The Issue Whether respondent discharged petitioner on account of his national origin? Whether respondent refused to rehire petitioner on account of his national origin and/or because he filed a complaint alleging discrimination?
Findings Of Fact Born in Uvalde, Texas, petitioner Nicasio Guadalupe Ramos, 42 years old at the time of the hearing, is an American citizen of Hispanic or Mexican race, ancestry, heritage and national origin, who, since 1971, has lived in Defuniak Springs, county seat of Walton County, Florida. Walton County's written personnel policies refer to a "PERSONNEL MANAGEMENT DEPARTMENT" and to a "personnel department . . . under the direction . . . of the personnel director," Petitioner's Exhibit No. 1, but other County employees or county commissioners themselves effectively decide before the Commission officially hires and fires. Responsibility is diffuse. E.g., T.284, 309. Hard Worker Mr. Ramos started work at the Walton County landfill on February 2, 1988, at $3.35 an hour. At first he spent most of his time picking up stray paper, opening the gate for garbage trucks, and "tripping" trailers to unload the garbage. Like other landfill employees, Mr. Ramos worked more or less steadily while the landfill supervisor, Clinton Earl "Frog" Ward was at the landfill. After three or four months, Mr. Ward, Clarence Johnson and John "Big John" Curry began teaching petitioner to use heavy equipment including the excavator or "pan," the "chipper" and the "dozer" ("how to work the blade, how to spread the dirt.") T.237. According to a co-worker, Mr. Ramos performed "different jobs like all the rest of us." T.31. When the sign maker quit, Mr. Ramos was assigned that job. If "somebody was missing on the dump truck or the garbage boxes," (T.240) he filled in there. He never turned down requests to work as a night guard, requests that sometimes came only near the end of a full day's work. He once operated the excavator every day for two successive work weeks. On September 16, 1988, he was promoted to "Landfill Equipment Operator." Petitioner's Exhibit No. 11. He became a "permanent" instead of a "temporary" employee, and his wages increased to $5.15. T.240. A cost of living increase in the fall of 1988 raised his wages to $5.35 an hour. T.258. Unfriendly Overseer With one exception, Mr. Ramos got along well with his fellow workers, none of whom was Hispanic. "Nick was one of the boys." T.44. The exception was James Ellis, the assistant landfill supervisor who had moved to Walton County from Lake Placid, Florida. Mr. Ellis once expressed the opinion that "the only thing [Mexicans are] good for is to knock their heads [off]." T.255, 280. He referred to Mr. Ramos as a "gook," a "dago" (T.85) and "that Mexican." T.96. A "long time before" (T.42) it happened, Billy Franklin Reynolds heard Mr. Ellis "say that he was going to get rid of Nick Ramos as soon as he got in a position to do that." T.42. Another co-worker, Harold Ross Daughtery, heard Mr. Ellis say that "whenever he got to be in charge . . . the first one he would fire would be Mr. Ramos." T.44. Harold Eugene Floyd heard Mr. Ellis say "if he ever got to be boss, he would run [Mr. Ramos] off." T.68, 74. Mr. Curry, who heard Mr. Ellis make such remarks (T.77-8) four or five times (T.82), "didn't figure he was joking." T.83. Unlike Mr. Curry (or Mr. Floyd who was uncertain), Messrs. Reynolds and Daughtery testified that they did not take seriously Mr. Ellis' threat to get Mr. Ramos fired. But, in this regard, events proved Mr. Ellis' sincerity. 1/ Mr. Ellis' used racial or ethnic epithets repeatedly to refer to petitioner. Perhaps that is what led Mr. Ramos to ask him one day why he did not like him. When, in the course of the same conversation, Mr. Ramos asked Mr. Ellis whether he had "ever met any Mexicans that [he] like[d]," (T.256) Mr. Ellis answered abusively, in the negative. If Mr. Ward left Mr. Ellis in charge of the landfill, many of the men loafed inside a shed while Mr. Ramos continued working, doing "the dirty stuff" (T.256) that Mr. Ellis assigned him. On such occasions, Mr. Ramos was often "the only one picking up papers or being in the pit, pulling tires out" (T.255) of garbage. T.86. At hearing, nobody except Mr. Ellis had anything unfavorable to say about Mr. Ramos' job performance. In fact, Mr. Ramos did a good job despite the unfair treatment he received at Mr. Ellis' hands. Petitioner was never disciplined, counseled or warned about his work performance even by Mr. Ellis. T. 251. Highly reliable, he "worked in the tire pit" (T.252) the day after the doctor drained his knee. On another occasion, to avoid infection, he wanted to follow his doctor's advice to take "a couple of days" (T.252) off after he had some "lumps" surgically excised. But, even though he arranged to swap shifts with Dewey Collinsworth, Mr. Ellis refused to allow the exchange, and Mr. Ramos reported for work. Reduction In Force In the summer of 1989, the Walton County Commission decided to reduce expenses by discharging County employees. T.11. It fell to Charles R. "Ronnie" Hudson who, as Walton County's public works director for the last three and a half years, reports directly to the Walton County Commission, and is responsible for (among other things) the County's landfill, to lay off landfill workers. Mr. Hudson asked Mr. Ward, the landfill supervisor, to list four employees he could do without (T.151) and to "make an evaluation on the men . . . [explaining] that there was going to probably be a layoff." T.91. The "next day probably," (T.216) Mr. Ward gave Mr. Hudson a written list and evaluation, Petitioner's Exhibit No. 2, and "told him [he] could get by with three men laid off, but . . . couldn't get by with any more than that." T.220. They talked about the three men Mr. Ward had selected. When Mr. Ward handed Mr. Hudson the list and evaluation, he understood Mr. Hudson to agree that "there needed to be three men laid off" (T.220) instead of four. On one page and a fraction of another (T.153) from a legal pad, Mr. Ward had written: Clarence Hobbs Harold Daughtry Earl Robinson NO COMPLAINT Earl Griggs ON THESE MEN John Mann KEEP THESE MEN Dewey Collinsworth Nick Ramos E.B. Phillips Billy Reynolds Clarence Hobbs truck driver Harold Daughtry operator Earl Robinson operator Earl Griggs clerk and signs maker Dewey Collinsworth clerk and sign maker John Mann operator Nick Ramos operator John Curry truck driver or Lee S. Campbell I need to keep 8 of these men until something changes need men [fo]r now Johnny Peters E.B. Phillips night guards Billy Reynolds I need to keep these men for now if I use another man to replace one of the Night Guards it will short me to[o] bad. We can let 3 men go but any more than that will short me to[o] much when something change[s] I can get by with less men Harold Floyd - operator Not dependable calls in sick a lot and has been siding around on roads and don't give notice until the day he is going to be off and won't do any thing unless we tell him to do something and don't look after the equipment at all John Curry - operator a good worker but keeps confusion between the other men and that causes lot of trouble he has already got one complaint form turned in on him Lawton Mathews - garbage truck he is a good worker and reports to work but he is old enough to retire he is failing fast he works with Clarence Hobbs on Garbage truck Petitioner's Exhibit No. 2. On what may have been the other part of the second or evaluation sheet of Petitioner's Exhibit No. 2, see Appendix A, 2/ Mr. Ward wrote: Lee S. Campbell Garbage truck he has been parked at his house on truck when he was on job it takes him to[o] long to go from box to the other and don't see after his truck to[o] good but he shows up to work good Johnny Peters - Night Guard he has had one complaint form turned in on him becuase there was about 48 or 50 gallons of Fuel went missing out of the DU cat ? on the night he was there Respondent's Exhibit No. 2. Whatever Respondent's Exhibit No. 2's origin, Mr. Ward did not give it to Mr. Hudson. Mr. Ward did not and would not have recommended Mr. Ramos' layoff, even if convinced that four men had to be laid off. If Mr. Hudson had asked him to suggest a fourth candidate for a layoff, Mr. Ward would have suggested John Scott Mann, (T.214) or so he testified at hearing. 3/ Later on, when Mr. Ramos asked, Mr. Ward told him not to worry about being laid off. Having "heard there was a layoff coming" (T.244), Mr. Ramos also spoke to Walton County Commissioner Wilson Holley, and asked him if there were vacancies on the road crew he supervises. Commissioner Holley, who had known Mr. Ramos for several years and had employed him on a road crew for about a week once, when over 16 inches of rain fell and "they needed some help," (T.242), told petitioner "that he had been checking up on [him], that [he] was doing good out there and not to worry about it." T.244. Meanwhile, without discussing the matter with Mr. Ward, Mr. Ellis also prepared and furnished Mr. Hudson a list of names and evaluations. Three of the evaluations had a familiar ring but the fourth was all Mr. Ellis' work: Harold Floyd: Not dependable. Days out of work, and when he is out, he does so without notice. In my opinion when he is at work, he don't give 100%. His work ability if fair. John Curry: He keeps confusion among the men and also between the foreman and the asst. foreman. He has also been written up once concerning the matter. His work ability is good. Nick Ramos: Was hired on as a laborer, then transferred to chipping machine, then to sign machine. He's been on the sign machine four weeks now, and he's not catching on to it very fast. I have tried him on the equipment, and he didn't catch on to it either. His work ability is fair. Lawton Mathews: He is eligible for retirement. He has talked about retiring. His work ability is fair. We may talk to him about cutting back and he may go ahead and retire. Petitioner's Exhibit No. 3. Mr. Hudson recommended that the Walton County Commission let all four men go. Mr. Ramos did not stop to pay for his coffee on his way out of the restaurant to see Ronnie Bell the morning the news broke. Like other men who were fired, Mr. Ramos first learned about the decision when he read about it in the newspaper on July 12, 1991. Not Rehired Mr. Bell, Walton County's administrative supervisor, had nothing to do with the decision to discharge Mr. Ramos, and told him as much. Mr. Ramos then left Mr. Bell's office in the courthouse annex for the landfill where Mr. Ward assured him he had not recommended his layoff. When he tried to talk to Mr. Ellis about it, "he walked off and he mumbled something." T.247. Mr. Ramos and the three other landfill employees laid off at the same time received official notification in letters dated July 13, 1989, that their employment would end on July 31, 1989. Mr. Mathews decided to retire. The letter to Mr. Ramos stated: Please be advised that if any openings become available in the future for which you are qualified, you will be one of the first considered to fill that opening. Petitioner's Exhibit No. 5. Mr. Ramos again sought out Commissioner Holley to ask for work, and also approached Commissioner W. F. "Rabbit" Miles, asking him if work was available. Some weeks after the layoff, Commissioner Holley telephoned with news of an opening for a night guard at the landfill. The next day, petitioner spoke first to Mr. Bell then to Mr. Hudson, to whom Mr. Bell referred him, about the position. Mr. Hudson said he knew nothing about an opening, but suggested Mr. Ramos check back. Mr. Ramos returned that afternoon, the next morning and every morning thereafter "for about a week." T.161, 247. Each time Mr. Hudson professed ignorance of the job vacancy, until the last time, when he told Mr. Ramos that "they had done hired Harold." T.249. Not only was Mr. Hudson in fact aware of the opening, he was actively recruiting to fill it. He offered the job to John Curry (T.184), who turned it down because he had found other, better-paying work. "Why don't you call Nick?" Mr. Curry asked Mr. Hudson at the time. "I wouldn't hire him back," was Mr. Hudson's answer. T.87. Harold Floyd got the job. T.163. Complaint Filed Mr. Ramos retained a lawyer who wrote the Walton County Commission on August 4, 1989, requesting petitioner's reinstatement, or in the alternative, a grievance hearing. Petitioner's Exhibit No. 9. (The request was never honored, although a like request by a non-Hispanic employee was.) Harold Burkett began work as a night guard on September 13, 1989. Petitioner's Exhibit No. 14. On November 8, 1989, Mr. Ramos filed a complaint with the Florida Commission on Human Relations. The number of "personnel at the landfill now [not counting prisoners assigned to work there after County employees were laid off (T.270)] is roughly fifty per cent of what it was at the time of Nick and them's layoff." T.175 But Walton County has "replaced, . . . transferred . . . [and] hired," id., employees at the landfill since then, rehiring Harold Floyd temporarily and adding Harold Burkett, Danny Burgess, Timmy Ray Jones and Russell Floyd, all "white Americans" given jobs for which petitioner is qualified, or would have been (T.257) but for his wrongful termination. Messrs. Burgess, Jones and Russell Floyd began work after County officials learned that Mr. Ramos had complained to the Florida Commission on Human Relations. Asked why petitioner was not offered the job given to Mr. Burgess, who was hired as an equipment operator, Mr. Hudson testified that there was no reason "that I know of, you know, other than - - well, no one ever said anything about Nick, you know, being interested . . . ." T.172. In fact, Mr. Hudson was well aware that petitioner wanted a job with Walton County government, as were Mr. Ellis, who succeeded Mr. Ward as landfill supervisor, Mr. Bell and more than one county commissioner. Asked why petitioner was not offered the job Mr. Russell Floyd was given, Mr. Hudson said he knew of no reason. T.173. Commissioner Miles told Mr. Ramos 4/ that Commissioner Sam Pridgen "wouldn't hire [him] back . . . since [he] had filed a complaint against the County." T.284-5. Commissioner Holley testified, "Nick has a record of suing people that he's worked for and that weighs heavy on people's mind, I would imagine." T.310. (No Walton County Commissioner ever said anything to petitioner about his race. T.285.) Lost Wages County employees got a four percent raise on October 1, 1989, another four percent raise on October 1, 1990, and a three percent raise on October 1, 1991. The County made unspecified contributions to the Florida Retirement System at all pertinent times. For single employees, the County paid monthly insurance premiums of $120.10 in 1989, $123.66 in 1990 and $132.12 ($126.62 + $5.50) in 1991. Petitioner's Exhibit No. 3. Assuming no promotions and only cost of living raises, if petitioner had continued working for the County in the same position through the date of the final hearing, he would have received pay and insurance benefits totalling $33,015.60. Instead, after Mr. Ramos lost his job, he mowed grass, cut trees down, painted houses, washed cars and did other odd jobs to make what money he could. T.251, 282. He earned about $2,000 from such jobs in the last five months of 1989. His 1990 income was more than $2,800 but less than $2,900; and his 1991 income was "three thousand." T.282. He has been unable to find regular employment, but has "never been on food stamps or any kind of assistance." T.251. Before the final hearing began, one of petitioner's two attorneys, Mary Koch Polson, had reasonably expended 14.95 hours, Petitioner's Exhibit No. 16, pursuing this claim, and costs aggregating $234.49 had reasonably been incurred. Petitioner's Exhibit No. 17. Ms. Polson bills her time at $125 an hour, and the reasonableness of this rate was not called into question. (Mr. Ramos paid his first attorney $1500, but the reasonableness of this fee was not stipulated and has not been established by evidence.) Aside from the first attorney's fees, prehearing costs and fees aggregate $1868.75.
Recommendation It is, accordingly, RECOMMENDED: That the FCHR enter a final order (a) directing respondent to rehire petitioner as soon as an opening arises that he is qualified to fill that pays at least $5.95 an hour plus benefits; (b) awarding back wages (net of offsets) in the amount of twenty-five thousand, two hundred fifteen dollars and fifty- nine cents ($25,215.59) plus interest; (c) awarding costs and fees in the amount of eighteen hundred sixty-eight dollars and seventy-five cents ($18,868.75); and (d) awarding such additional amounts as are necessary to compensate him for lost wages including interest until he returns to work with the County or spurns a suitable offer, plus attorney's fees and costs reasonably incurred since the final hearing began. DONE and ENTERED this 24th day of April, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II 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 24th day of April, 1992.
The Issue The issue is whether Respondent discriminated against Petitioner Maia Fisher (Petitioner) on the basis of her gender and retaliated against Petitioner because of her pregnancy in violation of Hillsborough County Human Rights Ordinance 00-37.
Findings Of Fact Petitioner is an aggrieved person within the meaning of Hillsborough County Human Rights Ordinance 00-37, Section 16. Petitioner is a female and filed a complaint with the Board alleging that Respondent engaged in gender discrimination and retaliation after Petitioner disclosed her pregnancy. Respondent is an employer within the meaning of Section 16. Respondent operates a printing business. Respondent is a corporation wholly-owned by Mr. John Disbrow and Ms. Angela Disbrow. Mr. and Ms. Disbrow are the principal operators and decision-makers. Respondent was Petitioner's employer. Petitioner was an employee during the relevant period. Petitioner began her employment with Respondent sometime in March 2008. Respondent terminated Petitioner’s employment on July 28, 2008. Petitioner discovered in June 2008 that she was pregnant. Petitioner informed Mr. and Ms. Disbrow. Mr. Disbrow instructed Mr. Alfred Buranda to terminate Petitioner’s employment sometime in July 2008. Mr. Buranda was the head of human resources for Respondent at that time, but has since moved on to other employment. Mr. Buranda refused to terminate Petitioner’s employment. Mr. Buranda conducted a teleconference with Petitioner in his office on July 28, 2009. Mr. Buranda telephoned Mr. and Ms. Disbrow on his office speaker phone with Petitioner present in his office. Mr. and Ms. Disbrow explained to Petitioner by speaker phone that the pregnancy was the reason for the termination of employment. Respondent owes Petitioner unpaid compensation in the total amount of $2,820.00. Respondent owes Petitioner back wages for unpaid overtime equal to $720.00. Respondent owes Petitioner unpaid commissions equal to $2,100.00. Back wages in the amount of $720.00 is the product of multiplying an hourly overtime rate of $12.00 by the total of uncompensated overtime equal to 60 hours. Unpaid commissions of $2,100.00 are composed of two parts. Petitioner made five sales under $500.00 for which Respondent owes a commission of $100.00 for each sale and a total of $500.00 for all five sales. Petitioner made eight sales over $500.00 for which Respondent owes a commission of $200.00 for each sale and a total of $1,600.00 for all eight sales. Petitioner has been living in a shelter for battered women. Contact and service on Petitioner has been problematic. The Board may require an investigator or other means to provide Petitioner with actual notice of the final order in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the final order issued in this proceeding should find that Respondent is guilty of discrimination and retaliation on the basis of gender in violation of Hillsborough County Human Rights Ordinance 00-37 and require Respondent and its principals to pay Petitioner $2,820.00 in unpaid compensation. DONE AND ENTERED this 8th day of December, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 2009. COPIES FURNISHED: Maia Fischer 2302 48th Avenue West Bradenton, Florida 34207 Camille Blake, EEO Manager Hillsborough County Post Office Box 1110 Tampa, Florida 33601-1101 John Disbrow ADCO Printing 8412 Sabal Industrial Boulevard Tampa, Florida 33619
The Issue The issues for consideration in this hearing are whether the Respondent discriminated against the Petitioner in employment because of his national origin, and whether Respondent unlawfully retaliated against Petitioner by discharging him from employment.
Findings Of Fact At all times pertinent to the issues herein, Respondent, CCCS, was a nonprofit charitable corporation engaged in providing personal financial and credit counseling in Tampa, affiliated with the United Way. It is an employer within the meaning of the Human Rights Act of 1977 and Title 7 of the Civil Rights Act of 1964, as amended. CCCS has adopted, and had in effect at all times pertinent herein, a written policy of equal employment opportunity and affirmative action. This policy is outlined in a personnel policy manual prepared by CCCS which is provided to all employees and which was provided to Petitioner. In August, 1991, CCCS management decided to hire an individual to fill the vacant accounts manager position. Initial screening of applicants was conducted by Gloria Jackson who interviewed several candidates, including Petitioner, and recommended three of these to the President, Diane Trithart. Petitioner, Emmanuel Ebeh, was one of the three recommended and was the successful candidate selected by Ms. Trithart. At the time, Petitioner, who is black and a native of Nigeria, was residing, with his family, at Metropolitan Ministries because he was unable to provide housing and sustenance for his family without employment. He had no experience in either personal financial management or employee supervision. Up until that time, he had worked as a cook, a kitchen helper, a mail room clerk, and a pipe-fitter's helper. However, even with his lack of supervisory experience and an absence of supervisory training, Ms. Trithart felt he should be afforded this opportunity. Petitioner's immediate supervisor was Ms. Jackson. She assisted Petitioner and his family in their move into government assisted housing, even to the extent of having her husband rent a truck to help move Petitioner's personal belongings and the furniture donated by Metropolitan Ministries to their new home. Once installed in the job, Petitioner was provided with a six weeks training program, including a syllabus, to assist him in making the transition into his new position. Nonetheless, it appears that during his training period, Petitioner had difficulties accomplishing his job tasks. Within six weeks, Ms. Jackson met with him to discuss errors made in client deposit entries and at that time, provided him with written procedures to follow. She gave him a two week warning confirmed in a written memorandum dated September 17, 1991, the date of the counseling. On September 26, 1991, Ms. Jackson followed up the two week warning period with another memorandum which noted the continuation of existing problems in Petitioner's department and which extended the warning period to October 4, 1991. Mr. Ebeh continued to experience job difficulties. At first, one of his employees, Ms. Warhul, tried to cover for him, but was unable to continue to do both her own job and his. As a result, she contacted Ms. Jackson and described the situation as she saw it. Ms. Jackson then tried to discuss the matter with Mr. Ebeh. However, whenever she did, he would insist on speaking with Ms. Trithart about the issues, claiming he felt it necessary to resist Ms. Jackson's directions. Ms. Trithart promptly and explicitly explained to Mr. Ebeh that his unjustified resistance of Ms. Jackson's direction constituted insubordination and would not be tolerated. Nonetheless, he continued to resist any guidance from Ms. Jackson, whether in the form of direction or constructive correction, becoming defensive and contending that his intentions were good and he was being misunderstood. He claims that Ms. Jackson was always on his back. Petitioner's performance problems were not isolated however, nor were they restricted to incidents with Ms. Warhul. He frequently had problems with misplaced files, posting entries to wrong accounts and other errors of a similar nature which were observed by other CCCS employees. On one occasions, Ms. Jackson asked Petitioner to prepare a letter to creditors who had worked with CCCS in the past but who were not currently participating in their program. She specifically requested that Petitioner let her review a draft of the letter before it was dispatched. Notwithstanding that direction, Petitioner prepared a letter, dated March 4, 1992, which contained a number of grammatical errors and misstatements of procedure and policy, and dispatched it to approximately 2,500 creditors without allowing Ms. Jackson or anyone else in authority to review or approve it. He thereafter left a note on the desk of Mary Jennus, CCCS' education coordinator, advising her that Ms. Jackson and Ms. Trithart wanted her to make changes in the letter and enclosures. This was not so. On March 19, 1992, Ms. Trithart called a meeting with Petitioner, Ms. Jackson and Ms. Jennus to discuss this letter, and at which she orally reprimanded Petitioner both for sending it out without authority and for the inappropriate use of her name in giving false instructions to Ms. Jennus. This meeting was subsequently memorialized by memorandum. Though management contended Petitioner's letter adversely impacted on the agency's image, he asserts it had good results in that some income was realized. On March 30, 1992, Ms. Jackson prepared a written evaluation covering Petitioner's performance for the prior six months. This report indicated Petitioner had continuing problems in the performance of his duties and in his supervision skills. It also called for a further review in 90 days to assess his progress in meeting the requirements of his job. Petitioner refused to sign this evaluation and requested a meeting with Ms. Trithart. Though a note by Ms. Jackson on the evaluation indicates she would arrange that meeting, it cannot be determined if, in fact, such a meeting took place. However, on April 13, 1992, Petitioner prepared a memorandum to operations personnel in which he alludes to "miserable and harsh treatment from management and especially our boss." He also noted the possibility his employees might not be satisfied with his treatment of them and solicited their comments and complaints to him or to the assistant director. This memo discomfited at least one of his employees, Ms. Warhul, who took exception to it in writing. Ms. Mosley also disagreed with his conclusions regarding a harsh working environment and thought it inappropriate for him to send out such a memo without consulting the other employees in the department. He was the department head, however, and his memo, though it might be considered ill advised and somewhat inflammatory, was from him to the people in his department. He did not claim his conclusions were theirs nor did his comments accuse them of misconduct. A meeting of all operations personnel was called by Ms. Trithart for April 13, 1992, the date of that memo. All employees were given the opportunity to express their concerns and it became apparent that not all operations personnel agreed with Petitioner in his characterization of their work environment. The memorandum of that meeting indicates his subordinates see Petitioner as an individual who broods over situations and lets things build up to a point where he writes a memo rather than discussing the problem. An example of this is Petitioner's note on a memo dated April 13, 1992 encouraging all employees to take their lunch break and reminding them that only time before and after normal duty hours may be considered for compensatory time off. Petitioner describes this memo as "inconsiderate treatment" and concludes it was directed at him because he was not taking lunch breaks because he "was sad and depressed because of how [he] was constantly humiliated." After the meeting on April 13, 1992, Ms. Trithart again reviewed Petitioner's file and determined that in light of his most recent infractions, including the unauthorized creditors letter and the false instructions to Ms. Jennus, and his continuing performance mistakes, it would be best to terminate his employment. Her rationale was that he could not be an effective supervisor if he felt, as he clearly did, that he did not have the support of either his employees or his supervisors, and this was compounded by his insubordination which, she believed, undermined the morale in his department and Ms. Jackson's authority as his supervisor. He was, therefore, discharged on April 13, 1992. None of the employees who testified indicated, nor was there any other independent evidence to establish, that Petitioner had been treated any differently while employed by CCCS than any other employee. By the same token, save the personal impressions testified to by Petitioner, there was no indication that either race or national origin played any part in the decision to terminate his employment and it is found they did not. To the contrary, the evidence is clear that the decision to terminate Petitioner's employment with CCCS was based on his failure to meet required standards in the performance of his duties and nothing more. The same is true regarding his claim that his discharge was in retaliation to his complaint in his April 13, 1992 memo regarding what he perceived as the harsh working environment both he and his subordinates had to endure. In that regard, it is found that the memo in question is, in itself, insubordination and evidence of the improper work climate created by the Petitioner rather than his employers. Had he truly felt the treatment given him was harsh, miserable and unfair, the grievance procedures outlined in the personnel manual he had been given would have provided an appropriate avenue for adjustment as opposed to the inflammatory and insubordinate action he took. Petitioner claims his supervisors did not uniformly apply company standards. He asserts he has been treated differently from white employees who were treated with kindness and politeness and when found to have committed errors in their performance, were given time to improve. For example, he cites the case of a Ms. Sweeny who refused to sign an acknowledgment of error and who was merely demoted instead of discharged. In his case, he notes, he met with hostility. He claims no concern was given to the legal issues involved in his situation and he was discharged right away. This is, however, not the case. The evidence is quite clear that Petitioner was counselled on several occasions and evaluated formally during his period of employment with no discipline taken against him. Only when he published the insubordinate memo of April 13, 1993 was action taken. On the basis of that memo and the record of his substandard prior performance, Ms. Trithart decided to discharge him. Petitioner also claims that Ms. Warhul and others who testified against him were engaged in a conspiracy to hide the unhealthy atmosphere which existed. He asserts he was told by Ms. Warhul she would not support him when he wrote his memo because she was afraid of losing her job. It is his contention that she and he were previously close. In actuality, though she was under his supervision, she gave him much of the training he received. He believes that she and many other employees do not like Ms. Jackson but are afraid to say so. Petitioner offered no independent proof of this contention, however, and it is found to be unsupported. Petitioner also takes exception to the claim by CCCS's management that his English was hard to understand. He claims that during the entire 8 months he worked there, his English was never criticized until such time as the decision was made to discharge him. At that time, he contends, he was told that he did not project the proper image the company desired. Mr. Ebeh also notes that he was constantly confronted with a situation where his immediate supervisor would approve something he did and then deny it. Ms. Jackson would approve in advance something his department proposed and then, when it was not well received, deny approving it. Petitioner claims that because of the actions of CCCS's management, he has undergone great stress. When he applied for the position with the firm he and his family were homeless and he admits he was helped considerably by the job and the company personnel. However, he claims he did not get all the help for free and asserts he has paid back for what he received during those first few weeks. He also claims that he has been maligned by company personnel who reported to his job service counsellor that he was soliciting money from coworkers and that he had a bad body odor. These comments humiliated him and he notes that they did not come about until after he complained to Ms. Trithart. Petitioner has no job now and no income and claims to be suffering from health problems. As of April, 1993, a Department of Health and Rehabilitative Services physician noted that he is suffering from raised cholesterol which interferes with his employment "for the present." His total monthly income for himself, his wife and his four sons is $600.00, out of which he must pay approximately $300.00 in rent and $113.00 for utilities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that a Final Order be entered dismissing Emmanuel Ebeh's Petition for Relief from the alleged unlawful employment practices of discrimination based on race or national origin, and of retaliation filed against the Respondent CCCS. RECOMMENDED this 25th day of June, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 25th day of June, 1993. COPIES FURNISHED: Emmanuel B. Ebeh 4002 East Pocahontas, #110 Tampa, Florida 33610 James R. Freeman, Esquire Shear, Newman, Hahn & Rosenkranz, P.A. 201 E. Kennedy Blvd., Suite 1000 Tampa, Florida 33602 Sharon Moultry, Clerk Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-4149
The Issue Whether Petitioner's termination from employment by Respondent on June 15, 2005, was discriminatory in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2005), due to Petitioner's race (African American).
Findings Of Fact Petitioner, a Black female, was employed by Respondent from November 23, 1998, until her termination on June 14, 2005. Petitioner had performed her duties as a housekeeper adequately during her employment period and had no major disciplinary reports in her record. Her annual reviews indicate she was a fair employee. She had a history of tardiness, but seemed to be getting better in her last years of employment. Petitioner had received a verbal warning notice on March 8, 2005, relating to an altercation with another employee, Katrina Stevens. It appears Petitioner did not instigate the confrontation nor did she actively participate in the argument between Stevens and another employee. She simply happened to be standing nearby when it occurred. A verbal warning notice is preliminary to a reprimand. The other employee, Martine Lane, received a reprimand for the incident. On June 8, 2005, Petitioner received another verbal warning notice, this time for instigating negative remarks toward her supervisor. The gravamen of her complaint about the supervisor was that a certain co-worker had been named Employee of the Month instead of Petitioner. Petitioner became more defiant towards her supervisors and management toward the end of her employment. She would not help out other employees when asked, preferring to tend to her own work area, even when her work was completed. She also made derogatory comments to the co-worker who had won Employee of the Month. When Petitioner's behavior did not change, a decision was made to terminate her employment. It was a difficult decision because good housekeepers were hard to find and Petitioner's work product had always been acceptable. Petitioner had always been well-liked and respected by fellow employees. Both co-workers and management had encouraged Petitioner to apply for supervisory positions when they opened. Her supervisors indicated that, with some training, she could handle a supervisory position. The decision to terminate Petitioner from employment was made by the Executive Housekeeper, Steve Jensen. He relied upon input from other management. On June 18, 2005, Petitioner was stopped from clocking in when she came to work. She was told to report to Jensen's office, which she did. At that time Jensen asked her whether she was still happy with her job, then told her she was being terminated. The reasons given were that she was not supportive, not a team player, and had become more belligerent to management. No mention of race was made as a basis for her termination and none seems to have existed. Petitioner was advised she would be entitled to vacation pay, but it was later discovered she had already used up her available vacation time. Respondent subsequently called Petitioner to offer her a different job, but Petitioner had no interest in returning to work for the company. Respondent has anti-discrimination policies in place, is an equal opportunity employer, and employs minorities in supervisory positions. Interestingly, however, there were no other Black housekeepers employed while Petitioner was working. When a supervisory position opened, Respondent would attempt to fill the position from within its existing employee pool. Two such positions opened when Petitioner was employed. Seven then-current employees applied for those positions, including Petitioner. Of the seven, four had prior supervisory experience; Petitioner did not. Two of the applicants had been with the company longer than Petitioner. Five of the seven applicants had computer knowledge and skills; Petitioner did not. Petitioner is the only candidate who admitted a fear of heights, a minor consideration for the position. Petitioner is the only candidate who stated she could not work on weekends. Petitioner was clearly not the best applicant for the job based on comparison to other candidates. Petitioner did not provide any evidence that her race was a basis for her termination from employment. None of her witnesses provided credible statements concerning discrimination. In fact, her witnesses by and large did not see any discrimination by management.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 5th day of January, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 5th day of January, 2007. COPIES FURNISHED: Diane Hawkins 1556 University Lane, Number 407 Cocoa, Florida 32922 Theodore L. Shinkle, Esquire GrayRobinson, P.A. 1800 West Hibiscus Boulevard, Suite 138 Melbourne, Florida 32901 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent failed or refused to provide the legal representation to which Petitioner was entitled because of Petitioner’s race or in retaliation for Petitioner’s prior charges against Respondent.
Findings Of Fact At all times relevant to this proceeding, Petitioner, a black male, was employed by Miami-Dade County as a correctional officer. At all times relevant to this proceeding, Respondent was a public employees bargaining unit established pursuant Chapter 447, Florida Statutes (2004).1 At all times relevant to this proceeding, Petitioner was a dues-paying member of Respondent and was entitled to all rights and benefits of such membership. Prior to March 1, 2002, Petitioner filed a complaint with the EEOC alleging that Respondent had discriminated against him in an unrelated matter. That complaint was resolved in Respondent’s favor. Petitioner was notified by his employer on March 1, 2002, that his employment was being terminated for reasons that are irrelevant to this proceeding. Petitioner immediately requested legal representation from Respondent. On March 4, 2002, Respondent, through Tyrone W. Williams (Respondent’s then general counsel), advised Petitioner as follows: We have completed our review of your request for legal assistance of March 4, 2002. Based upon the information provided, it has been determined that a conflict in representation has arisen. Accordingly, this matter has been assigned to the Law Offices of Slesnick & Casey. . . . . We have provided the Law Office of Slesnick & Casey with a copy of your file for their immediate reference. Please contact the Law Office of Slesnick & Casey upon receipt of this correspondence. At the times relevant to this proceeding, the Law Offices of Slesnick & Casey was a private law firm that had contracted with Respondent to provide conflict representation to its members. Thereafter, the Law Office of Slesnick & Casey undertook Petitioner’s representation at Respondent’s expense. The procedures followed by Respondent in determining that a conflict existed and in assigning the Law Office of Slesnick & Casey to this representation were consistent with Respondent’s bylaws and written policies. Petitioner was not satisfied with the representation of Slesnick & Casey and asked Respondent for other counsel. On June 24, 2002, Blanca Greenwood (Respondent’s then general counsel) notified Petitioner that if he did not want the assigned representation, Respondent would give him $500.00 towards his legal fees and he could retain any lawyer he wished. Petitioner was also told he would have to absolve Respondent of any liability regarding his representation by private counsel, which Petitioner refused to do. Petitioner thereafter filed the complaint with EEOC and, following its dismissal, the Petition for Relief that underpins this proceeding. The evidence presented by Petitioner failed to establish that Respondent discriminated against him by assigning the Law Office of Slesnick & Casey to represent him or by offering to pay $500.00 towards his legal fees for a private lawyer. There was no evidence that Mr. Williams (who is a black male) or any other representative of Respondent discriminated against Petitioner on the basis of his race. There was no evidence that Mr. Williams or any other representative of Respondent discriminated against Petitioner because he had filed an unrelated EEOC against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 24th day of February, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 24th day of February, 2005.
Findings Of Fact Based on all of the evidence, the following findings of fact are determined: This case involves a claim by petitioner, William C. Eagle (petitioner or Eagle), that in February 1994 he was denied employment as a delivery helper by respondent, S. R. Perrott, Inc., on account of a real or perceived handicap. According to the complaint, at the time the alleged discriminatory practice occurred, petitioner was suffering from a "soft tissue injury" from a "work related accident with his former employer." Because the evidence shows that in February 1994 petitioner did not enjoy in some measure the full and normal use of his physical facilities, he was a handicapped person, at least temporarily, within the meaning of the law. A preliminary investigation by the Florida Commission on Human Relations (Commission) found no reasonable cause to believe that an unlawful employment practice had occurred. Respondent is a beer distributor in Ormond Beach, Florida. Whether respondent employs "fifteen or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year" so as to be subject to the Florida Civil Rights Act of 1992, as amended, is not of record. In February 1994, petitioner learned of an opening for a delivery helper at respondent's plant. The position required that the employee unload beer kegs weighing 167 pounds from a delivery truck onto a dolly and then push the dolly into the business establishment. At that point, the employee would have to bend over and lift the keg off of the dolly to a waist-high position and place it in the desired location. Empty kegs would then be loaded onto the dolly and taken back to the truck and loaded. Since a truck would typically make up to 30 to 40 stops per day, the helper was required to engage in repetitious bending, twisting and lifting of heavy objects. After filing an application with respondent, petitioner was interviewed by respondent's general manager, Gary Connors, on February 23, 1994. During the interview, petitioner failed to disclose that he had suffered a back injury on a previous job, he was receiving worker's compensation benefits, he was then being treated by a doctor, and because of the injury, he was, at least arguably and temporarily, a handicapped individual. Without these undisclosed facts, Connors believed Eagle was qualified for the job and told him to report to work the next morning as a delivery helper. Like every other applicant, however, Eagle was also told that the job was contingent on his successfully passing a pre- employment physical examination. On the same morning that petitioner began work, or February 24, 1994, Connors contacted the office of Dr. James W. Bennett, a local chiropractic physician who conducted employment physicals for respondent, to set up an appointment for Eagle. During his telephone conversation with Dr. Bennett, Connors learned that Eagle was being treated by Dr. Bennett for a back injury suffered on his previous job, and that he had been examined by Dr. Bennett on February 14, 1994, or ten days earlier. Dr. Bennett accordingly saw no need to re-examine Eagle, and he advised Connors that Eagle could aggravate "an existing, active injury," and that he could not pass the pre-employment physical examination. Based on this information, Connors immediately spoke with the plant manager, Richard Shaffer, and instructed him to recall Eagle from his route and terminate his employment. In making this employment decision, Connors was not motivated by discriminatory animus, but rather he made the decision solely because of Eagle's inability to pass a pre-employment physical examination, a prerequisite for employment for all job applicants. Indeed, at that time, while Connors knew that Eagle had a pre-existing back injury through conversations with Dr. Bennett, he neither knew, or had reason to believe, that the injury constituted a handicap under the law. Shaffer recalled Eagle from his route and discharged him around noon on February 24, 1994. Since Shaffer did not know the reason for the termination, he told Eagle to check back in a few days and he would find out the specific reason for his discharge. A few days later, Eagle returned and met with Connors who told him that he was discharged because he could not pass the pre-employment physical examination. Several months later, Eagle filed his charge of discrimination. At hearing, Eagle denied that he was handicapped and asserted that as of February 1994 he "felt fine" physically. Indeed, he described in some detail the type of heavy manual labor he had performed with another employer up to the time he applied for the position. He also contended that the injury was minor and would not interfere with a delivery helper's tasks. But testimony from Dr. Bennett established that as of February 24, 1994, Eagle had "a current, precarious injury," namely, moderate chronic lumbar sprain strain, that work restrictions with his former employer had been recommended, and that Eagle was "highly likely" to worsen that injury should he engage in the job activities required of a delivery helper. This testimony was not credibly contradicted. Although Eagle was later discharged from Dr. Bennett's care on April 1, 1994, Eagle could not pass the pre-employment physical examination on February 24, 1994, when the employment decision was made, and thus he did not qualify for the job. Eagle further suggested at hearing that, assuming he was handicapped, respondent failed to take reasonable steps to accommodate his disability. But Eagle made no request for accommodation either at the time he sought the position or after he learned the reason for his termination. Even if Eagle had requested accommodation, respondent had no positions in the business that did not require some heavy lifting except for a secretarial slot, for which Eagle was not qualified. Moreover, respondent's general manager did not know, or even believe, that Eagle was handicapped and thus may have required accommodation. Then, too, in order to accommodate Eagle, respondent would have had to make fundamental alterations in its work program or even create a new job. Eagle did not rebut this showing at hearing, and he failed to respond with any evidence regarding his individual capabilities and suggestions for possible accommodations by respondent within the restrictions imposed by Dr. Bennett. There is no evidence regarding the compensation Eagle would have received as a delivery helper. The record also fails to establish his compensation since that time, and thus there is no basis on which to make a finding as to lost wages. Whether petitioner seeks reinstatement as a delivery helper is also not of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing the petition for relief with prejudice. DONE AND ENTERED this 18th day of August, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 18th day of August, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1788 Petitioner: Petitioner filed an "order" with nine unnumbered paragraphs containing a mixture of proposed findings of facts and conclusions of law. Partially accepted in findings of fact 1 and 4. Partially accepted in finding of fact 3. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 5 and 8. 6-8. Rejected as being a conclusion of law. 9. Rejected as being contrary to the evidence or a conclusion of law. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the more credible evidence, cumulative, or a conclusion of law. COPIES FURNISHED: P. Daniel Williams, Esquire P. O. Box 1007 Daytona Beach, Florida 32115 Winston K. Borkowski, Esquire P. O. Box 1725 Ormond Beach, Florida 32175 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue is whether the Petition for Relief should be dismissed as untimely because it was received by the Florida Commission on Human Relations more than 35 days after the date of the Commission's "no cause" determination.
Findings Of Fact Based upon the pleadings (as supplemented by Petitioner's response to the August 2, 2002, Order to Show Cause and his representations at the August 23, 2002, telephonic hearing), the following findings are made: On August 16, 2001, Petitioner filed a charge of discrimination against Respondent with the Commission. The charge of discrimination alleged that Respondent committed an unlawful employment practice in September 2000 when it fired Petitioner based upon his race.1 The address for the Commission listed on the charge of discrimination form was 325 John Knox Road, Suite 240, Building F, Tallahassee, Florida 32399. The charge of discrimination was investigated by the Commission staff, and based upon the results of the investigation, the Executive Director of the Commission determined that "there is no reasonable cause to believe that an unlawful employment practice has occurred." The date of the determination was May 8, 2002. On that same date, notice of the determination (Notice) was provided to Petitioner by U.S. Mail. The Notice stated: NOTICE OF DETERMINATION: NO CAUSE PLEASE TAKE NOTICE that a Determination has been made in the above-referenced complaint that there is no reasonable cause to believe that an unlawful employment practice has occurred. A copy of the Determination is attached. [Petitioner] may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE. * * * If [Petitioner] fails to request an administrative hearing within 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992). (Emphasis supplied). Petitioner received the Notice four or five days after it was mailed, which would have been May 13, 2002, at the latest. The address for the Commission listed on the Notice was 2009 Apalachee Parkway, Suite 100, Tallahassee, Florida 32301. Included with the Notice was a blank petition for relief form. Petitioner filled out the form and mailed it to the Commission. Consistent with the charge of discrimination, the Petition alleges that Petitioner was fired by Respondent based upon his race and that the reasons asserted by Respondent for his firing were pretextual. The Petition was post-marked in Orlando on June 13, 2002 (36 days after the Notice, and at least 31 days after Petitioner's receipt of the Notice). Petitioner's delay in completing and mailing the Petition was due to his "inability to obtain counsel." Despite the Commission's new address being printed at the top of the Notice, Petitioner mailed the Petition to the Commission at its old address on John Knox Road. The Petition was not received by the Commission until July 9, 20022 (62 days after the Notice, and at least 57 days after Petitioner's receipt of the Notice). The envelope in which the Petition was received by the Commission includes a forwarding sticker affixed by the postal service. Thus, it appears that the 26 days that it took for the postal service to deliver the Petition from Orlando to Tallahassee is attributable to the postal service's mail forwarding process.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief as untimely. DONE AND ENTERED this 5th day of September, 2002, in Tallahassee, Leon County, Florida. 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 5th day of September, 2002.
The Issue Whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Mr. Kennedy is of the Mormon faith. Mr. Kennedy had worked for Trawick in the past. He renewed his employment with Trawick in September 2005. He was a laborer. Sometime around the middle of September 2005, Mr. Kennedy was assigned to a work crew, whose foreman was Andrew Cooper. Trawick Construction is involved in laying and maintaining communication cable. Trawick has a work yard in Chipley, Florida. In accomplishing its work Trawick erects poles, and strings and lays wires, including fiber-optic cable. The work crew in which Mr. Kennedy worked used a five-ton truck and a trencher. Shovels are also used. Mr. Cooper had worked with Mr. Kennedy when both were laborers for Trawick in 1998. Mr. Cooper advanced to the position of foreman, but Mr. Kennedy remained a laborer and sometime after 1998 left the employ of Trawick. Mr. Kennedy asserted that during working hours on September 26 and 27, 2007, Mr. Cooper talked roughly to him and was "bossy." During that time, the Lord came in a vision to Mr. Kennedy and told him that he needed to pray for Mr. Cooper, so that Mr. Cooper might become a more accommodating and gracious supervisor. Mr. Kennedy revealed to Mr. Cooper that he was praying for him, although Mr. Cooper did not recall hearing any prayers. On September 27, 2007, the crew was working at a site near Enterprise, Alabama. On that day Mr. Kennedy worked slowly and was insubordinate toward Mr. Cooper. When he was told to accomplish designated tasks, Mr. Kennedy informed Mr. Cooper as to whether he would, or would not do as instructed. Mr. Kennedy was disrespectful and insubordinate to Mr. Cooper, who found this behavior to be unacceptable. Mr. Cooper and his crew were late getting back to Chipley because of Mr. Kennedy's failure to participate in the crew's assigned work. On the return trip, apparently having given up on the efficacy of prayer, Mr. Kennedy instead cursed and ranted in the presence of Mr. Cooper. After their return to Chipley, Mr. Cooper prepared a disciplinary report in response to Mr. Kennedy's behavior. The report was presented to Mr. Kennedy and he was asked to sign it. He refused to sign the document Mr. Cooper prepared. Instead he said, "I quit." The next morning, Wednesday, September 28, 2007, Mr. Kennedy put his gear in the five ton truck as if his employment continued, but Mr. Cooper told him to remove it and reminded Mr. Kennedy that he had been fired. Mr. Cooper called Carlton Wells, a supervisor, who eventually arrived at the Trawick facility in Chipley. Mr. Wells could have reversed the termination. However, by the time he arrived, Mr. Kennedy had departed the Chipley work yard. Mr. Wells, by doing nothing, ratified the action of Mr. Cooper. Neither Mr. Cooper nor Mr. Wells was aware of Mr. Kennedy's religious affiliation. No one in the Trawick organization harassed Mr. Kennedy because he was a Mormon, because no one knew he was a Mormon. Accordingly, whatever the hostility of the work situation, it was not in any manner related to religion. The timesheet maintained by Mr. Cooper reflects that Mr. Kennedy was fired on Wednesday, September 28, 2005. It is found as a fact that Mr. Kennedy was fired on September 28, 2005. Trawick has quarterly "safety" meetings. Despite the nomenclature, Trawick uses these "safety" meetings to educate its workers on many subjects, including the company policy forbidding discrimination. Mr. Cooper has attended these meetings when Trawick's policy as to nondiscrimination was taught. As a result, Mr. Cooper is quite aware that Trawick does not tolerate discrimination based on sex, race, color, or religion. He understands that a failure to conform to Trawick's policy with regard to discrimination could result in his demotion. Religion was not a factor in Mr. Cooper's decision to terminate Mr. Kennedy. No one retaliated against Mr. Kennedy because he complained of discrimination based on his religion. In fact, the first complaint of discrimination made by Mr. Kennedy was when he complained to the Commission and by that time he was no longer employed by Trawick. Mr. Kennedy provided no evidence of harm, monetary or otherwise, during the hearing.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the complaint of Lee Dell Kennedy. DONE AND ENTERED this 12th day of May, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 May, 2008. COPIES FURNISHED: Mark J. Levine Levine & Associates, P.C. 4747 Bellaire Boulevard, Suite 500 Bellaire, Texas 77401 David Britain, Jr., Esquire Trawick Construction 1360 Post Oak Boulevard, Suite 2100 Houston, Texas 77056 Lee Dell Kennedy 747 Pecan Street Chipley, Florida 32428 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 H. Lester McFatter, Esquire Carr Allison 305 South Gadsden Street Tallahassee, Florida 32301 Jason C. Taylor, Esquire Carr Allison 305 South Gadsden Street Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent Al Packer Ford, Inc. terminated the employment of Petitioner Woodrow Samuel on the basis of race, which is an unlawful employment practice pursuant to Section 23.167 (1)(a), Florida Statutes.
Findings Of Fact Petitioner was discharged from his employment on August 8, 1978 and believes that his discharge was because he is black. Petitioner was hired on April 4, 1978 by the Service Manager for Respondent corporation who had been his supervisor at Dominion Chevrolet in Richmond, Virginia. Petitioner was employed as a quick service mechanic and worked for approximately three (3) monthe. During that time Petitioner's Production was low and at least on two (2) occasions made serious errors in servicing customers automobiles. Once he failed to put in oil, and once he failed to replace brake slices. He received a warning from his employer but was not discharged. Thereafter he was transferred to the Okeechobee Road Used Car Lot as a Lot Man. There he had the opportunity to make more money under a pay plan which did not depend on mechanical work by the job. After two (2) weeks he was transferred to the Respondent's main used car lot on Military Trail under the supervision of George Mills, and his salary was increased by forty (40) dollars per week. Prior to Petitioner's discharge Petitioner's immediate supervisor, George Mills, was on vacation. During this period Petitioner took a used Cadillac for his personal use from the lot in West Palm Beach and drove it to Miami for the weekend. Petitioner had not been authorized by Mills or by anyone else to use the Cadillac, according to the testimony of Mills which is more credible then the testimony of Petitioner. Mills learned of the use of the car by Petitioner after his return from vacation and after it had been scheduled for repairs. Mills stated that Petitioner had been warned not to use vehicles for his private use and, when he learned of the use of the Cadillac, terminated his employment and told him why. Petitioner appealed to his original employer, George Hollifield, who then was the supervisor of Petitioner's direct supervisor, for reemployment but was refused. Use of vehicles from the used car lot by employees of Respondent is allowed as a general company policy only upon specific authorization. A witness, another black man, had seen Petitioner use vehicles on occasion from the lot but did not know whether the use was authorized. About 10 percent of the employees of Respondent are Hispanic or Black, and the stated policy of the business is to employ competent people to make money for the corporation, and race is not a factor or consideration. Petitioner Samuel and Respondent submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the complaint and petition he dismissed by the Florida Commission on Human Relations. DONE and ORDERED this 1st day of October, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Franklin G. Callas, Esquire 125 Worth Avenue, Suite 308 Palm Beach, Florida 33480 Norman A. Jackson, Executive Director Florida Commission on Human Relations Suite 100, Montgomery Building 2652 Executive Center Circle, East Tallahassee, Florida 32301 Thomas E. Kingcade, Esquire Post Office Box 2755 Palm Beach, Florida 33480 Mr. Al Packer Al Packer Ford, Inc. 1530 North Military Trail West Palm Beach, Florida 33403
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner on the basis of his race in violation of the Florida Civil Rights Act, when Petitioner was an employee of Respondent.
Findings Of Fact From November 2004 until early 2008, which period includes all times relevant to this case, Petitioner Robinson Nelson ("Nelson") worked for Respondent Alutiiq-Mele, LLC ("AML") as a security guard. Nelson, who is black, alleges that on two discrete occasions, AML unlawfully discriminated against him based on race, once denying him an overtime shift which he requested, and the other time refusing to assign him "equal work hours." The first incident allegedly took place on "or about March 1, 2005." According to Nelson, he called his supervisor that day, using a telephone at his workstation, to ask that he be scheduled to work overtime on his day off. The supervisor, Nelson claims, told him that overtime had been "eliminated" and denied Nelson's request. Shortly thereafter, as Nelson tells it, the supervisor called Nelson's coworker, Nadja Abreu, and offered her the overtime that Nelson had just been denied. Nelson's story cannot be squared with AML's records, which the undersigned considers reliable and truthful and hence credits. Nelson's timesheet for the week of February 27 through March 5, 2005, shows (and it is found) that he worked all seven days that week, putting in 40 regular hours and 26 overtime hours. Ms. Abreu's timesheet for the same period shows (and it is found) that she worked four days, accruing 40 regular hours and four overtime hours. At hearing, Nelson claimed (apparently for the first time) that the telephone conversation with his supervisor regarding overtime had not occurred on or about March 1, 2005—— as he had alleged originally in his Charge of Discrimination (signed on November 20, 2005) and maintained as recently as the Joint Prehearing Stipulation (dated May 30, 2008)——but rather some two weeks later, on or about March 15, 2005. Again, however, credible contemporaneous records belie Nelson's claim. A payroll document shows (and it is found) that Nelson and Ms. Abreu each worked 40 regular hours during the week of March 13, 2005——and neither put in overtime. (Moreover, Nelson did not work on March 15 and 16, 2005, which means that, if Nelson called his supervisor on March 15, as he asserted at hearing, then he likely would not have been at his workstation at the time, which is inconsistent with his testimony that he placed the call while at work.) Regarding the second alleged incident of discrimination, Nelson claims that on Monday, October 31, 2005, shortly before 9:00 a.m., he received a telephone call at home from his supervisor, who wanted to know why Nelson had failed to report for work that morning. Nelson says he told his supervisor that he had not been scheduled to work that day, and he could not work because he was babysitting. Nelson complains that, in connection with this situation, AML "denied" him regular work hours because of his race. In addition to being facially illogical, Nelson's claim of discrimination is contradicted by reliable and persuasive documentary evidence. First, AML's payroll record shows (and it is found) that Nelson worked four hours on Sunday, October 30, and seven-and-a-half hours each day the next Tuesday through Friday, making a total 34 regular hours during the week of October 30, 2005. While this was not quite a full-time workweek, that Nelson worked fewer than 40 hours one week is not, of itself, proof that AML "denied" him six hours of work. In fact, AML did not "deny" Nelson a work opportunity, as other contemporaneous documents——not to mention Nelson's own testimony——show. In evidence are two work schedules pertaining to the week of October 30, 2005. One was printed on October 28, 2005, and the other on October 30, 2005. There are a number of differences between them; each, however, notes that "scheduled hours are subject to change as needed." On the earlier schedule, Nelson was to be off on Monday, October 31, 2005. On the subsequent schedule, he was to work from 9:00 a.m. to 4:00 p.m. that day. Had Nelson reported to work on October 31, 2005, as (ultimately) scheduled——and as he was asked to do——Nelson would have worked more than 40 hours the week of October 30, 2005. Ultimate Factual Determinations Taken as a whole, the evidence in this case is either insufficient to establish that AML discriminated unlawfully against Nelson on the basis of his race; or it proves, affirmatively, that AML did not, in all likelihood, unlawfully discriminate against him. Either way, it is determined, as a matter of ultimate fact, that AML did not violate the civil rights laws in its treatment of Nelson while he was an employee of AML.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding AML not liable to Nelson for racial discrimination. DONE AND ENTERED this 23rd day of July, 2008, 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 23rd day of July, 2008. COPIES FURNISHED: Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141 Christine L. Wilson, Esquire Jennifer A. Schwartz, Esquire Jackson Lewis LLP One Biscayne Tower, Suite 3500 2 South Biscayne Boulevard Miami, Florida 33131 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
