The Issue Whether Respondent County is guilty of an unlawful employment practice pursuant to Chapter 760, Florida Statutes, and if so, what is the appropriate remedy?
Findings Of Fact Petitioner is female, and within a class protected by Section 760.10(1), Florida Statutes. Respondent County is an "employer" within the meaning of Section 760.02(7), Florida Statutes. Petitioner claimed that Respondent treated her disparately from male employees on the basis of her gender in the areas of pay during her probationary period, reprimands and discipline, provision of equipment, poor performance evaluations, and training. Petitioner's initial relationship with Respondent was as an independent contractor at Respondent's Sanitary Landfill under a written contract entered into on September 15, 1989. In this capacity, she acted as a "spotter." As an independent contractor, she received $250 per month and salvage rights to whatever material customers brought to the Respondent's Sanitary Landfill. Effective August 14, 1990, the State Division of Personnel and Retirement required Respondent to put all contractual people on the County payroll. Thereafter, Petitioner was paid $350 per month and continued to have salvage rights only at the sufferance of the Respondent. After that date, Petitioner earned retirement and social security benefits. Withholding of federal taxes and deduction of social security benefits were also provided.(P-12). The value of the salvage rights were never calculated by anyone. While she was employed as a "spotter," Petitioner was the only female "spotter." Petitioner was on probation as an employee from August to December 1990. Petitioner was paid $1.442 per hour from August 12, 1990 through October 1990, and $1.63 per hour from October 1990 through December 3, 1990. At that time, her rate of pay was raised to $3.85 per hour. The record contains no evidence of what was paid to any male employee similarly situated during this period. Without proof that similarly situated male spotters were consistently paid better, there is no proof of gender discrimination in pay during Petitioner's probationary period.3 Mark Hawes, a male, was hired as a spotter on June 1, 1993. He was paid $4.35 per hour while on probation. Willie George, also male, was hired as a spotter on October 1, 1993, and was paid $4.4805 per hour while on probation. There is no evidence of how much Petitioner was being paid during this period, so there is no means of assessing disparate treatment in pay, if any, during this period.4 During the period that Petitioner was employed as a "spotter," there was no statute or rule requiring that "spotters" receive formalized training or be certified in any field. During Petitioner's employment, no spotter were provided more than a printed Job Description and on-the-job oral instructions. They were expected to use courtesy and common sense in dealing with the public. Two employees (gender unspecified) who were not spotters were sent to train at a state "school" to become Certified Landfill Operators. A State Rule was enacted after Petitioner was terminated which required that all spotters must have eight hours of specialized training. Thereafter, the Respondent provided such training to spotters. At all times material to any Personnel Citations, Petitioner was a union member, and all benefits of her union's collective bargaining agreement with the Respondent accrued to her. No performance evaluations were submitted in evidence. With the exception of the events related within the following findings of fact, no witness found any fault with Petitioner in the performance of her job description as a "spotter" at Respondent's landfill. (P-1) Wayne Hardee, Director of the Landfill, issued a Personnel Citation against Petitioner early in her employment on the basis of lack of personal hygiene. The citation was later removed from Petitioner's personnel file as an act of good will. On or about January 16, 1994, Petitioner admitted to an immediate supervisor that her carelessness with a hand-held CB radio had resulted in loss of the radio. She offered to pay for the radio. Mr. Hardee did not require her to pay for the radio, but issued a written Personnel Citation to her on January 20, 1994 for her carelessness. This Personnel Citation simultaneously cited Petitioner because Mr. Hardee had received complaints that Petitioner was overly concerned about other spotters doing their jobs. In this Personnel Citation, Mr. Hardee warned Petitioner to do her job without complaining about other employees. Petitioner admitted that she signed this citation and that she did not grieve it through her union. The radio was later recovered, but the citation remained in Petitioner's personnel file. (P-2) On Saturday, July 9, 1994, Petitioner called her union's senior shop steward, Jessie Ellzey, to the landfill to complain about items left at her spotter station. Mr. Ellzey's perception was that Petitioner was accusing another employee of putting the items in the wrong place. Petitioner also told Mr. Ellzey that another employee had threatened her. After investigation and interviews the following week, Mr. Ellzey and Mr. Hardee determined that the items had been brought by a landfill customer to the landfill between shift changes. Mr. Hardee's and Mr. Ellzey's perception was that Petitioner had unfairly complained about another spotter, Willie George, not doing his job. At least three days and two meetings were involved in this investigation and counseling procedure. Mr. Hardee issued a written Personnel Citation against Petitioner for complaining about a co-employee. (P-3) Petitioner also was suspended without pay for one day and warned that if the problem was not corrected, further disciplinary action would be taken against her. Petitioner did not grieve this citation through her union. Based on all of Mr. Ellzey's credible testimony, due to reputation testimony about Mr. Ellzey's standard operating procedure, and because Petitioner was actually suspended for one day without pay, I reject as not credible Petitioner's testimony that she never knew of this citation in time to grieve it. On August 13, 1994, Ann Harrell, a landfill customer, filed a written complaint of rudeness against Petitioner. (P-9) A written complaint of rudeness by Petitioner was also filed by another customer, Mr. Richburg, at about the same time. Mr. Hardee considered courtesy to customers to be an unstated policy of County government and further perceived rudeness to customers to be an on-going problem in Petitioner's relationship with the public. Due to the foregoing written complaints and many similar oral complaints he had received, Mr. Hardee assigned Petitioner two days' suspension without pay by a written Personnel Citation issued August 15, 1994. The citation also warned Petitioner she would be terminated if there were another complaint about her. Petitioner refused to sign this citation. (P-4) On August 25, 1994, Petitioner grieved the August 15, 1994 Personnel Citation through her union. (P-5) A hearing was held in response to Petitioner's grievance. All concerned agree that Mr. Ellzey, the union representative advocating Petitioner's position, and not a representative of management, kept Petitioner from testifying. Chester Humphries testified on Petitioner's behalf at the grievance hearing that he had been unable to hear what Mr. Richburg said but could hear what Petitioner said to Mr. Richburg. From this, Mr. Hardee inferred that Petitioner had raised her voice to Mr. Richburg. Mr. Hardee assessed Petitioner's character witnesses in Petitioner's favor but noted that they knew nothing about the specific incident between Petitioner and Mr. Richburg. Ultimately, Mr. Hardee relied on Mr. Richburg's testimony concerning the incident. (P-6) Mr. Hardee denied Petitioner's grievance and disciplined Petitioner in accord with the August 15, 1994 Personnel Citation. Upon advice of her union steward, Petitioner did not appeal the grievance hearing result. It was further agreed that if Petitioner's behavior resulted in no more complaints against her for 30 working days, the August 15, 1994, citation would be removed from her personnel file. Petitioner met this requirement, and the citation was removed from her personnel file. (P-6; P-7). Petitioner's December 13, 1994, charge of discrimination before the Florida Commission on Human Relations listed August 11, 1994, as the last date of alleged discrimination. No witness at formal hearing herein, including Mr. Ellzey and Mr. Humphries, both of whom also had been present at the grievance hearing, confirmed Petitioner's perception that her gender had affected the result of her grievance hearing. Another female employee (not a landfill spotter) currently works in Respondent's administrative offices. That female employee also has had employment disputes with Mr. Hardee which she attributes to his gender bias, but the type of dispute was not clearly specified on this record. Therefore, no similarity to Petitioner's situation can be discerned and no pattern of gender bias was proven on that basis. This female employee is still employed by Respondent. A different female employee (also not a spotter) employed by Respondent's Emergency Medical Services (EMS) was terminated by Mr. Bill Beddow, EMS Director, for failing to timely report (or complain about) her immediate supervisor for "doing something [Mr. Beddow] thought he shouldn't be doing with drugs." The male supervisor resigned for "personal reasons." The female employee was rehired by Mr. Beddow after intercession by her union. This means another female not similarly situated to Petitioner was terminated for not complaining about a male employee's job performance and was then hired back, whereas Petitioner was progressively disciplined with reprimands and suspensions for repetitive unsubstantiated complaints about male employees' job performances. Petitioner seeks to have the conclusion drawn that female employees were disciplined both for reporting and for not reporting male employees' misbehavior. However, the two isolated situations are so dissimilar as to develop no pattern recognizable at law. I accept as credible and unrefuted Petitioner's testimony that all of the complaints she initiated about other employees were oral. However, Petitioner's testimony that she did not complain about other employees' performance of, or failure to perform, their jobs and her assertion that her complaints were only motivated by the requirements of her Job Description to "inspect loads" and "report all problems" was not corroborated by any other witness. Petitioner's testimony that her concerns were directed not at individual employees but at addressing hazardous wastes also was not corroborated by any other witness.5 Petitioner's middle level supervisor acknowledged that Petitioner told him that other employees had improperly handled hazardous materials as well as non-hazardous materials but that he did not cite anyone as a result of Petitioner's complaints about hazardous wastes because it was impossible to prove who was responsible. He counseled all subordinates about each incident whenever he considered counseling appropriate. Otherwise, all witnesses with reason to know the situation generally acknowledged that Petitioner's oral complaints were recurring almost daily and were directed to other employees' job performances rather than hazardous materials. It is the repetitive and personal nature of Petitioner's complaints rather than their being oral that management found offensive. The evidence also generally shows that all employees orally complained about each other and that Petitioner's two immediate supervisors, Felippe McCelroy and Robert Murray, orally reprimanded everybody who complained or who was complained about as they each saw fit within their supervisory discretion on individual occasions. No gender pattern is to be discerned from the foregoing. Only on those occasions that either an oral or written complaint reached Mr. Hardee was anyone written up and/or disciplined. Petitioner complained about not being assigned or provided with one of Respondent employer's trucks when other male employees were provided trucks. With the exception of the following findings related to the Respondent's trucks, there is no relevant evidence in this record concerning employees' use of trucks. All employees were cautioned against carelessness. Tommy Dean, a male employee, dented one of Respondent's trucks. He was not disciplined for careless driving. There is no evidence the dent was caused by Mr. Dean's careless driving. In February 1995, Charles Kennedy, a male spotter, filed a written complaint or incident report. Therein, he claimed that Petitioner had attempted to prohibit his bulldozing landfill material out of the way because Petitioner was trying to remove salvageable items. He further alleged that Petitioner had thrown a jar of grease at him. Petitioner was requested to file a written account of the incident. In her written account, she basically admitted the incident but not any intent to hit Mr. Kennedy with the grease jar. Mr. Kennedy was not disciplined for filing the written complaint/report. Petitioner was not disciplined for the actions complained about by Mr. Kennedy. Instead, as of February 3, 1995, landfill spotters were prohibited from salvaging at the landfill. (P-13) Petitioner desires that the conclusion be drawn that male spotters who complained in writing about other employees were not disciplined for complaining but that Petitioner, a female, was disciplined for making oral complaints. However, it appears Respondent addressed Mr. Kennedy's written complaint in much the same way as it had addressed Petitioner's oral complaint against Willie George, by giving each participant in the dispute a chance to state his or her position, before management decided who should be disciplined. The difference was that Mr. Kennedy was not a chronic complainer and management's investigation revealed some fault on both sides, so a neutral solution was found rather than discipline being imposed. There is no evidence beyond Petitioner's assertion that she was ever asked to do more work or heavier work than male spotters. From this point on, the dates that events occurred or their chronology is not entirely clear from the record. However, approximately April 14, 1995, there was an occasion when Petitioner was asked to move metal pieces in a wheelbarrow-sized pile over a three-hour period. The largest piece weighed 21 pounds. The next day, Petitioner reported a workers' compensation back injury or aggravation. She was then off work until approximately May 11, 1995, when she returned to "light duty." She worked for awhile for only four hours per day. Respondent hired someone to help her. It is disputed whether Petitioner was reinjured or whether Mr. Hardee just sent her home. However, on or about July 8, 1995, Mr. Hardee discussed the situation with "the workers' compensation people," and it was agreed there was not enough light duty work for Petitioner. Three months later, Petitioner returned to full duty. Because a spotter had been hired to do her work, Petitioner was assigned to a variety of jobs. She worked at the dog pound, the recycling building, and even washed Mr. Hardee's truck.6 One day, Petitioner's immediate supervisor ordered her to cut out the top of a metal drum. At formal hearing, Petitioner asserted that this was heavier work than she should have been required to do on light duty, but there is no evidence the supervisor's order was motivated by gender bias. There also is no evidence a full-time male spotter was never required to do similarly heavy work. Petitioner advised her supervisor that she had hurt her arms and elbows and she went home on sick leave. Petitioner had complained over the term of her employment about not being provided one of Respondent's trucks so that she could conveniently get from her sector of the landfill to a restroom. After her workers' compensation injury, Respondent arranged for male employees to drive Petitioner to the restroom. Eventually, Respondent provided Petitioner with a portable toilet in her work sector. Mr. Hardee maintained that no spotter had ever been assigned a truck but that all spotters, including Petitioner, had access to one. There is evidence to show that male employees drove the trucks and Petitioner did not, but insufficient evidence to show this was an active management decision or that Mr. Hardee acquiesced in male employees preempting trucks as a result of any gender bias. On or about November 13, 1995, Petitioner informed Mr. Hardee that she was permanently physically disabled and would have to be on light duty indefinitely. After consultation with his "workers' compensation people," Mr. Hardee terminated Petitioner as of that date. 7 At formal hearing, Petitioner admitted Respondent was still paying her workers' compensation benefits and that her workers' compensation claim has not been settled.
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 finding no discrimination and dismissing the Petition for Relief. RECOMMENDED this 19th day of November, 1997, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1997.
Findings Of Fact On October 23, 1978, Petitioner was hired as secretary to W. J. Crist, president of Hygroponics, Inc. On February 26, 1979, W. J. Crist evaluated Petitioner's overall job performance as "good." With respect to cooperation, the Petitioner was rated in the category of "cooperates very well," the highest rating possible for that category of performance. With respect to job knowledge, she was rated as showing "unusual capacity," also the highest rating possible for that category of performance. On March 5, 1979, Petitioner received an increase in salary from $4.18 per hour to $4.51 per hour, based in part upon her increased responsibilities and in part upon demonstrated merit. Following is Hygroponics, Inc.'s office staff organization chart dated May 2, 1979: HYGROPONICS, INC. OFFICE STAFF ORGANIZATION CHART | President | /| W. J. Crist |\ / | | \ / | \ \ \ | Purch. Agent | | Controller | \ | Technical Service | | Dick Destival | | James Jobe |" \ | Dick Jeffery | | | | | "" \ | | " / | | " "\ | " / | | " \" | " / | | " \ " | " / | | " \ " | " / | | " \ " | " / | | " \ " | " / | | "\ "| | Marsha | | Liz | | Nell | | Arlene | | Carolyn | | Betsy | | | | | | | | | | | | | /|\ Direct lines of authority. Answerable to this person at all times " Indirect lines of authority. Answerable for secondary duties and when direct lines are not available. The above organizational chart does not include the company's chief executive officer. On occasion, members of the company's secretarial staff went directly to the chief executive officer with employment-related problems. In September, 1979, after James Jobe, the controller referenced in the above chart, left the company's employ, W. J. Crist, the company president, advised Petitioner that she was to become office manager. After that time, Petitioner assumed many of the duties of office manager. Petitioner inquired when she would receive a raise commensurate with her increased responsibilities, and was advised that this would be accomplished after the company hired a new controller. Emmett Singleton was hired to fill the position of controller on October 29, 1979. On December 11, 1979, Petitioner formally became acting office manager. On that date Petitioner was evaluated by Emmett Singleton, who rated Petitioner highest in the areas of decision-making and ability to organize, and lowest in the areas of acceptability and responsibility. Specifically, Singleton made the following comments concerning Petitioner's job performance: "Has difficulty in establishing satisfactory relationships with people"; "Average leader, conventional in manner and enthusiasm, conveys ideas but does not motivate group"; "Has problem with admitting an error or fault"; "Reluctant to accept job responsibilities. Supervision and follow-up often required"; "Considers job an eight to five task with scheduled breaks reguardless [sic] of status of workload"; "Employee is preoccupied with the position rather than a concern for getting the job done"; and, "Employee resents being monitored or controlled. Sometimes uncooperative and slow to respond to direction." In addition, members of the company management group, other than Emmett Singleton, commented on this evaluation that Petitioner "alienates co-workers," "Has experienced confusion in the scheduling of grower school," and expressed concern with Petitioner's "attitude." The controller noted on the evaluation form that he planned ". . .to work closely with [Petitioner] for the next 60 days and make an assessment during this time as to whether on [sic] not suited for office manager." Finally, Mr. Singleton noted on Petitioner's performance review form that Petitioner ". . .is classified as Acting Office Manager and is on probation with reguard[sic] to classification. No change in rate of pay is being made at this time. Employee will be reevaluated in 60 days on or about 2/10/80." In order to improve her skills in the area of acceptability and responsibility, Petitioner requested that Mr. Singleton issue a memorandum clarifying the lines of her authority especially since her subordinates had not been advised that she had been given supervisory responsibility over them. Her request was denied at that time because Singleton wanted to first determine whether she could handle the position. On January 12, 1980, Singleton reevaluated Petitioner's job performance. According to Singleton's rating, Petitioner had improved in the areas of acceptability and responsibility, which had been her weak points in the evaluation performed one month earlier. On this same day, Petitioner was reclassified from acting office manager to office manager, and received an increase in pay to $821.60 per month, retroactive to November 1, 1979. Petitioner also assumed the duties of payroll clerk and accounts payable in addition to the duties of office manager. Shortly after receiving this promotion, Petitioner advised employees of Hygroponics, Inc., that she was pregnant. W. J. Crist and Emmett Singleton acknowledged her pregnancy, and the latter inquired concerning her intentions regarding her employment. Petitioner responded that she intended to continue working for the company, and to return to work after the birth of her child. Hygroponics, Inc., had no maternity leave policy. No other female employee had ever given notice of pregnancy and stated her intention to return to work following childbirth. However, at least two other employees had become pregnant during the term of their employment with Hygroponics, Inc. One of these employees, in fact, suffered two miscarriages during her term of employment, and continued working with the company. Another female worker became pregnant, gave birth to a child, and returned to work without ever advising the company or the company ever being aware that she had been pregnant until after she had returned to work. On January 30, 1980, Petitioner submitted a memorandum to Eugene Crist, the company's chief executive officer. The memorandum suggested changes regarding the responsibilities of certain of the office personnel under her supervision. Petitioner had previously discussed these suggested changes with Emmett Singleton, her immediate supervisor, who advised her that he thought her suggestions were a good idea. At the time the memorandum was submitted to the company's chief executive officer, W. J. Crist, the president of the company, was out of the state. On January 30, 1980, Eugene Crist showed the memorandum to Emmett Singleton. The memorandum was then returned to Petitioner by the company's chief executive officer with a notation that the matters contained in the memorandum should be handled through Singleton. Two days later, on February 1, 1980, Singleton asked Petitioner for the memorandum. When Petitioner could not locate the memorandum, and offered to discuss the details of it with Singleton, Singleton advised her that there was no basis for conversation if she could not produce the memorandum. As noted above, Singleton had seen and read the memorandum two days previously when it was shown to him by Eugene Crist. Upon W. J. Crist's return to Florida, Singleton advised him that Petitioner had submitted a memorandum directly to the company's chief executive officer, and that when Singleton asked Petitioner to see the memorandum, she advised him that she had misplaced it. On February 8, 1980, W. J. Crist circulated a memorandum to the Hygroponics, Inc., executive staff concerning Petitioner's ". . .insubordination, poor attitude [and] defiance of executive orders. This memorandum provided, in part, as follows: It is my understanding that Carolyn recently drafted a memorandum on her proposed changes in office duties for many people, changes in accounting procedures, etc. I have been informed that she: "by-passed you, her immediate superior and by-passed me, her next-in-line superior." and delivered this memo directly to Gene, our CEO. Then when Gene informed her to "discuss the memo directly with you," she advised you "she did not even have the memo anymore." I find these actions, on Carolyn's part very distressing and feel we must take disciplinary actions with her. So - what are the problems. Her "uncooperative" and "attitude" problems outlined in your personnel evaluation of her on December 11, 1979 (which she acknowledged) when you put her "on probation," the first time, still persist. She demonstrated anything but teamwork in by-passing her two immediate superiors and going directly to our CEO. This is very bad for an employee to do but even worse for her since she is suppose [sic] to be a leader of our people in her slot as Office Manager. Her disregarding Gene's directive to discuss the memo with you was corrected only by your insistance[sic] that the two of you discuss it. Her statement to you that "she no longer had the memo" is also distressing. Has she destroyed it? This additional negative certainly weakens her argument that "she went directly to Gene because he was going out.[sic] (Original emphasis.) The above-referenced memorandum solicited the views of the company's executive staff as to whether to terminate Petitioner, discipline her in some fashion, or give her an opportunity to resign. The decision was unanimous among all five members of the executive staff to terminate Petitioner. No member of the executive staff questioned Petitioner before concurring in the decision to discharge her. Such a memorandum of concurrence was not the company's standard practice in discharging employees, which generally was for the discharge decision to be made by the employee's supervisor alone. Hygroponics, Inc., was, at all times material to this proceeding, a rather small organization, numbering at the most approximately fifty employees. As a result, many of the internal functions of the company were informal in nature. For example, there were no strict lines of authority for secretarial staff to air grievances or make suggestions. There was, however, a generalized procedure for employees to approach their immediate supervisor with any employment-related problems. There is no direct substantive evidence in the record in this cause from which it can be concluded that Petitioner was terminated from her employment because she was either female or pregnant. Further, whatever circumstantial evidence there is in this record to support such a contention is overcome by Respondent's demonstration that Petitioner was at best an employee of average ability who management viewed at times to be a problem employee. It appears, therefore, that the reason for Petitioner's discharge was an accumulation of events, culminating in her memorandum of January 30, 1980, being submitted to the company chief executive officer, and not for any reason relating to her sex.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Commission on Human Relations, dismissing the Petition for Relief, and denying the relief requested therein, with prejudice. DONE AND ENTERED this 2nd day of March, 1983, at Tallahassee, Florida. WILLIAM E. WILLIAMS 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 2nd day of March, 1983. COPIES FURNISHED: James H. White, Jr., Esquire 229 McKenzie Avenue Panama City, Florida 32401 John F. Daniel, Esquire Post Office Box 2522 Panama City, Florida 32401 Dana Baird, Esquire Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301 Richard E. Williams Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301
Findings Of Fact After the motion for continuance was again denied, petitioners declined to offer any evidence and petitioners announced that they would be pursuing certain supposed federal remedies.
Findings Of Fact During the fall of 1974 OWHEA, an affiliate of the National Education Association, commenced efforts to organize instructional personnel employed by OWJC. By letter dated February 20, 1975, directed to Dr. J. E. McCracken, the President of OWJC, the OWHEA requested recognition as the bargaining agent for all full-time, regularly employed, certified instructional personnel. (PERC Exhibit 5). By letter dated February 26, 1975 the request for voluntary recognition was denied. On March 3, 1975 the OWHEA filed a petition with the Public Employees Relations Commission through which recognition as the exclusive bargaining agent of instructional personnel at OWJC was sought. (Hearing Officer's Exhibit 1). A hearing was scheduled to be conducted on May 1, 1975. On that date the parties entered into an Agreement for Certification Upon Consent Election. In accordance with the Agreement the election was conducted on September 18, 1975. (Hearing Officer's Exhibit 1). On September 25, 1975 the Public Employees Relations Commission, through its Chairman, verified the results of the election. By a vote of 41 to 27 OWJC employees within the prospective bargaining unit rejected representation by the OWHEA. (Hearing Officer's Exhibit 1). On July 21, 1975, approximately two months prior to the election, the OWHEA filed an unfair labor practice charge with the Public Employees Relations Commission. Subsequent to the election the OWHEA filed Objections to Conduct Affecting the Results of the Election. By order of the Acting General Counsel of the Public Employees Relations Commission, the two matters were consolidated and a hearing was conducted before the undersigned on January 14, 15, 26, and 27, 1976. On November 7, 1974, Dr. J. E. McCracken, President of OWJC, and a voting member of the Board of Trustees of OWJC, called a meeting of the Faculty Council. The Faculty Council is a group of five faculty members, who meet periodically with the President and members of the President's staff to consider faculty problems and to provide recommendation to the President. At least four of the five members of the Faculty Council at that time were members of OWHEA. The meeting was called to discuss solicitation and distribution guidelines in light of the collective bargaining law, Florida Statutes Sections 447.201 et seq. which would go into effect January 1, 1975. Dr. McCracken wished to adopt guidelines for solicitations by employee organizations in the interim period before comprehensive guidelines were adopted by the Public Employees Relations Commission. The November 7 meeting lasted for longer than one hour. Every member of the council made some contribution to the meeting. Solicitation guidelines substantially similar to those ultimately promulgated, (See: PERC Exhibit 2) were discussed. No disagreement to such guidelines was expressed at the meeting. A solicitation guideline policy was then drafted by President McCracken, and was presented to the faculty at a November 19, 1975 meeting. At the hearing several members of the Faculty Council testified that they were surprised to see the guidelines as they were presented at the November 19 faculty meeting, but none of them spoke in opposition to the guidelines at the meeting. If members of the Faculty Council opposed the guidelines, their opposition crystalized after the November 9 Council meeting, and was not openly expressed at the November 19 faculty meeting. There may not have been a full consensus in support of the guidelines among members of the Faculty Council as expressed in the body of the solicitation guidelines; however, President McCracken was justified in believing that there was such a consensus since no opposition was expressed. The solicitation guidelines were later amended by a memorandum from Dr. McCracken to all personnel dated June 2, 1975. (See: PERC Exhibit 16). The solicitation guidelines presented to the faculty meeting on November 19, 1975 provide in part as follows: "The Faculty Council and the President of the College were in full consensus in affirming the following specifics relative to solicitations on the campus: College personnel are not to be subjected to solicitation by any groups or persons on-campus between 7:30 A.M. and 10:30 P.M. except in the following specified dining areas and during the scheduled lunch hour of any given employee. Meetings and activities on-campus shall be scheduled through the office of the Director of Community Services, Mr. James Rhoades, who maintains the official calendar of College activities and the official room-use schedule. All meetings and activities on the College campus, as a public institution campus, are intended to be in full compliance with the Sunshine Law of the State of Florida. On-campus distribution of any literature and notices which are not official College business shall be by placement on or in the square counters in the front lobby of the Administration Building. Posters and notices of interest to personnel of the College shall be placed in the covered main bulletin board in the front lobby of the Administration Building. Mr. Rhoades, Director of Community Services, will receive such materials for posting and will assure that such notices will be posted and that outdated and obsolete notices are removed." The guideline is signed by Dr. McCracken followed by the following note: "Although inadvertently overlooked in the discussions with the Faculty Council, it is, of course, obviously understood that College clerical services, postage, materials production services, telephones, and equipments are to be used only for official College business." The amendments to the solicitation guidelines distributed in the June 2, 1975 memorandum define "working time" as follows: "Okaloosa-Walton Junior College is officially opened to its clientele and operating with them from 7:30 through 10:30, Monday through Friday. Working time is that time when an employee has any scheduled obligations, whether instructional or non-instructional, to perform with respect to his position at the College including but not limited to all such obligations as required office hours, committee work, conferences, and official meetings." Solicitation is defined in the memorandum in pertinent part as follows: "College personnel are not to be subjected to solicitation by any groups or persons on- campus for any purpose when any person involved in the solicitation is on "working time" as defined above. Meetings and activities on-campus shall be scheduled through the office of the Director of Community Services, who maintains the official calendar of College activities and the official room-use schedule. All meetings and activities on the College campus, as a public institution, are intended to be in full compliance with the Sunshine Law of the State of Florida. On-campus distribution of any literature or notices which are not official College business shall not take place during working time, nor shall it take place in areas where actual work of public employees is normally performed. Posters and notices of interest to personnel of the College shall be placed in the covered main bulletin board in the front lobby of the Administration Building. The Director of Community Services will receive such materials for posting and will assure that such notices will be posted and that outdated and obsolete notices are removed. College clerical services, postage, materials production services, telephones, and equipments are to be used only for official College business and shall not be used in any way for solicitation or for promotion of unsanctioned activities or of organizations other than those which are official elements of the College or in which the College holds institutional membership." The November guidelines were not literally followed by the OWHEA, either in its efforts to secure the requisite showing of interest or in the election campaign. Many solicitations occurred outside of the designated areas during the proscribed hours, and several occurred during times when the person being solicited was actually on duty. The President of OWJC had reason to believe that the guidelines were being violated, but no effort to enforce them was ever initiated. Members and officers of the OWHEA who were involved in the organizational effort and in the election campaign gave various interpretations of the solicitation guidelines that were issued in November, and the amendments to the guidelines issued in June. The guidelines prohibited certain activities which the OWHEA considered desirable; however, the OWHEA was able to engage in a wide variety of campaign activities, and an even wider variety of activities that were available were not utilized. During the campaign members of the OWHEA spoke freely in support of the organization to non-members in the hallways, in the lunchroom, in the parking lot, and in faculty offices. The OWHEA distributed numerous bulletins, newsletters, and assorted memoranda to persons in the prospective bargaining unit. Material was delivered through the mails directly to OWJC, where it was placed in the faculty mailboxes; was delivered through the mails to the residences of faculty members; and was placed at a distribution point in close proximity to the mailboxes so that it could be read by any interested person. Respondent's Exhibits 2 and 4 - 16 are all examples of such literature that was distributed prior to the election. Respondent's Exhibits 17 - 23 are examples of literature distributed after the election. The total volume of materials distributed by the OWHEA through these avenues exceeded materials distributed by the Respondent. OWHEA members personally contacted many persons within the prospective bargaining unit. Many of the authorization cards which were forwarded by the OWHEA to the Public Employees Relations Commission with the representation certification petition were signed on campus as a result of such direct communications. The OWHEA conducted several off campus meetings. Members of the prospective bargaining unit were urged to attend such meetings and several did attend. There was testimony that these meetings were not well attended; however, there was no testimony offered from which it could be concluded that members of the prospective bargaining unit could not have attended these meetings or were not adequately apprised of them. On the contrary it appears that members of the prospective bargaining unit were apprised of the meetings and could have attended them if they desired. The OWHEA was allowed the opportunity to speak at a faculty meeting with respect to the benefits that might be obtained from the collective bargaining process, and with respect to the desirability of having the OWHEA as the bargaining agent. The OWHEA declined to avail itself of this opportunity. Mr. Chilton Jensen delivered a brief statement at that meeting. A copy of the statement was received into evidence as PERC Exhibit 3. Several campaign devices were available to the OWHEA, but were not utilized. The OWHEA could have distributed literature by placing it on automobiles in the faculty parking lot. There was testimony that this would have been too time consuming, but there was also testimony that on some days faculty members had as much as two hours of time which was not devoted to official OWJC duties. At least one bulletin board was available to the OWHEA for placing posters. While undoubtedly not the most effective campaign device, as noted by several OWHEA members, it is one, and could only have assisted in advancing the OWHEA position. While the OWHEA requested that certain meeting facilities be provided for presentations to be given during the lunch hours, no request was made to, conduct such meetings in the area set out in the solicitation guidelines. The only reason for failing to request use of these facilities given by OWHEA officials was that students were often present in that area, and that they did not feel it appropriate to "air the dirty wash" in an area where students were present. No request was made to alleviate this problem by setting aside, an area in the lunchroom. It was suggested that use of this facility would not have been appropriate because managerial officials of the OWJC would be able to attend the meeting. This was not, however, a concern of the OWHEA at the time that it was requesting meeting facilities. In its letter requesting use of other meeting facilities, the OWHEA invited Dr. McCracken, the chief managerial employee of the OWJC to attend the meeting. (PERC Exhibit 9). As stated above, the OWHEA was able to distribute materials to members of the prospective bargaining unit through the mails. There was absolutely no limitation upon such distributions. Distributions could have been timed so that members of the prospective unit would have received whatever amount of literature at whatever time the OWHEA deemed appropriate. No evidence was presented as to whether any telephone solicitations were conducted. This was a campaign device that was available to the OWHEA. Several campaign devices were not available to the OWHEA under the solicitation guidelines. The OWHEA was prohibited from using the campus mail system. The OWJC maintains a mailroom. Each faculty member has a mail box with a combination, in which many college related bulletins are placed. Mail directed to a faculty member through the Junior College is placed in these boxes. The OWHEA desired to use this mailing system so that it could distribute literature to members of the faculty without having to pay mailing expenses. The solicitation guidelines restricted the availability of meeting rooms. On one occasion the OWHEA requested a meeting room other than the lunch area designated in the solicitation guidelines. (See: PERC Exhibits 9, and 12) The request was denied by Dr. McCracken on behalf of the Respondent. (See: PERC Exhibits 10 and 13). The request was denied for several reasons, and indeed, as noted by one OWHEA official, would have been very difficult to grant as framed. It is apparent that any request for a meeting facility other than in the area designated in the solicitation guidelines would have been denied. The OWHEA was not permitted to make a presentation to any faculty meeting, other than at the November meeting. The OWHEA was not permitted to solicit members, or to campaign during working hours, and was not permitted to use the staff or facilities of the OWJC to assist in the campaign effort. The Respondent, under the direction of Dr. McCracken, engaged in an active campaign in opposition to collective bargaining and in opposition to the OWHEA. At a meeting of the faculty in February, 1975, Dr. McCracken read a statement which was received into evidence as PERC Exhibit 6. Counsel for the Respondent made an additional presentation at the meeting. Attendance at the faculty meeting during these presentations was optional. No compunction existed for any faculty member to stay during the presentation. The Respondent distributed numerous memoranda to its faculty respecting the collective bargaining process and OWHEA. Such memoranda were received into evidence as PERC Exhibits B, 14, 21, 22, 23, 24, 25, 26, and 27. Additional memoranda were distributed subsequent to the election. (See: PERC Exhibits 28, 29, 34, 35, 37, and 38.) The Respondent did not make any further presentations at faculty meetings, and engaged in no personal contact campaign. Members of the proposed unit who opposed collective bargaining spoke to undecided members of the proposed unit, but there was no evidence from which it could be concluded that there was any connection between that activity and the administration of OWJC. In support of their contention that the Respondent engaged in a campaign of misrepresentation, the general counsel and the OWHEA cite PERC Exhibits B, 14, 21, 22, 23, 24, 25, and PERC Exhibit 8 is a memorandum that was distributed to the OWJC faculty through the faculty mail system on February 26, 1975. In this memorandum Dr. McCracken treats the request from the OWHEA for recognition as the exclusive bargaining agent of instructional personnel at OWJC as an effort by OWHEA to avoid the election process. In fact, such a request is a condition precedent to the filing of a representation certification petition requesting an election when the employee organization claims that it represents more than fifty percent of the persons in the proposed unit, as did the OWHEA. Dr. McCracken's characterization of the request for exclusive representation totally ignores the fact that the OWHEA was required to make the request. There was, however, ample opportunity for the OWHEA to respond to Dr. McCracken's memorandum, and to set the record straight. The February 26, 1975 memorandum is not such as would have had any effect upon the election, which was conducted some seven months later. PERC Exhibit 14 is a memorandum dated April 11, 1975 from Dr. McCracken directed to the faculty of OWJC through the faculty mails. The memorandum essentially states the Respondent's position in opposition to collective bargaining and to the OWHEA. The following language from the exhibit was cited as a misrepresentation: . . . I would like to state my perception of where we are and where we are going from here. Essentially, it is very simple. We now have two facets of activity going on: (1) the intrusion into normal activities of a representation petition submitted to PERC by Mr. Eugene Stafford, local Director of UNISERV/FUSA/NEA and agent for OWHEA, this development forcing, from here on, active use by the College and by OWHEA of essential, specialized legal assistance; and (2) our ever-present, on-going obligations to the regular planning, services, functions, and commitments of this College." This memorandum constitutes at most an extravagant statement in opposition to the collective bargaining process. PERC Exhibit 21 is a memorandum from Dr. McCracken A directed to all instructional personnel, distributed through the campus mail system, dated September 9, 1975. In the memorandum Dr. McCracken sought to refute certain statements made by the OWHEA in a memorandum dated August 12, 1975 (Respondent's Exhibit 14). In its August 12 memorandum, the OWHEA asserted that the collective bargaining process resulted in substantial gains to members of the faculty in the public schools in Okaloosa County. Many of the "gains" set out in the OWHEA memorandum were subjects of collective bargaining in the Okaloosa County Public Schools; however, they were also matters which had already been a part of the teachers' contracts and were not gains at all. Far from containing misstatements, Dr. McCracken's September 9, 1975 memorandum accurately explains the exaggerations contained in OWHEA's August 12 memorandum. PERC Exhibits 22, 23, 24, 25 and 27 are similar to PERC Exhibit 14. They set out what can be called an exaggerated view in opposition to the collective bargaining process and to the OWHEA. The OWHEA distributed materials which present an exaggerated view in favor of the OWHEA. The memoranda distributed by the Respondent did not result in any subversion of the election process. The OWHEA had adequate opportunity to respond to all of the alleged misrepresentations except for those set out in PERC Exhibits 24, 25, and 27. The election was conducted on September 18, 1975. PERC Exhibit 24 was distributed on September 15, 1975; PERC Exhibit 25 `was distributed one September 16, 1975, and PERC Exhibit 27 was distributed on September 18, 1975. Because of the inability of OWHEA to directly respond to these memoranda, special attention should be given them. In PERC Exhibit 24 Dr. McCracken asserted that information distributed by the OWHEA respecting average teachers salaries at the OWJC was inaccurate. No evidence was offered at the hearing to establish that the information set out in PERC Exhibit 24 was inaccurate. PERC Exhibit 25 contains a statement that the OWHEA's national affiliate was supporting legislation that would require non-union members in a certified bargaining unit to pay a fee to the union in an amount equal to membership dues. The NEA was not supporting such legislation. This misrepresentation was not substantial, and would have had appeal only to persons who did not wish to have the OWHEA serve as its bargaining representative. PERC Exhibit 27 contains the following language: "The Board of Trustees and the President over the past months - almost a year now - have diligently resisted many harassments in order to bring to you today your right to vote secretly . . ." Dr. McCracken had not intended the word "harassments" to refer to activity of the OWHEA. While the word "harassments" might be construed as derogatory of the OWHEA, any member of the faculty of the OWJC would have already been aware that Dr. McCracken held a derogatory opinion of the OWHEA. To the extent that the term "harassments" is a misstatement, it is not one that would have had any material effect upon the outcome of the election. All of the various memoranda distributed by Dr. McCracken which contained exaggerated language, or statements in opposition to collective bargaining and the OWHEA, considered together, would not have had an improper, substantial effect upon the electoral process. As set out above, the OWHEA was not permitted to use the OWJC mailing system to distribute information to members of the faculty, and was not permitted to make presentations to any regular faculty meetings subsequent to November, 1975. The Florida Association of Community Colleges; however, was permitted to use the mailing system and was given time during the faculty meetings to make presentations, including solicitations for membership. The FACC is an organization whose general purpose is to advance the Florida Public Community College program. A copy of the FACC bylaws which set out the purposes of the FACC was received in evidence as Respondent's Exhibit 27. The Florida Association of Community Colleges is not an employee organization within the meaning of the Public Employees Relations Act. Dr. McCracken advanced the FACC as an organization worthy of support by members of the faculty; however, in doing that he was not a lending support to an employee organization opposing the OWHEA, but rather to a general professional organization. Other organizations were permitted to use the facilities at OWJC to make presentations. Such organizations included the American Association of University Women, a local concert group, armed services recruiters, and a politician. No employee organizations were permitted use of campus facilities for meetings, and those organizations which were permitted use of the facilities made educational, cultural, or community oriented presentations. In its motion to dismiss the objections case, the Respondent has asserted that the General Counsel conducted no investigation of the allegations of the OWHEA's petition. The General Counsel was invited to submit an affidavit respecting what, if any, investigation was undertaken. No affidavit was submitted, and it was asserted at the hearing that the investigation conducted in connection with the unfair labor practice case, and the hearing itself constituted the investigation. In its objections petition, the OWHEA asserted that the Respondent failed to deliver a list of teachers to the OWHEA as required in the Certification Upon Consent Election Agreement. Such a list was mailed to Chilton Jensen, who had been listed as the president of the OWHEA within the time period set out in the agreement. Mr. Jensen was ill, and he did not pick up his mail until after the period set out in the agreement. He then delivered it to Mr. Leatherwood, who had become President of the OWHEA. The failure of the OWHEA to obtain a copy of the list within the period set out in the agreement was not the fault of the Respondent. No substantial competent evidence was offered at the hearing from which it could be concluded that the Respondent coerced, threatened, or intimidated any members of the prospective collective bargaining unit; that the members of the collective bargaining unit were unable to inform themselves with respect to the merits of the collective bargaining system, and the OWHEA; or that the OWHEA was unable to disseminate information to members of the prospective collective bargaining unit. The Respondent did not interfere with, restrain or coerce its employees in the exercise of their rights under the Public Employees Relations Act.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on November 9, 2007.
Findings Of Fact Petitioner is a Chinese-American female who was hired by Respondent on or about August 29, 2005, as a bilingual Customer Service Representative I (CSR I) in the Customer Service Department. Respondent is a natural gas marketing company providing natural gas to customers in Florida, Georgia, New Jersey, and New York. The function of Respondent’s Customer Service Department is to assist its natural gas customers. The Customer Service Department divides its CSR I and Customer Service Representative II (CSR II) employees into teams in the call center. The call center floor is divided into four sections each of which contain a number of work stations. Each team is based in its section with a person who is “team leader.” In each area, the team leader has a supervisor. Petitioner sat with her team in a work station closest to her team leader. Petitioner felt isolated from her co-workers in the location were she was placed because the work station next to her was vacant for a period of time. Petitioner speaks English and Chinese. Because Petitioner was hired as a bilingual CSR I, her initial rate of pay was $9.75 per hour. This rate of pay was $.50 per hour higher than the starting wages of non-bilingual customer service representatives. After being employed for one year, Petitioner received an Employee Performance Evaluation which rated six areas of job performance with a score range of 1 for “unsatisfactory performance” to 5 for “exceptional performance.” Petitioner received a rating average of 3.3 (a score of 3 indicates “meets expectations” and a score of 4 indicates “exceeds expectations.”) Petitioner received a 6.6 percent raise following her annual performance evaluation in August 2006. In August 2007, Petitioner received another annual Employee Performance Evaluation with a rating average of 2.5 (a score of 2 indicates “marginal performance”). Petitioner received a 5 percent raise following her second employee performance rating in August 2007. Petitioner thereafter received a cost of living wage increase and another bilingual wage increase. At the time she was terminated from employment in November 2007, Petitioner was receiving a rate of pay of $11.50 per hour. Respondent typically imposes disciplinary action to its employees in the following sequence: a verbal warning; a first written warning; a second written warning; a final warning; termination from employment. Petitioner’s personnel file reveals that in 2006, there were six instances in which Petitioner received verbal warnings followed by first written warnings, and one instance in which she received a second written warning. The categories listed on the personnel documents for which Petitioner received these disciplinary actions were tardiness, behavior/conduct, absenteeism, and adherence to schedule. Petitioner’s personnel file reveals that in 2007, she received progressive discipline for failure to follow policy and procedure. That is, she received a verbal warning on April 19, 2007; a first written warning on April 25, 2007; a second written warning on May 18, 2007, and a final warning on June 17, 2007. Also in 2007, Petitioner received a verbal warning for absenteeism. In between the time she received the verbal warning until she was terminated on November 1, 2007, Petitioner received almost 50 coaching sessions. From March of 2006 until she was terminated in November 2007, Petitioner received 105 coaching sessions. Respondent provides coaching sessions to employees so that they can improve their job performance when needed. During a coaching session, a supervisor or other person will sit with the employee during a call and, afterwards, instruct or “coach” the employee as to how their performance could be improved. On November 1, 2007, Petitioner received a termination notice for failure to follow policy and procedures and performance. In January 2007, Respondent sent an e-mail to employees which consisted of a job posting for the position of Quality Assurance Analyst-Bilingual. The job description for a Quality Assurance Analyst lists “Bilingual in Spanish a plus” under the category “Minimum Education, Work Experience and Qualifications.” This is a salaried position with an expected hiring range of $37,000 to $40,000 (presumably an annual salary.) Petitioner did not receive an interview for this position. John Pinillos, an employee of Respondent already working in the quality assurance department who is fluent in English and Spanish, was hired for the position. In August 2007, Petitioner applied for the position of Payment Processor. The job posting noted, “Performance, attendance, tardiness and any disciplinary actions will be reviewed as part of the initial screening process.” The expected hiring range was listed as $9.08-$9.99 (presumably per hour). It is Respondent’s policy that when an employee applies for a job, the employee’s disciplinary actions are reviewed from his or her personnel file. Petitioner’s application for this position came after the final warning in June 2007, which ultimately resulted in her dismissal. Petitioner was not granted an interview for the Payment Processor position. At a point in time that is not entirely clear from the record, Petitioner applied for a CSR II position. The person who was hired for the position was an employee named Jeffrey Hill. Mr. Hill had not received any disciplinary actions, and had 26 counseling sessions during the year prior to his being hired for the job. Typically, an employee performing at a desirable level receives approximately 20 to 50 coaching sessions within a year. When Petitioner was terminated, she was escorted out of her work area. Other persons collected her personal belongings. Petitioner felt embarrassed by this and believes that she was treated this way because of her national origin. However, at hearing, Petitioner acknowledged that she was not aware of whether other employees who were terminated were allowed to collect their own belongings. It is Respondent’s policy that employees in the customer service and call centers who are being terminated are escorted from the call room to another location to have the termination meeting. At that time, the employee’s supervisor goes to the employee’s desk with a witness, gathers the employee’s personal belongings, and places them in a box. The box is taken to the location where the termination meeting is taking place. There was no competent evidence presented that establishes that Petitioner’s termination, or any other employment action taken by Respondent, was based on race or national origin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 18th day of September, 2008, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 18th day of September, 2008.
The Issue Whether Respondent Employer is guilty of an unlawful employment practice by discrimination in its failure to promote Petitioner on the basis of her race and/or gender.
Findings Of Fact Petitioner is an African-American female. Respondent is a constitutional office of local government that appraises property for tax purposes. At hearing, Petitioner claimed to have sent a written narrative of her concerns to FCHR on December 20, 2005, although she did not file her formal Charge of Discrimination until December 28, 2005.1/ At the commencement of the disputed-fact hearing, Petitioner indicated that the only issue to be determined was her entitlement to a promotion, and that no other discrimination claims were at issue in this case. Petitioner also indicated that she was challenging only two alleged promotional decisions: (1) a front counter position awarded to Valencia Scott; and (2) a sales qualifier position awarded to Mike Nichols.2/ Prior to being employed by Respondent, Petitioner had received a B.S. in criminal justice, with a minor in business administration, from Troy State University. Prior to being employed by Respondent, Petitioner worked as a substance abuse counselor with Corrections Corporation of America; as a regulatory specialist with the Florida Department of Business and Professional Regulation; as an evaluation specialist with Disc Village; as a drug treatment counselor with the Alabama Department of Corrections; and as a mental health associate with Tallahassee Memorial Hospital. During her employment with Respondent, Petitioner also worked part-time in a cleaning job. Petitioner was initially hired by Respondent approximately January 2003, as an “Other Personal Services” (OPS) employee. (Stipulated Fact). While serving as an OPS employee between January 2003, and October 2003, Petitioner was not entitled to, and did not receive, the usual benefits and emoluments of a regular, full-time employee, including but not limited to, membership in the Florida Retirement System, paid annual and sick leave, and health insurance. While employed as an OPS employee, Petitioner answered Respondent’s telephone switchboard and performed data entry duties. In approximately October 2003, Petitioner was employed in a full-time position at a higher rate of pay and full benefits. (Stipulated Fact.) In October 2003, Respondent promoted Petitioner into a newly-created full-time position of "switchboard operator." Prior to the creation of this switchboard operator position, various employees had worked the switchboard in the equivalent of four-hour shifts, because working the switchboard non-stop was monotonous in good times and was hectic and stressful due to the number of phone calls received during two peak periods each year. On some occasions prior to October 2003, part-time students also had been used for this purpose. Petitioner was offered the promotion on October 8, 2003, with an effective starting date of October 16, 2003. Upon this starting date, Petitioner was employed by Respondent in a full-time position at a higher rate of pay than she had received as an OPS employee, and began to receive retirement benefits, annual and sick leave, and health insurance. In 2003, Respondent promoted five employees. Four of the five promoted were African-American and/or female. Petitioner was one of the four African-American females promoted that year. From December 28, 2004, through December 28, 2005, none of Respondent’s employees were promoted. During this same period, Respondent had no promotional opportunities of any kind available to any employee. There also were no promotions between December 20, 2004, and December 28, 2005. (See Exhibit P-4 and Finding of Fact 11.) Petitioner received raises throughout her employment with Respondent. During busy times, she was provided additional assistance with her phone duties upon her request, because management agreed with her that the switchboard position was stressful. Petitioner consistently received excellent performance reviews. In September 2005, Petitioner asked her immediate supervisor, Shirley Eaton-Marks, where Respondent would advertise a front-counter position that was expected to become vacant. Petitioner testified that Ms. Eaton-Marks “vaguely” responded, "I am not sure. Sometimes on the Internet or in the [Tallahassee] Democrat."3/ In or about September 2005, Petitioner was provided an extended period of leave for back surgery and recovery. (Stipulated Fact.) Petitioner was on sick leave from September 28, 2005, through November 14, 2005. Respondent provided Petitioner as much leave as she needed for her surgery and recovery. When she ran out of her own accrued paid leave, sick leave was donated to Petitioner by a co-employee. During her leave of absence, food drop-offs to Petitioner’s home were coordinated by her co-employees. Hot meals were provided by co-employees to Petitioner and her family, as well as groceries. During one of these deliveries, Petitioner remarked to Michele Weathersby, Respondent's Chief Financial Officer, that Petitioner was appreciative of her co- workers’ efforts and gifts. Petitioner seemed genuinely overwhelmed by their generosity. While on sick leave, Petitioner spoke with Kathy Doolin, Assistant Property Appraiser, about working at the front counter. A sales qualifier position was not available at that time, and by all accounts, even Petitioner’s account, Petitioner never applied for, or made anyone in Respondent's office aware that she was interested in the sales qualifier position. Petitioner claims she was wrongfully denied a front- counter position. She also claims that the front counter position and sales qualifier positions constituted promotional positions for her. Petitioner’s definition of a “promotion” is moving into a position with greater job responsibility and more authority. However, she did not demonstrate what the job responsibilities and authority of the front-counter or sales qualifier positions were. Therefore, the respective responsibility and authority of the three positions cannot be compared. Petitioner has never specifically applied for any promotion while employed by Respondent. The front-counter position was filled by Valencia Scott. Ms. Scott, like Petitioner, is an African-American female. According to Michelle Weathersby, Respondent’s Chief Financial Officer, Respondent defines a “promotion” as moving an employee to a position with an increase in salary and perhaps an increase in benefits, such as a different benefits classification like “senior management” class, instead of “regular employee” class. By these standards, neither the front desk position nor the sales qualifier position would have constituted a promotion for Petitioner, and moving from a front desk position to the sales qualifier position would not have constituted a promotion for anyone. Petitioner returned from sick leave on November 14, 2005. On December 19, 2005, Petitioner requested to speak to the incumbent property appraiser. Petitioner testified that on December 20, 2005, she approached the incumbent property appraiser in his office and asked if he were aware that she was interested in promotion. She further testified that the Incumbent then stated that he was aware Petitioner was interested in promotion, but that "Speaking from the hardhat point of view, you were hired as a favor to my friend. I did not hire you to be promoted or trained in any other position." At hearing, the Property Appraiser emphatically denied making this statement or any similar statement. However, he acknowledged that he had hired Petitioner upon the recommendation of a mutual friend and that on December 20, 2005, Petitioner had come to speak to him about the stress she was feeling in her position as a switchboard operator and about her health problems. Kathy Doolin, who was present for most, but not all, of the December 20, 2005, meeting, also denied under oath that the comment described by the Petitioner had been made by the Incumbent while she was in the room. Further, she confirmed that the thrust of Petitioner's remarks in her presence were not about any promotion but were about the stress Petitioner was experiencing in her switchboard operator job. The testimony of Ms. Doolin, together with the respective narratives written by herself and Petitioner (Exhibits P-2 and P-5) immediately after the December 20, 2005, meeting strongly suggest that the incumbent property appraiser said he had done all he could to relieve Petitioner's job stress and could not transfer Petitioner to another position just because her current position was stressful, and that Petitioner heard these statements as a refusal to promote her at any future date and a lack of appreciation for Petitioner’s college degree and excellent work history. The Incumbent’s and Petitioner’s respective versions of the December 20, 2005, conversation amount to an equipoise of testimony. In other words, one says "yes," and one says "no." This type of evidence is insufficient to tip the balance of weight and credibility to Petitioner's version of events. Moreover, even if Petitioner's version of the Incumbent's December 20, 2005, statement to her, allegedly made outside Ms. Doolin’s presence, were the more credible version, which it is not, Petitioner’s version of what the Incumbent allegedly said expressed no racial or gender bias. Petitioner testified that she believed that what the incumbent property appraiser had said on December 20, 2005, and how he had said it, created a hostile work environment. However, Petitioner never filed any internal complaints with Respondent alleging that she had been subjected to a hostile work environment. In fact, she filed no internal discrimination complaints of any kind concerning the December 20, 2005, meeting, and the term "hostile work environment" did not appear until her July 6, 2006, Petition for Relief, which was filed after FCHR's "Determination: No Cause." On her lunch hour, either December 20 or 21, 2005, Petitioner telephoned her physician, because she was still upset by her perception of the December 20, 2005, meeting. Petitioner never returned to work after December 21, 2005. On December 23, 2005, Petitioner's doctor wrote a note for her to be off work from December 22, 2005, until January 2, 2006, due to undefined "significant health problems." On or about December 23, 2005, three days after the December 20, 2005 meeting, when Petitioner was no longer on the job, Mike Nichols, a Caucasian male, was transferred from the front counter into a sales qualifier position. Mr. Nichols had previously worked in Respondent's Deed Section and in its Mapping Section and had recently received his law degree from the University of Florida. Respondent considered Mr. Nichols to be a suitable candidate for the sales qualifier position. Upon transfer, Mr. Nichols did not receive a raise in his rate of pay. Petitioner never applied for the sales qualifier position (see Finding of Fact 18) and was not on the job when that position was filled. (See Finding of Fact 29.) While the duties of a sales qualifier were not developed at hearing, the job title “sales qualifier” suggests that Petitioner was arguably not as good a fit for the sales qualifier position, as was Mr. Nichols. Petitioner’s education was primarily in criminal justice, and her job experience was primarily in drug rehabilitation and answering a switchboard. Mr. Nichols’ legal education and training and his office experience with Respondent may have made him a superior candidate for the sales qualifier position. When contacted by her superiors, Petitioner gave no reason for leaving work, except that it would be "best under the circumstances." On January 4, 2006, Petitioner voluntarily resigned her employment with Respondent. (Stipulated Fact.)
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and its subordinate Charge of Discrimination. DONE AND ENTERED this 3rd day of November, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 November, 2006.
Findings Of Fact The Respondent is a Public Employer within the meaning of Florida Statutes Section 447.203(2). Lloyd A. Perry was formerly an employee of the Respondent, and a public employee within the meaning of Florida Statutes Section 447.203(3). Dana E. Pratt was formerly an employee of the Respondent, and a public employee within the meaning of Florida Statutes Section 447.203(3). Prior to February 17, 1976, Lloyd A. Perry was employed by the Citrus County Road Department for a period of over four years. Immediately prior to the time that his employment was terminated, Perry was a roller operator. Except for rare occasions when he performed work as a flagman, or other work in conjunction with his roller work, Perry operated a tandem road roller. For the several months prior to February, 1976, Perry had continuously operated the same roller machine. Prior to February, 1976, none of Perry's supervisors informed him that his work was unsatisfactory, reprimanded him for performing work in an unsatisfactory manner, or indicated to him in any way that his job was in jeopardy for unsatisfactory performance of his duties. Dana E. Pratt had been employed by the Citrus County Road Department for approximately five years prior to February, 1976. For four years prior to that date he had been a motor grader operator. Pratt had annually received formal evaluations and his evaluations had always been very good. Prior to February, 1976, Pratt had never been criticized for below average or unsatisfactory work. He had never received any written reprimand for unsatisfactory performance on the job. From approximately December, 1973 until February, 1976, Perry had operated the newest grader machine in use by the Citrus County Road Department. No one else had operated the machine since it was acquired by the Citrus County Road Department. During February, 1976, Thomas Hutchinson was the Citrus County Road Superintendent. William Hitt was thee Assistant Road Superintendent. Hutchinson and Hitt served under the direction of the Citrus County Board of County Commissioners. Perry, Pratt, and numerous other employees of the Citrus County Road Department had, prior to February, 1976, become dissatisfied with conditions in the Road Department, primarily the manner of direction given the department by Hutchinson and Hitt. On Sunday, February 8, 1976, Perry drafted a petition specifying numerous grievances against Hutchinson and Hitt. It was his intention to secure the signatures of employees of the Road Department on the petition, and to present it to the Board of County Commissioners. Perry sought the assistance of County Commissioner DeBusk in drafting the petition. DeBusk offered several suggestions and his daughter typed the petition for Perry. Perry secured six or seven signatures on that Sunday. He was the first person to sign the petition, and Dana Pratt was the third. On Monday, February 9, Pratt informed his office that he had business to attend to and would not be at work that day. He did not claim sick leave for the time he missed. Prior to work and during the lunch hour he called as many employees of the Road Department as he could. After working hours he waited at a business establishment called the "Country Store" which was located in close proximity to the place where Road Department employees checked out of work. Forty-six employees of the Road Department signed the petition. Dana Pratt assisted in soliciting people to sign the petition. There was no evidence offered at the hearing from which it could be determined that those persons signing the petition did so other than freely and voluntarily. On Tuesday, February 10, 1976, Perry called his supervisor, Mr. Hutchinson, and told him that he had business to attend to. Hutchinson asked him if he was going to solicit more signatures. Perry told him that he was not. The Board of County Commissioners was meeting on that date, and Perry presented the petition to the Board. Members of the Board discussed the petition at length during the meeting. One commissioner asked Perry if he was big enough to go back to work and forget about the matter. Perry said that he was. On February 11, 1976 Perry returned to work at the regular time. Rather than being assigned to his regular duty as a roller operator, he was assigned to flag traffic for a grader operator. He continued in that capacity until Tuesday, February 17. On that date, at approximately 11:00 or 11:30 A.M. Tom Morton, the grader foreman, informed Perry that his employment was terminated as of 1:00 P.M. on that date. Both Morton and William Hitt told Perry that they did not know why he was fired. Dana Pratt attended the County Commission meeting on February 10. He was asked about whether he threatened a Road Department employee named Langley with respect to signing the petition. Pratt told the County Commission that he did not threaten Langley, and no evidence was offered at the hearing to establish that he did. On February 12, 1976, Pratt used the new grader machine that he had been using for some time prior thereto. At the end of that day his supervisors informed him that he would be using the oldest machine in the Department thereafter. He began using it on February 13. It took some time to get it started on that date. It also took some time to get it started on Monday, February 16. This was an old machine, and had been difficult to start for some years prior to the time that it was assigned to Pratt. At 12:30 on February 17, 1976, Tom Morton informed Pratt that his employment was terminated as of 1:00 P.M. on that date. Pratt was never given any reasons for his termination. On February 17, 1976, the Citrus County Board of County Commissioners acted to terminate the employment of Perry and Pratt. These actions were taken upon the recommendation of Mr. Hutchinson. Ostensibly the reason for Pratt's termination was that he had marked out on sick leave on a day when he was not sick. Ostensibly the reason for Perry's termination was that he had been missing from the job for approximately an hour. The evidence would not support a finding that Perry and Pratt were fired for these reasons. These reasons offered by Hutchinson, and followed by the Board of County Commissioners, were used as a ruse. On February 18, 1976, the day after Pratt and Perry were fired, Hutchinson called a meeting of all employees of the Road Department. Hutchinson told the employees that he had nothing to do with the termination, but he also told them that he would tolerate no more petitions and that if anyone did not like working conditions at the Road Department they could leave. He said that he had four County Commissioners in his pocket, and he reminded the employees that unemployment in Citrus County was high. He told the employees that he would take care of any petitions they distributed. During the week the petition was distributed, Hutchinson told one employee of the Road Department, James Johnson, that Johnson could be put in jail for signing the petition. During that same week he told his assistant superintendent, William Hitt, that all of the men who signed the petition had to go. After Perry and Pratt were fired, Hutchinson told Hitt that he got two, and he would get the rest. The basis for Hutchinson's recommendation to the Board of County Commissioners that Perry and Pratt be terminated was the fact that they participated in the distribution of the petition, and presenting it to the Board of County Commissioners. There was no evidence offerred at the hearing to indicate that any members of the Board of County Commissioners knew Hutchinson was presenting false reasons for the terminations; however, they did act to adopt the recommendation. The Board of County Commissioners did know that Pratt and Perry were among the leaders in distributing the petition highly critical of Hutchinson's work, and was clearly on notice that Hutchinson may have ulterior motives in recommending their dismissal.
The Issue The issue is whether Respondent committed a violation of the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on January 2, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In his Charge of Discrimination, Petitioner, Jeffrey S. Wytrwal, alleges that after he had suffered a knee injury, Respondent, Waste Management of Putnam County, violated the Florida Civil Rights Act of 1992, as amended, by failing to find him a "light duty" position "due to [his] disability and [because of] unfair favoritism throughout this company." Respondent denies the charge of discrimination and contends that Petitioner does not suffer from a disability, and even if he did, it had no positions in the company which were compatible with his medical restrictions. Respondent is engaged in the business of providing solid waste collection services for the residents of Putnam County, Florida. Testimony by Respondent's district manager, Brian Watkins, established that Respondent is an employer within the meaning of the law and is thus subject to the provisions of Chapter 760, Florida Statutes. Petitioner worked for Respondent as a driver on a garbage truck from 1990 until 1993, and then again beginning in January 1995. The work is physically demanding, and it requires that the driver frequently jump in and out of the vehicle to sling or empty garbage cans into the rear-end loader. After working a 12-15 hour shift on January 28, 1997, Petitioner was home sitting on his bed "half Indian style" when he attempted to stand up. His right knee locked; he was transported to a local hospital; and he later underwent arthroscopic surgery to correct the injury. After suffering the foregoing injury, Petitioner qualified for disability payments from his employer, and he began receiving a monthly disability check in the amount of $888.00. On an undisclosed date after Petitioner suffered his injury, Respondent changed its hauling operation from a two-man team (a driver and swingman) on each truck to a single driver. This meant that the bona fide occupational requirements for the position of driver required that he engage in bending, stooping, and climbing on a repetitive basis for long hours each day without the aid of a "swingman." On October 14, 1997, Petitioner was released by his doctor to return to work and was given a certificate which read "No bending, stooping, climbing (Light Duty Only, if available)." These restrictions obviously did not allow Petitioner to return to his former job. Upon obtaining the release, Petitioner telephoned his supervisor, John Rakoczy, and asked if he could go back to work on "light duty," performing duties that would be compatible with his medical restrictions. On a very few occasions, Respondent had authorized an injured worker to perform other temporary duties if his injuries "fit a temporary job." However, except for two already filled dispatcher positions in the office, Respondent had no jobs which did not require bending, stooping, or climbing. Therefore, without making fundamental alterations in the company's operations, which would result in an undue hardship to the company, Rakoczy could not offer Petitioner part- time or restricted work. Petitioner did not seek the office dispatcher position, and he produced no evidence that he was qualified to perform that job. Although Petitioner admits that his knee has improved since October 1997, he never again contacted his employer regarding reemployment. At hearing, Petitioner acknowledged that he agreed with Rakoczy's assessment that no light duty jobs were available within the company. Even so, he and his wife "took it hard," and in January 1998 he filed his Charge of Discrimination. Petitioner has not alleged, nor presented competent and credible evidence, that his knee injury continues to limit the full and normal uses of his physical facilities. While it is undisputed that the injury may have limited his physical facilities during his recuperation, there is no evidence that it continues to do so, or that others regard him as having a disability. Therefore, Petitioner has failed to demonstrate that he is disabled within the meaning of the law. Respondent's decision to not offer Petitioner light duty was not based on discriminatory reasons, as Petitioner has alleged, but was based on the fact that there were no jobs which were compatible with Petitioner's medical restrictions. While collecting medical disability payments, Petitioner also filed a worker's compensation claim against his employer in October 1997, and this claim was settled in May 1999 for the sum of $27,000.00. By agreeing to the settlement, Petitioner was no longer eligible for disability payments, and they terminated in May 1999. Until he settled his worker's compensation claim, Petitioner did not look for other employment. After the case was settled, however, he secured a job within a week at a local country club doing maintenance and landscaping work, and he has worked there since that time. There is no evidence as to how his current job duties compare with the duties that he performed for Respondent. Further, the difference in compensation, if any, between the new job and Petitioner's former job is not of record. Although Petitioner contended that Respondent had offered "light duty" to other injured workers in the past, he could only identify one such worker named "Keith," who had lost four fingers in an accident. Unlike Petitioner, however, that worker was able to perform a variety of temporary jobs despite the limitations caused by his injury. Neither the Charge of Discrimination, nor the record evidence, reveals the specific relief that Petitioner is requesting. Rather, the complaint merely lodges allegations of discrimination against Respondent. Respondent suggests that Petitioner's injury was pre-existing, and occurred before January 28, 1997, and that Petitioner may be malingering. This is based on the treating physician's notes which reflected that Petitioner had his symptoms prior to the date of the injury. Even if this were true, however, this fact would appear to bear on the legitimacy of Petitioner's worker's compensation claim, and not the charge of discrimination. Finally, even though the treating physician suspected that Petitioner might be malingering with his injury, this was only a suspicion and was not medically confirmed.
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, with prejudice, Petitioner's Charge of Discrimination. DONE AND ENTERED this 31st day of August, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1999. COPIES FURNISHED: Jeffrey S. Wytrwal Post Office Box 701 Satsuma, Florida 32189-0701 Joseph P. Shelton, Esquire 1500 Resurgens Plaza 945 East Paces Ferry Road Atlanta, Georgia 30326-1125 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner in September 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Ausbon Brown, Jr. (Petitioner), an African-American male was born on April 25, 1943. Petitioner filed a charge of discrimination with the Florida Commission on Human Relations (FCHR) on December 5, 1997, alleging violation by the Florida Department of Labor and Employment Security (Respondent) of the Florida Civil Rights Act of 1992, as contained in chapter 760, part I, Florida Statutes. On August 18 1999, over 20 months later, FCHR issued a "Notice of Determination: No Cause." September 27, 1999, Petitioner filed a Petition for Relief, alleging that Respondent had subjected Petitioner to discriminatory hiring practices on the basis of the race and age of Petitioner. While not identifying specific positions, the Petition for Relief contains the allegation that Petitioner applied for 244 positions within the hiring jurisdiction of Respondent. By order dated January 18, 2000, Administrative Law Judge Donald R. Alexander limited the final hearing to allegations pertaining to Petitioner's application for position number 02925, Research Associate, within Respondent's Division of Workers' Compensation. Respondent denies Petitioner's allegation of discriminatory hiring practice and contends that it hired the most qualified employee. While not specifically established at hearing, it can be reasonably inferred from the evidence that Respondent employed at least fifteen employees for each working day in each of twenty or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law. Petitioner received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a doctorate in wildlife and fisheries science in 1991 from Texas A&M University. Petitioner's job applications reflect that from June 1965 until April 1994, he worked in various positions for the U. S. Department of Commerce, National Marine Fisheries Service. Beginning on July 28, 1995, and continuing for several years, he was employed as a child support enforcement case analyst with the Florida Department of Revenue (DOR). Petitioner is currently the supervisor of science laboratories for Daytona Beach Junior College. Respondent, in the fashion of most state agencies, periodically issues a "Job Opportunity Announcement" which describes career service positions currently available in the agency. Such an announcement was issued on January 15, 1997, for position number 002925 and read as follows: 3122 Research Associate Notes: Open Competitive. Two years of Social Science or public policy research involving Production or reports: Use of PC in Two of the following four areas: word-processing, spreadsheet, statistical analysis or graphic applications preferred. Min. Qual: A bachelor's Degree from an accredited college or university and three years of professional experience in statistics, research, analysis or program evaluation. A Master's Degree from an accredited college or university can substitute for one year of the required experience. The "Vacancy Notification/Action Form" submitted in support of the Job Opportunity Announcement, dated December 17, 1996, contains the following statement: Preferred Qualifications: At least 2 years of social science or public policy research involving production of reports; use of personal computers in two of the following four areas: word processing, the spreadsheet, statistical analysis or graphic application. A vacancy announcement published in the "Tallahassee Democrat" on January 19, 1997, contains the same statement of preferred qualifications. The preferences are consistent with the official job description for position 02925 as contained in Class Code 3122 for the class title of research associate. The class specifications also include the caveat that "additional knowledge, skills and abilities may be applicable for individual positions in the employing agency." Within Respondent's structure, Ken Baugh supervised position number 02925 and was responsible for the hiring process, inclusive of the placement of the job announcement and the vacancy advertisement. Baugh based the stated job specifications upon the Career Service Class Specifications, as well as his knowledge of the requirements to perform successfully in the position. Prior to advertising the position, Baugh developed a selection package which included a work sample test, a job description, a list of knowledge, skills and abilities, a screening criteria, application review process, and interview questionnaire. Baugh submitted the package to the Office of Civil Rights and Minority Affairs within Respondent's structure where it was approved. Such approval indicates that the package reflected a process to measure core job duties. Respondent received 115 applications for position 02925. Five applicants were interviewed for the position. All met the minimum qualifications for the position. Gary Sabitsch, a white male born on September 24, 1965, was the successful candidate. Sabitsch has a bachelor's degree and has been employed for four years by a private entity as a research associate. He performed tasks in his research associate position inclusive of governmental consulting, as well as collection and analysis of data. Sabitsch's qualifications also include experience in word processing, spreadsheets, and graphics. His computer software usage and experience also are more extensive than that of Petitioner, in Baugh's estimation. The experience of Sabitsch in the public policy or social science arena more appropriately met Braugh's expectations for the successful candidate than the experience of Petitioner which was limited to the natural science area. In his evaluation and interviews, and subsequent selection of Sabitsch, Baugh used the interview package previously approved by the Office of Civil Rights. Baugh had no previous knowledge of Sabitsch prior to the interview. Applications provided to Baugh did not have the EEOC survey portion, which permits an applicant to voluntarily reveal age and race. These portions of the applications had been previously removed prior to Baugh's perusal. Baugh's selection of Sabitsch was approved by Respondent's Office of Civil Rights. Petitioner presented no evidence that the selection process was varied so as to discriminate on the basis of age or race. Further, he presented no evidence that he met the preferred criteria noticed for the position. In summary, there is no credible evidence that Respondent's actions were a pretext for discrimination, as alleged in the Petition for Relief. Further, there is no evidence that the employment decision at issue in this proceeding was grounded on discriminatory animus in any respect, or that a discriminatory reason motivated Respondent's actions.
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, with prejudice, the Petition for Relief. DONE AND ENTERED this 8th day of June, 2000, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 8th day of June, 2000. COPIES FURNISHED: Ausbon Brown, Jr. Post Office Box 289 Daytona Beach, Florida 32636 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Sonja P. Mathews, Esquire Department of Labor and Employment Security Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2199
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on March 26, 2000.
Findings Of Fact Petitioner first interviewed for the position of Assistant Manager Trainee with Respondent on March 17, 1999. Her first interview was with Traci Dickerson, Assistant Manager for Operations. Ms. Dickerson was impressed with Petitioner's presentation and recommended that she be interviewed a second time by Mitchell Day, District Manager. After the interview, Petitioner was offered a position as Assistant Manager Trainee to begin work at Wal-Mart Super Center on Apalachee Parkway in Tallahassee, Florida, on May 10, 1999. The Assistant Manager training program is a seventeen- week program conducted at selected Wal-Mart stores throughout the country. The Wal-Mart store in question in the present case is one of just a few stores in Florida that were utilized for this training program. Ms. Dickerson was the person responsible for administering the program in the store in question during the relevant time frame. Another Assistant Manager Trainee, Sean Mitchell, began the training program on the same date as Petitioner. Mark Whitmore, another Assistant Manager Trainee, began the training program sometime prior to Petitioner. Mr. Whitmore was a long- time employee of Wal-Mart who transferred from management in the home office into the retail sales side of the business. Because of his prior experience with Wal-Mart, his training program was handled differently from the training administered to Petitioner in that it was accelerated. Mr. Mitchell's training was the same type as Petitioner's although each trainee may have been given various assignments on different days and in different sequence. Sometime during the training process, certain members of management with Respondent became concerned about Petitioner's attitude toward the training program, her willingness to take constructive criticism, and her communication/people skills. Sometime around the second week of Petitioner's employment with Respondent, she was observed by Assistant Manager Wendy Rhodes, to be engaged in a conversation with Sean Mitchell during working hours. It appeared to Ms. Rhodes that the two individuals were socializing rather than working. Mr. Rhodes approached the two and instructed them to begin the workday. Later, Ms. Dickerson, in her role as the Program Supervisor, provided constructive criticism to Petitioner that she should concentrate on her work and not socialize during work hours. On or about May 29, 1999, while Petitioner was working in lay-away, she was asked to come to the front of the store to assist Brenda Meyers, a front-end manager, because of an increase of customers at the various cash registers. As an Assistant Manager Trainee, Petitioner was expected to "pitch in" and assist throughout the store where needed. Petitioner responded to Ms. Meyers' request by indicating that she was intending to go on her break and refused to come and assist at that time. Because of Petitioner's refusal, George Wilkins (a co-manager and directly below the store manager in the chain of command of the store) took a turn working at a cash register. Every manager at Wal-Mart is expected to be a team player and assist when the need arises. Mr. Wilkins arranged to meet with Petitioner to discuss the incident and general concerns he had as result of feedback he received from other members of management about her unwillingness to do certain tasks, and to give counseling advice on how to conduct herself as an Assistant Manager. Petitioner immediately became defensive and asserted that because she had a bachelor's degree, she did not have to "take this." Mr. Wilkins attempted to explain to Petitioner that her degree was important, but her attitude toward her work and her willingness to do her fair share were more important. Petitioner was not receptive to Mr. Wilkins' efforts to provide constructive criticism. Sometime in late-July 1999, Petitioner traveled with Mike Odum, an Assistant Manager and Lisa Green, who at the time was Personnel Manager at the store in question, to Georgia to attend a new store opening. On the return trip, Petitioner became upset because she was concerned that the group would not return to Tallahassee in time for her to pick up her child from daycare. She confronted Mr. Odum, very upset about the possibility of returning to Tallahassee after 5:00 p.m. However, he returned to Tallahassee prior to the time that Petitioner needed to be back in Tallahassee. On or about August 20, 1999, Petitioner was assigned to the 2:00 p.m. to 11:00 p.m. shift to assist the Customer Service Manager (CSM) in closing the store. The function of the "closing CSM" is important, and Petitioner was needed to assist in that regard. Because the store manager and other members of management were out of town at a meeting, Mr. Odum was in charge of the store. Instead of coming in at 2:00 p.m., Petitioner arrived at the store at 9:00 a.m. She clocked in on the time clock and proceeded to the break room where she warmed her meal and sat down to eat. After she completed her meal, she proceeded to the front of the store to assist the Customer Service Manager. Not long after Petitioner arrived at the store and assumed her position, she was called to the Manager's office to discuss her work schedule for the day. At that time, Mike Odum and Traci Dickerson (Ms. Dickerson participated by phone) reminded Petitioner that her scheduled shift was from 2:00 p.m. to 11:00 p.m. The importance of this was that if she had worked too many hours without prior approval, she would have been in an unauthorized overtime situation. Additionally, it is important to have a "closing CSM" at the appropriate time. Petitioner left work to return in the afternoon as originally scheduled. Petitioner returned to work in the afternoon. She reported to the front temporarily but became frustrated with one of the assistant managers. Feeling that what she was doing was a waste of time, she proceeded to the training room where she reviewed her training materials. She was paged to the front of the store on numerous occasions but did not respond to the calls. Mike Odum went to the training room and told Petitioner to come to the front of the store to assist. Petitioner refused and stated that she would remain in the back of the store and continue reading her manual. When Petitioner refused, Mr. Odum instructed Petitioner to clock out and to come back when the District Manager would be available for a conference. Petitioner left the store shortly thereafter. Petitioner arranged to meet with Mitchell Day, the District Manager who oversees nine stores and approximately 4,800 employees, on August 25, 1999. Mr. Day understood the meeting to be for the purpose of resolving concerns about the issues involving Petitioner and giving Petitioner an opportunity to express her concerns. Management saw this meeting as an opportunity to "get everything out on the table" so that Petitioner could continue with her training program. Accordingly, Mr. Day scheduled the meeting with Todd Peterson, Store Manager; Mike Odum; George Wilkins and Traci Dickerson. All of these individuals expressed concern about Petitioner's performance, her attitude toward the training program, her willingness to accept constructive criticism, as well as their willingness to assist her in completing the training program. There is no evidence that Mr. Day or any other member of management intended that the meeting be conducted for the purpose of terminating Petitioner. Petitioner entered the room and walked past other members of management and approached Mr. Day in a confrontational manner. She was upset at the presence of the various members of management. Despite being asked to be seated, she refused to sit down and begin the meeting. Every participant in the meeting who testified at hearing gave consistent testimony that she raised her voice to an inappropriate level, was hostile and explosive. All recalled her using profanity, with the exception of Mr. Day who did not specifically recall her use of profanity. Every person in the room was stunned at her demeanor, in particular that it was addressed to an upper level management person. Based upon the unprofessionalism of this outburst, Mr. Day advised her that her employment was terminated. The formal reason given for her termination was insubordination. There is nothing in the evidence presented at final hearing to indicate that any of the actions taken by Respondent or members of Respondent's management were based on Petitioner's gender or on any other form of discrimination.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission for Human Relations enter a final order denying and dismissing the Petition for Relief. DONE AND ENTERED this 27th day of April, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 April, 2001.
