Findings Of Fact Petitioner is a black male. He was employed by Respondent, which is now known as Cap Gemini America, from December 3, 1984, through February 5, 1986. At all material times, Respondent has been an employer employing 15 or more employees for each working day in each of 20 or more calendar weeks. Respondent hired Petitioner to provide computer programming and data processing services as an independent consultant or contractor to third parties who entered into short- term contracts for such services with Respondent. Respondent regularly hired such professional employees to be placed as data processing consultants with its customers in their offices. Respondent was engaged in this business at various locations around the country. Petitioner was hired to work out of Respondent's Orlando office. Immediately after hiring Petitioner, Respondent assigned him to a company known as System Corporation, which was in the Orlando area. The assignment ended abruptly when in June, 1985, Petitioner was summarily removed from this job at the request of System. Respondent gave Petitioner what he called a "subpar evaluation" in connection with this assignment, although little, if any, evidence was presented at the hearing concerning the basis for the customer's dissatisfaction with Petitioner. Respondent thereafter placed Petitioner "on the beach." This status was reserved for employees for whom Respondent had no assignment. Respondent continued to pay employees while they were "on the beach." Such employees performed in-house research while Respondent attempted to place them. Petitioner remained "on the beach" at this time for one to two months. On or about July 22, 1985, Respondent placed Petitioner with The Charter Company. Petitioner performed general data processing duties for Charter and its affiliates. This assignment required Petitioner to commute from Orlando to Charter's office in Jacksonville. While working at Charter, Petitioner had to work closely with Charter employees in the operations department, including one by the name of Cathy Barton. Petitioner and Ms. Barton had two confrontations near the end of September or beginning of October, 1985. In one case, Petitioner left Ms. Barton a note reprimanding her for not performing her duties properly or not being on duty at a time that he felt she should have been. In the other case, Petitioner used the wrong procedures for entering the final system data backup for the day, and Ms. Barton became angered as a result of Petitioner's error. All of this culminated in Petitioner and Ms. Barton generally not speaking to each other, although Petitioner, acknowledging this fact, insisted that there was "no problem" between him and Ms. Barton. Petitioner's working relationship with Ms. Barton caused her to complain to her supervisor at Charter who in turn brought this matter to the attention of the Charter project manager, William Daniel Burgess. At a meeting with Petitioner and his supervisor, Myril Shaw, who was Respondent's project manager in charge of the Charter account, Mr. Burgess expressed his displeasure at the "unprofessional" tone of the note that Petitioner left for Ms. Barton. After the meeting, Mr. Burgess told Mr. Shaw that he thought the reason that Charter hired Respondent was to avoid personnel problems of this type. Customer satisfaction was a prime concern of Respondent. Petitioner was Respondent's only employee assigned to Charter at the time. Respondent's employee handbook prohibited Respondent's employees from making critical comments about the customer or its staff or even insinuating or implying that the customer's staff lacked competence or judgment. Charter had been either the first or second customer of Respondent in Jacksonville, where Respondent had just opened a new office. Competition in the data processing consultation business had recently increased. Confrontations between Respondent's consultants and customers' employees were rare. Petitioner's confrontations jeopardized the ability of Respondent to maintain Charter's business. Petitioner's work was not exemplary while at Charter. Toward the end of 1985, an employee in Charter's operations department inadvertently destroyed important financial data of two affiliates of the company. As the end of the year approached, Charter found that the lost data prevented it from closing its books. Charter gave Petitioner two weeks to recover the data and generally correct the problem. Petitioner asked for help from Mr. Shaw, and possibly another employee, but when they were unavailable, Petitioner rejected offers of help from other employees of Respondent. The day prior to the deadline, Petitioner left a note for his Charter supervisor stating that he had worked his 37 1/2 hours that week and would not be in the following day, which was a Friday. Accompanying the note was a copy of a report, which was part of the corrective work that he had been assigned. The note explained that the report was still in error but he thought he knew why and he would be in the next Monday to fix it. The note added that if the work really needed to be done by the next day, Mr. Shaw could be summoned to do it. At Charter's urgent request, Mr. Shaw went to Charter's office on the following day and corrected the report. Another part of the corrective work regarded the loss of all data concerning the November transactions for one affiliate. Petitioner for some reason did not report to work on a Friday. A Charter supervisor, upset that Petitioner had not resolved this problem for two weeks, complained to Mr. Shaw. Mr. Shaw immediately began to reenter the data and completed the task by the middle of the following week. After these incidents, a representative of the client informed Mr. Shaw that Petitioner was not doing them any good and should be removed if possible. To avoid negative publicity, Charter did not insist on Petitioner's immediate removal. Petitioner candidly admitted to these substantive problems with his work, but objected to the manner in which they were handled. He testified: I realize that quite possibly the customer . . . was going to my supervisors and saying we needed this report faster. And this one, he did not spend as much time on. But nobody came to me and gave me a chance to correct this problem and make the customer happy. T. 259. Later, he testified: If Charter felt I was not doing the job properly, I probably was not doing the job properly. What should have been done though it should have been brought to my attention that Charter was unsatisfied with what I was doing, so that I could have had some opportunity to correct the performance and come up with what Charter would like for me to have been doing. No one communicated this to me. T. 296. Toward the end of December, 1985, Mr. Shaw noted on an Account Manager Status Report for Petitioner that the customer had authorized Respondent to remove Petitioner from the assignment "immediately." The report noted that since the middle of December Petitioner had become "increasingly combative" with the customer and Mr. Shaw and his work performance was not satisfactory. Mr. Shaw testified that Petitioner's technical skills were "a little light." He also testified that a major part of being a successful consultant was developing a "close working relationship" with a customer and having the right temperament. On January 16, 1986, Mr. Shaw completed an Account Manager's Consultant Appraisal Form on Petitioner. Petitioner's attitude was described generally as "hard on client peers." "Client peers" were employees of Charter in this case. Mr. Shaw noted Petitioner's quick temper, as well as his desire to get by with as little as possible. Mr. Shaw stated that Charter became irritated with Petitioner's slow pace and was "generally dissatisfied with his overall performance." Mr. Shaw concluded that Petitioner "failed to live up to his promises [and] was unable to live up to his promises." In sum, "[h]is overall performance was generally unsatisfactory." Charter's displeasure with Petitioner's work performance was documented when, subsequent to Petitioner's separation from Charter, Mr. Burgess executed a Confidential Employee Performance Rating Form on January 22, 1986. He rated Petitioner's performance unsatisfactory--the lowest category--in nine of 18 categories. He rated Petitioner borderline unsatisfactory in another three categories. The remaining ratings were average. On January 22, 1986, Mr. Shaw completed a Management Post Assignment Review Form on Petitioner. Summarizing the problems noted above, he concluded that "[Petitioner] probably should not be placed at another client site, based on his performance [at Charter]." Petitioner relied upon a Confidential Sycomm Systems Corporation Review Package for George Smith bearing the date of December 1, 1985. In this evaluation given to him by Sheila Burkhardt, supervisor of Mr. Shaw, he received two overall ratings for his work at System and Charter. These were both borderline between "good" and "average." These ratings were exactly in the middle of the available ratings. Other ratings of more specific performance factors were slightly better. However, Ms. Burkhardt noted that Petitioner was so upset with what he later called a "subpar" evaluation, coupled with the disclosure that he would be receiving a minimal $1500 increase in annual salary, that he announced that he would be looking for employment elsewhere. Petitioner testified that he informed Ms. Burkhardt at this time that he believed that Respondent was guilty of racial discrimination in employment. Petitioner's separation from Charter occurred in late December, 1985, while he was on vacation. During this period, Mr. Shaw and Petitioner's supervisor at Charter removed Petitioner's personal belongings from his desk and placed them in an envelope. At the same time, Charter personnel deactivated Petitioner's magnetic access card to the Charter offices where Petitioner had worked. A representative of Respondent later gave Petitioner all of his belongings. After his separation from Charter, Petitioner remained "on the beach" until February 6, 1986. During this time, he informed Respondent that he would be filing a claim of employment discrimination. Petitioner was laid off because of the absence of assignments for which he was qualified. In its Equal Employment 0pportunity Employer Information Report (EEO- 1) dated July 30, 1985, Respondent reported nine black male professional employees and four black female professional employees. There was also one black female official or manager. These were all of the black employees of Respondent nationwide. Respondent employed nationally a total of 231 professionals among its 305 overall employees. In its Equal Employment Opportunity Employer Information Report (EEO-1) dated July 17, 1986, Respondent reported a total of six black males and three black females among its 214 professional employees nationwide. There was also one black female official or manager, as well as two black female clerical employees out of a total of 36. Total employment for that year was 294 persons. During the period of Petitioner's employment with Respondent, the black professional employees working out of Petitioner's Orlando office were Emmett Williams and Pat Hall. The evidence was unclear whether a fourth black, Virginia Wright, was employed by Respondent in Florida at this time. A fifth black professional employee, Allan Sylvan, worked for Respondent in Florida until 1985. There were approximately 35 professional employees working out of the Orlando office during this period. Mr. Williams took a leave of absence for personal reasons on or about December 16, 1985. He later requested a transfer to the Chicago office of Respondent, but never obtained a placement from this office. He never asked to return to Florida. Respondent would have accommodated him if he had. Mr. Hall was terminated on August 19, 1985. He was maintained "on the beach" for one month prior to termination. Respondent was unable to find any requirements for his background. However, Respondent assisted Mr. Hall in finding permanent employment with one of Respondent's customers. No information was available concerning Ms. Wright, except that Joanna Ellis, Director of Human Resources for Respondent, recalled that Ms. Wright had resigned. Mr. Sylvan was terminated on August 2, 1985, after he caused technical problems for the customer to which he had been assigned. Respondent lost the customer as a result of Mr. Sylvan's mistakes. Petitioner had little, if any, evidence to offer concerning the circumstances surrounding the employment and departures of Messrs. Sylvan, Hall, and Williams and Ms. Wright. In fact, he knew nothing about Mr. Sylvan and Ms. Wright and appeared at the hearing initially to have forgotten Mr. Williams' last name. Professional employees who were placed "on the beach" and later terminated for lack of work generally were left "on the beach" for four to five weeks prior to termination. At the time Petitioner was hired, white and black professionals were hired at salaries in the same range as Petitioner's salary. Respondent based each employee's rate of pay solely on the marketability of his skills. Petitioner's initial annual salary was $24,000, which matched his rate of pay at his previous job. Petitioner used an employment agency in finding the job with Respondent, which paid the agency's $4800 fee. Petitioner's last job had been as a systems analyst/programmer with Residential Communities of America where he had been employed for about 2 1/2 years. His starting salary there had been $21,000 per year. His only prior programming experience was with Winter Park Software, Inc. where he had worked only eight months. Seven years' previous experience with IBM involved no data processing or programming, according to Petitioner's resume which he used to obtain the job with Respondent. Although Petitioner testified that this job involved programming, Ms. Ellis testified that she was familiar with the job and that it required no programming or data processing. On the bases of the resume, Ms. Ellis's testimony, the relatively low starting salary at Respondent, the use of an employment agency to maximize employment prospects, and the fact that Petitioner had been out of work for two or three months prior to being hired by Respondent, it is unlikely that the IBM job gave Petitioner any substantial programming or data processing experience. Respondent experienced considerable turnover in personnel during the time in question. Mr. Shaw worked for Respondent from late 1984 until late 1986. During the term of Petitioner's employment, there appear to have been two or three managers of the Orlando office. Respondent's Composite Exhibit Number 12 indicates that, during 1985, about 29 employees, with an average duration of employment with Respondent of less than 10 months, left their jobs in the Orlando office. Likewise, during 1986, the document indicates that 12 employees, with an average term of employment of less than 12 months, left their jobs in the Orlando office. Respondent failed to provide any testimony concerning the professional and nonprofessional mix of these employees, although the EEO-1 forms for 1985 and 1986 disclose a national ratio of about 3:1 professionals to total employees. Also, no evidence explained the impact of the opening of the Jacksonville office on the Orlando employees or the meaning of the code that appears to represent the employee's reason for leaving. The exhibit is useful, however, to corroborate other evidence of employee turnover during this period of time at the Orlando business office.
The Issue Whether the suspension of the Appellant Chaky was based on just cause.
Findings Of Fact Judith Chaky, Appellant, is employed by the Department of Education, Division of Universities, University of Florida, as a Career Service employee agricultural technician in the Poultry Science Department of the institute's Division of Food and Agriculture Sciences. On or about March 21, 1977, when asked to make arrangements to make good a check passed by the Appellant at the Reitz Union, which had been returned for insufficient funds, Appellant used profanity, became abusive and spoke in a loud voice to Mrs. Cynde Folks, am employee at the Reitz Union. Subsequent to the March incident and upon inquiry as to her plans with respect to paying the service charge on the same returned check, Appellant made abusive comments to Phil Chaney, a black employee. In May of 1977, in response to a request from David M. Bickford of the Office of Internal Control to pay her indebtedness to the State, Appellant went to his office with the Five Dollars ($5.00) she owed as a service charge in pennies. She used abusive and profane language to Mr. Bickford and threw the pennies across his desk. In response to her Employee Performance Evaluation dated November 10, 1976, a "satisfactory" evaluation, she stated: "I agree with the rating on attitude and cooperation because I tend to object to poor management techniques and would rather be rude than quiet." The evaluation as to her attitude and cooperation was "occasionally uncooperative." She had previously been counseled and received a letter from the employer in regard to excessive tardiness. In July, 1977, Appellant received a written reprimand for having violated the rules by bringing a dog to work after having been requested not to do so. The evidence submitted shows Appellant fails at times to follow rules governing the conduct of employees. She admitted at the hearing that she used malicious, profane and abusive language and that she went to some trouble to gather the pennies and then threw them on the desk of Mr. Bickford. She stated she paid the service charge with pennies as an intentional protest act. Her language was vulgar.
Recommendation Affirm the action taken by the Appellant, University of Florida. DONE and ORDERED this 23rd day of November, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1977. COPIES FURNISHED: Mrs. Dorothy Roberts Appeals Coordinator Department of Administration 530 Carlton Building Tallahassee, Florida 32304 Daniel T. O'Connell, Esquire 33 North Main Street Gainesville, Florida 32601 Ashmun Brown, Esquire 207 Tigert Hall University of Florida Gainesville, Florida 32611
The Issue Whether Respondent terminated Petitioner’s employment in violation of Chapter 760, Florida Statutes (2004), popularly known as the Florida Civil Rights Act of 1992 (Florida Civil Rights Act).
Findings Of Fact Petitioner is an Hispanic female. Petitioner was employed by Respondent in records for almost 15 years prior to July 16, 2004, when she was terminated. Respondent is a municipal corporation located in Miami- Dade County, Florida, and an employer within the meaning of the Florida Civil Rights Act. Respondent provides a variety of public services generally associated with cities of comparable size, including a full service police department. At all relevant times, Hispanics comprised approximately half of the police department's workforce. Many of these individuals were employed in supervisory capacities. Four Hispanics were supervisors in Petitioner's chain of command. In her position in records, Petitioner was responsible to timely and accurately process official police documents. Such processing included the completion of forms and transmittal documents and timely copying, filing and production of such documents to appropriate individuals and authorities (document processing). Failure to discharge any of the foregoing responsibilities is reasonably deemed by Respondent to be incompetence, and a firing offense(s). In her position in records, Petitioner was also responsible to comply with all directives of supervisors and to cooperate in internal affairs investigations. Cooperation in this context includes providing sworn statements and/or answering questions under oath as may be required by Respondent. Failure to comply with directives and to cooperate in internal affairs investigations are reasonably deemed by Respondent to be insubordination, and firing offenses. On April 29, 2004, a member of the public presented himself to records and requested a copy of an official police record to which he was entitled to access, specifically a traffic ticket. Records could not locate the document because it had not been properly processed by Petitioner, who was responsible for doing so. Having become aware of a problem with this particular document processing, Respondent thereupon took reasonable steps to determine whether this was an isolated error by Petitioner. In so doing, Respondent discovered and documented a high volume of document processing errors with respect to official police records for which Petitioner was responsible. In February 2004, one of Petitioner's supervisors – one who happened to be Hispanic -- issued a written directive (the February directive) to all records employees which required that they disclose, on a weekly basis, any "backlogs" of document processing work. In direct violation of the directive, Petitioner never disclosed existence of her backlog, which was, by April 29, 2004, extremely large. Now on notice of the backlog and deeply concerned about its potential effects on the police department and the public it serves, and pursuant to police department policy, an internal affairs investigation was initiated under the leadership of the same Hispanic supervisor. Over the course of the investigation, Respondent learned that the problem(s) revealed on April 29, 2004, were only the "tip of the iceberg." The internal affairs investigation uncovered “hundreds and hundreds” of additional document processing errors. Virtually all of the errors discovered involved official police records for which Petitioner was responsible. In the course of the internal affairs investigation, Petitioner was directed to give a sworn statement, and refused to do so, which refusal was deemed to constitute insubordination. Petitioner’s errors as documented in the internal investigation demonstrated incompetence. Her failure to comply with the February directive and to provide a sworn statement to internal affairs investigators constituted insubordination. At the conclusion of the internal affairs investigation, Petitioner was terminated for incompetence in the performance of her document processing responsibilities and for insubordination. Petitioner failed to discredit the factual underpinnings of Respondent’s decision to terminate her employment; neither did she establish any discriminatory basis upon which Respondent terminated her employment. Respondent replaced Petitioner with an Hispanic, who remained employed by Respondent through and including the time of the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the FCHR enter its final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of September, 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 14th day of September, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Christina Quintero 4780 Northwest 2nd Street Miami, Florida 33126 David C. Miller, Esquire Akerman Senterfitt Sun Trust International Center, 28th Floor One Southeast Third Avenue Miami, Florida 33131 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in these cases is whether Respondent committed the violations alleged in three Administrative Complaints, and, if so, what appropriate disciplinary action should be taken against him.
Findings Of Fact Based upon the observation of the witnesses and their demeanor while testifying, the documentary evidence received in evidence and the entire record complied herein, the following relevant facts are made: At all times relevant to the issues herein, the Board of Hearing Aid Specialists has been the state agency in Florida responsible for the licensing of hearing aid specialists and regulation of hearing aid providers in Florida. Section 455, Florida Statutes (1999). Respondent, Robert F. Davidson, has been a licensed hearing aid specialist in this state, holding license number 0000740. From sometime in April and continuing through sometime in December 1998 Respondent was employed as a salaried store manager at Hearite Audiological ("Hearite"), a hearing aid establishment located at 2700 East Bay Drive, Largo, Florida, 33771, and owned by George Richards and Paula Rogers. Respondent engaged in testing the hearing of individuals and engaged in selling hearing aids to individuals for Hearite Audiological, Inc. To each individual Respondent sole a hearing aid, he provided that person with a written notice of the 30-day money back guarantee. Case No. 01-3536PL Patient C. L. D., a hearing impaired-person, visited Hearite on September 9, 1998, and entered an agreement to purchase a pair of hearing aids for $1,795.00, paying $500.00 deposit at that time. Patient C. L. D. was provided a sales receipt for her deposit signed by Respondent. On September 21, 1998, Respondent delivered the hearing aids to patient C. L. D. at Hearite and signed the receipt as the person who delivered the hearing aids to the patient. Patient C. L. D., after using the hearing aids, became dissatisfied with them and returned the hearing aids to Respondent at Hearite on October 8, 1998. Respondent accepted the hearing aids from Patient C. L. D. and, pursuant to the terms of the sales contract, Respondent promised Patient C. L. D. a full refund of her $500.00 deposit. Despite repeated phone calls to Respondent and repeated attempts to obtain the refund, Patient C. L. D. has never received her refund as promised, and Hearite was later sold to a new owner in January 1999. Case No. 01-3537PL On May 26, 1998, hearing-impaired Patient J. C. aged 95 years, and now deceased, along with his daughter, Chris Vidalis, visited Hearite and purchased a hearing aid for $1,345.00, paying $500.00 deposit upon execution of the sales contract. On June 5, 1998, Patient J. C. paid the remaining $845.00 and received his hearing aid. On June 12, 1998, being dissatisfied with its use Patient J. C. returned the hearing aid and requested a refund. Respondent accepted the hearing aid and promised Patient J. C. a refund of $1,345.00 within 120 days. Patient J. C.'s daughter, Chris Vidalis, who was with her father every time he visited Hearite, made numerous telephone calls and visits to Hearite in attempts to obtain the refund. The refund was never paid and Hearite was sold to a new owner in January 1999. Case No 01-3538PL On or about June 10, 1998, Patient R. L., after several unsolicited telephone calls from someone representing Hearite, visited Hearite for the purpose of having his hearing tested and possibly purchasing a hearing aid. After testing, Patient R. L. purchased a pair of hearing aids at Hearite for $3,195.00. A paid in full receipt signed by Al Berg was given to Patient R. L. On or about July 10, 1998, Respondent delivered the hearing aids to Patient R. L. and signed the sales receipt as the licensee who delivered the hearing aids. Upon being dissatisfied with using the hearing aids Patient R. L. returned them to Hearite on July 13, 1998. Kelly Dyson, audiologist employed at Hearite, accepted the hearing aids and promised Patient R. L. a full refund of $2,840.00, pursuant to the terms of the contract. Patient R. L. made repeated attempts to obtain his refund as promised but has not received one. Hearite was sold to a new owner in January 1999. Respondent's position, that each of the three patients herein above was aware or should have been aware that the sale of hearing aids, and, therefore, the guarantor of the refunds was Hearite Audiological, Inc., and, not himself, is disingenuous.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Hearing Aid Specialists enter a final order requiring Respondent to pay the following amounts: to Patient C. L. D., $500.00, DOAH Case No. 01-3536PL; to Patient J. C. (or his estate) $1,345.00, DOAH Case No. 01-3537PL, and to Patient R. L., $2,840.00, DOAH Case 01-3537PL. Further that Respondent be fined $1,000.00 and be required to pay the appropriate costs of investigation and prosecution. Further, ordered that Respondent's license be suspended and not reinstated until after all payments herein ordered are paid in full, and thereafter place Respondent on probation for a period of not less than one year under the terms and conditions deemed appropriate. DONE AND ENTERED this 1st day of February, 2002, 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 1st day of February, 2002. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 39 Tallahassee, Florida 32308 E. Raymond Shope, II, Esquire 1404 Goodlette Road, North Naples, Florida 34102 Susan Foster, Executive Director Board of Hearing Aid Specialist Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2004),1/ by discriminating against Petitioner based on her national origin.
Findings Of Fact Arthrex is a company that designs and manufactures orthopedic surgical tools, implants and devices for surgeons, medical facilities, and hospitals. Arthrex is regulated by the United States Food and Drug Administration ("FDA") and maintains certification through the International Organization for Standardization ("ISO"). Arthrex is an employer as that term is defined in Section 760.02, Florida Statutes. Petitioner is a Hispanic female, whose primary language is Spanish. Beginning in June 2001, Petitioner worked in the cleaning and packaging area of Arthrex's production facility. "Cleaning" in this context should not be confused with janitorial services. Petitioner's job was more technical and exacting and involved the maintenance of a sterile, disinfected work area and equipment in the manufacture of items that, in some cases, are surgically implanted in the human body. She worked in the company of 10 to 12 co-workers within a relatively confined space. Arthrex obtains staffing for its cleaning and packaging area through an independent contractor, Randstad, a large employment services company. On June 13, 2003, Petitioner accompanied a friend to the local Randstad office to assist the friend in applying for a job with Arthrex in the cleaning and packaging area. Petitioner became angry with the Randstad representative who performed the screening and testing of Petitioner's friend. Petitioner believed that the Randstad employee decided at the outset not to hire her friend, and so tested the friend on difficult subjects having nothing to do with the Arthrex cleaning and packaging job, such as her ability to use a computer and her ability to "write, read and talk perfect English." Petitioner stated that other applicants were not subjected to the same scrutiny as was her friend and that both she and her friend felt humiliated by the "rude" Randstad employee. Immediately after the job interview, the Randstad representative phoned Margarita Alvarez, the human relations manager for Arthrex, and told Ms. Alvarez that Petitioner had "made a scene" at the Randstad office. Ms. Alvarez asked the Randstad representative to put her complaint in writing, and she would then address the matter with Petitioner. Shortly after the phone call, Ms. Alvarez was conducting an employee relations meeting in her office when Petitioner walked into her office. Petitioner began complaining loudly about the "ridiculous" hiring process employed by Arthrex, waving her hands and stamping her foot in anger. Ms. Alvarez told Petitioner that she would discuss the matter after her meeting was over. Petitioner walked out of Ms. Alvarez's office saying, "Thank you for nothing." Petitioner then proceeded to stamp her way down to her workplace, continuing to display her anger and disrupt the work of the other employees in her area by complaining loudly about Arthrex's hiring practices. Ms. Alvarez testified that Petitioner's behavior violated Arthrex's written policies regarding hostile, disruptive behavior in the workplace. Ms. Alvarez prepared a written warning called "performance correction notice" dated June 17, 2003. The notice described the disruptive behavior Petitioner engaged in on June 13, 2003, and stated that Petitioner was expected to maintain a "friendly work environment" and to express her disagreements with company policy "respectfully[,] . . . in private with [her] immediate supervisor or with Human Resources." The notice further warned Petitioner that any further "unprofessional conduct" (antagonism, disruptive behavior or hostility) could subject Petitioner to a "final warning." On the afternoon of June 18, 2003, Petitioner met with Ms. Alvarez and Lea Custodio, Petitioner's immediate supervisor, who had taken the day off on June 13, 2003. Ms. Alvarez presented Petitioner with the performance correction notice. She explained that while she understood Petitioner's frustration, she could not allow such displays of temper in the workplace. Ms. Alvarez testified that she believed Petitioner understood the situation, and she encouraged Petitioner to write down her thoughts, comments, or corrections before signing the notice. Ms. Alvarez told Petitioner that she could write her response in Spanish, if that would allow her better to express herself. Ms. Alvarez is fluent in Spanish. On June 19, 2003, Petitioner submitted a handwritten note to Ms. Alvarez. Written in Spanish, the note expressed Petitioner's belief that the Randstad representative discriminated against her friend by imposing unreasonable requirements for the cleaning position in question. Petitioner was not disciplined in any way for either the form or content of this note, which was incorporated with the performance correction notice as part of Petitioner's employment file. Petitioner testified that she could not recall having been disciplined for the June 13, 2003, incident. She denied causing a disturbance at the Randstad facility or at her own workplace. She admitted writing the note and submitting it on June 19, 2003, but testified that Ms. Alvarez asked her to document the incident because of other complaints she had received about the Randstad representative. Petitioner's testimony is inconsistent with the documentary evidence, including the self-justifying language of her own handwritten note. Ms. Custodio's testimony corroborated that of Ms. Alvarez's concerning the disciplinary meeting held on June 18, 2003, at which Petitioner was given the performance correction notice and counseled by Ms. Alvarez as to the company's expectations regarding her behavior. Petitioner's testimony as to the June 13, 2003, incident and its aftermath is not credible. On or about August 10, 2003, a personal conflict arose between Petitioner and a co-worker, Pierre Escanio. Petitioner loudly questioned the quality of Mr. Escanio's work. In the cleaning and packaging area, the workers' products were commingled into single lots and sent to Arthrex's quality control division for review. Petitioner claimed to be concerned that Mr. Escanio's poor work would cause quality control to return the entire lot, meaning that everyone would have to redo their work. Ms. Custodio, the supervisor, attempted to calm the situation by telling Petitioner that she would talk to Mr. Escanio about his work. Ms. Custodio did so despite the fact that she had trained Mr. Escanio and knew him to be a competent employee. Ms. Custodio next told Petitioner that she would separate Petitioner's work from that of Mr. Escanio, marking the items so they would know whose work had been rejected by quality control. Despite Ms. Custodio's effort, Petitioner continued to complain. Ms. Custodio finally told Petitioner to stop making these complaints in front of the other dozen or so people in the work area. Ms. Custodio believed that Petitioner was questioning her authority in front of the other employees. She went to Ms. Alvarez to discuss the situation and obtain the assistance of the Human Resources Department in addressing the problem of Petitioner's insubordination. Ms. Custodio told Ms. Alvarez that she could no longer handle the situation with Petitioner. In keeping with the policies of Arthrex's Human Resources Department, Ms. Alvarez investigated the matter, conducting interviews with employees who witnessed Petitioner's behavior. Ms. Alvarez testified that her investigation led her to conclude that "there was a serious problem in the department." After a final consultation with Arthrex's general counsel, Ms. Alvarez recommended that Petitioner's employment be terminated for insubordination. Ms. Custodio agreed with the recommendation. By letter dated August 12, 2003, and signed by Ms. Alvarez, Arthrex terminated Petitioner's employment. The letter stated the following express reasons for Petitioner's termination: Previous written warning referring to disruptive behavior of 6/17/2003. Numerous reports of negative comments about the company and management in front of other employees. Antagonistic behavior with supervisor and coworkers. Petitioner produced no credible evidence that her language or national origin played a role in the decision to terminate her employment. Petitioner's chief claim is that she was terminated for refusing to obey instructions from her supervisors, including Ms. Custodio and Ms. Alvarez, to cease speaking Spanish in the workplace. Both Ms. Custodio and Ms. Alvarez credibly denied giving any such instructions to any Arthrex employee. Arthrex does have a "Language Policy" that requires employees to be proficient in English to ensure that FDA regulations and ISO certification standards are met, because the company "has determined that the English language is the most common and effective means of communications" in the United States. The policy requires employees to communicate business-related information in English, but states that it "is not intended to prevent or discourage any employee from speaking their native language at Arthrex for certain business related matters, on their own time or with regard to non-business matters." The evidence established that all but one or two people in Petitioner's work area were native Spanish speakers and that they were allowed freely to communicate in Spanish in their day-to-day work activities. Employees were encouraged to communicate with their supervisors in their native language, if doing so improved the quality of the information conveyed. Ms. Custodio and Ms. Alvarez each testified that they knew of no Arthrex employee who had ever been disciplined for speaking a language other than English in the workplace. At the hearing, Petitioner repeatedly made reference to the efforts of one lower-level supervisor, Renee Vanderberg, to force the employees in Petitioner's section to refrain from speaking Spanish and confine their work conversations to English. However, the evidence established that once the Human Resources Department learned of Ms. Vanderberg's actions, she was admonished to cease directing the employees to speak English. When Ms. Vanderberg continued to press the issue, Arthrex terminated her employment. The evidence produced at hearing demonstrated that the reasons for Petitioner's termination were limited to those set forth in the termination letter of August 12, 2003.
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 Arthrex Manufacturing did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 17th day of May, 2005, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2005.
The Issue The issue in the case is whether the termination of Petitioner's employment by Respondent constituted discrimination against Petitioner on the basis of gender.
Findings Of Fact Petitioner is a female, a member of a protected group under applicable law, and was at all times material to this case, employed by Respondent until the termination of employment that is the subject of this dispute. Respondent is an employer as the term is defined by relevant sections of the St. Petersburg Municipal Code and the applicable Pinellas County Ordinance. During the period of time relevant to this dispute, Sam Obinwa owned Respondent. During the period of Mr. Obinwa's ownership, Respondent was a business engaged in providing health care supplies, including pharmaceuticals to customers. Beginning in July 1996, Petitioner was employed as a courier by Respondent. Petitioner was primarily assigned to make deliveries of supplies to Respondent's customers. Respondent also employed a second courier, a male, during this period. At some point during Petitioner's employment, Mr. Obinwa hired an office manager, Kim Henderson. Ms. Henderson became Petitioner's supervisor. Ms. Henderson was responsible for the operation of the office, including receiving customer complaints and resolving employee disputes. Mr. Obinwa testified that he received information related to the office operations from Ms. Henderson and relied upon it in making the decision to terminate Petitioner's employment. According to Mr. Obinwa's testimony, he received complaints regarding Petitioner's job performance and behavior from both customers and Ms. Henderson. Mr. Obinwa testified that he discussed the complaints with Petitioner during her employment. On December 14, 2003, Mr. Obinwa met with Petitioner and explained that her employment was being terminated. As grounds for the termination, Mr. Obinwa, in a termination letter provided to Petitioner, cited complaints about her behavior from both customers and work associates. The complaints included lack of cooperation, abusiveness, failure to follow instructions or to adhere to the delivery schedule, and missed or late medication deliveries. Petitioner asserts that she was terminated on account of gender. There is no credible evidence, direct or indirect, that Respondent's termination of Petitioner's employment was on account of gender. At the time of Petitioner's termination, Respondent employed eight to nine persons, including six to seven females. The employee most similarly situated to Petitioner (the male courier) was not terminated; however, there is no evidence that there were complaints regarding his behavior from either customers or work associates. At the hearing, Petitioner asserted that the male courier generally received the same treatment as did she. The evidence establishes that Petitioner received an additional benefit that was not provided to the male courier. Petitioner was permitted to use a company delivery vehicle for occasional personal transportation. There is no evidence that the male courier was permitted to take the company vehicle for personal use. Petitioner testified that another male employee identified as Herman Jones was hostile towards her and towards other women working for Respondent. Petitioner claimed that Mr. Jones was somehow responsible for her termination. Mr. Jones was a pharmacy technician. Mr. Jones was responsible for imputing prescription information into the computer system and for preparing the medications according to the prescriptions. Prior to being delivered to the customers by the couriers, the medications were checked by a pharmacist. There is no credible evidence that Mr. Jones had any supervisory duties related to Petitioner. There was testimony suggesting that there were personality conflicts between Petitioner and Mr. Jones. There is no evidence that Mr. Jones was involved in Mr. Obinwa's decision to terminate Petitioner's employment, other than the general consideration Mr. Obinwa gave to the complaints from Petitioner's co-workers related to her behavior in the office. At the hearing, Petitioner presented supportive letters from five customers who were apparently pleased with Petitioner's performance. Petitioner made between 100-200 deliveries each week to Respondent's customers. Mr. Obinwa testified that some of the customers to whom Petitioner made deliveries were happy and that others were not. No evidence related to damages to Petitioner was presented during the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's complaint be DISMISSED. DONE AND ENTERED this 1st day of December, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 December, 2004. COPIES FURNISHED: Stephanie N. Rugg City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731-2842 Suzanne M. Mucklow, Esquire Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756 Willie Mae Curry 2702 4th Street, South St. Petersburg, Florida 33705-3641 Donna J. Buchholz, Esquire D. J. Buchholz, P.A. 4320 El Prado Boulevard, 15 Tampa, Florida 33629
Findings Of Fact Petitioner gave Respondent's June 30, 1995 correspondence, informing Petitioner that his employment contract would not be renewed, to Petitioner's attorney. That correspondence informed Petitioner that he could appeal Respondent's decision through "the appropriate administrative structure" or the formal grievance procedures contained in Respondent's Rule 6C1-7.041, Florida Administrative Code. A copy of Rule 6C1-7.041, Florida Administrative Code, was attached to the June 30, 1995 letter. Pertinent to this proceeding is the language of a portion of the rule contained in paragraph 6C1-7.041(4)(a), Florida Administrative Code, which reads as follows: Initiation of a proceeding under Section 120.57, F.S. shall be made by submitting a petition to the Clerk of the University of Florida, as provided in Rule 6C1-1.005, F.A.C. A copy of the petition should also be sent to the President of the University. The petition should be printed, typewritten, or otherwise duplicated in legible form on white paper. Unless printed, the impression should be on one side of the paper only, and lines shall be double-spaced and indented. The June 30, 1995 letter did not state the location or personal identity of the Clerk of the University. Rule 6C1-1.005, Florida Administrative Code, referenced in Rule 6C1-7.041(4)(a), Florida Administrative Code was not included in Respondent's correspondence. Rule 6C1-1.005(1), Florida Administrative Code, provides: The Clerk of the University is the administrative assistant in the Office of the General Counsel at 207 Tigert Hall, University of Florida, Gainesville, Florida 32611. In the absence of the individual holding this position, the administrative assistant to the Vice-President for Admin- istrative Affairs shall act as the Clerk of the University of Florida. Petitioner did not obtain and was not provided by Respondent with a copy of Rule 6C1-1.005(1), Florida Administrative Code. Petitioner's counsel did not know who was the Clerk of the University or where that office was located. Petitioner's counsel telephoned the University's information services on August 8, 1995, and asked for a telephone listing for the Clerk of the University of Florida at Tigert Hall. Information services was unable to provide such a telephone listing and referred counsel to the University's President. On August 8, 1995, Petitioner's counsel telephoned the office of the University's President and spoke with Lois Ivanko. A senior secretary in the President's office for eight years, Ivanko greets guests, opens and directs mail, and receives grievances. When informed by Petitioner's counsel of the need to file an administrative petition with the Clerk of the University of Florida on that very day, Ivanko said she would be happy to help counsel with the filing process and that he should send his law clerk, Joseph Marlar, to her, that she would take the petition and that she would file it. Marlar went to Ivanko's office on August 8, 1995, and spoke with Ivanko. Marlar explained that his mission was to file Petitioner's Petition For Formal Administrative Hearing. Marlar specifically told Ivanko that the document had to be filed with the Clerk of the University of Florida that day. Ivanko, ignorant of the existence of a Clerk for the University, assured Marlar that he was at the right place and that leaving the documents with her would constitute appropriate filing. Marlar left Petitioner's Petition For Formal Administrative Hearing with Ivanko who date and time stamped the document. Ivanko later brought the original to the office of the University's Vice- President of Academic Affairs. Ivanko placed a date and time stamp on a copy of the documents provided by Marlar so that Marlar would have proof of the filing of the document. All three documents, one original and two copies, were clearly entitled "Petition For Formal Administrative Hearing (CH.120)." Karen Grabel is the Clerk of the University of Florida. She has held that position since May 1993. Grabel works in the General Counsel's office, located at 207 Tigert Hall. Ivanko works in the Office of the President at 226 Tigert Hall on the same floor of the building as Grabel. Petitioner's Petition For Formal Administrative Hearing was not filed in Grabel's office by the required deadline of close of business on August 8, 1995. By order of the University's President dated August 23, 1995, the Petition was denied on the basis that it was not filed with the Clerk.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered finding Petitioner's Petition For Formal Administrative Hearing to have been timely filed. DONE and ENTERED this 19th day of September, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1996. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-33. Accepted and incorporated in HO findings, although not verbatim. Respondent's Proposed Findings 1.-3. Accepted, not verbatim. 4.-5. Rejected, relevance. 6. Incorporated by reference. 7.-8. Accepted. 9. Rejected, subordinate to HO findings. 10.-12. Accepted. Rejected, cumulative. Rejected, relevance to this proceeding. COPIES FURNISHED: Paul A. Donnelly, Esquire Post Office Box 1308 Gainesville, Florida 32602 Barbara C. Wingo, Esquire University of Florida Post Office Box 113125 Gainesville, Florida 32611-3125
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of national origin, race, and perceived disability in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact No dispute exists that Mr. Pierre is a male and Black and that his national origin is Haitian. No dispute exists that he is a member of the protected class as it relates to discrimination. No dispute exists that, at all times material hereto, the School Board was an employer as defined by the Florida Civil Rights Act of 1992, as amended. Mr. Pierre began his employment with the School Board in 1996. For nine (9) years, he worked in the Maintenance Department and was promoted three times. His various supervisors rated his work as excellent. At all times material hereto, Mr. Pierre’s co-workers were of various ethnic groups—Haitian, Hispanic, Black/African American, Caucasian, etc. For approximately seven years, Mr. Pierre was under the supervision of Foreman John Bateman. Mr. Bateman considered Mr. Pierre to be a “fabulous” worker and recommended Mr. Pierre for promotion. Subsequent thereto, Mr. Bateman observed a change in Mr. Pierre’s behavior and attitude. Mr. Bateman discussed the changes in Mr. Pierre’s behavior and attitude with his (Mr. Bateman’s) supervisor, James Bass. Such a change in behavior and attitude was exhibited on April 27, 2004. On that date, Mr. Pierre refused to take orders from a temporary leadman, Joe Williams, in the absence of the leadman, Joe Pierrot. Mr. Bass was called to the work-site, and he spoke to Mr. Pierre regarding his refusal to follow the directives of Mr. Williams. After the discussion, Mr. Pierre agreed to follow the directives of Mr. Williams. Mr. Bass memorialized the incident in a memorandum “For the Record” dated the same day. Mr. Bass testified as to the incident and noted, among other things, in the memorandum that Mr. Pierre had become “very disruptive, creating a hostile environment;” that, after the discussion, Mr. Pierre “returned to his duties without incident;” and that Mr. Pierre was “a very hard worker, but he appears to have ‘fits’ at times . . . seems to intimidate his co-workers with his attitude and overly-aggressive behavior . . . has a tendency to accuse his co-workers of not liking him because of his nationality (Haitian).” Mr. Pierre testified that he did not look at the memorandum and refused to sign it; and that he informed Mr. Bass that he (Mr. Pierre) did not have a “fight” with anyone. Another incident occurred on July 9, 2004. Mr. Bass memorialized the incident in a memorandum “For the Record” dated the same day of the incident. A worker, Mike Walters, had placed a bottle of water in a refrigerator over night, and the next day, the bottle of water was missing. As Mr. Pierre was walking past Mr. Walters, he (Mr. Walters) commented that someone had taken his bottle of water. Mr. Pierre immediately took offense, became agitated, and refused to calm down, even after Mr. Walters explained to Mr. Pierre that he was making a general statement, not directed at Mr. Pierre. Only after the leadman, Mr. Pierrot, interceded did Mr. Pierre calm down. Mr. Bass included in the memorandum that Mr. Pierre appeared to believe that “everyone was out to get him”; that Mr. Pierre’s co-workers expressed being fearful of him; that Mr. Pierre was advised that such behavior was not acceptable; and that further such behavior would lead to disciplinary action up to and including termination. Mr. Bass signed the memorandum, but Mr. Pierre refused to sign it. Mr. Pierre testified at hearing that the Mr. Walters accused him of “stealing” the water but that he knew nothing about it. The undersigned finds Mr. Pierre’s testimony credible that he (Mr. Pierre) believed that he was being accused of stealing the water but that he knew nothing about the water being stolen. An inference is drawn and a finding of fact is made that Mr. Pierre became upset because of this belief. Mr. Pierre was counseled regarding his behavior. Mr. Bass and the District Maintenance Manager, Mark Dorsett, decided that a re-assignment might benefit Mr. Pierre and his co-workers. As a result, on July 20, 2004, Mr. Pierre was re- assigned from a team of workers, i.e., a crew, responsible for cleaning air conditioning coils to a crew responsible for preventative maintenance tasks. The re-assignment was memorialized in a memorandum dated July 20, 2004. The memorandum provided, among other things, that Mr. Pierre would be monitored for six months and, if the re-assignment did not improve Mr. Pierre’s relationship with his co-workers, “progressive disciplinary action” would be invoked; and that the re-assignment would hopefully improve the relationships. The memorandum was copied to Mr. Pierre. Approximately three months later, however, on October 20, 2004, another incident occurred. The incident was memorialized in a memorandum “For the Record” dated October 25, 2004. According to the memorandum, Mr. Pierre had an argument with Sammie Riviera, Mr. Pierre’s work-partner, regarding Mr. Pierre’s tools, which “escalated to a verbal altercation.” Also, the memorandum indicated that, when Mr. Pierre returned to work, after the incident, he began accusing his co-workers of taking his missing tools, which he was unable to locate. Further, the memorandum indicated that the foreman, Jose Martell, advised Mr. Pierre that his behavior would have to “cease immediately.” Moreover, the memorandum indicated that Mr. Martell and Mr. Martell’s supervisor, Diane Caulfield, determined that Mr. Pierre would benefit from the School Board’s Employees Assistance Program (EAP). Mr. Martell and Ms. Caulfield signed the memorandum, but Mr. Pierre did not. Mr. Riviera did not testify at hearing. Mr. Pierre testified that, contrary to what others thought that he believed, he did not believe that Mr. Riviera stole his tools. Mr. Pierre testified that Mr. Riviera used his tools and dropped them on the floor; that he (Mr. Pierre) picked-up the tools and placed them in the truck; that Mr. Riviera attempted to talk to him (Mr. Pierre) but that he (Mr. Pierre) refused to talk to Mr. Riviera. In his testimony, Mr. Pierre did not deny that he and Mr. Riviera argued. On October 26, 2004, Ms. Caulfield presented Mr. Pierre with an EAP Referral Form, which stated the reason for the referral as “Anger Management – no one wanting to work with him.” Ms. Caulfield signed the EAP Referral Form, but Mr. Pierre refused to sign it. At hearing, Mr. Pierre testified that he did not recall Ms. Caulfield’s request for him to attend the EAP. The undersigned finds Mr. Pierre’s testimony to be credible, but such finding does not change or affect the undersigned’s finding that Ms. Caulfield requested Mr. Pierre to attend the EAP. Approximately 20 days later, on November 15, 2004, another incident occurred. The incident was memorialized in a memorandum “For the Record” dated November 16, 2004. Mr. Pierre’s work-partner, Mr. Riviera, observed Mr. Pierre handling a device that he (Mr. Pierre) should not have been handling, and Mr. Riviera so advised Mr. Pierre, who became “very agitated” and was “yelling” at Mr. Riviera. Additionally, the memorandum indicated that Mr. Riviera had observed, on occasion, Mr. Pierre mumbling to himself “excessively” and “banging himself against a wall.” Further, Mr. Riviera indicated that such behavior by Mr. Pierre, together with Mr. Pierre’s exhibited temper, caused Mr. Riviera to be “fearful of his personal well-being” while working with Mr. Pierre. Mr. Martell signed the memorandum, but Mr. Pierre did not sign it. Approximately, nine months later, in August 2005, Mr. Pierre visited the Director of Maintenance, Sylvester Davis. Mr. Davis had known Mr. Pierre since Mr. Pierre began working with the School Board and had always encouraged Mr. Pierre to visit him. Mr. Davis observed that Mr. Pierre was upset about something, but Mr. Pierre was unable to explain to Mr. Davis what was happening to him (Mr. Pierre), so Mr. Davis decided to talk to Ms. Caulfield. Mr. Pierre testified that he went to talk to Mr. Davis because he (Mr. Pierre) was not feeling safe at work, believed that he (Mr. Pierre) was being “persecuted,” and believed that Mr. Davis could help. Mr. Davis met with Ms. Caulfield and expressed his concern regarding Mr. Pierre. She explained what had been happening with Mr. Pierre and showed Mr. Davis the memoranda that had accumulated regarding Mr. Pierre’s behavior. Mr. Davis suggested the EAP, and Ms. Caulfield advised him that Mr. Pierre had already been referred to the EAP. After his meeting with Ms. Caulfield, Mr. Davis became concerned regarding the safety of Mr. Pierre and the other workers. Mr. Davis determined that a Fit-For-Duty examination was appropriate. In a memorandum dated September 19, 2005, directed to the School Board’s Special Investigative Unit (SIU), which is within the School Board’s Office of Professional Standards (OPS), Mr. Davis, among other things, provided the SIU with information in order for it to conduct a Fit-For-Duty examination of Mr. Pierre. In the memorandum, Mr. Davis indicated, among other things, that Mr. Pierre’s behavior had gotten progressively worse; that a safety problem had arisen since Mr. Pierre’s work assignments required assistance, but his co-workers were refusing to work with him because of their fear of his reactions; that Mr. Pierre’s co-workers were concerned about him, had respect for him, and viewed him as an excellent worker; and that Mr. Pierre’s co-workers just wanted him to get help. Further, in the memorandum, Mr. Davis requested that a person who could speak Creole be present when the SIU spoke with Mr. Pierre. Moreover, at hearing, Mr. Davis testified that, at no time did he want Mr. Pierre to be terminated, only for him to get the help that he needed to continue to work for the School Board. Mr. Davis viewed the Fit-For-Duty examination as a way to help Mr. Pierre. Mr. Davis’ testimony is found to be credible. The Fit-For-Duty evaluation is a non-disciplinary process wherein the School Board is attempting to help an employee. School Board Policy 4004 provides in pertinent part: RULES Fit for Duty Determination Procedures (emphasis in original) The Executive Director of Professional Standards & Special Investigative Unit (SIU) receives request from a Principal/Administrator (includes District Administrators) or Superintendent/Designee. (Supporting Documents) SIU notifies employee via certified mail that he/she must undergo a physical and/or psychological examination. A reassignment letter is prepared directing employee to remain at home with pay, pending the outcome of the examination. (Letter 1) The affected employee shall select the name of a medical doctor, psychologist or psychiatrist from a list maintained by the Executive Director of Professional Standards & Special Investigative Unit, within 48 hours. (See Attachment to Letter 1) SIU Administrator schedules within ten working days a medical appointment and follows-up in writing to the doctor’s office and to the employee of appointment confirmation. Note: This is a mandatory appointment and failure to attend can result in termination of employment for failure to comply with School Board Policy 4004. (Letters 2 & 3) (emphasis in original) * * * 6. The doctor as delineated in the policy will conduct Pre-evaluation at District expense. Note: a 2nd Opinion will be at the employees expense if requested, with the employee selecting from the School Board approved list as delineated in the policy. (emphasis in original) * * * If employee fails to attend any mandatory appointment with the assigned doctor of the designee assigned to handle the Fitness for Duty Evaluation Case per School Board Policy 4004, then a pre- disciplinary meeting is arranged and employee is notified in writing. (Letter 7) If applicable a recommendation for termination is sent to the School Board of Broward County based on just cause, for insubordination, failure to comply with School Board Policy 4004. (Letter 8) By letter dated September 27, 2005, which was hand- delivered to Mr. Pierre, the Executive Director of OPS, SIU, Joe Melita, notified Mr. Pierre that Mr. Davis had requested a Fit- For-Duty Assessment, pursuant to School Board Policy 4004, and that Mr. Pierre was required to submit to a psychological examination at School Board expense. Mr. Melita provided further in the letter that Mr. Pierre was directed to choose a doctor from a list of doctors, which was attached to the letter, indicating his (Mr. Pierre’s) first and second choice, within two days of receipt of the letter; that the OPS Administrator, Richard Mijon, would schedule the appointment with the physician chosen; and that Mr. Pierre was to not return to work, but remain at home with pay pending the determination of the examination. The letter was addressed to Mr. Pierre at 2450 SW 7th Street, Fort Lauderdale, Florida 33312. An inference is drawn and a finding of fact is made that a perception existed that Mr. Pierre may have been experiencing psychological problems. Additionally, on September 27, 2005, Mr. Mijon met with Mr. Pierre and two of Mr. Pierre’s line supervisors in Mr. Mijon’s office. The line supervisors requested that a Creole-speaking individual also attend to assist Mr. Pierre in communicating only. Mr. Mijon complied with the request and obtained the services of one of his officers, Marc Elias, who was born in Haiti and who spoke Creole, for interpretation purposes only. The aforementioned letter dated September 27, 2005, was hand-delivered to Mr. Pierre at this meeting, and Mr. Mijon reviewed the contents of the letter with Mr. Pierre, who signed the letter and dated his signature (September 27, 2005). The list of physicians attached to the letter included physicians from the counties of Dade [sic], Broward, and Palm Beach. Mr. Pierre testified at hearing that he did not know any of the doctors on the list and, therefore, Mr. Elias circled three of the doctors and marked the order of preference (first, second, and third) for him. Mr. Pierre’s testimony is found to be credible, but also an inference is drawn and a finding is made that the choices were made after consulting with Mr. Pierre. Additionally, on the list, Mr. Pierre provided his contact telephone numbers (home and cell). Mr. Mijon reviewed with Mr. Pierre the choice of doctors, with preferences, and his (Mr. Pierre’s) telephone numbers. Also, Mr. Pierre’s address on the letter dated September 27, 2005, was taken from the School Board’s records. At the meeting, Mr. Pierre did not indicate that his mailing address was incorrect. At the conclusion of the meeting, Mr. Pierre requested that a Creole-speaking doctor perform the Fit-For-Duty examination. Mr. Mijon considered Mr. Pierre’s request reasonable, knew that none of the physicians on list spoke Creole, and indicated to Mr. Pierre that he would hold the list of physicians in abeyance and locate a Creole-speaking doctor through the EAP. On or about October 3, 2005, Mr. Mijon received a list of Creole-speaking psychiatrists and/or psychologists from the EAP. On that same day, Mr. Mijon again obtained the services of Mr. Elias and directed Mr. Elias to contact Mr. Pierre by telephone. Mr. Elias complied and contacted Mr. Pierre by telephone, activating the speakerphone. Mr. Elias participation in the entire telephone conversation was for translation purposes only. Mr. Mijon informed Mr. Pierre that a list of Creole-speaking doctors had been obtained and that Mr. Pierre needed to come to Mr. Mijon’s office on October 5, 2005, to do as he had done previously—choose three doctors, identifying his preferences (one through three), and sign and date the document. Mr. Pierre indicated, during the telephone conversation, that he would not come into Mr. Mijon’s office to do anything, indicating, among other things, that he (Mr. Pierre) was being persecuted. Mr. Mijon informed Mr. Pierre that, if he did not come into his (Mr. Mijon’s) office on October 5, 2005, that he (Mr. Pierre) would be considered to have waived his right to choose from the second list of doctors, and that he (Mr. Mijon) would have no choice but to use the original list chosen by Mr. Pierre, which contained no Creole-speaking doctors, contact Mr. Pierre’s first choice, and schedule an appointment with the first doctor from the original list. On October 5, 2005, Mr. Pierre failed to appear at Mr. Mijon’s office. Mr. Mijon proceeded to schedule an appointment with the doctor from the original list, Laura Hohnecker, Ph.D., who was indicated as Mr. Pierre’s first choice. The appointment was set for October 12, 2005, at Dr. Hohnecker’s office, 1:00 p.m. to 4:30 p.m. On October 6, 2005, Mr. Mijon contacted Mr. Pierre by telephone and again obtained the services of Mr. Elias for translation purposes only. Again, the telephone was placed on speakerphone. Mr. Mijon advised Mr. Pierre that an appointment had been scheduled with Dr. Hohnecker, Mr. Pierre’s first choice from the original list, for the Fit-For-Duty examination, and provided Mr. Pierre with the date, time, address, and telephone number of Dr. Hohnecker. Further, Mr. Mijon informed Mr. Pierre that the appointment was mandatory and that, if he (Mr. Pierre) failed to attend the appointment, disciplinary action may result. In addition to the telephone conversation, Mr. Mijon sent a letter, dated October 6, 2005, by certified and regular U.S. mail to Mr. Pierre, containing the same information that was discussed during the telephone conversation. The letter was addressed to Mr. Pierre at the same address that was used by Mr. Mijon on the letter dated September 27, 2005. The certified letter was returned but not for being unclaimed. Mr. Pierre failed to appear at Dr. Hohnecker’s office on October 12, 2005, for his appointment for a Fit-For-Duty examination. Due to Mr. Pierre’s failure to appear for his appointment, by letter dated October 14, 2005, Mr. Melita directed Mr. Pierre to appear at his (Mr. Melita’s) office on Tuesday, October 25, 2005, at 9:00 a.m. to meet with Mr. Mijon for a pre-disciplinary meeting, indicating that the purpose of the pre-disciplinary meeting was Mr. Pierre’s insubordination/noncompliance with School Board Policy 4004. The letter further indicated, among other things, that Mr. Pierre had failed to attend the mandatory appointment, as directed, with Dr. Hohnecker for his Fit-For-Duty examination. Moreover, the letter advised Mr. Pierre that his failure to attend the meeting on October 25, 2005, would result in his (Mr. Pierre’s) name being forwarded to the School Board for “termination” of employment. The letter was addressed to Mr. Pierre at the same address that was used by Mr. Mijon on the letter dated September 27, 2005, and was sent to Mr. Pierre by certified and regular U.S. mail. The certified letter was returned but not for being unclaimed. Subsequently, by letter dated November 7, 2005, Mr. Melita informed Mr. Pierre that, due to a hurricane, the meeting scheduled for October 25, 2005 was re-scheduled for Monday, November 14, 2005, at 9:00 a.m., restating the purpose for the meeting and the same information contained in the letter dated October 14, 2005. The letter was sent to Mr. Pierre by certified and regular U.S. mail, at the same address that was used by Mr. Mijon on the letter dated September 27, 2005. Mr. Pierre, accompanied by his counsel, attended the meeting on November 14, 2005. Mr. Elias was also present at the meeting for interpretation purposes only. At the meeting, Mr. Pierre denied that he had received a telephone call on October 3, 2005, regarding Mr. Mijon obtaining a list of Creole- speaking doctors for the Fit-For-Duty evaluation and the consequences for him (Mr. Pierre) not attending the meeting scheduled for October 5, 2005, with Mr. Mijon. At hearing, Mr. Pierre also testified that he did not receive the telephone call on October 3, 2005, regarding the meeting on October 5, 2005, and the consequences for his failure to attend. The undersigned does not find Mr. Pierre’s testimony to be credible. The undersigned makes a finding of fact that Mr. Pierre received the telephone call on October 3, 2005, regarding the meeting on October 25, 2005, and the consequences for his failure to attend. Also, at hearing, Mr. Pierre testified that he did not speak on the telephone with Mr. Mijon and Mr. Elias on October 6, 2005, regarding the appointment with Dr. Hohnecker on October 12, 2005, and the consequences for his failure to attend. The undersigned does not find Mr. Pierre’s testimony to be credible. A finding of fact is made that Mr. Pierre received the aforementioned telephone call on October 6, 2005, regarding the appointment with Dr. Hohnecker on October 12, 2005, and the consequences for his failure to attend. At the meeting on November 14, 2005, Mr. Melita determined that Mr. Pierre had presented no justifiable explanation for his (Mr. Pierre’s) failure to attend the appointment with Dr. Hohnecker on October 12, 2005, for the Fit- For-Duty examination. Mr. Melita recommended termination of Mr. Pierre’s employment with the School Board due to insubordination and non-compliance with School Board Policy 4004. By letter dated November 30, 2005, sent by certified and regular U.S. mail, Mr. Melita notified Mr. Pierre, among other things, of the recommendation, the basis for the recommendation, and the date (December 13, 2005) that the recommendation would be submitted to the School Board for approval. Mr. Pierre testified that he did not receive the letter dated November 30, 2005. Regarding Mr. Pierre’s address on the letters from the School Board sent by certified and regular U.S. mail, at hearing, Mr. Pierre testified that, in 2004, he had moved from the address reflected on the letters; that, after he was sent home in September 2005, he was receiving his paychecks from the School Board in the mail at his new 2004 address; and that, around December 2005, he moved to Sarasota, Florida. The evidence demonstrates that the certified letters were returned but fails to demonstrate whether the letters sent by regular U.S. mail were returned or not returned. Furthermore, the evidence demonstrates and Mr. Pierre admits that he and his counsel attended the re-scheduled pre-disciplinary meeting on November 14, 2005, regarding Mr. Pierre’s insubordination/noncompliance with School Board policy 4004, as to Mr. Pierre’s failure to attend the mandatory appointment with Dr. Hohnecker for his Fit-For-Duty examination. Mr. Pierre testified that he and his counsel became aware of the meeting on November 14, 2005, as a result of his counsel contacting Mr. Melita, attempting to discover what issue the School Board had with Mr. Pierre. The undersigned finds Mr. Pierre’s testimony credible regarding his addresses for 2004 and 2005. However, the undersigned further finds that the failure of Mr. Pierre to advise Mr. Mijon of his (Mr. Pierre’s) correct address at the meeting on September 27, 2005 was unreasonable. Mr. Pierre has not been employed since his termination from the School Board. Mr. Pierre has been consistently seeking employment since his termination from the School Board. At the time of the hearing, Mr. Pierre was suffering from hypertension and depression for which is taking medication for both. The evidence fails to demonstrate that Mr. Pierre was suffering from these illnesses or taking medication for them at the time that he was employed with the School Board. The evidence fails to demonstrate that similarly situated employees of the School Board were treated differently or more favorably.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the discrimination complaint of Antoine Daniel Pierre against the Broward County School Board. DONE AND ENTERED this 31st day of July, 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2008.
The Issue The issues in this case are whether Respondent unlawfully discriminated against Petitioner on the basis of a disability in violation of the Florida Civil Rights Act of 1992 (FCRA), when Respondent failed to hire Petitioner, and whether Respondent retaliated against Petitioner in violation of the FCRA, when Respondent issued Petitioner a trespass warning and later notified law enforcement of Petitioner's presence on Respondent's property, resulting in Petitioner's arrest for Trespass After Warning.
Findings Of Fact Mr. Tyler is hearing impaired. Prior to moving to Florida in October 2005, Mr. Tyler had worked for Disneyland in California for over two years. On October 14, 2005, Mr. Tyler submitted an application for employment with Disney in Orlando. Mr. Tyler met with an employee of Disney with a sign language interpreter present. Mr. Tyler was advised that he had been "red flagged" as a result of his previous employment with Disneyland. Being red flagged meant that Mr. Tyler was considered to be a restricted rehire. Because he had left the employ of Disneyland a few weeks before he applied for employment at Disney, there was a question of his employment stability. He was told that he needed to provide an employment history of at least six months after he left Disneyland's employ. On April 25, 2006, Mr. Tyler submitted a second application for employment with Disney. On the application, Mr. Tyler stated that he currently held two jobs. He had been working at Macy's since November 2005 and at a 7-11 store beginning in March 2006. However, Disney personnel concluded that his current employment did not demonstrate employment stability. Mr. Tyler was given an interview by Disney with a certified sign language interpreter present and was advised that his rehire status was still restricted. Mr. Tyler was given a rehire petition to complete so that his rehire status could be reviewed by Disney. The rehire petition requested Mr. Tyler to state the reasons for his termination from the company and the reasons why Mr. Tyler thought he should be rehired. Additionally, Mr. Tyler was required to provide employment verifications from his employers to demonstrate job stability. Mr. Tyler did not provide a completed rehire petition to Disney. Mr. Tyler claims that he did provide the necessary paperwork to Disney at Christmastime to an unknown older man, who was at the Disney casting office1/ and who advised Mr. Tyler that the employees were on Christmas break. Mr. Tyler further testified that he later overheard the older man at a 7-11 store tell another person that he had thrown Mr. Tyler's application in the trash. Mr. Tyler's testimony is not credible. First, the next time that Mr. Tyler applied for a job with Disney was in November 2006, prior to Christmastime. Obviously, he did not supply the information needed for a rehire petition between the second and third applications. Additionally, it defies credulity that Mr. Tyler would overhear the older man at a 7-11 store tell someone that he had thrown the paperwork away. The likelihood that Mr. Tyler would see the older man again is slim, and there would be no reason for the older man to be confessing that he had thrown Mr. Tyler's paperwork away. Mr. Tyler tried to see Kelly Frank (Ms. Frank), the senior vice president of Disney's human resources office, after he was told that he was not eligible for rehire. Ms. Frank had been employed at Disneyland prior to transferring to Disney. While she was at Disneyland, she and Mr. Tyler had met concerning some disciplinary issues that Mr. Tyler had while working at Disneyland. Mr. Tyler felt that Ms. Frank had been helpful with his situation at Disneyland and thought that she could run interference for him concerning his applications for rehire at Disney. Mr. Tyler would show up unannounced at Ms. Franks' office and ask to meet with her. Mr. Tyler's method of dealing with such situations was to bypass the chain of command and go to someone higher in management. Ms. Frank was aware of Mr. Tyler's attempts to see her. Ms. Frank never spoke to Mr. Tyler about his applications for employment at Disney; instead her assistant asked Robin King (Ms. King), from Disney's human resources department, to talk with him. Ms. King and Bekki Musee (Ms. Musee), who was a team leader for Disney's casting operations support, set up a meeting with Mr. Tyler with a sign language interpreter present. They tried to explain to him that he had to follow the procedures and submit a rehire petition to have his rehire status reviewed and that he would need six months of stable employment to be considered for a rehire. Additionally, they told him that he should take his complaints to the casting office, where the employment decisions were made and not to try to see Ms. Frank. They further told Mr. Tyler that he should make an appointment when he needed to speak to someone rather than show up unannounced. Disney needed advance notice so that a sign language interpreter could be present to assist Mr. Tyler. On November 11, 2006, Mr. Tyler filled out a third application for employment with Disney. He stated on the application that he had been employed by Macy's from November 2005 to May 2006. He stated that he became employed by Gaylor Entertanment [sic] Suite Hotel in November 2006. No mention was made of his employment at the 7-11 store. When Ms. Musee became aware that Mr. Tyler had submitted a third application, she assigned a senior recruiter, Clayton Kirkland (Mr. Kirkland), to interview Mr. Tyler. Ms. Musee wanted to have someone who had not interviewed Mr. Tyler before to perform the interview to give Mr. Tyler a fair opportunity. Mr. Kirkland interviewed Mr. Tyler, and a sign language interpreter was present during the interview. Mr. Tyler told Mr. Kirkland that he had been terminated from Disneyland because of attendance. At the beginning of the interview, Mr. Tyler acted professionally. Mr. Kirkland asked Mr. Tyler about Mr. Tyler's employment at the 7-11 store, which had been listed on a previous application. Mr. Tyler denied ever having worked at a 7-11 store and claimed that Ms. Musee had put that on his previous application. When questioned about his employment history at the 7-11 store, Mr. Tyler's demeanor changed, and he became angry and appeared to be frustrated. Mr. Kirkland told Mr. Tyler that he was not qualified for the job and would not be hired. This decision was based on gaps in Mr. Tyler's employment history, the restricted rehire placed by Disneyland, the lack of job stability, his failure to provide documentation for his rehire status when asked to do so, and his aggressive behavior. Mr. Tyler became angry and upset, stood up, leaned over Mr. Kirkland's desk, and slammed his hand down on the desk. At that point, Mr. Tyler was not relying on the sign language interpreter, but was verbally talking to Mr. Kirkland. Mr. Tyler became upset and left the interview. As he was leaving, he saw Ms. Musee. He walked hastily toward her, yelling and screaming at her and saying that she had put some notations in his file. He got in front of her face and started pointing his finger at her. She felt uncomfortable and threatened by his actions. Mr. Tyler did not have his hearing aids on at the time; therefore, he could not tell if his voice was loud when he spoke to Ms. Musee. However, whether he was wearing his hearing aids does not excuse his getting in front of Ms. Musee's face and pointing his finger at her. On December 27, 2006, Mr. Tyler showed up at the casting office unannounced and requested a sign language interpreter so that he could talk with Ms. Musee. Mr. Tyler's testimony that the only reason that he went to the casting office was to set up an appointment with Ms. Musee in the future is not credible. The greater weight of the evidence is that he showed up expecting to talk to Ms. Musee when he arrived at the casting office, just as he had done when wanted to speak to Ms. Frank. Ms. Musee was notified that Mr. Tyler had come to the casting office unannounced. Ms. Musee agreed to talk with Mr. Tyler in her office, but alerted security because, after her last interaction with Mr. Tyler, she did not feel comfortable meeting with him alone. Two security personnel stayed just outside of Ms. Musee's office while she was talking to Mr. Tyler. There was no sign language interpreter present during the meeting because Mr. Tyler's visit was unannounced, and there was insufficient time to get an interpreter. Mr. Tyler verbally questioned Ms. Musee about his attempts at employment, and Ms. Musee again explained to Mr. Tyler the reason that he was not rehired was because of his restricted-hire status. Mr. Tyler was verbally responding to Ms. Musee's statements, which indicated to Ms. Musee that he was understanding what she was telling him. Several times Ms. Musee tried to end the conversation, but Mr. Tyler did not leave. Finally, Disney security stationed outside Ms. Musee's door intervened and asked Mr. Tyler to leave. Patricia Bryant (Ms. Bryant), who at the time was the area manager of security operations for the downtown Disney area, arrived on the scene, and she asked Mr. Tyler to leave. She asked Mr. Tyler if he understood what she was telling him, and he indicated that he did. Mr. Tyler failed to leave. Deputies from the Orange County Sheriff's Office showed up. Mr. Tyler was issued a trespass warning by Ms. Bryant and a deputy sheriff. The trespass warning is dated December 27, 2006. Mr. Tyler verbally acknowledged to Ms. Bryant that he understood the trespass warning, which advised him that he was not to go on Disney property. The trespass warning is in writing and states: "Your are hereby warned that you are not authorized, licensed or invited to be in these premises and may be arrested if you refuse to leave or return at any time in the future." There was nothing on the trespass warning showing an expiration date. Once the trespass warning is issued, it stays in place until it is lifted. In October 2007, Mr. Tyler and his roommate, Arden Bird (Mr. Bird), who is deaf, went to a kennel club located on Disney property. There was some dispute concerning the charges for the dogs that Mr. Tyler and Mr. Bird had boarded at the kennel. Mr. Tyler went to assist Mr. Bird with the communications. Mr. Tyler was aware that the kennel was located on Disney property. He and Mr. Bird discussed whether Mr. Tyler should go to the kennel club because of the trespass warning, and they concluded that it would not be in violation of the trespass warning.2/ Staff at the kennel club called Disney security to come to the kennel club because Mr. Tyler previously had been given a trespass warning. Carolyn Truluck (Ms. Truluck), who, at that time, was an investigator for Disney security, came to the kennel club. She requested a copy of the trespass warning from security. When she confirmed that a trespass warning had been issued, she called the Orange County Sheriff's Office and requested a deputy to come to the scene. A deputy arrived and placed Mr. Tyler under arrest for trespassing. Ms. Truluck was unaware of any claims of discrimination by Mr. Tyler, and she was not directed by anyone in the human resources department of Disney to call for a deputy. Her actions were based on the prior issuance of a trespass warning and Mr. Tyler's appearance on Disney property despite the trespass warning. On October 15, 2008, Mr. Tyler filed an Employment Charge of Discrimination with the Commission, alleging Disney discriminated against him based on his disability in the following ways: On or about October 27, 2007, I was retaliated against by being issued a Trespass Warrant. On or about September 20, 2007, I was denied employment. * * * The position of Houseman was an open and available position which I was qualified for and I applied. I was denied employment and the position. I complained to Ms. Bekki Musee, Team Leader, Casting Operation Support[,] about my disability and the need for an interpreter, she refused to provide this assistance. In October 2007, I was subsequently issued a Trespass Warrant by the company. I believe that my Disability and the fact that I complained of what I believed to be discriminatory treatment led to the retaliatory actions taken against me.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Mr. Tyler's Petition for Relief. DONE AND ENTERED this 20th day of April, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 20th day of April, 2011.
The Issue Whether the Respondent, Cardinal Apartment Management Group, unlawfully discriminated against Petitioner, Guy Norris, on the basis of handicap.
Findings Of Fact At all times material hereto, Petitioner was employed by Respondent as a resident maintenance manager. At the appointed time and place of hearing, Petitioner failed to appear and present any evidence in support of his petition for relief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be issued dismissing the Petitioner's charge of discrimination against Respondent. DONE and ENTERED this 19th day of February, 1991, in Tallahassee, Leon County, Florida. VERONICA D. DONNELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1991. COPIES FURNISHED: H. Alan Arfken, Esquire ARFKEN & ELLIOTT Flatiron Building, Suite 300 707 Georgia Avenue Post Office Box 6337 Chattanooga, Tennessee 37401 Guy Norris 5757 66th Street, North, Lot #33 St. Petersburg, Florida 33709 Ronald M. McElrath, Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1570 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1570
