The Issue Mary Harrison's charge of discrimination dated August 4, 1995, alleges that Jodan, Inc., doing business as Manpower (Jodan), discriminated on the basis of her race and for retaliation by constructively discharging her, giving her verbal and written reprimands and a poor performance rating, by denying her training and by intimidating her. The issues for disposition in this proceeding are whether the alleged discrimination occurred, and if so, what relief is appropriate.
Findings Of Fact Jodan, Inc., is a family owned franchise of Manpower Temporary Services. Jodan provides temporary staff to its clients. It has six offices in Central Florida: two in north Orlando; one in south Orlando; and one each in Deland, Daytona, and Melbourne. Dan Gavin, president, is responsible for the day to day operations; John Gavin, his brother, is a co-owner. In March 1994, Margaret Jones was Jodan's district manager for the north Orlando (Maitland) and south Orlando (Sand Lake Road) offices. She recruited and hired Ms. Harrison to work as a service representative in the Maitland office. Shortly before that time John Gavin had asked her to recruit specifically for a minority employee as it would be helpful for the office to have a more diverse staff to serve its clients. Ms. Harrison is an African-American woman. At the time that she was hired by Ms. Jones in March 1994, her substantial work experience was in real estate and property management. Service representatives at Jodan perform the intake process with temporary employees (application, interview and testing); they take orders from clients and place temporary employees with those clients. Jodan provides a detailed training program for its employees, including its service representatives. Upon the commencement of her employment with Jodan, Ms. Harrison began a training program known as Professional Service 1 (PS-1) under the supervision of Margaret Jones. PS-1 is a self study course where the employee learns the policies and procedures of a Manpower franchise through tapes and other training materials. It is the responsibility of the employee to keep track of and complete PS-1. Normally it takes between three and six months for an employee to complete PS-1; however, it can take longer, depending on the employee's office work load at the time. Disgruntled and upset by what she perceived as criticism of her management and hiring decisions, Ms. Jones left the employ of Jodan on or about August 1, 1994. Prior to that time, Ms. Harrison had completed all but three or four minor details in the PS-1 training. Ms. Harrison was satisfied by her training under Ms. Jones and she admits that no one at Jodan attempted to prevent her from completing PS-1. In September 1994, Ms. Harrison reported to Dan Gavin that her PS-1 materials were lost. He was surprised that one of his employees would lose her training materials and he assisted Ms. Harrison in looking for the materials by, among other things, looking in an off-site storage facility for them. Ms. Harrison's materials were never found and she includes the disappearance of her training materials as one of the basis for her charge of discrimination. There is no evidence that anyone took the materials but neither is there any explanation for their disappearance. Normally, when an employee completes PS-1, a checklist is sent to Manpower headquarters in Milwaukee, Wisconsin, indicating the employee has completed the training. On the checklist, the employee is required to record the dates that she completed each aspect of PS-1. Mr. Gavin contacted Manpower headquarters and obtained a new checklist. He also set up a schedule to meet with Ms. Harrison to go over the items on the checklist and verify that all of PS-1 had been completed. At their first meeting, Ms. Harrison assured Mr. Gavin that she had completed all of PS-1. Based on their conversation, he called Manpower headquarters and verbally confirmed that Ms. Harrison had completed PS-1. Manpower records indicate that she officially completed PS-1 as of December 1, 1994. Ms. Harrison's testimony at hearing with regard to whether she actually had an opportunity to finish the training was confused and unclear as she seemed to contend that there were materials that she was supposed to send to the home office, but could not, due to the lapse of time and loss of her training package. After an employee completes PS-1, the next step is to attend PS-2, which is a week-long training seminar at Manpower headquarters in Milwaukee. PS-2 reinforces what is learned in PS-1 and teaches additional marketing skills. Employees are given a list of dates during which PS-2 will be offered and, because the training requires them to be away from home for a week, they can schedule it at their convenience. Employees can schedule PS-2 before actually completing PS-1 but must have completed PS-1 before they actually attend PS-2. Ms. Harrison could have attended PS-2 any time after December 1, 1994. In January 1995, Mr. Gavin directed the area manager, Kathy Stanford, to ensure that all eligible employees, including Ms. Harrison, sign up for and attend PS-2. The PS-2 classes fill up quickly and it was a priority for Mr. Gavin to have his employees enroll. On more than one occasion, Ms. Stanford gave Ms. Harrison a list of available classes and the opportunity to attend PS-2. However, Ms. Harrison failed to sign up for PS-2. Jodan evaluates employees' performance and salaries on an annual basis. On January 30, 1995, Ms. Harrison was given her annual evaluation. Although the "Appraisal Period" on her evaluation is listed as March 21, 1994, to September 1994, the uncontradicted evidence was that this was a scrivener's error and the appraisal period was March 21, 1994, (Harrison's date of hire) through December 31, 1994. Her review was performed by Mr. Gavin, who was familiar with her performance, with input from Ms. Harrison's immediate supervisor, Gloria Michael. Ms. Stanford sat in on all evaluations done at that time, including Ms. Harrison's, because she was the new area manager and sitting in on the reviews was one way for her to become familiar with the staff and their performances. Ms. Harrison's overall score on the evaluation was a 2.66 on a scale of 1 to 5. A score of 2 means "Below Expectations" and a score of 3 means "Consistently Meets Expectations." A service representative learns all performance areas covered by the evaluation through PS-1. Although she claims that she was evaluated in areas in which she was not trained, Ms. Harrison did not raise this issue with Mr. Gavin and she did not write in any comments on the evaluation in the space provided for employee comments. Further, the uncontradicted testimony, including that of Margaret Jones, established that Ms. Harrison did receive training in all areas of her job in which she was evaluated. Ms. Harrison did not suffer any job detriment as the result of this evaluation or the unusual circumstances surrounding her PS-1 training. She received a pay increase following the evaluation and was then the highest paid service representative. On March 29, 1995, Ms. Harrison was presented with a memorandum by Ms. Michael that addressed concerns she had with Ms. Harrison's job performance. Specifically, the memorandum addressed the following areas: Failure to be responsive to customer needs; The high number of personal calls Ms. Harrison was receiving at the office; Failure to properly match an employee's skills with a client's needs; Failure to consistently enter and update employee information in the computer system each time she spoke with an employee; Failure to open the office on time in the morning; Failure to set up computer training for applicants when she opened the office in the morning. Neither Mr. Gavin nor Ms. Stanford played any role in the preparation or presentation of this memorandum. Ms. Harrison did not suffer any adverse employment action as the result of the March 29, 1995, memorandum. Ms. Michael followed up the March 29, 1995, memorandum with a memorandum on May 3, 1995, detailing Ms. Harrison's improvement in all of the areas discussed in the March 29, 1995, memorandum. On May 15-16, 1995, Ms. Harrison and Ms. Michael (who is white) failed to provide an important client with prompt and appropriate service. As a result, Ms. Stanford counseled both women and placed them both on 90 days probation. Ms. Harrison does not contend that this action was discriminatory. On July 17, 1995, Ms. Harrison submitted a letter of resignation. In the letter she stated that she enjoyed her position as service representative. She also stated that she felt she had been subjected to discriminatory treatment. Ms. Harrison's resignation and the allegations of discriminatory treatment came as a surprise to Ms. Stanford and Mr. Gavin as Ms. Harrison had never before told them she was unhappy or felt discriminated against. In her letter of resignation, Ms. Harrison offered to meet with Mr. Gavin and Ms. Stanford to discuss her resignation, but during her exit interview she refused to discuss her allegations. Although many of Jodan's temporary employees were minorities, Ms. Harrison was the only African-American service representative. There were, however, other minorities, including Hispanic-Americans. Ms. Harrison presented her case in an articulate organized professional manner. It is clear that she felt the work environment was stressful and uncomfortable. However, she did not prove that she was discriminated against or was the object of hostile or adverse employment actions. The temporary employment agency business is highly competitive. Jodan had several large corporate clients and it had to work hard to meet the needs of those clients, sometimes on short notice. This created pressure on Jordan's regular staff that was experienced by white or non-minority employees as well as Ms. Harrison.
Recommendation Based on the above, it is RECOMMENDED: that the Florida Commission on Human Relations dismiss Ms. Harrison's charge of discrimination. DONE AND ENTERED this 1st day of December, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1998. COPIES FURNISHED: Mary A. Harrison 2356 Carborn Street Orlando, Florida 32839 Kelly T. Blystone, Esquire Moran & Shams, P.A. Post Office Box 472 Orlando, Florida 32802-0472 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Has Petitioner been the subject of an unlawful employment practice because of his race, American Indian, and if so, what relief is appropriate?
Findings Of Fact Upon consideration of the oral evidence adduced at the hearing, the following relevant findings of fact are made: At all times relevant to this proceeding, Respondent operated a citrus processing facility in Bartow, Florida, and employed in excess 15 employees. Petitioner is a full-blooded American Indian who resides in Lakeland, Polk County, Florida. Bobby Branch, Respondent’s Maintenance Supervisor, hired Petitioner as a Maintenance Mechanic. Petitioner commenced employment with Respondent on August 18, 1997. Petitioner was employed at an hourly rate of $10.50. Petitioner was assigned by Bobby Branch to work under the direct supervision of Garry R. Guard, Lead Plant Mechanic. Petitioner had 37 plus years' experience as a mechanic and 15 years' experience with the citrus industry as a mechanic. Petitioner understood at the time he was hired that he would be on probation for a period of 90 days. Shortly after Petitioner began work, Garry Guard told Petitioner “I don’t want to work with an Indian” and “I’m prejudiced and I don’t give a damn who knows it” or words to that effect. Additionally, Guard let it be known that he would prefer working with a Mexican. Approximately one week after this incident, Petitioner complained to Bobby Branch, Maintenance Supervisor, about Guard’s comment to Petitioner. This is supported by the testimony of Charles Palmer, a former employee of Respondent, that he was aware that Petitioner reported Guard's comment to Bobby Branch. There was no remedial action taken by either Branch or any other management personnel concerning Guard’s comment to Petitioner. Subsequently, Petitioner noticed his work being undone and Guard complaining that Petitioner’s work was not done or that his work was done improperly. Petitioner and William Waples, a former employee of Respondent, worked together on one of those projects, rebuilding and installing a pump. Waples considered Petitioner a good mechanic. Later, after Waples and Petitioner were finished with the pump, Guard was observed taking the pump apart. Subsequently, Guard complained that Petitioner failed to install a specific part in the pump. Waples specifically recalls that particular part being installed by himself and Petitioner. Subsequent to that event, Guard, when questioned by another worker about the pump and the problem with it, was over heard by Waples saying words to the effect that the “Damn Indian did it.” On October 22, 1997, Petitioner filed a complaint with Branch that Guard was purposefully sabotaging his work because of his race. Again, there was no remedial action taken by Branch or any other management personnel. Branch neither personally observed deficient work performance by Petitioner nor personally communicated to Petitioner the need for Petitioner to improve his performance if he were to successfully complete his probationary period with Respondent, notwithstanding Branch’s testimony to the contrary, which I find lacks credibility in this regard. Petitioner was never reprimanded or counseled prior to being terminated. Petitioner was not terminated because of his deficient work performance during his probationary period, but was terminated because of his complaints to Bobby Branch of being discriminated against due to his race, notwithstanding Branch’s testimony to the contrary, which I find lacks credibility in this regard. Petitioner was terminated by Respondent on November 14, 1997. Petitioner claims lost wages at an hourly rate of $10.50 for 40 hours per week for the period from November 15, 1997 to April 24, 1998. There does not appear to be any evidence of a set-off against the claim for lost wages. Although Petitioner was represented by an attorney, there was no evidence presented as to the amount of Petitioner's attorney's fees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner's Petition for Relief be granted, and as further relief, award Petitioner back wages for the period of November 15, 1997 until April 24, 1998, based on a 40 hour week at an hourly rate of $10.50, and upon motion to the Commission, award reasonable attorney's, in accordance with Section 760.11(7), Florida Statutes. DONE AND ENTERED this 20th day of August, 2001, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 20th day of August, 2001. COPIES FURNISHED: Merette L. Oweis, Esquire DiCeasure, Davidson & Barker, P.A. Post Office Box 7160 Lakeland, Florida 33897 David J. Stefany, Esquire Allen, Norton & Blue, P.A. South Hyde Park Avenue Suite 350 Tampa, Florida 33606 Dana A. Baird, General Counsel Florida Commission on Human Relations John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi M Dixon, Agency Clerk Florida Commission on Human Relations 325 John Knox Rd, Bldg. F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Frank Bowder began his employment with Exports, Inc., under the tutelage of Kenneth L. Kellar, President and sole stockholder of Exports, Inc., at the office in Washington state approximately 20 years ago. He became very knowledgeable about the company's business, and approximately 15 years ago he was sent by Kellar to operate the company's Florida office. He was given the title of general manager of the Florida office and remained an excellent employee until his recent death. Kellar considered Frank Bowder to be an excellent manager of the product of Exports, Inc., but recognized that Frank Bowder had a large turnover of employees. His wife Mae Bowder was also an employee of Exports, Inc., and was considered by Kellar to be "the best cleaning woman there is." She was in charge of cleaning and maintenance duties at the Florida office. At some point Mae Bowder began representing to people that she was the office manager of the Florida office. That information was brought to Kellar's's attention on several occasions, and he corrected that information by explaining that she was simply in charge of maintenance. At some point Mae Bowder's son, Wayne Evans, became employed by the Bowders in the Florida office and was given the title of warehouse manager. Within the last several years, Frank Bowder allowed his wife to "become" the office manager. When Kellar found out, he fired her because he believed that she was "not office material." Approximately a year later Kellar found out that Mae Bowder was once again the office manager. He spoke to Frank about it, and Frank explained, essentially, that Mae was giving him so many problems at home about it that he had to hire her back. Kellar fired her once again. Sometime thereafter, Kellar found out that Frank was ill. He came to the Florida office and discovered Mae Bowder once again employed as "office manager." He again discussed the matter with Frank and determined the extent of Frank's illness, which was terminal. He told Frank that Frank was too ill to be running the office full time and told Frank that he should only come to the office a few hours a day. Frank responded that he did not know what to do about his wife. Kellar then went to Mae Bowder and discussed with her the fact that he only wanted Frank to be at the office a few hours a day and that it was too difficult for Frank to continue working full time. He also told Mae Bowder that she should be staying home and taking care of Frank because Frank was so sick. Mae Bowder specifically asked Kellar if he were firing her, and Kellar responded "no" but that she should be staying home to take care of her husband. Mae Bowder "got in a huff," threatened two of the female office personnel, and left. Kellar did not see her again until the final hearing in this cause. Kellar began investigating the operations of the Florida office at that point and began discussing with the other employees there how the office had been managed. He discovered problems. He was told that the Bowders gave highly preferential treatment to Wayne Evans in comparison to the other employees. He discovered that Mrs. Bowder did not like to hire black employees, and the black employees who were hired were not given keys to the office. There was a stated policy by Mrs. Bowder to not hire people with children. Specifically, one black employee did not tell Mrs. Bowder that she had a child when she was hired. When she later became pregnant, Mrs. Bowder was furious. The employee was given one month for unpaid maternity leave and when she called at the end of that month, Mrs. Bowder told her she had been laid off. When she called two months later, the time by which her baby who was sick could be left with someone else, Mrs. Bowder returned her call a week later telling her she could come back to work because another black employee had left. Lastly, the other employees reported that Mrs. Bowder would yell and curse at them, threaten to hit them with an upraised hand, and even pushed and shoved an employee on one occasion because that employee had made a mistake in her work. The employees had previously not made these complaints because they could have only complained to the general manager who was the husband of the person about whom they would be complaining. Kellar brought an employee from the Washington office down to the Florida office to assist Frank Bowder and continued to pay Frank Bower his salary until he died. No evidence was offered that Kellar would not have continued to pay Mae Bowder her salary if she had reduced her hours in order to take care of Frank rather than walking out when Kellar tried to discuss the matter with her. No one else was present when Kellar and Mae Bowder had their discussion at the time when Mae Bowder resigned. Later that day, according to her son, Kellar made a comment that the Bowders had been the last of the married couples working for the company. Such a statement, if it were made, is susceptible of many interpretations, including sadness for the end of an era. Kellar did not fire Mae Bowder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore, RECOMMENDED that a Final Order be entered finding Exports, Inc., not guilty of committing an unlawful employment practice and dismissing Petitioner's Petition for Relief filed in this cause. DONE and RECOMMENDED this 26th day of May, 1989, in Tallahassee, Florida. LINDA M. RIGOT 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 26th day of May, 1989. COPIES FURNISHED: James R. McGlynn, Esquire 4633 10th Avenue North Lake Worth, Florida 33463 Kenneth L. Kellar President/Owner Exports, Inc. Post Office Box 449 Blaine, WA 98230 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact The Petitioner began his employment with the Respondent on or about April 9, 2004. The Petitioner worked as a houseman. This job description was within the Respondent's housekeeping section. His original schedule required him to work a shift that ran from 6:00 a.m. until 2:00 p.m. In October or November of 2004, the Petitioner's work schedule changed and he was directed to work the overnight shift. The overnight shift personnel reported for duty from 11:00 p.m. until 7:30 a.m. The Petitioner accepted this re-assignment. The change in shift assignment was requested by Elizabeth Cortes' predecessor. Some time after December 2004, the Petitioner's supervising manager changed and Elizabeth Cortes became the director or manager for housekeeping. The Petitioner asked Ms. Cortes if he could return to the 6:00 a.m. to 2:00 p.m. shift. That request was not approved. The Petitioner accepted this decision and continued to work as scheduled. Ms. Cortes told the Petitioner at that time that she did not have another employee who would be available to take the night shift. In 2007 the Petitioner enrolled in school and requested that his shift be changed to a 9:00 p.m. to 5:00 a.m. shift so that he could attend school at Miami Dade. That request was approved. From the time of approval, the Petitioner was permitted to work three days from 9:00 p.m. to 5:00 a.m. (his school days) and two days from 11:00 p.m. to 7:30 a.m. The modification of the schedule allowed the Petitioner sufficient time to get to school in the morning. The Petitioner continued to work these shift times without complaint or issue. In November or December of 2006, the Petitioner made an application to become a banquet server for the Respondent's restaurant. He alleged that he gave the application to Elizabeth Cortes who was to sign it and forward it to Human Resources. According to Esther Sandino, the Petitioner did not file an application for restaurant server. Further, Ms. Cortes did not recall the matter. The Petitioner did not file a claim of discrimination for this alleged incident but presumably alleged that this incident demonstrates an on-going disparate treatment. There was no evidence that a non- Haitian was hired for the job as banquet server. There was no evidence any banquet servers were hired. Ms. Cortes did not hire banquet servers. Her responsibilities were directed at housekeeping. During the time Ms. Cortes was the housekeeping supervisor, the Respondent employed approximately 90 employees within the housekeeping section. Of those employees approximately 70 were Haitian. The remainder were Hispanic, Jamaican, Filipino, and other. Of the five persons who held supervisory positions, one was Haitian, two were Hispanic, one was from Czechoslovakia, and the country of origin of the fifth supervisor was unknown to Ms. Cortes. Ms. Cortes did not have the authority to terminate the Respondent's employees. Standard procedure would cause any allegation of improper conduct to be referred to the Human Resources office for follow up and investigation. There were two incidents referred for investigation regarding the Petitioner prior to the incident of April 22, 2007. Neither of them resulted in suspension or termination of the Petitioner's employment with the Respondent. On April 22, 2007, a security officer reported to the hotel manager on duty, Bingina Lopez, that the Petitioner was discovered sleeping during his work shift. Based upon that report, Ms. Lopez sent an e-mail to the housekeeping department to alert them to the allegation. When the Petitioner next reported for work, Mr. Saldana told the Petitioner to leave the property and to report to the Human Resources office the next day to respond to the allegation. The Petitioner did not report as directed and did not return to the property. Mr. Saldana did not have the authority to suspend or terminate the Petitioner's employment. Moreover, the Respondent did not send a letter of suspension or termination to the Petitioner. In fact, the Respondent assumed that the Petitioner had abandoned his position with the company. Ms. Cortes presumed the Petitioner abandoned his position because all of his uniforms were returned to the company. To avoid having the final paycheck docked, the Respondent required that all uniforms issued to an employee be returned upon separation from employment. The Petitioner acknowledged that he had his brother return the uniforms to the Respondent for him. The Respondent considered turning in uniforms to be an automatic resignation of employment. To fill the Petitioner's position (to meet housekeeping needs), the Respondent contacted an agency that provides temporary staffing. The person who came from the agency for the assignment was a male Hispanic. The male (who may have been named Lewis Diaz) arrived at the Trump Resort for work about ten days after the Petitioner left. The replacement employee's schedule was from 4:00 p.m. to midnight or 1:00 a.m. The temporary replacement remained with the Respondent until a permanent replacement for the Petitioner could be hired. It is unknown how long that was or who the eventual permanent employee turned out to be. Because the Petitioner never returned to the Trump Resort as directed, he was not disciplined for any behavior that may have occurred on April 22, 2007. The Petitioner's Employee Return Uniform Receipt was dated April 25, 2007. Prior to the incident alleged for April 22, 2007, the Petitioner had been investigated in connection with two other serious charges. Neither of those incidents resulted in discipline against the Petitioner. Both of the incidents claimed improper conduct that was arguably more serious than the allegation of April 22, 2007. Of the 400 plus employees at the Respondent's resort, the majority are Haitians. The Respondent employs persons from 54 different countries. The Petitioner's claim that he was referred to as a "fucking Haitian" by a security guard has not been deemed credible. The Petitioner was unable to indicate when the comment was made. Moreover, the Petitioner did not complain to anyone at the time the comment was allegedly made. Finally, no other employee could corroborate that the comment was made. One former employee testified that the Petitioner told him about the alleged comment. At best it was one offensive statement made on one occasion. There is no evidence that the Petitioner was treated in a disparate or improper manner based upon his national origin.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 27th day of February, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 27th day of February, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141 Warren Jay Stamm, Esquire Trump International Beach Resort 18001 Collins Avenue, 31st Floor Sunny Isles, Florida 33160 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Respondent is a Public Employer within the meaning of Florida Statutes Section 447.203(2). Lloyd A. Perry was formerly an employee of the Respondent, and a public employee within the meaning of Florida Statutes Section 447.203(3). Dana E. Pratt was formerly an employee of the Respondent, and a public employee within the meaning of Florida Statutes Section 447.203(3). Prior to February 17, 1976, Lloyd A. Perry was employed by the Citrus County Road Department for a period of over four years. Immediately prior to the time that his employment was terminated, Perry was a roller operator. Except for rare occasions when he performed work as a flagman, or other work in conjunction with his roller work, Perry operated a tandem road roller. For the several months prior to February, 1976, Perry had continuously operated the same roller machine. Prior to February, 1976, none of Perry's supervisors informed him that his work was unsatisfactory, reprimanded him for performing work in an unsatisfactory manner, or indicated to him in any way that his job was in jeopardy for unsatisfactory performance of his duties. Dana E. Pratt had been employed by the Citrus County Road Department for approximately five years prior to February, 1976. For four years prior to that date he had been a motor grader operator. Pratt had annually received formal evaluations and his evaluations had always been very good. Prior to February, 1976, Pratt had never been criticized for below average or unsatisfactory work. He had never received any written reprimand for unsatisfactory performance on the job. From approximately December, 1973 until February, 1976, Perry had operated the newest grader machine in use by the Citrus County Road Department. No one else had operated the machine since it was acquired by the Citrus County Road Department. During February, 1976, Thomas Hutchinson was the Citrus County Road Superintendent. William Hitt was thee Assistant Road Superintendent. Hutchinson and Hitt served under the direction of the Citrus County Board of County Commissioners. Perry, Pratt, and numerous other employees of the Citrus County Road Department had, prior to February, 1976, become dissatisfied with conditions in the Road Department, primarily the manner of direction given the department by Hutchinson and Hitt. On Sunday, February 8, 1976, Perry drafted a petition specifying numerous grievances against Hutchinson and Hitt. It was his intention to secure the signatures of employees of the Road Department on the petition, and to present it to the Board of County Commissioners. Perry sought the assistance of County Commissioner DeBusk in drafting the petition. DeBusk offered several suggestions and his daughter typed the petition for Perry. Perry secured six or seven signatures on that Sunday. He was the first person to sign the petition, and Dana Pratt was the third. On Monday, February 9, Pratt informed his office that he had business to attend to and would not be at work that day. He did not claim sick leave for the time he missed. Prior to work and during the lunch hour he called as many employees of the Road Department as he could. After working hours he waited at a business establishment called the "Country Store" which was located in close proximity to the place where Road Department employees checked out of work. Forty-six employees of the Road Department signed the petition. Dana Pratt assisted in soliciting people to sign the petition. There was no evidence offered at the hearing from which it could be determined that those persons signing the petition did so other than freely and voluntarily. On Tuesday, February 10, 1976, Perry called his supervisor, Mr. Hutchinson, and told him that he had business to attend to. Hutchinson asked him if he was going to solicit more signatures. Perry told him that he was not. The Board of County Commissioners was meeting on that date, and Perry presented the petition to the Board. Members of the Board discussed the petition at length during the meeting. One commissioner asked Perry if he was big enough to go back to work and forget about the matter. Perry said that he was. On February 11, 1976 Perry returned to work at the regular time. Rather than being assigned to his regular duty as a roller operator, he was assigned to flag traffic for a grader operator. He continued in that capacity until Tuesday, February 17. On that date, at approximately 11:00 or 11:30 A.M. Tom Morton, the grader foreman, informed Perry that his employment was terminated as of 1:00 P.M. on that date. Both Morton and William Hitt told Perry that they did not know why he was fired. Dana Pratt attended the County Commission meeting on February 10. He was asked about whether he threatened a Road Department employee named Langley with respect to signing the petition. Pratt told the County Commission that he did not threaten Langley, and no evidence was offered at the hearing to establish that he did. On February 12, 1976, Pratt used the new grader machine that he had been using for some time prior thereto. At the end of that day his supervisors informed him that he would be using the oldest machine in the Department thereafter. He began using it on February 13. It took some time to get it started on that date. It also took some time to get it started on Monday, February 16. This was an old machine, and had been difficult to start for some years prior to the time that it was assigned to Pratt. At 12:30 on February 17, 1976, Tom Morton informed Pratt that his employment was terminated as of 1:00 P.M. on that date. Pratt was never given any reasons for his termination. On February 17, 1976, the Citrus County Board of County Commissioners acted to terminate the employment of Perry and Pratt. These actions were taken upon the recommendation of Mr. Hutchinson. Ostensibly the reason for Pratt's termination was that he had marked out on sick leave on a day when he was not sick. Ostensibly the reason for Perry's termination was that he had been missing from the job for approximately an hour. The evidence would not support a finding that Perry and Pratt were fired for these reasons. These reasons offered by Hutchinson, and followed by the Board of County Commissioners, were used as a ruse. On February 18, 1976, the day after Pratt and Perry were fired, Hutchinson called a meeting of all employees of the Road Department. Hutchinson told the employees that he had nothing to do with the termination, but he also told them that he would tolerate no more petitions and that if anyone did not like working conditions at the Road Department they could leave. He said that he had four County Commissioners in his pocket, and he reminded the employees that unemployment in Citrus County was high. He told the employees that he would take care of any petitions they distributed. During the week the petition was distributed, Hutchinson told one employee of the Road Department, James Johnson, that Johnson could be put in jail for signing the petition. During that same week he told his assistant superintendent, William Hitt, that all of the men who signed the petition had to go. After Perry and Pratt were fired, Hutchinson told Hitt that he got two, and he would get the rest. The basis for Hutchinson's recommendation to the Board of County Commissioners that Perry and Pratt be terminated was the fact that they participated in the distribution of the petition, and presenting it to the Board of County Commissioners. There was no evidence offerred at the hearing to indicate that any members of the Board of County Commissioners knew Hutchinson was presenting false reasons for the terminations; however, they did act to adopt the recommendation. The Board of County Commissioners did know that Pratt and Perry were among the leaders in distributing the petition highly critical of Hutchinson's work, and was clearly on notice that Hutchinson may have ulterior motives in recommending their dismissal.
The Issue Whether Respondent committed the unlawful employment practice as alleged in the Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Petitioner is a black male and is part of a group of persons protected from unlawful discrimination. Petitioner was formerly employed by Respondent and served initially as an usher for Respondent’s business. Respondent operates theaters and concessions in Florida, and employs a number of individuals, none of whom are employed on a “full-time” schedule. Only the manager, Cindy Palmer, is considered a full-time employee. During the school year when attendance at the theaters may be presumed to be down, Respondent offers fewer hours to its employees. Conversely, during the summer months, employees may be offered more hours. Respondent’s employees are asked to fill out a form that indicates the amount of hours they are available to work and the days upon which those hours may be assigned. Pertinent to this case, Petitioner advised Respondent that he was available to work only on Fridays, Saturdays, Sundays, and Tuesdays. Petitioner asked that he be given 40 hours per week. When Petitioner applied for employment with Respondent he was required to answer a number of questions. One of the questions, aimed at addressing the seasonal aspect of Respondent’s work demands, asked: “During slow periods when school is in session, there may be only 10 to 15 hours a week to work. Is this ok?” Petitioner answered “yes.” Petitioner failed to show that any employee was given more hours than he during the slow work periods. Respondent did not cut Petitioner’s hours during his employment at the theater. Respondent did not fail to consider Petitioner for any promotion or wage increase that he applied for during his employment. Petitioner presented no evidence that any employee was more favorably treated in the assignment of hours or promoted over him. Petitioner did not apply for any promotions. Petitioner’s verbal interest in seeking additional skills was never formalized or written to management. Despite postings of methods to complain to upper management regarding the theater operations, Petitioner never notified Respondent of any problems at the theater that would have suggested racial discrimination on Respondent’s part. In fact, when he completed an investigative form on an unrelated matter, Petitioner did not disclose any type of inappropriate behavior by any of Respondent’s employees. Petitioner’s response to the question, stated that he “hadn’t seen anything inappropriate, just bad attitude.” During the period July 2010 through November 2011, Petitioner received a number of “write-ups” citing performance deficiencies. Similar “write-ups” were issued to non-black employees. Petitioner did not establish that he was written up more than any other employee. More important, Petitioner did not establish that the deficiencies described in the write-ups were untrue. Respondent’s Employee Handbook (that Petitioner received a copy of) prohibits discrimination on the basis of race. Methods to complain to upper management, including a toll-free number, were open to Petitioner at all times material to this case. Except for the filing of the instant action, Petitioner never availed himself of any remedy to put Respondent on notice of his claim of discrimination, nor the alleged factual basis for it. Petitioner was directed to leave the theater after a verbal disagreement with his supervisor, Ms. Palmer. Petitioner’s take on the matter is that he was fired by Respondent. Respondent asserts that Petitioner voluntarily quit based upon his actions and verbal comments to Ms. Palmer. Regardless, Petitioner’s race had nothing to do with why he ultimately left employment with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by Petitioner and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of July, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 9th day of July, 2012.
The Issue Whether Respondent, Momma G’s, Inc. (“Momma G’s”), violated the Florida Civil Rights Act of 1992, sections 760.01 through and 509.092, Florida Statutes(2015),1/ by discriminating against Petitioner (“Scarlett Evans” or “Ms. Evans”) or by retaliating against her for participating in a protected activity.
Findings Of Fact Momma G’s is a sandwich-shop franchise consisting of franchisees and company-owned stores. Ms. Evans is a female who began working at a Momma G’s franchise located in Panama City, Florida (“the restaurant”), in October of 2013. Ms. Evans started as a cashier, and her good performance led to her being promoted to shift leader in May of 2014. A few months later, the franchise owners asked Ms. Evans to become the restaurant’s general manager because the current general manager was doing a poor job. While employed as the restaurant’s general manager, Ms. Evans typically worked Monday through Friday for 35 to 40 hours a week. Ms. Evans occasionally worked weekends in order to account for inventory, and she asserts that she had no problem with working weekends. In approximately December of 2014, the restaurant’s three owners notified Momma G’s corporate headquarters that the restaurant was struggling. The restaurant was six months behind on its rent, and the landlord was threatening eviction. In addition, the owners had accumulated over $300,000 in bank debt. Because closings damage a restaurant chain’s image, Momma G’s corporate headquarters negotiated a deal in which the franchisor acquired the restaurant and would operate it as a company-owned store. Accordingly, Momma G’s assumed control of the restaurant on May 1, 2015. Momma G’s did not fire any of the restaurant’s employees, but it did require all of them to re- apply for positions at the restaurant. Mike Davis is the vice president of Operations for Momma G’s. At the times relevant to the instant case, he oversaw 30 restaurants. Once Momma G’s corporate headquarters completed the negotiations to acquire the restaurant, Mr. Davis immediately drove to Panama City in order to oversee the transition. Mr. Davis contacted another Momma G’s employee (Sam Ferminella) and asked him to assist with the transition. Mr. Ferminella was a general manager who had proven to be proficient in turning around troubled stores. After the May 1, 2015, acquisition, Mr. Davis remained in Panama City for approximately three days to oversee the transition. Mr. Ferminella was more involved with improving the restaurant’s day-to-day operations, and he spent approximately to 11 days in Panama City during the first three weeks after the acquisition. At some point during the 10 to 11 days following the acquisition, Ms. Evans talked to Mr. Davis and/or Mr. Ferminella about continuing as the restaurant’s general manager. It is unclear what Ms. Evans was told, but there is no dispute that she was essentially in charge of the restaurant after Mr. Ferminella left Panama City following his initial 10-to- day visit. Rather than being a salaried employee, Ms. Evans was paid by the hour before and after the acquisition. On May 11, 2015, Ms. Evans learned that the restaurant’s general manager position was being advertised on- line. She texted Mr. Ferminella to inquire about the situation, and he promptly called her. Ms. Evans alleges that Mr. Ferminella told her during that conversation that Momma G’s cannot have a single mother working as a general manager because the restaurant needs someone who can work long hours, be available any day of the week, and respond on a moment’s notice if there is a problem at the restaurant. That conversation prompted Ms. Evans to file a complaint with the Equal Employment Opportunity Commission (“the EEOC”) on May 20, 2015. Momma G’s learned of Ms. Evans’ complaint on approximately May 25, 2015. On May 26, 2015, Sandy Gnad (who was responsible for Human Resources at Momma G’s) contacted Ms. Evans via telephone and e-mail. Ms. Gnad wanted to know if there was something she could do to help. Mr. Davis learned of the complaint at some point in June of 2015. After Momma G’s learned of her complaint, Sam Moore began working as the restaurant’s general manager, and Ms. Evans claims that her work hours were reduced. According to Ms. Evans, she typically worked 35 to 40 hours a week. However, her hours were allegedly reduced to 20 to 30 a week in late May. In addition, there were occasions when she would be released after two to two and one-half hours of work when she had been scheduled to work six hours. Ms. Evans was the restaurant’s highest paid hourly worker. Ms. Evans alleges that the restaurant was having trouble keeping up with demand at some point that summer. According to Ms. Evans, Mr. Davis dealt with the problem by increasing Ms. Evans’ hours and splitting the general manager duties between Ms. Evans and Mr. Moore. At that point, Ms. Evans asserts that the only difference between her and Mr. Moore was that he was a salaried employee, while Ms. Evans was still paid by the hour. Mr. Moore resigned from the restaurant at the end of June, and Ms. Evans had been acting as a de facto general manager. Ms. Evans filed a complaint of discrimination with the FCHR on July 8, 2015, alleging that she was not hired for the restaurant’s general manager position because she is a single mother. On August 7, 2015, Ms. Evans and a co-worker named Sierra Kennedy were at the restaurant prior to 10:00 a.m. and were preparing to open the store at 10:30 a.m. Mr. Davis had made an appointment to interview Stefanie Flaugher at the restaurant for the vacant general manager position, and Ms. Flaugher arrived at approximately 9:45 a.m. on August 7, 2015, for her 10:00 a.m. interview. However, Mr. Davis had not arrived, and Ms. Flaugher was standing outside the restaurant waiting for him. Ms. Evans had to make a bank deposit, and she encountered Ms. Flaugher on her way out of the restaurant. Ms. Flaugher told Ms. Evans that she was there to interview with Mr. Davis for the general manager position. Ms. Evans expressed frustration and told Ms. Flaugher that the general manager position was her job, and proceeded to the bank. When Ms. Evans returned to the restaurant, Mr. Davis was interviewing Ms. Flaugher in a booth. At some point during the interview or soon thereafter, Mr. Davis approached Ms. Kennedy and said something to the effect that, “So Scarlett quit.” When Ms. Kennedy reported that Ms. Evans had not resigned, Mr. Davis turned back to the booth where Ms. Flaugher was still sitting and stated, “No, she did not quit.” According to Ms. Kennedy, Mr. Davis appeared to be excited when he thought that Ms. Evans had resigned. However, his excitement reportedly turned to disappointment after Ms. Kennedy corrected him. Mr. Davis remained at the restaurant for approximately two hours after the interview concluded. During that time, he worked on his laptop, walked around the store, and did paperwork. He never seemed excited or upset. Mr. Davis said nothing of any significance to Ms. Evans. On August 11, 2015, Ms. Evans received a message that Ms. Gnad wanted to speak with her. After she and Ms. Kennedy finished serving the restaurant’s lunchtime customers, Ms. Evans returned Ms. Gnad’s call. Upon reaching Ms. Gnad, Ms. Evans learned that the call was being recorded and that Mr. Davis was joining the call. Upon joining the call, Mr. Davis stated that Ms. Flaugher had reported to him that Ms. Evans had used the “f- word” when they conversed outside the restaurant on August 7, 2015. Mr. Davis had hired Ms. Flaugher to be the restaurant’s general manager, and he wanted Ms. Evans to sign a letter stating that she would respect Ms. Flaugher’s authority. In addition, the letter noted that Ms. Evans had “rudely spoke[n] to a manager candidate who was waiting outside for an interview, addressing her disrespectfully and using the ‘f’ word multiple times.” Mr. Davis told Ms. Evans that she could either sign the letter or resign. Ms. Evans vehemently denied using any profanity during her conversation with Ms. Flaugher. Prior to this phone conversation, Ms. Evans had not been given a copy of the letter Mr. Davis wanted her to sign. When Ms. Evans refused to sign the letter after hearing a description of its contents, Mr. Davis fired her. Ms. Kennedy resigned that day. Testimony Adduced at the Final Hearing Ms. Evans testified that Mr. Ferminella told her in May of 2015 that Momma G’s could not have a single mother as a general manager because the position essentially requires one to be available at all times. Mr. Ferminella testified that Momma G’s has hired single mothers to fill general manager positions, and he denied ever telling Ms. Evans that she was ineligible for the general manager position. He testified that Ms. Evans had been hired as a “supervisor” in May of 2015 and that he never told anyone to reduce Ms. Evans’ hours. Mr. Ferminella testified that the highest paid hourly worker in a restaurant is typically released early on days when business is slow. Mr. Davis testified that he had agreed to hire Ms. Evans as an hourly supervisor. Her responsibilities included management of the restaurant’s daily operations, managing other employees, and purchasing. Mr. Davis denied telling anyone to reduce Ms. Evans’ hours. He also testified that the restaurant industry has a practice of releasing the highest paid hourly worker early when business is slow on a particular day. That helps keep costs down. Mr. Davis testified that Momma G’s has hired single mothers to fill general manager positions in the past. Mr. Davis testified that Ms. Flaugher told him during her interview about her conversation with Ms. Evans. According to Mr. Davis, Ms. Flaugher told him that Ms. Evans had used the “f-word” during that conversation. Mr. Davis testified that use of the “f-word” by a Momma G’s employee results in immediate termination. Nevertheless, Mr. Davis did not take immediate action. Instead, he testified that he had to “listen and investigate and take time, and then report to my direct report2/ the conversation. And, you know, that’s the way things work. Things were very – move very slowly in this business, making decisions.” Mr. Davis also testified that he hired Ms. Flaugher to be the general manager of the restaurant in Panama City. According to Mr. Davis, Ms. Flaugher accepted the offer and reported for training at a Momma G’s restaurant in Auburn, Alabama. Momma G’s even reserved a hotel room for her while she was training in Auburn. However, Ms. Flaugher supposedly left the week-long training after a few days without giving notice of any kind to Mr. Davis or anyone else associated with Momma G’s. During the final hearing, Mr. Davis attributed Ms. Flaugher’s sudden and unexplained disappearance to her being “traumatized” by her conversation with Ms. Evans on August 7, 2015. As noted above, Ms. Gnad performed human relations work for Momma G’s, and she testified that Mr. Davis “has complete authority to hire or fire whoever he wants” at a Momma G’s owned store without needing anyone else’s approval. However, her statement only applied to certain Momma G’s stores, and it is unclear whether Mr. Davis had such authority at the Panama City restaurant. Ultimate Findings of Fact Ms. Evans failed to establish that Momma G’s discriminated against her when she was not hired for the general manager’s position. Ms. Evans also failed to prove that Momma G’s retaliated against her by reducing her hours during the summer of 2015. However, Ms. Evans did prove that Momma G’s effort to discipline her, and ultimately terminate her, based on the conversation with Ms. Flaugher, was retaliation for filing complaints with the EEOC and the FCHR. The testimony of Ms. Evans and Ms. Kennedy was far more credible than Mr. Davis’s. In particular, the undersigned credits Ms. Kennedy’s testimony that Mr. Davis approached her and excitedly said something to the effect that, “So Scarlett quit.” After Ms. Kennedy corrected him, Mr. Davis appeared to be disappointed, turned back to the booth where Ms. Flaugher was still sitting, and stated, “No, she did not quit.” That testimony indicates Mr. Davis was hoping that Ms. Evans’ employment at the restaurant would come to an end. During his testimony, Mr. Davis was adamant that a Momma G’s employee would be immediately terminated for using profanity. However, when he supposedly learned from Ms. Flaugher on August 7, 2015, that Ms. Evans had used the “f-word,” he took no action whatsoever despite being at the restaurant with Ms. Evans and Ms. Kennedy for approximately two hours after the interview had concluded. His lack of prompt action belies Mr. Davis’s assertion that he needed to conduct an investigation. Any such investigation would have included a prompt discussion with the accused (i.e., Ms. Evans). In addition, Mr. Davis simply accepted a statement made by a complete stranger without conferring with an employee who was regularly in charge of the restaurant. In short, there was no true investigation and no intent to conduct one. The undersigned also has a difficult time reconciling Mr. Davis’s assertion that Ms. Flaugher was “traumatized” by her encounter with Ms. Evans when Ms. Flaugher: (a) agreed to be the general manager at the restaurant; (b) traveled to Auburn, Alabama, for one week of training; and (c) attended a few days of that training prior to leaving with no explanation. If Ms. Flaugher was so traumatized, it seems very unlikely that she would have accepted Mr. Davis’s job offer. It is even more unlikely that one so traumatized would travel from her home for a week-long training session and suddenly realize after a few days of training that she could not accept the general manager position. By attributing Ms. Flaugher’s unexplained disappearance to being traumatized by her conversation with Ms. Evans, Mr. Davis demonstrates a pretextual basis for his desire to have Ms. Evans’ employment at the restaurant end. Finally, Mr. Davis’s credibility was also undermined by his demeanor on the witness stand. He appeared to be very nervous or uncomfortable when cross-examined by Ms. Evans’ attorney, and he appeared even more nervous or uncomfortable when the undersigned questioned him about certain aspects of his testimony. In sum, Mr. Davis’s failure to obtain Ms. Evans’ version of what happened outside the restaurant on August 7, 2015, demonstrates that the effort to discipline her on August 11, 2015, was a pretext for retaliating against her for filing complaints with the EEOC and the FCHR. In other words, Mr. Davis had no interest in conducting an actual investigation and giving Ms. Evans an opportunity to rebut Ms. Flaugher’s assertion. Rather than being motivated by a desire to ascertain what actually happened outside the restaurant on August 7, 2015, Mr. Davis was motivated by a desire to take some sort of adverse action against Ms. Evans. There is no other reasonable conclusion because all of the evidence indicates that Ms. Evans was a good employee. Mr. Ferminella testified that Ms. Evans would have been considered for the general manager position if she had been willing to work the required hours and be a salaried employee. Also, even after Momma G’s acquired the restaurant, Ms. Evans continued in a leadership role, even though she was never officially designated as the restaurant’s general manager. The evidence and testimony presented at the final hearing demonstrates that there was a causal connection between the filing of Ms. Evans’ complaints and the adverse employment action at issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order awarding Scarlett Evans back pay, a reasonable attorney’s fee, and any other relief she is entitled to under section 760.11, Florida Statutes. DONE AND ENTERED this 26th day of May, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 26th day of May, 2016.
Findings Of Fact The Petitioner was employed with the Respondent from August 3, 1985 until May 10, 1986, as a waitress in the dining room of the Kings Inn Restaurant in Pensacola, Florida. In March, 1987, the Petitioner became pregnant. She then informed her employer, Mr. Judge of her pregnancy. He told her initially that she could work as long as the doctor allowed her to. Shortly thereafter, he told her that she could not work after five months of pregnancy. On another occasion, his assistant manager, Mr. Dungan, told her that she could not work after she "started showing." Once the Respondent, Mr. Judge, learned of the Petitioner's pregnancy, he began a regime of harassing treatment. For instance, Mr. Judge made her do the "side work," filling up all the salt and pepper shakers and sugar bowls for all of the waitresses and waitress stations. It had always been uniform policy that each waitress had the responsibility to do her own side work for her own station and tables. Mr. Judge also began yelling and cursing at her in front of her workers and customers, causing her great humiliation and embarrassment. He criticized her publicly about her posture and the way she serviced customers, although she had always had an excellent record as a competent waitress and had no complaints from customers or former employers, before announcing that she was pregnant. Mr. Judge also began a practice of constantly questioning other employees about the Petitioner's job performance, although he apparently learned of no substandard performance in both her duties and her attitude toward her customers. He also took her to task about her "charge tips" being less than other employees, apparently the measure he used to determine if a waitress was serving her customers appropriately and adequately. This situation, however, was caused by his discriminatory conduct toward her in giving her fewer tables to serve and thus, reducing her tip income. Mr. Judge additionally assigned her to clean up a portion of the kitchen area, particularly the "bread shelves" when normal policy had been for kitchen personnel to perform all kitchen clean-up duties, with any clean up of the bread shelf area being rotated amongst the dining room personnel. The Petitioner, however, was singled out for this duty exclusively after it became known that she was pregnant. The Petitioner was also required to stay late and perform certain closing duties at the end of business late at night, much more often than other waitresses. In addition to performing restaurant closing duties, she was frequently required to wait on cocktail tables as late as 2:00 in the morning on many of the "late duty" occasions, even though she was hired as, and until she became pregnant worked exclusively as, food waitress. Petitioner's testimony and Petitioner's exhibit 2, in evidence, establishes that, although Petitioner was only scheduled to stay late three times in March, three times in April and once in May that, in fact, she worked late, that is, after all other employees or waitresses had been released for the evening seven out of nine days that she worked in March; nine out of twelve days she worked in April; and six out of the seven days she worked in May. Indeed, on May 10, 1986, the last day she worked for the Respondent, Mr. Judge required her to stay late and to "bus" all the tables, that is clean all the tables, in the dining room, allowing the waitress who was scheduled to stay late that night to leave early. The Petitioner became quite upset at this turn of events and resigned her position, due to the repeated pattern of harassment as described herein. Although Mr. Judge initially told the Petitioner that she could work as long as the doctor allowed her to during her pregnancy, in fact, on April 11, 1986, Mr. Judge hired the Petitioner's replacement. He hired Pamela Modes and had the Petitioner train her in her waitress duties. He stated to Ms. Modes privately when hiring her "that he needed a food waitress" because "he's got a girl that's pregnant." Additionally, he told the Petitioner that he objected to her working because of her pregnancy and claimed his insurance would not allow him to employ her after she was five months pregnant. These statements, coupled with the statement by his assistant manager, Mr. Dungan, to the effect that she would not be employed there "once she started showing" reveal an intent by the employer to terminate the employee, the Petitioner, because of her pregnancy. Instead of terminating her outright, the Respondent chose to put sufficient pressure on the Petitioner through extra, unscheduled work duties and the other above-mentioned forms of harassment, so as to coerce her into leaving the Respondent's employ. The Petitioner thus made a prima facia showing that she was forced to terminate employment due to her sex and her pregnancy, and no countervailing evidence was adduced by the Respondent.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and the demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida Human Relations Commission finding that an unlawful employment practice has occurred through the Respondent's discrimination against the Petitioner because of her sex (pregnancy) and that she be accorded all relief allowed under the above- cited section, including backpay and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ORDERED this 21st of March, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 21st day of March, 1989. COPIES FURNISHED: Debra A. Larson, Pro Se 9742 Aileron Avenue, Apt. 606 Pensacola, Florida 32506 Dracut Corporation d/b/a Kings Inn Restaurant Lawrence F. Judge, Jr. Owner/General Manager 1309 Maldonado Pensacola Beach, Florida 32561-2323 Donald A. Griffin Executive Director Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The central issue in this case is whether Petitioner's employment with the Respondent was terminated in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the documentary evidence received at the hearing, the following findings of fact are made: At all times material to the allegations of this case, Petitioner was an employee of FRSA. On or about September 26, 1989, Petitioner's employment with FRSA was terminated and the charges of discrimination were filed. Prior to termination, Petitioner's work performance with the company had been acceptable. In fact, for the performance review issued on January 31, 1989, Petitioner received a superior rating in eight of the eleven categories, a good rating in two categories, and an outstanding rating in one category. At the time of her termination with FRSA, Petitioner earned an annual salary of $35,000. Petitioner claims a total of $83,568 for the lost wages and benefits resulting from her termination with FRSA. At the time of her termination, Petitioner was pregnant.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the charge of discrimination filed by the Petitioner in this cause against the Respondent. DONE and ENTERED this 4th day of September, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 COPIES FURNISHED: Elizabeth Rubeis Reno Rubeis 4350 Wyndcliff Circle Orlando, Florida 32817 Susan McKenna Garwood & McKenna, P.A. 322 East Pine Street Orlando, Florida 32801 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1992. Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
