The Issue Whether Petitioner was constructively terminated from her employment with Respondent employer by virtue of an unlawful and discriminatory employment practice, i.e., failure to accommodate her alleged handicap/disability.
Findings Of Fact Petitioner filed, date not of record, a discrimination complaint with the Florida Commission on Human Relations. The Complaint was investigated. A "Determination: No Cause" was entered by the Commission on July 19, 2001. Petitioner filed, date not of record, a Petition for Relief. The cause was referred to the Division of Administrative Hearings for a disputed-fact hearing on or about August 7, 2001. Petitioner failed to respond to the Division's Initial Order herein. The case was scheduled for hearing in Ocala, Florida, on October 26, 2001, in accord with Respondent's Response to the Initial Order. Respondent moved for a continuance. Petitioner did not respond to the Motion. The unopposed Motion was granted by an Order entered October 4, 2001, and the case was rescheduled for final hearing in a new location, also in Ocala, Florida, on November 13, 2001. Respondent complied with the Order of Pre-Hearing Instructions. Petitioner did not. Respondent filed a Motion to Dismiss Petition or in the Alternative Motion to Exclude Petitioner's Witnesses and Exhibits, due to Petitioner's failure to comply with the Order of Pre-Hearing Instructions. At the time and place appointed for the final hearing on November 13, 2001, Petitioner did not appear. After the undersigned and all representatives of Respondent had been waiting at the designated location in Ocala, Florida, for a half hour, Respondent's counsel informed the undersigned that his Tampa office had just relayed a message to him, via cell phone, that Petitioner's husband had telephoned to say he and Petitioner were awaiting the hearing in a different location, but that the husband had left no information as to where he was nor any telephone number where he could be reached. The undersigned then telephoned her office. The secretary to the undersigned had received no phone call or other communication from Petitioner nor from anyone on Petitioner's behalf. In an abundance of caution, the secretary to the undersigned telephoned the location which had been previously scheduled for final hearing on October 26, 2001, by a Notice of Hearing entered and mailed on August 27, 2001, and determined that anyone who had been in that location had left it. At approximately the same time, Respondent's counsel was relayed a telephone message from his Tampa office that Petitioner's husband had again telephoned to say he was leaving "the conference room." When Petitioner had not appeared at the correct location fifty minutes after the time scheduled for the commencement of the final hearing, Respondent made an oral motion to dismiss because of Petitioner's failure to appear and failure to meet her burden of proof pursuant to Section 760.10, Florida Statutes. This oral motion, as well as Respondent's previous written Motion, was taken under advisement, pending responses to an Order to Show Cause. On November 14, 2001, an Order to Show Cause was entered, requiring Petitioner to show cause, in writing, filed with the Division of Administrative Hearings, within ten days, why she did not appear on November 13, 2001, as required by the Order entered October 4, 2001. That Order to Show Cause is attached and incorporated herein by reference as Exhibit A. Petitioner failed to timely show cause. She has filed no pleading or paper of any kind as of the date of entry of this instant Recommended Order.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
The Issue Whether Respondent discriminated against Petitioner on the basis of her race or color in violation of Chapter 760, Florida Statutes (2003); and whether Respondent retaliated against Petitioner in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Respondent, whose correct name is AIG Marketing, Inc. is a subsidiary of American International Group, Inc. ("AIG"). Respondent supplies marketing services for AIG. Respondent is an employer as defined by Subsection 760.02(7), Florida Statutes (2003). Petitioner is an African-American female. She began working for Respondent as an "insurance consultant" on April 22, 2003. Petitioner resigned her employment by letter dated February 17, 2004. Petitioner's last day at work for Respondent was March 2, 2004. Petitioner worked at Respondent's facility in Seminole County, Florida. An insurance consultant's primary job responsibility is to answer incoming telephone calls from prospective customers seeking information concerning automobile insurance. Respondent has an anti-discrimination and anti- retaliation policy. Respondent has a published policy specifically prohibiting discrimination and retaliation. The policy states that discrimination, including that based upon race and color "is strictly prohibited." The policy states that any employee found to have engaged in any form of discriminatory harassment will be subject to appropriate disciplinary action, up to and including termination. The policy states that Respondent will not tolerate any retaliation against any employee for making a complaint, bringing inappropriate conduct to the Respondent's attention, or for participating in an investigation of an alleged act of harassment. Respondent's management employees support and enforce its policies against discrimination and retaliation. After she was hired in April 2003, Petitioner received training for a period of approximately 10 weeks. Thereafter, on approximately July 1, 2003, she was placed on a "team" with other insurance consultants. The Petitioner's immediate supervisor was Melody Garcia-Muniz. While on Ms. Garcia-Muniz' team, Petitioner also received instruction, also called "coaching," from Nirmala Sookram. Ms. Garcia-Muniz is an Asian female. Ms. Sookram is an Indian female. Approximately one month after she was placed on Ms. Garcia-Muniz' team, on or about August 2, 2003, Petitioner had a confrontation with Ms. Sookram. Thereafter, by correspondence dated August 2, 2003, Petitioner wrote Respondent's Human Resources Office and Ms. Garcia-Muniz complaining of "the work condition, I have been experiencing with team leader Nirmala Sookram." As a result of Petitioner's August 2, 2003, letter, Respondent replaced Ms. Sookram as the team coach with another coach. Respondent also immediately investigated the allegations contained in Petitioner’s August 2, 2003, correspondence. This investigation was conducted by Ms. Garcia-Muniz and another management employee Dawn Bronwnlie. No evidence of discrimination was revealed. In approximately September or October 2003, Petitioner was transferred from Ms. Garcia-Muniz' team to a team supervised by Beverly Swanson. Ms. Swanson is a Caucasian female. This transfer was done pursuant to a reorganization of Respondent's shifts. Respondent had two business practices which are relevant to this matter and which are acknowledged by Petitioner. First, Respondent requires that its insurance consultants respond to in-bound calls from customers as soon as possible. Respondent has a policy prohibiting insurance consultants from making out-bound calls if there are in-bound calls waiting. Out-bound calls would typically be follow-up calls between an insurance consultant and a prospective customer. Second, Respondent has a policy prohibiting one insurance consultant from accessing an insurance quote being worked on by another insurance consultant. This policy is intended to prevent one insurance consultant from "stealing" a customer from another insurance consultant. Petitioner consistently violated Respondent's policy against making out-bound calls when in-bound calls were waiting. She was counseled with respect to this policy on August 5, 2003. Petitioner continued to violate this policy and received a verbal warning on September 19, 2003. The verbal warning confirmed Petitioner had been counseled in August with respect to this policy. The verbal warning confirms that for a 14-day period Petitioner made 649 out-bound calls while only receiving 444 in-bound calls. The verbal warning stated that at no time should Petitioner's out-bound calls exceed her in-bound calls. With respect to Respondent's policy prohibiting one insurance consultant from accessing a quote for a customer of another insurance consultant, Petitioner was advised on November 7, 2003, about the proper procedures to handle such situations. Though Petitioner claimed that she did not know accessing a quote for another insurance consultant's customer was inappropriate until November 7, 2003, she admits that on that date she was so advised and from that date forward knew that it was a violation of Respondent's policies. Nonetheless, on December 10, 2003, Petitioner's then supervisor Ms. Swanson was advised that Petitioner had accessed a quote for another insurance consultant's customer in violation of Respondent's policies. This occurred on December 9, 2003. Two days later on December 12, 2003, another insurance consultant, Steve Mintz advised Ms. Swanson that Petitioner had also accessed one of his insurance quotes. Ms. Swanson investigated and determined that Petitioner had, in fact, violated Respondent's policies by accessing the quote of another insurance consultant's customers. As part of that investigation, Ms. Swanson interviewed Petitioner and reviewed reports. Petitioner's statements were inconsistent with the reports, and Ms. Swanson ultimately determined that Petitioner had been untruthful with her during the investigation. As a result of Petitioner's violation of the policy, on December 16, 2003, Ms. Swanson issued Petitioner a written warning for inappropriate sales conduct. The written warning noted that Ms. Swanson had thoroughly investigated "several" complaints about Petitioner's sales conduct and confirmed that Petitioner had processed sales incorrectly despite several discussions with other supervisors as well as Ms. Swanson. The written warning also confirmed that Petitioner had been untruthful with Ms. Swanson during Ms. Swanson's investigation into this matter. As a result, Ms. Swanson placed Petitioner on a written warning which advised her that should her practices continue, her employment would be terminated. In accordance with Respondent's policies, Petitioner was ineligible to post for a position, switch shifts, or work overtime. Immediately after the December 16, 2003, meeting during which Ms. Swanson issued the written warning, Petitioner contacted Respondent's Human Resources department. As a result, Louisa Hewitt, Respondent's Human Resources professional, undertook an independent investigation to determine the accuracy or inaccuracy of Ms. Swanson's findings which formed the basis for the written warning. Ms. Hewitt is a Hispanic female. Ms. Hewitt's independent investigation determined that Petitioner had, in fact, improperly processed sales and inappropriately accessed quotes. Accordingly, Ms. Hewitt met with Petitioner on December 31, 2003. In attendance was another of Respondent's managers Patricia Brosious. During this meeting, Ms. Hewitt advised Petitioner that the written warning was appropriate. Despite the fact that the December 16, 2003, written warning prohibited Petitioner from switching shifts, Respondent allowed Petitioner to switch shifts in order to allow her to care for an ill relative. This request was received on or about December 21, 2003, and granted on December 22, 2003. Dawn Bronwnlie (one of the Respondent's assistant managers who investigated Petitioner's August 2003 complaint) requested the accommodation on Petitioner's behalf by e-mail dated December 21, 2003, sent to, among others, Petitioner's immediate supervisor Ms. Swanson. Petitioner and Respondent management employee Patricia Brosious were copied on the e-mail. Approximately one month later, Petitioner again requested a shift change. By e-mail dated January 26, 2004, Respondent's management employee Patricia Brosious informed Petitioner of all of the shifts that were open at that time to which a transfer was possible. Ms. Brosious copied Ms. Hewitt and Timothy Fenu on this e-mail. Mr. Fenu is the manager of Respondent's facility in Lake Mary, Florida, and the highest- ranking employee of Respondent at that facility. On January 27, 2004, Petitioner responded to Ms. Brosious' e-mail, which had advised Petitioner of the shifts that were available. In response, Mr. Fenu sent an e-mail to Petitioner advising her that the shifts offered to her were based on business need and current unit sizes. Mr. Fenu advised Petitioner that her response was inappropriate and requested her to advise Respondent if she desired to change shifts. After initially scheduling a meeting with Mr. Fenu, Petitioner canceled the meeting by e-mail dated February 10, 2004. Petitioner resigned her employment February 17, 2004. Petitioner presented no direct evidence of discrimination or statistical evidence of discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 12th day of January, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cynthia McGee Post Office Box 550423 Orlando, Florida 32855 Daniel C. Johnson, Esquire Carlton Fields, P.A. Post Office Box 1171 Orlando, Florida 32802 Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Petitioner properly issued a Stop-Work Order and Amended Order of Penalty Assessment against Respondent for failing to obtain workers' compensation insurance that meets the requirements of chapter 440, Florida Statutes.
Findings Of Fact The Division is a component of the Department of Financial Services. It is responsible for enforcing the workers' compensation coverage requirements pursuant to section 440.107. At all times relevant to this proceeding, Respondent was a corporation registered to do business in Florida. Respondent's office is located at 803 West Oakland Boulevard, Apartment A4, Walton Manors, Florida 33332. Respondent was actively engaged in performing carpet installation during the two-year audit period from August 6, 2013, to August 5, 2015. On August 5, 2015, Michael Cicio ("investigator" or "Cicio"), compliance investigator for the Division, conducted a random compliance check at a residential job site, 11115 Rockledge View Drive, West Palm Beach, Florida ("Rockledge residence"). Cicio observed two men working in the dining room/living room area cutting and laying tile on the floor. A third worker was in the hallway. The workers were identified as Paulo Silveira ("Silveira"), Fabiano Bauer ("F. Bauer"), and Paulo Ricardo Bauer ("P. Bauer). Cicio attempted to interview Silveira, who requested Spanish because he did not speak English. Due to the language barrier, Cicio had his supervisor, Odileinis Gibson ("supervisor" or "Gibson"), translate for him. Gibson spoke Spanish fluently and interviewed the workers in Spanish translating what she believed they said to English for Cicio. When Gibson inquired in Spanish, the workers originally stated they were employed by Carpets by Mr. Jason, Inc. ("Carpets"). Each worker also told Cicio and Gibson ("investigators") Thiago hired them. Cicio was familiar with Carpets and was aware that the company typically subcontracted and did not have employees that install at their job locations. Silveira left the interview area, walked outside, and came back inside after making a phone call. When Silveira returned, he told the investigators that he was employed by a gentleman named Thiago, and Thiago had expressed to him to tell the investigators they were employed by Lopes. Silveira also provided Thiago's phone number to the investigators. During the investigation, Gibson saw text messages between the workers and Thiago for amounts of money, location to report to, and what they were to do at the location. The workers admitted that Thiago promised them $130.00 cash per day. Gibson placed a phone call to Thiago in Spanish. Gibson wrote down the phone interview so that Cicio could understand the conversation. Thiago informed Gibson that all the workers at the residence worked for him and were his direct employees. Gibson understood Thiago to say he was the business owner of Respondent. Thiago spelled the business name with a "z" at the end instead of with an "s" during the interview. Gibson also believed Thiago said initially that he did have his own business. When Gibson questioned Thiago about whether he had workers' compensation policy, he replied no. Cicio waited for Thiago to call the investigator back but Thiago did not return the call. While at the Rockledge residence, Silveira also provided the telephone number of Carlos Oquendo ("Oquendo"), who was the site supervisor. Cicio then contacted Oquendo, owner of Juansa Corp. Oquendo responded to the interview and said the workers on-site were subcontractors under Carpets for the business of Lopes. When asked about the owner of Lopes, Oquendo stated that he dealt with Thiago Cabral ("Cabral"). After that, Oquendo hung up the phone. The investigators called Oquendo back several more times, and each time the phone was disconnected. Next, Gibson telephoned Carpets and had several conversations from some person (purportedly the office manager, Lisa), who informed Gibson that Oquendo is a subcontractor paid by Carpets to his own company. The female on the phone said Oquendo supervises the tiling and flooring companies for Carpets and is overseeing the job for the Rockledge residence under construction. The person speaking on behalf of Carpets also told the Division that an active contract with Lopes exists for the Rockledge residence and she had previously met Neto who was accompanied by Thiago. The female from Carpets provided investigators with the phone number for the owner of Respondent, Auto Lopes Ferreira Neto ("Neto"). Gibson called Neto and interviewed him. Neto denied doing any work on-site at the Rockledge residence, and indicated that he did not know anything about the job or the workers. The Division's case narrative detailed the telephone interview between Gibson and Neto as: Due to an initial language barrier Supervisor Gibson spoke with Auto L. Ferreira Neto at which time she identified herself, the location she was calling about and the names of the employees found on site. Mr. Ferreira Neto said that Thiago was his sub-contractor for numerous jobs but he had no knowledge of the Bay Hills sub-development job; further stating that Thiago worked previously at Bay Hills a sub-contractor of his, approximately three to four months prior. Mr. Ferreira Neto was informed that she had spoken with Lisa at Carpets by Mr. Jason, Inc. who told her that Lopes Carpet Corp. is going to get paid for the job. Mr. Ferreira Neto insisted he had no knowledge that the job was being done and further said that it has been months that he hadn't spoken with Thiago who no longer worked for him. During the conversation, Mr. Ferreira Neto stated that Thiago had his own company by the name of Best Way General Services, Inc. Oquendo called Gibson back later on August 5, 2015, and told her he did not speak English and his phone was broken and dropped calls. He informed Gibson "Thiago had previously worked at Bay Hills for Lopes Carpet Corp., so he called him and offered him the job of Lot #8. When he offered Thiago the job, Thiago affirmed that he worked for Lopes Carpet Corp." Cicio later checked the Division of Corporations' website and learned that Thiago was the owner of Best Way General Services, Inc. ("Best Way"), and that the company was an inactive business that did not have a workers' compensation policy. When Cicio ran Best Way in the Coverage and Compliance Automated System ("CCAS") database, it indicated that Best Way had an expired construction workers' compensation exemption for Cabral with effective dates from July 18, 2013, through July 18, 2015. Cicio also checked the Division of Corporations' website for Respondent and learned that Neto was the owner of Respondent, an active company. Next, Cicio checked the CCAS database to verify coverage for Respondent. Cicio learned there was an active construction-based workers' compensation exemption for Neto but no workers' compensation policy on file for Respondent. Cicio then informed Neto that everyone was pointing fingers at him as being the employer for the Rockledge residence job and Neto needed to come to the office on August 6, 2015, and bring Cabral with him to meet about it with Juansa Corp. On August 6, 2015, the investigators continued the investigation. They met and then interviewed Neto, Cabral, and Oquendo in the same conference room. The investigators collected their identifications to ensure they were in fact the owners listed in the Division of Corporations. After identifying them, the investigators provided their business cards and stated the reason for the meeting, to find out about the workers at the Rockledge residence. Gibson started the conversation with Neto in Spanish but changed to English so that Cicio could understand. Upon inquiry, Neto acknowledged he had known Cabral for several years and periodically had him as an employee or subcontractor. The investigators understood Neto to explain his job arrangement with Cabral as one that allows Cabral to do jobs for Respondent charging Cabral a percentage, usually 20 percent, to use his company. Neto admitted that he had not checked the Division of Corporations for Cabral's business exemption in approximately two years. During the meeting, Cabral was interviewed in Spanish even though he speaks Portuguese. The investigators believed that Cabral confirmed that he and Neto had a business arrangement where Cabral paid Neto a percentage to let him use his business. At the August 6, 2015, meeting, Oquendo spoke English even though he had claimed the day before that he only spoke Spanish. The investigators concluded from the meeting and interviews with Neto, Cabral, and Oquendo that Respondent was contracted by Carpets, through Juansa Corp. to install the tile at the Rockledge residence because the investigators mistakenly believed that Cabral and Neto had told them that they had a business arrangement where Cabral would give Neto a percentage for using Neto's business name. Based on Cicio's belief that Lopes was the subcontractor employer for the workers at the Rockledge residence August 5, 2015, Cicio personally served Respondent a Stop-Work Order and Request for Production of Business Records for Penalty Assessment Calculation asking for Respondent's business and financial records for the preceding two years in order to determine the amount of Respondent's payroll for purposes of assessing a penalty pursuant to section 440.107(7)(d)1. Respondent failed to provide the Division with the requested business records. On September 14, 2015, Eunika Jackson ("Jackson"), penalty auditor, was assigned by the Division to calculate the penalty. Jackson did not have direct knowledge of the underlying facts. Jackson verified in CCAS that Respondent had a workers' compensation policy in effect. She also verified that Neto had an exemption but found that Neto did not have a valid exemption from February 14, 2015, to March 2, 2015. Jackson used the "Scopes Manual" published by the National Council on Compensation Insurance to ascertain the classification of Respondent's business, based upon the nature of the goods and services it provided. Jackson determined Respondent's business fell within Class Code 5348. For the penalty calculation, Jackson imputed wages mistakenly for Cabral for a total penalty amount of $543.60 and correctly for Neto for a total penalty amount of $513.40 according to Exhibit 2, page 6. Jackson also erroneously imputed weekly payroll for Silveira, F. Bauer, and P. Bauer because she had been incorrectly informed that they were Respondent's employees with Cabral. Jackson calculated the amounts of the proposed penalty using the five aforementioned names believing they were Respondent's employees and Jackson concluded that Respondent's penalty totaled $63,132.28. On or about October 22, 2015, the Division served an Amended Order of Penalty Assessment on Respondent. The penalty amount assessed against Respondent is $63,132.28. At the hearing, an interpreter translated Portuguese accurately for Neto who credibly explained he had no knowledge of the Rockledge residence jobsite and nothing to do with the job. Additionally, Neto said he had never been to the Rockledge residence. Neto denied Cabral was working for him on August 5, 2015. Neto further explained that not only did he not provide Cabral permission to accept work on behalf of Respondent at the Rockledge residence, Neto has never employed Silveria, F. Bauer, or P. Bauer. Additionally, Neto does not know the three workers. At hearing, Neto also credibly admitted doing work for Carpets in April 2015 with Cabral. Neto explained that he worked directly with Carpets without the intermediary Oquendo. Cabral was paid 20 percent less than Neto for the April Carpets' job.1/ Neto answered on cross that he did three jobs with Best Way. Neto also clarified through the interpreter at hearing that he speaks a little English and had tried to tell the investigators on August 6, 2015, that he had nothing to do with the job and that Cabral "had done some job for me before." Neto further explained at hearing that when he tried to explain it to Gibson she acted annoyed and did not allow others to talk much at the meeting. Cabral explained at the hearing through a Portuguese interpreter that he does not speak Spanish or English well and that he did not understand everything Gibson was saying in Spanish when she interviewed him previously on the phone and in the meeting on August 6, 2015. Cabral admitted having worked for Oquendo for about a week in July 2015. Cabral clarified that he had Oquendo write his paycheck no. 1044 in the amount of $900.00 to Respondent to pay back monies Cabral owed Neto.2/ At hearing, Cabral also denied working at the Rockledge residence, but admitted that he knew and obtained the workers for the job site because "Carlos [Oquendo] asked me to find people to work for him on the daily basis and I found the three employees and I left for him [sic] over there." Cabral explained further that Respondent did not provide employees for the Rockledge residence. Cabral also indicated that he was not a representative for Respondent on August 5, 2015. No one from Carpets testified at hearing and the substance of the conversation the investigators had with the person (purportedly the office manager, Lisa), as with all the testimony about purported statements, constitute hearsay that was not corroborated by other credible evidence in the record. As such, the substance of these conversations is not found as facts, other than to establish that Petitioner's investigator had a conversation with a person purporting to represent Carpets. The credible evidence in this case demonstrates conclusively that neither Cabral nor the workers in this case, Silveira, F. Bauer, and P. Bauer, were employees of Respondent at the Rockledge residence for the August 5, 2015, job. In that regard, the Division failed to establish by clear and convincing evidence that Respondent was either the subcontractor or "employer" and the record fails to show that Respondent was "carrying on any employment" for workers' compensation purposes at the Rockledge residence on August 5, 2015. Subsequently, the record further demonstrates that the imputed weekly payroll wages were calculated improperly since neither the three workers observed on August 5, 2015, nor Cabral were Respondent's employees. Additionally, the only credible evidence established at hearing demonstrating a "person carrying on any employment" for Respondent would be the evidence showing Cabral worked in April 2015 for Respondent. The record is void of credible evidence to specify the other three periods Best Way worked for Neto. Nevertheless, the record also demonstrates Cabral had an exemption. Jackson properly excluded imputing an amount for wages during Cabral's exemption period of August 6, 2013, until July 18, 2015, as demonstrated in Exhibit 2, page 6. Jackson also accurately imputed wages for Neto from February 14, 2015, to March 2, 2015, the period he did not have an exemption, which penalty calculation totaled $513.40. The appropriate penalty for the full lawful period of imputation in this matter is $513.40.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, issue a final order canceling Respondent's Stop-Work Order, dismissing the Amended Order of Penalty Assessment, and assessing a penalty of $513.40 against Respondent for its failure to maintain the exemption required as set forth herein. DONE AND ENTERED this 18th day of May, 2016, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 May, 2016.
The Issue Whether the Respondent’s Career Service Grievance Policy Statement #92/93-HR-2, is an invalid exercise of delegated legislative authority, based on an alleged conflict with Section 447.401, Florida Statutes.
Findings Of Fact The Agency for Health Care Administration (Respondent) is a state agency and a public employer. The Respondent has adopted a grievance policy providing for the resolution of employment disputes within the agency. The policy provides that an aggrieved employee may have the grievance heard by a neutral committee. The committee makes a recommendation, which is subject to review first by a designee of the agency head, and then directly by the agency head. According to the policy at issue in this case, the agency head’s decision is generally the final step in the grievance process. Under some circumstances not found in this case, decisions may be appealed to the Public Employees Relations Commission. Another procedure permits some career service employees represented by a collective bargaining agent to utilize a grievance process set forth under the master contract between the state and the bargaining agent. The union grievance provides that the agency head’s decision is appealable to the state labor relations director who has final authority over the dispute. On December 30, 1997, Diane Gossett (Petitioner), a career service employee of the Respondent, received a written reprimand from her supervisor who alleged Ms. Gossett’s conduct was inappropriate. The details of the alleged conduct were not offered at hearing. Ms. Gossett is an "excluded employee" under the State Master Contract, and therefore is not entitled to use the union grievance procedure. As provided in the Respondent’s grievance policy at issue in this case, Ms. Gossett filed a grievance challenging the written reprimand, and seeking to have it removed from her personnel file. A neutral grievance committee was appointed which reviewed her grievance. The committee recommended that the reprimand be removed from the Petitioner’s personnel file. The agency head’s designee reviewed and rejected the committee recommendation. The agency head ratified the designee’s decision. The Petitioner then challenged the agency’s compliance with personnel rules by filing a request for review with the Department of Management Services. The Department found no deviation from agency rules and refused the Petitioner’s request for additional review. The Petitioner then filed her Petition to Invalidate an Existing Agency Rule with the Division of Administrative Hearings.
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
The Issue Whether Petitioner, Willie Foster, Jr., was discriminated against because of his race, age, and sex by Respondent, Pepsi-Cola Bottling Company, when Respondent failed to hire him, in violation of Subsection 760.10(1)(a), Florida Statutes (2004).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Responding to an advertisement, Petitioner and Jennifer Daniels traveled together to Respondent's Orlando location and applied for employment as merchandisers on August 1, 2003. Petitioner is a black male, who was 45 years old at the time of his application. Daniels is a white female, who was 25 years old during that same time. After Petitioner and Daniels completed their application forms and filled out other pre-hire paperwork, Petitioner and Daniels left Respondent's premises. Respondent later contacted each of them and asked them to appear to take a written employment test. Petitioner and Daniels took the same test on August 7, 2003. In August 2003, Respondent utilized a pre-employment written test devised by an independent company, Saville and Holdsworth, Ltd. This independent company was solely responsible for scoring the tests and compiling the test results. Respondent played no role in either of these tasks. Respondent's Human Resources Department merely administered the test, but did not possess the answer key to the test. Merchandiser applicants, such as Petitioner, take a two-part written test. The first portion of the test entitled, "Working with Words," was a timed reading comprehension test. The second portion was entitled, "Work Styles Questionnaire," and was a tool designed to determine whether the applicant was suitable to the position. Respondent uses a standard procedure in its hiring process, including the administration of the pre-employment test. First, only those applicants who satisfy established criteria, such as a stable work history, are offered the opportunity to take the written test. Second, only those applicants who pass the written test are allowed to progress to the next step of the hiring process, which is participating in an interview. No applicant who has failed the written test has ever been allowed to progress to the interview phase, nor has been hired by Respondent despite failing the test. However, applicants who fail the test are allowed to reapply and take the test again after six months. Respondent has hired individuals who, after failing the initial written test, reapplied after six months and then passed the test. Petitioner failed the written test he took on August 7, 2003. On that same date, Respondent notified Petitioner by letter that he failed the selection test, but could reapply and take the test again after six months. Petitioner never reapplied for employment at Respondent. The test administration, scoring, and notification process used by Respondent with respect to Petitioner's application was consistent with its standard procedures. Petitioner's answer sheets were faxed to Saville and Holdsworth, Ltd., on the day he took the test, August 7, 2003. Respondent received the test results from the independent company by fax on that same day. Also, on that same date Respondent forwarded a form letter to Petitioner notifying him that he failed the test. This sequence of events is not unusual in that Seville and Holdsworth, Ltd., sometimes scored the tests and provided the results to Respondent as quickly as five minutes after receiving the faxed answer sheets from Respondent. Daniels passed the written test. On the same day she took the test, Respondent notified Daniels by telephone that she had passed and scheduled her for an interview. The fact that Respondent's Human Resources coordinator apprised Daniels of her test results by telephone on the very day she took the test is not unusual. Respondent's testing procedures were audited by the Office of Federal Contract Compliance Programs, which found no discrimination with respect to the company's merchandiser group. At least 50 percent of Respondent's merchandisers are minorities. Of those applicants who applied for merchandiser positions in August 2003, the individuals whom Respondent screened-out initially and who were not allowed to take the written test included three blacks, three whites, one Hispanic, and one applicant whose minority status was unknown. The individuals hired as merchandisers from August 2003 to January 2005 included 20 whites, 11 blacks, and 13 Hispanics or other minority classifications. From June 1, 2003, through November 30, 2003, Respondent hired six whites, four blacks, four Hispanics, and one other employee. It is rare for a female to apply for a merchandiser position with Respondent. Similarly, merchandiser applicants typically are younger, rather than older individuals. From August 2003 to January 2005, Respondent hired one female and five age-protected (over the age of 40) individuals. Every merchandiser hired by Respondent during the relevant time period passed the written test; no applicant who failed the test has been hired. In addition, on his application form, Petitioner indicated the reason he left the employment of the Orange County Library was a "labor dispute." He also indicated his reason for leaving Universal Studios' employment was that his "contract ended." It was later determined that, in fact, both the Orange County Library and Universal Studios terminated Petitioner for insubordination. The employment application Petitioner signed included the language, "I understand that the information I provide in this application must be complete and accurate to the best of my knowledge. I realize that falsification and/or incomplete information may result in my employment being terminated now or at any time in the future." At the time of the hearing, Respondent considered Petitioner's statements of why he left his previous jobs as falsifications of the application. Respondent did not discover Petitioner's falsifications during the hiring process. Consistent with its policy, had Respondent discovered that Petitioner falsified his employment application during the hiring process, the application would not have been considered further. Similarly, if Respondent had hired Petitioner and discovered the falsification later, Respondent would have terminated Petitioner. Petitioner failed to prove that Respondent engaged in discriminatory hiring practices when Respondent failed to hire him in August 2003.
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 which denies the Petition for Relief. DONE AND ENTERED this 7th day of October, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Willie Foster, Jr. 5542 South Rio Grande Avenue Orlando, Florida 32839 Susan K. McKenna, Esquire Jackson Lewis LLP 390 North Orange Avenue, Suite 1285 Post Office Box 3389 Orlando, Florida 32802-3389 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent is guilty of sex discrimination in employment.
Findings Of Fact Petitioner was born in Puerto Rico and lived there 11 years. She speaks English fluently with a Spanish accent. Respondent is a wholesale distributor of building materials. Four- fifths of its customers are retail outlets, and the remainder are building contractors. Respondent is the largest such distributor in the Southeast and is a mid- to large- size corporation. Respondent is an employer within the meaning of Chapter 760. Answering a want ad in the newspaper, Petitioner sent David Russell, who is Respondent's controller, a resume and letter of recommendation. She had two interviews with Mr. Russell and was hired. It is unclear whether Petitioner's Puerto Rican background came up during the interview. Evidently unknown to Petitioner at the time, each of four other interviewees was offered the job and refused it before it was offered to Petitioner. Petitioner began work with Respondent on May 21, 1989, as an invoicing clerk. Her responsibilities included invoicing, copying, mailing, filing, and microfilming. Petitioner began work at an hourly rate of $5.50, which was raised after the completion of a 90-day probationary period to $6.00. After one year, she received a raise to $6.50 per hour, which remained her hourly rate through her date of termination. The raise resulted from the favorable recommendation of Mr. Russell to the president of Respondent. Mr. Russell earlier gave Petitioner preferential treatment when he recommended to the president that Respondent lend her over $1000 for surgery. Normal company policies did not authorize such loans to new employees, which Petitioner was at the time. The loan was made and later repaid. An important part of Petitioner's duties was to learn how to operate a Burroughs L-9000, which is a dedicated, automated ledger machine. The L-9000 dates back to the early days of office automation. Invoices are run through the L-9000, which performs simple mathematical functions to extend total costs based on number of units and price per unit, total costs per invoice, and total invoiced costs per day and per month. Inputting data into the L-9000 is a time-consuming process. Corrections take even more time, as each incorrect entry has to be deleted and the correct entry added. The machine has other problems, such as the loss of data during power outages. When Petitioner joined Respondent, she knew nothing about the L-9000. At the time, Shirley Rehrig, who had been employed by Respondent since October, 1985, was operating the machine. Ms. Rehrig had joined the company as an invoice operator on the L-9000 and was, by May, 1989, supervisor of the Invoicing Department. The Invoicing Department works closely with the Pricing Department, which are both part of the Accounting Department. At the time, employees in the Pricing Department manually took prices for invoiced items from books and entered them in handwriting on invoices. The process was prone to error through mistranscriptions of quantity, price, or cost. Pricing errors were only one source of invoicing errors. Additional errors could arise in invoicing, such as by misreading the handwritten information provided by the Pricing Department or misentering the data. In May, 1989, there were two persons working in the Pricing Department and, counting Petitioner, two persons working in the Invoicing Department. Speed and accuracy were important characteristics for the L-9000 operator. Petitioner's early experience with the machine was frustrating for her, Ms. Rehrig, and Mr. Russell, who was in charge of the Accounting Department. Despite repeated demands from Ms. Rehrig and Mr. Russell that she work more slowly, Petitioner continually tried to operate the machine as fast as Ms. Rehrig could operate it. The result was that Petitioner's error rate was unacceptably high and thus her processing of invoices was relatively slow. Ms. Rehrig became very upset with Petitioner and several times complained about her to Mr. Russell. Perhaps recalling the difficulty he had had filling the position, Mr. Russell tried to calm Ms. Rehrig and continually counselled Petitioner to work more slowly. Mr. Russell is a mild-mannered man, who showed great patience with his employees. He tolerated a longtime employee in the Pricing Department who, partly due to poor health, was often volatile and one time threw invoices at Ms. Rehrig. Petitioner gradually began to gain competence with the L-9000. However, she was unable to erase completely the perception of her coworkers, but not Mr. Russell, that she was the source of more invoicing errors than for which she was in fact responsible. Petitioner's high error rate gave her one advantage, though. She knew how to correct errors, which were inevitable in the invoicing process, especially given the peculiarities of the L-9000. In July, 1990, Respondent hired Alice Sweet to work in the Invoicing Department. Petitioner trained Ms. Sweet in the use of the L-9000, and soon Petitioner and Ms. Sweet were alternating on the machine. Ms. Sweet was a very good worker who was able to concentrate on her work better than Petitioner could. However, she was more timid than Petitioner in trying to fix the mistakes that she did make and often required the assistance of Petitioner or Ms. Rehrig in making the corrections. When Ms. Sweet was hired, Ms. Rehrig was given a chance to learn pricing, while still supervising invoicing. The division between the Invoicing and Pricing Departments, which are really subdepartments, is not as clear as the line between Accounting and other true departments. When Ms. Rehrig told Mr. Russell in the summer of 1991 that she would be quitting, he asked her if Petitioner or Ms. Sweet should take Ms. Rehrig's position in pricing. Ms. Rehrig recommended Ms. Sweet because she was more focused and methodical than Petitioner, but also because Petitioner could handle the L-9000 on her own and Ms. Sweet could not. Mr. Russell made the changes that Ms. Rehrig had recommended after she left the company in November, 1991. Ms. Rehrig was not contacted subsequently about problems with the L-9000 as long as Petitioner remained with the company. In October, 1991, Felicia Jones, who is an African- American, was hired by Respondent through Kelly Temporary Services. Ms. Jones was assigned to the Invoicing Department where she reviewed invoices and Petitioner's output from the L-9000. After Ms. Rehrig's departure, Petitioner alone operated the L-9000. Although improved from her early days on the machine, Petitioner continued to make errors on the L-9000, and Mr. Russell continued to ask that she improve her performance on the machine. During this time, Respondent was undergoing difficult financial times. The depression in the construction industry sharply impacted Respondent's business. Total sales were down about 1 percent between fiscal years-end June 30, 1989, and June 30, 1990. Sales plummeted 14.4 percent between fiscal years- end 1990 and 1991, and slid 4.4 percent between fiscal years-end 1991 and 1992. Although still showing earnings, profits between fiscal years-end 1990 and 1991 were almost halved, and profits between fiscal years-end 1991 and 1992 slipped another 18 percent. By sometime in the first half of 1989, Respondent had been adopted cost-containment strategies to deal with poor market conditions. Examples of Respondent's efforts included controlling the purchasing of supplies, requiring bids on goods and services, and using inventory-control mechanisms. These strategies proved ineffective in the face of seriously deteriorating market conditions in 1991. Finally, Respondent turned to reductions in force. When voluntary attrition proved insufficient, Respondent implemented layoffs. Layoffs throughout the company in each of its offices throughout the state reduced employment from 131 persons to 94 persons from January, 1989, to December, 1992. The impact in the Accounting Department was a reduction in the average workforce of 12 persons from January, 1989, through January, 1992, to 10 persons in January, 1992, and 8 persons in December, 1992. After Ms. Rehrig's departure, the president of Respondent instructed Mr. Russell to identify an employee to layoff should the president decide to make layoffs. The most likely candidates were Petitioner and Ms. Sweet. Petitioner decided that he would lay off Petitioner because Ms. Sweet was trained in invoicing and pricing and could run the L-9000, even though she was less able to correct errors than could Petitioner. Mr. Russell decided not to lay off Ms. Jones, who remained employed with Respondent through Kelly Temporary Services. Even though Respondent paid Kelly Temporary Services $7.50 per hour for Ms. Jones, Respondent owed no benefits for her. Estimating that benefits cost $1.91 per hour, Mr. Russell figured that Petitioner, who was then receiving $6.50 per hour, was costing Respondent a total of about $8.41 per hour--almost one dollar more per hour than Ms. Jones cost. The Pricing and Invoicing Departments could withstand a reduction in force. After Ms. Rehrig's departure, there had been times that Petitioner had nothing to do in invoicing. When Petitioner was terminated in April, 1992, Ms. Sweet returned to operate the L-9000 for one year. During that time, she worked exclusively in the Invoicing Department, but only about four of five days a week were required for work on the L-9000. Ms. Sweet's former duties in pricing were covered by another employee. Sometime in the second quarter of 1992, Mr. Russell discussed with Ms. Jones the possibility of her permanent employment with Respondent, rather than through Kelly Temporary Services. Because Petitioner had already filed her Charge of Discrimination, Mr. Russell decided not to pursue fulltime permanent employment with Ms. Jones until the discrimination charges were resolved. Following Petitioner's departure in April, 1992, Ms. Sweet encountered problems with the L-9000 that she could not solve. She and Mr. Russell several times contacted Ms. Rehrig, and at least once Ms. Rehrig came to the office after finishing her other work for the day to fix the problem. Mr. Russell offered her a consultation contract, which Ms. Rehrig declined. Mr. Russell and Ms. Rehrig discussed the possibility of her returning to work with Respondent, but they could not agree on acceptable conditions. Ms. Rehrig testified that, on one occasion immediately after interviewing Petitioner, Mr. Russell referred to her as a "Puerto Rican" and alluded to the excitability of Puerto Ricans. This testimony is not credited. Ms. Rehrig was displeased with Respondent for undisclosed reasons when she quit, and she became more displeased when, after being badgered by Ms. Sweet and Mr. Russell concerning the L-9000, she and Mr. Russell could not agree on adequate conditions for her reemployment with Respondent. Called as a witness by Petitioner, Ms. Rehrig initially omitted mention of her early dissatisfaction with Petitioner's work, although she admitted that she had recommended to Mr. Russell that he assign Ms. Sweet, rather than Petitioner, to the Pricing Department after Ms. Rehrig quit. The only other evidence concerning Petitioner's national origin involves Petitioner's testimony that Ms. Sweet angrily called her a "Puerto Rican" one time, that coworkers routinely assumed that Petitioner had made all errors in invoicing even when she had not, and that Mr. Russell treated her in a diffident manner. There are problems with each of these items of proof. First, Petitioner admitted that Mr. Russell did not know that Ms. Sweet had referred to Petitioner's national origin in a derogatory way. Petitioner never told Mr. Russell about this remark, nor is she aware that anyone else did. Second, the coworkers who wrongly assumed that Petitioner was responsible for invoicing errors when she was not were understandably basing their assumption on Petitioner's history of a high number of mistakes, not on her national origin. More importantly, Mr. Russell did not misperceive Petitioner's error rate. Third, Mr. Russell was not especially close with a number of employees, including but not limited to Petitioner. But he resisted Ms. Rehrig's requests to fire Petitioner, showed patience with her high error rate, and gave her one raise. Petitioner has proved a prima facie case of discrimination. She is Puerto Rican. She was generally qualified for the invoicing job. And she was replaced by Ms. Sweet, who is a white person whose national origin evidently does not place her in a protected class. However, Respondent has shown a legitimate business reason for Petitioner's layoff. Business was poor and getting worse. Petitioner's competence was marginal. Ms. Sweet, whom Ms. Rehrig herself had named over Petitioner for what appears to have been a promotion, was cross-trained and thus, for that reason alone, more useful to Respondent. And Respondent's president justifiably believed that the Invoicing and Pricing Departments could continue to operate effectively with one less employee. The quick offer of fulltime permanent employment to the less experienced Ms. Jones did not mean that she was intended to replace Petitioner. Following Petitioner's termination, Ms. Sweet worked for one year on the L-9000 before Ms. Jones, who was not even trained on the machine until August, 1992, replaced her in April, 1993. Respondent in effect gave Ms. Jones a raise when she began to operate the L-9000 by increasing the pay to Kelly Temporary Services to $8.55 per hour. However, competence in 1992 with the L-9000 was of increasingly limited utility to Respondent, which, by the time of the final hearing, had replaced the obsolete device with modern automated office equipment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. ENTERED on January 13, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on January 13, 1994 APPENDIX Rulings on Petitioner's Proposed Findings 1-4: adopted or adopted in substance. 5: rejected as unsupported by the appropriate weight of the evidence. Petitioner failed to prove that the matter of her national origin arose during the interview. 6 and 8: rejected as unsupported by the appropriate weight of the evidence. 7: adopted or adopted in substance. 9-10: adopted or adopted in substance. 11: adopted or adopted in substance except that Petitioner continued to make a high rate of mistakes on the L-9000. 12: adopted or adopted in substance, although the reasons for Ms. Rehrig's recommendations go beyond those stated in the proposed finding. 13: rejected as subordinate. 14-17 (first sentence): rejected as unsupported by the appropriate weight of the evidence. (remainder): adopted or adopted in substance. (first two sentences): adopted or adopted in substance. 18 (remainder)-20: rejected as subordinate, irrelevant, and unsupported by the appropriate weight of the evidence. 21-22: rejected as unsupported by the appropriate weight of the evidence except for positions of Respondent. 23-25: rejected as unsupported by the appropriate weight of the evidence. Subsequent events led Mr. Russell to reassess his needs and the costs of meeting these needs. However, in April 1992, he did not have the advantage of this knowledge and made in good faith the personnel decisions that he made at the time. 26: adopted or adopted in substance, but see 23-25. 27: rejected as unsupported by the appropriate weight of the evidence. 28: adopted or adopted in substance. 29: rejected as unnecessary. 30: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-16: adopted or adopted in substance. 17: rejected as subordinate and recitation of evidence except that Ms. Rehrig unhappily left her job with Booker. 18-19: adopted or adopted in substance. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Craig P. Clendinen Stearns Weaver One Tampa City Center Suite 3300 Tampa, FL 33601 Michael D. Malfitano Macfarlane Ferguson 111 E. Madison St. Suite 2300 Tampa, FL 33601
The Issue Whether Petitioner, Donna M. Cyrus, was subject to an unlawful employment practice by Respondent, Express Scripts, based on her race in violation of the Florida Civil Rights Act.
Findings Of Fact Express Scripts is a prescription benefit management company. Express Scripts provides pharmaceutical home delivery services, pharmacy claims processing, and benefit plan management for its patient clients. Petitioner, a Black woman, began working for Express Scripts in January 2013. Petitioner was hired as a nurse clinician. Petitioner explained that she acted as a telephonic nurse. Her job was to perform clinical assessments for new and existing medical patients regarding their medications. Thereafter, she would provide Express Scripts customers with drug specific counselling and education. Petitioner’s work was primarily done with a computer and over the telephone. Beginning in December 2014, Petitioner worked exclusively from her home. As required for her job, Petitioner held an active nursing license with the State of Florida. By all accounts, Petitioner was a consistent and reliable worker with no marked deficiencies in her job performance. However, by the fall of 2013, Petitioner became increasingly disenchanted by what she perceived to be discriminatory harassment by her supervisors. In or about October 2013, Petitioner e-mailed her direct supervisor, Robin Morris, to complain about several negative assessments she had received. Petitioner felt like she was being judged more harshly because she was Black. Petitioner also commented about how she believed that Express Scripts was treating a white employee better than her. Petitioner relayed that she felt the white employee was provided more lenience in meeting his job responsibilities and in being granted time off from work. In addition, Petitioner testified that around this time she formally reported to Express Scripts the discrimination she alleged to have experienced in her workplace. Petitioner explained that she contacted the Express Scripts compliance hotline which was a phone number listed in the Equal Employment Opportunity section of the Express Scripts employee policy handbook. However, Petitioner did not disclose to either Ms. Morris or the Express Scripts human resources department that she had called the hotline. After her phone call to the hotline, Petitioner asserts that she began to experience “subtle,” but persistent, discrimination. Petitioner endured what she described as Express Scripts’ abusive, offensive, and unfair treatment based upon her race, as well as retaliation for her complaint of discrimination. Specific instances in which Petitioner asserts Express Scripts subjected her to different terms and conditions from her (white) co-workers, include the following: Denied Requested Time Off Petitioner claims that she was denied requested time off from work based on her race. Petitioner described an incident in October 2013 when she asked for two hours off for personal leave. She inputted her request into the Express Scripts computer program as required. However, five minutes later, she observed that her request had been deleted in the system. She reentered her request. Less than an hour later, she discovered that the computer program had deleted her request for a second time. She did not know how or why she was not allowed to take the leave hours she requested. Petitioner asserted that other non-black employees were authorized to take personal leave of their choice. Petitioner specifically identified another nurse clinician named Jonathon Guyette, a white male, who was freely granted his requests for time off. Petitioner also identified Nicole Deverling, another nurse clinician and a white female, who was regularly given time off. Petitioner felt that Linda Hampson, who was not her immediate supervisor but supervised all nurse clinicians, showed favoritism in granting or denying personal leave time. Petitioner concluded that, particularly in light of Petitioner’s seniority over Ms. Deverling, that Ms. Hampson personally denied her leave because of her race. Harassment Following an On-the-job Injury In December 2015, Petitioner began to experience pain in her right wrist. Petitioner attributed her injury to the overuse of her computer during her job. Petitioner was ultimately diagnosed with DeQuervain’s disease. Petitioner reported her injury to Ms. Morris. However, she felt that Express Scripts was grossly unsympathetic about her injury. Then, in June 2016, Petitioner’s left wrist began to ache. Petitioner described the pain as a constant burning and tingling sensation, as well as numbness. Petitioner was eventually diagnosed with tendinitis and carpel tunnel syndrome. Petitioner needed multiple surgeries on her left and right wrists. Petitioner expressed that Ms. Morris harassed her about the medical care and treatment she sought for her wrist pain. Petitioner maintained that Ms. Morris’ callous reaction to her injuries effectively prevented her from using the same employee benefits as her co-workers. For instance, Ms. Morris demanded that Petitioner provide written documentation recording the dates and times of her doctors’ appointments. Petitioner declared that Ms. Morris unfairly wrote her up in 2015 and 2016 for violating the Express Scripts’ medical leave policy for being absent without authorization. Petitioner claimed that the days she took off were legitimately due to her medical appointments. Petitioner also accused Ms. Morris and her workers’ compensation caseworker (Sarah Reichert) of forcing her to overuse her left hand to type while her right hand was recuperating. Petitioner felt that not only was she wrongfully harassed and rushed, but her work conditions exacerbated (if not caused) the injury to her left wrist. Finally, Petitioner testified that Express Scripts unjustifiably interfered with her ability to obtain medical care for her injuries. Petitioner relayed that Ms. Reichert determined what of Petitioner’s medical treatments was compensable under Express Scripts’ workers’ compensation coverage. Petitioner complained that Ms. Reichert unfairly denied certain medical procedures Petitioner required. Not Given Work Schedule Preference Petitioner accuses Express Scripts of not allowing her to work her preferred work schedule. Instead, Express Scripts permitted white employees to work during the shift she desired. Specifically, in May 2015, Express Scripts offered its nurse clinicians the opportunity to work an alternative schedule of 4 days a week/10 hours a day (as opposed to 5 days a week/8 hours a day). Petitioner did not accept the flex schedule. Instead, Petitioner e-mailed her supervisor, Ms. Morris, that she “would prefer to work 8hr shifts only, 8-4:30pm if possible.” Several months later, however, Petitioner expressed to Express Scripts that she would like to work the 4-day/10-hour work week. Express Scripts did not approve her request. On the other hand, Petitioner represented that a white employee (Mr. Guyette) was allowed to work the flex schedule. Not Equal Acknowledgment of Workplace Accomplishments In December 2014, Express Scripts did not include Petitioner on an e-mail that congratulated two nurse clinicians on their two-year anniversary with the company. Petitioner was hired at the same time as these employees. Upon learning of the oversight from Petitioner, Express Scripts issued a separate, company-wide e-mail in January 2015 congratulating Petitioner on her two-year anniversary. Neither was Petitioner’s picture ever featured on the office wall. Petitioner was devastated. She felt that both omissions were intentional and based on her race. Denied Workplace Privileges Petitioner generally complained that Express Scripts did not promote her or provide her special jobs or privileges as it did for other (white) nurse clinicians. Petitioner also asserted that her bonus was lower than her co-workers. In addition, Petitioner proclaimed that her co-workers and supervisors intentionally acted in a way to intimidate her and force her to resign from the company. Finally, Petitioner conveyed that she received many groundless verbal “write-ups.” However, at the final hearing, Petitioner did not provide evidence supporting any of these claims outside of her own testimony. Robin Morris, Petitioner’s direct supervisor at Express Scripts, testified at the final hearing. Ms. Morris managed approximately 14 nurse clinicians. Ms. Morris commented that Petitioner was a solid employee and generally met all job expectations. Although Petitioner accumulated several attendance “points” for unexcused absences, she never received any disciplinary action during her employment. On the converse, Petitioner was given merit pay increases every year she worked for Express Scripts. Concerning Petitioner’s complaint that Express Scripts was less than helpful regarding her use of leave time for her injuries, Ms. Morris explained that Express Scripts required all employees to provide medical documentation to justify medical time off. Therefore, any frustration Petitioner experienced regarding her medical leave was based on the lack of documentation that Petitioner produced confirming her medical visits. Ms. Morris recalled that, at least on one occasion, she gave Petitioner a verbal coaching about her failure to provide a doctor’s note recording the times she arrived and left her doctor’s office. Ms. Morris further explained that Sarah Reichert was not an Express Scripts employee. Instead, she was a contract worker for Express Script’s workers’ compensation insurer, Traveler’s Insurance. Ms. Reichert managed Petitioner’s workers’ compensation claims. Ms. Morris testified that she did not have any input into how Traveler’s administered or authorized Petitioner’s medical treatment or doctor’s visits. Ms. Morris denied that she, or any other Express Scripts supervisor, showed any favoritism in approving personal time off for the nurse clinicians. Ms. Morris testified that all Express Scripts employees requested leave hours/days through an automated computer program that automatically approved or denied leave requests. Leave was granted on a first come, first serve basis. Ms. Morris further added that Express Scripts’ leave policy allowed only 10 percent of a company section off of work at any one time. This policy effectively allowed only one nurse clinician a day to take leave. Consequently, Ms. Morris explained that if Petitioner’s personal leave requests were denied, then another nurse clinician had asked for that particular date/time off first. Ms. Morris refuted Petitioner’s allegation that Express Scripts ever refused to allow her to take personal leave based on her race. After she filed her Employment Complaint of Discrimination with the Commission in February 2017, Petitioner continued to work for Express Scripts. Karina Ward, Express Scripts’ Senior Human Resources Advisor, testified regarding Express Scripts’ reaction to Petitioner’s complaint. After learning of Petitioner’s complaint, Ms. Ward opened an internal investigation. Ms. Ward’s first step was to contact Petitioner to discuss her concerns about fair treatment in the workplace. Ms. Ward called Petitioner on or about February 13, 2017. During their phone call, Petitioner described the incidents of discrimination she experienced. At the end of their conversation, Ms. Ward told Petitioner that she would call her the following day to review Petitioner’s desired outcome. When Ms. Ward called on February 14, 2017, however, Petitioner did not answer. Neither was Ms. Ward able to reach Petitioner when she called her on February 16 and 22, 2017. Despite not speaking further with Petitioner about her allegations, Ms. Ward continued to investigate Petitioner’s claim of discrimination. Ms. Ward contacted Petitioner’s co-workers to explore any additional concerns regarding disparate or unfair treatment. Ms. Ward did not uncover any information substantiating Petitioner’s allegations of discrimination. With no further communication from Petitioner, Ms. Ward closed her investigation on March 6, 2017. Regarding Petitioner’s testimony that she called a compliance hotline in 2013 to report discrimination, Ms. Ward relayed that, at that time, Express Scripts did not have a central phone number for employees to report workplace disputes such as discrimination. Instead, the complaint hotline which Petitioner called was administered by a third-party vender. Ms. Ward testified that she was not aware of, nor had she ever received any information regarding, Petitioner’s report of discrimination in 2013. Neither could she find any evidence of Petitioner’s complaint in the Express Scripts’ human resources records. (Ms. Morris also denied any knowledge of Petitioner’s 2013 phone call.) At the final hearing, Ms. Ward also responded to Petitioner’s complaint that Express Scripts did not allow her to work alternate hours. Ms. Ward explained that Express Scripts had offered Petitioner the option of working a 4-day a week/10- hour a day schedule, just as it offered to every nurse clinician. Petitioner, however, declined to take advantage of the opportunity when it was offered. Ms. Ward recalled that Petitioner then contacted Express Scripts approximately six months later requesting the alternate work hours. But, by that time, Express Scripts had determined not to offer the flex schedule to any employee. Ms. Ward further explained that the white employee Petitioner identified (Mr. Guyette) was allowed to work the 4-day/10-hour work week based on a medical accommodation. Mr. Guyette was the only Express Scripts employee who was authorized to work an alternate schedule. (Ms. Morris echoed Ms. Ward’s testimony that Petitioner declined the initial opportunity to work a flex schedule. Ms. Morris also repeated that Mr. Guyette was allowed to work a 4-day work week to accommodate a medical issue.) After her complaint to the Commission in February 2017, Petitioner regularly asked for medical leave based on her recurring health issues. Finally, in May 2017, Petitioner stopped reporting in for work, citing her medical condition. In July 2017, however, Ms. Ward learned from the Traveler’s workers’ compensation department that on May 31, 2017, Petitioner had been medically cleared to return to work with no restrictions. Therefore, Ms. Ward contacted Petitioner and asked her to produce medical documentation supporting her recent leave requests. Petitioner responded that, on the contrary, her doctor told her that she had not been medically cleared to work. However, Petitioner did not provide Ms. Ward any additional documentation substantiating either the days she had taken medical leave or her need for future medical treatment. On July 14, 2017, Ms. Ward spoke with Petitioner, and notified her that Express Scripts considered her in an unapproved leave of absence status. Express Scripts received no communication from Petitioner after that date. Therefore, on July 27, 2017, Ms. Ward concluded that Petitioner had voluntarily resigned her job. Express Scripts terminated Petitioner’s employment due to “job abandonment.”2/ At the final hearing, Petitioner claimed that all the days that she was absent from work were related to medical care she received for her wrist injuries. Petitioner also represented that she had applied for short-term disability in order to take time off to care for her various health issues. Ms. Ward denied that Express Script disapproved any request for leave days based on Petitioner’s race or in retaliation for a complaint of discrimination. Neither was Express Script’s decision to terminate Petitioner’s employment based on Petitioner’s race or her participation in an activity protected by the FCRA. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that Express Scripts discriminated against Petitioner based on her race or in retaliation for her complaint of discrimination. Accordingly, Petitioner failed to meet her burden of proving that Express Scripts committed an unlawful employment action against her in violation of the FCRA.
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, Donna M. Cyrus, did not prove that Respondent, Express Scripts, committed an unlawful employment practice against her; and dismissing her Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 27th day of February, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2018.
The Issue The issue in this case is whether the Petitioner, Hillsborough Community College (the College), should terminate the employment of the Respondent, Corine Dismuke (Dismuke).
Findings Of Fact The Respondent, Corine Dismuke (Dismuke), was employed at Hillsborough Community College (the College) continuously from April 20, 1981. For eleven and a-half years, she worked in the Financial Aid office and was a good and valued employee. By 1994, however, Dismuke's relationship with a new supervisor had deteriorated, her morale was low, and she made her grievances known to the College. The College's ultimate resolution of Dismuke's grievances was to transfer Dismuke to the College's Financial Services office in 1994. For a time, Dismuke continued to experience difficulties at work despite the change. She thought that her new colleagues shunned and isolated her and that she was treated poorly and unfairly by her new supervisor, the Director of Financial Services, Barbara DeVries. Dismuke filed several grievances complaining about these things during her first year and a-half at Financial Services. Dismuke's supervisor thought Dismuke's attitude improved during Dismuke's second year in the Financial Services office. The evidence was clear that Dismuke was on good terms with some (but not all) of her colleagues. Dismuke's attitude changed when she began to get indications in the spring of 1997 that her position would be adversely affected if the College implemented the recommendations contained in the report of a study undertaken by the firm of Coopers and Lybrand on the College's personnel classification systems and pay scales. Under the Coopers and Lybrand recommendations, Dismuke's position would be reclassified, and her salary would be frozen, so that Dismuke would not even get cost-of-living adjustments, until her salary came in line with the report's recommended salary for the new position. Grounds for Termination and Termination Proceedings On Monday, June 30, 1997, Dismuke entered her office suite and told a co-worker, Pete Scaglione, with whom she had always gotten along with well, that he had better consider wearing a bullet-proof jacket because bullets could begin to fly soon. This upset Scaglione greatly because he perceived the comment as a direct threat to him. Scaglione assumed Dismuke's anger had something to do with the Coopers and Lybrand recommendations, which would have given Scaglione a modest salary increase. Scaglione went to another fellow employee, Beatriz Maseda, who also was greatly concerned. Both Scaglione and Maseda were concerned that Dismuke would act on her statement to Scaglione, come to work with a gun, and start shooting. Maseda advised Scaglione to report the incident to DeVries. Scaglione was afraid that DeVries would not do anything and did not want to report the incident. Maseda convinced Scaglione to report it. They discussed a personnel rule requiring him to do so. The College's Rule 6HX-10-1.017 provides: Purpose: The purpose of this administrative rule is to establish college policy that prohibits threats of violence by personnel, students, visitors or any other individual while at Hillsborough Community College. Rule: Threats to do bodily harm or property damage by College personnel, students, visitors or any other individual against another while at Hillsborough Community College is totally inappropriate. A threat of violence, either verbal or written, expressed or implied, will not, under any circumstances, be tolerated at Hillsborough Community College. Any other threat of a material and substantial disruption to the operation of the College is also prohibited. An employee making any threat prohibited by this rule will be disciplined in accordance with the appropriate administrative procedure, up to and including termination. A student making any threat prohibited by this rule will be disciplined in accordance with the appropriate administrative procedure, up to and including expulsion. Any other individual making any threat prohibited by this rule will be required to leave College property immediately. Notification will be made to the appropriate law enforcement agency where appropriate. The failure of any employee or student to report any threat prohibited by this rule that is made by students, employees, or any other person against any person or the operation of the College will also result in disciplinary action. It is stipulated that Dismuke received notice of Rule 6HX-10-1.017 as well as the College's other personnel rules. When DeVries was told of the incident the next day, she also was concerned that Dismuke would act on her statement to Scaglione. DeVries notified her supervisor, the College's Vice- President for Financial Affairs, Robert Wolf. Wolf was very concerned about DeVries' report to him and insisted on an immediate meeting with DeVries, Maseda, and Scaglione. Wolf ascertained that Dismuke actually made the comments in anger and that Scaglione and Maseda were genuinely afraid of Dismuke. Wolf also became concerned that Dismuke might act on her statement to Scaglione. He and DeVries discussed the incident and what action would be appropriate. DeVries thought that the seriousness of the threat warranted termination under the College's personnel rules, and Wolf agreed. Wolf told DeVries to monitor the situation and begin the process to terminate Dismuke. Although Wolf and DeVries were concerned for the safety of the College's personnel, and thought the matter was serious enough to warrant termination under the College's personnel rules, neither took any immediate security measures to prevent Dismuke from carrying out the threat implied in her statement. Thursday and Friday, July 3 and 4, 1997, were school holidays. On Monday, July 7, 1997, DeVries began an investigation consisting of interviews of some other employees in Financial Services. Her investigation ascertained that others also were afraid of Dismuke. One employee, Dana Livesay, reported to DeVries that on Monday, July 7, 1997, she overheard Dismuke on the telephone saying to someone, "You told me to call you if I started to lose it, before bullets started to fly, well, I'm about to lose it." After a pause, Dismuke added, "You tell me to be calm, well I don't want to be calm." Like Scaglione and Maseda, Livesay also was concerned for her safety and asked to have her work station moved farther away from Dismuke's. DeVries decided not to discuss the matter with Dismuke. For one thing, she and Wolf already had decided that termination was appropriate. For another, DeVries did not think it was appropriate for her to confront Dismuke and discuss the incident since prior discussions had been unsuccessful in addressing Dismuke's grievances, Dismuke now had made threats that DeVries felt were directed towards her. During the week of July 7, 1997, DeVries prepared an Employee Discipline Report notifying Dismuke that DeVries was recommending termination and suspending her with pay pending termination. Out of concern for her safety and the safety of others at the College, DeVries made arrangements to have two City of Tampa Police Department officers present when she met with Dismuke on Thursday, July 10, 1997, to present her with the Employee Discipline Report. For their own safety (as well as for the safety of DeVries and other College personnel), the officers searched Dismuke for weapons and found none. Dismuke refused to sign the Employee Discipline Report. DeVries and the police officers advised Dismuke that Dismuke was to leave the campus and not return, except to participate in an informal hearing to be held on Tuesday, July 15, 1997. The two police officers escorted Dismuke off campus. Dismuke remained calm and respectful and obeyed all instructions from the police officers without question. After Dismuke left, DeVries signed the Employee Discipline Report. The informal hearing on July 15, 1997, was referred to by different names (including discipline hearing, post-discipline hearing, and pretermination hearing), and Dismuke seemed confused as to its purpose. The July 15, 1997, hearing was conducted by a College administrator named Charles M. Sackett. Sackett questioned several witnesses, including Wolf, DeVries, Scaglione, Maseda, and Livesay. He gave Dismuke an opportunity to question the witnesses and to testify on her own behalf, but she declined. Dismuke thought it better to just listen to the evidence against her because she did not feel prepared to cross-examine witnesses and present a case in her behalf and because she understood that the informal hearing would be followed by a formal hearing at which she would be better prepared. Sackett accepted written material from Dismuke but declined Dismuke's request that he obtain the witnesses' sworn answers to written questions Dismuke had drafted; however, he advised her how to obtain a tape recording and verbatim transcript of the informal proceeding. After the informal proceeding, Sackett prepared a report which recommended to interim College President, Dr. Jeff Hockaday, that the "termination of Ms. Dismuke's employment with the College be affirmed." Wolf and Executive Vice-President Dr. Diana Ferreira signed the Employee Discipline Report on July 15, 1997; Hockaday signed the next day and required that Dismuke's suspension with pay continue, pending action by the College's Board of Trustees on the termination recommendation. The position of Human Resources Vice-President was vacant during the summer of 1997, and the Employee Discipline Report was not signed by anyone from the College's Human Resources Department. Jerry Inman, Human Resources Compensation and Employee Records Manager, initiated a Personnel Action Notice (PAN) to place the termination recommendation on the agenda for the meeting of the College's Board of Trustees scheduled for the September 17, 1997. On August 1, 1997, Dr. Gwendolyn Stephenson became the President of the College. She satisfied herself that the pending proceedings for Dismuke's termination were appropriate and proceeded with them. (She also proceeded with action to terminate another employee for threatening violence.) Dismuke thought the Board meeting on September 17, 1997, was her formal termination hearing, and she came prepared to defend herself. Instead, she was informed: that she already had had her "pretermination hearing"; that she could make a presentation to the Board prior to its decision on the termination recommendation but only would have an opportunity for a full-blown, formal hearing if the Board of Trustees approved the recommendation for her termination; and that one option would be to request hearing before the Division of Administrative Hearings (DOAH) under Chapter 120, Florida Statutes (1997). The Board voted to terminate Dismuke. (The Board member who seconded the motion to terminate Dismuke commented that it was "the only way to get to a post-termination hearing.") Dismuke's Defenses Denial. Dismuke's first defense was that she never made the statements attributed to her. As part of this defense, Dismuke suggested that the witnesses (including Scaglione, whom Dismuke considered to be her one good friend in Financial Services until June 30, 1997), conspired with Barbara DeVries to fabricate grounds to terminate her. This defense is rejected as being untrue. First, it is clear that Dismuke was very angry as a result of what she viewed to be the unfair impact of the results of the Coopers and Lybrand study on her personally. This perceived injustice had the effect of reviving all of her earlier grievances and animosities against the College and her supervisor. The statements attributed to Dismuke are consistent with her past behavior under similar circumstances. Dismuke has a history of using threats of violence to get attention and to get her way. Dismuke herself insisted on calling Carolyn Speed- Green, the Assistant to the President for Institutional Equity, to testify and sponsor a report Speed-Green wrote during the College's efforts to resolve Dismuke's acrimonious dispute with her former supervisor in Financial Aid in 1994. The report included a copy of a letter Dismuke wrote to the President of the College stating that Dismuke drove to work one day with a gun and the intention of shooting her supervisor before she "returned to reality," but changed her mind because she could go to jail for that and decided to call in sick. Speed-Green's report also referenced evidence that Dismuke had made a similar statement (that she "started to shoot" the supervisor) in a meeting with the supervisor three years earlier. Dismuke claimed that the incident related in the letter to the President in 1994 and in the earlier statement to her supervisor were fabricated to get attention and the response she desired from the College. Another witness called by Dismuke, Sandra Rodriguez (f/k/a Sandra Castro) testified that, within a few weeks after Dismuke began work in Financial Services, Dismuke told the witness that Dismuke actually came to work with a gun and with the intention of shooting her supervisor. But the apparent admission could have been another fabrication for effect. Even in her own testimony at the final hearing in this case, Dismuke made a veiled threat of violence. After describing how desperate she would be if she did not get her job back with back pay, she made a plea that it was "time that someone took the initiative to stop all this madness. Once I'm out on the street, I don't know how I'm going to act. They're all saying that I'm violent. They're all saying that I'm crazy. When I'm out on the street homeless and hungry with my two grandchildren, who's to say if I won't become violent." "Threat Against Another." As previously mentioned, the College's Rule 6HX-10- 1.017 prohibits "[t]hreats to do bodily harm . . . against another while at Hillsborough Community College." Dismuke's next, alternative defense was that, if found to have uttered the statements attributed to her, her threats were not "against another" and did not violate Rule 6HX-10-1.017. It does seem that Scaglione misunderstood Dismuke's intent in thinking that Dismuke was threatening to shoot him. Rather, it seems that her statement was meant to imply that she would be shooting someone else but that Scaglione should wear a bullet-proof vest to avoid being injured by a stray bullet. But regardless which was Dismuke's intent, her statement threatened not only Scaglione but also all of the employees in her work area. Dismuke does not seem to appreciate the seriousness of the threats embodied in the words she uttered. Clearly, several of her co-workers, including DeVries, felt threatened by Dismuke's statements, and their feelings were not unwarranted. Alleged Selective Enforcement. Dismuke also argues that the College treated her unfairly because another employee, Sladen McLaughlin, was not terminated for threatening a co-worker, Mattie Brown. According to Brown, Brown went to McLaughlin's work-station to get information she needed to trouble-shoot a telephone problem, and McLaughlin told her to leave because he did not want to talk to her about it. When she persisted, McLaughlin "viciously" rose from his chair and told her to get her "uppity ass" out of his office. According to McLaughlin, he just got angry at the manner of Brown's persistence and told her not to act like a "smart ass." Either way, it was not clear from the evidence that McLaughlin threatened Brown with violence or bodily harm. He certainly did not threaten to shoot her. There is no comparison to Dismuke's threats. In addition, contrary to Dismuke's defense, she was not the only employee terminated at the Board's September 17, 1997, meeting for violating Rule 6HX-10-1.017. See Finding 18, supra. Alleged Violation of Progressive Discipline. Dismuke also argued that the College should not be permitted to terminate her because it did not follow its progressive discipline procedure. It is clear that while the College's Administrative Procedure 2.043 provides for progressive discipline, the procedure also affords supervisors discretion to skip one or more steps in the procedure. Specifically, immediate termination is authorized "if an employee's performance . . . is serious enough to warrant such actions." Termination for Dismuke's threatening statements was not an abuse of discretion. Alleged Procedural Violations. Dismuke also argued that, under Administrative Procedure 2.049, she was entitled to receipt of a Personnel Action Notification (PAN) from the President via the Associate Vice-President of Personnel Services but that she only received an unsigned copy of the Employee Discipline Report from DeVries. Administrative Procedure 2.049 was not introduced in evidence. Administrative Procedure 2.043, which was introduced in evidence, provides in pertinent part: A recommendation for termination must be included on an Employee Discipline Report form for review and approval by the unit administrator, the Campus/District-level Vice President, and the Executive Vice President (where applicable) and the President. . . . The Associate Vice President for Human Resources will notify the employee that the President is recommending his/her termination by certified mail, return receipt requested, with a copy of the Employee Discipline Report form. It was not clear from the evidence that Dismuke did not receive a PAN; the evidence was that Jerry Inman, Human Resources Compensation and Employee Records Manager, initiated the PAN for Dismuke's termination during a vacancy in the position of Associate Vice President for Human Resources. The purpose of the PAN was to place the termination recommendation on the agenda for the meeting of the College's Board of Trustees scheduled for the September 17, 1997. It was not clear from the evidence that Dismuke did not receive her copy of the PAN. It also was not clear from the evidence that Dismuke did not receive a copy of the signed Employee Discipline Report. The copy she received from DeVries on July 10, 1997, was not signed, but the original was signed by several College officials after Dismuke refused to sign it. Dismuke also complained that several College administrators other than the College President recommended her termination. Dismuke argued that only the College President was authorized to do so. Clearly, the ultimate recommendation for termination placed before the College Board of Trustees normal comes from the president (or acting president), as occurred in this case. However, just as clearly, the College President is entitled to obtain recommendations from other administrators as part of the president's decision-making process. In this case, Acting President Hockaday initially recommended termination based on the recommendations of other College administrators, and President Stephenson did the same. There was no procedural infirmity in either termination recommendation. Alleged Double Jeopardy. Dismuke also argued that it was unfair "double jeopardy" to suspend her and terminate her for the same offense. To the contrary, the evidence was clear that Dismuke was suspended with pay pending the Board's decision on the College President's recommendation of termination. This was in accordance with the College's Administrative Procedure 2.043. The suspension with pay and the termination were both part of the imposition of a single discipline. There was no "double jeopardy." No Rules on Termination Hearings. There was no evidence of any rules providing for or governing either the July 15, 1997, hearing or the hearing before the Board of Trustees on September 17, 1997.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of the Hillborough Community College enter a final order terminating the employment of the Respondent, Corine Dismuke. DONE AND ENTERED this 13th day of July, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1998. COPIES FURNISHED: Maria N. Sorolis, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 350 Tampa, Florida 33606 Corine Dismuke, pro se 10312 Penny Tree Place Tampa, Florida 33624 Dr. Gwendolyn H. Stephenson, President Hillsborough Community College Post Office Box 31127 Tampa, Florida 33631
