The Issue Whether Petitioner was wrongfully terminated from his position as a janitor with Respondent because of his handicap, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner, Lee, was hired by Respondent in August 1994 as a custodial worker at the Tallahassee Mall in Tallahassee, Florida. As a janitor Petitioner's duties included bending, stooping, and lifting. He was assigned to zone 3 in the Mall. Up until 1996, when Petitioner was injured, Petitioner received good evaluations on his job performance. Indeed Petitioner was very proud of the quality of his work and took special care to do his job well. Sometime prior to May 20, 1996, Petitioner, while at work and in the scope of his employment, stepped on a set of stairs which were not properly attached to a stage in the Tallahassee Mall. The steps slipped causing Petitioner's feet to come out from under him. Petitioner fell flat on his back. As a consequence Petitioner suffered a permanent back injury for which he received workers' compensation. The injury impairs his ability to work and therefore is a handicap. Around May 20, 1996, Petitioner was released by his doctor and was given orders for light duty with no bending, stooping, or heavy lifting. Petitioner gave these orders to his supervisor, Mr. Navin, when he returned to work on May 20, 1996. Respondent had light duty work available which Petitioner was qualified to perform. However, Respondent did not assign Petitioner to light duty work, but changed his work area from zone 3 to zone 1. Zone 1 is located at the front entrance to the mall and requires more work to maintain. Petitioner attempted to perform his duties but could only work for 3 1/2 hours before being overcome by pain from his injury. Petitioner could not work the next four working days because of the aggravation of his injury. On May 28, 1996, after returning to work, Petitioner was again given full duty work. Petitioner attempted to perform his custodial duties for about 2 weeks. However, the pain from his injury was so severe he again requested light duty work. Petitioner's supervisor asked Petitioner to bring him another notice from his doctor. Petitioner's doctor faxed the supervisor a second notice and Petitioner was placed on light duty work. Once Petitioner was placed on light duty work, the mall manager, Mr. Renninger, followed Petitioner around the mall watching him all the time while he worked. On July 8, 1996, prior to the mall opening for business, Petitioner was helping one of the mall store owners with a problem. Such aid was part of Petitioner's job. The mall manager walked up to Petitioner and began to yell at him in a very rude and disrespectful manner. The manager would not listen to Petitioner's explanation of the event. The manager gave Petitioner a written disciplinary notice for his aid to the mall store owner. The manager continued to follow Petitioner around the mall while he worked. Sometime around August 15, 1996, the mall manager advised the mall's employees that they should take their respective vacations prior to October. Petitioner thought it would be a good time for him to take the 4-day vacation time he had accumulated during his employment with the mall. He could use the time to allow his back to heal more. On August 15, 1996, Petitioner requested vacation leave and vacation pay for the period beginning September 3, 1996 and ending September 9, 1996. Initially, the request was denied. Petitioner's supervisor felt he had missed too much work and been late too often. However, Petitioner had only been absent or late in relation to his back injury. Petitioner explained that fact to his supervisor. His supervisor agreed and approved Petitioner's vacation. Petitioner returned to work on August 10, 1996. An argument with the administrative assistant occurred when she refused to recognize that Petitioner was entitled to be paid for his vacation time. She was not going to turn in any time for him so that Petitioner could get paid while on vacation. Getting a paycheck was a serious matter to Petitioner, and Petitioner, understandably, became gruff with the administrative assistant. Petitioner only raised his voice at the administrative assistant. He was not abusive and did not curse at her. In fact, the administrative assistant yelled at Petitioner when he raised the subject of his pay "Now, before you start bitching." Petitioner called the headquarters of Respondent and confirmed he had vacation time and pay accrued. After this incident Petitioner was fired ostensibly for mistreating the administrative assistant. The administrative assistant, who was incorrect, was not terminated. The reason appears to be a pretext. Petitioner's pay was $5.35 per hour and he worked a 40-hour-work-week. After his termination, Petitioner actively sought employment but could not find any until September 1, 1997. At that time he began work for Tallahassee Community College as a custodial worker with light duties at a higher rate of pay. Petitioner's search for work was reasonable.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding Respondent guilty of an unlawful employment practice against Petitioner and awarding Petitioner backpay in the amount of $11,770.00. DONE AND ENTERED this 27th day of October, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 27th day of October, 2000.
The Issue Whether Respondent terminated Petitioner from her employment based on perceived handicap discrimination.
Findings Of Fact Petitioner was hired by Respondent on March 5, 1991, to work as a server at Respondent's restaurant, Bon Appetit. Shortly thereafter, on or about April 8, 1991, Petitioner was promoted to restaurant manager. During her tenure as restaurant manager, Petitioner was counselled about her appearance and personal hygiene. Additionally, Petitioner had problems with Respondent's performance including balancing the cash and credit card receipts collected during her shifts. Respondent required its managers to notify Respondent in advance of any absence due to a medical condition where possible. In all cases; however, managers were required to communicate with Respondent concerning their absence so that Respondent could schedule and plan for a manager's absence to avoid any disruption in its business and the scheduling of other employees. During her employment as restaurant manager, Petitioner was diagnosed as having "hammer toes". Petitioner was out of work for three weeks to have this condition surgically corrected. This absence was approved in advance by Respondent and Petitioner received full compensation for that medical leave. Following the scheduled three week absence for the surgery, there was an additional two to three week period during which Petitioner reported for work late or would leave early. Respondent considered those late arrivals and early departures to be unexcused absences. Following foot surgery, Petitioner returned to her position as manager with the same pay. Subsequently, during May 1992, Petitioner was out of work for surgery to have an ovarian cyst removed. This absence was approved by Respondent and Petitioner was out of work for five days. During this period of medical leave, Petitioner received her pay and returned to work following surgery. Following the cyst surgery, Petitioner complained of lower back pain which her gynecologist attributed to swelling from the cyst surgery. On May 30, 1992, Petitioner went to the emergency room at Morton Plant Hospital in Tampa suffering from lower back pain. Petitioner contacted restaurant manager, Leo Enciso, and told him of her visit to the hospital and "not to count on her reporting for work that day". Petitioner also informed Enciso that she would call as soon as she had been examined to give an update on her status. Subsequent to her initial phone call to Enciso on May 30, 1992, Petitioner did not speak with Enciso nor did he receive any messages from Petitioner concerning her status from May 30, 1992 to June 8, 1992. Following her treatment in the emergency room at Morton Plant, Petitioner sought treatment on that same date, May 30, 1992 from chiropractor Dr. Lynn Colucci. At that time, Petitioner knew she would be out of work until at least one more day. Petitioner did not communicate that information to Respondent or any of its management personnel. Petitioner's next consultation with her chiropractor to evaluate her condition was June 1, 1992. Following that session, Petitioner was advised that she would be out of work for at least two more days. Petitioner did not communicate this information to Respondent or any of its management staff. Petitioner again met with her chiropractor on June 3, 1992 and was told that she would be unable to return to work until June 8, 1992. Petitioner failed to communicate this information to any of Respondent's management or staff. Kailie Borzoni, Peter Kreuziger and Sharon Verhage, all managerial employees of Respondent, made several unsuccessful attempts to contact Petitioner by phone. Verhage left a message on Petitioner's answering machine but Petitioner did not return her phone call. Petitioner was released to return to work by her treating chiropractor on June 9, 1992. There were no restrictions placed on her when she was released for work and her physician related that Petitioner's back problem had "resolved itself". Petitioner was discharged by Respondent on June 9, 1992, when she reported for work. Peter Krueziger made an independent decision to discharge Petitioner based on what he considered to be poor performance, poor appearance, excessive absences and failing to truthfully advise of her work status and whereabouts from May 30, 1992 to June 8, 1992. When Petitioner was initially employed as a restaurant manager, Respondent's manager, Krueziger, noticed that Petitioner's dress apparel did not meet up to the standards of a "four star" restaurant that Respondent was operating. As a result, Respondent spoke with Petitioner about his expectations with regard to her dress and advised the controller to advance Petitioner some funds to purchase a wardrobe. Respondent sent one of its managerial employees to accompany Petitioner on a shopping trip to upgrade her wardrobe to reflect what Respondent considered to be appropriate dress for a restaurant manager. Respondent's managerial staff noted and complained to Petitioner on several occasions after she was given a new wardrobe, that her attire did not measure up to the standards that they expected of a manager. Negative comments were made about Respondent's stained clothing, her fingernails and her unkempt hair. Petitioner conceded that she had an exceptionally hard time balancing her cash and credit card accounts at the end of each shift. While some managers experience difficulty at the outset of their employment because an antiquated accounting system was being used, they soon became proficient in closing out the cash and credit card accounts following their shift. Respondent discharged Petitioner based on her failure to properly notify it of her absence from work during the period May 30, 1992 through June 8, 1992. Petitioner's medical condition, real or perceived, played no part in Respondent's decision to terminate her.
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 Petitioner's petition for relief as she failed to establish that she was terminated from employment because of a perceived handicap. DONE AND ENTERED this 6th day of December, 1994, in Tallahassee, Florida. JAMES E. BRADWELL 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 6th day of December, 1994. APPENDIX Rulings on Petitioner's Proposed Findings of Fact Paragraph 3 adopted as modified, paragraph 2 recommended order. Paragraph 4 rejected, contrary to the greater weight of evidence, paragraph 5 recommended order. Paragraph 5, adopted as modified, paragraph 4 recommended order. Paragraph 7, adopted as modified, paragraphs 9 and 10 recommended order. Paragraph 8 rejected, irrelevant. Paragraphs 9 and 10 rejected, contrary to the greater weight of evidence, paragraph 15 recommended order. Paragraphs 11-16 rejected, contrary to the greater weight of evidence. Paragraph 17 rejected, irrelevant and unnecessary. Paragraphs 18 and 19 rejected, conclusionary. COPIES FURNISHED: C. A. Sullivan, Esquire 311 S. Missouri Avenue Clearwater, FL 34616 Charles A. Powell, IV, Esquire Peter W. Zinober, Esquire Zinober and McCrea, P.A. 201 E. Kennedy Blvd., Ste. 1750 Tampa, FL 33602 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570
The Issue The issue is whether the Respondent committed an unlawful employment practice under section 760.10, Florida Statutes, by discriminating against Petitioner on the basis of handicap or disability, and if so, what is the appropriate remedy.
Findings Of Fact North Florida Sales Company (North Florida), the Respondent in this case, is a beer and ale wholesaler that does business in Florida and employs over 15 people. Window Mitchell, Petitioner in this case, began working at North Florida as a custodian in the maintenance department on June 22, 2009. His normal schedule at North Florida was Monday through Friday. Near the time he was hired, Petitioner received a copy of Respondent's "Employee Information Handbook." The handbook advised Petitioner of North Florida's "open door" policy that permitted employees to take any complaints or problems directly to the Human Resources Manager, the General Manager, or the President. It further advised employees that it was North Florida policy to treat all employees equally without regard to race, color, religion, sex, age, marital status, disability, or national origin. It stated that any violation of North Florida's equal opportunity policies must be reported immediately to the Human Resources Manager or General Manager without delay. The employee handbook also advised Petitioner of North Florida's policies on attendance. It required employees to give advance notice of any absence or lateness, and noted that employees who fail to maintain an acceptable attendance record would be subject to disciplinary action. On September 10, 2009, Petitioner received an Employee Warning Report noting that Petitioner had missed six days of work during his 90-day probationary period. The report stated that this amount of absenteeism was considered excessive and that immediate improvement was expected. It was signed by Petitioner and Petitioner's supervisor. On November 10, 2009, Petitioner received another Employee Warning Report. It stated that Petitioner's attendance continued to be a problem and that it was creating a burden on the maintenance department. It stated that further incidents of absenteeism, or arriving late or leaving early, would result in termination. It was signed by Petitioner, Petitioner's supervisor, and Margaret Lombardi, Human Resources Manager. There is no evidence that Petitioner ever received any further "Employee Warning Reports." On June 3, 2010, Petitioner received an Employee Performance Review. In his review, Petitioner was given a rating of "3" out of "10" on "dependability." The comment under that heading indicated that Petitioner was "out from work too many days." Petitioner received two other "3"s on his evaluation and received no evaluation above a "5" in any area. In the final section, entitled "Objectives for the Next Review Period," the first of two objectives listed was "keep all curbs in warehouse painted." The second was, "try to be at work all of the time." On July 17, 2010, Petitioner was returning from a barbecue with four friends. He testified that he had not been drinking. The car he was driving ran into a pole head-on. Petitioner's knee and leg hurt and became badly swollen. He had "little chunks of meat" missing from his left elbow and forearm. He was seen by an emergency doctor at Baptist Medical Center about 9:45 p.m., released, and given discharge instructions. On July 19 or 20, 2010, Ms. Lombardi received a paper entitled Adult Discharge Instructions on a Baptist Health form dated July 17, 2010. It indicated that Petitioner had been in the vehicle collision and had been treated for abrasions and a contusion on his right knee. In the instructions, Petitioner was told to take medications as instructed, follow up with the doctor in two days, and return to the emergency room for worsening symptoms. A box was checked indicating "no work for 2 days." Ms. Lombardi interpreted the note as excusing Petitioner from work on Sunday and Monday, and therefore expected Petitioner to return to work on Tuesday, July 20, 2010. When Petitioner did not return to work on Tuesday, Ms. Lombardi called him. Petitioner said he did not realize that the doctor's note had excused him for only two days. Ms. Lombardi told Petitioner that it did, and she told him he needed to come to work that day. Petitioner complained that his arm and leg were still hurting. Petitioner said he would return to work that afternoon, but did not. Petitioner did not come to work on Wednesday, July 21, 2010. Petitioner left a message for Ms. Lombardi and she called him about 10 a.m. Petitioner told Ms. Lombardi that he had gone to the doctor the day before and had another note excusing him from work. Ms. Lombardi asked Petitioner why he had not called her or the supervisor to let them know. Petitioner stated that he had called the supervisor, but had been unable to reach him and had been asked to call back. Petitioner said he did not call back because he did not get out of the doctor's office until after 5:00 pm. Ms. Lombardi directed him to have the note sent to her by facsimile transmission (fax). Ms. Lombardi received a form faxed from Baptist Health entitled "Discharge Instruction" about 4:38 p.m. that day, as indicated in her note prepared for Petitioner's file. It had a subtitle of "Work Release Form." The form stated that Petitioner had been seen again on July 21, 2010, and that he could return to work on July 25, 2010. The form had date and time blocks indicating "July 21, 2010" and "4:31 p.m." Ms. Lombardi testified that the form from Baptist Health indicated that Petitioner had been seen by a doctor that same day and that "I received it shortly after-–there was a discharge time on it." On the following day, July 22, 2010, Ms. Lombardi again called Petitioner. When asked about an excuse from the doctor whom Petitioner had seen on July 20, 2010, Petitioner replied, "Oh, that was a different doctor." Petitioner said that the excuse from the visit on July 21, 2010, was from the same doctor he saw on July 17, 2010. Ms. Lombardi's file note stated that this was "the second time that Mitchell has incurred absences with inconsistency in the facts surrounding that absence." Petitioner gave evasive and inconsistent testimony at hearing about whether there was ever a third doctor's excuse, in addition to the excuses of July 17, 2010 and July 21, 2010. Any of Petitioner's testimony suggesting that there was third excuse was not credible. There were only two doctor's excuses. On July 22, 2010, Ms. Lombardi filled out a "Status/Payroll Change Report" that discharged Petitioner from employment at North Florida. In the "Reason" portion of the form, Ms. Lombardi wrote, "Excessive absenteeism and multiple incidences of inconsistent facts surrounding his absences." Petitioner was immediately notified by telephone that his employment had been terminated. In that conversation, Petitioner asked Ms. Lombardi why he was being discharged. Ms. Lombardi told Petitioner that the basis for his discharge was his poor attendance. Petitioner was recovering from the injuries he received in the accident for about a week-and-a-half. After that he was fully recovered. Petitioner's substantial interests are affected by Respondent's decision to discharge him. It has been difficult to find work in the depressed economy and Petitioner has financial responsibilities. Petitioner has three children. Petitioner was employed by Wage Solutions, working the warehouse at Liberty Furniture, unloading furniture and bringing it to the showroom from March 2011 to August 2011. Petitioner lost that job because that business closed. At the time of hearing Petitioner was not employed. Petitioner went to the Florida Commission on Human Relations. He did not complain to them that he had been discriminated against on the basis of a handicap or disability. He just wanted an investigation into his discharge because he believed he had been terminated unfairly. He testified: Doing – I guess, telling my side of the story to file whatever they wanted me to file. I didn't even know it was doing – about the disability or not. I didn't know they signed me up under that. The only thing I thought, they were going to investigate to see why I got terminated. * * * And from there, I guess that – that's it. I knew I had to come to court from there, so I was just really based on that. I knew I had to show up to court for – I wasn't looking for all of this to come down to this. The only thing – I just wanted to know why I got fired, because I – about my attendance or being absent, but I had excuses for them. On October 12, 2011, Petitioner filed a Petition for Relief against Respondent claiming an unlawful employment practice, alleging that he was wrongfully fired because of a mishap, which was referred to the Division of Administrative Hearings the same day.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaint. DONE AND ENTERED this 4th day of May, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 4th day of May, 2012.
Findings Of Fact Progressive American Insurance Company is a property and casualty insurance company. It markets auto insurance to drivers who are ordinarily non- insurable by standard insurance companies. The Company's claims organization includes 18 claims offices throughout the state, including the relevant Gainesville claims office. The Petitioner was hired as a claims office assistant on December 17, 1986. She worked in that capacity in the Gainesville office throughout the course of her employment. Claims office assistants are clerical employees who perform secretarial tasks, such as typing, filing and answering the telephone, and also perform insurance work related to the claims processing, such as personal injury protection (PIP) and small loss claims. Claims office assistants, such as the Petitioner, also provide support to the adjusters in the office by typing their dictation and taking down information on accident reports or loss reports, as well as creating files. The Gainesville claims office is a small branch office and as of December 1, 1986, was staffed by a Branch Manager, Douglas Helton, two claims adjusters and two claims office assistants, one of whom was the Petitioner. Douglas Helton was promoted to the position of Branch Manager in the Gainesville office in mid-1986. He hired Debbie Fuller and supervised her throughout her tenure with the Company. Progressive has adopted a business philosophy known as "management by objectives." Under this philosophy, each employee is assigned objectives which explain what is expected and the standards involved with the job. The employee's performance is then measured against those standards. Employees receive an overall numerical assessment of their performance on a 1-4 scale. The average score on performance evaluations in the Florida division of the Company has ranged from about 2.86 to 2.92. When the Petitioner was hired, she was placed in a three-month training plan by the Branch Manager and was assigned a set of objectives. Her performance was evaluated against these objectives at the end of 90 days, and she was given a 2.44 overall rating. Mr. Helton regarded her work as satisfactory at that time. The Petitioner was then assigned another set of three-month objectives. These objectives included the assignment to her of personal injury protection work, as well as small losses work for the first time. She was given individualized training by Helton and the other claims office assistant, Christine Bivens. She applied for and obtained a temporary license to do PIP claims work, which was valid from March of 1987 to March of 1988. She received another performance evaluation at the end of the second three-month period, with a score of 2.597. Mr. Helton, again, described her performance as satisfactory, although her score was below average. In June of 1987, Helton assigned the Petitioner another set of performance objectives, this time for six months. These objectives also included the assignment to her of PIP claims work. Her performance was evaluated again at the end of six months in December of 1987. This time, she scored 2.0, which is the lowest score an employee can receive before he or she is put on a 30-day performance probation, also known as "short term objectives." The Petitioner's performance was deficient because of non-timely processing of claims. Although her PIP case load was only about one-quarter of that of claims assistant, Christine Bivens, she allowed PIP files to "fall off her diary." This means that the medical bills involved were not being paid or timely paid. One such failure to pay medical bills actually resulted in a lawsuit being filed against her employer. When Mr. Helton reviewed some of her files in the process of preparing her performance evaluation, he discovered that most of the files had not been timely processed. She also received a poor rating for her work in typing dictation. Mr. Helton received complaints from all of the workers in the office concerning the Petitioner's typing skills and had orally counseled her in the past regarding this aspect of her work. Another major area of performance deficiency involved the Petitioner's failure to secure a permanent PIP and small loss license. She took the examination for the license and did not pass it. She was scheduled to take it again in November of 1987, but failed to do so. Mike Painter, the claims adjuster, had a bad experience with the Petitioner's work performance. He had a problem with her typing, which was characterized by a high level of inaccuracy and delay. He became sufficiently dissatisfied with her typing that he began doing his own typing. He discussed these problems with Mr. Helton on a number of occasions. He also had experience with the Petitioner taking down inaccurate information on loss reports. Mr. Painter found the Petitioner erratic in her attention to detail and that her work pace was significantly slower than the rest of the people in the office. Christine Bivens, another co-worker, also testified regarding the Petitioner's performance. Her initial performance during the first six months was acceptable, but then she began slowing down her work production. Because of this, Ms. Bivens had to put more time, herself, into the dictation typing and the loss reports She complained to Mr. Helton, as well; and Mr. Helton counseled the Petitioner concerning these deficiencies. After these counseling sessions, she would improve her performance for a short while; but the improvement was only temporary. Mr. Helton prepared Ms. Fuller's final performance evaluation around December 17, 1987. The two of them discussed the evaluation; and although she was not content with it, she ultimately accepted it. In the meantime, the Petitioner had become pregnant and began discussing the matter of maternity leave with Mr. Helton. In October or November of 1987, she had several conferences with him about the subject matter of her leave. Two of these conferences were attended by Christine Bivens. During the course of these meetings, Ms. Fuller requested a maternity leave of eight to 12 weeks. Mr. Helton told Ms. Fuller that she would not be provided a 12-week leave. Ms. Bivens testified that Mr. Helton told Ms. Fuller that he could not approve a 12-week leave. Sometime in December of 1987, Ms. Fuller began having premature contractions and told Mr. Helton she would not be able to work a full eight-hour day. Mr. Helton accepted that situation and told her she could work whatever hours per day she wanted to work. She thus began working five or six hour days. On December 17, 1987, Mr. Helton wrote a memorandum to the Human Resources Office of his Company, regarding Ms. Fuller's performance and her upcoming maternity leave. In that memorandum, he criticized her performance, writing that she demonstrated "minimal commitment to excellence and handles her responsibilities in a passive manner." He also noted that Ms. Fuller had requested a three-month leave of absence which he had refused. In this memorandum, Mr. Helton also indicated that he intended to hold her employment position open for her for a period of only four weeks. When he drafted this memorandum and prepared the Petitioner's performance evaluation, he gave some consideration to putting her on "thirty-day objectives." Under the circumstances of her imminent maternity leave, he decided that such an action would be inappropriate and assigned her objectives for May 17, 1988 instead. The Respondent has a policy concerning leaves of absence by which employees with less than one year of service are eligible for a four week leave of absence. Employees with between one and five years of service are eligible for a six-week leave. The Petitioner had one year of service, effective December 17, 1987. Therefore, she was qualified; and, indeed, the Respondent determined that she should have a six-week leave of absence related to her pregnancy. The Petitioner's supervisor, Mr. Helton, advised the Petitioner that she was not entitled to and would not receive a 12-week leave of absence, as she requested. Ms. Fuller also acknowledged in her testimony that Tammy Taylor, who worked in the Human Resources or personnel office of the Respondent, had informed her that she was entitled to a six-week leave of absence. Her colleague, Ms. Bivens, recalled that both Mr. Helton and Ms. Fuller had checked with the Human Resources office of Progressive and that both had learned that she was entitled to a six-week leave. Robin Hart, who worked in the Human Resources office at the time, told Ms. Fuller that she was entitled to and could take a six-week leave of absence and that any leave past that six-week period would be unapproved, as not being in accordance with Company policy. The Petitioner received a note from her treating physician on December 22, 1987 instructing her to discontinue her activities, including regular employment as of that date. Ms. Fuller initially testified at the hearing that she then met with Mr. Helton on that date, gave him the note and had a conversation with him concerning her leave of absence. She later changed her testimony, however, upon introduction by Progressive of evidence showing that Mr. Helton was on vacation on that date. She also changed her testimony regarding her last day at work. She had initially testified that the date was January 4, 1988, but following testimony by Christine Bivens, her co-worker, to the effect that her last day was December 29, 1987, she agreed that was her last day of work. Thus, she continued to work after her doctor had instructed her to cease her employment pending her delivery. Ms. Fuller, instead of personally discussing her leave with Mr. Helton on the final occasion before she actually left her employment, left a note for him on his desk while he was on vacation, along with her request for a 12-week leave of absence from January 4, 1988 through March 29, 1988. Upon his return from his Christmas vacation, Mr. Helton saw the leave request and reviewed it. He checked the box on the form marked "cannot approve" and wrote on the form "maximum allowed for 1 yr. employee is 4 weeks. Debbie requests excess of 12 weeks." Mr. Helton then submitted the leave of absence form to the Human Resources office in Tampa and conversed with Marilyn Kaschner of that office concerning the length of the requested leave and how long he should leave the Petitioner's job open for her. Ms. Kaschner informed him that the Petitioner was entitled to a six-week leave of absence based upon her tenure with the Company, and Mr. Helton agreed with that. That conversation occurred sometime between January 15th and the end of January of 1988. At approximately this time, Mr. Helton hired Wendy Rosenberg, as a full-time claims office assistant, and Renee Jackson, as a part-time claims office assistant. Ms. Fuller's replacement was required because the Gainesville office was very busy during the fall of 1987 and the early part of 1988. Ms. Rosenberg began employment on January 15, 1988, and Ms. Jackson was employed on January 25, 1988. Ms. Jackson was hired into a newly-approved part-time position, and Ms. Rosenberg replaced Ms. Fuller. Both employees were advised when they were hired that if Ms. Fuller returned upon the expiration of her maternity leave, she would have her choice of either the full-time or part-time positions which Ms. Rosenberg and Ms. Jackson were filling. In fact, Ms. Fuller did not return within the six-week time period. Mr. Helton subsequently contacted his supervisor, Jim Krahn; and they decided voluntarily to hold her position open for another week. She was eventually terminated, effective February 29, 1988, some nine weeks after her last day of work. Mr. Krahn at this time authorized Mr. Helton to permanently hire Ms. Rosenberg and Ms. Jackson. Ms. Fuller testified about a number of conversations she allegedly had with Mr. Helton during 1988. According to Ms. Fuller, the first one took place about the second week of January at the Gainesville office, attended by Ms. Fuller, Mr. Helton, Ms. Bivens and two claims adjusters in the office. Ms. Fuller maintains that Mr. Helton told her that he had turned in her "leave papers" and that things were fine and that there was no problem. Mr. Helton did not recall the conversation, but was positive that he would not have told her that everything was fine with her leave request because it was an excessive request. In any event, Ms. Bivens, who was present during the conversation, had no recollection of the tenor of it. However, under the circumstances under which the conversation apparently was made with a number of other employees present, it is unlikely that any in-depth discussion of the propriety of the leave request was entered into. In any event, Ms. Fuller had been informed otherwise, by the Human Resources office in Tampa, that she was only entitled to six weeks of leave. Both Mr. Helton and Ms. Fuller had conversations in March regarding her employment. Mr. Helton noted that the dates of the conversations were March 16 and 21, 1988, as he noted them on Ms. Fuller's termination form. During the first conversation, he advised Ms. Fuller that he did not have a position for her in his office. This is when Ms. Fuller learned of her ultimate termination. He did not have a conversation with her between February 29th and March 16th because he thought that Human Resources was going to send her a termination letter. The first conversation with her thus occurred on March 16th concerning the subject of her termination. Following this conversation, Ms. Fuller called Ms. Hart at the Human Resources office and informed her that Mr. Helton had guaranteed her a job when she wanted to return from maternity leave. Ms. Hart advised Mr. Helton of this representation and he denied it. Subsequently, on March 21st, there was an angry conversation between Mr. Helton and Ms. Fuller concerning what Mr. Helton believed to be Ms. Fuller's misrepresentation of his earlier statement concerning her job tenure and the availability of a position whenever she wanted to return. In any event, Mr. Helton, on March 21, 1988 executed Ms. Fuller's termination form and on the second page of the form, indicated she was ineligible for rehire. He considered her ineligible because her past performance bad been substandard and also because he felt that she had made misrepresentations to the Human Resources office concerning the conditions under which he had informed her that she could return to work. Accordingly, when there was later an opening in the Gainesville office for a claims office assistant, he did not consider offering Ms. Fuller that employment. Ms. Marilyn Kaschner testified about the company leave policy and statistical records of leaves of absence for the claims organization of Progressive. She reviewed and compiled a list of all leaves of absence for the last two and one-half years for the claims office portion of the company's operations in Florida. This list showed that eight employees, in addition to Ms. Fuller, had taken leaves of absence during that time period. Four of those leaves of absence were for childbirth. In each instance, the employee was allowed to return to her job. In those instances, the employees had taken leaves of absence which were in accordance with the company's leave of absence duration policy. It is also noteworthy that the Petitioner was accorded short- term disability insurance benefits during her leave of absence in accordance with company policy.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Petition of Debbie Fuller be dismissed. DONE and ENTERED this 4th day of December, 1989, in Tallahassee Leon County, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-480 Petitioner's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted, but subordinate to the Hearing Officer's findings on the subject matter. Rejected, as subordinate to the Hearing Officer's findings on the subject matter. Accepted. Accepted. Accepted. Accepted. Accepted, except for the last sentence. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected, as contrary to the Preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as contrary to the Preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive. Respondent's Proposed Findings of Fact Accepted. Accepted Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: John P. McAdams, Esq. CARLTON, FIELDS, WARD, EMMANUEL, SMITH & CUTLER, P.A. P.O. Box 3239 Tampa, FL 33601 Carla D. Franklin, Esq. P.O. Box 694 Gainesville, FL 32601 Dana Baird, Esq. General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Mr. Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570
Findings Of Fact Petitioner was employed by Respondent as a correction officer for the 16-month period between March, 1981 and July, 1982. She was assigned to the St. Johns County Jail, where her duties included booking and releasing both male and female inmates, taking mug shots, obtaining fingerprints, delivering food and mail, and providing general security. Petitioner satisfactorily completed a one-year probationary period and achieved permanent status. She became aware of her pregnancy in March, 1982, and informed her supervisor of this fact. 1/ She was initially told by her supervisor to report "downtown" for reassignment. However, the officer in charge of that department knew nothing of the proposed change in assignment and sent Petitioner back to the jail. Petitioner then resumed her correctional duties but was assigned exclusively to the booking desk based on her pregnancy. Around May, 1982, Petitioner was reassigned within the jail to the canteen, where her duties were clerical rather than correctional. On May 28, 1982, the jail administrator wrote to Petitioner's physician inquiring as to whether Petitioner could continue to perform correctional duties based on her physical ability and safety considerations. The physician's reply established that her physical ability would permit her to continue working until the date of her confinement, which he anticipated would occur about October 14, 1982. The physician declined to evaluate her condition in terms of job safety. In mid-July, Petitioner was told by her immediate supervisor, Sgt. Threet, that she should take maternity leave. Petitioner declined in the belief that she had a choice in the matter and that she was able to continue working. However, her unwillingness to take leave was not communicated to Captain Janson, who advised her by letter that he was placing her on leave as agreed. A meeting was held to discuss the proposed leave, but apparently the misunderstanding continued. Petitioner reported for work on July 21, 1982 and was directed to leave by her former supervisor, who advised Petitioner that she was no longer on the payroll. Petitioner's apparent termination on July 21, 1982 was confirmed by a letter from the St. Johns County Sheriff dated July 30, 1982 (Petitioner's Exhibit 2). The Sheriff's letter and other after-the-fact statements of subordinate officials indicated their belief that Petitioner and her fetus were in "obvious jeopardy" (Petitioner's Exhibit 2), so long as she continued to have contact with jail inmates. Additional reasons given for her removal were that she could not backup her commands to inmates because of her physical condition, and that she was becoming too large physically to work behind the booking desk (Respondent's Exhibit 1). The lack of any policy with respect to pregnancy and the confusion in this case were evident in the two attempted reassignments of Petitioner prior to her discharge and referral of the matter, at one point, to Petitioner's physician. Both Petitioner and her immediate supervisor, Sgt. (now Lieutenant) Threet are women of small physical stature. They are essentially unarmed while on duty and must rely on outside help if there is a major disturbance within the jail. Lieutenant Threet concedes that she would not be able to overpower a strong male prisoner if confronted by one. Therefore, the physical demands of the correctional officer position must be considered limited. There was no medical evidence presented that indicated Petitioner was unable to perform her assigned duties at the time of her discharge. She was aware of the physical risk to herself and fetus (although the degree of such risk was not established) and accepted this responsibility as a condition of her continued employment. The argument regarding Petitioner's alleged physical difficulty at the booking desk is rejected as pretextual and was not pursued at the hearing. Her alleged inability to backup commands to inmates due to her condition is likewise rejected in that she, as well as her female supervisor, were not at anytime capable of physically enforcing their commands with respect to the large and stronger male prisoners.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order directing that Petitioner be reinstated by Respondent. DONE and ENTERED this 31st day of December, 1984, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1984.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Petitioner is a thirty-one (31) year old male who has been a diabetic for approximately twenty-five (25) years and during this time has always taken his insulin as prescribed. Petitioner was hired by Respondent as a Correctional Officer 1 (Recreational) and assigned to work at the Florida Correctional Institution at Lowell, Florida (FCI). Petitioner began his employment with Respondent effective April 22, 1985. FCI is a facility for housing female felony offenders who require minimum to close security. The grounds of FCI consist of approximately eight hundred (800) acres, of which one hundred (100) acres is within the compound. FCI houses approximately six hundred seventy-five (675) inmates. FCI has a staff of two hundred twenty (220) employees, however, on weekends and on the 12 midnight to 8:00 a.m. shift, as few as eighteen (18) staff members may be on duty. Petitioner was responsible for maintaining the care, custody and control of the inmates involved in recreational activities and his duties would require his response to emergency situations to prevent escape or suppress inmate disorders. Petitioner advised Respondent prior to being hired that he was diabetic but that his diabetes was kept well under control and presented no problem and that he had sight in only one (1) eye. From February 27, 1984, until Petitioner moved to Florida in April, 1985, Petitioner was being treated for his diabetes in West Virginia by Dr. John P. Griffiths. During this period, Petitioner consulted Dr. Griffiths regarding "blackouts". Although Dr. Griffiths mentioned Petitioner's "kidney problem", he did not diagnose the "kidney problem" as being the potential cause of the Petitioner's "blackouts" and did not suggest a way for Petitioner to avoid having these "blackouts" in the future. Petitioner suffered several "blackouts" while living in West Virginia before accepting employment with Respondent, the last one being approximately a year before moving to Florida. These "blackouts" resulted in Petitioner being taken to the hospital emergency room for treatment. Petitioner did not make Respondent aware of these "blackouts" at the time he applied and was accepted for employment by the Respondent. At the beginning of his employment, Petitioner was required to have a complete physical examination which was administered by Dr. A. Rodriquez, Chief Medical Officer, FCI, and his staff. Among the tests administered was a urinalysis which revealed an abnormal level of protein in the urine. Being concerned over the level of protein in Petitioner's urine, Dr. Rodriquez requested Lester Dinkins, Personnel Manager, FCI, to advise Petitioner to see a private physician in this regard. About a week later, Petitioner consulted Dr. Rodriquez who explained the test results and advised Petitioner to see a nephrologist (kidney specialist). On May 2, 1985, Petitioner was examined by Dr. James J. Mahoney, private physician in Gainesville, Florida. Dr. Mahoney did not discuss a possible "kidney problem" or tell Petitioner why there was excess protein in his urine. Dr. Mahoney recommended that Petitioner continue on his blood pressure medication, have his blood pressure checked once a day so that medication adjustments could be made as needed, to see an opthamologist, and to keep check on his diabetes. FCI does not provide non-emergency health care for staff, therefore, Petitioner was unable to get his blood pressure checked by the FCI medical staff and did not get it checked by any outside private facility. Petitioner scheduled a second appointment with Dr. Mahoney which was rescheduled by Dr. Mahoney for a later date. Petitioner was dismissed by Respondent before the second appointment and, therefore, he did not keep the second appointment. On May 3, 1985, the day after Petitioner was examined by Dr. Mahoney, he suffered his first "blackout" while on the job. Petitioner was taken to the emergency room at Monroe Regional Medical Center where the medical personnel raised his glucose level and restored him to consciousness. After Petitioner regained consciousness he refused any further medical treatment. When Petitioner returned to FCI after his first "blackout", he was told to take Saturday and Sunday off and report to work on Monday. On Monday, Petitioner assured George Denman, Superintendent of FCI, that he could and would prevent another "blackout". Although Mr. Denman was concerned about Petitioner's ability to discharge his duties properly, he nevertheless allowed Petitioner to return to work on Petitioner's assurance that he could control the "blackouts". On May 9, 1985, Dr. Mahoney advised Respondent by letter that Petitioner's present condition should not interfere with his employment if Petitioner followed Dr. Mahoney's recommendations set out in Finding of Fact 10. There is sufficient evidence to show that Petitioner did not follow Dr. Mahoney's advice. Petitioner "blacked out" again on May 18, 1985, while he was preparing for a softball game between inmates of FCI and another institution. Petitioner was transported to the FCI infirmary and from there to Harold's Clinic and from there to another hospital. This "blackout" occurred on a Saturday when a staff of approximately eighteen (18) employees were on duty at FCI. Petitioner had keys to various parts of the institution in his possession at this time. Once Petitioner was stabilized after the "blackout", he was instructed to take Sunday off and report in on Monday. On Monday, he reported first to Lester Dinkins and then to Mr. Denman who informed him that he would be dismissed on Friday, May 24, 1986 because of Petitioner's inability to perform his duty to maintain proper care, custody and control of the inmates which placed the security of the institution in jeopardy. The prison superintendent is authorized to allow employees up to three (3) weeks leave without pay under extenuating circumstances, however, for a "brand new" employee, such as Petitioner, it would be exceptional. Leave without pay was not offered to Petitioner at any time before his dismissal to seek help with the problem of "blackouts" because Petitioner assured Mr. Denman that he had his problem under control. Additionally, Petitioner did not request any time off to seek help with his problem of "blackouts". Although Petitioner thought his "blackouts" were related to a serious automobile accident that he was involved in during 1972, there was no medical evidence introduced at the hearing to support Petitioner's theory. At the time Petitioner was dismissed, both parties were aware of Petitioner's kidney problem, but neither knew the exact cause or if the kidney problem was related to the "blackouts" or to the diabetes. Although Petitioner would have accepted other alternatives to dismissal, Respondent had no job openings for which Petitioner qualified for at the time. Lester Dinkins did inquire with other agencies and found a job as a Recreational Therapist with the Department of Health and Rehabilitative Services at the Gulf Coast Center in Ft. Myers, Florida. Petitioner rejected that job on the basis of being unable to cope with the emotional stress of working with mentally and physically handicapped individuals, and that by moving he would lose Dr. Donald Mars as his primary care physician. In June, 1985, Dr. Mars, Assistant Professor of Medicine, Division of Nephrology and Hypertension, Shands Teaching Hospital, Gainesville, Florida, diagnosed the cause of Petitioner's "blackouts" as the result of Petitioner's continued use of insulin adversely affecting his kidneys so that protein was being excreted with Petitioner's urine instead of being used by his body which caused episodes of hypoglycemia (low blood sugar) and, since corrective measures were not taken by Petitioner, "blackouts" resulted. A diabetic can take a measurement of the glucose (sugar) level in his body by using the "finger stick" test. This test can be performed in approximately two (2) minutes, and if there is an indication of a low level of glucose, the diabetic can correct the condition by eating some form of carbohydrate, such as bread or pastry, for quick energy. A diabetic can avoid "blackout's" by performing the required number of "finger stick" tests each day and properly responding to the results. In Petitioner's case, it would require two (2) to four (4) tests each day which could be performed on the job. There are other diabetics on the staff at FCI. Petitioner's job performance, other than during the time of the "blackouts", was satisfactory. Petitioner's "blackouts" put the security of FCI in jeopardy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petition For Relief filed by the Petitioner, Stephen Retton. Respectfully submitted and entered this 10th day of September, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 10th day of September, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0975 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Findings of Fact 1 and 2 covered in background material. 3.-4. Adopted in Finding of Fact 2. 5. Adopted in Finding of Fact 6. 6.-7. Adopted in Finding of Fact 1. 8.-14. Adopted in Finding of Fact 7. 15. Adopted in Finding of Fact 8. 16.-18. Adopted in Finding of Fact 9. 19.-21. Adopted in Finding of Fact 10. 22. Rejected as immaterial and irrelevant. 23.-24. Adopted in Finding of Fact 10. 25. Rejected as immaterial and irrelevant. 26.-27. Adopted in Finding of Fact 11. 28. Adopted in Finding of Fact 18. 29.-32. Adopted in Finding of Fact 12. 33. Adopted in Finding of Fact 8. 34. Adopted in Finding of Fact 13. 35.-36. Adopted in Finding of Fact 17. 37. 38. Rejected as not comporting evidence in the record. Adopted in Finding of Fact to the substantial 15. competent 39. Adopted in Finding of Fact 16. 40. Adopted in Finding of Fact 20 as modified. 41.-47. Adopted in Finding of Fact 21. 48.-52. Adopted in Finding of Fact 22. 53. Rejected as immaterial and irrelevant. 54.-56. Adopted in Finding of Fact 20. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 5. 6. Adopted in Findings of Fact 7 and 8. 7. Adopted in Findings of Fact 5 and 23. 8.-9. Adopted in Finding of Fact 9. 10. Adopted in Finding of Fact 10. 11. Adopted in Finding of Fact 12 as modified. 12. Adopted in Finding of Fact 12 as modified. 13. Adopted in Finding of Fact 13. 14. Adopted in Findings of Fact 13 and 15. 15. Adopted in Finding of Fact 16. 16. Adopted in Finding of Fact 16. COPIES FURNISHED: Thomas R. Williams, Esquire 359 N.E. First Street Gainesville, Florida 32601 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Ernest L. Reddick, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Louie L. Wainwright Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 3230 =================================================================
The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent due to his marital status.
Findings Of Fact Respondent is a corporation that sells and services blueprint machines and the supplies needed to operate such machines throughout a multi-regional area in the United States. Pamela Turner was the Director of Operations for Respondent. Her office was in the Pensacola, Florida, branch offices of the Respondent. During 2011, Respondent was looking for a person to fill a field technician position covering parts of Florida and Georgia. At the time, the territory that this position serviced ranged from Tallahassee, Florida, south to Perry, Florida, north to Valdosta and Albany, Georgia, and west to Destin, Florida. Importantly, the technician for the above area did not work out of Respondent's Pensacola office, but was remotely located somewhere within the position's service area. Further, parts and inventory were shipped to the remote location used by the field technician. For that reason, it was required that the field technician for the area possess the utmost honesty and trustworthiness. Additionally, it was very important that Petitioner and, specifically, Ms. Turner have a high degree of confidence in any person selected for the field technician position. In November 2011, Petitioner interviewed for the Field Service Technician position with Respondent. Petitioner interviewed with Pamela Turner and Michael Miller, the head of the company. Pamela Turner advised the Petitioner that due to the remote location of the job, it required the utmost in terms of honesty and trustworthiness of the person hired since the employee would be unsupervised most of the time and would possess valuable tools, parts and inventory at the employee's remote location. On his application, Petitioner disclosed the address where he lived as 1654 Eagles Watch Way, Tallahassee, Florida. The address on Petitioner?s application was his mother?s home and was the place where he lived. Petitioner understood that this address also would be considered the address for his office and the address where parts and inventory would be shipped. During Petitioner?s interview, Petitioner was never asked any questions by the interviewers about the status of his marriage. The fact that Petitioner was married came up during casual conversation in relation to the travel required for the job. Additionally, during the course of the interview with Ms. Turner, Petitioner told Ms. Turner that Petitioner?s wife would like for him to get this job because it meant more time at home with her. However, Petitioner did not inform any interviewer that he was separated from his wife because he did not feel that it had anything to do with his ability to perform the job he was interviewing for. He likewise did not inform any of the interviewers that he was not living with his wife at her home or that he occasionally stayed at his wife's house because they were trying to work things out between them. Petitioner was never asked specifically during the interview who owned the address that was listed on his application. However, Ms. Turner reasonably assumed that it was Petitioner?s and his wife?s home. The Petitioner was hired for the position of field service technician on December 12, 2011. His employment contract ran from December 12, 2011, through December 11, 2012. After Petitioner began his employment, Petitioner shared with a co-employee, Paul Springer, that he was separated from his wife. Paul Springer was a church counselor and suggested that he could help Petitioner and his wife by counseling them. In January 2012, while talking with another employee, Pamela Turner learned that Petitioner was living with his mother and that Petitioner was separated from his wife. This information was of concern to Pamela Turner because she questioned where parts Petitioner utilized in the maintenance and repair of customer photocopying machinery were being shipped. She was concerned because she thought this was Petitioner's and his wife's home only to discover that the home did not belong to Petitioner. Ms. Turner felt that Petitioner should have disclosed the fact that the address on his application was not owned by him and felt that the lack of disclosure was the same as misrepresenting information to her. Further, Ms. Turner, based on her earlier incorrect assumptions about Petitioner's address and living in the marital home, asked Petitioner why he had not told her about the address as it related to the circumstances of Petitioner's marriage. Ms. Turner incorrectly felt that Petitioner had misrepresented the circumstances of his marriage, which called into question the ownership of the address to which parts and inventory were being shipped. As a result, the confidence that Ms. Turner had in Petitioner was undermined. Petitioner explained to Ms. Turner that he and his wife were working on things and he was between his wife?s residence and his mother?s residence, but that he was not telling different stories. Further, the evidence demonstrated that Petitioner did not actively misrepresent anything to Respondent. However, Ms. Turner honestly felt that she could no longer trust Petitioner and honestly believed through her worldview that Petitioner had misrepresented himself to her. On January 30, 2012, she advised Petitioner that he was being terminated for misrepresentation. Given Ms. Turner's honest beliefs, Respondent's rationale for terminating Petitioner was not a pretext for discrimination. More importantly, given these honest beliefs, the evidence did not demonstrate that Petitioner's termination was based on Petitioner's separated marital status, but on the lack of trust that Petitioner's supervisor had in him. After the termination, Petitioner made no report of the alleged discrimination pursuant to the Respondent's written Problem Resolution policy and/or Equal Employment Opportunity policy both of which provided a problem and discrimination complaint process within Respondent's company. Petitioner was aware of these policies. However, Petitioner did not utilize these complaint processes because there was no one to escalate the complaint to since his supervisor, Pamela Turner, and the head of the company, Michael Miller, were both involved in the decision to terminate Petitioner. Therefore, Petitioner's lack of use of Respondent's discrimination and problem complaint processes was reasonable under the circumstances. Further, no adverse action has been taken against any employee of Respondent due to that employees? marital status. Thus, there are no similarly situated employees outside Petitioner's protected class to which Petitioner can be compared. Moreover, Petitioner offered no evidence at the hearing on January 16, 2013, that he lost any wages due to the alleged discrimination. Ultimately, however, the evidence was insufficient to demonstrate that Petitioner was terminated due to his separated marital status. As indicated, Ms. Turner honestly felt she could not trust Petitioner in a position that required her to have the highest confidence in that employee. Therefore, based on these facts, Respondent did not discriminate against Petitioner based on his marital status and the Petition for Relief should be dismissed.
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 dismissing the Petition for Relief. DONE AND ENTERED this 17th day of April, 2013, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 17th day of April, 2013. COPIES FURNISHED: Daniel Phillips, Esquire Phillips Law Firm 1413 North Randolph Circle Tallahassee, Florida 32308 Michael John Stebbins, Esquire Michael J. Stebbins, P.L. 504 North Baylen Street Pensacola, Florida 32501 Tiffany Rousseau Cruz, Esquire Marie A. Mattox, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Michelle Wilson, Executive Director Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
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 The issue in this case is whether the Respondent discriminated against the Petitioner on the basis of age for the reasons stated in the Charge of Discrimination and Petition for Relief in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact The Petitioner was born in 1953. At the time of the events which form the basis for his claim, he was more than forty years old. The Petitioner was born in Cuba and spent most of his life in Cuba. The Petitioner came to the United States of America approximately two years before the events which form the basis for his claim. The Petitioner speaks fluent Spanish, but does not speak English. In October of 1999, the Petitioner was hired by the City of Hialeah Gardens as a laborer in the Parks Department at a pay rate of $6.50 per hour. The Petitioner is still employed by the City of Hialeah Gardens as a laborer in the Parks Department at a pay rate of $6.50 per hour. The Petitioner's pay rate has never been changed during his employment with the City of Hialeah Gardens. During his employment with the City of Hialeah Gardens, the Petitioner has never held either the position of "Maintenance Supervisor" or the position of "Assistant Parks Director." During his employment with the City of Hialeah Gardens, the Petitioner has never been demoted from either the position of "Maintenance Supervisor" or the position of "Assistant Parks Director." The Mayor of the City of Hialeah Gardens has the sole authority and responsibility to make employment decisions. The Mayor appointed Nivaldo Rodriguez (Rodriguez) to the position of Assistant Parks Director. At the time of the appointment, Rodriguez was in his late twenties. At the time of the appointment, Rodriguez spoke fluent English and Spanish. At the time of the appointment, Rodriguez was a friend of the Mayor and the Mayor was aware of his qualifications for the position. The Mayor appointed Rodriguez to the position of "Assistant Parks Director" because he thought he was qualified for the position. The Mayor also thought that the Petitioner was not qualified for the position because, among other things, the Petitioner did not speak English. It is necessary to be able to speak English in order to fulfill all of the duties of the position of "Assistant Parks Director." The Mayor had credible non-discriminatory reasons to appoint Rodriguez as "Assistant Park Director," and not to appoint the Petitioner to that position. There is no credible evidence that the Mayor's reasons for appointing Rodriguez were pretextual. Age was not a factor in the decision to appoint Rodriguez rather than the Petitioner. The evidence regarding the Respondent's hiring and termination practices does not establish any pattern of age based discrimination.
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 dismissing the petition in this case and denying all relief sought by the Petitioner. DONE AND ENTERED this 3rd day of January, 2002, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 3rd day of January, 2002.
