The Issue Whether Respondent engaged in discriminatory employment practices, or subjected Petitioner to harassment based on his race, in violation of the Florida Civil Rights Act (FCRA), when, as alleged in the Petition, Petitioner’s supervisor committed a battery against Petitioner with unwanted touching.
Findings Of Fact UWF is a public university within the Florida State University System. See § 1000.21(6)(f), Fla. Stat. Since January 2012, UWF has employed Mr. Lee, an African-American male, as an environmental services technician in the Building Services Department. His employment duties consist of custodial-type work. The Building Services Department is one of UWF’s departments that fall under the supervision of the Facilities Operations Department. 5 Associate Vice President, Administration and Facilities Operations Dr. Melinda Bowers (White Female) Vice President and CFO Dr. Steve Cunningham (White Male) At the time of Mr. Lee’s complaint, his supervisory chain of command, in descending order, was as follows: Director, Materials and Grounds Mr. Myles Sampson (African-American Male) Coordinator, Building Services Ms. Frankie Carlson (White Female) Environmental Services Supervisor Ms. Brenda Rivers (African-American Female) Environmental Services Technician Mr. Billy Ray Lee (African-American Male) The American Federation of State, County, and Municipal Employees (AFSCME) union at UWF represents the environmental service technicians and other employees in the facilities area. Mr. Lee became the president of the AFSCME union at UWF in the fall semester of 2014. Mr. Lee’s Petition focuses on an incident that occurred on May 16, 2017. On that date, Dr. Melinda Bowers conducted, as she did every quarter, a meeting for the environmental services technicians and others in the Building Services Department. When Dr. Bowers mentioned an update concerning an issue with the AFSCME union during this meeting, Mr. Lee interrupted and argued with Dr. Bowers.1/ Dr. Bowers asked Mr. Lee to meet with her after the meeting, or to set up a meeting to discuss his concerns at a different time. Mr. Lee left the meeting room, but returned shortly after the meeting concluded to speak with Dr. Bowers about the AFSCME union issue, or to schedule a meeting to discuss this issue. Dr. Bowers testified that when he returned, Mr. Lee was irate, raised his voice, and was spitting as he spoke. In an effort to calm Mr. Lee, Dr. Bowers briefly touched Mr. Lee on the arm with an “open hand.” Dr. Bowers wanted to understand what Mr. Lee was frustrated about and how she could help. Based on the testimony and evidence presented, Dr. Bowers did not impede or otherwise prevent Mr. Lee from leaving the meeting room. Dr. Bowers and others testified that she was a “touchy person.” The totality of this testimony demonstrated that Dr. Bowers routinely touched other employees in a benign manner, regardless of race or sex. That same day, Mr. Lee filed a report with the UWF Police Department, in which he contended that Dr. Bowers committed a battery against him.2/ Mr. Lee’s report did not indicate that he believed that the Dr. Bowers committed the alleged battery because of Mr. Lee’s race. Rather, it stated, “Dr. Bowers grabbed my arm to get me to continue to talk to her.” UWF Police Sergeant Walter Davis immediately investigated Mr. Lee’s report. As part of his investigation, Sergeant Davis met with all identified witnesses and took statements from each witness. After conducting his investigation, Sergeant Davis found there was a lack of probable cause that a battery occurred. Sergeant Davis’s report also stated: The alleged touching by Dr. Bowers was a form of a communicative gesture that was witnessed by Witnesses. Witnesses also stated Dr. Bowers touching of Lee consisted of an open hand, fingertip touch on his arm. When Dr. Bowers was told by Billy Lee not to touch him, Dr. Bowers ceased touching Lee. On May 16, 2017--and after the incident that formed the basis of Mr. Lee’s police report--Dr. Bowers met with her superior, Dr. Steve Cunningham, and Jamie Sprague of Human Resources, to discuss her concerns with Mr. Lee’s behavior and demeanor that day. During this meeting, the parties discussed that there were other incidents concerning Mr. Lee specifically related to his demeanor or temper that had occurred in the period of approximately one month previously. Those incidents included: April 10-21, 2017: Subcontracted painters that UWF hired complained that Mr. Lee harassed them while working; April 19, 2017: Mr. Lee confronted UWF employee Tiffany Nisenwonger off campus and, with an aggressive tone, told her that he believed there was unfairness at UWF; and May 8-15, 2017: On May 8, 2017, Mr. Lee interrupted a meeting between employees and their supervisors that he was not entitled to attend. On May 9, 2017, Mr. Lee interrupted a meeting between Frankie Carlson and Myles Sampson, and accused Ms. Carlson of illegally recording conversations with employees with her headphones. On May 9 and 15, 2017, Dr. Bowers received letters from UWF employees concerning Mr. Lee’s unprofessional behavior. Based on these incidents, on May 17, 2017, Dr. Cunningham decided to place Mr. Lee on administrative leave, with pay, pursuant to UWF Policy HR 18.02-06/16(5)(i), to allow time for an investigation. During this leave period, UWF prohibited Mr. Lee from entering UWF property without written permission from Dr. Cunningham.3/ Ms. Sprague conducted the investigation, which included a meeting with Mr. Lee to review each of these incidents. On June 8, 2017, Dr. Cunningham informed Mr. Lee, in writing, that Ms. Sprague had completed the investigation, and that Mr. Lee was permitted to return to work on June 12, 2017. Ms. Sprague’s investigation concluded that Mr. Lee violated several aspects of UWF Policy HR-22.00-2004/07 because of his behavior and demeanor. On June 29, 2017, Dr. Cunningham and Dr. Bowers submitted a memorandum to Ms. Sprague, after reviewing Ms. Sprague’s investigative report. Dr. Cunningham and Dr. Bowers found that Mr. Lee repeatedly violated UWF Standards of Conduct in HR-22.00, including: use of poor judgment; insubordination; lying/misleading; threatening or abusive language; and conduct unbecoming a university employee. Dr. Cunningham and Dr. Bowers recommended that UWF suspend Mr. Lee without pay for five working days, and require him to take and complete an anger management course. On June 30, 2017, UWF informed Mr. Lee that it intended to suspend him for five working days without pay, and provided him the right to a predetermination conference. Thereafter, UWF suspended Mr. Lee for five working days without pay. UWF made this decision after Mr. Lee filed his June 7, 2017, charge of discrimination with FCHR. Mr. Lee has not experienced any change in position or title since May 16, 2017. UWF presented evidence that it has awarded Mr. Lee with pay increases on several occasions. Mr. Lee presented no persuasive evidence that UWF’s decision concerning, or actions affecting, him, directly or indirectly, were motivated in any way by race-based discriminatory animus. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race discrimination. Mr. Lee presented no persuasive evidence that UWF’s actions subjected him to harassment based on his race, and that such actions were sufficiently severe or persuasive to alter the terms and conditions of his employment to create a hostile or abusive work environment. There is no competent, persuasive evidence in the record upon which the undersigned could make a finding of unlawful race harassment.
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 that Petitioner, Billy Ray Lee, did not prove that Respondent, University of West Florida, committed unlawful employment practices against him by engaging in discriminatory employment practices or subjecting Petition to harassment based on his race, and dismissing his Petition for Relief from unlawful employment practices. DONE AND ENTERED this 18th day of December, 2018, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 18th day of December, 2018.
The Issue The issue in this cause is whether Respondent engaged in unlawful employment practices of discrimination against Petitioner, for the reason of her being a female, by denying her management training during her employment tenure and by subsequently terminating her employment, in violation of Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes (2003).1
Findings Of Fact Based upon observation of the demeanor and candor of each witness while testifying; documentary materials received in evidence; evidentiary rulings made pursuant to Section 120.57, Florida Statutes; and stipulations of the parties, the following relevant and material facts, arrived at impartially based solely upon testimony and information presented at the final hearing, are objectively determined: Petitioner, Kelly McKean, is a Caucasian female and, at all times pertinent to this proceeding, was an employee at one of Respondent's, Econo Auto Painting, Inc., business locations, located at 1822 West Memorial Boulevard, Lakeland, Florida, from February 12, 2001, until she was terminated on June 23, 2003. Petitioner had approximately six years of non-continuous employment at several of Respondent's business locations before beginning her employment at the above Lakeland business site. Petitioner was employed by Respondent as a "taper," the person who is responsible for taping cars after body repairs and before painting. The taping of cars consisted of aligning strips of tape to specific areas of each automobile to prevent the taped area from being painted by the painter. Petitioner was an "aggrieved person" as defined by Section 760.10, Florida Statutes. The evidence of record establishes the fact that during all times pertinent, Respondent's Lakeland location employed nine employees comprised of: two females and seven males (five Caucasians/three Hispanics/one African American). Of the nine employees, one Caucasian female and one African American male were in managerial positions. Both were employed through contractual services of Selective HR Services (SHRS), an independent contractor and co-employer of Petitioner. Respondent is an automobile body shop business specializing in automobile body repairs and painting the exterior of cars and, at all times pertinent to this proceeding, was an "employer" as defined by Subsection 760.02(7), Florida Statutes. During all times pertinent to this proceeding, SHRS was responsible for providing human resources management services for Respondent's employees.4 At all time pertinent to this proceeding, Respondent hired the shop managers for its several auto body repair shops through SHRS. At no time pertinent to this proceeding did Respondent promote employees to management positions from within. At no time pertinent to this proceeding did Respondent permit, offer, or have in place a management training program for the training and promotions of employees from within the ranks of its shop employees to management positions within the company. At all times pertinent to this proceeding, and, on Monday, June 23, 2003, Marquez Green was the shop manager and Ron Link was the assistant manager of Respondent's Lakeland branch body shop during Petitioner's last term of employment at that location. Basis for Petitioner's Termination Several weeks preceding her termination, on June 23, 2003, the assistant shop manager, Mr. Link, noticed and personally discussed with Petitioner her repeated improper taping of some cars in the assembly line processes. Mr. Link spoke with Petitioner about this problem particularly stressing the fact that each car not properly taped required repainting which resulted in a slowdown of the repair, sanding, taping, and repainting process. It was made clear to Petitioner that repainting due to improper taping was causing the shop to lose profit. During the days following notice of the problem regarding incorrectly taped cars, Petitioner failed and/or refused to improve her work habits. The lack of improvement by Petitioner of her work habit of taping cars apparently became of some concern with management, in view of Petitioner's experience and over seven years of service as a taper with Respondent's business. Added to this disturbing trend, some time later, both the shop manager and assistant manager observed Petitioner in the manager's office reading business documents. Management confronted Petitioner with this violation of its policy that "none management" personnel were not allowed to read/review business documents. Petitioner gave an excuse for her conduct stating that the prior manager permitted her to review office documents when she was caught up with her work. Other than her statement, Petitioner failed to provide the identity or the testimony of the prior manager who allegedly granted her permission to review office documents when she had completed her work assignments before the end of the day. Petitioner presented no corroborating evidence in support of her assertion of prior managerial permission for her to review office documents. Petitioner's allegation of "prior permissive authority" was thus not credible. Mr. Green gave undisputed testimony that during a third occasion, he observed Petitioner and a non-employee male friend of Petitioner walking and talking in the work area restricted to employees only. Mr. Green approached the couple and immediately brought the rule infraction of no non-employees within the restricted work area to Petitioner's attention, ending by instructing Petitioner to tell her male friend to leave the restricted workshop area immediately. Under these circumstances, and in the presence of a non-employee, Petitioner said to her shop manager: "He'll leave when I want him to leave." Following Petitioner's refusal to obey the shop manager's direct order accompanied by her disrespectful comment, Mr. Green moved to call the local police, and only then did Petitioner's male friend leave the premises. Mr. Green subsequently discussed this matter, as well as the profit loss due to improper taping of cars, with Mr. Link, and they jointly decided not to take disciplinary action against Petitioner at that time. Notice of Termination On Monday, June 23, 2003, Petitioner reported to work at approximately 7:35 a.m. and five hours later, at approximately 12:35 p.m., she had completely taped all nine cars in the shop for repair and painting that day. Petitioner sought out Mr. Link, inquiring what he would have her do next; assist other employees in the shop or go to lunch? Mr. Link instructed Petitioner to go home for the remainder of the day. After her departure, Mr. Link and Mr. Green discussed Petitioner's continuing hurried work habits, her attitude toward management when given a direct order, and her unauthorized presence in the manager's office reviewing business documents. Management considered the following: (1) Petitioner's continued episodes of improper taping was causing an increase in cost and a decrease in profits, (2) Petitioner's negative attitude toward management, and (3) Petitioner's unauthorized presence in the manager's office looking at managerial business documents. Management determined that the above conduct was sufficient basis for her termination as an employee. In the afternoon of June 23, 2003, Mr. Link, with authorization from Mr. Green, telephoned Petitioner and informed her that she was terminated because of her repeated and costly taping errors and her failure to correct those errors. The telephonic notice of termination was followed by a written termination letter with check marks beside the boxes "refusal to perform job duties" and "unable to perform job."5 This document formed the factual basis for Petitioner's termination as an employee. Background and Employer's Policy On February 12, 2001, before she began working at Respondent's Lakeland job site, but while she was working for Respondent at another job site, Petitioner executed an Employment Acknowledgement packet containing the policy(s) and procedures she agreed to follow in the event there occurred any employment disputes, including any type of discrimination. Petitioner also agreed to resolve employment disputes through use of SHRS' Alternative Dispute Resolution (ADR) procedure. Prior Complaints Made by Petitioner While working at Respondent's Longwood, Florida, job site, but before working at the Lakeland job site, Petitioner made one verbal complaint of sexual harassment to Betty Branham, SHRS compliance supervisor, regarding sexual comments regarding her buttocks made by male co-workers. The record does not contain evidence whether this complaint was pursued or dismissed. Petitioner neither made complaints nor did she make any reports of sexual harassment or discrimination, gender or otherwise, at the Lakeland job site during her February 12, 2001, to June 23, 2003, employment tenure there. Petitioner did not file a report with SHRS claiming discrimination because of her gender and/or because she was denied management training opportunities and opportunities for promotion into management. Other Employees Terminated by Respondent During the early hours of June 24, 2003, one day after Petitioner's termination, Mr. Link terminated a male employee, Edward Burgess. Mr. Burgess was a "sander," and he was terminated for "refusal to perform job duties" and "unable to perform job." According to Mr. Link, Mr. Burgess was "taking two-to-three times longer than what he should to sand cars." During the evening hours of June 24, 2003, Mr. Green terminated another male employee, Mr. Link. Mr. Link was terminated, as he recalled, "because another male employee made accusations that while walking behind him Mr. Link bumped into his rear and made sexual gestures." Mr. Link admitted he could not recall, that is, he could not confirm, argue or deny, the other party's versions of what actually occurred and what was said at the time of his bumping into the other employee. The unnamed other employee did not testify. Petitioner, through the testimony of witnesses, of record, and exhibits admitted into evidence, failed to produce a scintilla of substantial and competent evidence to establish: that she was subjected to an adverse job action when, in fact, she was terminated for poor job performance and disrespectful conduct toward management on June 23, 2003; that because of her gender, female, she was treated differently than similarly situated male employees, who were not terminated after violation of work place policy(s); and (3) that she was qualified for the job as managerial trainee but was denied an opportunity for employee managerial training which was provided by her employer to other employees.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief and the Charge of Discrimination filed in this cause by Petitioner, Kelly McKean. DONE AND ENTERED this 18th day of February, 2005, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 18th day of February, 2005.
The Issue The issues in this case are whether Respondent violated Section 550.2415(1)(a), Florida Statutes (1996)1 by allowing a greyhound with a drug, medication, stimulant, depressant, hypnotic, narcotic, or local anesthetic, in its system to enter and complete a race and, if so, what, if any, disciplinary action should be taken against Respondent's pari-mutuel wagering occupational and business licenses.
Findings Of Fact Petitioner is the state agency responsible for regulating the pari-mutuel industry in the state, including the regulation and discipline of licensees such as Respondent. Respondent holds an Unrestricted "U1 " Professional individual pari-mutuel wagering occupational license, number 0526562-1081, and a business occupational pari-mutuel wagering license, number 1364008-1080, for Ron Runge Kennel. Respondent is the trainer of record for Prunella Scales ("Prunella"), a greyhound. On February 22, 1997, the Respondent entered Prunella in the thirteenth race at Sanford-Orlando Kennel Club (the "race") and allowed Prunella to complete the race. Prior to the start of the race, urine sample number 267912 was taken from Prunella. The urine analysis conducted by the Bureau of Laboratory Services revealed the presence of ecgonine methyl ester in sample number 267912. Ecgonine methyl ester is a metabolite of cocaine. Cocaine is a topical anesthetic and a class 1 drug. Respondent violated Section 550.2415(1)(a) by entering Prunella in the race with an impermissible drug in its system and allowing Prunella to complete the race in such a condition. As the trainer of record, Respondent is responsible for of the condition of a greyhound that he or she enters in a race. Respondent has an extensive disciplinary history. In August 1994, Petitioner fined Respondent $25.00 for racing a greyhound on an impermissible drug and redistributed the purse money. In September 1994, Petitioner fined Respondent a total of $50.00 for racing two greyhounds on an impermissible drug. In one instance, Petitioner redistributed the purse money. In November 1994, Petitioner fined Respondent $25.00 for racing a greyhound on an impermissible drug. Respondent's pari-mutuel occupational license was suspended until he paid the fine. In September 1995, Petitioner fined Respondent a total of $50.00 for racing two greyhounds on an impermissible drug. In one instance, the purse money was redistributed. In January 1996, Petitioner fined Respondent $100.00 for racing a greyhound on an impermissible drug and suspended Respondent's pari-mutuel occupational license until Respondent paid the fine. In March 1996, Petitioner fined Respondent $50.00 for racing a greyhound on procaine, an impermissible substance. In March 1997, Petitioner summarily suspended Respondent's licenses and denied Respondent all access to pari-mutuel grounds during the period of suspension. In addition to the foregoing drug violations, Respondent was found guilty of improperly using rabbits in the training of racing greyhounds in November 1991. He was fined $250.00 for that violation. On March 11, 1995, Respondent was fined $50.00 for presenting the wrong greyhound at the weigh-in, and on July 30, 1996, he was fined $50.00 for failure to present the proper greyhound at the weigh-in. Prior disciplinary action has been ineffective in rehabilitating Respondent. Respondent persists in the prohibited practice of racing animals on impermissible substances. License suspension and fines have no deterrent effect on Respondent. Respondent is not a viable candidate for rehabilitation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order and therein find Respondent guilty of violating Section 550.2415(1)(a) by racing an animal with an impermissible drug in its system and revoke Respondent's licenses. DONE AND ENTERED this 9th day of January, 1998, in Tallahassee, Leon County, Florida. Hearings Hearings DANIEL MANRY Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative this 9th day of January, 1998.
The Issue The issues to be resolved in this proceeding concern whether the Respondent, Lehigh Portland Cement Company/Furniture Division ("Lehigh"), discriminated against the Petitioner on account of her race (white) by discharging her from employment following a verbal altercation with a black co- employee in which the Petitioner allegedly uttered racial slurs directed at or concerning that black co-employee and whether the Petitioner was discriminated against on account of her sex (female) and because of a perceived interracial, personal relationship with another co-employee, who is black.
Findings Of Fact The Petitioner is a former employee of Lehigh. She was discharged by that concern on August 4, 1989 as a disciplinary measure in response to her utterance of racial slurs concerning a black co-worker in the vicinity of the factory floor on Lehigh's premises immediately before the workday began on the date in question. She ultimately filed a charge of discrimination raising the issues and commencing the proceedings referenced in the above Statement of Issues and Preliminary Statement. Lehigh is a furniture manufacturer located in Marianna, Florida. Its plant consists of several large buildings where employees assemble and finish furniture. Lehigh employs somewhat over 400 persons at that factory. On the morning of August 2, 1989, Dorothy Hall and Major Hallmon, both black co-workers of the Petitioner, were having a discussion concerning union business just before the workday commenced on or in the vicinity of the shop floor of Lehigh's factory. Ms. Hall was a shop steward for the union in the paint shop, where the Petitioner was employed. Mr. Hallmon was the chief union steward for Lehigh as a whole. Ms. Hall was expressing concern to Mr. Hallmon about employees in her department or "shop", including the Petitioner, avoiding her, in her capacity as shop steward, and presenting problems directly to Mr. Hallmon when issues or incidents arose which they felt involved the responsibility of their union representatives. Ms. Hall mentioned the Petitioner as one of the employees who had complained about her to Mr. Hallmon. While Ms. Hall was making these comments to Mr. Hallmon, the Petitioner approached them and interrupted their conversation, getting into a verbal altercation with Ms. Hall. Mr. Hallmon attempted to get the Petitioner to cease arguing and yelling. Lehigh's personnel management procedures require that if employees engage in a physical or verbal altercation in their work area, they must cease arguing or fighting and move the disagreement to their supervisor's office for their supervisor to handle with them in an adult manner. Ms. Hall retreated from the confrontation with the Petitioner and walked into the office of George Williams, the supervisor of both of them. The Petitioner then made loud comments which were overheard by a number of co-workers. During their argument, or about the time Ms. Hall walked away in the direction of the supervisor's office, she referred to the Petitioner as a "stupid, white fool" or a "white fool". When the Petitioner walked away from the site of their verbal altercation, a white co-worker, Annette White, told the Petitioner that "Dorothy said she is going to whip your tail" or words to that effect. At this point, the Petitioner responded "I am not afraid of no black ass nigger." The Petitioner's comments were made in a very loud voice and were overheard by a number of co-workers nearby although Ms. Hall, herself, did not hear them nor did Mr. Hallmon. Anne Hamlin, a white woman, who worked in the Petitioner's department, heard the Petitioner say the above-quoted comment. Ms. Hamlin admonished the Petitioner that she should not be calling people by that name. Wilford Pittman, a black man, observed Mr. Hallmon trying to calm the Petitioner during or shortly after her verbal altercation with Ms. Hall. He heard the Petitioner use the word "nigger" and state words to the effect that "I am not scared of that nigger". Odell Harrison, a white man, also heard the Petitioner state "I am not scared of that nigger". Ron Baker, a black man, heard the Petitioner reference Ms. Hall as "a black son of a bitch". The Petitioner, herself, admitted that she stated "I am not afraid of no black ass nigger". The Petitioner immediately joined Ms. Hall in the office of the supervisor after the above incident. Mr. Jack Toole, a crew leader, was also present in the office on that occasion. The argument was renewed once the Petitioner and Ms. Hall were together in the supervisor's office. During the course of their renewed argument, in one of the Petitioner's comments, she used the words "I am white" to which Ms. Hall retorted "No you ain't, your shorts is white". Mr. Toole, who was present during the argument in the supervisor's office, recalls Ms. Hall telling the Petitioner that she was "a white fool for fooling around with Major Hallmon and ruining his life". He also recalls Ms. Hall first coming into the office when he was already present and stating words to the effect that "if we didn't do something about that white woman out there, she would do something with her". Mr. Williams remembers Ms. Hall stating "you make an old fool out of Major". The Petitioner then made a comment to the effect that Ms. Hall should stay home and tend to her "thieving husband" and stay out of other people's business, whereupon Ms. Hall picked up an ashtray as though to strike the Petitioner. Mr. Toole grabbed her arm and took the ashtray from her hand, replacing the ashtray on the desk. The signal to begin work then sounded and Mr. Williams instructed both antagonists to leave his office and begin work. Lehigh has a very specific policy prohibiting racial slurs. That policy provides: Further, it is a stated policy of Lehigh to prevent and prohibit discriminatory conduct in the work environment including statements or actions which could be interpreted as, racially, sexually, religiously or ethnically based, sexual harassment or any other discriminatory harassment or conduct with respect to co-employees, subordinate employees, or supervisors. Any employee who is found to have violated this policy will be subject to discipline, up to and including discharge. This equal employment opportunity policy was posted on all of the company's bulletin boards in the work place in early 1987 and was so maintained and posted forward of that time. Lehigh's management had experienced two disciplinary incidents in the past where two employees, Mr. Cecil Sims and Mr. Coy Jackson, both white, had used the word "nigger", in a conversational context with two black co-employees or in a circumstance where those employees overheard the comment, although it was not uttered in the course of an argument or verbal altercation. Those employees were disciplined by Lehigh for uttering that word, which is found to constitute a "racial slur". Shortly thereafter, during contract negotiations with the union in November of 1988, union representatives informed Lehigh's management that they felt that Lehigh was not enforcing its anti-discrimination policy as vigorously as it should, with the Sims and Jackson incidents used as examples of the union's perception that management's disciplinary practices with regard to the use of this racial slur by employees was too lax. Although Lehigh's management took the view, and still does, that it had taken appropriate disciplinary action in those two prior incidents, Lehigh also agreed with union representatives that such racial slurs constituted a serious offense and agreed that the company would thenceforth enforce its discrimination policy more vigorously. Lehigh's policy, with regard to racial slurs, includes its view that the word "nigger" is one of the most severe or offensive words used to disparage or embarrass a person on account of that person's race. This interpretation of its anti-discrimination policy is a reasonable one because it was established in the record that that word, dating from the time of slavery in America forward to the present time, has been used essentially as a term of disparagement. It is one of the few words in the American vocabulary most likely to demean the person to whom it is directed, to arouse ill will between the person employing the word and the person or persons to whom it is directed, or about whom it is referenced, and even to incite violence between them. It is rational for Lehigh to consider that the use of that racial slur is one of the most severe offenses to which its anti-discrimination policy is directed and designed to prohibit and prevent. In carrying out its disciplinary policy and procedures, Lehigh investigates alleged violations of company rules or policies to find out what occurred and to determine if a rule or policy was, indeed, violated. That customary procedure was performed in the instant case situation. If the management of Lehigh determines that an employee has violated a rule or policy of the company, it evaluates the nature of the offense and views it against the past employment and disciplinary record of the employee to determine what discipline, if any, is appropriate. The management of the company considers the severity of the offense; whether the violation was a willful one; whether it was done with malice; whether the employee under investigation was the aggressor in the incident; the degree of provocation for that employee's behavior; whether the employee expresses or demonstrates any remorse for the occurrence; and the employee's past general work history and disciplinary record. All of these factors are weighed by the company's management in determining what discipline is appropriate. The company customarily has viewed the disciplinary history of an employee as a very significant factor in determining the appropriate discipline to be imposed for a violation of company rules or policies under review as to that employee. In imposing discipline for infractions of company rules or policies, Lehigh employs progressive discipline whenever possible in order to attempt to persuade the employee to change his or her behavior which has resulted in the violation. If an employee exhibits a pattern of rule infractions, especially infractions of the same rule or type of rules, the company imposes a progressively harsher discipline. When considering an employee's past disciplinary record, the company considers only disciplinary violations which have occurred within the past nine months, however. This is because the company's union contract, by which it is bound in terms of its personnel policies and procedures with regard to its union-member employees, contains a provision which requires this restriction. This provision has been applied to all hourly employees of Lehigh for the life of that contract or approximately the past 18 years. It is thus a regular and customary past practice of the company for purposes of the terms of its union contract. The disciplinary measures, which the company imposes for infractions of its rules and policies, range from an oral reprimand (the imposition of which is recorded in the employee's personnel record even if delivered verbally); a written reprimand; suspension from employment for a discreet time period; and permanent discharge from employment. Mr. Albert Berger is the Vice President of Operations for Lehigh. He is responsible for personnel management, among other duties. His personnel management duties include the investigation of alleged infractions of the company's personnel policies and rules, interpreting the company's disciplinary policies and procedures and arriving at decisions about how to discipline employees. Mr. Berger investigated the subject incident involving the Petitioner and Ms. Hall, ultimately determined how to discipline each employee and imposed that discipline. He followed the company's disciplinary policies and procedures in deciding how to discipline the Petitioner and Ms. Hall concerning the incident of August 2, 1989. Upon learning of the incident between those two employees on August 2, 1989, Mr. Berger commenced an investigation of the matter that same day. After making a preliminary inquiry into the matter, he elected to suspend the Petitioner from work sometime on the morning of August 2, 1989, such that she left the company premises under suspension shortly before Noon. He continued his investigation that afternoon, conducting taped interviews with employees and supervisors who had witnessed the altercation. Those witnesses later signed summaries of their statements to Mr. Berger. The Petitioner returned to the factory between 1:00 and 2:00 on the afternoon of August 2, 1989, while Mr. Berger was still concluding his interviews of other employees and supervisors. He gave the Petitioner an opportunity to relate her version of the incident to him. During her taped interview, the Petitioner was very loud and hostile in her demeanor and statements and responses to his questions. She repeatedly employed the term "nigger" with reference to Ms. Hall and her version of the occurrence in question. During the course of the hearing, the Petitioner attempted to explain her behavior during the taped interview with Mr. Berger by insinuating that she was under the influence of alcohol when she exhibited loud and hostile demeanor and comments during the interview, including the use of the term "nigger". She attempted to substantiate this claim by stating that she had consumed several six-packs of beer between the time she left the company premises under suspension shortly before Noon on August 2, 1989 and the time of her interview with Mr. Berger at approximately 2:00 that afternoon. She did not, however, appear drunk or under the influence of alcohol to Mr. Berger when he interviewed her nor did her verbal statements and responses depicted on the tape of that interview justify a finding that she was drunk or under the influence of alcohol at the time of the interview. Moreover, this explanation of her conduct during the interview is self-serving and is thus deemed not credible. Upon concluding his investigation and in the process of determining what, if any, discipline to impose on the two protagonists, Mr. Berger reviewed and considered the employment histories of both the Petitioner and Ms. Hall. Ms. Hall's disciplinary record was a good one. Her most recent disciplinary offense had occurred 13 years before the August 2, 1989 incident. She had been disciplined only one other time, approximately 16 years before the August 2, 1989 incident. Under its union contract, Lehigh was prohibited from considering those two disciplinary incidents in deciding whether and how to impose discipline for the current August 2, 1989 occurrence because those disciplinary infractions occurred more than nine months prior to the August 2, 1989 incident. In addition to the fact that her disciplinary record was a good one with no disciplinary infractions for more than a decade, Ms. Hall readily expressed remorse for her involvement in the incident, apologizing to Mr. Berger and promising to let no such occurrence happen in the future. Because of this and because Lehigh's management, through Mr. Berger, viewed the racial slur "nigger", loudly uttered by the Petitioner, as more egregious than the remark "white fool", "old fool", or "you're not white, your shorts are white", made by Ms. Hall, a lesser discipline was imposed upon Ms. Hall. Mr. Berger imposed a written warning upon Ms. Hall for picking up the ashtray as a threatening gesture directed to the Petitioner and a verbal warning upon her for the above- quoted name calling. This is not a minimal sanction. Written memoranda of both types of discipline are made a part of such an cmployee's personnel record. Concerning the discipline imposed upon the Petitioner, the record establishes that on June 23, 1989, less than two months prior to the incident concerning Ms. Hall, the Petitioner received a three-day suspension for interference with company operations through the use of abusive language directed at another employee. This incident involved the Petitioner painting the words "High Ass" on the door front of a piece of furniture and sending it down the assembly line so that it could be viewed by the co-worker to whom the words were directed. The Petitioner admitted that the words were directed at a black co-worker who was farther down the assembly line. In conjunction with her suspension, Mr. Berger warned her that if she continued to engage in name calling or racial slurs, the consequences for the next such incident would be more severe, including the potential loss of her employment. Mr. Berger concluded and the record establishes that the Petitioner's conduct on August 2, 1989 clearly violated the company's explicit policy against racially-discriminatory conduct in the work place, as that policy is quoted in the above Findings of Fact. The Petitioner's conduct on August 2, 1989, along with the incident leading to her earlier suspension for similar conduct, establishes a pattern of abusive, racially-discriminatory behavior towards her co-workers. Further, the Petitioner was shown to be the aggressor in the incident, interrupting the private conversation between Ms. Hall and Mr. Hallmon, and making statements or comments which incited the ensuing argument and name-calling episode. The Petitioner showed no remorse for her behavior. She was still hostile and inflammatory in her description and reaction to the occurrence concerning Ms. Hall in her interview with Mr. Berger hours later, when she had every reason to believe that her job was at stake with a strong resulting incentive to be conciliatory and remorseful in her reaction and relation of her version of the occurrence to Mr. Berger. Because of these differences in her conduct, her past record, and the severity of her infraction of company policy, as opposed to that of Ms. Hall, and because of Ms. Hall's relative demeanor and reaction to the occurrence and the subsequent summons by Mr. Berger to account for it, Mr. Berger decided, after considering all of the above factors, to convert the Petitioner's suspension to a termination. Discharging the Petitioner for the August 2, 1989 violation in consideration of the above factors related to her conduct, demeanor and past record, as opposed to that of Ms. Hall, was shown to be reasonable, pursuant to Lehigh's customarily-followed "progressive discipline" policy. The differences in severity between the actions of the Petitioner and Ms. Hall, the differences in their personnel histories, the differences in the circumstances of their actions and their demeanor and conduct after the occurrence with regard to it support the differences in the discipline imposed upon them. In attempting to establish a prima facie case of disparate treatment and discrimination related to her termination, the Petitioner employed in her case the examples of Coy Jackson, a white employee and crew leader, being disciplined, but not terminated for using the term "nigger" directed at a black co-employee, Rudolph Townsend, and the similar example of Cecil Sims, a department supervisor, who is also a white man, using the term "nigger" in the presence of a black co-employee. Mr. Sims was also not terminated, but was given a lesser level of discipline. Concerning the Jackson and Sims incidents, the record establishes that in 1988, Coy Jackson spoke of Mr. Townsend, the black employee, who had complained of being cold, as follows: "Get that nigger a coat before he freezes to death." Mr. Sims, a supervisor in that same department, investigated that incident. During Mr. Sims' investigation, he questioned the employees involved about the name calling and the use of the words "black" and "nigger". Mr. Sims stated to Mr. Townsend that there were two names "you all" (meaning black people) could be called-"black" or "nigger"-and he then asked Mr. Townsend which he preferred to be called. Mr. Townsend responded that he simply wished to be called by his own name. Mr. Townsend complained about Mr. Sims' comment to him; and Mr. Berger investigated that incident, as well. He ultimately decided to give Mr. Sims a verbal warning concerning it and admonished him that he was never to use the word "nigger" again in any context and that the next incident, when it occurred, would result in his discharge. The discipline imposed on Mr. Sims was based upon the fact that Mr. Sims readily expressed remorse for the incident, that he had a long, unblemished career with Lehigh, and was then near retirement. He had had no prior history of uttering abusive language, name calling, or the use of racial slurs in the work place. Moreover, the incident occurred in Mr. Sims' office in a normal conversational tone; it was not shouted or uttered loudly on the factory floor in the presence of a number of other employees. Mr. Jackson, the crew leader who made the remark concerning the coat, was also given a verbal warning for use of the word "nigger". The imposition of a verbal warning as discipline for Mr. Jackson was directly related to the fact that Mr. Jackson had personally apologized to Mr. Townsend for making the remark even before the occurrence had been related to Mr. Berger and any investigation of the matter instituted. Moreover, he had made the comment quietly to one other employee and did not shout it in the work place before a number of other employees. Further, these two incidents occurred in February of 1988 before Lehigh elected, at the urging of the employees' union, to more vigorously enforce its policy against racial slurs, which vigorous enforcement policy it has uniformly pursued since that time. These incidents were thus not proven to be similar to the incidents involving the Petitioner and her employment and disciplinary record. Neither involved the disciplining of a black employee differently than a white employee. The Petitioner, Mr. Sims and Mr. Jackson are white. The less severe discipline imposed on Mr. Sims and Mr. Jackson was rationally related to the mitigating circumstances described above, rather than to their status as men or white men. It is also noteworthy that several years before the Petitioner's discharge, a white man employed in Lehigh's loading department, in the course of a conversation with a black employee, held up a piece of rope, apparently tied as a hangman's noose, and told the black employee that he would show him what use was made of rope in the white employee's home town. The black employee, at this juncture, hit the white employee with his fist. Mr. Berger investigated that incident, as well. Although it was alleged to him that the white employee had used the term "nigger", Mr. Berger was not able to identify a disinterested witness who would actually establish that the term had been used. In any event, however, Lehigh's management, through Mr. Berger, determined that this was a serious, malicious violation of the company's anti-discrimination policy. He promptly discharged the white employee for this conduct. The black employee, in turn, was also discharged for engaging in violence, which the company has uniformly considered to be one of the most severe violations of its disciplinary rules. Each of those employees was individually disciplined for their respective violations of company policy, based upon the circumstances peculiar to each. Neither of those incidents is similar to the incident for which Lehigh discharged the Petitioner. The discipline imposed on each of them was shown to be consistent with the company's customary anti-discrimination policy. None of the exemplary incidents described above serve to establish that white employees, male or female,(or, for that matter, black employees) have been subjected to a pattern of discriminatory disciplinary measures, including termination. They, likewise, do not show that any of those employee groups were accorded favored treatment. Rather, the facts regarding these incidents show that the company has pursued a pattern of non-discriminatory employee discipline. The employees who were disciplined in these three incidents were not shown to be similarly situated to the Petitioner, in terms of the infraction she committed, her past record, the circumstances surrounding her infraction and the investigation afterward, versus the underlying reasons for the various disciplinary measures imposed on these other employees, related above. During the hearing, the Petitioner first raised the issue of alleged discriminatory treatment because of a perceived close interracial relationship between her and Mr. Hallmon. Accordingly, she amended the Petition, ore tenus, without objection. Mr. Hallmon and the Petitioner had apparently become close friends at the point when he asked her to be his assistant in his position as chief union steward. She accepted the position. Mr. Hallmon indicated that this was because of his concerns about tensions between black and white employees. He wished a white employee to be his assistant to, as he termed it, "balance things out". That association began approximately three years ago. Mr. Hallmon and the Petitioner customarily would spend their lunch period together on frequent occasions to discuss union business. They sometimes met after work, in the parking lot next to the factory, to discuss union business because, as Mr. Hallmon put it, he maintained his union business office in the trunk of his car. The two also met many mornings prior to work for donuts and coffee. Their apparent friendship is corroborated by the fact that Mr. Hallmon elected to urge one of the witnesses to the Petitioner's behavior on August 2, 1989 to conceal her knowledge of it. He stopped Anne Hamlin in the parking lot on the day of the incident and told her that she should say nothing about it. The Petitioner has been engaged in contesting her discharge through the union grievance procedure or the administrative process before the Commission on Human Relations and the Division of Administrative Hearings for more than a year and one-half as of the time of hearing. However, she never had complained prior to the day of hearing that her friendship with Mr. Hallmon or any perceived close, personal interracial relationship between her and Mr. Hallmon had been involved in the reasons for her discharge or any discriminatory treatment she believed had been imposed upon her. Mr. Hallmon contended at the hearing that 80% of the approximately 400 workers at Lehigh had made comments about their relationship but, upon questioning about this testimony, was only able to relate two specific comments which had been made to him concerning his and the Petitioner's relationship. Neither of these comments were made by management-level personnel of Lehigh. Moreover, both the Petitioner and Mr. Hallmon, as union representatives, were acquainted with procedures for bringing a grievance to the attention of management, concerning discriminatory treatment, or any other basis for a grievance and yet neither had complained concerning any perceived discriminatory treatment to management. The only instance in which management might have gained any knowledge of their alleged relationship, other than personal observation, was from a conversation between Mr. Hallmon and Mr. Berger on one occasion when Mr. Hallmon asked Mr. Berger whether there was any violation of company policy if two people, black and white, or male or female, have lunch together. Mr. Berger responded by stating, in effect, that it was not any of management's business or anyone else's business concerning which employees had lunch together. Mr. Berger, however, upon learning that Mr. Hallmon had an apparent concern about the perception which management or co-employees might have concerning his and the Petitioner's relationship, did advise him to remember that "...this is the deep south...and I wouldn't want any of these rednecks catching up with you". When asked if he could recall any discussions between management personnel concerning the amount of time Mr. Hallmon and the Petitioner spent together, Mr. Berger answered "no, it's none of our business". Although Mr. Berger had observed the Petitioner and Mr. Hallmon together on several occasions, he felt that was none of his business as a manager of the company. Neither body of testimony, appearing at pages 49, 50 and 90 of the transcript nor any other testimony or evidence in this record, establishes that management had any knowledge of any pervasive discriminatory pattern of behavior in the work place by co-workers toward the Petitioner and Mr. Hallmon, if such indeed existed, which was not proven. It was also not established that management had any concern with any real or perceived relationship between the Petitioner and Mr. Hallmon and it was not demonstrated that it had any effect on the decision to discipline the Petitioner nor on the severity of the discipline imposed. After her termination, the Petitioner attempted to secure employment through the services of Job Services of Florida by application of August 28, 1989. Job Services referred her to Russell Corporation on September 8, 1989 and to Wal-Mart on September 21, 1989. She applied for employment unsuccessfully at both places. These were the only attempts the Petitioner made to obtain employment from the time of her August 2, 1989 termination until the hearing. Her listing, as available for employment, with Job Services of Florida became inactive on November 30, 1989. It was not established that she sought to reactivate that listing until just prior to the hearing. During the period of her unemployment, there were opportunities to seek employment which she did not avail herself of. On the date of the hearing, there were 22 jobs with private employers and 15 jobs with public employers listed with Job Services of Florida for which the Petitioner could have qualified to apply. She contended that she had looked in the help-wanted advertisements in a weekly newspaper for jobs, but there were none for which she was qualified. Local papers published in Jackson, Calhoun and Liberty counties, in the immediate vicinity of the Petitioner's residence in Altha, reveal that there were a number of advertisements for jobs during her unemployment period which she could have qualified to apply for and possibly to secure. The Petitioner's payroll records for 1988 reveal seven pay periods out of 52 when her total hours equaled or exceeded 50 hours. There were seven pay periods when she worked fewer than 40 hours per week. The average hours worked weekly during 1988 were 42.2. The highest gross pay received in 1988 was $375.76 per week, and the lowest weekly gross pay was $98.56. Her weekly gross pay on an average basis for 1988 was, thus, $273.24. The Petitioner worked 36 pay periods in 1989. She worked more than 40 hours in only eight of those weekly pay periods. The time in excess of 40 hours in these eight pay periods varied, with 5.5 hours being the largest number of hours in excess of 40 hours worked for a weekly pay period; and .3 hours was the lowest number of hours in excess of 40 hours worked for a weekly pay period. In 15 of these 36 pay periods, the Petitioner worked fewer than 40 hours. The average hours per pay period for 1989 were, thus, 33.98. She received overtime pay in eight pay periods. Her highest gross salary for any pay period in 1989 was $309.28. Her lowest gross salary for a pay period in 1989 was $51.28. Her average gross pay for 1989 was, thus, $220.72 per week. The average weekly gross pay for the entire period of her employment was $246.12. She earned $6.41 per hour at the time of her discharge. Had she remained employed, this would have increased to $6.63 per hour on December 16, 1989 and to $6.83 on December 16, 1990. She was eligible for two weeks of paid vacation per year since she had been employed for three years, and eight paid holidays per year. Federal income tax, social security, and union dues were withheld from her gross weekly pay. In 1988, income tax withholding totaled $1,022.80; social security totaled $1,066.98; and union dues totaled $110.00. In 1989, federal income tax totaled $513.97; social security totaled $596.76; and union dues totaled $96.00 for the 36 pay periods she worked in 1989. Lehigh was self- insured for health insurance and any amounts exceeding the employee contributions were to be paid by Lehigh. The employees, including the Petitioner, contributed $7.50 per week towards health insurance. Her payroll records reveal, however, that she ceased participating in the employer-provided group health insurance after the seventh pay period of 1989. In arriving at the above Findings of Fact, it has been necessary, to some extent, to reject the testimony of the Petitioner and Mr. Hallmon. This is because the Hearing Officer finds the testimony of other witnesses to the argument between the Petitioner and Ms. Hall and the surrounding circumstances and events to be more credible. The testimony of the other witnesses to these events was accepted because of their basic agreement on the significant circumstances concerning the occurrences in question and the fact that these other witnesses were demonstrated to have no reason to shade the truth concerning the occurrences and the underlying circumstances, including the fact that these witnesses, whose testimony has been accepted as more credible, are of both races involved. The Petitioner, however, is interested in the litigation and admits using the words "black ass nigger" and her tape-recorded statements made the same day of the argument in question are corroborative of the statements, behavior and demeanor on the part of the Petitioner reported by the other witnesses who have been found to be more credible and who are named in the above Findings of Fact. It is found that Mr. Hallmon's close relationship with the Petitioner might have influenced his recollection of the events in question. More significantly, his effort to actually prevent Ms. Hamlin from relating her knowledge about the incident is evidence of a bias in favor of the Petitioner. Moreover, the Petitioner's testimony about alleged recent job-search efforts was impeached because in her deposition taken approximately a week prior to hearing, she repeatedly asserted that the potential jobs at Russell and Wal-Mart were the only ones she had sought, although she maintained at hearing that she had also applied for work at Oglesby Nursery and McDonald's two or three weeks prior to hearing. She offered no explanation of why she did not mention job applications allegedly made less than a month prior to her deposition testimony. It is simply not credible that she would have forgotten those applications if, indeed, they had been made, especially since she was repeatedly asked about that subject matter at her deposition. Thus, her testimony about applying for employment with the two additional employers is deemed not credible.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore recommended that a Final Order be entered by the Florida Commission on Human Relations finding that the Petitioner, Donna J. Brown, was not discharged in violation of Section 760.10, Florida Statutes (1989), and was not the victim of a discriminatory employment practice and, therefore, that her Petition be dismissed in its entirety. RECOMMENDED this 7th day of August, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6596 Petitioner's Proposed Findings of Fact 1-3. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter after determination of the relative credibility of the witnesses. Accepted. 6-9. Accepted. 10-11. Accepted. Accepted, but not material based upon the issues actually pled even by ore tenus amendment at hearing in this proceeding. It has not been established that the employer had knowledge, constructive or otherwise, of any pattern of usage of racial slurs by multiple employees on such a frequent basis, or with any frequency. Thus, it could not have condoned such a pattern of utterance of racial slurs if it was not shown to have known about them, nor was it established that the use of the word "nigger" by fellow employees approximately once or twice a month, as apparently heard by Mr. Hallmon, was made only by white employees. Accepted. Accepted, but not to the extent that this finding establishes a pattern of discrimination against white employees by Mr. Berger or the management of Lehigh. 15-17. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. As delineated in the Hearing Officer's findings of fact, a number of factors were considered in the decision to terminate as opposed to imposing another type or degree of discipline; not consideration of the word "nigger" alone. 20-21. Accepted. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. This finding of fact is not, in itself, materially dispositive of the issues to be adjudicated. Accepted, but not material to resolution of the relevant issues presented for adjudication. Accepted, but not material in this de novo proceeding. Accepted, but subordinate to the Hearing Officer's more detailed findings of fact concerning this subject matter and issue. 26-30. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, including finding that the Petitioner did not participate in the group health insurance program any longer than the period of time delineated in the Hearing Officer's findings of fact. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. It has not been established that employment available for purposes of mitigation of damages for lost wages and benefits has to be precisely comparable in circumstances, condition, quality, wages or benefits or any other element in order to be a relevantly considered available job. Rejected, as contrary to the Hearing Officer's findings of fact on this subject matter. It has not been established that the Petitioner would work 50 hours, with 10 hours of overtime, for each week which she would have worked since August 2, 1989 had she not been discharged. Such a figure is therefore speculative, rendering the figures contained in this proposed finding, other than the actual wage figures for a 40-hour work week, speculative. The Hearing Officer's findings of fact on this subject matter are adhered to and those in this paragraph are rejected as not supported by the evidence and as subordinate to the Hearing Officer's findings of fact. Rejected, as not supported by the preponderant evidence of record in light of the Hearing Officer's findings of fact concerning the liability issue. Respondent's Proposed Findings of Fact 1-2. Accepted. 3. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the record. 4-6. Accepted. 7. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence of record. 8-10. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, except as modified by the Hearing Officer's findings of fact. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 15-17. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. 20-25. Accepted. 26. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 27-98. Accepted, except as modified by the Hearing Officer's findings of fact and by the Hearing Officer's acceptance of the proposed findings of fact by the Petitioner concerning the hourly wage rates Petitioner would have received with her next scheduled pay raises had she remained employed. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Ben R. Patterson, Esq. PATTERSON & TRAYNHAM 1215 Thomasville Road P.O. Box 4289 Tallahassee, FL 32315-4289 George J. Little, Esq. 134A Constitution Lane P.O. Box 1612 Marianna, FL 32446 John D.C. Newton, III, Esq. AURELL, RADEY, ET AL. Suite 1000, Monroe-Park Tower 101 North Monroe Street P.O. Drawer 11307 Tallahassee, FL 32302
The Issue The ultimate issue is whether the Respondent, Tallahassee Coca-Cola Bottling Company (Coke), engaged in an unlawful employment practice on the basis of race in its termination of James Andrews, the Petitioner. Andrews was purportedly terminated because of allegations that he had repeatedly sexually harassed and touched female employees. Resolution of the ultimate issue does not require a determination of whether such sexual harassment actually occurred. Instead, the issue is whether Coke's motivation for the termination was racially based and thus impermissible.
Findings Of Fact Andrews, who is black, was initially hired by Coke in 1969 and worked on the production line until he quit in 1971. Andrews was rehired by Coke in 1973, also in the production department. He worked in various positions in both the production department and in the inventory warehouse, and was promoted to assistant production superintendent in 1977. When the production department was closed in June 1982, Andrews transferred to the warehouse as assistant warehouse supervisor. In 1983, he assumed the responsibilities of head shipping and receiving clerk, and was placed in charge of inventory control, plant security and vehicle maintenance. Warehouse Supervisor Dale Dunlap resigned in July 1988 and Andrews was promoted to Warehouse Supervisor. As warehouse supervisor, Andrews had primary responsibility for the overall management of the warehouse, including inventory control, shipping and receiving, personnel management, and warehouse and vehicle maintenance. Andrews' performance evaluations were generally excellent, but the most recent evaluations were less favorable than his earlier reviews. Reports of Sexual Harassment Prior to Andrews' termination reports of sexual harassment were made to Coke by three employees: Susan Lingerfelt, Mandy Stinson, and Sue Rosenthal (now Rubin). In summer 1989, Lingerfelt reported to Office Supervisor Mandy Stinson that Andrews had just grabbed her in the warehouse by the Coke machine and had forced her head back and kissed her. She had shoved Andrews into the Coke machine, told him not to do that, and went to report it to her supervisor. Because the Sales Center Manager had resigned and his replacement had not yet been appointed, the two women agreed not to tell anyone about the incident, but instead to wait until the new manager arrived. In February 1990, around Valentine's Day, Lingerfelt reported that Andrews came up behind her when she was sitting alone at a computer terminal, grabbed her hair, pulled her head back, and again kissed her on the lips. Lingerfelt again protested and tried to get away from Andrews. Lingerfelt again reported the incident immediately to Stinson. Stinson and Lingerfelt went immediately to Lee Burk, the new Sales Center Manager, and reported the incident and the earlier incident at the Coke machine. During this same meeting with Lee Burk, Stinson also complained that she had been repeatedly harassed by Andrews and that Andrews had come up behind her, given her a "bear hug," and tried to kiss her. Burk was confused about what had happened to Lingerfelt because a black employee, Roosevelt Humphrey, had reported to him a couple of months before that he had seen two employees consensually embracing at the Coke machine. Humphrey had not identified the two employees except to say one was a supervisor. Burk mistakenly believed that the two separate Coke machine incidents were the same event. Based on this mistaken belief, Burk thought that a supervisors' meeting would be enough to solve the problem. A few days later, Burk called a supervisors' meeting and discussed several topics, including sexual harassment. He redistributed and discussed Coke's written policy forbidding sexual harassment. Burk told all the supervisors in no uncertain terms that he would not tolerate unwelcome sexual advances at the plant and that if anything of that sort had happened, the supervisor had better clean up his act. In August 1990, Andrews again was reported by Lingerfelt for grabbing her hair, pulling her head back and kissing her on the lips. Lingerfelt tried to slap Andrews, but missed, hitting him on the shoulder. Lingerfelt went immediately to Stinson and they went to see Burk. Lingerfelt was quite upset and was crying. When Burk heard the report, he said he would take care of it. Lingerfelt left the plant for about an hour to collect herself. While Lingerfelt was gone, Burk called Andrews to his office and confronted him with the two women's allegations, including the previous reports by both women. Andrews categorically denied the allegations, except that he had once put his arms around Lingerfelt. He denied ever kissing her and said he did not mean anything by his actions. Burk stressed to Andrews that he could not touch any female employee again, even if he didn't think anything was wrong with it--that he must stop it. Andrews claimed that Lingerfelt had invited the contact by bumping against him and that she was making the allegations because he was black. Andrews also claimed that Lingerfelt had allowed sexually explicit advances from a white supervisor, Doc Roddenberry, and that Roddenberry, not Andrews, should be the subject of Burk's admonitions. Burk told Andrews that he had only gotten complaints about him (Andrews) and that if he continued with his unwelcome conduct, he could lose his job. No advances were reported by Lingerfelt for a few months, but she did complain that Andrews was uncooperative with her about work. In January 1991, Lingerfelt noted that Andrews was calling her frequently and spending long periods of time in her office. Because this behavior was similar to Andrews' conduct before the previous incidents, Lingerfelt became concerned. On January 16, 1991, Stinson was in Jacksonville at Coke's regional office. Lingerfelt became so concerned that she called Stinson in Jacksonville and reported that Andrews had spent several hours that day in Lingerfelt's office staring at her. Stinson immediately asked the Regional Human Resources Manager, Thomas Bauman, for assistance. Stinson informed Bauman of all the prior alleged sexual harassment by Andrews. The next day Stinson returned to Tallahassee and she and Lingerfelt spoke with Burk. Lingerfelt, who was visibly scared and crying, explained to Burk that Andrews had been standing around her office staring at her. Burk said he would address the problem immediately. After talking with Bauman and obtaining his approval, Burk called Andrews into his office and confronted him again. Andrews denied that he had been hanging around Lingerfelt's office staring at her. Burk then brought Stinson into his office to confront Andrews about his persistent harassment against her. Andrews denied the allegations and accused Stinson of "coming on" to him. Andrews again asserted that the women's allegations were racially motivated. He also brought up his allegations against Roddenberry and Lingerfelt and demanded to know why Roddenberry could "get away with it" and he couldn't. Burk advised Andrews that it was only his own misconduct which was being addressed at the moment. Burk also informed Andrews that the allegations of Andrews' misconduct would be brought to the attention of Bauman for further action. Shortly thereafter, Coke's Special Events Supervisor, Sue Rosenthal (now Rubin), reported several events of sexual harassment by Andrews. She had come forward to help support Lingerfelt. Coke's Investigation After discussing the situation and receiving instructions from Buddy Donaldson, Coke's Florida Human Resources Director, Bauman travelled to Tallahassee to conduct an investigation on January 24 and 25, 1991, into the allegations against Andrews. Bauman first met with Burk and received a briefing on the series of allegations. Burk reported the incident which Roosevelt Humphrey had reported to him, still thinking that incident involved Andrews. Bauman interviewed Lingerfelt, who related in great detail each of the alleged incidents set forth above. Bauman took notes and Lingerfelt signed those notes as being an accurate account of her statement. Bauman asked Lingerfelt whether she had any racial motivation for her reports. Lingerfelt denied that Andrews' race had anything to do with her allegations. At this meeting, Lingerfelt told Bauman that she had hired an attorney and had filed sexual harassment charges against Coke with the Florida Commission on Human Relations. Bauman next interviewed Roosevelt Humphrey. Humphrey told Bauman that the two people he had reported were Lingerfelt and Roddenberry, not Lingerfelt and Andrews. Humphrey also acknowledged that he had not seen any other such incidents involving Lingerfelt and Roddenberry since the one incident he had reported to Burk without giving names. Bauman then went to Lingerfelt and asked if Roddenberry had sexually harassed her. Lingerfelt denied that Roddenberry had ever harassed her. Bauman next interviewed Rosenthal. Rosenthal told Bauman that before she became a supervisor in early 1989, Andrews had engaged in unwelcome sexual conduct toward her on three occasions. The first two times, Andrews came up behind her in her office, lifted the hair on the back of her neck, and kissed her on the neck. The third time, Andrews surprised her by kissing her on the lips after she had finished a telephone call and had turned around. Rosenthal said she was too startled to say anything after the first incident, but after the second and third events, she told Andrews not to do that. She said she did not report these incidents at the time because she was new, young and nervous. Rosenthal also reported that she had recently seen Andrews "stalking" Lingerfelt, staring at her for long periods of time and waiting for Rosenthal to leave so that he could be alone with Lingerfelt. Bauman asked Rosenthal whether her allegations could be racially motivated. Rosenthal said race had nothing to do with it and, in fact, she lived with a black roommate. Rosenthal had selected that woman from a pool of applicants who had responded to her newspaper ad seeking a roommate. Bauman next interviewed Stinson. Stinson told Bauman of the harassment she had suffered from Andrews, which included several attempts by Andrews to hug and kiss her. She also related information about the times Lingerfelt would come to her and they would go to Burk about Andrews' actions toward Lingerfelt. On January 25, 1991, Bauman officially interviewed Burk. Burk related the actions he had taken, including the supervisors' meeting in February 1990 and the personal meetings with Andrews in August 1990 and January 1991. Burk also recommended that Andrews be terminated for sexual harassment and stalking. Suspension and Termination Bauman then called Donaldson and discussed the information he had learned. They decided that Andrews should be suspended immediately, pending a final decision. They also decided not to interview Andrews again because he had denied any wrongdoing twice, most recently a week earlier. They had no reason to believe that Andrews would recede from his denials. Before suspending Andrews, Bauman asked Lingerfelt and Stinson to leave the building. He did so because of his concern and the women's concerns about their personal safety, especially when Andrews was told of the suspension. As soon as the two women had left the building, Bauman called Andrews to Burk's office. They told Andrews that he was being suspended for conduct unbecoming a supervisor. Andrews wanted to know "who said what" about him, but Bauman declined to give him further details. As he was leaving Burk's office, not knowing that Lingerfelt and Stinson had left the building, Andrews shouted to the closed door of Stinson's office something to the effect of "Did you women hear that--are you happy now?" As soon as Andrews was escorted from the premises, Coke changed all the locks at the Tallahassee facility, which was standard procedure. Bauman also had an automatic front door lock installed so that no one could enter the front office without being pre-screened. The following week, Bauman and Donaldson reviewed all the information, including the interview notes which had been attested to by the three women. They concluded that sufficient evidence existed to require termination of Andrews' employment. On January 31, 1991, Donaldson came to Tallahassee, summoned Andrews to the facility, and terminated him for misconduct. The decision to terminate Andrews was based on a good faith belief that he had engaged in inappropriate sexual conduct on multiple occasions, despite and in the face of at least two warnings by the sales center manager. Coke did not immediately replace Andrews. Due to a "cost containment" program that had recently been instituted and because Tallahassee's volume was too low, Burk was not permitted to hire a replacement. In February 1992, more than a year later and after two neighboring sales centers were closed and their operations consolidated at the Tallahassee facility, Burk was allowed to hire a replacement. He hired the warehouse manager from one of the closed sales centers, a white male. Other Victims Come Forward While Coke knew of only three female employees who had been harassed by Andrews when Coke terminated him, three additional women also came forward to testify about sexual harassment they had suffered at the hand of Andrews. Johnnie Mae Marshall, a black woman who had worked for Coke as a receptionist, said Andrews had suggestively rubbed her arms and hands when she handed him documents. To stop it, she ceased to hand him papers, instead placing all such documents in a mail tray for him. Christen Cheshire, a white female telephone sales operator, testified that Andrews harassed her beginning in late 1988. She said Andrews came into her office once or twice a day, hugged her around the neck, and kissed or attempted to kiss her. This went on for about two months before Cheshire was able to persuade Andrews to stop the unwelcome advances. While Cheshire never reported Andrews' advances, Marshall remembers Cheshire complaining to her about it. Jeanie Benton, a white female who worked for Coke from 1987 to 1990, also testified about Andrews' unwelcome advances. One time when she rose from her desk and turned around, Andrews was right behind her and tried to kiss her. She told him to get back and leave her alone. On a later occasion, Andrews tried to massage her shoulders and she told him to stop. Thereafter, Andrews would stand in her office door and stare at her. Andrews' Claims of Discrimination Andrews' claims that the termination was motivated by racial discrimination and that Coke's reasons for terminating him were pretexts for discrimination. As evidence, he offered a story that Roddenberry committed egregious acts of sexual harassment and misconduct, but was not disciplined. Additionally, he alleged that a "white clique" wanted to get rid of him because they did not like that a black man was made warehouse supervisor. Not one shred of credible evidence was given to support Andrews' claims. Besides Andrews' own testimony, the only witness who claimed to have seen any sexually inappropriate conduct between Roddenberry and anyone, including Lingerfelt, was Roosevelt Humphrey. Humphrey was not a credible witness. First, he was terminated by Coke for stealing a check from a coworker and cashing it. Next, he said he saw Roddenberry and Lingerfelt three times a week with Roddenberry kissing Lingerfelt, rubbing her buttocks and her breasts. However, he was not even working at the warehouse during most of the time he said he saw this and his testimony was filled with contradictions and discrepancies. Finally, he named others who saw and discussed this behavior; but each of those named persons denied ever seeing any sexually inappropriate behavior between Roddenberry and Lingerfelt or other female employees. Andrews' suggestion that his termination was racially motivated by false reports from a group of white employees, including Lingerfelt, Stinson, Rosenthal, and Roddenberry, is also unworthy of belief. Andrews' purported to support his conspiracy theory with anecdotes about other white employees, Jeanie Benton and William Beck, who tried to help him in the face of the covert actions of the alleged conspirators. However, Benton and Beck both denied that the events Andrews described in his anecdotes ever occurred. Additionally, Andrews' version of all these incidents was simply implausible and inconsistent with the credible and substantial evidence. Finally, Andrews presented no credible evidence to rebut Coke's evidence of its legitimate reason for the termination. Andrews simply offered no competent or probative evidence of a racial motivation for his termination.
Recommendation Based 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 filed by James Andrews, Jr. DONE and ENTERED this 23rd day of September, 1993, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2063 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, James Andrews, Jr. 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-3(1-3); 9-12(8-11); 17-19(13- 15); 23-25(20-22); 34(29); 36(31); 37(32); 40(35); 41(36 & 37); 42(38); 45(42); 46(43); 50 & 51(46); and 53(47). 2. Proposed findings of fact 4-8, 13-16, 20-22, 26-33, 35, 38, 39, 43, 44, 47-49, and 54 are subordinate to the facts actually found in this Recommended Order. 3. Proposed finding of fact 52 and 55 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Tallahassee Coca-Cola Bottling Co. 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 53(35). 2. Proposed findings of fact 4, 5, 12-17, 19, 20, 22-27, 29-36, 40, 43, 44, 47-52, 55, 56, 79, 80, 87-90, 127, and 137 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 6-9, 11, 18, 85, 91, 102, 107-113, 117, 118, 121, 128-130, 134, and 136 are unsupported by the credible, competent and substantial evidence. 4. Proposed findings of fact 10, 21, 28, 37-39, 41, 42, 45, 46, 54, 57-78, 81-84, 86, 92-101, 103-106, 114-116, 119, 120, 122-126, 131-133, 135, and 138-152 are irrelevant, repetitive, unnecessary, and contain summaries of testimony and argument which are not appropriate proposed findings of fact. COPIES FURNISHED: Marie A. Mattox Attorney at Law 3045 Tower Court Tallahassee, Florida 32303 William R. Radford Attorney at Law 5300 First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2339 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird General Counsel 325 John Knox Road Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent is guilty of unlawful employment practices; to wit: disparate treatment due to Petitioner's race (Hispanic) and/or retaliation.
Findings Of Fact Petitioner is an Hispanic female. At all times material, Petitioner was employed as a Registered Nurse, Nursing Supervisor, by Respondent. Respondent is a rehabilitative nursing facility in Gainesville, Florida, which qualifies as an "employer" under Chapter 760, Florida Statutes. Since the situations complained-of by Petitioner occurred, Petitioner has continued to be employed by Respondent with no breaks in service, no decreases in pay, no change in benefits, and no demotions in rank. At all times material, Respondent has employed Caucasians, Hispanics, African-Americans, and persons of Indian sub-continent descent. Petitioner signed on March 23, 2007, and on April 5, 2007, filed a Charge of Discrimination with FCHR. The Charge alleged that the Employer Respondent had perpetrated an unlawful employment practice upon Petitioner due to her race (Hispanic) and in retaliation. On July 25, 2007, FCHR entered and served a Determination: No Cause. On August 27, 2007, Petitioner timely filed a Petition for Relief. However, her Petition for Relief only alleged discrimination on the basis of retaliation. The retaliation named was that "my evaluation would be done in a group because of a meeting with Mr. Hamilton and Mr. Hawkins." There are no references whatsoever to race or national origin within the Petition for Relief. The Petition does not specifically allege pattern, or on-going discrimination. It does not specifically allege harassment or hostile work place. It suggests only that Petitioner feels that she does not get respect and is "attacked without evidence." Via her Petition, Petitioner seeks the remedy of ". . . that they [the employer] pay for all my therapies and medication and pay for the meetings I attended.” Early on September 5, 2006, Petitioner was standing in line to punch-in on her timecard at Respondent’s facility. Barbara Washington, an African-American CNA, was standing directly behind her. Petitioner shielded her social security number from Ms. Washington’s gaze. Later the same day, Petitioner was rolling a medicine cart down the hallway in Unit Two of Respondent's facility. Ms. Washington was taking a dinner break, seated in a position near the nursing station, which permitted her to view the patients assigned to her. Unfortunately, Ms. Washington's position did not permit Petitioner and the medicine cart to pass. Petitioner requested that Ms. Washington move, so as to let Petitioner and the medicine cart pass. Ms. Washington spoke sharply to Petitioner, either because Petitioner asked her to get out of the way of the medicine cart or for reasons of Ms. Washington's own related to the morning punch-in. During a later investigation by Director of Nursing (DON) Lisa Woods Streer, several versions of what Ms. Washington actually said were elicited. However, the best and most credible evidence on this particular point is Petitioner’s testimony that Ms. Washington loudly used profanity (“the F word”) directly to Petitioner. There is, however, no evidence that, whatever the exchange entailed, any patient was disturbed, upset, or even aware of the exchange, and there is no evidence that the statements from Ms. Washington had anything to do with Petitioner’s Hispanic origin or any type of employer “retaliation.” At least three hours later on September 5, 2006, after Ms. Washington had gone off-shift and was standing outside the facility waiting for a ride home, Petitioner handed Ms. Washington a disciplinary form, known as “a counseling slip.” At that point, Ms. Washington refused to sign the counseling slip and, screaming loudly, denunciated Petitioner with additional profanity similar to her earlier verbal abuse. This language was overheard by Yadira Chavala, who was inside the building making out reports. Ms. Chavala stood up and looked out the window so as to determine who was yelling the profanity. Ms. Chavala considered the volume and content of Ms. Washington's comments to be unprofessional and unacceptable, but she did not take it upon herself to report the incident to the DON, who was not present in the facility at that time of the evening. Again, there is no evidence that Ms. Washington was attacking Petitioner’s ethnicity or acting on behalf of the employer in her screams at Petitioner. Petitioner, however, reported to the DON both incidents of loud profanity and insubordination from Ms. Washington towards Petitioner, via a copy of the counseling slip she had given to Ms. Washington and a note slipped under the DON’s door. DON Lisa Woods Streer, found these items when she came on duty the next morning, September 6, 2006. Pursuant to Respondent’s protocol, Ms. Streer asked Unit Director Karen Derrico to take written statements from staff, concerning the med-cart incident which had occasioned the counseling slip from Petitioner. The general tone of the feedback that Ms. Derrico got was that everyone in the facility had heard about the medicine cart incident, but there were no clear and reliable eye witnesses. Ms. Washington did not immediately own-up to her conduct and told DON Streer that Petitioner had made Ms. Washington feel like a thief by covering Petitioner’s social security number when they punched-in together the morning of September 5, 2006. The DON viewed this comment by Ms. Washington as a counter-accusation of some kind (possibly a complaint of discrimination) against Petitioner, and so the investigation continued. At some point, Ms. Chavala came forward to describe what she had heard from inside the building when Ms. Washington was cursing in the patio/parking area. Petitioner did not like the taking of statements and considered the process to be an attack on herself. She also did not like the fact that she was called in for a meeting on September 13, 2006, but was informed after she had arrived that the meeting had been put off to the next day. By September 13, 2006, the decision to discipline Ms. Washington had been made, because by that time Ms. Chavala had come forward concerning the second incident, but because the DON felt that Petitioner “had backed Ms. Washington into a corner” Petitioner required some counseling. Upset that a meeting was to take place the next day, Petitioner telephoned Mr. McKalvane of Respondent’s Human Resources Department in Pensacola, to complain about how the September 5, 2006, situation was being handled. Petitioner testified, without corroboration, that Mr. McKalvane told her that he could not talk to her before the next day’s meeting, but would attend the meeting by speaker phone. On Thursday, September 14, 2006, a two-hour meeting was held at the facility. DON Streer; Administrator George C. Hamilton; Unit Director Derrico; Ruthie Moore, the facility’s Staff Development Coordinator; and Petitioner were present. Streer, Hamilton, and Derrico are Caucasians. Moore is African- American. Mr. McKalvane's race/national origin is not of record, but he did not appear at the meeting, even by telephone. Petitioner felt betrayed because Mr. McKalvane did not attend the September 14, 2006, meeting by telephone. At the September 14, 2006, meeting, Ms. Moore suggested that if Petitioner had known that Ms. Washington was upset, it might have been wise for Petitioner to wait until the next day to hand Ms. Washington her counseling slip. Petitioner was offended by this comment because she believed her delay of three hours after the medicine cart incident before issuing the counseling slip had been sufficient. At the September 14, 2006, meeting, DON Streer suggested that Petitioner might want to get with Ms. Moore for some in-service instruction on how to be a better supervisor. Petitioner was offended by this suggestion, because Petitioner perceived no fault in her handling of Ms. Washington. At no time has Petitioner ever been required by the employer to take supervisory in-service training as a result of the September 5-14, 2006, events. In fact, Petitioner has not taken such training or any similar one-on-one training or in- servicing with the employer, and she has not been penalized for not doing so. As a result of Petitioner’s counseling slip concerning the September 5, 2006, incidents with Ms. Washington, Ms. Washington was suspended from work for one day without pay, but Petitioner was not disciplined in any way concerning Ms. Washington’s accusations. Petitioner suffered no discipline or loss in pay, position, or benefits as a result of the September 5, 2006, or September 14, 2006, events. Petitioner submitted that the employer’s punishment of Ms. Washington was somehow discriminatory against Petitioner because it took management nine days to come to the one-day suspension of the person that Petitioner wanted to be disciplined. However, the only comparator that Petitioner was able to offer was a situation which occurred a year later, in 2007. On that occasion, an oral confrontation occurred between an African-American female worker and a Caucasian female supervisor. There is no specific evidence concerning how similar the 2007 incident was to any of the September 5, 2007, incidents involving Ms. Washington and Petitioner. However, in the 2007 incident, the African-American female immediately admitted wrong-doing, and the very next day, the employer suspended her for one day without pay, just as the employer had suspended Ms. Washington for one day without pay in 2006, in response to Petitioner's counseling slip. Ms. Streer testified credibly that in 2007, the investigation and counseling period was shortened by the subordinate’s immediate admission of wrong-doing and lack of accusations against her reporting supervisor. Approximately September 20, 2006, Petitioner sent a 19- page, typewritten letter of complaint to Respondent’s corporate headquarters. The scope of this letter is not clear because it is not in evidence. Petitioner was supposed to be evaluated annually each September, but she did not receive her evaluation in September 2006. She reminded the DON in November 2006, that she had not yet been evaluated. Shortly thereafter, Petitioner received her annual evaluation which bears a date of October 5, 2006, signed on October 22, 2006, by Weekend Nursing Supervisor Sneha Rema, R.N. Supervisor, and signed-off on by DON Sterer on October 31, 2006.1/ Ms. Rema received no input for her 2006 evaluation from the DON or Administrator. By observation, Ms. Rema appears to be a member of one of the ethnic groups originating on the Indian sub-continent. She rated Petitioner as "exceptional" in categories "work quality," "work quantity/productivity," and "compliance & adherence to policies," and as "meets expectations" in categories "core values" and "leadership skills." Under the 2006, evaluation's heading, "Areas of Improvement, Developmental and/or Upcoming Objectives," Ms. Rema put this comment about Petitioner: May improve her leadership skills by attending seminars on interpersonal relationship and how to influence others to accomplish goals in constructive way and team building from a constructive point-of- view. Ms. Rema approaches evaluations with the belief that each employee has different levels of education and skills, should be encouraged to constantly improve, and can best improve if supervisors point out to the employee performance areas susceptible of improvement by the employee. This viewpoint was Ms. Rema’s sole motivation in making the foregoing comment. Ms. Rema views these types of comments as a way of pointing out goals, not failures. Contrariwise, Petitioner holds the personal belief that unless every single nurse received identical language on the foregoing part of his or her respective annual evaluation, regardless of that employee’s individual circumstances and regardless of who wrote the evaluation, then Petitioner has suffered a personal attack and discriminatory treatment by the employer. There is no evidence that the 2006, evaluation caused Petitioner any loss of pay, position, benefits, or hours. In fact, she received a raise. If the raise was delayed by one month, that information does not appear in the record. At some point between September 20, 2006, which was the date of Petitioner’s letter, and the end of November 2006, (the exact date is not of record), Mr. Ken Hawkins, a consultant of Respondent’s corporate personnel office in Tampa, journeyed to the facility and met with Petitioner to try to resolve her concerns. Mr. Hawkins race/national origin is not of record. The meeting was more acrimonious than harmonious and ended with Mr. Hawkins advising Petitioner that her concerns “were history” and he was not going to go over everything that had already been addressed. Petitioner was offended by Mr. Hawkins’ description of the events that concerned her as “history”; because she felt he yelled at her; and because she felt he had made her come to the facility for a live meeting when he could have just told her “no” over the phone. The two-hour September 14, 2006, counseling meeting and the brief meeting sometime after September 20, 2006, during which Mr. Hawkins told Petitioner he was not going to go over her concerns again are the meetings for which Petitioner feels Respondent employer should pay her. Sometime after her meeting with Mr. Hawkins, Petitioner filed a discrimination complaint with the City of Gainesville Office of Equal Opportunity. The date of this complaint is uncertain. However, it had to precede March 9, 2007, because on that date, in response to the city action, and in accord with Respondent’s Human Resources Office’s instructions, Administrator Hamilton wrote Petitioner and provided her with the Respondent’s 1-800 telephone number to report discrimination. Respondent has an anti-discrimination policy and also posts the 1-800 number in its facilities. Petitioner also filed an EEOC discrimination complaint, and the underlying discrimination complaint herein was filed with FCHR on April 5, 2007. Because her FCHR complaint was signed on March 23, 2007, the undersigned takes it that the EEOC complaint was filed at approximately that time. Petitioner has complained that, as a result of her September 20, 2006, letter to corporate headquarters, she was told, either by Ms. Streer or by Mr. Hawkins that she must be evaluated “in a group.” Her testimony on this issue as to who told her this vacillated, and the group rating was not confirmed by any other witness nor by the signatures on the 2006 and 2007 evaluations in evidence. Although Ms. Streer signs-off as the next level of management on evaluations, that action hardly constitutes "group rating." The evidence as a whole provides the overall sense that Petitioner has been, in the vernacular, “prickly” about what she perceives as situations of disparate treatment, none of which were supported by credible evidence in the instant case, and that as a result of Petitioner’s heightened sensitivity, none of Petitioner's on-site superiors want to expose themselves to old or new accusations by her, but the greater weight of the credible evidence is that in 2007, Theresa Volk, Unit Manager of Station One, supervised Petitioner for only two days per week, so Ms. Volk believed that Petitioner's supervisor for the remainder of the week should have input to Petitioner's 2007 evaluation. Ms. Volk’s name and that of Ms. Rema appear on the first page of Petitioner’s 2007 evaluation, but only Ms. Volk signed as her “evaluator” on October 9, 2007. In that 2007, evaluation, Ms. Volk rated Petitioner “exceptional” in “work quality” and “work quantity/productivity,” and “meets expectations" in “customer service,” “compliance & adherence to policies,” “core values,” and “leadership skills.” Under “areas for improvement,” she made a comment about wound care documentation intended for Petitioner’s improvement. After receiving her September 2007, evaluation, which had been signed by Ms. Volk on October 9, 2007, Petitioner suffered no loss in pay, position, or benefits, and, once again, received her annual raise. Petitioner testified that she got her 2007 raise “late” but did not quantify how late. Petitioner wrote Ms. Volk a letter treating Ms. Volk’s evaluation comment for improvement as a criticism related to a particular past incident, and was offended when Ms. Volk refused to stop the work she was doing to read Petitioner’s letter. Respondent has a policy which requires employees to request personal paid time-off 30 days in advance. Petitioner testified that under this system, she properly requested time off for October 20, 2007, and November 3, 2007, but that shortly before those dates, Ms. Streer told her she could have only one date or the other, but if Petitioner wanted to take off both days, Petitioner had to get a replacement for one day. While this much of Petitioner’s testimony is unrefuted, Petitioner was not persuasive that she ever got written approval of the dates, and she did not establish any connection between the denial of two days' leave and either her Hispanic heritage or as retaliation for her prior letter to corporate headquarters or as retaliation for any of her discrimination complaints in March or April 2007. Petitioner presented no evidence that she lost pay, position, promotion or benefits at any time, on the basis of retaliation or her Hispanic heritage. Petitioner testified that she had to go into therapy and pay for medications as a result of the stress that the foregoing incidents have caused her. She presented no corroborative medical testimony or evidence of any professional diagnosis and further presented no medical or pharmaceutical bills to establish any damages therefor.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint of Discrimination and the Petition for Relief. DONE AND ENTERED this 30th day of May, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2007.
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of Petitioner's race in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2008).1
Findings Of Fact Petitioner is an "aggrieved person" within the meaning of Subsections 760.02(6) and (10). Petitioner is a 41-year-old African-American male, who was terminated from his employment with Respondent on September 9, 2008. Respondent is an "employer" within the meaning of Subsection 760.02(7). Respondent is a company engaged in the business, in relevant part, of distributing food from a warehouse in Fort Myers, Florida. Respondent employed Petitioner as a warehouse worker from some time in the fall of 2006 through September 9, 2008. On September 9, 2008, Respondent terminated Petitioner's employment. A preponderance of the evidence does not show that Respondent terminated Petitioner's employment because of Petitioner's race. Rather, a preponderance of the evidence shows that Respondent terminated Petitioner's employment for non-discriminatory reasons. Petitioner worked the evening shift from 3:00 p.m. until some time between 10:00 p.m. and 1:00 a.m., depending on the requirements for unloading trucks each day and manpower availability. Mr. Courtney Ward supervised the evening shift. All other supervisors left the warehouse by 6:00 p.m. each workday. In the fall of 2008, product shortages began to appear at the warehouse. Management investigated the shortages and focused the investigation on the evening shift because that shift was relatively under-supervised. During the investigation, corporate security officers interviewed all employees in the evening shift, including Petitioner; Mr. Ward; and warehouse workers, Mr. Don Kane and Mr. Mike Petersen. All of the named workers except Petitioner are Caucasian. On September 4, 2008, each warehouse worker submitted a written statement regarding the worker's knowledge or participation in product shortages. Petitioner admitted in his statement to taking product from the floor regularly and trading it once or twice for marijuana. Petitioner also admitted to drinking beer on the job. It is undisputed that Petitioner knew that taking product and drinking beer were offenses for which Petitioner could be terminated from his employment. The practice had been tolerated by a previous supervisor of Mr. Ward. However, the new supervisor had issued a memorandum advising employees to terminate the practice, but Petitioner continued the practice. On the same day that Respondent terminated Petitioner's employment, Respondent terminated the employment of Mr. Ward. Mr. Ward admitted in his statement to drinking beer on the job and to knowing that Petitioner consumed alcohol and used marijuana on the job. Even though Mr. Ward did not admit to taking product or using marijuana, Respondent held Mr. Ward to a "higher standard" because Mr. Ward was a supervisor. Respondent did not terminate either Mr. Kane or Mr. Petersen from employment. However, Respondent had valid, non-racial reasons for its action. Mr. Kane did not admit in his statement to taking product off the floor, and Respondent had no independent proof to dispute the denial. While Mr. Kane did admit to consuming alcohol on the job, there was no independent proof that Mr. Kane used marijuana on the job. Respondent placed Mr. Kane on "final warning" for one year. The final warning required Mr. Kane to submit to mandatory counseling in the company's Employee Assistance Program and to submit to random drug and alcohol testing. Mr. Petersen was "cleared from any involvement" in the product shortages during the investigation. He was also "cleared" of any allegations of drinking on the job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding Respondent not guilty of the allegations against Respondent and dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 13th day of July, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2010.
The Issue Whether Petitioner is eligible for a waiver of his 1996 conviction for cruelty to animals in order to receive a pari- mutuel wagering occupational license.
Findings Of Fact Petitioner is an applicant for a pari-mutual wagering occupational license who wishes to be licensed as a greyhound owner in Florida. Respondent is the Department of Business and Professional Regulation, Division of Pari-Mutual Wagering, an executive agency of the State of Florida created by Section 20.165(2)(f), Florida Statutes. Petitioner's application, filed June 27, 2002, candidly disclosed a previous felony conviction of cruelty to animals. On or about June 20, 1996, Petitioner was, in fact, found guilty of a third degree felony (cruelty to animals: refusing medical care to a greyhound) under Section 828.12(2), Florida Statutes, by a jury in the Seventh Judicial Circuit in and for Volusia County in Case No. 96-30581CFAES. He was 26 years old at the time. Petitioner's conviction for cruelty to animals arose from the death of a greyhound puppy named "He's My Denny." The puppy was in Petitioner's care at the Daytona Beach Kennel Club. "He's My Denny" was bred and raised to be a racing greyhound. As a result of his aforementioned felony conviction, Petitioner served 57 days in the Volusia County Jail and the balance of five years via out-of-state probation. Petitioner entered into a Consent Order with the Division, whereby he was declared to be ineligible for any pari- mutuel occupational license under Section 550.105, Florida Statutes, for three years. On July 1, 2002, after his three-year suspension had run, Petitioner requested a waiver of his conviction of cruelty to animals, for the purpose of re-licensure. Stephen Toner, an Investigator for the Division, interviewed Petitioner on August 5, 2002, regarding his request for a waiver. During the interview, Mr. Toner completed a waiver interview form. Each page, with the exception of the last page of the form which contained Mr. Toner's comments, was initialed and dated by Petitioner. In commenting upon the interview and its form at hearing, Petitioner expressed concern that Mr. Toner had misunderstood him during the interview when he said something to the effect of "If I had known there would be this much trouble with such serious consequences, I would have just put the dog down." I accept that Petitioner meant, by this, or similar language, that he would have humanely euthanized "He's My Denny," rather than allowing the beast to suffer. However, this information is largely irrelevant. Petitioner received the Division's letter of license denial on September 20, 2002. The National Greyhound Association will not permit Petitioner to register a greyhound for racing purposes in any state unless the State of Florida will re-license him. Therefore, Petitioner is effectively precluded from his chosen line of work throughout the United States, by Florida's denial of his occupational license application. After being denied re-licensure by the Division, Petitioner received a Certificate of Restoration of Civil Rights, dated October 25, 2002. The Certificate states, in pertinent part: "grants [Petitioner] restoration of civil rights, except the specific authority to possess or own a firearm for any and all felony convictions in the State of Florida." Petitioner testified, without refutation, that, except for his cruelty to animals conviction, he has had no other trouble with the law except that when he was 19 years old, he was caught driving without a license and represented himself to police as his older brother, who did have a driver's license. At hearing, Petitioner did not list, or elaborate on, any signs of good moral character or rehabilitation since his 1996 Florida conviction for cruelty to animals.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering enter a Final Order denying Petitioner's application for a pari-mutuel occupational license. DONE AND ENTERED this 15th day of May, 2003, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 2003. COPIES FURNISHED: David J. Gibby 6278 Stanleyville Drive Rural Hill, North Carolina 27045 Joseph M. Helton, Jr., Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issues to be resolved in this proceeding concern whether the Petitioner has been the victim of discrimination based upon his race and upon retaliation regarding his termination (lay-off) from employment with the Respondent and with regard to his allegation that he was denied overtime by the Respondent.
Findings Of Fact The Petitioner was a laborer and carpenter's helper for the Respondent, a construction company, at times pertinent to this case. The two construction projects involved in this proceeding are known as the Oceans Grande Project, a 20-story high rise condominium in Daytona Beach Shores and the Salida Del Sol project in Daytona Beach Shores. The first was commenced in construction in January 2004, and the Salida project in December 2004. They are still ongoing. Sometime in 2004 the Petitioner applied at the Respondent's Oceans Grande worksite asking for a wage rate of $14.00 per hour. He filled out an application and left and had no more contact with the Respondent employer for two or three months. He returned after that period of time and spoke with Grady Johnson, the project superintendent for the Respondent. He ultimately took a job at $12.00 per hour with the Respondent as a carpenter's helper/laborer. He was thus employed initially at the Oceans Grande project. The Petitioner was employed at that location from June 21, 2004 until early March 2005, when he was transferred to the Salida Del Sol project. Prior to that transfer, in November 2004, at the Oceans Grande site the Petitioner suffered an on- the-job injury. He was provided medical care by the Respondent, and had been placed on light duty by his physician. In early March 2005, the Oceans Grande project no longer had any light duty work available. It was the understanding of the superintendent, Grady Johnson, that at all times after November 15, 2004, the Petitioner had been on light duty status. He was aware of three specific letters that the company received from the physician. The latest one, advising that the Petitioner must remain on light duty, was received in March according to Mr. Johnson; however, rather than lay-off the Petitioner, the Respondent transferred the Petitioner to the Salida Del Sol project. That project was just getting underway at that time and light duty work was available. Two other employees were also transferred to that project. Thus, the Petitioner's employment at Salida Del Sol consisted of light duty work. Superintendent Getz of that project re-affirmed that the transfer to his project was because of a lack of a need for one such as the Petitioner on light duty at the Oceans Grande project, as well as the fact that his project at this time had light duty work. The transfer to the Salida Del Sol project occurred on March 7, 2005. At the time of the Petitioner's transfer to the Salida job site there were only two Yates employees, including the Petitioner, who were employed there, aside from supervisory personnel. On or about April 12, 2005, an employee of a subcontractor referred to the Petitioner with a racial slur, and made other unkind, argumentative comments toward him. The Petitioner made no mention of it initially, but on the very next day was working in that area and realized that one of the female employees was quite angry because of her awareness of the racially derogatory comment that the subcontractor's employee had made toward the Petitioner. This co-employee made a complaint about the matter to Rick Getz, the project superintendent at the Salida job. Mr. Getz immediately investigated the matter and confronted the employee of the subcontractor ("Dominick") and told him in no uncertain terms that such conduct was not to be tolerated on that job, regardless of whom he worked for. Subsequently Mr. Getz, along with the assistant project superintendent Rick Bilodeau, met with the subcontractor's employee, Dominick, as well as his employer and reiterated to both of them that this type of conduct would not be condoned and there would be no further incidents like this. There were no more complaints thereafter by the Petitioner or any other employee of the Respondent. In a conversation shortly after this meeting, Mr. Bilodeau informed the Petitioner that the matter had been resolved, at which point the Petitioner made a statement to the effect that he wanted to know the name and address of Dominick's employer because "my people like people with big mouths and lots of money." In any event, the Respondent's action remedied the situation and stopped any further racially derogatory incidents. The Petitioner has also complained of being denied overtime. This stems from Friday, April 29, 2005, when the Petitioner learned that the other two employees on his job site were going to work overtime the next day, Saturday. He claims he knew nothing about it and was not told by his employer and concluded therefore that he was denied overtime. The Respondent, however, offered preponderant evidence that there was overtime available on Saturday April 30, 2005, and that no effort had been made to exclude the Petitioner. Rather, overtime is voluntary and because of the small number of employees superintendent Getz had announced to all employees near the end of the workday on Friday that work was available for anyone who wanted to work on Saturday. It was Mr. Getz's impression that this had been made known to the Petitioner, but if the Petitioner had not heard the announcement at a gathering at the end of the day, it was not through any intentional effort by the Respondent to exclude him from an overtime opportunity. This was confirmed by Assistant Superintendent Billodeau in his testimony to the effect that it was customary on the job site on Friday to announce to everyone congregated in the afternoon whether they were going to work on Saturday or not. It was Billodeau's impression also that the Petitioner was present on that occasion. So all employees were told as a group that there was work to be done on Saturday. It is also true that numerous occasions had arisen on this and the Oceans Grande project in which the Petitioner was asked to work overtime but declined for various reasons, as the Petitioner himself has conceded. Finally, the Petitioner complains concerning his lay- off from the Oceans Grande project on May 6, 2005. In fact, efforts were made to avoid laying the Petitioner off, and to find him available work at the Salida project. Additional efforts were also made to contact the Petitioner for re-call purposes even after he was laid-off from the Oceans Grande project. This belies any intention on the part of the Respondent to retaliate against the Petitioner for complaining about the racial comment incident by denying him overtime or laying him off. On May 2, 2005, the Salida Del Sol project had reached a stage in which there was very little work to do. The project was waiting for a work permit and for the installation of a tower crane. Therefore there was no work for a laborer, the Petitioner, or for the two carpenters, Felix Hernandez and Otillo Toledo. Rather than lay them off, however, Superintendent Getz called the project Superintendent, Mr. Johnson, at the Oceans Grande project to see if there was any work for the three employees. Mr. Johnson told him that he might have work for perhaps a week and therefore the Petitioner and the other two employees were transferred to the Oceans Grande project. Both Hernandez and Toledo were skilled carpenters, as opposed to the Petitioner, who was a laborer/carpenter's helper. When this transfer occurred it left only two traffic control employees, who were females, at the Salida job site, along with the tower crane operator. On May 6, 2005, the Petitioner was laid-off from the Oceans Grande project. There was simply no further work for a laborer at that job site so Mr. Mecker, the foreman, explained to the Petitioner why he was laid-off. He also told him that the company might soon have another project starting known as the Halifax Landing project and that he might have work available there. He told the Petitioner that he should remain in contact with the Oceans Grande project supervisory personnel in case a re-call came up because of additional work becoming available. The Respondent also noted in the Petitioner's personnel file at the time of this "reduction in force" that the Petitioner was "recommended for re-hire." Mr. Johnson also testified that as far as he was concerned the Petitioner was still eligible for re-hire and that he actually liked Julian Lawrence as a person and as an employee. It is undisputed, however, that the Petitioner never contacted the Respondent and never made any inquiry as to additional work. On occasion, Project Superintendent Johnson made efforts to call the Petitioner at the only phone number he had for him, regarding re-calling him for more work. This was probably three to four weeks after the lay-off. The fact that the Respondent noted on the personnel record at the time of his lay-off that the Petitioner was recommended for re-hire belies any indication that the Petitioner was being retaliated against by the Respondent. It also significant that the decision-maker with regard to the lay-off was Grady Johnson. The Petitioner maintains that he was laid-off in retaliation for complaining about the racial epithet incident involving "Dominick" at the Salida project. Mr. Johnson however, was totally unaware of that incident at the time he made the decision to lay the Petitioner off. Thus it was not possible that he did so as an act of retaliation. Indeed the Petitioner himself did not complain regarding the racial comment incident, but rather learned of it from the female employee who had made the complaint to the Respondent's management. Equally significant, no derogatory employment action was ever taken against the female employee who complained to the Respondent regarding the incident either. Project Superintendent Johnson established, based upon his 45 years experience in the construction industry, that it is important to understand how a construction project and company operates. There are different steps and different stages. During these different steps and stages of a project different employees are required and then become un-needed at a later stage of the project. Many times much of the work at various stages is performed by subcontractors. Additionally, it is important to acknowledge that not only was Mr. Johnson unaware of the "Dominick" incident, but when asked if the lay-off of the Petitioner was in any degree an effort, to retaliate, Mr. Johnson was very adamant in denying that. He stated, "I've never done that in my life." Indeed, the testimony shows that on at least two occasions the Respondent sought to find available work for the Petitioner rather than lay him off. Mr. Johnson established that the Petitioner's employment record was marked as "eligible for re-hire" and the Respondent's attempts to reach the Petitioner after the lay-off was because the Respondent was actively trying to effect an arrangement so that the Petitioner would have work at different times with the Respondent. In Mr. Johnson's words, "We like Julian. Julian is good guy. There was no selection . . . we were trying to work it out where he could go to the other job, but that didn't work out."
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 1st day of September, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Julian J. Lawrence Post Office Box 263225 Daytona Beach, Florida 32126 Taylor B. Smith, Esquire The Kullman Firm Court Square Tower 200 6th Street North, Suite 505 Columbus, Mississippi 39703-0827 Jennifer Robbins Guckert, Esquire The Kullman Firm 1640 Lelia Drive, Suite 120 Jackson, Mississippi 39216
The Issue The issue is whether Respondent, Wal-Mart Stores East, LP (“Walmart”), discriminated against Petitioner, Ramon Santiago Lopez (“Petitioner”), based upon his national origin or age, and/or terminated his employment in retaliation for engaging in protected activity, in violation of section 760.10, Florida Statutes (2016).1/
Findings Of Fact Walmart is an employer as that term is defined in section 760.02(7). Walmart is a national retailer. Petitioner is a Cuban (Hispanic) male. He was 62 years old when he was hired by Walmart in November 2005 and was 72 years old at the time of his dismissal. Petitioner was initially hired to work at a store in Jacksonville, but transferred to Tampa. In June 2010, Petitioner requested a transfer back to Jacksonville and was assigned to Store 4444 on Shops Lane, just off Philips Highway and I-95 in Jacksonville. The store manager at Store 4444 was Scott Mallatt. Mr. Mallatt approved Petitioner’s transfer request and testified that he “very much” got along with Petitioner. Petitioner confirmed that he never had a problem with Mr. Mallatt. Petitioner testified that when he first started at Store 4444, he had no problems. After about four months, however, he began reporting to a supervisor he recalled only as “Lee.” Petitioner described Lee as “kind of a maniac.” Lee would harass Petitioner and give him impossible assignments to accomplish. Petitioner testified that he complained repeatedly to Mr. Mallatt about Lee’s abuse, but that nothing was ever done about it. Eventually, Petitioner gave up complaining to Mr. Mallatt. Mr. Mallatt testified that Petitioner never complained to him about being discriminated against because of his national origin or age. Petitioner apparently did complain about being overworked, but never tied these complaints to any discriminatory intent on the part of Lee. Petitioner testified that Lee no longer worked at Store 4444 in January 2016. From 2010 to 2015, Petitioner worked from 1:00 p.m. to 10:00 p.m. in various departments, including Grocery, Dairy, Paper, Pet, and Chemical. In 2015, Petitioner spoke with Mr. Mallatt about working at least some day shifts rather than constant nights. Mr. Mallatt approved Petitioner’s request. In August 2015, Petitioner was moved to the day shift in the Maintenance department. As a day associate, Petitioner typically worked from 8:30 a.m. to 5:30 p.m. Assistant Store Manager April Johnson transferred to Store No. 4444 in October 2015. Petitioner reported directly to Ms. Johnson. On January 14, 2016, Petitioner was scheduled to work from 8:30 a.m. until 5:30 p.m. He drove his van into the parking lot of Store No. 4444 at approximately 7:58 a.m. He parked in his usual spot, on the end of a row of spaces that faced a fence at the border of the lot. Petitioner liked this spot because the foliage near the fence offered shade to his vehicle. Closed circuit television (“CCTV”) footage, from a Walmart camera with a partial view of the parking lot, shows Petitioner exiting his vehicle at around 8:00 a.m. Petitioner testified that he could see something on the ground in the parking lot, 50 to 60 meters away from where his van was parked. The CCTV footage shows Petitioner walking across the parking lot, apparently toward the object on the ground. Petitioner testified there were no cars around the item, which he described as a bucket of tools. Petitioner stated that the bucket contained a screwdriver, welding gloves, a welding face mask, and a hammer. The CCTV footage does not show the bucket. Petitioner crosses the parking lot until he goes out of camera range.3/ A few seconds later, Petitioner returns into camera range, walking back toward his car while carrying the bucket of tools. When Petitioner reaches his van, he opens the rear door, places the bucket of tools inside, then closes the rear door. Petitioner testified that after putting the tools in the back of his van, he went to the Customer Service Desk and informed two female African American customer service associates that he had found some tools and put them in his car. Petitioner conceded that he told no member of management about finding the tools. Walmart has a written Standard Operating Procedure for dealing with items that customers have left behind on the premises. The associate who finds the item is required to take the item to the Customer Service Desk, which functions as the “lost and found” for the store. Mr. Mallatt and Ms. Johnson each testified that there are no exceptions to this policy. Petitioner was aware of the Standard Operating Procedure. On prior occasions, he had taken found items to the Customer Service Desk. Petitioner conceded that it would have been quicker to take the bucket of tools to the Customer Service Desk than to his van. However, he testified that he believed that he could have been fired if he had taken the tools to the desk before he had clocked in for work. Petitioner cited a Walmart policy that made “working off the clock” a firing offense. It transpired that the policy to which Petitioner referred was Walmart’s Wage and Hour policy, which states in relevant part: It is a violation of law and Walmart policy for you to work without compensation or for a supervisor (hourly or salaried) to request you work without compensation. You should never perform any work for Walmart without compensation. This language is plainly intended to prevent Walmart from requiring its employees to work without compensation. Petitioner, whose English language skills are quite limited, was adamant that this policy would have allowed Walmart to fire him if he performed the “work” of bringing the tools to the Customer Service Desk before he was officially clocked in for his shift. Therefore, he put the tools in his van for safekeeping and informed the Customer Service Desk of what he had done. Petitioner was questioned as to why he believed it was acceptable for him to report the situation to the Customer Service Desk, but not acceptable for him to bring the tools to the desk. The distinction he appeared to make was that the act of carrying the tools from the parking lot to the desk would constitute “work” and therefore be forbidden, whereas just stopping by to speak to the Customer Service Desk associate was not “work.” The evidence established that Petitioner would not have violated any Walmart policy by bringing the tools to the Customer Service Desk before he clocked in. He could have been compensated for the time he spent bringing in the tools by making a “time adjustment” on his time card. Mr. Mallatt testified that time adjustments are done on a daily basis when associates perform work prior to clocking in or after clocking out. Petitioner merely had to advise a member of management that he needed to make the time adjustment. Mr. Mallatt was confident that the adjustment would have been granted under the circumstances presented in this case. Petitioner did not go out to retrieve the tools after he clocked in. Mr. Mallatt stated that employees frequently go out to their cars to fetch items they have forgotten, and that Petitioner absolutely would have been allowed to go get the tools and turn them in to the Customer Service Desk. Later on January 14, 2016, Ms. Johnson was contacted by a customer who said tools were stolen off of his truck.4/ Ms. Johnson had not heard anything about lost tools. She looked around the Customer Service Desk, but found no tools there. Ms. Johnson also called out on the store radio to ask if anyone had turned in tools. Finally, the customer service manager at the Customer Service Desk told Ms. Johnson that Petitioner had said something about tools earlier that morning. Ms. Johnson called Petitioner to the front of the store and asked him about the missing tools. Petitioner admitted he had found some tools in the parking lot and had placed them in his vehicle. Ms. Johnson asked Petitioner why he put the tools in his vehicle. Petitioner told her that he was keeping the tools in his car until the owner came to claim them. Ms. Johnson testified that Petitioner offered no other explanation at that time. He just said that he made a “mistake.” Ms. Johnson explained to Petitioner that putting the tools in his vehicle was not the right thing to do and that he should have turned them in to “lost and found,” i.e., the Customer Service Desk. Petitioner was sent to his van to bring in the tools. After this initial conversation with Petitioner, Ms. Johnson spoke with Mr. Mallatt and Mr. Cregut to decide how to treat the incident. Mr. Cregut obtained approval from his manager to conduct a full investigation and to interview Petitioner. Mr. Cregut reviewed the CCTV footage described above and confirmed that Petitioner did not bring the tools to the Customer Service Desk. Ms. Johnson and Mr. Cregut spoke with Petitioner for approximately an hour to get his side of the story. Petitioner also completed a written statement in which he admitted finding some tools and putting them in his car. Mr. Cregut described Petitioner as “very tense and argumentative” during the interview. As the interview continued, Mr. Cregut testified that Petitioner’s reaction to the questions was getting “a little bit more hostile [and] aggressive.” Mr. Cregut decided to try to build rapport with Petitioner by asking him general questions about himself. This tactic backfired. Petitioner volunteered that he was a Cuban exile and had been arrested several times for his opposition to the Castro regime. Petitioner then claimed that Mr. Cregut discriminated against him by asking about his personal life and prejudged him because of his activism. Mr. Cregut credibly testified that he did not judge or discriminate against Petitioner based on the information Petitioner disclosed and that he only asked the personal questions to de-escalate the situation. Mr. Cregut’s only role in the case was as an investigative factfinder. His report was not colored by any personal information disclosed by Petitioner. At the conclusion of the investigation, Mr. Mallatt made the decision to terminate Petitioner’s employment. The specific ground for termination was “Gross Misconduct – Integrity Issues,” related to Petitioner’s failure to follow Walmart policy by bringing the tools to the Customer Service Desk. Mr. Mallatt testified that his concern was that Petitioner intended to keep the bucket of tools if no owner appeared to claim them. Mr. Mallatt credibly testified that had Petitioner simply taken the tools to the Customer Service Desk, rather than putting them in his vehicle, he would have remained employed by Walmart. Walmart has a “Coaching for Improvement” policy setting forth guidelines for progressive discipline. While the progressive discipline process is used for minor and/or correctable infractions, such as tardiness, “serious” misconduct constitutes a ground for immediate termination. The coaching policy explicitly sets forth “theft” and “intentional failure to follow a Walmart policy” as examples of serious misconduct meriting termination. Petitioner conceded that no one at Walmart overtly discriminated against him because of his age or national origin. He testified that he could feel the hostility toward Hispanics at Store 4444, but he could point to no particular person or incident to bolster his intuition. Petitioner claimed that his dismissal was in part an act of retaliation by Ms. Johnson for his frequent complaints that his Maintenance counterparts on the night shift were not adequately doing their jobs, leaving messes for the morning crew to clean up. Ms. Johnson credibly testified that Petitioner’s complaints did not affect her treatment of him or make her want to fire him. In any event, Ms. Johnson played no role in the decision to terminate Petitioner’s employment. Petitioner’s stated reason for failing to follow Walmart policy regarding found items would not merit a moment’s consideration but for Petitioner’s limited proficiency in the English language. It is at least conceivable that someone struggling with the language might read the Walmart Wage and Hour policy as Petitioner did. Even so, Petitioner was familiar with the found items policy, and common sense would tell an employee that he would not be fired for turning in customer property that he found in the parking lot. At the time of his dismissal, Petitioner had been working at Walmart for over 10 years. It is difficult to credit that he was completely unfamiliar with the concept of time adjustment and truly believed that he could be fired for lifting a finger to work when off the clock. Walmart showed that in 2016 it terminated three other employees from Store 4444 based on “Gross Misconduct – Integrity Issues.” All three were under 40 years of age at the time their employment was terminated. Two of the employees were African American; the third was Caucasian. Petitioner offered no evidence that any other employee charged with gross misconduct has been treated differently than Petitioner. At the hearing, Petitioner’s chief concern did not appear to be the alleged discrimination, but the implication that he was a thief, which he found mortally offensive. It could be argued that Mr. Mallatt might have overreacted in firing Petitioner and that some form of progressive discipline might have been more appropriate given all the circumstances, including Petitioner’s poor English and his unyielding insistence that he never intended to keep the tools. However, whether Petitioner’s dismissal was fair is not at issue in this proceeding. The issue is whether Walmart has shown a legitimate, non-discriminatory reason for terminating Petitioner’s employment. At the time of his dismissal, Petitioner offered no reasonable explanation for his failure to follow Walmart policy. Mr. Mallatt’s suspicion regarding Petitioner’s intentions as to the tools was not unfounded and was not based on any discriminatory motive. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Walmart for his termination. Petitioner offered no credible evidence that Walmart’s stated reasons for his termination were a pretext for discrimination based on Petitioner’s age or national origin. Petitioner offered no credible evidence that his termination was in retaliation for his engaging in protected activity. The employee who was allegedly retaliating against Petitioner played no role in the decision to terminate his employment. Petitioner offered no credible evidence that Walmart discriminated against him because of his age or national origin in violation of section 760.10.
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 that Wal-Mart Stores East, LP, did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 25th day of October, 2018, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 25th day of October, 2018.
