with any employee except Ms. Knight and Ms. Lamar. Ms. Knight advised Petitioner that the meeting at 9:30 a.m. on May 23, 2006, would take place as scheduled. On May 23, 2006, Petitioner sent Ms. Knight an e-mail to recap the meeting they had earlier in the day. The e-mail indicates that the following topics were discussed during the meeting: (a) the physical move of Petitioner's office furniture on May 24, 2008; (b) the signing of certain administrative forms; (c) the reduction of Petitioner's annual leave balance by eight hours because Petitioner had not been at work on May 15, 2006; (d) the drafting of Petitioner's position description; (e) Petitioner's volunteer/mentor activities; (f) Ms. Knight's direction for Petitioner to refrain from sending e-mails like the one she sent to Ms. Pietrewicz on May 19, 2008; Petitioner's dissatisfaction with her work assignment; Petitioner's computer skills; and (i) Petitioner's project assignment to begin updating the SAS. In a letter dated May 24, 2006, Mr. Westberry advised Petitioner that her employment was terminated effective at the close of business that day. Mr. Westberry made the decision to fire Petitioner 12 days after referring Petitioner to Ms. Lamar. At the time of Petitioner's termination, there was no pending complaint because Petitioner had not contacted Ms. Lamar. Instead of discussing her complaint with the designated in-take officer, Petitioner continued to demonstrate unwillingness to accept the responsibilities assigned to her as a result of the agency reorganization. Three law enforcement officers went to Petitioner's office around 5:00 p.m. on May 24, 2006. They delivered the termination letter and offered to escort Petitioner out of building. Respondent uses officers to escort terminated employees when the agency has concerns that termination might be less than a mutual parting of the ways. In this case, Petitioner refused to sign the termination letter or to leave the building. Petitioner inquired about what would happen if she did not leave. After hearing the response to her question, Petitioner stated that the officer would have to arrest her and take her to jail. Next, Petitioner called her husband and the Tallahassee Democrat. When Lt. Col. Austin arrived, he talked to Petitioner alone. He was unsuccessful in persuading Petitioner to leave the premises. When the officers re-entered Petitioner's office, Petitioner confirmed that she wanted to be arrested rather than leave the office voluntarily. The officers then put the handcuffs on Petitioner and began to inventory her purse. Lt. Col. Austin reentered the office, accompanied by Petitioner's husband. After removing the handcuffs, all of the officers left the office so that Petitioner could talk to her husband alone. The officers continued to wait for Petitioner to leave the building. Other officers and Petitioner's pastor arrived to offer assistance in persuading her to exit the building. Petitioner eventually left the premises without being arrested. On May 24, 2006, Ms. DeLopez was afraid for her personal safety after the termination letter was delivered to Petitioner. Ms. DeLopez requested that Mr. Westberry escort her to her car at the end of the workday. Mr. Westberry complied with the request. On May 25, 2008, Petitioner attempted to call Ms. Lamar by telephone. In a letter dated May 26, 2008, Petitioner requested Ms. Lamar to move forward with the processing of her complaint against Ms. DeLopez and Ms. Knight for retaliatory and harassing behaviors toward Petitioner. Petitioner's letter did not allege that the behavior of Ms. DeLopez and Ms. Knight was due to a specific type of unlawful discrimination.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations dismiss the Petition for Relief. DONE AND ENTERED this 21st day of October, 2008, 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 21st day of October, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 H. Richard Bisbee, Esquire H. Richard Bisbee, P.A. 1882 Capital Circle Northeast, Suite 206 Tallahassee, Florida 32308 Glen A. Bassett, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Respondent is and at all material times has been a registered sheet metal contractor in the State of Florida. In fact, Respondent qualified in aluminum fabrication and erection. He holds license number RS 0025757. From 1984 through September, 1986, Respondent owned and operated Robinsons Aluminum Products, Inc. The company, which was located in Tampa, sold and erected aluminum screen enclosures. Respondent was the qualifying agent for the company. On August 19, 1986, Margaret Haden entered into a contract with Robinsons Aluminum Products, Inc., signed by Respondent as representative, for the construction of a screen room and slab, roof, and door for the room. The total contract price was $1575. Mrs. Haden paid a $550 deposit by check dated August 21, 1986, and the remainder was due on completion. Shortly after entering into the contract, Respondent prepared drawings and sketches for the job. He then submitted these drawings and sketches to the homeowners' association, whose approval was required before Respondent could obtain a building permit or begin the work. The homeowners' association did not immediately respond to the request for approval. After seven to ten days, Mrs. Haden called Respondent to find out why work had not begun. Respondent called the homeowners' association and learned that they were changing offices and everything was in disarray. Two to three weeks after the date of the contract, Respondent received verbal approval from the homeowners' association, but was unable to get written approval. At about this time, Mrs. Haden fired him, hired a new contractor, and demanded her $550 back. Respondent refused to return the deposit.
Recommendation In view of the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint. ENTERED this 20th day of May, 1988, in Tallahassee, Florida. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0573 Treatment Accorded Petitioner's Proposed Findings 1-4. Adopted in substance. Rejected as unnecessary. Rejected as unsupported by the evidence. 7-9. Rejected as legal argument. COPIES FURNISHED: David E. Bryant, Esquire Bryant, Reeves & Deer 220 East Madison Street Suite 530 Tampa, Florida 33602 Benito Tortora 2516 Gresham Drive Orlando, Florida 32807 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, Florida 32201 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 3299-0750
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
The Issue Whether Petitioner was discriminated against in employment by the Respondent.
Findings Of Fact In 1989 Dennis Presson filed a complaint of discrimination against Walt Disney World Co., Respondent, alleging he was denied employment with Disney by reason of his handicap (epilepsy). This complaint was settled between the parties by a Settlement Agreement (Exhibit 1) on June 23, 1989 at which time Respondent agreed to employ Petitioner as a Property Craftsworker Assistant and Petitioner was so employed on June 28, 1989. On October 6, 1989 Petitioner was given a written reprimand for refusing to follow a directive given by his shop foreman. (Exhibit 20.) On November 11, 1989 Petitioner was given an oral reprimand for disruptive behavior in the shop. (Exhibit 24.) On November 29, 1989 Petitioner was given an oral reprimand for excessive absences and tardiness. (Exhibit 26.) Over a period of four months Petitioner had been absent (or tardy) a total of 25.5 hours. On February 6, 1990 Petitioner was given a written reprimand for disrupting the harmonious and productive working atmosphere of the shop. (Exhibit 25.) On May 16, 1990 Petitioner was given a written reprimand for unprofessional craftsmanship for using chewing gum as a woodfiller to repair a chair. (Exhibit 22.) On July 23, 1990 Petitioner was given a written reprimand for using shop machinery in a unsafe manner. (Exhibit 23.) In August 1990 while Petitioner was working in the Furnishings Department to which he was originally assigned, the work in that department declined and, in lieu of laying off some of the workers in the Furnishings Department, three of these property craftsman assistants, including Petitioner, were temporarily assigned to the Resorts Decorating Department to work there through the first week of October 1990. (Exhibit 27.) On or about October 10, 1990 Petitioner was returned to the Furnishings Department and on October 11, 1990 was laid off due to lack of work. On November 2, 1990 the remaining six property craftworker assistants employed by Respondent in the Furnishings Department were laid off. All craftworker assistants who had been employed by Respondent for one year or more were given a right to return within 12 months if jobs became available. This is pursuant to a contract between Respondent and the employees' union. None of those property craftsworker assistants laid off at or about the time Petitioner was laid off were rehired as property craftsworker assistants during the ensuing 12 months. Petitioner contends that after he was laid off four new people were hired as property craftsworkers, a position for which he deemed himself qualified. However, the position of property craftsworker required carpentry experience which the four new hires had and Petitioner did not. Property craftsworker's assistant does not require carpentry experience to qualify for hiring in that position. During the time Petitioner was employed by Respondent no craftsworker assistant was promoted to craftsworker. Credible evidence was presented that while Petitioner was employed as a property craftsworker assistant the quality of his work was satisfactory so long as he was closely supervised by his foreman; however, when not closely supervised both the quality and quantity of his work output declined. Petitioner's testimony that he worked best when someone was not looking over his shoulder is not credible. Petitioner's testimony that he was transferred to Resorts Decorating and then transferred back to Furnishings to be laid off was totally discredited by competent evidence that, when faced with lack of work in Furnishings for property craftsworkers assistants, Disney attempted to have these employees temporarily moved other departments where their skills could be used for a short period in lieu of laying them off. When their function could no longer be justified at their temporary employment position, they were returned to the Department from which they were loaned. In the instance of Petitioner's transfer, he and two other craftsworker assistants were transferred to the Resorts Decorating Department from August 20, 1990 until the first week of October 1990. (Exhibit 27.)
Recommendation It is RECOMMENDED that the Petition for Relief from an Unlawful Employment Practice filed by Dennis M. Presson against Walt Disney World be dismissed. DONE and ORDERED this 6th day of April, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS 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 6th day of April, 1993. COPIES FURNISHED: Dennis M. Presson 2816 4th Street Orlando, Florida 32820 Susan K. McKenna, Esquire 322 East Pine Street Orlando, Florida 32801 Margaret A. Jones/Clerk Florida Commission on Human Relations Building F, Room 240 325 John Knox Road Tallahassee, Florida 32302 4149 Dana Baird, Esquire General Counsel Building F, Room 240 325 John Knox Road Tallahassee, Florida 32302 4149
The Issue Whether Respondent discriminated against Petitioner on the basis of sex in violation of Section 760.10, Florida Statutes, when it terminated his employment.
Findings Of Fact Respondent is a large corporate employer with corporate headquarters outside the State of Florida. Pertinent to this proceeding, Respondent has a large manufacturing facility located in Palm Beach County, Florida. Petitioner is a male who was employed by Respondent at its Palm Beach facility between August 1978 and February 1993. Petitioner is a college graduate who subsequently earned a Master's degree in Business Administration (MBA). Respondent first employed Petitioner as a Financial Trainee, which is designated as a Grade 41 on the system by which Respondent designated pay ranges and relative job responsibilities. Respondent promoted Petitioner to a position referred to as Financial Analyst in 1979, which is a Grade 43 position. Respondent promoted Petitioner in 1981 to a position referred to as Senior Analyst, which is a Grade 45 position. Respondent promoted Petitioner in 1984 and assigned him to its Saudi Arabia Program as the Continental U.S. International Administrator, which is a Grade 46 position. Respondent laterally transferred Petitioner in 1986 from the Financial Department into the Human Resources Department to a position designated as Personnel Representative, which is also a Grade 46 position. Respondent promoted Petitioner in January 1989 to a position designated as Senior Resources Representative, which is a Grade 48 position. Respondent informed Petitioner on February 12, 1993, that his employment would be terminated, effective February 28, 1993. Petitioner's base annual salary at the time his employment was terminated was $56,484.00. As of the formal hearing, Petitioner was working for his wife's appraisal company in a nonpaying job. Karen Roberts is a female who has been employed by Respondent at its Palm Beach County facility since June 1980. Ms. Roberts is also a college graduate who subsequently earned an MBA. In addition, Ms. Roberts has been designated as a Certified Compensation Professional by the American Compensation Association. Ms. Roberts first began her employment with the Respondent as a Financial Trainee, Grade 41. She was transferred out of the Finance Department into the Human Resources Department in July 1984 as a Human Resources Representative, which is a pay grade 45. She was promoted to Senior Human Resources Representative in October 1992, which is a pay grade 48. Respondent's upper management determined in 1992 that it was necessary to reduce the number of its employees as part of an overall restructuring of its operations. The reduction in force, which was to be the largest separation of employees that Respondent had ever experienced, was for valid business considerations which are not at issue in this proceeding. The management group set the target for the number of employees in each department of the Palm Beach facility whose employment would be terminated. The management group decided that the Human Resources Department of the Palm Beach facility, of which Petitioner was a part, would be reduced by between 20-25 employees in February 1993. That decision by the management committee is not being challenged in this proceeding. William Panetta was, at the times pertinent to this proceeding, the Respondent's Vice President of Human Resources for the West Palm Beach facility. The management group informed Mr. Panetta in the fall of 1992 of the upcoming reduction in force and gave to him the targets that had been set for the various departments for the West Palm Beach facility. Soon thereafter, Mr. Panetta began meeting with the heads of major departments to devise a procedure for making the reductions in force. Among the senior staff who met with Mr. Panetta was John Roberson, who was manager of Human Resources for non-engineering personnel. Petitioner worked in Mr. Roberson's department from the time he was transferred to its Human Relations Department in 1986 until the termination of his employment in 1993. Mr. Roberson was Petitioner's second line supervisor. At different times, Bob Vogel, Charles Wilson, and John Hopkins served as Petitioner's direct supervisor. Mr. Roberson was asked by Mr. Panetta to prepare a draft of a proposal for the procedure to be followed in carrying out the reduction in force. This draft was to include a method to identify those employees whose employment would be involuntary terminated. Pertinent to this proceeding, Mr. Roberson's draft included a provision for selecting among multiple incumbents when some job positions or functions were being eliminated. In that situation, Mr. Roberson proposed that seniority be the primary factor and that relative performance of the incumbents be considered only if the more senior employee was ranked as a low performer on his or her annual evaluation. Respondent annually evaluated employees such as Petitioner as being either a "T" (top), a "M" (middle), or an "L" (low). The employees were also given annual evaluations by their supervisors called Performance Management Reports, which rated the employees on a scale ranging between unsatisfactory to exceptional. During his entire tenure with Respondent, Petitioner was rated at least as being fully competent on his Performance Management Reports and, at different times, as being either in the "T" or the "M" category. The procedure drafted by Mr. Roberson was never intended to be the final procedure that would be followed in accomplishing the reduction in force. In late 1992, Mr. Panetta presented Mr. Roberson's draft to the senior staff for comment and revision. The senior staff determined that Mr. Roberson's draft overemphasized seniority and was too inflexible. It was determined that such emphasis on seniority would hamper management's efforts to retain the most qualified employees. The Human Resources Department assigned to each of Respondent's major departments a Personnel Support Representative to assist with employee relations and to provide administrative support in personnel matters. As part of the procedure followed for the 1993 layoffs, the Personnel Support Representative for each department reviewed the candidates for layoffs with the Department Head to determine whether the selection was fair and properly documented. The Personnel Support Representative was to provide support only. Each Department Head had the responsibility for determining the employees within a department to be laid off. During the same time period that senior staff was trying to develop the procedure that would be followed for layoffs, Mr. Roberson met with the Personnel Support Representatives and discussed with them the drafted procedure he had prepared. He informed them that the draft was not the final product and asked for discussion. Mr. Roberson discussed with the Personnel Support Representatives the final policies that senior staff adopted before final selections were made and informed them that rigid adherence would not be given to seniority. Respondent has never used seniority as the controlling factor in any previous layoff. The senior staff decided that it would consider the following criteria to determine which of its qualified employees to layoff: documented poor performance, the elimination or consolidation of different positions, relative performance among the candidates, and seniority. Mr. Panetta determined that those employees of the Human Resources department should be "generalists" who are capable of performing a wide range of responsibilities as opposed to specialists. Respondent's plan was to either eliminate functions that had been performed by specialists or to consolidate those functions with other specialized functions. The employees in Human Resources who would still be employed would be required to take on new responsibilities and to perform tasks that had previously been performed by specialists. In the Human Resources department, an employee would have to assume responsibilities in labor relations, employee relations, and compensation. Mr. Panetta decided after conferring with Mr. Roberson that the Management Training, Placement and Compensation section in the Human Resources department for non-engineering personnel would be eliminated. Senior Human Resource Representatives and Human Resource Representatives were candidates for layoffs and were put into a resource pool. The employees in the resource pool were thereafter considered for other positions by comparing their qualifications with those of employees whose positions were not being eliminated. If an employee in the resource pool was considered to be more qualified than an employee whose position was not being eliminated, the more qualified person in the resource pool would be retained to fill the existing job and the incumbent employee would have his employment terminated. Petitioner and Karen Roberts were assigned to the compensation function at the time of the layoffs, but their positions were eliminated as a result of the layoffs. Petitioner and Karen Roberts were placed in the resource pool. Dave Swanson was employed as a Personnel Support Representative in the Human Resources Department prior to the reduction in force. Mr. Swanson's position was not eliminated, but it was determined that there were employees in the resource pool, including Petitioner and Karen Roberts, who were more qualified than Mr. Swanson. Respondent selected Ms. Roberts to fill the position that had been filled by Mr. Swanson. Petitioner's employment with Respondent was terminated. Petitioner asserts that Respondent discriminated against him on the basis of his sex in deciding to retain the employment of Ms. Roberts and to terminate his employment. There is no assertion by Respondent that Petitioner was an incompetent employee. To the contrary, Respondent considered Petitioner to be a competent employee, which is why he was a candidate to fill Mr. Swanson's former position. At the time of the layoffs, John Hopkins was the Manager of Technical Development and Compensation and the direct supervisor of Petitioner and Ms. Roberts. While Mr. Panetta had the ultimate responsibility for deciding whether Petitioner or Ms. Roberts would be retained in Mr. Swanson's former position, he relied heavily on Mr. Roberson's recommendation in making that decision. Mr. Roberson in turn relied on his own knowledge of the respective performances of these two employees and on information that had been given him by Mr. Hopkins. Mr. Hopkins believed that Ms. Roberts was a more valuable employee than Petitioner. Mr. Hopkins testified that Petitioner failed to timely complete certain assignments, that certain aspects of his performance was not satisfactory, and that he had experienced problems working with others. Mr. Hopkins received separate complaints from Joe Bressin, who was in charge of Executive Compensation, and Henry Ugalde, who was in charge of the Equal Employment Opportunity function, that Petitioner had not rendered satisfactory assistance to them. Petitioner did not meet all of the interim deadlines for preparation of a negotiations book that was being complied for use in labor negotiations. Several of Petitioner's supervisors met with him during his tenure with Respondent to discuss his perceived deficiencies and to review his assignments. Mr. Roberson was aware of these deficiencies at the time he recommended to Mr. Panetta that Ms. Roberts be selected to fill Mr. Swanson's former position. Mr. Hopkins considered Ms. Roberts to be a "solid performer" who was enthusiastic, worked well with others, and was capable of performing a wide range of tasks. Ms. Roberts prepared a book for other employees in the compensation function that detailed the procedures involved in performing hourly compensation duties relative to collective bargaining agreements. In addition, Ms. Roberts was chosen by Mr. Panetta to assist Respondent's negotiating team during negotiations with the labor unions for the 1992-1993 labor contract. Ms. Robert's worked on a complex computer program that computed the costs to Respondent of various collective bargaining proposals. Ms. Roberts was chosen for this assignment because Mr. Hopkins believed her to be the best employee to assume this responsibility. Mr. Hopkins selected her because of her competence, her enthusiasm, her ability to maintain confidential information, and her willingness to work irregular hours. Gender was not a factor in selecting Ms. Roberts for this assignment. Ms. Roberts performed with distinction the duties that had been assigned to her as a member of the negotiating team, thereby favorably impressing Mr. Roberson and Mr. Panetta. Mr. Roberson was aware of Ms. Roberts' job performance at the time he recommended to Mr. Panetta that she be selected to fill Mr. Swanson's former position. Mr. Roberson and Mr. Panetta did not rely heavily on their most recent job evaluations, which were the only documents they reviewed, nor did they consider it significant that Petitioner was in a position that is designated as pay grade 48 when his last evaluation was written and that Ms. Roberts was in a position designated as pay grade 46 when her last evaluation was written. 1/ Mr. Roberson and Mr. Panetta considered the responsibilities and job duties of these two positions to be identical. The relative job performances of Petitioner and Ms. Roberts were evaluated by Mr. Roberson and Mr. Panetta taking into consideration the future demands of the job and were based, in large part, upon direct experience with the two employees. There was no written documentation of their rationale for selecting Ms. Roberts to fill Mr. Swanson's former position. Petitioner established that Mr. Roberson occasionally made comments about attractive female employees and that he seemed to prefer the company of certain female employees, one of whom was Ms. Roberts, at social events. While due consideration has been given this evidence, it is found that the greater weight of the evidence established that Respondent had legitimate, nondiscriminatory business considerations for the employment decision that was at issue in this proceeding. These considerations were not shown to be pretextual. Petitioner failed to establish that Respondent discriminated against him on the basis of his sex by its decision to replace Mr. Swanson with Ms. Roberts instead of with Petitioner. The petition Petitioner filed before the Florida Commission on Human Relations contains an allegation that Respondent discriminated against him on the basis of age. Petitioner abandoned that allegation at the beginning of the formal hearing. The petition Petitioner filed before the Florida Commission on Human Relations also contains an allegation that Respondent discriminated against him by failing to rehire him or recall him after his employment had been terminated. There was no evidence to support that allegation.
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 that adopts the findings of fact and conclusions of law contained herein and that dismisses the Petition for Relief filed by Petitioner. DONE AND ENTERED this 9th day of January, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 9th day of January, 1995.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was subjected to an act of employment discrimination by termination from employment because of his race.
Findings Of Fact The Petitioner, Jeffrey Moore, timely filed a charge of discrimination and, after a finding by the Commission of No Cause, filed a Petition for Relief. In the Petition the Petitioner alleges that he was discriminated against by termination from his employment position with the Respondent, based upon his race (black). The Respondent is a construction enterprise engaged in highway and bridge construction projects. It is an employer with more than 15 employees for purposes of Chapter 760, Florida Statutes. The Petitioner worked for Respondent approximately 35 weeks and was terminated on October 3, 2003. The Petitioner had been hired by the Respondent to drive and operate a fuel/maintenance truck and a "low-boy" equipment transporter truck at the project site in or near Pensacola, Florida. Operation of the fuel maintenance truck required its operator to fuel and lubricate all the equipment used by the Respondent on its project site. After the Petitioner assumed his duties of driving and operating the fuel maintenance truck, and servicing the heavy equipment and the low-boy truck, transporting heavy equipment to and around the project site, the job grew in size and complexity. As the project work area got larger, more and more heavy equipment was added to the compliment of equipment and machinery used in performing the construction contract in question. The Respondent's management recognized that Mr. Moore, through no fault of his own, was unable to meet the demand for both the fuel and maintenance truck operations and the low-boy truck operations by himself. Therefore, it determined that a second full-time job had effectively evolved, due to the growth in size and complexity of the construction project. Mr. Moore was therefore given the option as to whether he would prefer to continue to operate the fuel and maintenance truck, with associated heavy equipment lubrication and servicing, or operate the low-boy equipment transporter truck. He decided that he would prefer to continue to operate the fuel and maintenance truck, servicing the equipment. In response to that decision another driver was hired to handle the responsibilities of operating the low-boy truck, transporting heavy equipment. The driver who was hired for operation of the low-boy truck was a white male. The hiring of the white low-boy truck driver, while it replaced some of Mr. Moore's duties did not constitute a reduction of his hours, pay, and was in no way intended and in fact was not an adverse employment action. Rather, it was a recognition by management that the duties he had been performing were so extensive as to require the hiring of a second employee to perform some of them. The Petitioner contends that the hiring of the white low-boy truck driver was an act of discrimination. That testimony by the Petitioner is not supported by the persuasive evidence however. The taking of some of the duties from the Petitioner's responsibility and assigning them to the newly hired truck driver was not an adverse employment action and the fact that the newly hired driver happened be white was shown to be coincidental and not an act of discrimination. Archer Western, in fact, had exceeded the minority participation goals set forth by the United States Department of Labor by a factor of three. Evidence adduced by the Respondent clearly shows that since before the Petitioner was hired, and after he was terminated the Respondent has had minority employees in all sorts of jobs, including supervisory positions in substantial numbers. In fact, the "EEO Report" in evidence as Respondent's Exhibit Two shows that out of 155 employees 75 were minority employees. In performing his job with the fuel/maintenance truck operation, the Petitioner was largely unsupervised. He had no direct supervision. This was because the fueling and lubrication operation for which he was responsible required that the equipment he was servicing be idle. Thus this was best accomplished by his performing servicing of equipment after normal working hours and on weekends. He earned overtime for some of this work. Mr. Moore kept his own time record which he turned into the office, without direct supervision of it. During the course of his duties with the fuel/maintenance truck operation, his supervisors noted that the volume of lubrication grease that should have been used in lubricating the machinery seemed to be lower than normal. Moreover, Mr. Hall, the equipment superintendent and the Petitioner's supervisor, on a number of occasions shortly prior to the decision to terminate the Petitioner found that equipment operators would inform him that their equipment was out of fuel early in the work day when it should have been filled with fuel the night before. Knowing that the work assigned to Mr. Moore was not being accomplished in an appropriate manner gave his supervisors cause for concern as to whether he was performing his job or performing it adequately. The work was simply not getting done or timely done. Mr. Moore, however, was reporting considerably more working hours than project managers had anticipated was necessary to complete the equipment servicing tasks. The fueling and lubrication of equipment was becoming more and more behind while Mr. Moore's hours continued to run well in excess of management's reasonable hourly estimate for his job. Thus the Petitioner's supervisors became convinced that he was reporting more hours than he worked. In response to the inconsistency in the performance of his job with the number of hours of work he reported, management determined to change him to a different job or position, rather than to terminate him, to see if the situation regarding hours would improve. He was therefore offered a change of position involving driving a water truck. Unlike the fuel/maintenance truck, which is used a considerable amount of the time during after-hours equipment servicing while equipment lies idle (or on weekends), a water truck, because of its purpose in a construction operation, works closely with the daily construction operation and crew. The hours of its driver will be substantially co-extensive with those of the entire construction crew during these daytime operations. Mr. Moore accepted the change in position but was resentful of the change primarily because it constituted a reduction in his weekly work hours. In point of fact, the evidence of record indicates that Mr. Moore, while he was operating the fuel maintenance truck, reported more hours worked, including overtime, than any other employee. In his new position driving the water truck, Mr. Moore's attitude declined and he became verbally abusive with co-workers and, to some extent, supervisors. He had a verbal altercation with more than one supervisor and became belligerent and abusive with a female co-worker, using foul language and gestures. Ultimately, his negative attitude and performance on the job, coupled with his false reporting of working hours resulted in a decision that he be terminated. He was terminated from his employment on October 3, 2003. The Respondent's witnesses maintained that this decision had nothing to do with the Petitioner's race. Given the fact that approximately 50 percent of the employees and supervisors employed by the Respondent are members of minority groups, this testimony is deemed credible and it is determined that the termination of the Petitioner was not due to racial aminus.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 8th day of December, 2005, in Tallahassee, Leon County, Florida. S 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 8th day of December, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jeffrey Moore 10923 County Road Munday, Texas 76371 Jack Slattery Archer Western Construction 4501 Northeast 21st Lane Fort Lauderdale, Florida 33308
Findings Of Fact Rood is a black person. Rood was employed by Coastal Lumber Company on June 22, 1981, as a glue line superintendent, where he supervised three shifts and three shift supervisors. In January, 1982, Rood was promoted to Dry End Superintendent, responsible for seven supervisors and three shifts. Coastal Lumber Company operates a plywood production plant in Hinson, Florida. The plant has been in operation only since 1981 and produces plywood panels for use in the construction industry. Plywood production is divided into several stages. The first stage is referred to as the Green End and involves stripping green logs straight from the forest by use of an industrial lathe. The lathe strips the logs into thin veneer sheets approximately 50 inches by 101 inches in size. The veneer sheets are then transported to a huge oven where the sheets are dried out. Once the green veneer has had most of the water content removed in the oven, the sheets are placed on a conveyer belt (the lay-up line). Glue is applied and the veneer sheets are placed one on top of the other like a sandwich to obtain the desired thickness. The multi-layered sheets are then pressed together in a large hydraulic press to cure the glue and bond the veneer sheets together to form a plywood panel. After pressing, the rough-edged panels are squared off into standard size panels, sorted, graded, and shipped. The production line beginning with the drying out process in the ovens through gluing and pressing process is referred to as the Dry End. The finishing and shipping department is a part of the Dry End in that the finished product has been dried in the oven, but is more typically referred to as a separate department. David Carter was hired by Coastal Lumber as the plywood production manager in February 1982. He had previously been employed by the Union Camp Corporation as a plant manager and has twenty-five years of experience in the plywood industry. Carter was hired because Coastal Lumber was in dire financial straits. The company had lost a lot of money in its first year of operation and was in danger of closing down. Production was down, costs were out of control and the plant was lacking in leadership. When he arrived at Coastal Lumber, Carter found the plant organized in a departmental superintendent system. Warren Thornton, a black man, was the Green End superintendent. Rood was the Dry End superintendent. John Asbell, a white man, was the Finishing and Shipping superintendent. Under the system, the three superintendents were of equal authority and were responsible for scheduling and coordinating production between their departments. Carter had worked before in plants which used this departmental superintendent system but based on his many years of experience preferred a system utilizing a single plant superintendent who is responsible for scheduling production throughout the plant. In order to increase production and turn the plant around, Carter began making changes. First, he fired John Asbell because Asbell was unable to improve the finishing and shipping department. He then transferred Mike Leonard, a black employee, from the glue line to the finishing and shipping department because Leonard had some prior experience in the area. Rood, who had previously supervised Leonard on the glue line, was required to assume superintendent responsibilities for the finishing and shipping department in addition to his responsibilities as dry end superintendent. Both of these personnel moves were on a trial basis. Although some improvement occurred in the finishing and shipping department under Rood's supervision, the improvement was not satisfactory in light of the serious financial condition of the company. Production had not improved sufficiently, housekeeping and maintenance was not up to par and the manufacture of specialty items was requiring too much personal involvement by Carter due to Rood's inexperience. Having exhausted internal efforts at increasing production in the finishing and shipping department, Carter hired Leon Pinner from outside the company as the finishing and shipping supervisor. Pinner had over one and one- half years experience in the finishing and shipping department with International Paper Company and had been directly involved in the production of specialty items. He had also worked as assistant plant superintendent, plant superintendent and plant manager while employed with Georgia Pacific. For several weeks Pinner worked under Rood's supervision but Carter relieved Rood of any supervisory responsibilities in the finishing and shipping department shortly after Pinner's arrival. Within four weeks or so after Pinner's arrival, the finishing and shipping department was up to production, housekeeping was in order and Carter was tremendously impressed with Pinner's performance. Shortly thereafter Carter, along with his immediate boss - J. T. Woods, elected to switch to a plant superintendent organizational scheme for the plywood plant. This reorganization resulted in the elimination of the three departmental superintendent positions, although as a practical matter two of the positions were vacant at of the time of reorganization. Woods and Carter considered three candidates for the position of plant superintendent - Warren Thornton, Bill Rood and Leon Pinner. There was no advertisement or announcement that Coastal was seeking a plant superintendent. Based on Pinner's superior performance in straightening out the finishing and shipping department, Pinner's experience in the industry and Rood's inability to straighten out the finishing and shipping department, Pinner was promoted to the position of plant superintendent. Rood completed 3 1/2 years of college credits. He was first hired in the plywood industry in 1966. He has worked as a foreman, a supervisor, Dry End Superintendent, and plant superintendent. He has a total of 14 1/2 years of supervisory experience at the different levels of responsibility. Pinner began in the plywood industry in 1967. In addition to various line positions, he has served as supervisor in the glue line, drier and finishing and shipping and as assistant plant superintendent, plant superintendent and plant manager. Carter and Pinner discussed how the reorganization was to be handled and what was to be done with Bill Rood's position as Dry End superintendent. Rood's position was eliminated and he was transferred to day shift glue line supervisor, without a pay cut. His new position was equivalent to that held by any other supervisor and he no longer had the authority to exercise any supervision over the other supervisors. On June 18, 1982, Pinner called a production supervisors' meeting to advise the supervisors of the reorganization. Rood was present at the meeting. Pinner advised Rood that his position had been eliminated and that he was placed in the position of day shift glue line supervisor. He was advised that the change was effective immediately. Pinner also advised all supervisors to pull maintenance while the plant was shut down. Pinner gave strict instructions that all supervisors, including Rood, were to be present on June 20, 1982, to perform maintenance. Rood was advised to run his day shift on June 19, 1982, after which the plant would shut down for maintenance. Following this meeting, Rood no longer had supervisor authority over the other supervisors and no longer had the authority or latitude of a superintendent. On Sunday, June 20, 1982, Rood showed up at the plant and instructed the other two supervisors in the glue line as to what maintenance needed to be done. Rood then left the plant and did not return. Rood performed no actual maintenance work himself. He did not ask permission to leave of either Pinner or Carter, both of whom were present at the plant themselves performing maintenance. The next day, June 21, 1982, Pinner terminated Rood. Carter concurred in this decision. The decision to terminate Rood was based on several reasons. First, Rood had disobeyed a direct order from the plant superintendent, an order which had been given in the presence of other supervisors. Second, Rood had left without asking permission. As an on-line supervisor, like all other supervisors, Rood could not come and go as he pleased. Although, while he was the Dry End superintendent, Rood had necessarily worked at various times (due to the responsibility of having to oversee all shifts in his department), he no longer had such flexibility and was required to be at the plant specific times for a specific shift. He was required to help with maintenance on Sunday just like every other supervisor (including the plant superintendent and plant manager - Pinner and Carter). He failed to do so. Third, his failure to pull maintenance despite direct orders set a bad example for other supervisory personnel, some of who had legitimate reasons for needing June 20 off. At various times Coastal has had problems with other employees, both black and white. No other employee had been terminated on the first instance of absence from work without permission. Infractions by others were dealt with first by warnings or suspensions. Termination did occur with both black and white employees. Rood was treated differently because all of this took place during a critical period for the plant when everyone s cooperation was imperative. In this regard, Rood's situation is clearly distinguishable from that of other employees, both black and white whose jobs had been terminated only after several instances of tardiness because of his prior position and the dire circumstances of the company. Mr. Rood was not fired because he is black. After his termination, Coastal Lumber offered Rood the same opportunity it typically offered supervisory personnel that were fired or quit: he was offered a hourly job as a core layer with the opportunity to work his way back up into a supervisory position. This opportunity was administered equally to both black and white workers (for example, Lacy Stacker and David Brown). Had Rood accepted the core layer job at $6.00 per hour and proved himself capable of good job performance, he probably would have resumed a supervisory role within a month or so, as did Stacker and Brown. Rood made reasonable attempts to secure other employment, but remained unemployed from June 21, 1982 until January 1983. During that period he collected $2,630.00 as unemployment compensation. At the time of his termination, Rood was paid $2,530.00 per month. In January 1983, he was hired by Boise Cascade Lumber Company in South Carolina with an annual salary of $20,991.00. In May 1984, Rood was promoted to a supervisory position and received a pay increase to $27,000.00 per year. 30. Rood lost income of $15,180.00 during 1982, $9,459.00 in 1983 and $5,845.00 from January 1, 1984 until November 1, 1984. The total lost wages for this period was $30,484.00. Rood continues to make $380.00 less per month than while employed by Coastal.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the complaint of William D. Rood, Jr., be DISMISSED and that the Prayer for Relief be DENIED. DONE and ENTERED this 7th day of February, 1985, in Tallahassee, Florida. DIANE K. KIESLING 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 7th day of February, 1985.
