Findings Of Fact Martin Marietta Corporation is a multi-state, multi- national defense contractor. Respondent functions as one of its primary divisions/operations in Orlando, Florida. The Petitioner, Frank Maggio was born on April 3, 1914. Petitioner was employed by Respondent on June 16, 1981 in the position of Quality Control Fabrication Inspector A (Fate A Inspector) at Respondent's Orlando facility. Respondent's primary role within the overall corporate operation is the production of highly sophisticated, high-tech missile systems. The development and production of these weapons is maintained under tight security due to the involvement of the national defense effort. Because of Respondent's participation in military and defense programs, the manufacturing process is constantly reviewed and critically inspected by governmental agencies. The Respondent utilizes "state-of-the-art" machines and equipment on its advanced, technical and highly complex defense projects. Petitioner's responsibilities as a Fab A Inspector included checking the first piece of hardware off of the machines, qualifying the tape that runs the machine with his stamp and checking the dimensions of the first layout. This procedure is referred to as a set-up and, once "bought off" "accepted) by the "A" inspector, it establishes the critical reference point or benchmark for the sophisticated, state-of- the-art-manufacturing processes of the Respondent. Respondent's operations involve the manufacture or production of weaponry or weapons systems that require tolerances The Petitioner was given a warning that another similar incident might result in further disciplinary action, up to and including discharge and specifications which are not found or even known in consumer oriented production plants. Certain pieces of equipment used will drill and measure within one one-thousandth of an inch (1/1,000"). The integrity of the highly integrated and closely coordinated production procedures depends upon the correct initial setting, which "commits" the production process. If the initial setting is off or in error, nonconforming parts or items will be manufactured. If the nonconforming parts cannot be reworked or brought into tolerances, they are regarded as scrap and represent a loss to the company. The Petitioner functioned as the only Fab A Inspector on the second shift with very little, if any, supervision. "B" and "C" Inspectors were present, but not performing in a capacity that could provide a backup for Petitioner. In February, 1983, Petitioner functioned under the direct supervision of Charles Holley, Chief Quality Inspector. Although both men worked on the second shift, Petitioner performed as a Fab A inspector and was responsible for making the initial, critical decisions on "set-up" tapes for the second shift production operations. On April 5, 1983, while on his second shift assignment, Petitioner "bought off" on a first piece inspection in order to qualify a newly released tape. On April 7, 1983, the first shift rejected a piece on that particular tape because the dimensions were out of tolerance. Subsequently, after a second inspection of the piece by the senior tool inspector, it was determined that the part was non-conforming and out of tolerance. This error lead to the production of approximately 180 pieces of "scrap" and a loss of about $100,000. As a result of this incident, Mr. Holley, Petitioner's superior, completed a Significant Incident Report (S.I.R.) dated April 18, 1983, which was placed in Petitioner's personnel file. Pursuant to routine procedure, Petitioner was counseled about the S.I.R. and given an opportunity to respond. The Petitioner was given a warning that another similar incident might result in furhter disciplinary action, up to and including discharge. Following the April, 1983 incident, Mr. Holley felt that Petitioner's work performance began to decline. Mr. Holley was dissatisfied because Petitioner often used scales for measurements at times when Mr. Holley believed that calipers should have been used. In addition, Petitioner used his lunch break to take naps, and several times he was late returning to work. Sometime in late September or early October, the Petitioner approved a piece of hardware similar to that involved in the April, 1983 incident and it too was rejected for being out of tolerance. Following this incident, Mr. Holley once again went to the Personnel and Industrial Relations Department (S.I.R.) attempting to have another S.I.R. placed in Petitioner's file. However, the management in P.I.R. did not allow the report to be placed in Petitioner's file. Subsequently, Petitioner was not reprimanded or otherwise disciplined and no official record was kept of this incident. During February, 1984, a "set-up" error by Petitioner on a secret laser tracking missile project know as "Hell-Fire" caused unusable parts to be manufactured and a financial loss to Respondent. Prior to submitting an S.I.R., Mr. Holley met with management in the Personnel and Industrial Relations Department to discuss the Petitioner's situation. It was at this time that Mr. Thomas Mallis, supervisor of employee relations, seized upon the idea of Petitioner's upcoming 70th birthday on April 3, 1984 as a way in which to be rid of Petitioner. Mr. Mallis reasoned that rather than attempting to terminate Petitioner for cause, Petitioner's 70th birthday would provide a point where Petitioner could be "gracefully retired" under Martin Marietta Corporation's corporate retirement policy. Martin Marietta Corporation has a nationwide corporate retirement which requires retirement at age 70. Generally, the company does not enforce this requirement at facilities which are located in states where such a policy violates age discrimination laws. Likewise, Respondent does not generally enforce the corporate wide retirement policy at its Orlando facility because it is subject to Florida state law concerning age discrimination. As of April 4, 1984, Respondent employed approximately 11,000 employees. Approximately 5,017 of those employees were 40 years of age and a small number were over 70. Although the company's age 70 retirement policy is not generally enforced at Respondent's Orlando facility, the retirement plans provided by the company and the benefits package negotiated by the union with the company for retirement pay focus on age 70 as the point at which retirement benefits mature or "top out." After age 70, no further benefits accrue under the retirement plan. Thus, as a matter of established practice and/or expectation on the part of the employees, virtually all workers have retired or plan to retire on or before their 70th birthday. Therefore, Mr. Mallis believed that having respondent "retire" at age 70 would be an easy non-confrontational way to terminate Petitioner's employment. As a member of the United Aerospace Workers local bargaining unit, Petitioner would have had the right to object and file a grievance concerning any proposed termination for cause by Respondent. By "retiring" Petitioner under the corporate policy, Mr. Mallis believed that a "bitter challenge" under the union's often cumbersome grievance/arbitration procedures could be short-circuited. Under the Respondent's progressive discipline system, generally employees are given 3 to 5 S.I.R.'s or written warnings before any stronger action is taken. At the time of his involuntary retirement by Respondent on April 4, 1984, the Petitioner was not vested under the company's retirement program and was not entitled to any benefits thereunder.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that a Final Order be entered finding that the Respondent is guilty of a violation of Section 760.10, Florida Statutes and awarding the Petitioner attorney's fees. It is further RECOMMENDED that the Petitioner be reinstated to his former position. The Respondent may seek to institute proceedings within 30 days from the date of the final order to terminate Petitioner for cause based on his work performance up to April 4, 1984. If the respondent is barred from attempting to terminate Petitioner for cause based on those past incidents for whatever reason, if Respondent chooses not to institute termination proceedings, or if the Respondent successfully defends any termination proceedings, then the Petitioner shall be entitled to back pay for the statutory maximum of two years. DONE and ORDERED this 18th day of August, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1986. COPIES FURNISHED: Joseph Egan, Jr., Esquire Post Office Box 2231 Orlando, Florida 32802 Thomas C. Garwood, Jr., Esquire 57 West Pine Street, Suite 202 Orlando, Florida 32801 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner (None submitted) Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 2. Adopted in Findings of Fact 1 and 3. Partially adopted in Findings of Fact 14 and 16. Matters not contained therein are rejected as misleading. Partially adopted in Finding of Fact 15. Matters not contained therein are rejected as misleading. Adopted in Finding of Fact 5. Adopted in Findings of Fact 4, 5, and 6. Adopted in Finding of Fact 7,/ Partially adopted in Finding of Fact 8. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 9. Matters not contained therein are rejected as subordinate. Rejected as subordinate. Partially adopted in Findings of Fact 10 and 11. Matters not contained therein are rejected as unnecessary and subordinate. Partially adopted in Findings of Fact 13, 14, 16, and 17. Matters not contained therein are rejected as not supported by competent substantial evidence and/or subordinate. In particular, the finding that the "Petitioner under normal circumstances, should have been discharged for his pattern of poor performance and the associated financial impact upon the company" is rejected as not supported by competent substantial evidence. Partially adopted in Finding of Fact 19. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Rejected as argumentative and/or subordinate. ================================================================ =
The Issue Whether Respondent, Cracker Barrel Old Country Store (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, Reza Mahallaty (Petitioner), be granted.
Findings Of Fact Petitioner did not testify in this case. Based upon the undisputed testimony of the witnesses, Petitioner was employed by Respondent and served as a senior assistant manager (SAM). At all times material to the allegations of the case, Respondent employed Petitioner. As a nationally recognized purveyor of food and goods to the public, Respondent presumably employs more than 15 employees. At all times material to this matter, Respondent used a management structure at its stores that included managers in training, assistant managers, senior assistant managers, and general managers. Persons seeking to become general managers typically work their way through the ranks and serve as a SAM before promotion to general manager of a store. On or before August 2010, Petitioner sought a position with Respondent as a general manager. He did not get the promotion. Thereafter, he filed the underlying complaint with FCHR. The complaint stated: I have been employed by Cracker Barrel Old Country Store since June 26, 2006. My most recent position is Senior Associate Manager. I hereby allege that I have been discriminated against due to my race and national origin in violation of Title VII of the Civil Rights Acts of 1964. The foregoing allegations were made under penalty of perjury and for purposes of this case have been accepted as to the facts alleged, but not as to the legal conclusion of discrimination. Petitioner presented no evidence as to his race or national origin. Petitioner’s Petition for Relief reiterated his conclusion that he had been discriminated against based upon his claim of being Iranian and of Persian origin. In addition to not having received promotions, Petitioner included complaints about retaliation that were not addressed by the FCHR. As previously indicated, retaliation issues are not part of the determination that was presented for administrative review. With regard to Petitioner’s attempt(s) to be promoted prior to August 2010, Petitioner did not present evidence that he was more qualified than the applicant Respondent chose. Respondent uses an interview process that rates the candidates for general manager by a selection team. The selection team looks at the candidates’ credentials, history with the company, and responses to the interview questions to rate each applicant for the position sought. Petitioner did not present evidence that he had achieved a higher score in the rating process than the applicant chosen. Petitioner did not present evidence that Respondent knew or should have known Petitioner was the best qualified candidate for the position of general manager. Petitioner did not present evidence that Respondent selected a candidate for general manager that had fewer years of employment with the company than Petitioner. Petitioner did not present evidence that any general manager Respondent selected in preference to Petitioner was of a race or national origin that received special deference over Petitioner. Other than Petitioner’s assertion that he must have been denied promotional opportunities due to his race and national origin, Petitioner failed to establish bias on Respondent’s part. To the contrary, Respondent asserted that Petitioner was not qualified to be a general manager because he was unwilling to master and fully support the company’s core operating systems, the company’s philosophies, and the company’s initiatives. Petitioner presented no credible evidence to refute Respondent’s assertion.
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 finding no cause for an unlawful employment practice as alleged by Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 10th day of April, 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 10th day of April, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Shane T. Munoz, Esquire Ford and Harrison, LLP 101 East Kennedy Boulevard, Suite 900 Tampa, Florida 33602 Reza Mahallaty 656 English Lake Drive Winter Garden, Florida 34787 Larry Kranert, General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Respondent committed the unlawful employment practice alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations (“FCHR”) on or about September 9, 2014, and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence presented at hearing, the undersigned makes the following findings of material and probative facts: TESTIMONY OF PETITIONER, CARYL ZOOK Petitioner, a 61-year-old female born in 1954, worked as a private chef for Mr. Friedkin, owner of Respondent. She began in 2007 and was an “at will” employee, there being no written employment contract. Her duties included providing dinners and other meals at Mr. Friedkin’s residence, catering or assisting him with some events, and overseeing some of the other staff members at his residence. Petitioner was in an auto accident in 2011 and suffered neck injuries. Petitioner required physical therapy, acupuncture, steroid injections, and several x-rays. After Petitioner was terminated from Respondent in September 2013, she underwent surgery to remove several bad vertebrae from her neck area. Due to her neck injury and pain, Petitioner testified that she needed to park close to Mr. Friedkin’s house to carry groceries as a reasonable accommodation. Other than the inference drawn from this scant evidence, there was little, if any, direct or circumstantial evidence presented to prove that Respondent had knowledge of a qualifying disability by Petitioner.1/ Petitioner characterized Mr. Friedkin’s behavior over the years as insulting and abusive, and she endured it for many years. There was an arrangement between Petitioner and Friedkin for him to purchase a home for her to live in. She would repair or remodel the home, and at some point, he would transfer the mortgage and home to her.2/ For the Yom Kippur holiday, Mr. Friedkin contacted Petitioner and instructed her to prepare a dinner for his family and to have it ready at 3:00 p.m. that day. Typically, meals were prepared by Petitioner at Mr. Friedkin’s home. However, this one was prepared at Petitioner’s home because, as she testified, it “needed to be brined” in her refrigerator in advance. Petitioner was admittedly running late and did not have the meal prepared by 3:00 p.m. Mr. Friedkin called her while she was driving to his house but she did not answer the phone. When she arrived at his house, Mr. Friedkin was in his vehicle blocking the driveway. After she parked on the street, Mr. Friedkin got out of his vehicle and began ranting and raving at her, accusing her of being late. He was very upset. He continued yelling and told her that, “Next week you better start looking for a new job.” Petitioner went into the house and left the food in the refrigerator. It was undisputed that the food (a turkey breast) was not given to Mr. Friedkin outside the home because it was not carved or ready for consumption. TESTIMONY OF SHEREE FREIDKIN Mr. Friedkin’s wife testified that Mr. Friedkin had made it clear to Petitioner that he wanted her to prepare a turkey meal and that they would pick it up at 3:00 p.m. at the residence. When she and her husband arrived at their home at 3:00 p.m., Petitioner was not there. They went inside, looked in the refrigerator, and saw that the food was not there. They called Petitioner on her cell phone but she did not answer. They waited for some period of time for her, all the while getting very frustrated and agitated.3/ After waiting more than 30 minutes for Petitioner to arrive, they decided to go to Whole Foods to buy a turkey meal at around 3:40 p.m. On their way, Petitioner phoned them. She said she would be at the house soon, and so, they decided to drive back and meet her. After they arrived back at their residence they had to continue to wait for her to arrive. She finally arrived, sometime after 3:40 p.m., and got out of her vehicle eventually. (Apparently, Petitioner waited in her car for some period of time.) When she got out, Petitioner was in shorts, a sloppy shirt, and her hair was in curlers. Mr. and Mrs. Friedkin found this inappropriate, particularly since Petitioner usually wore an apron and dressed more appropriately in their presence. Mr. Friedkin was very upset and demanded that she give him the food because they were running late to their family function. Petitioner refused, claiming the turkey needed to be sliced. Mr. Friedkin was very angry and used several unnecessary expletives during the course of his conversation with Petitioner. Mr. Friedkin told her something like, “you’re fired” and “don’t show up Monday for work.” Mrs. Friedkin overheard no age, disability, or retaliation-related comments during this heated exchange. TESTIMONY OF MONTE FRIEDKIN He confirmed that Petitioner was his chef and also did some assorted chores and supervision around his house. He directed Petitioner to make a meal and have it ready for them to pick up at his residence by 3:00 p.m. on the day in question. He testified that Petitioner always cooked any food for his family at his residence. When they arrived around 3:00 p.m. at the house, Petitioner was not there, and there was no food. He tried to call her and had to leave a message. They decided to go to Whole Foods to buy the meal. They departed for Whole Foods around 3:40 p.m. His description of the event was consistent with his wife’s testimony. In addition to the delay caused by Petitioner, Mr. Friedkin testified that it was important to him that she was presentable at all times around him and his family. During the confrontation in the driveway, he terminated her employment. He testified that he had experienced some other performance issues with her over the months preceding this event and that she had begun to respond to questions and directives from him in increasingly insubordinate ways. As far as her termination was concerned, he unequivocally denied that her age, a disability, or retaliation was ever considered or motivated his decision. He admitted that Petitioner told him that she had a car accident in one of their vehicles sometime in 2011. However, she continued to work for him for approximately two years after the accident without incident. She did complain to him, at some point, of some neck pain. He denied that Petitioner ever gave him any medical documents verifying or stating that she was disabled. On cross-examination by Petitioner, Mr. Friedkin elaborated that, during the months preceding the food incident, she had become more and more insubordinate, and there was a growing problem with her not following instructions he gave her. In his words, the incident at his residence involving the turkey dinner was the proverbial “straw that broke the camel’s back.” On redirect, Mr. Friedkin denied ever considering any disability and said he did not even know she was “disabled.”4/ TESTIMONY OF ROSARIO DIAZ Another witness, Mrs. Diaz, testified that Mr. and Mrs. Friedkin arrived at the residence at around 3:00 p.m. and came into her office. They wanted to know whether or not Petitioner was there with the food, and whether or not she had called. Diaz told him that she was not there and did not call. Mr. and Mrs. Friedkin then departed. Approximately 30 minutes later, Petitioner came into her office upset and said that she could not believe what had just happened and that Mr. Friedkin had just fired her. Ms. Diaz commented to her that maybe they were upset because she was late. Mrs. Diaz had worked for Mr. Friedkin for nearly 30 years. She interacted with Petitioner at the residence frequently. She testified that Petitioner never complained to her about age, disability, or other discriminatory remarks or comments by Mr. Friedkin. She also testified that she never overheard any comments by Mr. Friedkin about Petitioner’s age or disability, or how either may have affected Petitioner’s work performance. At Petitioner’s request, recorded portions of an unemployment compensation hearing, conducted by an appeals referee from the Florida Department of Economic Opportunity (DEO), were played. Petitioner represented that the purpose was to show that Mr. Friedkin had made several statements during that hearing that were inconsistent with his present testimony. The DEO hearing was to determine whether or not Petitioner was entitled to unemployment compensation benefits. DEO ruled in Petitioner’s favor and found that she was not disqualified from receiving benefits and that no “misconduct” occurred on the job as a result of the Yom Kippur meal incident.5/ The undersigned finds that Mr. Friedkin did not make any materially inconsistent statements during the DEO hearing bearing upon his credibility as a witnesses in this case. There was insufficient proof offered by Petitioner to show that Respondent’s proffered explanation for her termination (poor work performance) was not true, or was only a pretext for discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief and find in Respondent’s favor. DONE AND ENTERED this 27th day of January, 2016, in Tallahassee, Leon County, Florida. S Robert L. Kilbride 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 27th day of January, 2016.
The Issue Whether Respondent discriminated against Petitioner on the basis of her sex, by sexual harassment, in violation of Subsection 760.10(1) and/or (2), Florida Statutes (2008).1
Findings Of Fact Petitioner is an adult female, and as such, is a member of a protected class. Respondent is an agency of the State of Florida charged with the duty to protect the public through the incarceration and supervision of offenders and to rehabilitate offenders, pursuant to Section 20.315, Florida Statutes. In August 2007, Petitioner applied for a job as a correctional officer with the Florida Department of Corrections through the Charlotte Correctional Institution (the Facility) located in Punta Gorda, Florida. Petitioner's contact person during the application process was Recruitment Sergeant Dennis Britton. Petitioner was initially interviewed by Sergeant Britton. At the conclusion of the interview, Petitioner was about to leave when Britton grabbed her by the shoulder, pulled her to him and bent down to her face in a kissing position. Petitioner put her hands on his chest, pushed him away and left. On other occasions during the interview process, specifically on August 21, 2007, and October 1, 2007, Briton coerced Petitioner to come into his office at the Facility and proceeded to physically and sexually assault Petitioner. Britton would grope, grab, and forcibly kiss Petitioner against her will. Throughout the recruitment process, both Britton and Petitioner exchanged e-mails of a professional and personal nature. On or about September 10, 2007, Warden Adro Johnson approved Petitioner for employment with the DOC. Warden Johnson, not Sergeant Britton, made the hiring decisions at Charlotte Correctional Institution. November 30, 2007, was Petitioner's first day of employment at the Facility. On November 30, 2007, Petitioner was again compelled to appear at Britton's office where he proceeded to physically and sexually assault Petitioner. Britton groped, grabbed, and forcibly kissed Petitioner against her will. On several other occasions between November 2007 and March 2008, Britton would summon Petitioner to his office and proceed to make sexual advances on her against her will. In December 2007, Petitioner completed New Employee Orientation. A component of the New Employee Orientation is training with regard to Respondent's Equal Employment Opportunity Policy and, specifically, the Sexual Harassment policy. Petitioner completed the computer-assisted training on sexual harassment in December 2007. In addition, new employees are routinely provided with hard-copy pamphlets on sexual harassment. Respondent's sexual harassment policy is also posted at various locations at Charlotte Correctional Institution. At no time during this period did Petitioner complain, verbally or in writing, to her supervisor or anyone else at the Facility. On March 14, 2008, Petitioner started the correctional officer training academy at the Facility. On March 17, 2008, Petitioner filled out an incident report stating she had been sexually harassed by Sergeant Dennis Britton. The report was sent up the chain of command, and Warden Johnson immediately removed Sergeant Britton from his position as the recruitment sergeant and reassigned him to a position on the compound. An investigation into the allegations was started on March 19, 2008, by Respondent's Office of the Inspector General. The investigation was led by Inspector Daryl J. McCasland of the Office of the Inspector General. The findings of the investigation were that Britton violated Section 784.03, Florida Statutes, and Florida Administrative Code Rule 33-208.033(22) (Conduct Unbecoming a Public Employee). On April 9, 2008, while the investigation was still pending, Sergeant Britton submitted his resignation, effective May 1, 2008. Britton admitted to the accusations of sexual battery against Petitioner to the warden of the Facility. Britton was removed from the Facility on or about April 9, 2008. Petitioner testified that on at least five separate occasions between April 23, 2008, and May 23, 2008, Respondent allowed Britton to return into the Facility and granted Britton access into the restricted-access inner-compound where Petitioner worked so that he was able to continue to harass Petitioner. However, this testimony was uncorroborated and deemed unreliable. At no time during Petitioner's employment did Sergeant Britton supervise Petitioner or work directly with her. He did not discipline her, set her schedule, or assign her duties. From November 30, 2007, until March 14, 2008, Petitioner worked inside the secure perimeter, while Britton worked as the recruitment sergeant outside the secure perimeter in the administration building at the Facility. Petitioner was in the academy beginning March 14, 2008, and Sergeant Britton had no supervisory or training responsibilities over officers in the training academy. Petitioner was continually in the correctional officer academy from the time she filed her initial complaint on March 17, 2008, until Britton's resignation became effective on May 1, 2008. While in the academy, Petitioner was continually with other trainees and other instructors. Sergeant Britton never made any additional sexual advances or had any conversation with Petitioner following her complaint on March 17, 2008. Inspector Daryl McCasland substantiated the complaint against Sergeant Britton for battery, conduct unbecoming a public employee, and failure to follow written procedures. The inspector forwarded his results to the Office of the State Attorney in Punta Gorda which declined to prosecute. Respondent acted in a prompt and reasonable manner to stop the harassment and address it once it was known. Petitioner failed to exercise reasonable care in the reporting of the harassment. Petitioner presented no evidence on the issue of retaliation. Petitioner presented no evidence of quantifiable damages. Her testimony was that she felt harassed and physically upset by the conduct of Britton and that she felt harassed and physically upset by her fellow officers after her complaint become known, but no proof of an adverse employment action was presented. Given the lack of evidence to support Petitioner's allegations, the Petition for Relief should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issued a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 1st day of December, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 1st day of December, 2009.
The Issue Whether Respondent is guilty of an unlawful employment practice by failing to hire Petitioner on the basis of age or in retaliation.
Findings Of Fact On February 24, 1994 (amended March 10, 1994), Petitioner filed a Charge of Discrimination, based on age and retaliation, with the Florida Commission on Human Relations. That charge listed the most recent discrimination as October 18, 1993 and alleged that Petitioner had been rejected for a post in Panama City; that Respondent, through a Ms. Retherford, had denied Petitioner access to other applicants' records for ten days; and that Ms. Retherford, Ms. Jenkins, and Ms. Ciccarelli of Respondent's District 2, had made sure everyone in their District knew Petitioner's name and to avoid hiring him. To further specify his charges, Petitioner attached a December 16, 1993 memorandum from Ms. Radigan to Mr. Clary. (See below, Finding of Fact No. 56). The Charge of Discrimination then concluded, "the specific job for which I applied was set in Marianna and closed on 18 October; though I had been referred to that job by Karen Dalton, an HRS specialist at HRS headquarters, I never had a chance at that job." (P-2) By a "Determination: No Cause", dated March 20, 1995, the Commission advised Petitioner that he could file a Petition for Relief within thirty-five days, pursuant to Section 760.11 F.S. On April 22, 1995, Petitioner filed his Petition for Relief, which was referred to the Division of Administrative Hearings for a formal evidentiary hearing, pursuant to Section 120.57(1) F.S.. That timely Petition for Relief alleged both age and retaliation discrimination by Respondent's failure to hire Petitioner for a number of posts, none of which the Petition specifically named by position number or date. The retaliation allegation was based on Petitioner's "causing trouble," not due to his filing any prior formal complaints with the federal Equal Employment Opportunity Commission or Florida Commission on Human Relations or upon his participation in these types of litigation on behalf of anyone else. Although the subject matter jurisdiction of the Division of Administrative Hearings is bounded by the Charge of Discrimination, the Petition for Relief, and Chapter 760 F.S., the parties were permitted to present some historical information. Even so, the parties' presentation of evidence did not always clearly correlate Respondent's dated employment advertisements for named, numbered, or described positions to specific applications of Petitioner and/or specific interviews or hirings of other persons. Respondent agency demonstrated that as of October 13, 1993, it was employing at least one employee older than Petitioner, at least one in her sixties, others in their fifties, and hundreds who were over 39 years old. However, none of this information is particularly helpful in resolving the issues in this case. While Respondent's figures may speak to longevity of employees or duration of their employment with Respondent, they are silent as to each employee's age as of the date Respondent first hired each one. (R-9) Petitioner is a white male who at all times material was 63-65 years of age. Petitioner repeatedly applied for job vacancies advertised by Respondent agency and was not hired for any of them. Every position for which Petitioner applied required, at a minimum, that applicants have a bachelor's degree from an accredited college or university plus three years' professional experience in one or more of the following employments: abuse registry; developmental services; law enforcement investigations; licensed health care; children, youth, and family services; child support enforcement; economic services; aging and adult services; licensed child day care; mental health; or elementary or secondary education. Specific types of bachelor's degrees or any master's degree could substitute for one of the three years' required experience in the named programs. Specific types of master's degrees could substitute for two years of the three years' required experience in the named programs. However, no matter how many or what type of college degrees an applicant had earned, Respondent still required applicants to have at least one year of specialized experience. (P-1, R-1, R-2, R-4, R-5, and R-7). In fact, Petitioner met the foregoing requirements at all times material. "In the late summer of 1992," Petitioner first responded to one of Respondent's advertisements for a Protective Investigator position in Panama City. (P-1, P-14) He was turned down without an interview for that position by a letter dated September 22, 1992. (P-1). Feeling that he was qualified for the foregoing position and that he should have at least been given the opportunity to interview, Petitioner made an appointment with Ms. Charlie Retherford, who had advertised the position. The contents of Ms. Retherford's explanation about ten days later is not of record, but Petitioner remained dissatisfied. Petitioner next made a request pursuant to Chapter 119 F.S., The Public Records Act, to view the records of other applicants. Petitioner felt he was "hassled" over this request, but admitted that Respondent provided the records within two weeks. Petitioner did not elaborate upon why he felt "hassled," only stating that he felt two weeks was an "unreasonable delay." Petitioner analyzed the records and formed the opinion that "there was good reason to believe" Respondent did not interview him because he was over 60 years old. Petitioner testified that those applicants selected by Respondent for interviews averaged 29 years old, but Petitioner did not offer in evidence the records he had reviewed so as to substantiate his assertion. In correspondence and interviews which occurred after September 22, 1992, Petitioner revealed his age to various employees of Respondent. (See Findings of Fact 14, above, and 24, 41, and 45 below). However, an applicant's age or birth date is not required on Respondent's standard employment application form, and on Petitioner's September 5, 1992 application received by Respondent September 9, 1992 (P-14), Petitioner had left blank the "optional" line for date of birth. Therefore, it was not established that the Respondent knew, or even how the Respondent could have known, Petitioner's age prior to its September 22, 1992 failure to hire him. Despite Petitioner's testimony as to the average age of interviewees, the mean age of all the applicants up to September 22, 1992 was not established, so it is not clear whether any twenty-nine year olds or persons younger than Petitioner also were not interviewed as well as Petitioner, who was not interviewed and who was in his sixties. Additionally, no nexus between any other applicant's qualifying credentials and Petitioner's qualifying credentials was put forth. Therefore, it is impossible to tell if those applicants who were interviewed prior to September 22, 1992 were more or less qualified than Petitioner, or if there was any pattern of Respondent refusing to interview applicants of any age. By a November 24, 1992 letter, Respondent turned down Petitioner's application as a Protective Investigator with its Aging and Adult Services Unit in Chattahoochee. (P-4). By a November 24, 1992 letter, Respondent turned down Petitioner's application as a Protective Investigator in Panama City. (P-5) By a January 22, 1993 letter, Respondent turned down Petitioner's application as a Protective Investigator in Panama City. (P-6) By a January 27, 1993 letter, Respondent turned down Petitioner's application as a Protective Services Abuse Registry Counselor after he was interviewed. (P-3, P-7) (See Findings of Fact 24 and 41, below. By a February 25, 1993 letter, Respondent turned down Petitioner's application for Research Assistant Position No. 05396 at Florida State Hospital. (P-8) Petitioner did not offer in evidence any of his applications corresponding to the Respondent's refusals to hire him between September 22, 1992 and February 25, 1993. 1/ For the period of September 22, 1992 through February 25, 1993, Petitioner's only evidence of age or retaliation discrimination was his subjective personal conviction that age was a factor in Respondent's refusal to hire him and the Radigan memorandum issued ten months later and discussed in Findings of Fact 56-65, below. Affording Petitioner all reasonable inferences, the undersigned infers that due to Petitioner's post- September 22, 1992 interview with Ms. Retherford, Respondent's District 2 hiring personnel could have been aware of Petitioner's age from late September 1992 onward. However, there was no evidence presented by which it can be affirmatively determined that between September 22, 1992 and February 25, 1993 that Respondent knew the age of all other applicants before deciding which ones to interview or that there was a pattern of only interviewing persons under a certain age. 2/ Further, in an August 12, 1993 letter, Petitioner stated to the Secretary of Respondent agency that he had, in fact, been interviewed by Respondent in January 1993. (P-3) (See below, Finding of Fact 41.) It also must be inferred from that information that Respondent did not systematically exclude Petitioner from the interview process on the basis of age or retaliation at least through January 1993. Petitioner's last application before October 14, 1993 which was admitted in evidence is dated April 8, 1993. It was stamped "received" by Respondent on April 9, 1993. It also does not give his age or date of birth. It specifies that Petitioner was applying for a Protective Investigator position closing April 12, 1993. (P-15). In April 1993, Brenda Ciccarelli, an official in Respondent's District 2, requested Karen Dalton, a recruitment coordinator in Respondent's Personal Services Section, to review Petitioner's employment application to determine if he met the minimum requirements for employment in the advertised position. Ms. Dalton's testimony is not altogether clear as to which application or applications she reviewed in April 1993, but from the evidence as a whole, it is inferred that she reviewed Petitioner's September 5, 1992 (P-14) and/or his April 8, 1993 (P-15) applications or applications by Petitioner which were substantially similar. Ms. Dalton analyzed Petitioner's application(s) and determined that Petitioner did not meet Respondent's minimum requirements. She satisfied herself that she had made a correct analysis by conferring with Mr. Joe Williams of the Department of Management Services. By a May 7, 1993 letter, Respondent turned down Petitioner's application as a Protective Investigator in Panama City. (P-9) Ms. Retherford for Respondent advertised Protective Investigator/8308, Position No. 48210 in Port St. Joe, Gulf County from May 24, 1993 to June 7, 1993. (R-1) Respondent readvertised Protective Investigator/8308, Position No. 48210 in Port St. Joe, Gulf County from June 21, 1993 to July 26, 1993. (R-2) Effective August 6, 1993, Respondent hired Jack Connelly, then 45 years old, for Position No. 48210 in Port St. Joe, Gulf County. (R-3) Respondent introduced a tabulation of the ages of the applicants for Position No. 48210 which was completed as of the effective date the position was filled. It included columns listing birth dates of applicants, if known; a column indicating applicants' handicaps, if any; a column indicating whether an applicant was eligible; and a column indicating which applicants were interviewed. (R-3) Mr. Connelly, the successful applicant, was interviewed, as were eleven other applicants. Ten applicants, among them Petitioner, were not interviewed. (R-3) The applicants who were interviewed were respectively forty-five, fifty, forty-six, forty-one, thirty-seven, fifty-eight, one unlisted, forty- four, forty-one, forty-four, and thirty-one years of age. The ages of those not interviewed were fifty, one unlisted, forty-five, Petitioner's age also was unlisted, thirty-six, thirty-one, twenty-three, thirty-three, forty-nine, and thirty-two. (R-3) There is nothing in the record to show that the qualifications of the applicants interviewed or those of Jack Connelly, who was hired, were lower than Petitioner's qualifications. There is no discernible pattern of excluding anyone by age. 3/ Ms. Retherford for Respondent advertised Protective Investigator/8308, Position No. 50968 in Panama City, Bay County from May 17, 1993 to May 31, 1993. (R-4) Respondent readvertised Protective Investigator/8308 Position No. 50968 in Panama City, Bay County from June 21, 1993 to July 6, 1993. (R-6) By a July 20, 1993 letter, Respondent turned down Petitioner's application for Protective Investigator in Panama City. (P-10) Effective August 6, 1993, Respondent hired Edward Bonner, then fifty- three years old, for Position 50968. He was one of the applicants interviewed. (R-6) Respondent presented another columnar tabulation completed as of the effective date Mr. Bonner was hired. It showed that the interviewed applicants were ages fifty-three, fifty, forty-six, forty-one, twenty-seven, fifty-eight, one unlisted, forty-six, forty-one, forty-four, and thirty-one, respectively. The uninterviewed applicants were fifty, one unlisted, forty-five, Petitioner's age also was unlisted, thirty-six, thirty-one, twenty-three, thirty-three, forty-seven, and thirty-two respectively. (R-6) Again, there is no discernable pattern of excluding anyone by age. 4/ There is nothing in the record to show that the qualifications of the interviewees or of Edward Bonner were lower than Petitioner's qualifications. On August 12, 1993, Petitioner wrote the agency Secretary, Mr. H. James Towey, complaining that he had been discriminated against because of his age, which he then gave as This letter listed the dates of discrimination as 9/22/92, 11/24/92, 11/24/92 again, 1/22/93, 1/27/93, 2/25/93, 5/7/93/ and 7/20/93. Therein, Petitioner admitted that Respondent had interviewed him approximately January 1993 for a System Abuse Registry Counselor position and that the interview had gone very well from his point of view. (P-3) Respondent advertised Protective Investigator/8308 (anticipated vacancy) Position No. 04385 in Panama City from June 21, 1993 to July 6, 1993. (R-7) Effective September 3, 1993, Respondent hired Johnnie A. Knop (female), DOB unlisted, for Position No. 04385. Respondent's tabulation completed on the effective date of hiring Ms. Knop showed that not counting Ms. Knop, whose age does not appear, the interviewees were thirty-eight, fifty, forty-six, forty-one, thirty-three, fifty-eight, forty-four, forty-one, forty- four, and thirty-one years of age, respectively. The non-interviewees were fifty, one unlisted, forty-five, Petitioner's age also was unlisted, thirty-six, thirty-one, twenty-three, thirty-three, forty-nine, and thirty-two years of age. (R-8) Once more, there is no discernible pattern of excluding anyone by age. Moreover, it is not possible to tell whether or not Respondent hired someone older or younger than the Petitioner. 5/ There is nothing in the record to show that Johnnie Knop's qualifications were lower than Petitioner's. In September, 1993, Ms. Dalton had a conversation with Petitioner which lasted approximately ninety minutes. Based upon the contents of Petitioner's Exhibit 13, it is found that this conversation occurred on September 13, 1993 in response to letters of complaint written by Petitioner on May 20 and August 12, 1993. The Petitioner's May 20 letter is not in evidence, but it is inferred that the August 12 letter referenced in P-13 was Petitioner's complaint to Secretary Towey (P-3) concerning age discrimination and discussed above in Finding of Fact 41. During their conversation, Ms. Dalton discovered that some of Petitioner's remote job experiences were useful for certifying him qualified. Together, Petitioner and Ms. Dalton worked through a list of Respondent's job openings, and Ms. Dalton sent one of Petitioner's applications on to Cheryl Nielsen who was hiring for a position in Marianna. At formal hearing, Ms. Dalton explained credibly that she had not originally categorized Petitioner as meeting the professional experience requirement in the "elementary or secondary education" category because she misunderstood his prior application(s) which she had reviewed. Where the September 5, 1992 application had related Petitioner as employed as "a teacher at Dozier School for Boys (Washington County Program at Dozier)" and the April 8, 1993 application listed him as " a teacher at Dozier School for Boys" for eleven months in 1990-1991, Ms. Dalton previously had understood that his employment merely constituted "shopwork, independent living", which is literally part of what Petitioner had written. Ms. Dalton previously had not equated that phraseology with professional teaching experience in an elementary or secondary school. Ms. Dalton also credibly explained that she had the erroneous perception of Petitioner's past experience listed as "supervisor, driver education" at Parks Job Corps Center as being solely employment in a private driver's education school. Petitioner had written "vocational training center," to describe the Center's function. Less understandable but unrefuted was Ms. Dalton's testimony that she had not equated Petitioner's teacher status for eight years in the Oakland County, California Public Schools as "teaching" because of the way Petitioner's application(s) had presented that prior employment which had occurred in the late sixties and early seventies. Despite both applications clearly stating this was public school teaching, Ms. Dalton had once again erroneously assumed that Petitioner had worked in a driver education school, when he had, in fact, been teaching a regularly scheduled minor course curriculum of driver's education in the standard curriculum of a public high school. Apparently, she had given less emphasis to this and had become confused by the explanatory material that Petitioner had added to explain the other things he had done besides teaching. She also gave less emphasis to other employments involving several years even if they included the word "teacher" because they were remote in time. (P-14 and P-15; compare P-16). After their clarifying interview, Ms. Dalton considered Petitioner qualified for the position(s) applied for, even though his qualifications previously had not been apparent to her from his written application(s). Convinced that Petitioner's application style did not present him to best advantage, Ms. Dalton advised Petitioner how to re-do his application to emphasize the factors significant to Respondent and maximize his employment opportunities with Respondent. On the basis of their conversation alone, Ms. Dalton sent a September 15, 1993 letter to Petitioner, and copied Ms. Jenkins and Ms. Ciccarelli, both employed in Respondent's District 2, to the effect that Petitioner met the eligibility requirements for the Protective Investigator classification. (P-13) Petitioner revised his application to detail that some of his school activities which were remote in time actually involved teaching. He submitted the rewritten application to Ms. Dalton approximately October 14, 1993. (P-16). After the revision, Ms. Dalton credited Petitioner with three years and nine months of "teaching in an elementary or secondary school" based only on his teaching during the 1960's. She also forwarded the revised application to Marianna and Ms. Nielsen. A review of the Petitioner's only three applications in evidence (September 5, 1992 at P-14; April 8, 1993 at P-15; and October 14, 1993 at P-16) reveals that Petitioner's original application style is so detailed and thorough that some portions September 1992 and April 1993 applications are less than clear as to what entity employed him and what his title was. For instance, he frequently used job titles that were more administrative, like "program manager", than educational, like "teacher". While a thorough reading of either of the applications in Petitioner's original style would probably reveal that he had, indeed, been employed in public school teaching positions approximately 30 years before, Petitioner's original applications require much more concentrated reading than does his revision in order to sort through the material matters and exclude extraneous and cumulative material that had no significance to Respondent's application process. The unrevised applications are not clear that he actually "taught" for a total of three years and nine months in public elementary or secondary schools as understood by Respondent's assessment system. According to Cheryl Nielsen, the position in Marianna for which Petitioner was certified eligible by Ms. Dalton and which closed October 18, 1993 was a temporary position. It existed solely because the individual holding the permanent position had been on workers' compensation leave. When it became apparent to Ms. Nielsen that the injured job holder would not be returning permanently, she decided not to continue the hiring process for the temporary position. Instead, she decided to advertise and fill the position in Marianna as a permanent position once the appropriate waiting period ran out. This was a reasonable decision because it would require six weeks' training before any hiree would be useful and because by going directly to the hiring of permanent personnel, Ms. Nielsen could avoid having to repeat the training process with a different person in a short period of time. No one was interviewed or hired for the temporary position for which Petitioner applied. There is no evidence in this record to tell the undersigned if Petitioner applied for Miss Nielsen's permanent position. Indeed, there is no evidence that Petitioner applied for any positions with Respondent after October 14, 1993. On November 26, 1993, Petitioner wrote Mr. Clary, Respondent agency's Deputy Secretary for Administration. The "Re:" line of this letter states that the letter refers to "'contracts' which cost HRS a fortune but serve no legitimate purpose." A fair reading of Petitioner's letter is that he was complaining concerning a letter from Dr. James Henson of Tallahassee Community College (TCC) which constituted a reply to Petitioner's inquiry concerning a TCC job vacancy announcement. Neither Petitioner's letter to Dr. Henson nor Dr. Henson's reply letter to Petitioner are in evidence to further explain what was actually going on. In his November 26, 1993 letter to Respondent's Deputy Secretary Clary, Petitioner characterized Dr. Henson's letter to him as "condescending" and "elitist" and stated Petitioner's opinion that Respondent should not have contracted with TCC to recruit field instructors because it was a waste of money. Petitioner's letter is entirely coherent, but its tone is agitated and vituperative. It attacks the agency's expenditure of funds to Dr. Henson and TCC and their qualifications. It does not mention Petitioner's age or job applications to Respondent in any way. (P-12) Apparently as a result of yet another of Petitioner's letters dated November 19, 1993, which November 19, 1993 letter is not in evidence, Ms. Radigan, Respondent's Assistant Secretary for Children and Family Services, wrote the following December 16, 1993 memorandum to Deputy Secretary Clary, copying Secretary Towey and the Assistant to the President of TCC. I wanted to give you some feed back on this issue. Mr. Sondel has written many such letters across the last six to eight years. He is very well known by the recruitment and personnel professionals in the Tallahassee area, in both the private and public sectors. Bob Roberts discussed this issue with Mr. Marshall Miller, special assistant to Dr. Henson at Tallahassee Community College (TCC). Mr. Miller suggested that DHRS [Respondent agency] should make no response to or take any action pertinent to the letter. Dr. Henson would prefer that he or his attorney make any response as he sees proper. The field instructor position in question is one of twenty new contracted professionals being recruited state wide that will be located in each district to provide clinical expertise, technical assistance, job coaching and staff training for a four unit staff in the Children and Family Services Program. Due to the nature of the job tasks that will be assigned to the new contracted professionals, the Districts expect that they will have relevant professional training and work experience in public child welfare systems. Please let me know if you have any questions, or wish to have additional information. Emphasis and bracketted explanatory material supplied. (P-11)57. The language emphasized above was not emphasized in Ms. Radigan's original memorandum, but has been characterized in Petitioner's testimony as "the smoking gun" upon which Petitioner relies to demonstrate that Ms. Radigan, via "retaliatory slander", had prevented Respondent agency from hiring Petitioner throughout 1992- 1993. He attributed her remarks to be the result of his letters to the Respondent complaining of age discrimination. Petitioner testified credibly and without refutation that he had never applied for employment with Respondent before the summer of 1992 and that he was first denied employment by Respondent on September 22, 1992. This is accepted. At the time of Ms. Radigan's memorandum, Petitioner had filed no formal charges of discrimination against Respondent. Therefore, it is impossible for any retaliation by Respondent between September 22, 1992 and October 18, 1993, if it existed, to have been based upon formal charges by Petitioner. Petitioner's subjective reading of the Radigan memorandum to the effect that it presents him as a "kook who should not be taken seriously" is one possible interpretation, but otherwise, Petitioner's interpretation is flawed. The Radigan memorandum is dated well after Respondent's last failure to hire Petitioner. That alone is not conclusive to show that its contents did not affect Respondent's hiring process between September 22, 1992 and October 18, 1993 because it could relate back to Respondent's prior retaliatory non- hiring practices. However, a clear reading of the memorandum itself does not permit such an interpretation. First, the memorandum refers to a letter by Petitioner dated approximately a month after the Respondent's last failure to hire Petitioner. Although Petitioner claimed that the Radigan memorandum refers to Petitioner's complaints of age discrimination, that was not proven. Since the Petitioner's November 19, 1993 letter, which the Radigan memorandum addressed, is not in evidence, it is impossible to determine precisely which of Petitioner's complaints Ms. Radigan's memorandum addressed, but even if Petitioner's November 19, 1993 letter had complained of age discrimination, that complaint was made after Petitioner had ceased to apply with Respondent. Therefore, retaliation at that point could not relate backwards to hiring practices already concluded. The letters of Petitioner over six to eight years to which the body of the memorandum refers apparently include his letters to private sector entities as well as government agencies other than Respondent agency. Therefore, the fact that Petitioner had only been applying to Respondent for two, not six or more, years (see Finding of Fact 58, above) does not establish any intentional misstatement of fact by Ms. Radigan. If these letters and Petitioner's November 19, 1993 letter to Respondent all contained complaints of age discrimination, then it was appropriate for Ms. Radigan to report that fact, but there simply is insufficient evidence in this record to determine if that is what happened here. Ms. Radigan's memorandum says nothing to the effect that Respondent should not hire Petitioner, that TCC should not hire him for itself, or that TCC should not recruit him for a position with Respondent. Nothing in the memorandum permits the inference that Ms. Radigan did anything except investigate the situation existing between Petitioner and TCC and report back to her superior all available information, including gossip about Petitioner from both the public and private sectors. Gossip is always reprehensible, but people talking about unspecified letters Petitioner wrote without more does not constitute retaliatory discrimination or age discrimination. Whether the situation between Petitioner and TCC had to do with TCC's failure to recruit Petitioner or with Petitioner's complaint about the cost of Respondent's contract with TCC to do its recruiting is unclear in this record. (P-12) (See Finding of Fact 55 above). If anything, the latter is more likely since in his Charge of Discrimination (P-2), even Petitioner described the Radigan memorandum as addressing "a matter only tangentially related to my employment possibilities." Therefore, no retaliation discrimination for raising the issue of age discrimination has been clearly proven.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying and dismissing the Petition for Relief. RECOMMENDED this 14th day of December, 1995, at Tallahassee, 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 14th day of December, 1995.
The Issue The central issue in this case is whether the Respondent denied Petitioner employment opportunities in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Petitioner was employed by the Respondent as a part-time employee on or about March 10, 1981. At the time of her employment Petitioner executed a statement acknowledging that the Respondent did not guarantee weeks or hours of employment and that her employment was dependent, in part, upon the demands of the business. Petitioner's job title throughout her employment with Respondent was "warehouse worker." At all times material to this case, Petitioner was assigned to the Orlando distributing center that serves as a warehouse for items shipped to and for Respondent's retail system. During her employment with Respondent, Petitioner received acceptable work evaluations but was not elevated to full-time employment status when job openings occurred. For the first year of her employment, Respondent utilized an employee review form which rated Petitioner on a scale of 1 to 7; the lower number indicated unsatisfactory, the higher number indicated distinguished performance. For that review period, Petitioner received all 4s on her review. The 4 rating evidenced that Petitioner's performance had been consistently good and had met the requirements of the job to which she was assigned. For the review period ending April 1, 1985, the Petitioner received four 4s and one 3. The 3 rating was in the category "working relations" and found her performance to be fair. The 3 rating indicated that for the period reviewed Petitioner's performance was generally satisfactory, but sometimes fell below an acceptable level. Later in 1985, the Petitioner filed an EEOC complaint against the Respondent and alleged that the company had treated her unfairly on account of her sex. Petitioner did not prevail on that complaint. The Petitioner's employee performance review issued on June 10, 1986, the next evaluation after her EEOC complaint, evaluated her performance at all 3s with one 4 in the category of job knowledge. Petitioner did not challenge this review and did not, at that time, allege that the less favorable review had been issued by the company in retaliation for the EEOC complaint. Subsequent to the 1986 review, Respondent's evaluation form was amended to compute an employee's performance on a scale of 1 to 5 with 1 being the unacceptable end of the scale and 5 indicating distinguished performance. For the review period ending April 12, 1988, Petitioner received all 3s which established that her overall performance again met the employer's expectations. Throughout her tenure with the Respondent, Petitioner sought to increase her work hours. Petitioner complained to the company that work assignments were given unfairly. In June, 1987, Mr. Maupin, manager of the center, issued a notice regarding a change in the scheduling practices for part- time employees. That notice advised employees that the length of service with the company would no longer be the determining factor in assigning part-time hours. The notice provided: "Other factors such as performance, availability when needed and work experience (such as driving skills) will also be considered when determining who will be scheduled." Petitioner continued to be scheduled for work and, in 1988, received the second highest number of hours worked for the center's part-time employees. Petitioner did not receive full-time employment with the Respondent. Two employees who had not worked in the warehouse as long as Petitioner were placed in full-time positions. Petitioner did not offer evidence as to the qualifications of those individuals to perform the work requested of them. The employment history of the individuals chosen by the employer, together with the training, skills and aptitudes of such individuals are all unknown. Petitioner's assertion that she had performed the work in the past and, therefore, was the better qualified to receive the full-time job has not been deemed credible or, in itself, sufficient to prove affirmatively that others chosen by the employer were less worthy of the jobs for which they were selected. To the contrary, the Respondent posted full-time job openings and allowed interested parties to apply for same and be reviewed for employment based upon individual merit.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petitioner's claim against this Respondent as Petitioner has failed to establish that the employer discriminated against her in retaliation for a prior assertion of discrimination. RECOMMENDED this 13th day of August, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5133 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 3 are accepted. Paragraph 4 is rejected as contrary to the weight of credible evidence or irrelevant. Paragraph 5 is rejected as irrelevant the petition filed in this cause does not allege Petitioner was unfairly disciplined. Paragraph 6 is accepted. The first sentence of paragraph 7 is accepted. The balance of the paragraph is rejected as argument, hearsay not corroborated by direct evidence, or contrary to the weight of credible evidence. Paragraph 8 is rejected as irrelevant; it is undisputed that Petitioner perceived a bias against her, the evidence in this case does not, however, establish that such bias did exist. An employer's assessment that an employee has a poor attitude does not, of itself, lead to the conclusion that employer will, consequently, unlawfully discriminate against that employee. The first sentence of paragraph 9 is accepted. The balance of the paragraph is rejected as hearsay unsupported by direct evidence presented in this case or unsupported by the weight of credible evidence. Paragraph 10 is rejected as unsupported by direct evidence presented in this case. Paragraph 11 is rejected as contrary to the weight of the credible evidence. Paragraph 12 is rejected as contrary to the weight of the credible evidence. Paragraph 13 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 14 is accepted. Paragraph 15 is rejected as contrary to the weight of the credible evidence. Paragraph 16 is rejected as speculative, not supported by the evidence in this case. Paragraph 17 is accepted. Paragraph 18 is accepted. Paragraph 19 is accepted to the extent that the record reflects Petitioner retained an attorney to represent her; otherwise rejected as irrelevant or not supported by the record. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 9 are accepted. With regard to paragraph 10, it is accepted that all of Petitioner's annual evaluations rated her work as acceptable. Paragraph 11 is rejected as inaccurate or contrary to the weight of the evidence. While Petitioner's reviews remained substantially the same, the forms and evaluation system did change. Important was that Petitioner's work was always deemed acceptable. With regard to paragraph 12, it is accepted that Petitioner worked forty days within the period described. Otherwise rejected as not supported by the record in this case. Paragraph 13 is accepted. Paragraph 14 is accepted but incompletely refers only to the delivery job; Petitioner had expressed an interest in two other jobs available. Paragraph 15 is rejected as contrary to the weight of the credible evidence or an incomplete statement of fact. Petitioner did seek full-time employment with the Respondent. COPIES FURNISHED: Heather Morcroft 2431 Aloma Avenue Suite 285 Winter Park, Florida 32791 William E. Curphey Parker, Johnson, McGuire & Michaud 1300 Barnett Plaza 201 South Orange Avenue Orlando, Florida 32801 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Ronald M. McElrath Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of his national origin in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact No findings are made in this case. Petitioner did not appear and did not submit evidence to support findings of fact.
Findings Of Fact The Parties. The Petitioner, Andrea Bateman, is a female. At all times relevant to this proceeding, Ms. Bateman was 41 or 42 years of age. Ms. Bateman is an attorney. Ms. Bateman failed to prove that she was a member of The Florida Bar during the period of time at issue in this proceeding. The Respondent, the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department"), is an agency of the State of Florida. Ms. Bateman's Employment by the Department. In October of 1990, the Department employed Ms. Bateman as an attorney in the Department's Office of Child Support Enforcement. Ms. Bateman was required to be a member of The Florida Bar. Ms. Bateman's position with the Department was classified as a "Select Exempt Service" position. Pursuant to Chapter 22SE-1.002(5), Florida Administrative Code, and Part V, Chapter 110, Florida Statutes, persons employed in select exempt service positions may be terminated from employment without cause. Ms. Bateman's immediate supervisor was Chriss Walker. Mr. Walker is a Senior Attorney with the Department and, at the time Ms. Bateman was hired, also served as the Assistant Secretary for Child Support Enforcement. As of December 4, 1991, the Assistant Secretary for Child Support Enforcement, and Mr. Walker's immediate supervisor was Anne F. Donovan. At all times relevant to this proceeding, William H. Bentley was an Assistant Deputy Secretary of the Department with supervisory authority over the Department's Assistant Secretary's, including Mr. Walker and Ms. Donovan. "Productivity Enhancement" at the Department. During 1991, the Department was required to evaluate all employment positions at the Department and to reduce those positions in an effort to improve the productivity of the Department. Generally, all positions at the Department and the work performed by the persons filling those positions were considered and decisions were made as to which positions could be eliminated. The Department referred to the elimination of positions as "red-lining". The Department also made efforts to insure that any person affected by the elimination of their position would be placed in another position. Ms. Bateman's attorney position with Child Support Enforcement was identified for elimination. Another attorney position in Child Support Enforcement and Mr. Walker's Senior Attorney position were not identified for elimination. The decision to eliminate one of the attorney positions was based upon conclusion that the administrative duties of the two attorney positions could be handled by a paralegal position and the legal duties could then be handled by one attorney. Efforts to assist Ms. Bateman to find another position were not successful. Ultimately, the Department decided to find a position in which to continue to employ Ms. Bateman rather than to terminate her position and release her. The Department reclassified another vacant position so that Ms. Bateman could continue to be employed as an attorney for Child Support Enforcement. Mr. Walker was directed to create an attorney position for Ms. Bateman by the Assistant Secretary for Human Services. This decision was made during the early Fall of 1991. The Department's decision to continue to employ Ms. Bateman was based in part on the Department's concern about terminating an employee of the Department. The evidence failed to prove that the Department acted unreasonably with regard to the red-lining of Ms. Bateman's position. Ms. Bateman's Performance. During the year after Ms. Bateman began her employment with the Department, Mr. Walker, Ms. Bateman's supervisor, began to develop concerns about the adequacy of her work product. Ms. Bateman also began to evidence behavior which was not acceptable for an attorney of the Department. As a result of Ms. Bateman's odd behavior, Mr. Walker became concerned about Ms. Bateman's mental well-being. Mr. Walker memorialized his concerns about Ms. Bateman in a memorandum to Mr. Bentley dated December 2, 1991. The memorandum was revised December 19, 1991 to eliminate references to a counselor that Ms. Bateman had informed Mr. Walker she was seeing. Ms. Bateman's work deteriorated to an extent which necessitated other employees carrying out some of her duties. Among the difficulties experienced with Ms. Bateman which formed a reasonable basis for terminating her employment were the following: Ms. Bateman had difficulty communicating with other employees and her supervisor. As an attorney, Ms. Bateman was required to communicate orally and in writing. She was unable to do so in an adequate manner. Ms. Bateman failed to demonstrate good judgment and trustworthiness and, therefore, her supervisors were unable to rely upon her judgment as an attorney of the Department. Ms. Bateman's appearance was unacceptable for an employee of the Department who was required to meet and communicate with the public. Ms. Bateman's hair was unkempt and dirty, her clothes were often soiled and wrinkled, she failed to brush her teeth and she appeared not to be bathing based upon her appearance and her strong body odor. Although required to do so by Department policy, Ms. Bateman refused to give her supervisor a permanent home address or phone number. On one occasion Ms. Bateman was found asleep in the offices of the Department at night and on one occasion she was found asleep during working hours. Based upon the inadequacy of Ms. Bateman's performance, the Department had a reasonable basis for terminating Ms. Bateman's employment. Mr. Walker's Evaluation of Ms. Bateman. On December 18, 1991, Mr. Walker presented Ms. Bateman with a Professional Employee Performance Appraisal form he had completed on her performance. The Appraisal was reviewed by Ms. Bateman and signed by her on December 18, 1991. Mr. Walker gave Ms. Bateman's performance a rating of "effective" on the Appraisal. Of the factors evaluated on the Appraisal, Mr. Walker judged Ms. Bateman's performance as "excellent" on one factor, "effective" on eleven factors and "needs improvement" on nine factors. Mr. Walker gave Ms. Bateman's performance an "effective" rating despite his conclusion that her work product was not acceptable and despite his concerns about her inappropriate behavior. He did so because he had recently been directed to create a position to keep Ms. Bateman as an employee of the Department and in an effort to avoid litigation over Ms. Bateman's termination. Mr. Walker did not believe that his supervisors wanted to avoid any difficulties concerning Ms. Bateman employment. Mr. Walker failed to follow Department procedure in presenting the Appraisal to Ms. Bateman. The Appraisal was required to be reviewed and approved by Mr. Walker's immediate supervisor, Ms. Donovan, before it was given to Ms. Bateman. Mr. Walker, contrary to Department policy, presented the Appraisal to Ms. Bateman before Ms. Donovan had seen and approved it. Ms. Donovan was aware of the problems with Ms. Bateman's performance and would not have approved an "effective" rating. Upon receiving the Appraisal, Ms. Donovan discussed the Appraisal with Mr. Walker and rejected it, as it was her right to do. Ms. Donovan, consistent with Department policy, specified that Ms. Bateman would be evaluated again in sixty days. The Department's Request that Ms. Bateman Undergo a Psychological Evaluation. Although the Department had a reasonable basis for terminating Ms. Bateman's employment by the end of 1991 and in early 1992, the Department decided to attempt to discover the cause of Ms. Bateman's decline in performance and the onset of her odd behavior rather than terminate her employment. The Department made this decision in an effort to determine what assistance Ms. Bateman might need. Ultimately, the Department was attempting to determine what work, if any, Ms. Bateman was capable of performing. The Department's decision was based upon a number of incidents involving Ms. Bateman. Those incidents are included in Mr. Walker's Chronology of December 2, 1991 and his Revised Chronology of December 19, 1991 and are hereby incorporated herein. Although not all the incidents described in the chronologies were proved during the final hearing to have occurred, the Department's consideration of the incidents reported by Mr. Walker was reasonable. Due to the Department's concerns about Ms. Bateman, the Department requested that Ms. Bateman voluntarily participate in the Department's employee assistance program. Ms. Bateman refused. In order to determine what could be done to help Ms. Bateman, and to determine what duties and responsibilities she was capable of performing, the Department requested that Ms. Bateman undergo a psychological, or other, evaluation. Ms. Bateman refused. After discussing the matter with Ms. Bateman and legal counsel she had retained, the Department notified Ms. Bateman that her continued employment was conditioned upon her undergoing a psychological evaluation or some other evaluation which would allow the Department to determine what work she was capable of performing. In a letter of February 12, 1992, Ms. Bateman, through her representative, was informed of the following: As you also know, we are attempting to help Andrea address a problem which we believe exists and has been well documented over the past 16 months. In return, we need Andrea's help and cooperation. If Andrea chooses to agree to our request that she undergo a psychiatric evaluation and authorize the release to us of the psychiatrist's prognosis, diagnosis and recommendation for treatment, we will be glad to schedule an appointment for her with a psychiatrist, and will pay for such an evaluation. We will use the evaluation to determine an appropriate course of action. Ms. Bateman's Termination from Employment. Ms. Bateman continued to refuse to undergo any evaluation or to suggest any alternative course of action. Consequently, based upon Ms. Bateman's inadequate and unacceptable work performance, the Department terminated Ms. Bateman's employment with the Department on or about February 13, 1992. Ms. Bateman's termination from employment was effective February 28, 1992. Ms. Bateman was terminated from employment due to the fact that she was not adequately performing her job and she refused to cooperate with the Department to find out what could be done to help her become an effective employee. Ms. Bateman failed to prove that the Department's reason for terminating her employment was a pretext. Ms. Bateman's Charge of Discrimination. On or about September 15, 1992, Ms. Bateman filed a Charge of Discrimination against the Department with the Florida Commission on Human Relations. Ms. Bateman alleged that she had been discriminated against on the basis of sex and a perceived handicap. On February 10, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " Ms. Bateman filed a Request for Redetermination on March 4, 1992. On April 12, 1993, the Commission issued a "Redetermination: No Cause" affirming its decision. On May 12, 1993, Ms. Bateman filed a Petition for Relief seeking a formal administrative hearing. In the petition Ms. Bateman alleged that the Department had discriminated against her on the basis of sex, a perceived handicap and, for the first time, age. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Ms. Bateman. Alleged Sex Discrimination. Ms. Bateman failed to prove that any action of the Department was based upon Ms. Bateman's sex: she was not held to any standard or requirement based upon her sex, she was not terminated because of her sex and the Department's efforts to determine the cause of Ms. Bateman's problems was not based upon her sex. Ms. Bateman failed to prove that any Department policy or standard had a disparate impact on female employees. Ms. Bateman failed to prove that she was replaced by a male attorney. Ms. Bateman's grooming habits were discussed with her. Some of those discussions concerned the wearing of panty hose and her makeup. It must be inferred that such discussions were not carried on with male employees. The evidence, however, failed to prove that Ms. Bateman's termination was based upon these matters. Although grooming played a part in the decision to terminate Ms. Bateman's employment, it was grooming related to basic cleanliness and neat appearance required of all employees and not just female employees. Ms. Bateman failed to prove that the Department discriminated against her on the basis of her sex, female. Alleged Age Discrimination. At the time that Ms. Bateman was hired she was 41 years of age, and at the time she was terminated she was 42 years of age. Ms. Bateman failed to prove that age played any part in her treatment by the Department. This finding is supported, in part, by the fact that the difference between Ms. Bateman's age when she was hired and when she was terminated was only one year. Ms. Bateman failed to prove that she was replaced by a younger person. Ms. Bateman failed to prove that the persons who made the decision to terminate her employment were aware of her age. Ms. Bateman failed to prove that the Department discriminated against her on the basis of her age. Alleged Perceived Handicap. The Department did believe that Ms. Bateman was suffering from some mental problem. This belief was based upon Ms. Bateman's odd behavior and a concern that Ms. Bateman was "homeless". It was for this reason that the Department requested that Ms. Bateman undergo a psychological evaluation. Ms. Bateman failed to prove, however, that the Department treated her differently from the manner other employees of the Department were treated under similar circumstances. Ms. Bateman also failed to prove that the Department's request that she undergo a psychological or other evaluation to determine how to assist her to meet the requirements of her employment was made for a discriminatory reason. Under the circumstances, the Department's request of Ms. Bateman was reasonable. Ms. Bateman also failed to prove that she was terminated from employment because of any perceived handicap. The evidence proved that she was in fact terminated from employment due to her inability to satisfactorily carry out her job responsibilities. Ms. Bateman also failed to allege or prove that she has a handicap based upon her mental condition. Ms. Bateman also failed to prove that the Department discriminated against her on the basis of a handicap or a perceived handicap.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was unlawfully discriminated against due to her age, with regard to her termination from employment on June 19, 1996, and, collaterally, whether her claim is barred by the doctrine collateral estoppel because of Findings of Fact and Conclusions of Law entered by a hearing officer in an unemployment compensation appeals proceeding also related to her termination from employment.
Findings Of Fact Roberta McCabe, the Petitioner, was employed by the Respondent, Woodland Towers, Inc., as a dining room manager from October 22, 1991, through June 19, 1996. During her employment with Woodland Towers that entity employed more than fifteen employees. Ms. McCabe's initial date of employment was August 19, 1991, but she began her capacity as dining room manager on October 22, 1991. She served in that capacity until her termination date of June 19, 1996. She was terminated on that date against her will. Ms. McCabe was born on June 3, 1935, and at the time of her termination she was sixty-one years of age. After her termination, on June 21, 1996, the Petitioner filed a claim against Woodland Towers with the Florida Department of Labor and Employment Security, Division of Unemployment Compensation. In that claim she first raised the issue that she had been discharged due to her age. That claim was filed, of course, before a different state agency, with a different jurisdiction, although the parties were the same. The legal issues were not established to be the same, however, with the exception that in that case, as in this one, the Petitioner raised the question of discharge due to age discrimination. The statutory standards for liability for unemployment compensation, however, were not shown to be co-extensive and identical to those statutory standards and statutory-based legal issues which prevail in the instant case before a different state agency. While the issue of age discrimination may have been the reason offered by the Petitioner in the employment compensation case for her separation from employment, as opposed to what was ultimately found (discharge for misconduct) that legal concept was not shown to have the same definition under the Unemployment Compensation statutes involved in that proceeding, nor was it shown that those statutes support the same or similar actions and remedies as does Chapter 760, Florida Statutes, under which the instant proceeding arises. Therefore it cannot be determined that the legal issues or, for that matter the factual issues in the instant proceeding, are substantially identical to those extant in the unemployment compensation proceeding. In any event, Ms. McCabe timely filed a charge involving age discrimination with the Florida Commission on Human Relations, on or about August 26, 1996. The matter ultimately came on for hearing before the undersigned judge. Ms. McCabe testified at hearing that the only act of discrimination she contends occurred with regard to her termination from employment, on June 19, 1996, occurred on that date and involved discrimination on account of her age. She did not, however, establish that anyone at Woodland Towers ever actually made any discriminatory comments or remarks regarding her age. Ms. McCabe essentially inferred from her status as an older employee, and the fact that she was terminated, the conclusion that Woodland Towers had terminated her on account of her age. She offered no testimony other than her own to support her claim of age discrimination. Conversely, Eleanor Gustavsson and Sidney Roberts both testified that age had nothing to do with their decision to terminate her. Their testimony was unrebutted by the Petitioner. The testimony supporting Petitioner's position that age discrimination or animus resulted in her termination is based solely on the Petitioner's own testimony, chiefly involving her conjectural position, without corroborating evidence, that Woodland Towers intended to terminate her because of her years of seniority which resulted in higher pay and benefits and that therefore, resultingly, her age, with attendant higher pay and benefits, in her position, caused her to be terminated in a discriminatory way, predicated upon her age. Moreover, the Petitioner failed to describe any other co-employee who committed a similar infraction but who was treated more favorably than the Petitioner and did not show that there was any other employee of a younger age who was treated more favorably after committing a similar infraction. The Petitioner did produce the testimony of two fellow employees and offered to produce others to testify that another employee was rude and hostile to the Petitioner. This is insufficient, however, to establish that she was discriminated against because of her age. It was not shown that that employee was in a supervisory position over the Petitioner and merely being rude and hostile to a fellow employee does not rise to the level of Ms. McCabe's infraction. It is therefore unpersuasive to show that Ms. McCabe was the subject of disparate treatment because of her age. Uncontradicted evidence was presented at hearing which establishes that the Petitioner was allowing employees under her supervision, in her capacity as dining room manager, to report for duty before normal working hours and begin work without compensation for the extra time. It was established that she was aware of and indeed responsible for these employees "working off the clock" or before "punching-in." The evidence establishes that she was aware that this was contrary to federal law and Woodland Towers' policy. She was also aware that she was responsible for supervising those offending employees and enforcing the law and policy concerning hours of employment. The Petitioner took full responsibility for the law and employment policy violation in this regard and admitted during the hearing that her actions violated Woodland Towers' employment hours policy. Additionally, Woodland Towers presented credible evidence that Ms. McCabe was terminated solely for reasons of violation of that federal law and policy concerning hours of employment. Woodland Towers' evidence establishes that her age was not the reason for her termination, but rather that her violation of federal law and employment policy concerning the working hours of her employees was that reason. That showing was not rebutted.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and argument of the parties, it is RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by the Petitioner herein. DONE AND ENTERED this 5th day of April, 1999, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1999. COPIES FURNISHED: Robert W. Lloyd, Esquire Cobb, Cole and Bell Post Office Box 2491 Daytona Beach, Florida 32115 Roberta McCabe 701 North Ocean Street Jacksonville, Florida 32201 Sharon Moultry, Clerk Florida Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent committed the unlawful employment discrimination practices 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 Petitioner is an African-American male. At all times pertinent to this case, Petitioner was employed by Respondent as an equipment operator in the golf course maintenance department. Respondent has been employed by Respondent for approximately 20 years. Respondent is a golf and country club.1/ Respondent's employment policies are contained in its "Employee Handbook."2/ The Employee Handbook provides that a "[v]iolation of any of the rules or policies set forth in this Handbook may lead to discipline, up to and including immediate discharge." Respondent's Employee Handbook contains a section on absenteeism and tardiness, which provides in pertinent part as follows: Excessive absenteeism or tardiness can result in discipline up to and including discharge. If you are going to be late or absent from work for any reason, you must personally notify your Supervisor as far in advance as possible (but no later than 2 hours before your scheduled start time) so proper arrangements can be made to handle your work during your absence. Of course, some situations may arise in which prior notice cannot be given. In those cases we expect you to notify your Supervisor as soon as possible. Leaving a message, sending a text, or having someone else call on your behalf, does not qualify as notifying your Supervisor- you must personally contact your Supervisor. If you are required to leave work early, you must also personally contact your Supervisor and obtain his/her permission. Absences of more than one day should be reported daily, unless you have made other arrangements with your Supervisor or the Human Resources Office. (emphasis in original). * * * Although an employee may be terminated at any time for failing to report to work without contacting the Club, if an employee fails to report for work or call in for three (3) consecutive calendar days they will be considered to have abandoned their job and will be terminated. Respondent's Employee Handbook also contains a provision concerning workplace violence. Employees are notified that, "[v]iolations of this policy may result in disciplinary action, up to and including termination of employment." The workplace violence policy provides in pertinent part: The Club has a zero tolerance policy regarding violent acts or threats of violence against our employees, applicants, members, vendors, or other third parties. We do not allow fighting or threatening words or conduct. We also do not allow the possession of weapons of any kind on the Club's premises, except as required by law. No employee should commit or threaten to commit any violent act against a co-worker, applicant, member, vendor, or other third party. This includes discussions of the use of the dangerous weapons, even in a joking manner. May 3, 2013, Incident On May 3, 2013, Petitioner was not at work, but rather, performing work for a resident in the community. Petitioner's vehicle was apparently parked on the wrong side of the road. Mike Jones, a security guard, advised Petitioner to move his vehicle or he was going to receive a ticket. Petitioner informed Mr. Jones that he was not going to receive a ticket, and followed Mr. Jones back to the guard gate. Thereafter, Petitioner and Mr. Jones became engaged in "some words." According to Petitioner, after the verbal altercation he left the guard gate. On May 4, 2013, Petitioner presented to work and performed his duties. The following day, May 5, 2013, Petitioner was arrested for the May 3, 2013, incident and charged with battery on a security officer. Petitioner testified that the arrest occurred in Mike Ballard's office.3/ Mr. Ballard was Petitioner's superintendent at some point in his employment. Beth Sandham, Respondent's Human Resources Director, was not present at the time of arrest. Petitioner remained in custody throughout May 6, 2013. When Petitioner did not appear for work on May 6, 2013, Ms. Sandham credibly testified that the Human Resources department, as well as his supervisors, attempted to contact Petitioner. After several attempts to reach him by phone, Respondent sent a letter to Petitioner via Federal Express.4/ Petitioner testified that he contacted his supervisor on May 6, 2013, and was advised that he had been terminated. Petitioner contends that his termination was racial in origin because Respondent did not obtain his account of the altercation prior to his termination. On this point, Petitioner testified as follows: That why I say this is a racist thing because they listen to what their two security guards say, but they never gave me the chance to explain myself. On May 6, 2013, Ms. Sandham terminated Petitioner's employment on the grounds of failing to report to work and the alleged violent behavior. As an additional basis for alleging racial discrimination, Petitioner testified that Mike Ballard was a racist. Specifically, Petitioner testified that on one occasion he overheard Mr. Ballard advise another employee, Jeff Beneclas, to "[t]ell that nigger mind his own f***en business." Petitioner explained that Mr. Ballard was referring to him. Mr. Beneclas was terminated on June 25, 2010. Addressing this allegation, Ms. Sandham explained that, if the alleged statement had been made over Respondent's radio system, said statement would have been heard by the tennis department, the golf professionals, facilities maintenance, the superintendents, and golf course maintenance. Ms. Sandham credibly testified that neither Petitioner nor any other employee notified her of such a statement or made a complaint. Additionally, Ms. Sandham credibly testified that Petitioner never made a complaint to her regarding Mr. Ballard.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief against Wycliffe Golf and Country Club. DONE AND ENTERED this 16th day of April, 2015, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 16th day of April, 2015.
