The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of sex (sexual harassment), national origin, and retaliation in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Evelyn Martinez is a female and Hispanic of Puerto Rican origin. Ms. Martinez began working at the Boca Diner on May 29, 2000, as a waitress. At all times material hereto, Ms. Martinez was an employee of Boca Diner. Boca Diner does not dispute that it is an employer within the jurisdiction of the Florida Civil Rights Act of 1992, as amended. The hours of operation of Boca Diner were from 6 a.m. to 10 p.m. Boca Diner was open for breakfast, lunch, and dinner. The majority of the persons who were servers at Boca Diner were females; only a few were males. At all times material hereto, even though other waitresses of Hispanic descent were employed by Boca Diner, Ms. Martinez was the only Hispanic waitress of Puerto Rican origin. Ms. Martinez had prior experience as a waitress before beginning her employment with Boca Diner. At Boca Diner, Ms. Martinez worked mostly evening shifts, reporting to work around 3 or 4 p.m. She worked five to six days a week. During the week after July 4, 2000, an employee of Boca Diner by the name of Rick made a remark to Ms. Martinez that she considered sexual. He stated to her that she had nice breasts. Ms. Martinez told Rick not to make the remark again and walked away. No dispute exists that the remark was a sexual remark. Rick was a server but was not a full-time server, only part-time. His usual working hours were around 4-9 p.m. Ms. Martinez reported the incident, regarding the remark by Rick, to Boca Diner's owner and manager, John Pelekanos.1 Mr. Pelekanos indicated to her that all the other waitresses tolerated such remarks from Rick and that she should also. Ms. Martinez stated to Mr. Pelekanos that she was not going to "take" such remarks from Rick. No evidence was presented to show that Boca Diner had a sexual harassment policy. Rick made no further sexual remarks to Ms. Martinez after she reported him to Mr. Pelekanos. After reporting the incident to Mr. Pelekanos, Ms. Martinez's working schedule changed. Instead of working five to six days a week, she now worked two days.2 However, Ms. Martinez was able to obtain two additional days from other workers by them agreeing for her to work their days. Boca Diner contends that Ms. Martinez's workdays were reduced because of the slowness of business in the summer; however, Boca Diner only reduced her workdays. The undersigned considers it reasonable to reduce the number of working hours of waitresses due to a slowness of business, but considers it unreasonable to reduce the workdays of only one waitress, i.e., Ms. Martinez, by three to four days, but none of the other waitresses, because of the slowness of business. Before reporting the remark by Rick, Ms. Martinez felt harassed by and hostility from the other waitresses. The other waitresses "hassled" her for not properly performing the "side work," which consisted of setting-up the salad bar, and filling bottles of mayonnaise, ketchup, etc. After Ms. Martinez reported the remark by Rick, the hassling escalated. Additionally, Rick began to constantly tell Ms. Martinez to quickly do her work. Ms. Martinez did not inform the floor manager, Alex Lazarus, how the other waitresses or Rick were hassling her. She did not approach Mr. Lazarus because she considered him to be verbally abusive to her and other employees. Additionally, after Ms. Martinez reported the remark by Rick, on July 15, 2000, she was assigned to a different serving section at Boca Diner. Her new serving section was section one, which was the number one section and the busiest and most demanding section at Boca Diner.3 When she placed her orders, the orders were completed late. As a result, customers were complaining. Boca Diner contends that customers were complaining about Ms. Martinez before she was moved to section one. It is not reasonable to move a waitress, about whom customers are already complaining, to a busier and more demanding section of the restaurant. At the end of her shift on July 15, 2000, she was fired by the floor manager, Alex Lazarus. No dispute exists that Mr. Lazarus had the authority to fire Ms. Martinez. Mr. Pelekanos was not in the country when Ms. Martinez was fired. No dispute was presented that Boca Diner does have the right to fire waitresses or waiters who are not performing adequately or who are performing poorly. No evidence was presented as to whether Boca Diner had employed other Hispanic waitresses of Puerto Rican origin prior to Ms. Martinez's employment. No evidence was presented as to whether Boca Diner had fired other waitresses and, if so, for what reason(s). As to Ms. Martinez's income while she worked at Boca Diner, no time records were provided by Boca Diner. Boca Diner failed to retain her time records. Further, Boca Diner had no documentation regarding Ms. Martinez's employment with it. Boca Diner gave no reasonable explanation for its failure to retain time records or other documentation regarding Ms. Martinez's employment with it. Boca Diner did not provide any testimony regarding monetary remuneration to Ms. Martinez for being a waitress at Boca Diner. Ms. Martinez did not provide any pay records or federal income tax returns regarding her employment with Boca Diner. However, she did provide a handwritten statement showing her income at Boca Diner for the time that she worked at Boca Diner4 and gave testimony regarding her income at Boca Diner subsequent to her termination. Her testimony is found to be credible. At the time Ms. Martinez was employed at Boca Diner, her base pay was $40.00 every two weeks, resulting in her base pay being $80.00 per month. Ms. Martinez handwritten document indicated that she received $300.00 from May 29 through June 4, 2000; $325.00 from June 5 through 11, 2000; $325.00 from June 12 through 18, 2000; $325.00 from June 19 through 25, 2000; $300.00 from June 26 through July 2, 2000; $250.00 from July 3 through 9, 2000; and $225.00 from July 10 through 15, 2000; totaling seven weeks and $2,050.00. The evidence did not demonstrate whether the base pay was included in her income. An inference is drawn that Ms. Martinez's total income at Boca Diner included the base pay of $40.00 every two weeks or $80.00 per month. Ms. Martinez testified that she received $1,275.00 in tips for a month. Reducing her four-week income by her base pay indicates that she received $1,195.00 in tips for the four-week period: May 29 through June 4, 2000, at $280.00 in tips; June 5 through 11, 2000, at $305.00 in tips; June 12 through 18, 2000, at $305.00 in tips; June 19 through 25, 2000, at $305.00 in tips. Reducing the remaining three-week period by her base pay indicates that she received $715.00 in tips for the three-week period: June 26 through July 2, 2000, at $280.00 in tips; July 3 through 9, 2000, at $230.00 in tips; and July 10 through 15, 2000, at $205.00 in tips. As a result, the total amount of tips that Ms. Martinez received for the time period that she was employed at Boca Diner totaled $1,910.00. Consequently, it is reasonable and an inference is drawn that she received $1,910.00 in tips for the seven-week period. After her termination, Ms. Martinez borrowed money in July and August 2000 from family to pay her monthly obligations, which included rent, food, gas, insurance, and incidentals. She estimates that she borrowed from $600.00 to $800.00. After her termination, Ms. Martinez was hired on August 26, 2000, as "counter-help" at a dry cleaners. She was paid $6.00 an hour and worked less than 30 hours a week. Ms. Martinez worked for two weeks at the dry cleaners. An inference is drawn that Ms. Martinez's income was $348.00, using 29 hours a week at $6.00 an hour. Afterwards Ms. Martinez was hired part-time as a waitress at a restaurant. She received $100.00 per week, including tips. Ms. Martinez worked at the restaurant for three weeks. An inference is drawn that Ms. Martinez's income was $300.00, using $100.00 per week for three weeks. Ms. Martinez was subsequently hired as a waitress at another restaurant. She received $50.00 per week, including tips. Ms. Martinez worked at the restaurant for two weeks. An inference is drawn that Ms. Martinez's income was $100.00, using $50.00 per week for two weeks. On October 26, 2000, Ms. Martinez began working at RTA Catering, a restaurant. She was receiving $2,000.00 per month. According to Ms. Martinez, at that time, her income was comparable or equal to her income at Boca Diner and she saw no need to go further into her employment history. After her termination and prior to receiving employment at RTA, Ms. Martinez' income was $748.00. The total number of weeks from July 15, 2000, the date of Ms. Martinez's termination, to October 26, 2000, the date of her comparable employment, is 15 weeks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order: Finding that Boca Diner discriminated against Evelyn Martinez on the basis of retaliation. Ordering Boca Diner to cease the discriminatory practice. Ordering Boca Diner to pay Evelyn Martinez back pay in the amount of $4,033.25. DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 October, 2003.
Findings Of Fact Petitioner Edward Lindsey was continuously employed by Respondent White Auto Parts between 1952 and 1989 (37 years). He was 64 years old at the time of his separation from White Auto Parts. White Auto Parts is a family-owned corporation for wholesale and retail auto parts sales. At all times material, it had eight stores and a warehouse operation in and around Gainesville, Florida. Retail sales are made over the respective store counters, and outside salesmen and inside salesmen handle wholesale sales. Inside salesmen stay at a desk in a specific assigned store and conduct most of their sales by telephone. William Thomas Hawkins, M.D., is Chairman of the Board and President of White Auto Parts. Dr. Hawkins is involved in the policy decisions affecting the management of the corporation, but is not generally involved in day-to-day business operations, including personnel matters. However, during substantially the whole of his leadership, Dr. Hawkins has urged day-to-day management personnel to hire college educated persons and/or enthusiastic and aggressive people. Usually, in connection with these urgings, Dr. Hawkins has referred to these recruits as "young," "college-educated," "new blood," or the equivalent. Despite occasional comments on individual employees being "old" or "slow," there is no evidence of a concerted effort by Dr. Hawkins to terminate or force early retirement on all employees 55, 60, or 65, or any other age for any reason, including replacement by younger, aggressive personnel. Petitioner Lindsey was initially employed in the shipping department, then worked at the counter. For the last 25 years he was employed as an outside sales person, a position he truly enjoyed. Petitioner's duties as an outside sales person included calls on independent accounts (garages, car dealers, and persons in the automotive business) to make presentations of stock, as well as to handle refunds and credits on defective returns and cores. He was also expected to develop new accounts. Outside salesmanship involved local travel by company car, getting in and out of the car many times a day, lifting heavy parts, and significant paperwork. By all accounts, it was significantly strenuous, physically. In the early years of his employment as an outside sales person, Petitioner was compensated on a commission basis, but that was gradually changed after Joe Nave became general manager of the company. At all times material, Joe Nave was general manager of White Auto Parts, with responsibility for managing day-to-day operations and for hiring and firing personnel. Seven years before Petitioner's separation, Mr. Nave intended to replace Petitioner with a younger, more aggressive person because of Dr. Hawkins' directions to seek such people out and because he was dissatisfied with Petitioner's sales performance. However, Petitioner improved his performance on the road and complied with Mr. Nave's sales policy, and thereafter Mr. Nave had no further cause to speak on the subject to Petitioner again. The situation at that time had been either based on personality problems between the two men or upon Petitioner's work performance, but not upon Petitioner's age per se, and the problem was cleared up at that time. Approximately one year before his separation, Petitioner was called in and by agreement was put on a straight salary of $370.00 per week. Later, Mr. Nave sought to reduce that amount, but Petitioner refused to accept the reduction. Nothing more was said thereafter about this request of Mr. Nave, and there is no evidence in the record to explain why the request was ever made. On the whole, Petitioner and Joe Nave had a less than cordial business relationship over the whole of their association. Mr. Nave was, by all accounts, a "hyper" or choleric personality with an aggressive, if not downright belligerent, managerial style. Very simply, Mr. Nave wanted to know where all his employees were all the time, and he yelled and "cussed" a lot over every little thing. Petitioner found his superior's use of swear words particularly unappealing and inferred that the cussing was directed at him, even if Mr. Nave actually intended it toward other persons or inanimate objects. On September 6, 1989, Petitioner had surgery for prostate cancer. He was hospitalized for approximately ten days. Petitioner received a call from Mr. Nave after he got out of the hospital. At that time, Mr. Nave told Petitioner that his vacation and sick leave had been used up and his paychecks would stop, according to company policy. Petitioner knew that company policy was exactly what Mr. Nave had represented, but he anticipated trouble which was never threatened. Petitioner thought: So then I got to thinking, once before Mr. Nave had asked me, when I was sick prior years back from that, now, this was a different time . . . and he wanted to know if the doctor released me, and I said, "No sir. He will not release me for another week." And he went out of the office saying, well, he's going to get him another guy to replace me then, which it didn't take place, of course. So then I got to thinking about this thing. He called me, reminding me about my vacation time, and I guess at that time I was thinking, well, maybe he's going to pull one and replace me, so -- (TR-16) Petitioner returned to work on Monday in the second week of October 1989. At the time, he was still wearing a catheter and two drain tubes in each side. Despite Petitioner's suspicions and despite Mr. Nave's phone call, the Respondent employer kept Petitioner on at full salary until he came back to work. After being at work one week, Petitioner felt he had "over done it." On the following Monday, he told Joe Nave that he was going to try to work a few more days, but then might need some more time to recuperate. The following Thursday, Petitioner attempted to speak with Mr. Nave regarding feeling too ill to continue any further that day, but was unable to do so because when Petitioner finished his paperwork, Mr. Nave had already left. Petitioner left the keys to the company car on Mr. Nave's desk and told Arnold Reed, the purchasing agent, that he was going to have to go home. Mr. Reed noticed that Petitioner was not looking well and offered to take him home, but Petitioner called his wife, who came and got him. On Friday, Petitioner did not report for work or call in to Respondent. That day, he traveled to South Carolina with his son-in-law. Petitioner did not return to work the next Monday. That day, Arnold Reed told Joe Nave that Petitioner had had to go home Thursday. After Mr. Nave expressed his shock that Petitioner had not talked to him personally, Mr. Reed explained to Mr. Nave that it was obvious that Petitioner had been ill. Respondent presented no proof that it had a published personnel policy requiring Petitioner to remain on the premises, despite the circumstances, until he could be excused by Mr. Nave personally. That same Monday, Joe Nave called Petitioner's home and left word for Petitioner to return his call. Several days later, Petitioner's wife, Jean Lindsey, contacted Joe Nave to explain Petitioner's reasons for his absence. The tone and content of their conversation are disputed. Among other matters, Mrs. Lindsey testified that Mr. Nave informed her that Petitioner no longer had a job at White Auto Parts and was verbally abusive about Petitioner's absence and trip to South Carolina. Mr. Nave testified that he did not terminate Petitioner but only reiterated that Mrs. Lindsey should have Petitioner see Mr. Nave as soon as he returned home. Despite the foregoing contradictions, the two witnesses concur that Mr. Nave did, in fact, also tell Mrs. Lindsey that he had already given the company car and the accounts assigned to Petitioner to someone else. It was from this comment, made in the "heat of battle" as it were, that Mrs. Lindsey reasonably inferred that Mr. Nave had hired a replacement for, or had transferred another employee into, Petitioner's outside salesman position. 1/ However, somewhat contradictorily, Mrs. Lindsey also testified that although Mr. Nave had stated that Petitioner could come in and work on a part-time basis, she still concluded that Petitioner had been fired outright. Visibly upset, she exited the store where she had spoken on the telephone with Mr. Nave and told Howard Newsome, a long time employee, that Mr. Nave had fired Petitioner. As a result of her contact with Mr. Nave, Mrs. Lindsey called Dr. Hawkins, president of the corporation, to discuss Petitioner's job. She advised Dr. Hawkins during their telephone conversation that Petitioner was very ill, that he had not done well post-surgery, that he needed time off, that he had left the previous week to go to South Carolina to rest and recuperate, that previously he had come back to work with a catheter and two drains in him, and that he just was not up to coming back to work. She also told him Petitioner had been discharged for not coming to work. At that point, Dr. Hawkins directed Mrs. Lindsey to have Petitioner contact him upon his return so that a meeting could be set up to hear both sides and work out the situation. Upon returning from South Carolina on Saturday, Petitioner was informed by his wife that he had been fired from his job at White Auto Parts by Joe Nave, but she also told him about Dr. Hawkins' message. Petitioner phoned Dr. Hawkins as requested who offered to "iron things out." Dr. Hawkins set up a meeting among himself, Joe Nave, Petitioner Lindsey, and Mrs. Lindsey. At the meeting, Dr. Hawkins assumed Petitioner was still wearing the drain and catheter Mrs. Lindsey had described to him. He did not inquire about them and so he did not know they had been removed sometime before the meeting, which took place on October 31, 1989. The only persons present for the entire meeting were Petitioner, his wife, and Dr. Hawkins. Also present at the beginning of the meeting was Joe Nave, and at the very end of the meeting, Sherry Deist. At the beginning of the meeting, Dr. Hawkins had Petitioner's sales reports in front of him because he and Joe Nave had just gone over Petitioner's entire record and agreed on what they could offer Petitioner to resolve the situation. Dr. Hawkins perceived the situation to be that Petitioner was a long- time employee, not yet released from post-surgery medical care, who had come back to full-time employment too soon to be able to do the strenuous work of full-time outside salesman and who was afraid of losing his job because he had not and could not report in to do it. Petitioner and Mrs. Lindsey perceived the problem as Petitioner already having been unjustly terminated from his outside salesman job and that reinstatement to that position was the only result that would satisfy them. Because the sales reports were in front of Dr. Hawkins at the beginning of their meeting, Petitioner became defensive, since, by his perception, for years he had never been told that his work was unsatisfactory or inadequate nor had he received any documentation to that effect. 2/ Despite obvious biases, Petitioner's description of this part of the meeting is the most credible of the several conflicting versions, and it is found that Dr. Hawkins did make comments about sales being down, about Petitioner slowing down, about Petitioner being unable to continue in outside sales work, and about Petitioner being "burned out" physically. Nonetheless, Dr. Hawkins offered Petitioner the opportunity to return to work at the less strenuous position of inside salesman. 3/ There is conflict in the testimony as to whether or not Dr. Hawkins ever clearly stated that Petitioner had never been terminated, but it is most probable from the circumstances that this was never specifically stated. There is also conflict in the testimony as to whether or not Dr. Hawkins ever clearly stated that he would pay Petitioner half pay until he could return to work, would pay Petitioner part-time wages for part-time work as an inside salesman until he could work full-time, and would pay Petitioner full-time pay as an inside salesman indefinitely. The evidence is also unclear as to whether or not the inside salesman Petitioner would replace was making $370.00 per week or slightly less. Consequently, it is possible and even reasonable that Petitioner could have inferred from Dr. Hawkins' offer that even as a full-time inside salesman, Petitioner would not make exactly the same pay rate as he had been making as a full-time outside salesman. However, it is clear and undisputed that even if Dr. Hawkins was noncommittal in response to Petitioner's pleas to keep his outside job, Dr. Hawkins did offer Petitioner a less strenuous but substantially comparable inside job, which Petitioner rejected. Petitioner concedes that neither Mr. Nave nor Dr. Hawkins ever stated that he had been or was being terminated. Petitioner's primary reason for rejecting the inside salesman's job was that the desk he would work from as an inside salesman was located in the same office with Joe Nave's desk. Petitioner, his wife, and Joe Nave all agree that Petitioner rejected the inside job regardless of any beliefs Petitioner held about what salary was involved and regardless of whether it was a part-time or full-time job, purely because the inside salesman job offer was not a return to his same outside sales job and because he refused to share an office with Joe Nave, the superior he believed had fired him. At that point, Petitioner's refusal of the inside sales job, Petitioner's wife's insistence that Joe Nave had already fired Petitioner, and Joe Nave's response became so loud, adamant, and vitriolic that Dr. Hawkins tried to calm the situation down by asking Joe Nave to leave the meeting and the room. After Joe Nave left, the meeting among Petitioner, his wife, and Dr. Hawkins continued in only a slightly calmer atmosphere. Petitioner never specifically told Dr. Hawkins he was able to return to his outside sales job that day. According to Petitioner's testimony at formal hearing, at the time of the meeting on October 31, 1989, he felt that he could have resumed his duties, but that he could not have daily serviced his usual number of accounts. At the meeting, Dr. Hawkins remained under the mistaken impression that Petitioner was still wearing the drains and catheter. Therefore, Dr. Hawkins still would not make any statement binding the Respondent corporation to return Petitioner to his outside salesman job. Dr. Hawkins asked Petitioner whether he had been released by his treating physician. Petitioner told Dr. Hawkins that he still needed to see his doctor on November 10. 4/ Dr. Hawkins told Petitioner they would meet after November 10 to "iron out" the situation. Dr. Hawkins called in the corporate comptroller, Sherry Deist, and instructed her to pay Petitioner half pay until November 10. There is no evidence that Respondent had any policy or employee plan that would have provided Petitioner with any pay at all after his vacation and sick leave was used up. Even though Petitioner's vacation and sick leave had run out, Respondent had actually paid Petitioner full pay until he returned to work. 5/ Respondent also paid Petitioner full pay while he tried to work for approximately 10 days before he was "done in" and went home to recuperate. Respondent continued to pay Petitioner full pay while he was in South Carolina and for the few interim days up until the October 31 meeting. From October 31 until November 10, 1989, Respondent paid Petitioner half salary. Dr. Hawkins anticipated hearing from Petitioner on or about November 10, 1989 as to whether or not he had been released by his doctor. Dr. Hawkins had planned to set up a new meeting to work out Petitioner's job status at that time, but Petitioner never called Dr. Hawkins to set up such a meeting. At Dr. Hawkins' request, Sherry Deist called Petitioner on or about November 10, 1989 to ask if he had called Dr. Hawkins. Petitioner told her that he had not called Dr. Hawkins and that it was Dr. Hawkins' duty to set up a new meeting. Ms. Deist offered Petitioner Dr. Hawkins' phone number, but Petitioner said he had it. Sherry Deist relayed this information to Dr. Hawkins. It is Respondent's policy that unless an employee personally asks to have a check mailed, he must pick it up personally. At Ms. Deist's request, Petitioner came in to see her to pick up his check covering the November 10 date. Dr. Hawkins could have initiated a phone call or set up another job status meeting at that point, but he deliberately did not. Based upon gossip that Petitioner had never been released by his doctor, was seeking employment elsewhere, and/or was hiring a lawyer to fight his termination, none of which conflicting hearsay statements were ever established to be true, Dr. Hawkins did not initiate any further direct contact between himself and Petitioner and told Sherry Deist to keep good notes whenever she talked to him. Up to this point, Respondent had treated Petitioner in every way as if he were still employed. Dr. Hawkins' open-ended offer of another meeting to "iron out" the situation made it unreasonable of Petitioner to continue to insist that he had been terminated by Joe Nave and refuse to contact Dr. Hawkins. Also, it was reasonable, on the basis of his past experience in the Respondent's employ, for Petitioner to know, regardless of the confusion, that the burden was on him to make clear to his employer, probably through a written medical release, that he was medically able to resume his duties. 6/ Sherry Deist then phoned Petitioner, pursuant to COBRA, to inquire whether Petitioner wished to continue his group medical insurance. When he replied affirmatively, she told Petitioner he could mail Respondent a check. No evidence was presented to show that COBRA requires offering this insurance option only if Petitioner were terminated or if the employer would also have had to offer it upon Petitioner's retirement. Later, Ms. Deist called Petitioner and asked him to fill out his retirement papers. Although Petitioner told Ms. Deist that he had not retired, but had been terminated, he also requested her to fill out the retirement papers for him. He signed them in January 1990. Prior to his surgery, Petitioner was 64 years old, and the other outside salesman, Ed Girton, was 58. Mr. Girton left Respondent's employ for another job in August 1989, a month before Petitioner's surgery. Shortly prior to the time Petitioner had surgery, Respondent offered an outside sales job to Mike Monaghman, age 35. Mr. Monaghman did not accept the offer. There is no clear evidence which outside sales position was being offered to Mr. Monaghman, but it is most probable that it was the one previously held by Mr. Girton. Eventually, Rick Thames, age 36-37 took that position. Rick Thames was not hired from outside but previously had been a counter man for Respondent. He lasted only eight months on the outside and requested to return to counter work. Petitioner's position was not covered by anyone for the first two weeks he was out sick. From approximately the time of Joe Nave's acrimonious phone conversation with Mrs. Lindsey, wherein he told her he had given Petitioner's accounts and car to someone else, until May 1990, Petitioner's accounts were covered by Burt Oliver, 66 years old, who already worked for Respondent in parts management only three days a week to supplement his Social Security retirement income. When Mr. Oliver could no longer cover the accounts in three days, he returned to inside employment in parts work and his outside accounts were given to a younger man, Mark Roberts, who was 32 years old. Mark Roberts was hired from outside, but the record is unclear as to precisely when. Since 1989, both outside sales positions have been filled by a succession of people at various times and the territories were reorganized at approximately the time Burt Oliver returned to inside employment. Eventually, the persons placed in outside sales were Mark Roberts, 32, Phil Snyder, a man in his 50's, and Wayne Butler, age 40. Respondent's car formerly used by Petitioner in outside sales was used by Burt Oliver and by just about every other White Auto Parts employee on a haphazard basis until it was sent for repair. The Respondent currently employs at least 20 people over the age of The Respondent currently employs, and consistently has employed, many employees over the age of 60, but most of these work/worked only part-time to supplement their Social Security retirement income. There are currently two full-time employees over sixty. One is approximately 70 years old and was hired after Joe Nave left the Respondent for other employment. Petitioner has remained under a physician's care on a three-months- return-visit basis.
Recommendation Upon the foregoing findings of fact and conclusions of law it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition and denying the prayed-for relief. RECOMMENDED this 25th day of November, 1991 in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1991. 1/ See
Findings Of Fact Petitioner was employed as a part-time store clerk from January 11, 1983 until January 14, 1986 at Respondent's 7-Eleven Store No. 1413-25564 located at 2990-16th Street, North, St. Petersburg, Florida. Respondent is an employer within the terms of the Human Rights Act of 1977, Chapter 760, Florida Statutes. Upon employment by Respondent, employees must sign an Awareness Form which provides, in pertinent part, that "consumption or possession of alcoholic beverages or illegal drugs while on company property (this includes the parking lot and rear of the store)" is grounds for dismissal. Petitioner signed this Awareness Form, and thereby acknowledged having been informed of Respondent's disciplinary policies set forth on said form. On December 25, 1985, at approximately 1:15 a.m. Petitioner and coworker Debbie Meany consumed one bottle of champagne in 7-Eleven Store 1413- 25564 after closing-up the store at 1:00 a.m. Meany had purchased the champagne during their shift on the evening of December 24, and then drank it with Petitioner "because it was Christmas Eve." Meany testified that she became drunk while she and Petitioner drank the bottle of champagne. Petitioner's testimony at hearing that the champagne he drank with Meany was nonalcoholic is specifically rejected based upon Meany's testimony, the fact that nonalcoholic champagne was not sold in this 7-Eleven store at the time, and the fact that he referred to the champagne as "booze" in a letter written to Fred Nichols, Respondent's personnel manager, on January 10, 1986. Meany was fired along with Petitioner for consumption of alcoholic beverages on the premises, and has no apparent motive to be untruthful in her contention that the champagne was alcoholic. Due to an audit of 7-Eleven Store 1413-25564 which revealed a merchandise shortage of approximately $1300, polygraphs were ordered for all store employees. Meany's polygraph was on January 6, 1986, and it was during her examination by Robert Rathbun that she admitted to consuming the bottle of champagne with Petitioner. She signed a statement, which she confirmed at hearing, indicating Petitioner opened the bottle, and they drank the champagne together. Petitioner was polygraphed on January 10, 1986, after executing a consent form, and during the course of his examination, he showed deception in his answers to questions about the use of alcohol on the job. When he was confronted with this indication of deception and with Meany's statement, he admitted to drinking champagne with Meany in 7-Eleven Store 1413- 25564 after they had closed at 1:00 a.m. on December 25, 1987. Thereafter, Petitioner met with Mike McKenzie, field manager, and Larry Good, district manager, on January 13, 1986 to discuss the results of the polygraph. McKenzie and Good also met with Meany. Petitioner was terminated on January 14, 1986 for consumption of an alcoholic beverage in the 7-Eleven store at which he worked. Petitioner did not disclose any handicap or physical condition which would prevent him from performing the job of store clerk on his initial application for employment, or on an application he completed and submitted to Respondent on May 27, 1986, subsequent to his termination. There is no evidence that Petitioner ever informed McKenzie or Good of his handicap. However, Petitioner's immediate supervisors Watley and Egge, store managers, did know of his handicap, and did not require him to "front shelves." This is a normal part of a store clerk's duties by which merchandise is brought forward to the front of a shelf to take the place of products that have been purchased. It has been established that Petitioner is physically handicapped due to the injury of both his knees while in the Army. He was discharged from the Army due to his disability. This handicap makes it very difficult for him to bend down, and therefore the accommodation which Watley and Egge provided was reasonable and appropriate under the circumstances. Respondent does hold Christmas parties at which alcoholic beverages are consumed in its district office. However, the district office is a separate office building and there is no 7-Eleven store located at said office. Since the district office is not a store licensed to sell alcoholic beverages, the consumption of alcohol at that location is not a violation of Respondent's policy about the consumption of alcohol set forth on the Awareness Form. A review of Petitioner's personnel file indicates prior warnings for writing bad checks, and making unacceptable advances on a female coworker.
Recommendation Based on the foregoing, it is recommended that a Final Order be issued by the Florida Commission on Human Relations dismissing Petitioner's charge of discrimination against Respondent. DONE and ENTERED this 10th day of March, 1988, in Tallahassee, Florida. DONALD D. CONN 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 10th day of March, 1988. APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 9. Rejected as not based on competent substantial evidence. Rejected as irrelevant, unnecessary and as simply a summation of testimony which is not persuasive. Rejected in Findings of Fact 4, 6, 7 and 12. Rejected in Finding of Fact 4. Rejected as irrelevant. Rejected in Finding of Fact 4. Rejected as not based on competent substantial evidence. Rejected in Findings of Fact 5 and 6. Rejected in Finding of Fact 6. Rejected in Finding of Fact 12. Rejected as not based on competent substantial evidence. Rulings on Respondent's Proposed Findings of Fact: Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 1. 3-5. Adopted in Finding of Fact 3. 6-7. Adopted in Finding of Fact 4. 8-10. Adopted in Finding of Fact 5. 11-13. Adopted in Findings of Fact 4 and 6. 14-15. Adopted in Findings of Fact 4 and 7. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 4. 18-19. Rejected as unnecessary. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. 22-24. Adopted in Finding of Fact 8. 25. Adopted in Findings of Fact 7 and 8. COPIES FURNISHED: WINSTON S. MCCLINTOCK 475 - 41ST AVENUE, NORTH ST. PETERSBURG, FLORIDA 33703 E. JOHN DINKEL, ESQUIRE POST OFFICE BOX 1531 TAMPA, FLORIDA 33601 DONALD A. GRIFFIN EXECUTIVE DIRECTOR FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BLDG. F, SUITE 240 TALLAHASSEE, FLORIDA 32399-1925 SHERRY B. RICE, CLERK HUMAN RELATIONS COMMISSION 325 JOHN KNOX ROAD BLDG. F, SUITE 240 TALLAHASSEE, FLORIDA 32399-1925
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 herein is whether petitioner was unlawfully terminated from her employment with respondent because of race. Based upon all the evidence herein the following findings of fact are determined:
Findings Of Fact Petitioner, Ruby McKenzie, is a black female who was first employed by respondent, Bach Engineering, Inc. (Bach), on June 14, 1982, in the position of electronics assembler. She initially held a temporary position but was later placed in a permanent position in March, 1993. At the time of her termination on February 17, 1984, she was earning $4.82 per hour. Bach, which is located in Altamonte Springs, Florida, is a manufacturer of radio systems, components and parts for the airline industry. As such, it requires that workers have some degree of skill and precision. The business employs some 55 to 50 persons, of whom perhaps a dozen are black, and is functionalized into departments (e.g., quality control, repair, final assembly and stockroom). All departments are under the control of a supervisor. During much of her employment with Bach, McKenzie's supervisor was Ida Metzer, who was responsible for most of her performance evaluations and criticisms. However, Metzer was killed in an automobile accident in late 1984. At the time of her discharge, McKenzie was in the repair department where her supervisor was Karen Miller, a white female. Bach's personnel policies regarding attendance and tardiness are set forth in a document entitled "Personnel Manual." Although its president, Michael Bach, claimed that this document is disseminated to all employees, there was evidence that this was not true. Nonetheless, all employees including McKenzie, had the "understanding" that if they were going to be absent or late for work (which began at 7:00 a.m. each day Monday through Friday), they were to call their department supervisor before the beginning of the work day. This was generally consistent with the instructions in the personnel manual. Under company "policy", an employee with "excessive" absenteeism or tardiness is first given a verbal warning, then a written warning, and is then subject to termination. McKenzie understood that even after a verbal and written warning had been given, she would then be placed on probation for a 50 or 90 day period rather than being terminated. However, Michael Bach said his policy was that once a verbal warning is given, the employee is automatically placed on probation for "around" 90 days. In all cases, he stated that a verbal and written warning is given prior to an employee being discharged. Bach hires both temporary (part-time) and permanent employees. The temporary employees are generally supplied by a local agency that provides this type of employee. The rules regarding absenteeism and tardiness apply to both temporary and permanent employees, although Michael Bach stated that mode leeway is given temporary employees when enforcing the rules. McKenzie worked in various departments within the firm. She was described by Michael Bach and the operations manager as being capable of doing a food job, but did so only when she enjoyed the job she was performing. If she did not like her job, her work was described as being less than satisfactory. Nonetheless, she received at least a satisfactory rating for each six month period she worked at Bach, the last being for the period July 5, 1983 through January 5, 1984, or approximately six weeks before being discharged. Bach stated that even though McKenzie received a satisfactory rating, these evaluations were not always accurate, because if less than satisfactory ratings were given, it would tend to discourage a worker from performing satisfactorily during the next six months period. Despite the satisfactory performance evaluation, McKenzie's most recent performance on the job was characterized as "very poor" by the operations manager. She was also criticized for poor workmanship on the "boards," did not wear glasses as required by her job, and was slower than counterparts in performing her work duties. This was confirmed by a coworker (black) who stated that she worked twice as many boards each day as did McKenzie, and frequently had to do "rework" on McKenzie's errors. Bach gives each worker five days sick leave and five days vacation time annually. Employees are expected to use their vacation time during July of each year when the plant is shut down. McKenzie was absent from work or tardy a total of 100 hours during 1983, or more than her allotted amount of sick and annual leave, and 19.5 hours the first month and a half in 1984. In 1983, she received a verbal warning for her absenteeism and tardiness on March 31 and October 12, and a written warning concerning the same on April 19, 1983. She was again given a verbal warning on February 15, 1984. The next day she was discharged for "absenteeism, inconsistent (sic) in quality and quantity of work." Her termination prompted the instant proceeding. McKenzie's dismissal was ordered by Michael Bach after McKenzie's immediate supervisor (Karen Miller) complained to the operations manager (Sonja Schultz) about McKenzie's continued tardiness, absences and poor work. Indeed, most recently, she had been late on February 10 and 13, and simply left a message on February 15 that she "wasn't coming in." The termination notice reflected that the "employee was warned on several occasions about attendance and workmanship, failure to do acceptable jobs in areas required", and that she was ineligible for reemployment "due to attendance and workmanship." To substantiate her complaint, McKenzie points to two white female employees, Debbie Price and Connie McIntosh, both temporary employees, who had more absences than her when she was fired, but were allegedly not terminated by Bach. Mclntosh was absent 50.5 hours from October 13, 1983 through the end of the year, and 85.5 hours from January 1 through March 9, 1984 when she was laid off because of a production slowdown. However, more than half of Mclntosh's absences were due to her child's illness. She was given a verbal warning concerning her attendance on February 15, 1984, or just prior to being laid off. The other employee (Price) requested a change to a permanent status in her job, but was turned down because of poor attendance. Because of this, she quit her job on February 17, 1984, the same day McKenzie was discharged. A third employee, also a white female was fired on March 10, 1984, for excessive absenteeism after receiving two verbal warnings and two written warnings between September, 1953 and February, 1984. In the latter case, the employee had been absent 114 hours in 1983 and 90 hours in 1984 prior to her termination. Bach has been in operation for some five years. Its president has a policy of treating all employers equally, and claims its hiring and firing policies apply equally across the board to all employees regardless of race or sex. A number of employees (all black) confirmed this and denied the existence of any discriminatory practices employed by the company. Indeed, McKenzie herself could not identify any such practices, and merely "guessed" that the reason she was fired was because she was black. After being terminated by Bach, McKenzie was unemployed for approximately six weeks. She then obtained a job with Sonitrol Electronics Corporation at an hourly wage of $4.00, or .82 cents less an hour than she earned at Bach. She has been employed continuously with Sonitrol since obtaining that job. In this proceeding, she asks for the difference between her present salary and the salary she received at Bach, the loss of wages while she was unemployed, and reasonable attorney's fees and costs for prosecuting this complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that petitioner's petition for relief be GRANTED, that respondent be found guilty of unlawful employment practice, and that petitioner receive the relief set forth in paragraph 5 of the conclusions of law portion of this order. DONE and ORDERED this 8th day of May, 1985, in Tallahassee, Florida. Hearings Hearings DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 8th day of May, 1985. COPIES FURNISHED: Harry L. Lamb, Jr., Esquire 521 N. Fern Creek Avenue Orlando, Florida 32803 Mr. Michael C. Bach 654 N. Douglas Avenue Altamonte Springs, Florida 32301 Aurelio Durana, Esquire 325 John Knox Road, Ste. 240, Bldg. F Tallahassee, Florida 32303
The Issue The issue for consideration in this case is whether Petitioner was discriminated against in employment by Respondent because of his race or gender.
Findings Of Fact Petitioner, Brian Poole, started work for the Respondent, Manatee Association for Retarded Citizens (MARC) on September 7, 1993. He was employed as a habilitation assistant and earned $5.48 per hour. As a rehabilitation assistant, his job was to help with clients who were retarded workers employed by MARC. These workers needed supervision at all times. A part of his job was to write case notes about the workers, and these notes were reviewed by Laurie Mayberry, the Department of Heath and Rehabilitative Services liaison. Petitioner’s immediate supervisor at the time was James Disbro, with whom he did not get along very well. He claims that in October 1994, after he had been employed at MARC for over a year, and had already received one raise to $6.01 an hour and was expecting another to $6.73 an hour, he was interviewed by Disbro who went over his performance with him to determine if he would get the raise or not. During the interview, Petitioner claims, Disbro said he felt Petitioner did not deserve a raise, but Petitioner took the matter to John Schwartz, the MARC Chief Executive Officer, who reversed Disbro’s decision to deny Petitioner the raise. As they left Schwartz’ office, however, Dosbro reportedly told Petitioner that so long as he, Disbro, was there, Petitioner would not get a promotion. In November 1994, Petitioner received another evaluation to decide how large his raise would be. It ultimately was determined he should be raised by $45.00 per month. In December 1994, just before Christmas, a job opening was announced, for which Petitioner applied. A co-worker, Ms. Bradford, also applied for the job and she was interviewed first. Petitioner was then interviewed as well, but Ms. Bradford was given the position because, Petitioner was told, she was more qualified than he was. What bothers Petitioner about the situation is that while he was being interviewed, Disbro kept interrupting to get Petitioner to do other things. When Petitioner later complained to the CEO about this, he was told Disbro would be counseled about it and that he should overlook Disbro’s conduct. At this particular time, the only black employees at MARC were Petitioner and Mr. Lee. Others were hired later. Petitioner contends that a black female employee quit because of similar working conditions, but there is no identification of the employee or independent evidence of when or why she quit. It also appears other black employees were employed on a routine basis. When Petitioner came to work on January 31, 1995, he was told he did not get the job he had been interviewed for before Christmas. It seemed to Petitioner that everyone but him knew the job had gone to the female employee. He relates that another female employee told him that she could have had the job because of her close relationship with management. Again, however, there is no independent evidence to support this claim. Petitioner contends that the environment within his section was uncomfortable for him. That is why he applied for other jobs within the organization. It was to get out of the situation in which he found himself more than to seek promotion. As an indication of what he considers to be the antipathy toward blacks in evidence at MARC, Petitioner notes that when one black employee was absent from work on January 31, 1995, a white assistant commented that Petitioner and Lee would know where he was because they lived on that side of town. To Petitioner, this was a case of the white employee inferring that because Petitioner and Lee were black, they would automatically know where other black employees lived. The employee who allegedly made this comment was not identified. Later that day, however, another "anti-black" comment was made regarding a white residence manager to the effect that he was not a "preppie" because he went with a black girl. According to Petitioner, comments such as this were not uncommon at Respondent’s facility at the time, but there is no independent evidence to support the claim. At an in-service luncheon one day, Petitioner recounts, a white lady implied that the two black attendees were rude and inconsiderate and did not know how to act in public. She allegedly stated they should be grateful they had been taken out for lunch. There is no evidence to indicate if Petitioner present at the time, or who the speaker was. On February 9, 1995, Petitioner was absent from work. While he was gone, Ms. Carrol, a lab worker, approached Mr. Lee, a black employee, and asked him if he believed Petitioner was sick or out looking for another job. Mr. Lee called Petitioner at home and reported this. While Petitioner considers this a racially motivated comment, absent any independent information surrounding it, it is not found to be so. On February 10, 1995, Disbro told Petitioner and Mr. Lee to move all the furniture out of the work shop and clean the shop. While the two black employees were pulled off their jobs to do this, all the white employees, both male and female, continued to do their regular jobs. Being away from his duties to do the clean-up put Petitioner behind in his regular duties. When Petitioner tried to talk to Disbro about why other employees couldn’t help with the move, Disbro allegedly said he and Lee were to do it and a complaint to Mr. Schwartz would be non- productive. No evidence was presented to support Petitioner’s claim this was racially motivated. The mere fact that two black males were directed to do manual labor does not prove racial discrimination absent a showing there were others capable of doing the work who were not occupied with other, more demanding duties. On February 15, 1995, Petitioner was supervising a female client who needed help to go to the bathroom. Consistent with the rules for that situation, Petitioner called for help but was put off with what he considered to be a lie. When he reported this to Disbro, Disbro said to forget it. Petitioner is sure that if it had been him who was complained about, Disbro would have taken corrective action, but there is no evidence to show this. In late February 1995, a special training program in Orlando was announced. Management asked who wanted to go. It was reported that those who received the training would be certified and would receive more money. Though Petitioner applied, he was not selected to go. When he asked if his failure to get the training would be held against him if he applied for a better job, he was told it would not. However, subsequent to the training, whenever he applied for any jobs in that area, he was rejected because he was not trained. Mr. Schwartz, the CEO, contends that all employees were offered the opportunity for in- house training. Training away from the facility, however, was offered to those who would best benefit from the training due to their responsibilities. Schwartz insists that in making the selection of those to attend the away-training, the employee’s performance and disciplinary records were not considered - just the need for the training. One of those selected was Ms. Sparks, who had a background in special education and a demonstrated ability to deal with retarded clients. The agency’s position seems reasonable, and no evidence was offered to indicate its assertion is not true. In March 1995, a social worker from the Department of Health and Rehabilitative Services, Ms. Peterson, accidentally threw away an assessment of a client Petitioner had done and asked Petitioner to re-do it. Petitioner refused and she complained to Disbro who, in what Petitioner considered to be a harsh manner, directed him to do so. Petitioner felt this was unfair and wrong, aside from Disbro’s use of abusive language. It is a fact, however, that case notes are the responsibility of the habilitation assistant. If no record is made, there is no way to recover information relating to the clients. Though Petitioner claimed he was being treated unequally in that other assistants did not have to do what he was directed to do, this allegation was unexplained. On March 16, 1995, Petitioner complained to Disbro about the way he felt he was being treated. Disbro said that they would work it out - the past was past. However, later that day a statement was made that Petitioner was improperly eating in the workshop. When Petitioner told Disbro he was not eating, Disbro replied that there were chicken bones all over; a comment which Petitioner took as racially-oriented. Petitioner claims to have been humiliated by the comment, and when he got upset at that comment, he claims Disbro wrote him up for his response. Disbro claims the write-up was for eating on duty. He claims he saw chicken bones in the trash in Petitioner’s area, and eating at a work station is not permitted under MARC rules. After that incident, Petitioner requested to see Mr. Schwartz, but his request went unanswered. This led Petitioner to believe that not only was his rapport with his supervisor, Mr. Disbro, poor, but so it was with Mr. Schwartz. Petitioner concluded this also based on his perception that Mr. Schwartz never acted on any of his complaints against Disbro. In early May 1995, Ms. Carrol came into Petitioner’s workshop at least three to five times a day. Petitioner felt she was spying on him, but when he complained about this to Disbro, Disbro contended she was just lonesome for her old work group. He indicated he would follow up on it, but to Petitioner’s knowledge, nothing further was said about that situation. However, at the end of the day, Disbro called Petitioner aside and spoke to him about a reported safety violation. He was told another worker had reported that she thought Petitioner was improperly running a machine which could have resulted in injury to a client. When Petitioner indicated he was not satisfied with Disbro’s attitude toward other employees "spying" on Petitioner, and asked to speak with Mr. Schwartz, Disbro reportedly stated "I really hate you guys." Disbro would not explain what he meant by that comment, but Petitioner considered it a racial slur. Disbro denies having made the comment. Assuming it was made, however, absent other evidence to support Petitioner position, it cannot be concluded that the comment was racially motivated. It could well have been a reference to a myriad of other things. On May 19, 1995, Petitioner noticed a posting for a job which he felt he could do and which would get him out of the environment in which he was having so much trouble. Petitioner applied for the job but heard nothing about it in response. He was the only applicant from within the agency, and the job was not a promotion. He reports that all the associates laughed at him when he applied, and he didn’t know why. A month later, when Petitioner still had not heard about the job, he was told by a co-worker that the job had been filled. When he checked on it and found that report was true, he asked the personnel staffer why he hadn’t been interviewed and, reportedly, she just laughed. This made it clear to Petitioner that he was not going to get any other job at MARC. Mr. Schwartz claims it is normally MARC policy to promote from within if they have personnel in house who possess the needed qualifications. He recalls the incident about which Petitioner complains. This job required an enormous amount of non-supervised performance, and due to Petitioner’s record of absenteeism, tardiness, and other documented problems, it was felt he did not meet the qualifications of the job. Management believed Petitioner needed much more structure and direct supervision than this particular job would provide. On June 21, 1995, he told the personnel people he felt he had been discriminated against in his initial hiring, his salary, in promotions, and in working conditions. He was told to speak with Mr. Schwartz about it, but when he tried to do so, Schwartz suggested he speak with someone else in the agency, Mr. Paul Welsh. Petitioner was not able to reach Mr. Welsh for several days, however, both Mr. Schwartz and the personnel staffer indicated it was MARC policy to hire first from within the agency. In Petitioner’s case, Mr. Schwartz said he didn’t think it was a question of discrimination, but he would look into it. A few days after this conversation, Mr. Schwartz’ secretary told Petitioner that Mr. Schwartz wanted to see him. When the two met, Schwartz asked Petitioner if he felt he was being discriminated against. Petitioner explained how he felt. Schwartz then thanked Petitioner and said he would get back to him. On June 27, 1995, Schwartz told Petitioner he had been too busy to talk to Mr. Welch about Petitioner’s situation but would do so and get back to him. The next day Schwartz called Petitioner to tell him he had met with Welch and would speak with Petitioner the next day. Petitioner did meet with Schwartz the next day and Schwartz told him that HRS had changed the requirements of the job he had applied for and that was the reason he wasn’t selected. Petitioner asked to see the changes but was not shown anything to support Schwartz’ claim. Petitioner claims he asked if the training he had applied for but not received would have helped, but Schwartz was unable to give him a firm answer. When Petitioner asked if there were some form he could fill out to complain about the treatment he had received, he was told to ask the secretary. The secretary advised him she didn’t have the forms. Several days later Petitioner saw an EEOC poster with an 800 number which he called. When he explained his situation, he was told what to do and furnished with the forms he needed. He filled them out and submitted them, which initiated this action. Petitioner resigned from MARC in August 1995, after about a year and a half on the job because he was fed up with what was going on as it related to him. Documentation introduced at the hearing reflects that on most appraisals he received he was rated down because of his attitude, yet he continued to received periodic pay raises. However, though Petitioner and Ms. Sparks, a white employee, were doing the same work, he discovered, when he accidentally received her paycheck instead of his own, that she was making more than he was. Mr. Schwartz indicates, however, that Ms. Sparks dealt with more difficult clients than did Petitioner, which required her to assume a greater responsibility than his, and according to Mr. Schwartz, she had far greater experience in the program than he did. According to a co-worker, Ms. Ball, Ms. Sparks has a background in special education. She had the proper attitude for working with retarded clients and was very conscientious and dedicated. She had an extra ability to work with autistic individuals and those with behavioral disorders. If true, and no evidence was presented to show it was not, this would justify her receiving a higher pay than Petitioner who was only employed at the facility for a total of a year and a half. According to Mr. Schwartz, MARC had several other individuals doing the same work as Petitioner was doing. Three were black males, and the remainder were white females. MARC had an equal employment policy which was enforced. At the time Petitioner was employed there approximately 30 percent of the employees were male and 70 percent were female. There were two Hispanics of whom one was male and one was female. The reason for the predominately female employee census was that most applicants for jobs were female. The racial mix at the facility, 25 percent black and 75 percent white, was approximately equivalent to that in the community. Schwartz categorically denies there was any policy calling for a difference in pay due to race or gender, nor were minority males singled out for the dirty jobs, as Petitioner contends. He admits, however, that because Petitioner and Lee were the only two males on the floor in that shop, they were assigned jobs from time to time which females could not do readily, because of their size or strength. The immediate supervisors, such as Disbro in Petitioner’s case, were responsible for day-to-day supervision and were usually left alone to manage their work load and their employees. If, however, a situation arose which needed next- level intercession, Schwartz would step in. He was the appeal authority in disciplinary matters, and remembers serving as such several times for Petitioner. He cannot recall the details of the incidents, however. Mr. Schwartz also recalls an incident where Petitioner was requested to bring in a doctor’s slip to justify his being absent for several days. The documents Petitioner presented were inconsistent with his story. On follow-up, it was determined that neither was a legitimate report relating to Petitioner’s condition. One was from a gynecologist and one from a pediatrician. Mr. Schwartz also acknowledges that Petitioner came to him to express concern over Disbro’s alleged comments which Petitioner felt were racially motivated. In that same vein, though Petitioner contends that MARC management did not want minority job coaches to represent it in the community, Mr. Schwartz denies that race or gender played any part in promotions or assignments. The sole issue was who could best do the job. Petitioner also objects to being the only employee written up as the result of an incident when a client eloped, even though at least one other employee was present at the time. Habilitation assistants are responsible for the well-being of their clients and cannot afford to lose track of clients whose safety is at risk. Petitioner was the individual responsible for the client who eloped. Disbro, as Petitioner’s immediate supervisor, oversaw the employment of eight employees. Of these, four, including Petitioner, were black and four were white. Most were female. All did the same type of work, except for specific personal care issues where gender was a consideration. Work requiring heavy lifting was done by whoever was there to do it and was capable of doing so. Pay was based on performance without regard to minority status or gender. While Petitioner was supervised by Disbro there were times when Disbro felt it necessary to discipline him. In one case Disbro observed Petitioner sleeping at work. This was also observed by a vocational trainee, and others have seen similar instances. Petitioner claims he was not sleeping and that the observers were mistaken because of his small eyes. Disbro has no doubt that Petitioner was sleeping, and from personal observation of Petitioner at hearing, his eyes did not appear significantly smaller than those of any other person. Petitioner was written up for tardiness numerous times during the course of his employment, as well as for a general lack of attentiveness. As a result, he was placed on probation for a period of time, and at least one pay raise was deferred. On one occasion, he was suspended without pay for three days. Though Petitioner claimed he was discriminated against when not selected to attend away training, he was scheduled for an in- service training which he failed to attend and failed to call in to advise he would not be there. When subsequently asked why he had not been present, Petitioner claimed he didn’t need the training being offered. On August 23, 1995, he was issued a letter of reprimand for this. According to Disbro, at no time did he ever address Petitioner or any minority employee in a racially derogatory manner. He denies ever having used the term, "you guys," to Petitioner. He adamantly rejects any contention that he treated Petitioner any differently than any other employee, and denies he was ever instructed to do so. Disbro contends Petitioner could not take constructive criticism and when corrected, would become very defensive. Petitioner’s progress notes kept on the clients he served were not up to par, according to Ms. Mayberry, the individual responsible for developing client program systems and overseeing documents prepared by Petitioner and other habilitation assistants. Case notes have to be a direct reflection of the program plans, and must show goals, accomplishment, plans, and the like. The goals indicated what information needed to be reported, and case notes were the support documents for funding from HRS, Medicaid, and other fund sources. In the opinion of Ms. Mayberry, Petitioner had an ongoing struggle with the documentation system. He was not the only habilitation assistant who had problem with case notes, and whenever she found a problem, she would send a memo about it to the assistant and to Disbro. Though the other assistants cooperated, Petitioner’s general attitude toward case notes was that he was willing to sit down with her and review them, but he often became frustrated and felt he was being picked on. As a result, she developed fill-in forms to help him provide the proper information. Nonetheless, Petitioner seemed to have both an attitude problem and an ability problem with the case notes. As other assistants improved in the note preparation, Petitioner continued to struggle without much improvement. Ms. Bouse, also an habilitation assistant, as were Petitioner and Mr. Lee, could not recall either ever having been singled out for dirty jobs. She observed Petitioner on the job and noted that he slept a lot during the workday and talked on the phone a lot. In her opinion, he did not do his job very well. He was absent a lot and often tardy, and when he was not there, the other assistants had to do his work as well as their own. Ms. Lawrence worked with Petitioner one day shortly after she was hired during which he showed her the ins and outs of the cable contract on which he and his crew were working. After that day, she took that contract over from him. On one occasion, Ms. Lawrence and Petitioner attended a convention in Sarasota, and during the course of a lecture, she had to wake him twice. Other than that incident, she denies having seen him sleep on the job. Janet Ball has worked at MARC for 19 years as the adult basic education teacher. As a part of her duties, though she did not supervise Petitioner, she could observe him for approximately an hour and a half per day while she was working in the same module as he was. On at least two occasions she observed him asleep. On one of those it appeared his son had been sick all night. She considers this significant because the safety of the clients is an issue. Petitioner supervised ten individuals, all of whom were severe and profoundly retarded, and he had to remain alert at all times with them. Since his resignation from MARC, Petitioner has worked for a construction company at $9.50 per hour for 40 to 50 hours per week. However, on July 28, 1996, he was involved in an automobile accident which kept him out of work for a while, and, in any event, made it impossible for him to do construction work ever again. After his recovery, Petitioner worked at several jobs including temporary services. At one job, with Wellcraft, he earned $7.77 per hour for a 40 hour week, plus overtime, and worked there for about two months until he was fired for leaving the job early. He then went to work for a cleaning service and eventually obtained his own franchise from which he earns approximately $2,000 per month. Except for his period of recuperation after the accident, he has worked full-time since leaving MARC, at a rate higher than he earned there.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing Brian C. Poole’s Petition For Relief alleging employment discrimination based on race and gender. DONE AND ENTERED this 23rd day of March, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1999. COPIES FURNISHED: Brian C. Poole 817 18th Street East Bradenton, Florida 34208 Omer Causey, Esquire Nelson Hesse 2070 Ringling Boulevard Sarasota, Florida 34237 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 The issues are whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her disability and by retaliating against her, and if so, what, if any, relief is Petitioner entitled to receive.
Findings Of Fact Petitioner is Respondent's former employee who began working for Respondent in 1993. Petitioner was most recently assigned to the warehouse in eastern Jacksonville, Florida, where she worked from October 2000 until September 2007. When she first transferred to the warehouse, Petitioner worked as the Return-to-Vendor (“RTV”) Clerk. As the RTV Clerk, Petitioner was responsible for shipping out returned merchandise to vendors and shipping salvaged items to the salvage companies. In 2004, Petitioner transferred to the Receiving Clerk position. Petitioner remained in the Receiving Clerk position until September 19, 2007, when she began a medical leave of absence. Jason Zook became the manager of the warehouse in May 2005. As the Warehouse Manager, Mr. Zook is responsible for overseeing the entire warehouse, including the Receiving Department. Mr. Zook is familiar with the requirements of the Receiving Clerk position because he previously worked in that position at another warehouse. Michael Sinanian is one of the Assistant Warehouse Managers. Mr. Sinanian transferred to the warehouse as an Assistant Warehouse Manager in 2002. Prior to becoming an Assistant Warehouse Manager, Mr. Sinanian worked in the Receiving Department at other warehouses for a little over two and a half years. During that time, Mr. Sinanian worked as a Receiving Manager, a Receiving Supervisor, an RTV Clerk, and a Receiving Clerk. The Receiving Department is located at the back of the warehouse. The warehouse is approximately the length of a football field from front to back. At all times material here, the Receiving Department at the warehouse had four positions: Receiving Manager, Receiving Clerk, Receiving Secretary, and Forklift Driver. In 2007, Deborah Lenox was the Receiving Manager, an employee named Sonya was the Receiving Secretary, Petitioner was the Receiving Clerk, and an employee named Valdean was the Forklift Driver. The Receiving Secretary and the Receiving Clerk have different job responsibilities. The Receiving Secretary is responsible for answering the phone, making vendor appointments, logging the appointments, dealing with paperwork, creating and printing out receiving tags, and logging shipment information into Respondent's computer system. The Receiving Clerk is responsible for counting and checking merchandise against freight bills, opening boxes and cartons with a box knife to verify and count the product, stacking bed-loaded merchandise or merchandise from damaged or unacceptable pallets onto approved pallets, separating mixed items from pallets for checking, wrapping pallets with plastic wrap in preparation for movement onto the warehouse floor, loading merchandise and emptying pallets onto trucks using a manual pallet jack or hand cart, and cleaning and clearing the receiving dock of any debris and trip hazards. Each of these essential job functions requires standing, which is consistent with the job analysis for this position. Respondent has written job analyses, which identify the essential functions of each job and are used to assist the Company, the employee, and the employee’s doctor in determining if the employee can perform the essential functions of his/her job with or without reasonable accommodations. Respondent does not remove or eliminate essential job functions, but will sometimes modify the manner in which the function is to be completed. Respondent will not displace another employee from his position in order to accommodate a disabled employee. A pallet of merchandise can be as much as 60 inches high. A typical pallet coming in the warehouse is a 60-inch cube. An electric pallet jack is a double pallet jack and is approximately 18 feet long. In order to operate an electric pallet jack, an employee has to stand and lean in the direction that she wants the machine to go and turn the handle. There is no seat on an electric pallet jack. Petitioner’s original foot condition was due to osteomyelitis, an infection of the bone. Between 1998 and 1999, Petitioner had four surgeries to address her foot condition. A surgeon placed an artificial plastic bone in Petitioner's foot in July 1999. In September 1999, Petitioner returned to work with medical restrictions that prevented her from standing for long periods of time and from lifting more than 25 or 35 pounds. At some point thereafter, while Petitioner was working at one of Respondent’s warehouses in Memphis, Tennessee, her podiatrist changed her restrictions to add limitations against cashiering, stocking, and inventory. Petitioner understood that the reason for these additional restrictions was that she was not able to do these tasks to the extent they required her to stand for a prolonged period of time. Petitioner’s medical notes stated that she was able to use her discretion as to her limitations, which Petitioner understood to mean that she could sit and rest her foot as needed. Each of these restrictions was permanent. Mr. Zook, Ms. Lenox, and Mr. Sinanian were all aware that Petitioner had medical restrictions relating to her foot condition that prevented her from standing for prolonged periods of time. They were aware that Respondent had agreed to allow Petitioner to sit down when she felt it was necessary, without first having to ask for permission. Despite her restrictions, Petitioner is able to ride her bike, go the grocery store, and work out at the gym. During the relevant time period, Petitioner worked out at the gym approximately four days a week. Her work-out routine included warming up on an elliptical machine for approximately 15-to-20 minutes or walking approximately one mile on the treadmill and using a leg press machine. Respondent performs inventory twice a year. It takes an inventory at all warehouses in February and August. The inventory process begins on Friday night and continues until the following Wednesday. The back-stock is counted on Friday night after closing and the stock on the sales floor is counted on Saturday night after closing. The post- audit process begins on Sunday morning before the warehouse opens to its members and continues on Monday morning. The Saturday night inventory count is more labor- intensive and is considered “all hands on deck.” The Saturday night inventory requires the staff to count approximately $9 million worth of inventory during roughly a five-hour period. On Saturday, Respondent assigns two employees to count the items in each aisle at the same time. The employees double- check each other’s counts. If there is a discrepancy between the employees’ counts, both will recount the items until their counts agree. If there are discrepancies after the Saturday counts between the physical counts and the computer records, the items are recounted during the Sunday post-audit. If variances still remain after the three counts, then the variances are researched during the Monday post-audit. For the Monday post-audit, Respondent only focuses on the larger-quantity, higher-dollar discrepancies. When researching the discrepancies from the variance reports, employees have to perform the following tasks: (a) count items on the floor or up in the steel racks; (b) verify bin tags; (c) research billing, shipment, and return-to-vendor records on Respondent’s computer system; and (d) check the receiving paperwork in an effort to locate and correct the source of the discrepancy. Some items will have been sold between the Saturday night count and the Monday post-audit process. Therefore, the Monday post-audit team also may have to research the sales history on a computer and back out the Sunday sales from the total count. The variance reports reflect the aisle where the item is located, the item count from the inventory count, the computer system count, and the amount of the variance. Employees are typically assigned to work in one department of the warehouse, which may require them to walk from aisle to aisle within that department. In order to assist the Monday post-audit team, the team is permitted to use computers throughout the warehouse. Employees can sit down at the computers when they are researching the variances in item counts. It can take anywhere from 15-to-30 minutes to research one item. The duties involved in the inventory post-audit process are similar to the job duties of the Receiving Clerk position. However, the post-audit does not require as much standing and is less physically demanding because the focus during post-audit is on researching the sources of the variances, rather than simply receiving, counting, and checking- in shipments. In selecting employees to work on the Monday post- audit team, Respondent prefers to schedule people who are familiar with Respondent’s return-to-vendor and receiving processes. Respondent also selects employees who are knowledgeable about Respondent’s AS-400 computer system. In February 2007, Petitioner worked the Saturday night inventory. During that time, she counted the bread then worked at the control desk. Petitioner's job at the control desk was to key-in inventory count sheets into Respondent’s computer system. Petitioner did not view this assignment as inconsistent with her restrictions against working inventory because she was seated for most of the time. In August 2007, Mr. Sinanian was responsible for the post-audit processes, including the scheduling of employees to work post-audit. Due to the requirements of post-audit, Mr. Sinanian selected people who, like Petitioner, were familiar with Respondent’s AS-400 computer system. Approximately 20 employees worked during the Monday post-audit. Mr. Sinanian and Ms. Lenox knew that Petitioner could use her discretion to sit down whenever she felt it was necessary. They had no reason to believe that the post-audit process was inconsistent with Petitioner’s medical restrictions. Therefore, she was selected to work the Monday post-audit. On Saturday, August 25, 2007, Petitioner was again assigned to count bread and then assist with keying inventory count sheets into the system. Petitioner was able to sit down while she was working at the control desk keying the inventory count sheets. Petitioner did not consider her Saturday assignments inconsistent with her restrictions. Petitioner did not work or perform any inventory or post-audit, inventory-related duties on Sunday, August 26, 2007. On Monday, August 27, 2007, the post-audit process lasted from approximately 5:00 a.m. until 10:00 a.m. Petitioner’s shift began at 5:00 a.m. After Petitioner clocked in, she reported to the control desk, where Mr. Sinanian assigned her to check variances for approximately 6 items in Department 14, the sundries department. The sundries department runs along the back right side of the building near the Receiving Department. The sundries department includes items like paper towels, cleaning chemicals, laundry detergent, water, juice, and soda. Petitioner was assigned to research variances between the physical counts and the computer system’s counts for Swiffers, dog bones, dog beds, water, soda, and paper towels. During the August 2007 post-audit process there were at least 18 computers for the employees to use. The computers were located in the Receiving Department, the front office, at the membership desk, and at the podium on the front-end. Employees were free to use any available computer and were able to sit down at most of the computers while researching items. Petitioner never had to wait to use a computer. Petitioner went to whichever computer was closest to her at the time to verify items. After she finished researching all of the items on her variance sheet, Petitioner, like all of the other employees who worked post-audit, met with Mr. Sinanian at the control desk at the front of the store to explain her findings. There was a chair at the control desk for Petitioner to sit in while meeting with Sinanian. The process of meeting with Mr. Sinanian took anywhere from 10-to-30 minutes. Other than discussing her assignment for the day and the post-audit research results, Mr. Sinanian did not have any other discussions with Petitioner on August 27, 2007. Petitioner was able to use her discretion to sit down during post-audit. She was never told that she could not sit down nor was she reprimanded for sitting down. Petitioner admits that she used her discretion to sit down at least twice during post-audit and to kneel down a couple of times. Petitioner also took a 15-minute break during the post-audit process, during which she sat down. After Petitioner finished working post-audit at approximately 10:00 a.m. on August 27, 2007, she returned to the Receiving Department, but left shortly thereafter to take her lunch break. Petitioner’s lunch break lasted for approximately a half-hour. Petitioner walked from the back of the warehouse, where the Receiving Department is located, to the front of the warehouse, where the break room is located, to take her lunch and walked all the way back after the end of her break to return to work. After returning from lunch, Petitioner began working on the UPS shipment. It was a busy day in the Receiving Department, as the UPS shipment had arrived with approximately 72 packages stacked on one pallet that was taller than Petitioner. Because Petitioner felt unable to stand, she could not check in the entire UPS shipment. As a result, Petitioner took it upon herself to take the UPS invoices and input the invoices into Respondent’s computer system, which is one of the Receiving Secretary’s job responsibilities. At some point thereafter, Ms. Lenox asked Petitioner why she was logging in items into Respondent’s computer system, rather than receiving the UPS shipment. Petitioner told Ms. Lenox that her foot was hurting and that she could not stand. Ms. Lenox told Petitioner to take her break and, when she returned from break, they would see how Petitioner’s foot was feeling. Petitioner walked to the front of the warehouse, where she took her second 15-minute break in the break room. Petitioner was able to sit with her foot up during her break. After returning from her break, Petitioner reported to the Receiving Department and told Ms. Lenox that she did not feel she could not stand any longer that day. Petitioner asked if there was something she could do other than her receiving duties. Ms. Lenox told Petitioner that if she could not stand, then Ms. Lenox did not have any more work for her and told her that she should go home. Accordingly, Petitioner went home approximately one hour before her shift ended. Petitioner reported to work the following day, Tuesday, August 28, 2007, at 5:00 a.m. and worked her entire shift. At some point after her shift started that day, Petitioner told Mr. Sinanian that Ms. Lenox would not allow her to take a break during post-audit. Petitioner also told Mr. Sinanian that her foot was swollen and hurting. She took off her shoe to show him her foot. Mr. Sinanian did not see anything unusual about Petitioner’s foot. He did not see any swelling, graying, or a red bump. From the conversation with Petitioner, Mr. Sinanian did not understand that her foot was hurting due to a new injury. Therefore, Mr. Sinanian did not fill out an incident report. Petitioner’s and Mr. Sinanian’s conversation lasted approximately two minutes. At some point after speaking with Petitioner, Mr. Sinanian asked Ms. Lenox if, at any point during post-audit, she told Petitioner that Petitioner could not take a break. Ms. Lenox denied Petitioner’s allegation. Mr. Sinanian had no reason to doubt Ms. Lenox. Petitioner continued to work her job as Receiving Clerk after August 28, 2007. She continued to use her discretion to rest her foot on an as-needed basis. When possible she would sit in a chair to work. She used the electric pallet, letting her foot hang off the platform. Petitioner waited three weeks to seek medical treatment from her podiatrist in West Palm Beach, Florida. She finally saw her doctor on Monday, September 17, 2007. At her appointment, Petitioner’s podiatrist gave her a note that stated, “DUE TO ARTHRITIC CONDITION, CYNTHIA IS UNABLE TO STAND FOR LONG PERIODS OF TIME AND IT IS MEDICALLY NECESSARY FOR HER TO BE OFF HER FOOT FOR 3 WEEKS. DUE TO THE FLARE UP.” Petitioner understood that her podiatrist wanted her to stay off her foot for a few weeks and to be in a sedentary position during that time. Petitioner also understood that these temporary restrictions were more limiting than her prior permanent restrictions. Petitioner reported to work on September 18, 2007, and told Ms. Lenox that her doctor did not want her standing. Ms. Lenox told Petitioner that they would need to speak with Mr. Zook about her restrictions when he arrived at work that day. In the meantime, Ms. Lenox permitted Petitioner to sit down and work on summary sheets. After returning from lunch, Petitioner met with Mr. Zook about her new temporary restrictions. The meeting lasted about an hour or more. Based on Mr. Zook’s prior experience working as a Receiving Clerk, his understanding of the essential job functions of that position, and Petitioner’s podiatrist’s statement that she needed to be off her foot for three weeks, he did not believe that Petitioner could perform the essential functions of that position without violating her doctor’s restrictions. Mr. Zook, nevertheless, asked Petitioner how she thought she could do her job from a seated position. Petitioner did not have any suggestions. There were no available sedentary positions in the warehouse at that time that could have accommodated Petitioner’s no-standing restrictions. As a result, Mr. Zook explained to Petitioner that based on her doctor’s restrictions, which required her to be in a sedentary position, he did not have any work for her at that time. Mr. Zook did not believe that Petitioner’s temporary no-standing restrictions prevented her from working in any capacity. Mr. Zook explained to Petitioner that she could take a leave of absence and return to work after her temporary restrictions expired. Because Petitioner’s restrictions were temporary, Mr. Zook did not contact Respondent’s Human Resources Department to schedule a job accommodation meeting. Despite Mr. Zook’s statement, Petitioner returned to work the following day and performed some work for a period of time. After Mr. Zook arrived at the warehouse, he went back to the Receiving Department and asked Petitioner why she was at work. Mr. Zook reminded Petitioner that he did not have any work for her to do at that time and that he could not allow her to work in violation of her doctor’s restrictions. After speaking with Mr. Zook, Petitioner clocked out, signed some paperwork, and left the building. Petitioner did not return to work after September 19, 2007. On October 15, 2007, Petitioner saw her podiatrist again. Petitioner’s podiatrist extended her temporary no- standing restriction for another six weeks. Petitioner understood, however, that her no-standing restrictions remained temporary at that time. Petitioner applied for and received short-term disability (“STD”) benefits beginning around the end of September 2007. Petitioner used paid time off until the STD period benefits began.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter an order dismissing the Petitions for Relief in these consolidated cases. DONE AND ENTERED this 24th day of November, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2009. COPIES FURNISHED: Hnin N. Khaing, Esquire Henrichsen Siegel, PLLC 1648 Osceola Street Jacksonville, Florida 32204 Kathleen Mones, Esquire Seyfarth Shaw LLP 1545 Peachtree Street Northeast, Suite 700 Atlanta, Georgia 30309 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner, Earl R. Tyler, was born on October 9, 1915. Petitioner was employed by the Respondent as a storekeeper from approximately March of 1977 until April of 1978, at which time he voluntarily terminated his employment with Respondent in order to become a real estate salesman. Prior to his leaving the hospital, Petitioner had received no reprimands or complaints from his supervisors at the hospital regarding his work as a storekeeper. In September of 1978, Petitioner filed an application for employment in a clerical position at the hospital. On or about October 15, 1978, Petitioner received a letter from the hospital advising him that there was an opening in the clerical field and requesting him to contact the personnel office regarding that position. Although Petitioner was not employed at the time, he believed the open position to be on the night shift and, accordingly, he never contacted the hospital regarding that position. Dale J. Learn, the Materials Manager at Lehigh Acres General Hospital, had become good friends with Petitioner during the time that Petitioner worked at the hospital, and he also knew Petitioner's wife, who was working at the hospital. In February, 1979, Learn told Petitioner's wife to have Petitioner come to the hospital to talk to Learn about an expected vacancy in the storekeeper position. Petitioner complied, and he and Learn met in the hospital cafeteria and discussed the expected vacancy and the potential for Petitioner being rehired in that position. The storekeeper position was within the department of which Learn was the head, and Learn was currently restructuring both his department and the storekeeper position. At the time that he met with Petitioner in the hospital cafeteria, the storekeeper position was not yet available and had not been publicized. Petitioner expressed his interest in being rehired as the storekeeper, and Learn advised Petitioner that the position as envisioned would require no heavy lifting by the Petitioner since Learn also intended to hire a younger man to do the heavy lifting. Petitioner made no response to Learn's statements regarding the necessity or desirability of Petitioner engaging in heavy lifting. Several weeks after the meeting between Petitioner and Learn in the hospital cafeteria, Petitioner saw an advertisement in a Fort Myers newspaper wherein the hospital was advertising for the position of storekeeper/medical supplies. Since Petitioner had heard nothing from Learn subsequent to their meeting, Petitioner telephoned Joseph Feith to express his interest in the position. Feith advised Petitioner that the department managers had authority to make decisions regarding hiring of personnel, subject to the approval of Feith, who was the Executive Director of the hospital. Feith, accordingly, advised Petitioner to contact Learn. Petitioner telephoned Learn but was unable to reach Learn at that time. After several days, Learn returned Petitioner's telephone call. During that conversation, Learn suggested that Petitioner should be relaxing and enjoying life and playing golf, but that he would do all he could to assist Petitioner in obtaining a clerical position at the hospital. Petitioner made no response to Learn's comments regarding taking life easy and made no further contact with anyone at the hospital regarding employment as a storekeeper. Learn hired a man in his early thirties for the storekeeper's position. The decision to hire that applicant and to not hire Petitioner was made solely by Learn. Learn's decision was based upon the successful applicant's better qualifications, more recent work experience, and Learn's hope that that applicant would be more likely to remain in the position for a long term. The reorganization of his department by Learn had caused a large expansion in the inventory for which the storekeeper was responsible. Additionally, between the time that Petitioner left his employment with the hospital as its storekeeper and the time of the hearing in this cause, the position of storekeeper was held by three people instead of one, also indicating a substantial change in procedures regarding the position in question. At the time of the hearing, the storekeeper position was occupied by two men and one woman ranging in ages from the late thirties through the mid-fifties. Petitioner has no knowledge of any instances wherein Lehigh Acres General Hospital has discriminated against persons because of their age. The hospital does have a policy of nondiscrimination. During the times in question, the hospital employed approximately fifteen to twenty persons the approximate same age as the Petitioner. Further, at the time of the hearing in this cause, Feith, the Executive Director of the hospital, was fifty-eight years old, and Learn, the department manager, was fifty-four years old.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations declaring that Earl R. Tyler was not discriminated against on the basis of his age and dismissing his Petition for Relief with prejudice. RECOMMENDED this 22 day of July, 1981, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1981. COPIES FURNISHED: William E. Adams, Jr., Esquire Florida Rural Legal Services 1617 Hendry Street, Third Floor Fort Myers, Florida 33901 R. J. Castellanos, Esquire Kushner & Castellanos Post Office Box 1999 Fort Myers, Florida 33902 Mr. Norman A. Jackson Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Tallahassee, Florida 32301
The Issue The issue is whether Respondent discriminated against Petitioner based on her interracial personal relationships by creating a racially hostile work environment and causing her constructive termination.
Findings Of Fact Petitioner is a white female. At all times relevant to this proceeding, Petitioner was involved in an interracial personal relationship with a black man who was the father of Petitioner's child. At all times relevant to this proceeding, Respondent owned and operated several Taco Bell franchise restaurants in and around Santa Rosa County, Florida. Respondent employed approximately 190 people. Respondent hired Petitioner as a crew member in its Milton, Florida, restaurant on January 7, 1998. Petitioner's duties included operating the cash register and cleaning the dining room and restrooms. Respondent trained Petitioner to perform her assignments. Respondent showed Petitioner how to operate the cash register, wipe the tables, mop the floors, restock the condiments, clean the toilets, and replace paper supplies in the restroom. Respondent provided Petitioner with the necessary cleaning supplies, including but not limited to mop, broom, wiping cloths, cleaning solutions, disposable gloves, toilet brush, etc. Petitioner knew where Respondent stored these supplies. She knew it was her job to clean the bathroom before her shift ended so that the facilities would be clean for the next crew. Respondent also informed Petitioner about Respondent's policy against discrimination in the workplace. This policy, which tracked the language of Florida law and Taco Bell operating manuals, was posted on a bulletin board. Telephone numbers of the general manager, the district manager, and the operating officer/owner were also posted next to the telephone in the event that an employee needed to complain about working conditions. These numbers were visible from the door of the office. Additionally, the toll free number of the national franchise company was posted through out the store so that the public or employees could call in complaints. Respondent informed Petitioner that she would be on probation for three months. After three months, employees were eligible for a small raise if they were performing their jobs successfully. Respondent gave Petitioner the first of a series of training booklets that employees could study to learn more about the business. The first booklet contained the basic information that a food service worker needed to know, including the company's policy against discrimination. After studying each booklet, the employee would take a test. If the employee passed the test, he or she could progress to the next booklet. The training booklets were designed to prepare employees for supervisory and management positions. Petitioner never took the test for the first booklet. Petitioner rode to and from work every day with her shift supervisor, Ms. Ileane McCray, a black female. Petitioner and Ms. McCray lived in the same housing complex and worked the morning shift together. Ms. McCray was not prejudiced against interracial personal relationships; her own daughter was involved in an interracial personal relationship with a white man. Ms. McCray was responsible, in part, for introducing Petitioner to Dawn Young, the general manager of the Milton restaurant and the daughter of the owner/operator. Ms. McCray told Ms. Young that Petitioner's boyfriend was in jail and that Petitioner needed a job. Ms. Young interviewed Petitioner and made the decision to hire her. On July 18, 1998, Ms. McCray directed Petitioner to clean a restroom that had been vandalized by smearing feces on the walls. Petitioner refused to clean the restroom and left the premises without telling anyone. She never returned to work. After Petitioner walked off the job, she took a trip to visit family in the State of Washington. Upon her return, Petitioner visited Ms. McCray's home and showed her family pictures from the trip to the northwest. There is no persuasive evidence that Ms. McCray or Ms. Young ever made derogatory comments to Petitioner regarding her interracial personal relationship or her interracial child. Petitioner's testimony in that regard is not credible. On the other hand, Ms. McCray's testimony that she did not make derogatory remarks about interracial couples was persuasive. Under Respondent's chain of command, an employee who had a problem with a supervisor could contact the general manager and so forth up the line. Employees also could approach the owner/operating officer directly because he visited the Milton restaurant almost every day. Before Petitioner quit her job, Petitioner never complained to Ms. Young or anyone else about Ms. McCray's making racially hostile comments. Petitioner never called the district manager or the operating officer/owner to complain. The latter visited in the store almost everyday that it was open. Petitioner never called the national toll-free number. Petitioner worked for Respondent approximately six months. During that time, Respondent failed to call or show up for work on one occasion. Ms. Young and Petitioner signed an employee consultation memorandum on April 30, 1998, indicating that Petitioner would be terminated if she failed to call or show up for work again. Respondent was paying Petitioner $5.15 per hour in wages when she quit her job in July 1998. Petitioner did not return to work until November 1998.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
Findings Of Fact From December 10, 1982, until the present, the Respondent Knoxon Motel, located at 7411 Northeast Biscayne Boulevard, Miami, Florida, was licensed by the Petitioner Division of Hotels and Restaurants, as a motel business and holds license no. 23-08193H. The Knoxon Motel is located in an area of Miami which is known to be a place where prostitution is open and widespread. This condition has existed for approximately 12 to 13 years. Of the numerous motels and apartments in the area, the Knoxon has presented one of the biggest problems for law enforcement officers in their attempts to stop prostitution activities along Biscayne Boulevard. It is a common sight to see prostitutes flagging customers from the street and walking back and forth in front of the Knoxon waiting for prospective customers to drive by. The owner of another motel across the street from the Knoxon, Aaron Manes, has lost customers as a result of prostitutes following them into his motel in search of business. The problem is so serious that a unit of Mane's motel cannot be rented because of the noise that comes from the Knoxon. Manes has called the police over the past year at least once a day with complaints regarding prostitutes around the Knoxon, but so far has been unable to permanently solve the problem. The management of the Knoxon has been warned by police officers regarding prostitution activities at the Knoxon following the arrest of various females in and around the premises. The prostitutes who frequent the area around the Knoxon typically do not rent rooms themselves but instead use a go- between such as a pimp to secure a place to meet customers. Prostitutes have been observed standing in doorways and in front of open doors at the Knoxon partially and totally nude. This activity has been visible from the street. The owners of the Knoxon acknowledge that prostitution is a serious problem in the area but denied that their problems were any worse than other motels in the area. Management of the Knoxon considered installing surveillance equipment but decided against it due to a $5,000-$6,000 cost. Given the undisputed prostitute problem in the area, what has been openly observed at the Knoxon, and what had been told to management by police officers, the Respondents knew or reasonably should have known that a serious prostitution problem existed at the motel. Despite such knowledge, specific and substantial steps were not undertaken to solve the problem. The south side of the Knoxon, which is not visible from the manager's office but is the focal point of the building from the street, has been openly utilized by prostitutes without any apparent fear of detection by the Knoxon's management.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Respondent's hotel license no. 23-01893H be suspended for one year subject to the condition that upon the Division of Hotels and Restaurants' being assured that adequate steps have been taken to prevent the use of the premises of the Knoxon for the purpose of prostitution, the suspension would be lifted. DONE and ENTERED this 17th day of February, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-8675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of February, 1984.
