Findings Of Fact At all times pertinent to the issues herein, Respondent, Joe Raymond Johnson was employed as a plant operator (janitor), at St. Petersburg High School. His employment was subject to labor conditions outlined in an agreement between the School Board of Pinellas County and the International Brotherhood of Firemen and Oilers, AFL-CIO, Local 1221. He has worked at the school since December, 1980. Respondent's immediate supervisor was Dennis N. Nelson, the night foreman who supervises the night crew of 10 plant operators (janitors). The night crew duty hours were from 2:30 - 11:00 p.m., Monday through Friday. At all times material hereto, Respondent was assigned to the night crew. The plant operators, of whom Respondent is one, are advised at periodic meetings of their duty hours, reporting times, break times, and lunch times, and other facets of their employment. In addition, this same information is posted on the bulletin board in the maintenance office. As a part of their employment orientation, the plant operators, including Respondent, were told how to make arrangements for excused absences and tardiness. They were advised to call in, in advance, and advise Mr. Jones, the Head Plant operator, that they would be late or absent and why. If Mr. Jones is not available, the worker is to leave a message for him with either a secretary in the administrative office or a student working in that office, who is to place the message in Mr. Jones' box for subsequent pick-up. Respondent was personally advised of this procedure by Mr. Nelson, his immediate supervisor. On July 5, 1987, Respondent signed a Stipulation of Agreement with the School Board whereby he was suspended without pay for three days because of a continuing history of unexcused tardiness up to that time. The Stipulation was signed by School Board officials on August 11 and August 26, 1987. On August 27, 1987, the Director of Personnel Services, Pinellas County Schools, advised Respondent by letter that the suspension had been approved and cautioning him that future infractions might lead to further disciplinary action, to include dismissal. Subsequent to July 13, 1987, even after signing the Stipulation relating to his prior tardiness, and accepting punishment therefor, Respondent continued to be tardy without excuse or prior notice as called for in the school procedure. Specifically, he was late as follows: July 13, 1987 - 3 minutes late August 13, 1987 - 8 minutes late August 17, 1987 - 2 minutes late August 26, 1987 - 5 minutes late September 24, 1987 - 42 minutes late September 30, 1987 - 1 minute late October 10, 1987 - 4 minutes October 16, 1987 - 32 minutes late November 4, 1987 - 1 minute late November 11, 1987 - 13 minutes late December 3, 1987 - 4 minutes late from lunch December 8, 1987 - 13 minutes late from lunch February 21, 1988 - 21 minutes late As a result of this continuing tardiness, on October 19, 1987, Respondent was called to a conference with the Principal, Mr. Grey, who advised him of the continuing problem. Respondent professed to be unaware of the problem and claimed discrimination by his supervisors. Nonetheless, Mr. Grey advised Respondent to be punctual in the future upon pain of further disciplinary action. When asked to sign a copy of the memorandum memorializing this conference, Respondent refused to do so. On December 16, 1987, Mr. Jones, the Head Plant operator, wrote to Mr. Johnson outlining a series of unexcused tardies and absences in early December, 1987 and indicating he was referring the matter to the Principal for action. Respondent, again, refused to acknowledge this communication. On January 21, 1988, Mr. Jones again wrote to Respondent noting a thirteen minute tardiness that day and again referring the matter to the Principal. As was the case with previous communications, Respondent refused to sign in acknowledgement. According to Mr. Nelson, Respondent failed to call in on any one of the above-mentioned tardiness in advance as was required. He admits that Respondent is generally a good worker but was the subject of some other, unidentified disciplinary problems during the period of his employment. These not being further identified or supported, they are hereby disregarded. Mr. Grey, the Principal, personally spoke with Respondent about his lateness on several occasions. Initially Respondent offered no explanation for his tardiness but with regard to the last two incidents, indicated he had physical problems. Respondent also, on one occasion, indicated to Mr. Grey that the plant operator, Mr. Jones, was prejudiced against him. Mr. Grey did not believe Respondent's representations to him that he had tried to call in to say he would be late. After the last referral from Mr. Jones, Mr. Grey decided that more stringent disciplinary action was appropriate and recommended to the Superintendent of Schools that Respondent be dismissed. This recommendation was based upon his own interviews with the Respondent and the reports of Respondent's supervisors. While admittedly other janitorial personnel have been tardy without a recommendation for dismissal, their records are not as aggravated as that of Respondent who continued his tardiness regardless of repeated counselings and warnings. Even though Respondent has not been late since February, 1988, Mr. Grey still feels he should be dismissed because regardless of the counselings, Respondent was repeatedly tardy until this present dismissal action was initiated. Mr. Johnson, who is fifty-one years old, has worked for the School Board continuously since December, 1980, and this job is his sole source of income. He admits that there was justification for the three day suspension imposed on him previously but contends that as to the latter incidents being used to support the current action, he called in in advance on most - at least those of significance. He does not consider one or two minutes beyond the starting time as being late, however. That much time could be expended waiting in line to clock in. As to these short periods, he asserts he was there on time but had to wait to sign in and by the time it was his turn, he was late by one or two minutes. What Respondent overlooks, however, is that the sign in clock was purposely set between two and three minutes slow for just that purpose. Consequently, if the clock showed Respondent to be two minutes late, he was, in reality, between four and five minutes late - well beyond the delay time. Respondent also contends without any evidence to support his contention, that the clock was ordinarily inaccurate and was adjusted purposely to entrap employees. Evidence introduced by Petitioner, however, indicates the clock was periodically checked and found to be accurate, except in times of power outages not pertinent here, until it was replaced when it broke down for a week. During that period, however, Respondent was not late. As stated above, Respondent claims that he did call in when he would be significantly late and leave a message with the student who answered. To support his claim, he asserts that neither Nelson nor Jones ever complained to him on those occasions. When he would see them after arrival, they would acknowledge his presence and say they were glad he had made it. On one of these occasions, September 30, 1987, on which date he was forty-two minutes late, he had car trouble and told Mr. Jones about it, when he arrived. During this same period from July, 1987 to January, 1988, he was having physical problems and was under a doctor's care; a fact which he made known to both Jones and Nelson. At one point, he brought in a doctor's certificate which he discussed with the Assistant Principal who told him to leave it in the Principal's box. The Principal denied receiving it, however. These assertions do not, however, establish that Respondent followed the school rules and called in in advance when he was going to be late. Respondent claims that though the school administration is claiming his tardiness as the basis for this dismissal action, in reality it is because of an altercation he had with Mr. Jones over a period of sick leave. In the incident in reference, Respondent had been to the doctor and upon his return to school, signed an application for sick leave furnished to him by Mr. Jones who had indicated it would be approved. When he saw it later, he noted that sick leave had been disapproved. When he spoke with Mr. Jones about this, Jones allegedly told him he didn't have any sick leave accrued. Respondent called the district payroll office and reportedly was told he did have sick leave available, but when Respondent reported this to Jones, Jones supposedly said it didn't matter, he wasn't going to get it. When Respondent complained to the Assistant Principal, the matter was referred back to Jones for resolution. Respondent was counseled about this incident in writing by the Principal and believes it is the real basis for the disciplinary action. Both Grey and Jones deny this, however, and in light of the Respondent's repeated lateness, it is found that the basis for this action is the lateness and not the other matter. Mr. Grey admits that Respondent's tardiness was documented with a view toward disciplinary action but not because of this incident. The documentation was begun before the incident in question and relates solely to the continuing tardiness. Respondent has not been late since January 21, 1988, because he fears the separation action. He made up his mind to be on time and he has been on time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Joe Raymond Johnson be suspended without pay from employment with the School Board of Pinellas County for thirty days. RECOMMENDED this 7th day of June, 1988, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 7th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1370 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner NONE By the Respondent 1 - 2. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. 8 - 10. Accepted and incorporated herein. 11 - 14. Accepted and incorporated herein. Rejected as not entirely supported by of record. Accepted and incorporated herein. 17 - 18. Accepted and incorporated herein. 19. Accepted. 20 - 21. Accepted and incorporated herein. COPIES FURNISHED: Bruce P. Taylor, Esquire School Board Attorney 1960 East Druid Road Clearwater, Florida 34624 B. Edwin Johnson, Esquire 1433 South Ft. Harrison Avenue Suite C Clearwater, Florida 34616 Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Scott N. Rose, Ed.D. Superintendent School Board of Pinellas County 1960 East Druid Road Post Office Box 4688 Clearwater, Florida 34618-4688
The Issue Whether respondents are guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, including the pleadings and argument of counsel, the following findings of fact are determined: Petitioner, Carolyn E. Simmons, is a black female. In 1990, she began employment as a cook with respondent, Inverness Inn (Inn), an employer allegedly subject to the Florida Human Rights Act, as amended. At that time, the Inn was owned by respondent, Cvetko Blazevski. On March 25, 1992, petitioner filed a charge of discrimination with the Commission on Human Relations (Commission) alleging that she was "harassed and subjected to racial terms by Mr. Cretko (sic) Blazevski, Owner, from the beginning of (her) employment until the present time." For the purpose of ruling on this motion only, the undersigned has accepted this allegation as being true. The charge of discrimination, and the petition for relief subsequently filed, did not specify the relief being sought. In April 1992, Blazevski's ownership in the Inn was terminated by a court, and the Inn later closed and went out of business. Petitioner continued to work in her position as a cook after Blazevski left the Inn and until it closed. According to petitioner's counsel, Simmons seeks only compensatory damages against respondents for their conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order dismissing with prejudice the petition for relief. DONE AND ENTERED this 27th day of October, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 27th day of October, 1993. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Kenneth S. Stepp, Esquire 305 North Apopka Avenue Inverness, Florida 34450 David L. Wilcox, Esquire 452 Pleasant Grove Road Inverness, Florida 34452
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Sections 760.10(1) and 760.10(7), Florida Statutes.
Findings Of Fact Respondent, an educational institution, is an employer as defined by Section 760.02(7), Florida Statutes. Respondent has a pamphlet entitled Harassment Prevention, A Guide for Faculty, Staff and Students. The pamphlet, published by Respondent's Equal Opportunity and Diversity Office (EODO), defines racial harassment and retaliation. It also provides detailed instructions for reporting harassment/retaliation and filing a formal and/or informal complaint with Respondent's EODO. Respondent's policy on harassment and discrimination specifically prohibits racial harassment. It states that racial harassment may subject employees or students to appropriate disciplinary action, up to and including dismissal or expulsion. Respondent also has written equal opportunity and diversity complaint procedures. Respondent uses these procedures to enforce the following policies: (a) Policy Against Discrimination and Harassment; (b) Americans with Disabilities Policy; and (c) Racial and Ethnic Harassment Policy. The procedures provide for the following: (a) informal processing of complaints by supervisors of disputing parties, in consultation with Respondent's EODO; (b) informal processing of complaints by Respondent's EODO; and (c) formal processing of complaints by Respondent's EODO. Petitioner is an adult African-American female. She worked for Respondent from February 1999 until January 2003 as a dispatcher in Respondent's police department. Until May 2002, Petitioner's supervisor was Dora English, a white female. Ms. English was Respondent's Communication Manager. Initially, the relationship between Ms. English and Petitioner was friendly. Ms. English visited in Petitioner's home. Ms. English also organized a baby shower for Petitioner. However, in time, the relationship between Ms. English and Petitioner deteriorated. Ms. English lacked people skills as a supervisor. She insisted that all dispatchers follow the department policies and rules to the letter. She was especially intolerant of the dispatchers being tardy, regardless of their race. In April 2000, Frank Sarver held the office of Captain in Respondent's police department. Captain Sarver issued a memorandum to all dispatchers. Among other matters, the memorandum discussed tardiness. The memorandum directed the dispatchers to contact Ms. English by telephone if they were going to be late to work. The memorandum advised the dispatchers to explain why they were late after arriving for work. The memorandum states as follows in pertinent part: If this seems like it is a hassle, it is suppose [sic] to be recognized as unacceptable to be late on a regular basis. If you are late and cause another person to work overtime [sic] then you should do one of the following: Pay that person back the time that you used, via their approval [sic] Fill out a leave request and place the late arrival on your time sheet, claiming annual, compensatory or sick time, subject to the Communications Managers [sic] approval. Or Work off the amount of time you were late via the Communication Managers [sic] approval. Respondent has written standards for disciplinary action. Excessive tardiness or unexcused tardiness is an example of the time management/work effort standard. Respondent defines excessive tardiness as an employee's failure to adhere to established and approved work hours and/or the development of a pattern of lateness that adversely affects an employee's work, or the work of others, or that is inconsistent with the position description, Board of Education rules, or university policies and procedures. Respondent's Standards for Disciplinary Action set forth a range of disciplinary actions for violations of work standards. The recommended disciplinary action for excessive tardiness or unexcused tardiness ranges from an oral reprimand to written reprimand for a first offense, from a written reprimand to suspension without pay for a second offense, from suspension without pay to dismissal for a third offense, and dismissal for a fourth offense. Petitioner was chronically late to work. She was tardy on a regular basis, two to three times a week. On several occasions, Ms. English verbally counseled Petitioner about her tardiness. These counseling sessions were not successful. On September 22, 2000, Petitioner was nine minutes late for an evening shift. She had not been able to let Ms. English know that she was going to be late because she was tied up in traffic due to a hurricane. Ms. English prepared documentation of a oral reprimand for excessive tardiness. Ms. English gave the document dated September 22, 2000, to Petitioner. However, neither Ms. English nor Petitioner signed the document. The record is not clear whether the documentation of the oral reprimand was officially placed in Petitioner's personnel file, and if so, whether Petitioner exercised her option to have it removed and placed in a sealed envelope after 12 months. On at least one other occasion, Ms. English attempted to give Petitioner an oral reprimand for being tardy. That occasion involved Petitioner's being several minutes late to work because her child was ill. However, Lieutenant Rex Bryant intervened and refused to allow Ms. English to prepare the documentation for an oral reprimand under those circumstances. The record does not contain a copy of Petitioner's performance appraisal for the period November 1, 1999, to October 31, 2000. However, persuasive evidence indicates that the appraisal did not reference Petitioner's excessive tardiness. On October 8, 2000, Deryl T. Rowe, a white male dispatcher, was eight minutes late for a midnight shift due to illness at home. Ms. English prepared documentation of an oral reprimand for excessive tardiness. Mr. Rowe and Ms. English signed the documentation of the oral reprimand before it was placed in Mr. Rowe's personnel file. On November 30, 2000, Ms. English completed Mr. Rowe's performance appraisal for the period November 1, 1999, to October 31, 2000. The performance appraisal indicates that Mr. Rowe's performance was satisfactory. The appraisal specifically states that Mr. Rowe could improve by arriving at work on time. According to the appraisal, Mr. Rowe's tardiness delays other dispatchers from leaving their shifts at designated times, creating overtime/special compensation time situations. On November 30, 2001, Ms. English completed Petitioner's annual performance appraisal for the period November 1, 2000, to October 31, 2001. The performance appraisal indicates that Petitioner's performance was satisfactory. As to areas in which Petitioner could make improvement, the performance appraisal states that Petitioner could read magazines and books about the communications industry and her particular field of work. The performance appraisal does not reference Petitioner's excessive tardiness. Chief Ronald Seacrist became Respondent's Chief of Police in February 2002. The relevant chain of command included the following in descending order: Captain John Warren, Lieutenant Rex Bryant, and Ms. English as Communications Officer. In a memorandum dated March 20, 2002, Ms. English recognized Petitioner's correct response to a fire alarm. The memorandum also commended Petitioner for knowing to place the responding officers on standby after learning that the fire alarm was a test. On or about March 24, 2002, Ms. English nominated Petitioner for Respondent's A+ award. Respondent gives this award to employees who demonstrate professional excellence, leadership in improving customer service and enhancing the university's image, and university service. Petitioner was one of ten employees in the administrative affairs category who received the award. In March 2002, Ms. English made an informal complaint to Respondent's EODO staff. The complaint involved Ms. English's suspicions that an inappropriate sexual relationship existed between Petitioner and Captain Warren. Ms. English, as Petitioner's supervisor, believed that she had a duty to report that the alleged relationship between Petitioner and Captain Warren, might involve sexual harassment. Ms. English based her suspicions on observed physical contact and comments exchanged between Petitioner and Captain Warren. Respondent's EODO staff referred Ms. English's informal complaint to Chief Seacrist, who performed an internal investigation. Chief Seacrist's investigation found no merit to Ms. English's suspicions/allegations. Chief Seacrist became aware that there were problems between all of the dispatchers and Ms. English. Chief Seacrist and Lieutenant Bryant met with the dispatchers and a staff member from Respondent's EODO office to see if the problems could be resolved. During the meeting, Chief Seacrist encouraged the dispatchers to provide him with written complaints so that he could perform a proper investigation. Petitioner subsequently filed a written complaint with Chief Seacrist. The complaint was divided into four parts: (a) Petitioner objected to Ms. English's schedule changes and reprimands for tardiness, which occurred in September 2000 and/or prior to May 2002; (b) Petitioner accused Ms. English of falsifying her own timesheet during the Fall of 2000; (c) Petitioner objected to Ms. English's failure to follow the chain of command prior to February 2002 while Captain Sarver was acting as interim Chief of Police; and (d) Petitioner objected to inappropriate and invasive comments made by Ms. English, all of which occurred in 2000. On or about May 28, 2002, Chief Seacrist gave Petitioner's written complaint to Captain Warren. Chief Seacrist directed Captain Warren to perform an internal investigation. On May 30, 2002, Captain Warren temporarily reassigned Ms. English to complete special projects. Ms. English was no longer responsible for supervising the dispatchers. Instead, Lieutenant Bryant became directly responsible for supervising the dispatchers. On May 31, 2002, Ms. English gave Captain Warren a written response to the allegations contained in Petitioner's complaint. On or about June 3, 2002, Captain Warren gave Chief Seacrist a written report of the internal investigation. As to Petitioner's complaint, Captain Warren found that Ms. English was guilty of four violations of a work standard, i.e. threatening or abusive language. Specifically, Captain Warren found that Ms. English was guilty of the following: (a) making inappropriate comments and inquiries about other dispatchers; (b) telling Petitioner a story of the origin of "soul food," which Petitioner found offensive; (c) telling Petitioner that Ms. English's daughter does not like "black dolls"; and (d) telling Petitioner that she, Ms. English, would gain weight too if she ate a diet of "collard greens, corn bread, and fried chicken." Threatening or abusive language is an example of an offense of Respondent's work standard related to personal rights. Respondent defines threatening or abusive language as defamation of character or remarks, offensive language, slander, insults, or threats toward others. Respondent's Standards for Disciplinary Action set forth the following ranges for disciplinary action involving threatening or abusive language: (a) from a written reprimand to suspension without pay for a first offense; (b) from suspension without pay to dismissal for a second offense; and dismissal for a third offense. On June 10, 2002, Chief Seacrist gave Ms. English a written reprimand for using threatening or abusive language as follows: (a) telling an African-American employee (Petitioner) about the origin of the term "soul food" in a manner in which the employee found offensive; (b) telling an African-American employee (Petitioner) that Ms. English's daughter did not like "black dolls," which the employee found offensive; (c) referring to, "collard greens, corn bread, and fried chicken" in a manner that an African-American employee (Petitioner) found offensive; making inappropriate comments to employees (including Petitioner) about the personal social life of another employee (Laura Bryant); and (e) telling another employee (Laura Bryant) that an investigation was being conducted and causing the employee to believe the employee's job was in jeopardy. In the written reprimand, Chief Seacrist admonished Ms. English for her insensitivity to employees under her supervision. He also criticized Ms. English's inability to interact with other ethnic groups. The June 10, 2002, written reprimand required Ms. English to participate in additional training for interacting with culturally diverse employees. Ms. English complied with this directive but has never been returned to a supervisory position. The corrective action was appropriate under the circumstances. At some point in time after Captain Warren issued his June 3, 2002, investigative report, Ms. English complained to Respondent's EODO staff that Captain Warren's report was biased. Ms. English believed the report was biased against her due to an inappropriate sexual relationship between Petitioner and Captain Warren. Petitioner filed her Charge of Discrimination on September 5, 2002. The charge states, in part, that Ms. English retaliated against Petitioner by reporting the alleged inappropriate sexual relationship. In January 2003, Petitioner decided to enhance her career opportunities by taking a job with the Department of Transportation. She voluntarily terminated her employment as a dispatcher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of July, 2003, 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 10th day of July, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Maesha Freeney 220 West Chase Street Apartment 106-A Pensacola, Florida 32501 Pamela E. Langham, Esquire University of West Florida 11000 University Parkway Building 10 Pensacola, Florida 32514-5750 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Petitioner, Myra McKinney, is a black female. The Respondent is an insurance company which conducts operations in Florida, as pertinent hereto, consisting of the receipt of insurance policy applications with attendant premium payments, the recording of such policy applications, and other administrative procedures and operations necessary to act on the applications and receipt of premium monies by underwriting the risks involved by insurance policies issued by the company. The Respondent is an employer in the State of Florida for the purposes of Chapter 760, Florida Statutes. The Petitioner was employed by Respondent at times pertinent hereto and from 1981 through June 2, 1992. When she was terminated she held the position of "processing manager." This position involved presiding over the department as supervisor, with the responsibility and function of receiving insurance policy applications and related binder and/or premium monies and properly accounting for them in the process leading up to the Respondent company issuing insurance policy contracts. The Petitioner was the supervisor of personnel charged with the receipt of and proper accounting for such applications and premium monies. On or about June 11, 1992, after being terminated by the Respondent on June 2, 1992, the Petitioner filed a charge of racial discrimination related to her termination with the Florida Commission on Human Relations (Commission). An investigation was conducted by the Commission which ultimately resulted in the determination of "no cause." The Petitioner had been placed on work probation on May 11, 1992, because of poor work performance. The terms of her probation status specified that her work performance would have to be reviewed in 30 days and that if objectives were not met she would be terminated. The Petitioner had been asked by her manager or supervisor to provide him with reports on missing work (lost or misplaced applications), as well as a plan to correct the processing deficiencies leading to this problem and to eliminate the backlog of unprocessed applications. The Petitioner failed to provide the requested response and report until the supervisor had to make a second request of her. Witness John Burkhalter, the Petitioner's most recent supervisor, as well as witnesses Maria Diaz and Connie Bonner, established that a corporate audit revealed severe deficiencies and discrepancies in the processing department's function, which the Petitioner supervised. Under the Petitioner's management the processing department had fallen into severe disarray with a serious backlog of unprocessed work, a loss of control by Ms. McKinney over the processing of the work, particularly the problem of lost or misplaced insurance policy applications and related premium or binder checks. There were organizational and work-flow management problems, and very poor morale throughout the processing department. Ms. Diaz established that the poor morale was directly attributable to the Petitioner's performance because she had poor organizational skills. Numerous meetings were held with no apparent purpose for the meetings and little was accomplished. Meeting agendas between the Petitioner and her subordinates were lacking or rudimentary. The Petitioner had the habit of intimidating employees, being critical of them, and causing the employees to feel reluctant to express ideas and opinions clearly, particularly criticisms of the manner in which the office was operated. Once the Petitioner left employment, the backlog of unprocessed work and the problem of missing or misplaced applications was immediately alleviated, with the office functioning in much better fashion ever since. Additional missing applications and a box of "backlogged", unprocesed applications were found concealed in the office on the day of the Petitioner's termination, June 2, 1992, during the course of her work probationary period. Mr. Burkhalter established, as the immediate supervisor of the Petitioner and the regional operations officer of the Respondent company, that the Respondent had a progressive discipline policy and termination policy. The corporate policy was followed with regard to the termination of the Petitioner. The Respondent employed progressive discipline when it learned of the severity of the problems in the processing department, imposing a probationary period first, and giving the Petitioner an opportunity to correct the problems, followed by termination for work performance deficiencies when the opportunity to correct those deficiencies was not taken advantage of by the Petitioner. Ms. McKinney's actual performance in May of 1992 was not consistent with her previous performance evaluations. Her former manager, Mr. McFall, had inflated her performance ratings and given her satisfactory ratings when actually her performance did not justify such. Mr. McFall himself was terminated near the same time as the Petitioner and testified on behalf as concerning purported satisfactory performance but, given the totality of the circumstances surrounding his termination and testimony in support of the Petitioner, is deemed a biased witness against the Respondent. His testimony was colored by his own dispute and history of litigation with the Respondent concerning his employment and termination. Mr. Burkhalter reviewed the Petitioner's entire personnel file, the deficiencies in her work performance and her lack of any improvement during the work probationary period when the Respondent gave her an opportunity to improve and make corrections. He determined termination was, therefore, the only option. He reviewed such considerations as transferring the Petitioner or demoting her to another position. However, because of the exceedingly poor morale generated in the department largely by the Petitioner's management and supervisory practices, Mr. Burkhalter determined that neither option was in the best interest of the Respondent or Ms. McKinney. He, therefore, terminated Ms. McKinney in compliance with the provisions of the work probation policy of the Respondent. He did not terminate her or otherwise discipline her for any reasons motivated by consideration of her race. In establishing this as fact, his testimony is corroborated by that of Ms. Lynn Jones, a black female employee, who testified that she had never been personally discriminated against by Mr. Burkhalter or Colonial nor had she observed any other black person employed by the Respondent treated in what appeared to her to be a disparate fashion, including the Petitioner.
Recommendation Based on the foregoing Findings of Fact and 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 subject petition of Myra McKinney in its entirety. DONE AND ENTERED this 11th day of January, 1994 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 1994. APPENDIX Petitioner's Proposed Findings of Fact: Accepted but not in itself materially dispositive of the relevant issues. Rejected as not in accordance with the preponderant weight of credible evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as not in accordance with the preponderant weight of credible evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as not in accordance with the preponderant weight of credible evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as not in accordance with the preponderant weight of credible evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as immaterial. Rejected as not in accordance with the totality of the preponderant, credible evidence. 8-9. Accepted, but not dispositive of the material issues presented. Rejected as not in accordance with the preponderant, credible evidence of record. Rejected as not clearly established by the preponderant evidence of record. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Accepted. Rejected as immaterial and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as not entirely in accord with the preponderant weight of the evidence. Rejected as contrary to the preponderant weight of the credible evidence. Rejected as contrary to the preponderant weight of the credible evidence. Accepted. Rejected as immaterial. Rejected as immaterial. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as immaterial. Rejected as immaterial given the issues in this proceeding. Rejected as immaterial and not in accord with the preponderant weight of the evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as not in accordance with the preponderant weight of the credible evidence. Rejected as immaterial. Rejected as not in accord with the preponderant weight of the credible evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as immaterial under the circumstances presented by the issues in this case. Rejected as immaterial under the circumstances presented by the issues in this case. Rejected as immaterial under the circumstances presented by the issues in this case. Respondent's Proposed Findings of Fact: 1-14. All accepted, but subordinate to the Hearing Officer's Findings of Fact on the same subject matter to the extent that they differ. COPIES FURNISHED: Ms. Myra McKinney 1823 Mayfair Road Tallahassee, Florida 32303 Lucinda A. Reynolds, Esquire McCutchan, Druen, Maynard, Rath & Dietrich One Nationwide Plaza Columbus, Ohio 43216 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent, Holmes Regional Medical Center, is guilty of violating Subsection 760.10, Florida Statutes (2003), by allowing Petitioner, Stephanie Francis, to be harassed because of her race and denying her reasonable accommodations for her pregnancy during her employment.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner is an African-American female who was employed by Respondent as a Certified Nursing Assistant. At the time of the incidents that led to her dismissal from employment, she was pregnant although her condition was not apparent and was unknown initially, at least, by her employer. Respondent is a Florida corporation that operates a major hospital facility in Brevard County, Florida. Respondent is subject to Chapter 760, Florida Statutes (2003). Having recently received her certification, Petitioner's employment began in October 2002. Several months after she became employed, Petitioner requested and received permission to attend Health Unit Coordinator classes. This training would provide the opportunity for career advancement. In order to enable Petitioner to attend Health Unit Coordinator classes, adjustments were made in the work schedules of Petitioner and her co-workers. As the classes were during the day, Petitioner began working night shift. Shortly after she began taking Health Unit Coordinator classes, Petitioner became aware that she would not receive additional pay for attending the training. Petitioner, whose work had been satisfactory, had a marked change in attitude after she learned that she would not receive additional pay. Beginning in April 2003, Petitioner requested numerous transfers from the acute care unit to which she had been initially assigned. Her immediate supervisor, Pegreen Bibby, approved each of Petitioner's transfer requests. Petitioner was not transferred. No evidence was received regarding the reason(s) why Petitioner was not transferred. Petitioner indicated that she was not aware of why she was not transferred. On April 23, 2003, a co-worker complained that Petitioner spoke to a patient in an inappropriate manner. An investigation confirmed the inappropriate conduct. Petitioner was counseled by her immediate supervisor and received a Counseling Memo which noted that Petitioner had a "poor attitude." Petitioner refused to sign the Counseling Memo. On April 28, 2003, Petitioner's immediate supervisor received a complaint from a patient about Petitioner's conduct. An investigation revealed that Petitioner had treated the patient callously and had made several inappropriate comments to the patient. In the course of the investigation, Licensed Practical Nurse Linda Sweeney (LPN Sweeney) commented that Petitioner made inappropriate comments and had a bad attitude, which according to LPN Sweeney was "normal behavior" for Petitioner. LPN Sweeney is African-American. As a result of the April 28, 2003, incident and related investigation, Petitioner received a written warning and information about the Employee Assistance Program. Petitioner refused to sign the written warning. On March 3, 2003, Petitioner presented a note from a gynecologist stating that she required light-duty and that she could not lift more than 20 pounds. Petitioner did not offer an explanation for the note and her supervisor, unaware that Petitioner was pregnant, did not inquire, believing that the basis for the light-duty was a private matter. Petitioner did not indicate that she had made her co-workers aware of her pregnancy. Petitioner's job description requires her to have the ability to lift up to 40 pounds unassisted and to lift, assist, bathe, and dress patients. No positions were available in the acute care unit that did not require fulfillment of the job description. Light-duty work is reserved for employees who suffer job-related injuries. As a result, Petitioner was not scheduled for work. On May 14, 2003, Petitioner presented a note indicating that she was able to return to work without restrictions. She was immediately rescheduled for work. Upon her return to work, her co-workers complained that Petitioner's attitude was "hostile." Co-workers, both African-American and Caucasian, complained that Petitioner resisted helping them. Petitioner was observed wearing headphones and reading a newspaper for approximately two hours while co-workers performed her and their responsibilities. As a result of Petitioner's demonstrated poor attitude and lack of job-effectiveness, Respondent initiated the final stage of its progressive disciplinary process: "decision day." On May 23, 2003, Petitioner received a Counseling Memo which documented her inappropriate work behavior, co-workers' complaints, and failure to follow Respondent's employee rules. Again she refused to sign the Counseling Memo. When "decision day" is invoked, an employee is given paid leave and presented the opportunity to offer a written action plan addressing the deficiencies listed in the Counseling Memo. Petitioner refused to present an action plan as required. Petitioner refused a memo regarding the Employee Assistance Program, indicating that she had one. Petitioner left work and did not return. As a result, on May 30, 2003, Respondent terminated Petitioner's employment. Petitioner failed to identify a similarly situated employee who received different treatment than did Petitioner. Respondent presented evidence of a Caucasian male employee who had refused to submit an action plan following a "decision day" and was discharged. Petitioner suggests, without offering evidence, that she was "harassed" by LPN Sweeney. As previously noted, LPN Sweeney is African-American. In addition to Petitioner's noted inappropriate behavior, subsequent to her discharge, Petitioner made Respondent aware that she had secretly tape-recorded conversations of her co-workers. She acknowledged this during her testimony. This, of course, is a violation of Section 934, Florida Statutes (2003), and is a punishable as a third-degree felony. While not the basis for her dismissal from employment, Respondent's representative testified that this conduct constituted a dischargeable offense in accordance with Respondent's policies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's Petition for Relief be dismissed. DONE AND ENTERED this 19th day of January, 2005, 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 19th day of January, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Stephanie Francis Post Office Box 161 Melbourne, Florida 32902 Andrew S. Hament, Esquire Gray, Harris & Robinson, P.A. 1800 West Hibiscus Boulevard, Suite 138 Melbourne, Florida 32901 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, Sojourn Hospitality-Naples Bay Resort, discriminated and retaliated against Petitioner, Richard Puccini, on the basis of his sex, in violation of section 760.10, Florida Statutes.
Findings Of Fact The record is comprised solely of Petitioner’s Exhibits 1 and 2, which constitute inadmissible hearsay for which no exception to the hearsay rule has been established.3/ Because no testimony or other admissible evidence exists, as to which such hearsay could be used to explain or otherwise supplement, there can be no findings of fact.
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 in this proceeding finding that the Petitioner failed to establish that Respondent discriminated against him on the basis of his sex or retaliating against him and dismissing the Petition in its entirety. DONE AND ENTERED this 29th day of January, 2019, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2019.
The Issue Whether Respondent discriminated against Petitioner in its employment practices contrary to Chapter 760, Florida Statutes.
Findings Of Fact Respondent produces drawn and extruded aluminum products. Petitioner was hired as a saw operator in the Drawn Tube Department in 1997. Her supervisor was Sherry Hontz. Petitioner was promoted to Quality Auditor Technician in a different department in August of 1998. Her supervisor was Nick Newinski. On December 14, 1998, Petitioner complained to Roger Penn, the Plant Manager, about sexual harassment on the job. Penn told Petitioner to take her complaint to Joe Roberts, the Human Resources Manager. At Roberts' request, Petitioner provided him with a handwritten complaint. Petitioner complained that two co- workers had called her derogatory names, "Boom Boom" and "Big Tits," and had started rumors of alleged sexual relationships she was having with co-workers. She also complained that her former supervisor, Sherry Hontz, had been unfair to her after Petitioner dated a former boyfriend of Hontz. Petitioner stated that she was humiliated by the name-calling and rumors. Roberts investigated the complaint, and interviewed nine employees, in addition to Petitioner. All those with whom Roberts spoke had been identified by Petitioner in her written complaint. Based upon his investigation, four employees, Don Carver, Sherry Hontz, Frank Small, and Carolyn Whitecloud, received written reprimands on December 21, 1998, for either the use of offensive names, gossiping, or failing to stop the conduct. The letter to Whitecloud, the operations manager for drawn tubing, specifically cautioned her as the manager to ensure that no retaliation, direct or indirect, was taken against Petitioner. Petitioner felt that Roberts' investigation was over- broad and touched on her personal life more than was necessary; however, there was no evidence of this beyond her allegations. Roberts retained, in accordance with his standard practice, Petitioner's complaint and the notes of his investigation in a file separate from Petitioner's personnel file. In what may have been retaliation, two female co- workers complained to Roberts that Petitioner had rubbed her breasts against a male employee. Roberts interviewed the male employee, who denied the allegation, and Roberts took no further action. In 2000, Troy Turlington, a male, complained to Roberts that Petitioner had made a sexual comment to him, but was adamant that he did not want any action taken. Roberts made a confidential record of the complaint. There was no evidence that Roberts investigated the allegation or took any action against Petitioner. Following the official reprimands from Respondent, no one made sexual comments in Petitioner's presence, although there were "whisperings" and other indications of co-worker displeasure with Petitioner's complaint and the outcome. Petitioner stated that she did not have as much opportunity to earn overtime following the reprimands; however, this was not demonstrated. Petitioner did not complain again to management of being subjected to name-calling or of retaliation. As a quality control technician, Petitioner occasionally placed holds on material that she determined did not meet specifications. This was part of her assigned duties. However, this frequently upset the production personnel, who were frequently disrespectful and made snide remarks about her competence. Her supervisor, Newinski, reviewed her work on one occasion and instructed her to pass the material. Petitioner disagreed with Newinski, and refused to remove the hold she had placed on the parts over her own signature. Newinski and Moreno, a higher-level manager, discussed her actions, which they deemed insubordination. Petitioner felt that she was being placed in an unfair position and was not supported in her determination by management. There was no evidence this was retaliation related to her prior complaint or was otherwise discriminatory. Newinski and Moreno counseled Petitioner on another occasion for spending time socializing with the other employees when she was supposed to be working. Petitioner did not agree with this characterization of her actions. Again, this was not shown to be discriminatory. In early March 2000, Petitioner declined to discuss with Newinski an incident involving another employee engaging in lifting heavy materials by himself, which Petitioner viewed as a potentially dangerous situation. The employee's direct supervisor, Sherry Hontz, arrived at about that time, and Petitioner let her handle the matter without raising the issue with Hontz. She testified that Newinski's inquiry was vague and she did not feel inclined to mention matters unless he could be more specific about the incident. Newinski and Moreno sought Roberts' involvement to force Petitioner to discuss the incident. Petitioner refused to go to Roberts' office, and was suspended from work. Petitioner presented testimony that indicated that she had spoken with the head of the company, Al Styring, who had indicated that she should take up issues involving her employment to David Black, the vice president of Human Resources, at a level above Roberts. Although Roberts testified that he did not know about this, Petitioner's contention was not rebutted. Petitioner complained that following her complaint of sexual harassment she was not considered for promotions. Respondent offered evidence that Petitioner was considered for promotions; however, persons with greater experience were promoted to these positions. This was not shown to be discriminatory. On March 27, 2000, Petitioner slipped in a bathroom while at work and sustained soft tissue injuries. Petitioner received treatment from various health care providers during the course of her recovery, to include, Dr. Green, Dr. Noran, and Dr. Pham. Eight days after the injury, on April 4, 2000, Petitioner's treating physician released her to return to work on light duty with no bending and no lifting greater than fifteen pounds. Respondent returned her to light duty work within these limitations; however, she suffered severe pain from leaning over and could not do the work. The medications that she was prescribed made her groggy and lethargic, and dizzy. Although Petitioner wanted to return to work and Respondent wanted to bring her back to work, Petitioner could not perform the duties available and needed more time to heal. On May 23, 2000, Petitioner's physician again released her to return to work with the specific restriction of no overhead lifting and no lifting over ten pounds. Petitioner was unable to lean over and measure the materials required. She complained to Newinski, who assigned her to completing paper work. Again, after one day at work, Petitioner was unable to continue. Respondent presented evidence that it eliminated her job on July 13, 2000 after she had been on medical leave for over twelve weeks. This, however, conflicts with its records that show Petitioner was not terminated until August of 2001. Neither of these actions was communicated to Petitioner. It can only be concluded that Petitioner's employment status remained unchanged, although her job slot had been eliminated. On November 13, 2000, Dr. Noran released Petitioner to return to work with restrictions based upon Petitioner reaching maximum medical improvement. Her restrictions at that time limited overhead work and limited cervical flexion. On November 13, 2000, Petitioner met with Wayne LaPierre, the safety and environmental manager, to discuss her limitations. She indicated that she was still having trouble bending over and working. LaPierre felt that the doctor's restriction of "limited cervical flexion" were not in line with her complaints of pain while working bending over. He requested the workmens' compensation insurer, Fireman's Fund, to obtain a clarification from Petitioner's treating physician. Fireman's Fund advised LaPierre that it had tried unsuccessfully on many occasions to obtain a clarification from Dr. Noran. No effort was made with Fireman's Fund to have Petitioner assessed by an occupational therapist or otherwise intervene to establish the practical limits of her condition. Respondent's efforts centered on having Petitioner obtain this information from the same physician(s) with whom Fireman's Fund had been unsuccessful. This continued until August of 2001. On August 13, 2001, Petitioner dismissed her workmens' compensation action, and on August 27, 2001, Respondent officially terminated Petitioner without having resolved her job limitations, although it did not communicate this to Petitioner.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the FCHR enter its order dismissing Petitioner's Amended Petition for Relief. DONE AND ENTERED this 26th day of April, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 26th day of April, 2004. COPIES FURNISHED: Sharon L. Harris 3606 Fort Peyton Circle St. Augustine, Florida 32086 Alexandra K. Hedrick, Esquire Hedrick, Dewberry, Regan & Durant, P.A. 50 North Laura Street, Suite 1600 Jacksonville, Florida 32202 Ralph Humphries, Esquire 2700-C University Boulevard, West Jacksonville, Florida 32202 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
The Issue Whether Respondent is guilty of unlawful employment practices; to wit: disparate treatment due to Petitioner's race (Hispanic) and/or retaliation.
Findings Of Fact Petitioner is an Hispanic female. At all times material, Petitioner was employed as a Registered Nurse, Nursing Supervisor, by Respondent. Respondent is a rehabilitative nursing facility in Gainesville, Florida, which qualifies as an "employer" under Chapter 760, Florida Statutes. Since the situations complained-of by Petitioner occurred, Petitioner has continued to be employed by Respondent with no breaks in service, no decreases in pay, no change in benefits, and no demotions in rank. At all times material, Respondent has employed Caucasians, Hispanics, African-Americans, and persons of Indian sub-continent descent. Petitioner signed on March 23, 2007, and on April 5, 2007, filed a Charge of Discrimination with FCHR. The Charge alleged that the Employer Respondent had perpetrated an unlawful employment practice upon Petitioner due to her race (Hispanic) and in retaliation. On July 25, 2007, FCHR entered and served a Determination: No Cause. On August 27, 2007, Petitioner timely filed a Petition for Relief. However, her Petition for Relief only alleged discrimination on the basis of retaliation. The retaliation named was that "my evaluation would be done in a group because of a meeting with Mr. Hamilton and Mr. Hawkins." There are no references whatsoever to race or national origin within the Petition for Relief. The Petition does not specifically allege pattern, or on-going discrimination. It does not specifically allege harassment or hostile work place. It suggests only that Petitioner feels that she does not get respect and is "attacked without evidence." Via her Petition, Petitioner seeks the remedy of ". . . that they [the employer] pay for all my therapies and medication and pay for the meetings I attended.” Early on September 5, 2006, Petitioner was standing in line to punch-in on her timecard at Respondent’s facility. Barbara Washington, an African-American CNA, was standing directly behind her. Petitioner shielded her social security number from Ms. Washington’s gaze. Later the same day, Petitioner was rolling a medicine cart down the hallway in Unit Two of Respondent's facility. Ms. Washington was taking a dinner break, seated in a position near the nursing station, which permitted her to view the patients assigned to her. Unfortunately, Ms. Washington's position did not permit Petitioner and the medicine cart to pass. Petitioner requested that Ms. Washington move, so as to let Petitioner and the medicine cart pass. Ms. Washington spoke sharply to Petitioner, either because Petitioner asked her to get out of the way of the medicine cart or for reasons of Ms. Washington's own related to the morning punch-in. During a later investigation by Director of Nursing (DON) Lisa Woods Streer, several versions of what Ms. Washington actually said were elicited. However, the best and most credible evidence on this particular point is Petitioner’s testimony that Ms. Washington loudly used profanity (“the F word”) directly to Petitioner. There is, however, no evidence that, whatever the exchange entailed, any patient was disturbed, upset, or even aware of the exchange, and there is no evidence that the statements from Ms. Washington had anything to do with Petitioner’s Hispanic origin or any type of employer “retaliation.” At least three hours later on September 5, 2006, after Ms. Washington had gone off-shift and was standing outside the facility waiting for a ride home, Petitioner handed Ms. Washington a disciplinary form, known as “a counseling slip.” At that point, Ms. Washington refused to sign the counseling slip and, screaming loudly, denunciated Petitioner with additional profanity similar to her earlier verbal abuse. This language was overheard by Yadira Chavala, who was inside the building making out reports. Ms. Chavala stood up and looked out the window so as to determine who was yelling the profanity. Ms. Chavala considered the volume and content of Ms. Washington's comments to be unprofessional and unacceptable, but she did not take it upon herself to report the incident to the DON, who was not present in the facility at that time of the evening. Again, there is no evidence that Ms. Washington was attacking Petitioner’s ethnicity or acting on behalf of the employer in her screams at Petitioner. Petitioner, however, reported to the DON both incidents of loud profanity and insubordination from Ms. Washington towards Petitioner, via a copy of the counseling slip she had given to Ms. Washington and a note slipped under the DON’s door. DON Lisa Woods Streer, found these items when she came on duty the next morning, September 6, 2006. Pursuant to Respondent’s protocol, Ms. Streer asked Unit Director Karen Derrico to take written statements from staff, concerning the med-cart incident which had occasioned the counseling slip from Petitioner. The general tone of the feedback that Ms. Derrico got was that everyone in the facility had heard about the medicine cart incident, but there were no clear and reliable eye witnesses. Ms. Washington did not immediately own-up to her conduct and told DON Streer that Petitioner had made Ms. Washington feel like a thief by covering Petitioner’s social security number when they punched-in together the morning of September 5, 2006. The DON viewed this comment by Ms. Washington as a counter-accusation of some kind (possibly a complaint of discrimination) against Petitioner, and so the investigation continued. At some point, Ms. Chavala came forward to describe what she had heard from inside the building when Ms. Washington was cursing in the patio/parking area. Petitioner did not like the taking of statements and considered the process to be an attack on herself. She also did not like the fact that she was called in for a meeting on September 13, 2006, but was informed after she had arrived that the meeting had been put off to the next day. By September 13, 2006, the decision to discipline Ms. Washington had been made, because by that time Ms. Chavala had come forward concerning the second incident, but because the DON felt that Petitioner “had backed Ms. Washington into a corner” Petitioner required some counseling. Upset that a meeting was to take place the next day, Petitioner telephoned Mr. McKalvane of Respondent’s Human Resources Department in Pensacola, to complain about how the September 5, 2006, situation was being handled. Petitioner testified, without corroboration, that Mr. McKalvane told her that he could not talk to her before the next day’s meeting, but would attend the meeting by speaker phone. On Thursday, September 14, 2006, a two-hour meeting was held at the facility. DON Streer; Administrator George C. Hamilton; Unit Director Derrico; Ruthie Moore, the facility’s Staff Development Coordinator; and Petitioner were present. Streer, Hamilton, and Derrico are Caucasians. Moore is African- American. Mr. McKalvane's race/national origin is not of record, but he did not appear at the meeting, even by telephone. Petitioner felt betrayed because Mr. McKalvane did not attend the September 14, 2006, meeting by telephone. At the September 14, 2006, meeting, Ms. Moore suggested that if Petitioner had known that Ms. Washington was upset, it might have been wise for Petitioner to wait until the next day to hand Ms. Washington her counseling slip. Petitioner was offended by this comment because she believed her delay of three hours after the medicine cart incident before issuing the counseling slip had been sufficient. At the September 14, 2006, meeting, DON Streer suggested that Petitioner might want to get with Ms. Moore for some in-service instruction on how to be a better supervisor. Petitioner was offended by this suggestion, because Petitioner perceived no fault in her handling of Ms. Washington. At no time has Petitioner ever been required by the employer to take supervisory in-service training as a result of the September 5-14, 2006, events. In fact, Petitioner has not taken such training or any similar one-on-one training or in- servicing with the employer, and she has not been penalized for not doing so. As a result of Petitioner’s counseling slip concerning the September 5, 2006, incidents with Ms. Washington, Ms. Washington was suspended from work for one day without pay, but Petitioner was not disciplined in any way concerning Ms. Washington’s accusations. Petitioner suffered no discipline or loss in pay, position, or benefits as a result of the September 5, 2006, or September 14, 2006, events. Petitioner submitted that the employer’s punishment of Ms. Washington was somehow discriminatory against Petitioner because it took management nine days to come to the one-day suspension of the person that Petitioner wanted to be disciplined. However, the only comparator that Petitioner was able to offer was a situation which occurred a year later, in 2007. On that occasion, an oral confrontation occurred between an African-American female worker and a Caucasian female supervisor. There is no specific evidence concerning how similar the 2007 incident was to any of the September 5, 2007, incidents involving Ms. Washington and Petitioner. However, in the 2007 incident, the African-American female immediately admitted wrong-doing, and the very next day, the employer suspended her for one day without pay, just as the employer had suspended Ms. Washington for one day without pay in 2006, in response to Petitioner's counseling slip. Ms. Streer testified credibly that in 2007, the investigation and counseling period was shortened by the subordinate’s immediate admission of wrong-doing and lack of accusations against her reporting supervisor. Approximately September 20, 2006, Petitioner sent a 19- page, typewritten letter of complaint to Respondent’s corporate headquarters. The scope of this letter is not clear because it is not in evidence. Petitioner was supposed to be evaluated annually each September, but she did not receive her evaluation in September 2006. She reminded the DON in November 2006, that she had not yet been evaluated. Shortly thereafter, Petitioner received her annual evaluation which bears a date of October 5, 2006, signed on October 22, 2006, by Weekend Nursing Supervisor Sneha Rema, R.N. Supervisor, and signed-off on by DON Sterer on October 31, 2006.1/ Ms. Rema received no input for her 2006 evaluation from the DON or Administrator. By observation, Ms. Rema appears to be a member of one of the ethnic groups originating on the Indian sub-continent. She rated Petitioner as "exceptional" in categories "work quality," "work quantity/productivity," and "compliance & adherence to policies," and as "meets expectations" in categories "core values" and "leadership skills." Under the 2006, evaluation's heading, "Areas of Improvement, Developmental and/or Upcoming Objectives," Ms. Rema put this comment about Petitioner: May improve her leadership skills by attending seminars on interpersonal relationship and how to influence others to accomplish goals in constructive way and team building from a constructive point-of- view. Ms. Rema approaches evaluations with the belief that each employee has different levels of education and skills, should be encouraged to constantly improve, and can best improve if supervisors point out to the employee performance areas susceptible of improvement by the employee. This viewpoint was Ms. Rema’s sole motivation in making the foregoing comment. Ms. Rema views these types of comments as a way of pointing out goals, not failures. Contrariwise, Petitioner holds the personal belief that unless every single nurse received identical language on the foregoing part of his or her respective annual evaluation, regardless of that employee’s individual circumstances and regardless of who wrote the evaluation, then Petitioner has suffered a personal attack and discriminatory treatment by the employer. There is no evidence that the 2006, evaluation caused Petitioner any loss of pay, position, benefits, or hours. In fact, she received a raise. If the raise was delayed by one month, that information does not appear in the record. At some point between September 20, 2006, which was the date of Petitioner’s letter, and the end of November 2006, (the exact date is not of record), Mr. Ken Hawkins, a consultant of Respondent’s corporate personnel office in Tampa, journeyed to the facility and met with Petitioner to try to resolve her concerns. Mr. Hawkins race/national origin is not of record. The meeting was more acrimonious than harmonious and ended with Mr. Hawkins advising Petitioner that her concerns “were history” and he was not going to go over everything that had already been addressed. Petitioner was offended by Mr. Hawkins’ description of the events that concerned her as “history”; because she felt he yelled at her; and because she felt he had made her come to the facility for a live meeting when he could have just told her “no” over the phone. The two-hour September 14, 2006, counseling meeting and the brief meeting sometime after September 20, 2006, during which Mr. Hawkins told Petitioner he was not going to go over her concerns again are the meetings for which Petitioner feels Respondent employer should pay her. Sometime after her meeting with Mr. Hawkins, Petitioner filed a discrimination complaint with the City of Gainesville Office of Equal Opportunity. The date of this complaint is uncertain. However, it had to precede March 9, 2007, because on that date, in response to the city action, and in accord with Respondent’s Human Resources Office’s instructions, Administrator Hamilton wrote Petitioner and provided her with the Respondent’s 1-800 telephone number to report discrimination. Respondent has an anti-discrimination policy and also posts the 1-800 number in its facilities. Petitioner also filed an EEOC discrimination complaint, and the underlying discrimination complaint herein was filed with FCHR on April 5, 2007. Because her FCHR complaint was signed on March 23, 2007, the undersigned takes it that the EEOC complaint was filed at approximately that time. Petitioner has complained that, as a result of her September 20, 2006, letter to corporate headquarters, she was told, either by Ms. Streer or by Mr. Hawkins that she must be evaluated “in a group.” Her testimony on this issue as to who told her this vacillated, and the group rating was not confirmed by any other witness nor by the signatures on the 2006 and 2007 evaluations in evidence. Although Ms. Streer signs-off as the next level of management on evaluations, that action hardly constitutes "group rating." The evidence as a whole provides the overall sense that Petitioner has been, in the vernacular, “prickly” about what she perceives as situations of disparate treatment, none of which were supported by credible evidence in the instant case, and that as a result of Petitioner’s heightened sensitivity, none of Petitioner's on-site superiors want to expose themselves to old or new accusations by her, but the greater weight of the credible evidence is that in 2007, Theresa Volk, Unit Manager of Station One, supervised Petitioner for only two days per week, so Ms. Volk believed that Petitioner's supervisor for the remainder of the week should have input to Petitioner's 2007 evaluation. Ms. Volk’s name and that of Ms. Rema appear on the first page of Petitioner’s 2007 evaluation, but only Ms. Volk signed as her “evaluator” on October 9, 2007. In that 2007, evaluation, Ms. Volk rated Petitioner “exceptional” in “work quality” and “work quantity/productivity,” and “meets expectations" in “customer service,” “compliance & adherence to policies,” “core values,” and “leadership skills.” Under “areas for improvement,” she made a comment about wound care documentation intended for Petitioner’s improvement. After receiving her September 2007, evaluation, which had been signed by Ms. Volk on October 9, 2007, Petitioner suffered no loss in pay, position, or benefits, and, once again, received her annual raise. Petitioner testified that she got her 2007 raise “late” but did not quantify how late. Petitioner wrote Ms. Volk a letter treating Ms. Volk’s evaluation comment for improvement as a criticism related to a particular past incident, and was offended when Ms. Volk refused to stop the work she was doing to read Petitioner’s letter. Respondent has a policy which requires employees to request personal paid time-off 30 days in advance. Petitioner testified that under this system, she properly requested time off for October 20, 2007, and November 3, 2007, but that shortly before those dates, Ms. Streer told her she could have only one date or the other, but if Petitioner wanted to take off both days, Petitioner had to get a replacement for one day. While this much of Petitioner’s testimony is unrefuted, Petitioner was not persuasive that she ever got written approval of the dates, and she did not establish any connection between the denial of two days' leave and either her Hispanic heritage or as retaliation for her prior letter to corporate headquarters or as retaliation for any of her discrimination complaints in March or April 2007. Petitioner presented no evidence that she lost pay, position, promotion or benefits at any time, on the basis of retaliation or her Hispanic heritage. Petitioner testified that she had to go into therapy and pay for medications as a result of the stress that the foregoing incidents have caused her. She presented no corroborative medical testimony or evidence of any professional diagnosis and further presented no medical or pharmaceutical bills to establish any damages therefor.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint of Discrimination and the Petition for Relief. DONE AND ENTERED this 30th day of May, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2007.
The Issue The issue for determination is whether Petitioner was subjected to discrimination in the work environment by Respondent due to Petitioner's gender in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner was employed as a payload operator by Respondent, a fertilizer manufacturer, at the time of her employment termination in August of 1996. Petitioner’s job duties included scooping fertilizer onto the pay loader, or front-end loader, and dropping the fertilizer into a “hopper” for subsequent loading into rail cars. Petitioner was expected, along with other payload operators, to perform other duties, including the cleaning of work areas when she ceased her loading function. During Petitioner's employment, a union contract existed between Respondent and the International Chemical Workers Union of which Petitioner was a member. The union contract governed overtime assignments, pay structure, shift structure, disciplinary/termination procedures and lay-offs, among other things. Respondent paid Petitioner and gave her breaks, contrary to her allegations, in the same manner as other employees. Governed by the union contract during the busy 1995-96 period, Respondent assigned work to employees on many different shifts. The plant operated 24 hours a day, seven days a week. Overtime requirements were based on business necessity. All employees worked the same number of hours regardless of the shift to which they were assigned. Petitioner never formally complained to anyone regarding displeasure with shift assignments. Neither salary nor number of work hours were affected by Petitioner’s assignments to different work shifts. Petitioner and other employees worked the same number of hours. Petitioner took breaks just like other employees. Changes from shift to shift experienced by Petitioner had nothing to do with her gender. The union contract governed how Respondent assigned overtime to its employees. The contract established a procedure that distributed overtime hours evenly and fairly among all of Respondent's employees. Those procedures were adhered to by Respondent and all employees were given overtime opportunities in an equal manner without regard to gender. On one occasion, Petitioner complained about her overtime assignment. She felt that she should have been called into work on a day when another operator (male) was called to come in and work. Respondent had attempted to contact Petitioner at contact numbers provided by Petitioner, without success. Safety equipment was distributed to all employees. Petitioner signed a check list indicating that she had received or knew how to request safety equipment. A pair of boots requested by Petitioner on one occasion had not yet arrived, but did arrive before the conclusion of the business day. The delay in delivery of Petitioner's requested boots to her was not related to her gender. Petitioner complained that adverse comments were made to her on the job by male workers. The alleged comments ranged from women should only do "clean up work" to "if you don't smoke or drink, we don't need you in this department." All of the alleged comments were roundly denied by Petitioner's co-workers at the final hearing. The credibility and candor of the testifying co-workers establishes that the adverse comments were not made. One incident in which Petitioner complained about her work assignment resulted in the general foreman's immediately contacting Respondent's human resource department. A meeting was then held with Petitioner to address the situation. The foreman felt confident that Petitioner would voice any additional concerns if the situation did not change. Petitioner never voiced further concerns to the foreman. Petitioner alleged that she was denied the right of free speech at a meeting attended by her, Respondent representatives, and union representatives. As established at the final hearing, she was told by the union representative to remain quiet and let him do the talking if Respondent representatives made Petitioner angry. However, the union representative did not instruct Petitioner to otherwise remain silent. Under the union contract, Respondent could terminate employees who received three reprimands within a 12-month period. Petitioner was aware of this procedure. Petitioner had numerous instances of work-related misconduct and received more than three reprimands in a 12-month period. Counseled on June 4, 1995, for damaging a payloader, Petitioner received a reprimand on July 18, 1995, for again damaging a payloader. Petitioner was counseled again on August 14, 1995, for failure to communicate with the shipping operator. On October 16, 1995, Petitioner received a second reprimand for poor work performance for mixing discarded product with good product, a violation of Respondent policy. Petitioner received her third reprimand on February 28, 1996, for loading hot fertilizer, a violation of Respondent's policy. The difficulty of loading fertilizer before it cooled was the later removal of the hot product which would harden upon cooling into a concrete-like substance. Petitioner was given a second chance and not fired upon receiving her third reprimand in a 12-month period. Management hoped that Petitioner would seek to improve her work performance. Petitioner refused to help clean the plant on July 10, 1996, and was counseled by her supervisor. On July 25, 1996, she received a verbal warning for failure to report an accident. In August of 1996, Petitioner received her final reprimand for failure to attend a company meeting at the proper time and for again loading hot product. Petitioner's employment was terminated. The various reprimands imposed on Petitioner were from different supervisors at different times. None of the reprimands were based on Petitioner's gender. After a complete review of Petitioner's case, the union representative determined that Respondent had properly terminated her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 12th day of October, 2001, in Tallahassee, Leon County, Florida. DON W. 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 12th day of October, 2001. COPIES FURNISHED: Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Artie Johnson 2672 Northwest 6th Drive Jennings, Florida 32053 Mary L. Wakeman, Esquire McConnaughhay, Duffy, Coonrod, Pope, and Weaver, P.A. Post Office Drawer 229 Tallahassee, Florida 32302-0229 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether a delay of 706 days between the date Respondent entered a stop work order against Petitioner's former business and the date Respondent referred Petitioner's request for hearing to a hearing officer to conduct an informal proceeding pursuant to Subsection 120.57(2), Florida Statutes (2005)(an informal hearing),1 is harmless error within the meaning of Section 120.68.
Findings Of Fact Respondent is the state agency responsible for enforcing the Florida Workers' Compensation Law enacted in Chapter 440. On May 7, 2004, Petitioner was a closely held Florida corporation wholly owned by Mr. Martin Valka. Petitioner was engaged in the construction business as a tile setter. The principal place of business was 5327 Mayfair Court, Cape Coral, Florida. On May 7, 2004, an investigator for Respondent determined that Petitioner was in violation of applicable law and issued a stop work order in accordance with the requirements of Subsection 440.107(1). The stop work order precluded Petitioner from conducting business until the matter was resolved. The stop work order also imposed a penalty equal to 1.5 times the premium Petitioner would have paid for workers' compensation insurance coverage. On May 10, 2004, Respondent issued an Amended Order of Penalty Assessment Number 04-166-D7-1 (Amended Order). The Amended Order assessed Petitioner with a penalty of $4,039.76. Respondent more recently amended the penalty assessment to $3,779.89, which is the assessment at issue in this proceeding. On May 27, 2004, Petitioner filed a written petition requesting an informal hearing. The next day, the investigator's supervisor reviewed the petition, determined it was procedurally deficient, and denied the petition. The investigator informed Petitioner by telephone of the supervisor's determination. However, Respondent did not inform Petitioner that the denial of the petition was without prejudice to file an amended petition correcting the procedural inadequacies, which, of course, were unknown to Petitioner because the denial did not state with particularity the reasons for the denial and did not state a deadline for filing an amended petition. Petitioner requested a written notice of Respondent's determination that the request for hearing was inadequate and the grounds for the determination. Respondent did not respond. Respondent took no further action for approximately 706 days. The stop work order remained in effect. On June 30, 2004, the investigator recorded a note in the investigative file that Petitioner had not paid the fine. The investigator referred the matter to "collections." On May 4, 2006, Respondent referred Petitioner's request for hearing to the director of the Division of Workers' Compensation for assignment of a hearing officer to conduct an informal hearing. Petitioner filed an amended petition in the informal hearing. Respondent moved to dismiss the amended petition, in relevant part, on the ground that the amended petition raised disputed issues of fact not raised in the original petition. The hearing officer conducted an informal hearing based on written submissions. He concluded he had no jurisdiction because of the presence of disputed issues of fact and recommended referral to DOAH. Respondent committed several procedural errors under Chapter 120 (the APA). Respondent failed to issue a written denial of the request for hearing, failed to issue a written denial within 15 days of the date of the request, failed to state with particularity the reasons for the denial, and failed to deny the request for hearing without prejudice, stating a deadline for filing an amended petition to correct any procedural deficiencies.2 The procedural violations were not harmless error. They prejudiced Petitioner and may have affected the fairness of the proceeding. The procedural violations prejudiced Petitioner in several ways. The resulting delays prevented Petitioner from conducting its business for approximately 706 days. Petitioner ceased to exist. The delays denied Petitioner the financial ability to pay the fine at issue in this proceeding. The 706- day stop work order deprived Petitioner of the financial means to retain counsel to represent Petitioner. Mr. Valka obtained employment in a different occupation, but that was inadequate and did not last. Mr. Valka became a "stay-home dad." The delays caused by procedural errors may have impaired the fairness of the proceeding. The delays operated to enforce a stop work order for 706 days with no recourse to Petitioner that complied with relevant due process requirements in the APA. Petitioner's request for hearing, unlike the normal penal proceeding under the APA, did not toll the imposition of an administrative penalty in the form of a stop work order. The request for hearing tolled only that part of the penalty proposed as an assessment of money. The procedural errors resulted in delays that may have impaired Petitioner's ability to cross examine witnesses for Respondent and Respondent's exhibits. The delays may have resulted in the unavailability of witnesses, or at least their ability to recall facts, as well as the unavailability of exhibits Petitioner needed to support a defense. The delay may have impaired discovery.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order dismissing the stop work order and proposed assessment against Petitioner. DONE AND ENTERED this 23rd day of May, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 23rd day of May, 2008.
