The Issue The issue is whether Grand Boulevard Health and Rehabilitation, d/b/a FL HUD Destin, LLC (“Grand Boulevard”), committed an unlawful employment practice by discriminating against Angela D. Jones based on her race.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, the entire record of this proceeding, and matters subject to official recognition, the following Findings of Fact are made: Ms. Jones is a 49-year-old African American female. She has a high school degree and earned certifications or licenses enabling her to work as a certified nursing assistant (“CNA”), a home-health aide, a cosmetologist, and a security guard. However, healthcare has been her primary field of work. 2 Ms. Jones stated during the final hearing that she had transmitted to DOAH an audio recording made by Mr. Manning and that she had intended to move that audio recording into evidence. The audio recording was not received by DOAH. Nonetheless, the undersigned has determined that no prejudice resulted to Ms. Jones because there was no dispute regarding the event described by Mr. Manning’s affidavit. In May of 2019, Ms. Jones was working in a nursing home and heard from a coworker about the substantial benefits and signing bonus that Grand Boulevard was offering new hires. Grand Boulevard’s employment application contained a question asking each applicant to respond “yes” or “no” as to whether he or she had “ever pled guilty, pled no contest, had adjudication withheld, or been placed in a pre- trial intervention program as a result of being charged with a crime.” Ms. Jones left that portion of her application blank.3 Ms. Jones responded “no” in response to a question asking if she had “ever been convicted of any criminal violation of law, or [if she was] now under pending investigation or charges of violation of criminal law.”4 The employment application contained a provision requiring Ms. Jones to certify that: the information provided in this employment application (and accompanying resume, if any) is true and complete. I understand that any false, incomplete, or misleading information given by me on this form, regardless of when it is discovered, may disqualify me from further consideration for employment, and may be justification for my 3 Ms. Jones testified that she told Shakara Mayberry, Grand Boulevard’s Director of Staff Development at the time, that she had a criminal background and that she left that portion of the application blank because she could not remember specific details about the charges. Ms. Jones also testified that she offered to supplement her application with precise information after she had an opportunity to consult documentation in her possession. According to Ms. Jones, Ms. Mayberry accepted her application and told her to not worry about disclosing her criminal background. Ms. Mayberry also testified during the final hearing and denied telling Ms. Jones that she could leave that portion of her application blank. During the final hearing, Grand Boulevard provided no satisfactory explanation as to why Ms. Jones was hired without completing that portion of her application. 4 Respondent’s Exhibit 3 was Ms. Jones’s responses to interrogatories from Grand Boulevard. Via her responses, Ms. Jones provided documentation regarding her criminal history. However, Grand Boulevard did not request that Respondent’s Exhibit 3 be accepted into evidence. When being questioned about Respondent’s Exhibit 3, Ms. Jones acknowledged that she has: (1) pled no contest to a battery charge; (2) been charged or arrested for resisting an officer; (3) been arrested for criminal mischief; and (4) entered a plea on a different criminal mischief charge. dismissal from employment, if discovered at a later date. After conducting a background check through the Agency for Health Care Administration (“AHCA”) indicating Ms. Jones had no disqualifying offenses, Grand Boulevard hired Ms. Jones.5 Ms. Jones began working for Grand Boulevard on May 15, 2019, as a CNA helping nursing home residents with activities of daily living such as dental hygiene, grooming, and eating. On June 16, 2019, a resident in Ms. Jones’s care suffered injuries after he rolled out of his bed while Ms. Jones was cleaning him. Pursuant to its policy, Grand Boulevard suspended Ms. Jones while the Walton County Police Department investigated the incident. Ms. Jones returned to work at Grand Boulevard three days later but was suspended again on June 20, 2019, because she had allowed her CNA certificate to expire. Ms. Jones paid her delinquency fee, and her certificate was reinstated. During the course of the investigation of the June 16, 2019, incident, an investigator from the Walton County Sheriff’s Office asked Heather Hanna, Grand Boulevard’s Director of Nursing at the time, why Grand Boulevard would hire someone such as Ms. Jones with a criminal history. Ms. Hanna then had Ms. Jones’s application pulled and noticed that Ms. Jones did not 5 Section 400.9065, Florida Statutes, mandates that AHCA “shall require level 2 background screening for personnel as required in s. 408.809(1)(e) pursuant to chapter 435 and s. 408.809.” Section 408.809(1)(e), Florida Statutes, requires level 2 background screening of any person who is expected to provide personal care services directly to nursing home residents. Section 435.04(2), Florida Statutes, lists many specific offenses that disqualify someone from working in a nursing home. Accordingly, the background screening conducted through AHCA is narrower in scope than Grand Boulevard’s employment application, which asks applicants if they have “ever pled guilty, pled no contest, had adjudication withheld, or been placed in a pre-trial intervention program as a result of being charged with a crime.” For example, while Ms. Jones acknowledged that she has pled no contest to a battery charge, that charge would not necessarily have been a disqualifying offense because section 435.04(2) only encompasses felony battery, battery on a minor, sexual battery, and battery on a vulnerable adult. Likewise, resisting an officer and criminal mischief are not disqualifying offenses. respond to the question asking if she had ever been charged with a crime. Ms. Hanna sent the following report to Connie Zuraff on June 28, 2019: I received a visit from Investigator Donna Armstrong with Walton County PD and Julianne Dalton APS investigator. The investigator questioned why we would have an employee who had a recent arrest record, she stated that she knew Angela Jones from the community and that she was concerned that she was employed here. We reviewed her application and found that she had not checked the boxes related to history of arrests.[6] I called Ms. Jones with Tuwanna RN Risk Manager and [Shakara] Mayberry LPN SDC present in the room. I placed Ms. Jones on speaker phone and asked if she had been arrested for any recent criminal activity and she confirmed that she was arrested for battery, petty theft and fighting. I notified the employee that failure to disclose this information could lead to termination and suspended her at that time. The DCS did pull her background through the AHCA clearing house and we confirmed that she still showed eligible for employment. Grand Boulevard then suspended Ms. Jones and ultimately terminated her on June 27, 2019, on the basis that she “knowingly falsified [her] employment application.” There was no persuasive evidence of Grand Boulevard giving more favorable treatment to nonminority employees who neglected to fully disclose whether they had “ever pled guilty, pled no contest, had adjudication withheld, or been placed in a pre-trial intervention program as a result of being charged with a crime.” Any testimony from Ms. Jones on that point was 6 The pertinent question on the application does not require applicants to disclose arrests. The question asks applicants if they have “ever pled guilty, pled no contest, had adjudication withheld, or been placed in a pre-trial intervention program as a result of being charged with a crime.” either unpersuasive, unsubstantiated, or insufficiently specific. Accordingly, the greater weight of the evidence does not demonstrate that Grand Boulevard committed an unlawful employment practice.
Conclusions For Petitioner: Angela D. Jones, pro se 115 Christie Lane Panama City, Florida 32404 For Respondent: David Sydney Harvey, Esquire Lewis Brisbois Bisgaard and Smith 401 East Jackson Street, Suite 3400 Tampa, Florida 33602
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Ms. Jones’s Petition for Relief. DONE AND ENTERED this 26th day of August, 2021, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Angela D. Jones 115 Christie Lane Panama City, Florida 32404 David Sydney Harvey, Esquire Lewis Brisbois Bisgaard and Smith 401 East Jackson Street, Suite 3400 Tampa, Florida 33602 Stanley Gorsica, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
The Issue The issues in this case are: (1) Whether Petitioner filed her charge of discrimination with the Florida Commission on Human Relations within 365 days after the alleged discriminatory act; and (2) Whether Respondent unlawfully discriminated against Petitioner in connection with Petitioner’s employment by Respondent on the basis of her national origin, gender, or pregnancy.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Olivera is a Cuban-American female. The City hired her, effective March 8, 1993, to work as a secretary in the City Manager’s office. After one week, Olivera was promoted to the position of Office Manager, a more demanding job that entailed much greater responsibilities. The evidence regarding Olivera’s performance as Office Manager is in conflict. Her supervisors believed that Olivera was a marginal employee who failed to discharge her duties satisfactorily. The City has placed in evidence a number of contemporaneous memorandums and other documents that memorialize one or another of Olivera’s perceived performance deficiencies. In contrast, Olivera believed she was performing well, and that her supervisors’ complaints about her were, for the most part, false, exaggerated, or unfair — and worse, a pretext for unlawful discrimination. (Olivera admitted that she had had problems with tardiness during her first year of employment, but all agreed that Olivera had corrected this particular deficiency.) In short, Olivera perceived that she had been singled out for disproportionately harsh treatment and had been made the scapegoat when others failed to do their jobs. More ominously, Olivera accused the City Manager, R.J. Intindola, of constantly having made racist comments about Blacks and Cubans. She claimed that Mr. Intindola uttered racial slurs with such frequency that the workplace became hostile. Further, Olivera asserted that her complaints about Mr. Intindola’s behavior fell on deaf ears. As with the issues pertaining to Olivera’s job performance, the evidence regarding Mr. Intindola’s conduct is in conflict. Mr. Intindola himself denied having uttered the slurs that Olivera put on his lips, yet he admitted that “one time,” in Olivera’s presence, he had referred to another employee, Christy Dominguez, as a “crazy Cuban.” Mr. Intindola claimed that everyone present knew that he was kidding and laughed at the repartee between him and Ms. Dominguez. No one who testified at hearing corroborated Olivera’s account of Mr. Intindola’s conduct. Indeed, Ms. Dominguez, who has been employed with the City since May 1974, disclaimed having witnessed any discriminatory behavior in the workplace there, despite having been the subject of the one possibly derogatory comment that Mr. Intindola indisputably made. On or around April 24, 1995, Olivera was asked to resign her employment with the City to avoid being fired, which would be the consequence of her refusal. Faced with this choice, Olivera submitted a letter of resignation dated April 24, 1995. Thereafter, she received severance pay equal to two-months’ salary. Some time later, most likely during the first few weeks of March 1996, Olivera filed both a Charge Questionnaire and an Affidavit (collectively, the "Federal Forms") with the United States Equal Employment Opportunity Commission ("EEOC"). In the Federal Forms, Olivera alleged that the City had discriminated against her, primarily on the basis of her national origin. The EEOC notified Olivera by letter dated March 22, 1996, that, because her charge had not been timely filed under Title VII of the Civil Rights Act of 1964, the commission had forwarded the Federal Forms to the FCHR. On May 6, 1996, according to a date stamp on the face of the document, the FCHR received a Charge of Discrimination that appears to have been signed by Olivera on April 14, 1996. In this Charge of Discrimination, Olivera again alleged that the City had discriminated against her on the basis of national origin, in violation of her rights under the Florida Human Rights Act. Ultimate Factual Determinations The evidence in this record is not sufficient for the trier to ascertain whether, as a matter of objective historical fact, Olivera adequately performed on the job or not. Suffice it say that a preponderance of evidence fails to establish anything except that Olivera, on the one hand, and her supervisors, on the other, sincerely believed the opinions they expressed on this subject. In other words, Olivera honestly believes that she performed competently and was discriminated against. Her supervisors at the City, in turn, honestly believe that Olivera did not measure up to the Office Manager’s position and needed to be let go for that legitimate reason and no others. The upshot of this inconclusiveness is that Olivera has failed to demonstrate, by a preponderance of evidence, that the City violated her civil rights. Olivera’s conviction that she was the victim of unlawful discrimination, no matter how sincerely and firmly held, is not proof of the fact, at least not without more than the evidence in this record establishes. By the same token, the evidence does not exactly exonerate the City, in the sense of proving that its hands were completely clean or that it acted honorably in respect of Olivera. Rather, more likely than not, Mr. Intindola did on occasion make offhand comments about Cubans at which some persons could take offense. A preponderance of evidence fails to show, however, that he uttered these remarks with a discriminatory intent; that Olivera (or anyone else) suffered any material harm or humiliation as a result of hearing them; or that he did so with such frequency or in such fashion that his conduct could be called extreme. In sum, while it is fair to infer, and the trier so finds, that Mr. Intindola was not always as sensitive to the feelings of others as, in hindsight, he probably should have been, there is nevertheless insufficient evidence to support a finding that he acted willfully or that Mr. Intindola’s occasionally insensitive behavior was so consistently and frequently repeated as to become a condition of Olivera’s employment with the City. Likewise, the greater weight of evidence fails to establish that the environment in which Olivera worked was a hostile or abusive one. On this record the trier cannot say that, more likely than not, the workplace was permeated with discriminatory intimidation, insult, and ridicule. Further, the evidence does not establish that Olivera was treated differently than similarly situated employees who were neither Cuban- American, female, nor pregnant. In the final analysis, then, considering the totality of the circumstances, the evidence presented at hearing demonstrates no more than that the City terminated the employment of an at-will employee for performance-related reasons unrelated to her national origin, gender, or medical condition (pregnancy).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Olivera's Petition for Relief. DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 June, 2001.
The Issue Is Respondent employer guilty of an unlawful employment practice, pursuant to Section 760.10, F.S., for discrimination on the basis of handicap, to wit: diabetes?
Findings Of Fact At all times material, Petitioner was employed part-time at Respondent Jackson County Hospital as an x-ray aide. In this position, he transported patients to and from the x-ray department. Petitioner had diabetes when he was hired by Respondent. He disclosed his diabetes on his initial health information sheet. The employer was aware of Petitioner's diabetes when he was hired. However, on his initial health information sheet Petitioner also represented his health status as "excellent" and denied having any physical condition which impaired his body as a whole. He further represented that he had no defect "which may prevent your performance in the job. . . ". Accordingly, the employer did not know that he had a handicap, if any, when it hired Petitioner. While he was employed as an x-ray aide, Petitioner had two "reactions" on the job due to his diabetes, and he was laid off immediately prior to having a third "reaction." Petitioner did not describe the nature of his diabetic "reactions", and no other record evidence revealed their symptomatology. Nonetheless, Petitioner felt that he did his job well and got along well with everyone. This testimony was unrefuted. Indeed, both of Respondent's witnesses acknowledged that Petitioner performed his job duties acceptably. Petitioner went to Respondent hospital's emergency room as soon as he had these reactions. He assumed that some of the x-ray technicians whom he worked with in the hospital x-ray department talked to Wayne Austin, the head of the x-ray department, about his situation. No other witnesses supported his assumption. No forms reporting either of Petitioner's "reactions" were received by Jim L. Treglon, Respondent hospital's assistant administrator. Wayne Austin knew of Petitioner's diabetes but had no knowledge of either of Petitioner's "reactions" prior to laying him off. When Mr. Austin laid Petitioner off on August 15, 1994, he told Petitioner that it was due to the hospital's economic restructuring. Petitioner believed, upon the basis of conversations with other employees who were not called to testify, that he was laid off due to his diabetes. According to Mr. Treglon and Mr. Austin, the employing hospital underwent a personnel restructuring process by reduction of work force for financial reasons, and Petitioner was laid off as part of the larger financial conservation scheme. Petitioner had the least seniority and was a part-time employee, so his position was eliminated. There is no evidence that Petitioner's position was ever recreated or refilled. At the same time Petitioner's position was eliminated, another x-ray aide with more seniority was allowed to work weekends only, thereby reducing the hours for which that aide was paid. It is possible, but not proven, that this other aide's hours were eventually increased or restored when the hospital's economic situation improved. At the same time Petitioner's position was eliminated, the x- ray department's clerk-secretary was allowed to resign, and that position was not filled. As part of the employer's restructuring process, a total of 17 employees were eliminated from the employer's total work force based only upon seniority at approximately the same time Petitioner's position was eliminated. Mr. Treglon testified that as of the date of formal hearing, the employer employed at least 40 people who have disclosed disabilities. The definition of "disability", as used in his testimony, was not given.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief herein and determining that Petitioner recover nothing thereby. DONE and ENTERED this 26th day of March, 1996, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1996.
The Issue The issues to be resolved in this proceeding are whether the Petitioner was discriminatorily dismissed from her employment by the Respondent on the basis of race and whether she was retaliated against by the Respondent for filing a complaint of discrimination with the City of Jacksonville.
Findings Of Fact The Respondent, the University of Florida, is a state university located in Gainesville, Florida. The Respondent, through its Institute of Food and Agricultural Sciences, operates a Cooperative Extension Service, which maintains a county extension office in each of the 67 counties in the State of Florida. Each of these offices is headed by a county extension director. On September 13, 1991, the Petitioner, Pamela R. Dallis, was hired by the University of Florida as a part-time secretary for the Expanded Food and Nutrition Education Program (EFNEP) in the Duval County Extension Office located in Jacksonville, Florida, which is headed by Mr. Thomas Braddock. The Petitioner was hired in a temporary position known as Other Personal Services (OPS). The Petitioner was initially interviewed for a permanent position, but she did not meet the minimum qualifications for the position because she did not achieve the required score (35 c.w.p.m.) on the typing test. The Respondent changed the classification of the position from permanent to temporary in order to be able to hire the Petitioner despite her typing deficiency. As an OPS employee, she did not have permanent status in the position and was not subject to a probationary period or to periodic written evaluations concerning her performance. The Petitioner's immediate supervisor, Ms. Deborah Patterson, provided the Petitioner training as to the policies and procedures applicable to her position. Specifically, the Petitioner received training concerning data entry, reimbursement of expenses incurred for EFNEP and travel reimbursement vouchers. The Petitioner was also provided assistance concerning computer data entry from another employee in EFNEP. The Petitioner was provided oral counseling concerning deficiencies in her performance on several occasions beginning on January 7, 1992. By June 22, 1992, Respondent considered dismissing the Petitioner from her employment because of her performance deficiencies. Due to budgetary constraints, the decision was made to work more closely with the Petitioner because if she were dismissed, there was no assurance that her position could be filled by another individual. On July 6, 1992, in order to provide closer supervision to the Petitioner, the Respondent moved the Petitioner's work station to a location close to her supervisor's office. Prior to this time, the Petitioner's immediate supervisor had requested to Mr. Braddock that this move be made. Mr. Braddock did not approve the request and recommended that the Petitioner be counseled concerning her work performance. In July, 1992, Mr. Braddock agreed to the move because the Petitioner's performance had not improved despite the performance counseling provided. On July 24, 1993, a few weeks after the Petitioner's work station was moved, she reported to Mr. Braddock an incident that had occurred with a white co-worker, Rachel Fleming. Mr. Braddock spoke separately with each employee and asked for their written description of the incident. There were no other witnesses to the incident. Mr. Braddock received conflicting reports from the Petitioner and Ms. Fleming. The Petitioner stated that on July 24, 1992, after informing Ms. Fleming of her dislike for "chain letters" while talking in the printing room, Ms. Fleming placed a chain letter on the Petitioner's desk with her name on it. The Petitioner scratched her name, placed Ms. Fleming's name on the letter and taped it on Ms. Fleming's desk drawer. The Petitioner stated that she later went to the restroom, and as she was exiting, Ms. Fleming came in, blocked her exit, pushed and grabbed her, and said, "I don't like you no more than you like me, bitch!" Ms. Fleming then allowed her to exit. Ms. Fleming acknowledged in her statement that she had an exchange of words with the Petitioner concerning a chain letter that she had given the Petitioner. Ms. Fleming stated that the Petitioner told her, "This is stupid and so are you." Ms. Fleming also stated that about 15 minutes later, she saw the Petitioner as she was leaving the restroom, asked to speak with her, but the Petitioner "brushed past her" saying nothing. Ms. Fleming grabbed the Petitioner, turned to face her and told her that they did not like each other and to "leave me the hell alone". Ms. Fleming denied pushing the Petitioner or calling her a "bitch". She said she called the Petitioner "a biddy". Based upon the unsubstantiated conflicting reports given by each employee, Mr. Braddock determined that no disciplinary action was warranted and counseled each employee. A few weeks after the incident with Ms. Fleming, the Petitioner filed a complaint of discrimination with the Equal Employment Opportunity Office of the City of Jacksonville on the basis that Ms. Fleming had not been disciplined. After having learned of the complaint, the Petitioner's second level supervisor, Ms. Halusky, advised the Petitioner that the proper avenue for her to file a complaint was through the University's Office of Equal Employment Opportunity, not the City of Jacksonville. The City of Jacksonville did not proceed with the Petitioner's complaint because she was not an employee of the City of Jacksonville. The Petitioner never filed a complaint with the University of Florida. Despite the performance counseling and assistance provided to the Petitioner, her performance did not improve. The deficiencies concerning the Petitioner's data entry skills continued. Two reports that were due in September, 1992 at the main EFNEP office in Gainesville were late because the work done by the Petitioner had to be redone. The Petitioner's supervisor decided that the Petitioner's continuing performance deficiencies were causing additional work for the EFNEP staff and, even without the assurance of a replacement, it was better to have the position vacant rather than having to redo the Petitioner's work to correct the mistakes. By letter dated September 10, 1992, the Petitioner's immediate supervisor advised her of her termination effective at the close of business that day. The reason given for her dismissal was that she had not developed in her job as expected and because of performance deficiencies. Sixty-six percent of the employees in EFNEP in the Duval County Office are African American. They serve a clientele that is 75 percent African American. Thus, EFNEP is interested in hiring and retaining African American employees for the program. Three of the individuals who testified at the Petitioner's request are African Americans who work at the Duval County Extension Office. They testified that they had not experienced discrimination in their employment at the Duval County Extension Office. Two of those three employees are in EFNEP. One has been an employee in the office for 23 years, and the other has been an employee for 14 years.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's petition for relief. DONE AND ENTERED this 1st day of December, 1994, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1994. APPENDIX TO RECOMMENDED ORDER The Respondent's proposed findings of fact are all accepted. The Petitioner filed no proposed findings of fact. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esq. General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Pamela R. Dallis 8050 Arlington Expressway #C-401 Jacksonville, FL 32211 Isis Carbajal de Garcia, Esq. Associate General Counsel University of Florida 207 Tigert Hall Gainesville, FL 32611
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner when it fired her in March 2004.
Findings Of Fact Petitioner is an African-American female. Hampton Court is assisted living facility in Haines City, Florida. Its residents include elderly Medicaid recipients. Kenneth Wilder is the executive director of Hampton Court. Mr. Wilder is a white male. Mr. Wilder has approximately nine years of experience administering assisted living facilities, and at the time of the events giving rise to this proceeding, he had been the executive director of Hampton Court for approximately a year and a half. Petitioner’s immediate supervisor was Dorothy Pelemon. Ms. Pelemon, like Petitioner, is an African-American female. Petitioner was hired by Hampton Court as a Resident Care Aide in early February 2004. Her primary job duties in that position were providing direct care to Hampton Court residents. Petitioner’s salary was $7.50 per hour, and she typically worked 40 hours per week. Several weeks after she was hired, Petitioner was promoted to the position of Resident Care Manager. In that position, Petitioner still provided direct care to Hampton Court residents, but she also had some supervisory duties. Petitioner only held the Resident Care Manager position for two or three weeks. On March 10, 2004, she was demoted back to the position of Resident Care Aide for improperly transcribing medications on patient charts and for improperly assisting a patient with his medications. On Saturday, March 20, 2004, Petitioner was involved in an altercation with another employee, Ivette Rodriguez. Ms. Rodriguez is a Puerto-Rican female. She was re- hired as a Resident Care Aide at Hampton Court in early March 2004, after having been fired approximately six months earlier for excessive tardiness and absenteeism. The altercation between Petitioner and Ms. Rodriguez was the culmination of a series of disputes that the two had on March 20, 2004. According to Petitioner, the disputes started when Ms. Rodriguez got agitated with her when she took responsibility for the upstairs residents, who had fewer medications, and left Ms. Rodriguez with the downstairs residents, who had more medications. According to Petitioner, Ms. Rodriguez also got agitated with her later in the day for not taking a phone message. Petitioner also testified that she was agitated with Ms. Rodriguez for taking breaks and receiving numerous phone calls while “on the clock.” According to Petitioner, the altercation that led to her firing started when she observed Ms. Rodriguez writing in the “manager’s log” at the nursing station. Petitioner told Ms. Rodriguez that she was not allowed to write in the log and Ms. Rodriguez got upset. Petitioner and Ms. Rodriguez exchanged words, and at one point during the altercation, Petitioner told Ms. Rodriguez that “you don’t know who you’re dealing with,” or words to that effect, and she expressly threatened to send Ms. Rodriguez to the hospital. Petitioner did not follow through on the threat, and there was no physical contact between her and Ms. Rodriguez at any point during the altercation. The altercation was entirely verbal and never went beyond Petitioner and Ms. Rodriguez yelling at each other. The altercation was witnessed by other employees and by Hampton Court residents, and according to the “write-ups” given to Petitioner and Ms. Rodriguez, the altercation “created a hostile living environment for [the residents].” Petitioner and Ms. Rodriguez were separated for the remainder of the day, and there were no further incidents between the two. Neither Mr. Wilder, nor Ms. Pelemon was at the facility at the time of the altercation between Petitioner and Ms. Rodriguez. Mr. Wilder and Ms. Pelemon conducted an investigation into the altercation the following week. Based upon the investigation, they preliminarily decided that both Petitioner and Ms. Rodriguez should be fired and “write-ups” were prepared to effectuate that discipline. The “write-up” for Petitioner contains the following account of the altercation: On March 20, 2004, [Petitioner] was involved in an altercation with co-worker Ivette Rodriguez. The altercation resulted when [Petitioner] took control of the upstairs med cart instead of the one she was supposed to take control of. [Petitioner] refused to cooperate and escalated the level of aggression in the fight making threats such as, “I’ll send to you Heart of Florida Hospital!” . . . . The “write-up” for Ms. Rodriguez contains the following account of the altercation: On March 20, 2004, [Ms. Rodriguez] was involved in an altercation with co-worker [Petitioner]. The shouting and fighting took place in public areas and was witnessed by co-workers and residents. [Ms. Rodriguez] also had her brother-in-law come to the community to get involved by confronting [Petitioner]. . . . . The source of the accounts of the altercation in the “write-ups” is not entirely clear and, as a result, the findings made above regarding the altercation are based on Petitioner’s testimony at the hearing rather than the accounts in the “write- ups”. (It is noted, however, that the “write-up” given to Petitioner and her testimony at the hearing both make reference to her express threat of physical violence towards Ms. Rodriguez.) Mr. Wilder and Ms. Pelemon met with Ms. Rodriguez on March 24, 2004, to discuss the altercation. Ms. Rodriguez was given an opportunity to tell her side of the story and to explain her actions. In doing so, Ms. Rodriguez acknowledged that her actions were wrong, she expressed remorse for her role in the altercation, and she promised that it would not happen again. Based upon the remorse expressed by Ms. Rodriguez, Mr. Wilder and Ms. Pelemon agreed that Ms. Rodriguez should be suspended for one week rather than be fired. The “write-up” prepared in advance of the meeting was edited to change Ms. Rodriguez’s discipline from termination to “1 week suspension from 3/24/04 to 3/30/04.” Mr. Wilder and Ms. Pelemon met with Petitioner the following day, March 25, 2004, to discuss the altercation. Like Ms. Rodriguez, Petitioner was given an opportunity to tell her side of the story and to explain her actions, but unlike Ms. Rodriguez, Petitioner expressed no remorse for her actions and, according to Mr. Wilder, she was loud and acted aggressively during the meeting. Petitioner and Ms. Pelemon testified that Petitioner did not act aggressively during the meeting but, consistent with Mr. Wilder’s testimony, they acknowledged that Petitioner did speak in a loud voice at the meeting and that she never expressed any remorse for her involvement in the altercation with Ms. Rodriguez. Based upon the lack of remorse expressed by Petitioner regarding her role in the altercation, Mr. Wilder and Ms. Pelemon agreed that the preliminary recommendation of termination should stand for Petitioner, and her employment with Hampton Court was terminated on March 25, 2004. Ms. Pelemon testified that she fully supported the decision to fire Petitioner for her role in the altercation with Ms. Rodriguez and, consistent with Mr. Wilder’s testimony, Ms. Pelemon testified that race played no part in Petitioner’s termination. Ms. Pelemon also testified that she fully supported the decision to suspend Ms. Rodriguez rather than fire her based upon the remorse that she expressed for her role in the altercation. Petitioner started working for Wal-Mart in May 2004, and she is still working there. She is paid $15.10 per hour and she typically works 36 hours per week. Ms. Rodriguez was fired by Hampton Court in August 2004 for poor work performance.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing with prejudice Petitioner’s discrimination claim against Hampton Court. DONE AND ENTERED this 25th day of October, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 25th day of October, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Kenneth Wilder Heart of Florida Care Inc., d/b/a Hampton Court of Haines City 301 South 10th Street Haines City, Florida 33844 Laurie Ann Johnson 623 Avenue O, Northeast Winter Haven, Florida 33881
The Issue Whether respondent discriminated against petitioner on account of her gender in terminating her employment?
Findings Of Fact Petitioner Audrey Owens began work in January of 1985 or thereabouts as the "service writer" at what was then Santa Rosa Datsun, an automobile dealership in or near Milton. Until she was fired in April of the same year, she had the job of dealing with customers who brought cars to be serviced. She wrote up what needed to be done, then gave the job to a mechanic to do. Several mechanics worked at the dealership, but on commission. By allocating work among them, the service writer determined what their income would be. A number of mechanics did not feel that she distributed the work equitably. This was no secret to parts and service manager George O. Brewer, the service writer's immediate supervisor; he saw a mechanic nearly burst into tears on account of it. He had complaints from numerous employees and from some customers about Ms. Owens behavior toward them. He also felt she should not wear blue jeans to work, and asked her to dress more formally. She persisted in wearing attire she was repeatedly told was inappropriate. In addition to the unresolved issue of dress, other frictions marred the relationship between Ms. Owens and Mr. Brewer. She pouted when he "gave her guidance," and failed to follow various instructions. Once he declined her request to install a rubber mat to stand on behind the counter on which she wrote service orders, and she responded that she would go over Mr. Brewer's head to George R. Kearney, who owned the dealership. It was in that context that Mr. Brewer told her he would fire her if she went to Mr. Kearney. All the while, the mechanics dissatisfaction and resentment grew. Eventually Mr. Brewer did fire her, giving her only a day's notice. She threw a pen at him. At hearing, Ms. Owens made various false and sensational charges against Mr. Brewer, although she did not testify that her termination was for failure to bestow sexual favors. She said she was fired when she asked Mr. Brewer why he had made a fool of her by yelling at her rudely, telling her to ask a mechanic to install seat belts in a Toyota truck. Jean Rubbards, petitioner's predecessor as service writer," left the job to spend more time with her son, when the child's father died. Mrs. Rubbards and Andrea Penten, who succeeded petitioner as service writer, testified that Mr. Brewer was demanding but fair, a good person to work for, and that their relationships with him lacked sexual overtones. When Mr. Brewer's supervisor, Mr. Kearney, bade Ms. Owens farewell, she did not report that she had been harassed sexually. In addition to Messrs. Brewer and Kearney, seven employees who worked at the dealership contemporaneously with Ms. Owens testified at the hearing, although at least one had since left for another job. Not one of them ever received any indication at the time that anybody at work had ever harassed her sexually.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Sylvester Brown, was subject to discrimination in employment for the reasons alleged in the Petition.
Findings Of Fact The Petitioner, Sylvester Brown, was terminated from his position as Laborer, position number 51343, within the Facilities Operation and Maintenance Department of Florida State University (FSU) on October 7, 1999, for violation of a Last Chance Agreement and absence without authorized leave. The Petitioner had been employed by FSU for 24 years. Petitioner's Disciplinary Violations Leading to Termination Attendance is a critical element of the Laborer's job because departmental productivity depends on the reliable availability of employees. The Petitioner received a copy of Rule 6C2-4.070, Guidelines for Disciplinary Action, Rules of the Florida State University Administrative Code on January 29, 1988, which provided notice to the Petitioner of FSU's standard of conduct and the associated penalties for violation. The Petitioner was cited for numerous disciplinary infractions prior to his dismissal. The Petitioner's work history documents a consistent trend of absences which grew progressively worse over time. A list of documentation in evidence, exhibiting disciplinary action taken by FSU against the Petitioner includes: A three day suspension for Absence Without Authorized Leave (AWOL) and Excessive Absences, dated January 3, 1997. A written reprimand for Excessive Absences and AWOL, dated August 6, 1996. An oral reprimand for excessive absences, dated April 26, 1996. 1996. A written reprimand for AWOL, dated February 29, A written reprimand for AWOL, dated August 14, 1991. A written reprimand for excessive tardiness, dated June 5, 1989. A written reprimand for excessive tardiness, dated February 22, 1989. A written reprimand for excessive tardiness, dated July 8, 1988. A written reprimand for AWOL, dated May 25, 1988. The Petitioner was cited for excessive tardiness in an official written reprimand dated July 8, 1988, and the Petitioner was again reminded that his performance hindered the department's ability to perform its function. An oral reprimand for excessive tardiness, dated January 28, 1988. An oral reprimand for misuse of state property and equipment, dated July 11, 1985. A written reprimand for misuse of state property and equipment dated March 21, 1984. A written reprimand for excessive absences, dated February 7, 1984. A written reprimand for AWOL and misuse of state property and equipment dated, January 25, 1983. A three day suspension for AWOL, dated July 27, 1981. A written reprimand for AWOL, dated July 13, 1981. The Petitioner was directed in an August 14, 1991, written reprimand to phone his supervisor as close to 8:00 a.m. as possible on days he would be unable to report to work. The Petitioner was reminded in the February 29, 1996, written reprimand of the policy requiring employees to provide supervisors with advanced notice or documentation for leave to be authorized. The Petitioner was informed on April 26, 1996, that his absences, both excused and unexcused, exceeded established attendance and leave standards. Specifically, from January through April, the Petitioner used 33 hours of annual leave, 31 hours of sick leave, and 29 hours of leave without pay. FSU notified the Petitioner that his absences and sick leave totaling 33 hours during the period from April 26, 1996 to August 6, 1996, were deemed excessive and in contravention of departmental standards. The Petitioner was also cited for six hours of being absent without authorized leave. The Petitioner's chronic absenteeism did not improve. The period from August 6, 1996 through January 3, 1997, witnessed 46 hours of sick leave or unauthorized leave on the Petitioner's part. An inventory of the Petitioner's absences following his suspension from January 7-9, 1997 until August 22, 1997, catalogued 56 hours of sick leave, 16 hours of leave without pay and two hours of absence without authorized leave. This amount of leave was "considered to be excessive and completely unacceptable." [Id.] Further, the university did not receive any medical excuses for the Petitioner's use of sick leave during this period. [Id.] Counseling was provided to the Petitioner by FSU regarding the use of sick leave on August 17, 1998. An examination of the Petitioner's attendance revealed that he used 63 hours of sick leave from February 20, 1998 through August 6, 1998. [Id.] The university's standard for the same period of time was 33 hours of sick leave. [Id.] The Petitioner was further advised by FSU that he would not be compensated for three consecutive absences or three absences within a 30-day period without proper medical documentation. FSU assessed the Petitioner's attendance from January 8, 1998 through August 6, 1998, by comparing the standard allocated for sick leave to the Petitioner's actual use of sick leave. The sick leave standard for employees for the period under review was 44.16 hours whereas the Petitioner expended 67 hours of sick leave. [Id.] The record establishes that the Petitioner was warned 17 times in writing through reprimands, memorandums, and counseling notices dating back to 1981 that absenteeism was punishable under university employee disciplinary standards. Tardiness and absenteeism are, in fact, grounds for dismissal under the FSU Handbook for Employees. The Petitioner was warned twice in writing that failure to rectify his recurring absenteeism could result in his dismissal. Petitioner's Termination The FSU's Guidelines for Disciplinary Action are based on the concepts of progressive and cumulative discipline. The Disciplinary Guidelines outline standards to apply for punishable offenses to ensure similar treatment. Ms. Susannah Miller, Manager of Employees Relations at FSU, testified that the Petitioner's personnel file revealed the worst case of absenteeism she has seen at FSU. Excessive absences is defined in the Guideline for Disciplinary Action as "an attendance record of recurring absences, even though all or a majority of the absences were necessary and excused." Dismissal is allowed as proper punishment for an employee's fourth violation of the excessive absence rule. FSU notified the Petitioner of its intention to terminate him for excessive absences, effective on or shortly after October 12, 1998. In lieu of firing the Petitioner, FSU elected to allow the Petitioner to enter into a "Last Chance Agreement" (LCA) with FSU to avoid dismissal. Ms. Miller stated that Last Chance Agreements allow a final opportunity for employees to improve their performance. Ms. Miller further testified that to her knowledge FSU has never retained any employee that violated a Last Chance Agreement. The Last Chance Agreement required the Petitioner to (1) obtain prior written approval of requests for annual leave or leave without pay; (2) follow departmental policy and call-in between 8:00 and 8:30 a.m. and speak personally with his supervisor or proper designee if he was sick and unable to report to work; and (3) agree that violation of any LCA provision would result in immediate termination for cause. The Petitioner violated the Last Chance Agreement when he did not report for work on August 27, 1999, because he neither obtained prior approval for the absence nor followed the call-in procedure. The Petitioner also failed to provide any documentation justifying his absence. The Petitioner was in violation of the Last Chance Agreement on August 31, 1999, when he was tardy without permission and failed to follow the call-in procedure. The Petitioner's breach of the Last Chance Agreement is even more egregious because he collected his paycheck prior to work and could have easily informed his supervisor or the designee that he needed leave that day. In addition to violating the terms of the Last Chance Agreement, the Petitioner was also AWOL on August 27 and August 31, 1999. AWOL is "failure to obtain approval prior to any absence from work" and is punishable by dismissal for the third occurrence. The Petitioner admitted that he violated the Last Chance Agreement. On September 15, 1999, FSU informed the Petitioner of its decision to terminate him for violating the Last Chance Agreement and absence without authorized leave. The Petitioner was dismissed on October 7, 1999. Petitioner's Step One Grievance was denied on December 13, 1999. FSU's decision to terminate the Petitioner for violation of the Last Chance Agreement and absence without authorized leave was upheld by the State University System of Florida in its Step Two Grievance decision. Petitioner's Injury The Petitioner's Position Description reveals that lifting is an integral part of a laborer's duties. The Petitioner's 1995 Position Description allocates 85 percent of the job's essential function to lifting, moving and arranging university property and requires that the laborer be able to lift 30 pounds. The Petitioner sustained a back injury at work on September 4, 1997. The Petitioner's job duties changed as a result of the injury and he was tasked with inspecting fire extinguishers from September 10 through November 12, 1997. A physical capacity assessment performed on the Petitioner indicated that he was capable of performing at a medium demand level. The Department of Labor defined medium demand as capable of lifting 50 pounds and pushing and pulling 50 pounds. The Petitioner was temporarily re-assigned to the Grounds Section of the Facilities, Operations and Maintenance Department on December 23, 1997. The Petitioner testified that his job function involved re-cycling. The Petitioner's assignment in the Grounds Section was light duty and he was informed that his job duties could be modified after his physician reviewed the physical capacity assessment. Dr. Alexander, the Petitioner's physician, declared the Petitioner fit for medium demand duty with a 35-pound lifting limit on March 24, 1998. Robert Pullen, American Disabilities Act Coordinator at FSU, was directed by Carolyn Shackleford, under the University's Reasonable Accommodation Policy, to ensure that the Petitioner's job activities with the Grounds Section did not exceed the 35p-pound lifting threshold. The Petitioner never contacted Mr. Pullen's office regarding reasonable accommodation. Mr. Pullen determined that the Petitioner's duties did not violate the lifting restriction and were in full compliance with the accommodation policy. The Petitioner testified that he could lift 35 pounds repetitively. The record reflects no evidence of age discrimination committed by the Respondent against the Petitioner. The record indicates no evidence that the Petitioner was terminated due to his race. The Petitioner presented no evidence or testimony regarding retaliation by FSU.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
The Issue Whether Respondent discriminated against Petitioner on the basis of her sex, by sexual harassment, in violation of Subsection 760.10(1) and/or (2), Florida Statutes (2008).1
Findings Of Fact Petitioner is an adult female, and as such, is a member of a protected class. Respondent is an agency of the State of Florida charged with the duty to protect the public through the incarceration and supervision of offenders and to rehabilitate offenders, pursuant to Section 20.315, Florida Statutes. In August 2007, Petitioner applied for a job as a correctional officer with the Florida Department of Corrections through the Charlotte Correctional Institution (the Facility) located in Punta Gorda, Florida. Petitioner's contact person during the application process was Recruitment Sergeant Dennis Britton. Petitioner was initially interviewed by Sergeant Britton. At the conclusion of the interview, Petitioner was about to leave when Britton grabbed her by the shoulder, pulled her to him and bent down to her face in a kissing position. Petitioner put her hands on his chest, pushed him away and left. On other occasions during the interview process, specifically on August 21, 2007, and October 1, 2007, Briton coerced Petitioner to come into his office at the Facility and proceeded to physically and sexually assault Petitioner. Britton would grope, grab, and forcibly kiss Petitioner against her will. Throughout the recruitment process, both Britton and Petitioner exchanged e-mails of a professional and personal nature. On or about September 10, 2007, Warden Adro Johnson approved Petitioner for employment with the DOC. Warden Johnson, not Sergeant Britton, made the hiring decisions at Charlotte Correctional Institution. November 30, 2007, was Petitioner's first day of employment at the Facility. On November 30, 2007, Petitioner was again compelled to appear at Britton's office where he proceeded to physically and sexually assault Petitioner. Britton groped, grabbed, and forcibly kissed Petitioner against her will. On several other occasions between November 2007 and March 2008, Britton would summon Petitioner to his office and proceed to make sexual advances on her against her will. In December 2007, Petitioner completed New Employee Orientation. A component of the New Employee Orientation is training with regard to Respondent's Equal Employment Opportunity Policy and, specifically, the Sexual Harassment policy. Petitioner completed the computer-assisted training on sexual harassment in December 2007. In addition, new employees are routinely provided with hard-copy pamphlets on sexual harassment. Respondent's sexual harassment policy is also posted at various locations at Charlotte Correctional Institution. At no time during this period did Petitioner complain, verbally or in writing, to her supervisor or anyone else at the Facility. On March 14, 2008, Petitioner started the correctional officer training academy at the Facility. On March 17, 2008, Petitioner filled out an incident report stating she had been sexually harassed by Sergeant Dennis Britton. The report was sent up the chain of command, and Warden Johnson immediately removed Sergeant Britton from his position as the recruitment sergeant and reassigned him to a position on the compound. An investigation into the allegations was started on March 19, 2008, by Respondent's Office of the Inspector General. The investigation was led by Inspector Daryl J. McCasland of the Office of the Inspector General. The findings of the investigation were that Britton violated Section 784.03, Florida Statutes, and Florida Administrative Code Rule 33-208.033(22) (Conduct Unbecoming a Public Employee). On April 9, 2008, while the investigation was still pending, Sergeant Britton submitted his resignation, effective May 1, 2008. Britton admitted to the accusations of sexual battery against Petitioner to the warden of the Facility. Britton was removed from the Facility on or about April 9, 2008. Petitioner testified that on at least five separate occasions between April 23, 2008, and May 23, 2008, Respondent allowed Britton to return into the Facility and granted Britton access into the restricted-access inner-compound where Petitioner worked so that he was able to continue to harass Petitioner. However, this testimony was uncorroborated and deemed unreliable. At no time during Petitioner's employment did Sergeant Britton supervise Petitioner or work directly with her. He did not discipline her, set her schedule, or assign her duties. From November 30, 2007, until March 14, 2008, Petitioner worked inside the secure perimeter, while Britton worked as the recruitment sergeant outside the secure perimeter in the administration building at the Facility. Petitioner was in the academy beginning March 14, 2008, and Sergeant Britton had no supervisory or training responsibilities over officers in the training academy. Petitioner was continually in the correctional officer academy from the time she filed her initial complaint on March 17, 2008, until Britton's resignation became effective on May 1, 2008. While in the academy, Petitioner was continually with other trainees and other instructors. Sergeant Britton never made any additional sexual advances or had any conversation with Petitioner following her complaint on March 17, 2008. Inspector Daryl McCasland substantiated the complaint against Sergeant Britton for battery, conduct unbecoming a public employee, and failure to follow written procedures. The inspector forwarded his results to the Office of the State Attorney in Punta Gorda which declined to prosecute. Respondent acted in a prompt and reasonable manner to stop the harassment and address it once it was known. Petitioner failed to exercise reasonable care in the reporting of the harassment. Petitioner presented no evidence on the issue of retaliation. Petitioner presented no evidence of quantifiable damages. Her testimony was that she felt harassed and physically upset by the conduct of Britton and that she felt harassed and physically upset by her fellow officers after her complaint become known, but no proof of an adverse employment action was presented. Given the lack of evidence to support Petitioner's allegations, the Petition for Relief should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issued a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 1st day of December, 2009, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2009.
