The Issue Whether Petitioner was subjected to a hostile work environment condoned by Respondent due to his sex in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact The School Board of Orange County, Florida, (Respondent) is an employer within the definition found in Section 760.02, Florida Statutes. Dexter V. Thomas (Petitioner) was an employee of Respondent, as defined in Section 760.02, Florida Statutes, during the relevant time period. Petitioner timely filed his Charge of Discrimination (Charge) with the Commission, pursuant to the Florida Civil Rights Acts of 1992, on August 4, 1995. The Commission failed to make a Cause/No Cause Determination within 180 days of the filing of the Charge. Petitioner filed a form with the Commission on January 27, 1998, seeking to withdraw his Charge and filed a Petition for Relief to proceed to an administrative hearing. Petitioner has not filed a Petition with the Commission. However, the Commission forwarded Petitioner's Charge to the Division of Administrative Hearings for a formal hearing on February 2, 1999, and this proceeding followed. Petitioner is an adult male and a United States citizen of African-American descent. Petitioner worked as a custodian at Apopka Middle School on the day shift from 1989 until his termination on November 22, 1995. Petitioner testified that he had received good evaluations until the fall of 1994, when a new principal took charge of the school. Shortly thereafter, it was Petitioner's perception that he was being harassed because of certain statements that he made to other school employees about the faculty and staff at Apopka Middle School which he believed to be true. The statements made by Petitioner were defamatory in nature. In addition, they were perceived by other school board employees as threatening to the safety and welfare of staff and students. Due to these statements and his general conduct while working his shift, Petitioner was relieved of duty with pay on September 21, 1995. On October 4, 1995, Petitioner was directed to be examined by a licensed psychiatrist at the expense of the school board. Petitioner refused to be examined by the school board's licensed psychiatrist on the grounds that it was part of the continuing conspiracy to silence him about illegal activities he believed were going on at Apopka Middle School. Petitioner was subsequently terminated by action of the school board on November 22, 1995. None of the testimony and other evidence produced by Petitioner, taken as true, could be construed to establish a prima facie case of sexual harassment by employees or supervisors of Respondent. Petitioner failed to offer any credible evidence that he was subjected to any unwelcome sexual advances, request for sexual favors, or other conduct of a sexual nature by employees of Respondent. Petitioner appears to have mistakenly checked the "race" box on his Charge of Discrimination. At the hearing, Petitioner did not raise any contentions that he suffered discrimination on the basis of race while in the employ of Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered as follows: The Charge of Discrimination should be dismissed, as Petitioner's request for administrative hearing was not timely filed under Chapter 760.11(4),(6), and (8), Florida Statutes. In the alternative, Petitioner has failed to prove that he was discriminated against on the basis of his sex by being subjected to a hostile work environment and the Petition should be dismissed. DONE AND ENTERED this 6th day of June, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 2000. COPIES FURNISHED: Frank C. Kruppenbacher, Esquire Orange County School Board Post Office Box 3471 Orlando, Florida 32802-3471 Dexter V. Thomas 3920 Country Club Drive, Number 3 Orlando, Florida 32808 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dennis Smith, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32302-3471
The Issue The issue for determination in this proceeding is whether Respondent committed an unlawful employment practice as alleged in the Petition For Relief.
Findings Of Fact Respondent is an employer for the purposes of this proceeding. Respondent's principal place of business is in Orlando, Florida. In 1982, Petitioner was employed by Respondent as a houseman at one of Respondent's hotels located at Marco Island, Florida. Respondent worked continuously in that location until he requested a transfer to the Orlando World hotel in 1986 and received his transfer in the same year. While employed at the Orlando World hotel, Petitioner refused to follow instructions, had excessive absences and was late to work repeatedly. Petitioner received the following disciplinary warnings which finally resulted in his termination on or about October 7, 1991: March 8, 1991 - Written Warning (refused to follow a reasonable job order) March 17, 1991 - Verbal Warning (reporting to work later on 3 occasions within a 90 day period), 2/27/91, 3/3/91, 3/17/91 May 15, 1991 - Written Warning (failure to follow Respondent's work policies) July 30, 1991 - Termination Recommendation (changed to a written warning) August 2, 1991 - Written document (explaining to Petitioner his problems with respect to attendance and tardiness) October 7, 1991 - Suspension and Termination Recommendation. Respondent's rules require employees to call in at least two hours in advance of their shift starting time to report a planned absence from work. Petitioner failed to comply with Respondent's rules by failing to give Respondent timely notice of his planned absence for October 7, 1991. On October 7, 1991, Petitioner called in to report his absence 15 minutes before 8:00 a.m. when his shift started. Petitioner failed to provide credible and persuasive evidence that the Respondent's disciplinary warnings were fraudulent or untruthful. Petitioner was replaced by Mr. Martin Gamey, an Hispanic male. Respondent did not conduct an unlawful employment practice in terminating Petitioner. Respondent did not act with any bias or animus against Petitioner. Petitioner's termination was based upon Petitioner's failure to satisfy his job requirements, failure to follow instructions, excessive absences, and failure to give timely notice for planned absences.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 7th day of December, 1993, at Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1302 Respondent's paragraphs 3, 4 and 7 were rejected as irrelevant and immaterial. Respondent's paragraph 1, 2, 5 and 6-10 were accepted in substance. COPIES FURNISHED: Carlton J. Trosclair, Esquire Marriott Corporation One Marriott Drive, Department 923 Washington, D.C. 20058 Sharon Moultry, Clerk Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Nicolas Polanco 88-05 71st Street Apartment 1-K Jamaica, New York 11432
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Council 79 is a labor organization whose business is to represent employees in matters involving public employers concerning contractural negotiations and the administration of bargaining agreements. Council 79 employed 15 or more employees for each working day in each of 20 or more calendar weeks during 1987 and 1988. Council 79 has elected officers. Blondie P. Jordan, a black female, is the elected president and chief executive officer of Council 79. Jordan has the authority to employ persons to assist her in carrying out the duties of Council 79. Until the fall of 1988, Cox, a white male, was one of those employed by Council 79, under Jordan. Cox was employed as the Regional Director of Region III (also referred to as Tampa Region) of Council 79, and reported to Jordan. Council 79, under Jordan, also employed several other white males in positions of authority. Those included: Charles Brannon, employed in March, 1988, as the Assistant to the President, who in the absence of Jordan ran the day to day operations of Council 79 Headquarters; Ted Buri, Regional Director in Tallahassee; John Crosby, Business Manager; Mark Neimeisser, lobbyist; and Ben Patterson, Chief Attorney. Council 79 has an Executive Board over which Jordan presides, but through which the Council is governed and operated. During 1987 and 1988, Nancy Serrano, Jimmy Newell, Wesley Leon and Craig Lehning were members of the Executive Board from Region III. Serrano, Leon and Lehning belonged to a group referred to as the "Solidarity Group" that opposed Jordan. During 1987 and 1988, Serrano, Newell, Leon and Lehning at Executive Board meetings complained to Jordan about the operation of Cox's office in Tampa, particularly about the office staff and Cox not being responsive to the membership of the local unions. However, during this same period of time there were presidents of local unions who complained to Jordan about how these same Executive Board Members were not being responsive to the local union, specifically in regard to how these Executive Board members were attempting to close the Regional Director's Office in Tampa, and advised Jordan that Cox and his staff were working well with the local unions. Also, one member of Cox's staff complained to Jordan about having to drive Cox to meetings and run the office while Cox absence attending to personal business. There was no written documentation that Jordan ever discussed these complaints with Cox or any of his staff, and even though Cox admitted to having heard these complaints, although not from Jordan, he dismissed them as being political because there were coming from the Solidarity Group that opposed Jordan. Notwithstanding Jordan's testimony to the contrary, there is insufficient evidence to show that Jordan discussed any of these complaints with Cox or that Jordan counseled or advised about correcting the problems before November 3, 1988. Apparently, Jordan left the day to day operation of Region II, including the Regional Office, to the discretion of Cox, and expected Cox to correct problems in the Region without being counseled or advised by Jordan unless Cox determined that Jordan's intervention was necessary or appropriate. Likewise, there was no documentation that Cox had ever been reprimanded or counseled about his performance. In fact, the only written documentation concerning Cox's performance (other than an incomplete report by Linoria Anthony which was not received as evidence) of any problems with Cox's performance was the report written by David McGhee to Jordan on November 1, 1988, after McGhee replaced Cox, having been appointed Acting Regional Director of Region III on September 14, 1988 by Jordan. On September 12, 1988, Cox was scheduled to attend a meeting with employees from the City of Fort Myers which McGhee, Neimesser and Escudero were also to attend. Cox was to meet privately with McGhee, Neimesser and Escudero before meeting with the employees from Ft. Myers. Before the meeting, Cox was observed around the pool area by Neimesser. Cox did not attend the private meeting with McGhee, Neimesser and Escudero but did attend the meeting with the Ft. Myers employees. On September 13, 1988, Neimesser reported to Jordan that Cox had failed to attend the private meeting. On September 14, 1988, as instructed by Jordan, Brannon informed Cox that he was relieved of his duties as Regional Director. Cox was not given an opportunity to explain his failure to attend the private meeting in Ft. Myers, Florida before relieving him of his duties as Regional Director. Although Cox was relieved of his duties as Regional Director, he continued in the employment of Council 79 assisting McGhee in negotiating contracts and other matters. By letter dated September 14, 1988, Jordan appointed David McGhee Acting Regional Director of Region III. McGhee, a black male, employed by the International which Council 79 was affiliated. McGhee was the Assistant Area Director for International and its staff person with responsibility for Region III. McGhee assumed the responsibilities of Acting Regional Director for Region III on September 14, 1988.. McGhee is not now nor has he ever been on the payroll of Council 79. McGhee is continues to be the Acting Regional Director for Region III, and in addition to reporting to Jordan, reports to Gilbert Escudero, a Hispanic male, Area Director for the International and to Gerald McEntee, a white male, president of the International. On September 19, 1988, Cox voluntarily entered Horizon Hospital for treatment. Upon entering Horizon, Cox described his condition as being depressed and unable to function. Cox also described a previous history of excessive alcohol intake to the point of intoxication every weekend since his early twenties. However, there was insufficient evidence to show that Cox was suffering from alcoholism. Cox did not advise Jordan or McGhee or anyone else in authority with Council 79 that he was entering Horizon for treatment, or more specifically that he was being treated for alcoholism. Although Jordan and other employees of Council 79 may have known that Cox consumed alcohol, even to the point of intoxication on occasions, there is insufficient evidence to show that either Jordan or any other employee of Council 79 were aware that Cox had a problem with alcohol, or more specifically that Cox was suffering for alcoholism. As requested by Jordan, McGhee, by letter dated November 1, 1988, reported the problems he had encountered in the Regional Office since assuming the duties of Acting Regional Director. The report basically advised Jordan of the the problems that had been reported earlier by Serrano, Newell, Leon and Lehning. Additionally, McGhee reported on Cox's failure to negotiate contracts with the city of North Port and Local 167, Hillsborough County before they expired on September 30, 1988. As requested by Jordan, Linoria Anthony prepared a report concerning Cox's failure to negotiate contracts for several local unions in Region III with their employers. However, this report, initially offered as evidence, was withdrawn because Council 79 was unable to furnish a complete copy. On November 3, 1988, Charles Brannon was instructed by Jordan to secure Cox's resignation or to terminate his employment with Council 79. Cox resigned after being given the choices by Brannon. Upon resigning, Cox was to be given certain concessions, including one month's severance pay. Council 79 failed to honor this agreement with Cox, and he obtain a judgment in the County Court of Hillsborough County which was eventually satisfied. While Jordan's decision to effectively terminate Cox's employment (discharge) without first counseling or advising Cox on the problems in Region III as reported to her, and giving him an opportunity to correct those problems may not have been the correct or morally right decision, there is sufficient competent, substantial evidence to establish facts to show that Jordan did not terminate Cox's employment because of his race (white) or alleged handicap (alcoholism).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, RECOMMENDED that the Commission enter a Final Order finding that Petitioner, Robert Cox, was not discharged due to his race or alleged handicap in violation of Section 760.10, Florida Statutes, and that the Petition For Relief be Dismissed. DONE and ENTERED this 9th day of July, 1992, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1992. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statute, on all of the Proposed Findings of Fact submitted by the Respondent in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner The Petitioner did not file any Proposed Findings of Fact. Rulings on Proposed Findings of Fact Submitted by the Respondent The following proposed findings of fact are adopted in substance as modified in the Recommended Order, The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(3); 4(4); 5(4); 6(5); 7(6&7), 9(6); 10(9); 11(10); 12(11); 13(12); 14(13); 16(16&17); 17- 18(18); 19-20(14) and 21(19). Proposed finding of fact 8 is rejected as not being supported by competent, substantial evidence in the record, except for thesecond phrase, that complaints did not stop, which is adopted in substance in Finding of Fact 6. Proposed finding of fact 15 is neither material nor relevant. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 125 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esquire General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Robert Cox, Pro se 8514-#3, Daffodil Drive Hudson, FL 34667 Ben R. Patterson, Esquire Patterson and Traynham 315 Beard Street Post Office Box 4289 Tallahassee, FL 32315
Findings Of Fact Petitioner has been employed with the Florida Department of Transportation since 1971. He is a graduate of the University of West Florida, with a degree in business management. Petitioner is 38 years old, with a physical disability which limits his use of his left hand and arm, and his left leg is shorter than his right. In 1979, Petitioner was employed by Respondent in its right-of-way section, as a Right-of-Way Agent III. In that position, he was responsible for the coordination of the Acquisition, Relocation and Property Management sections of Respondent's District III. One of Petitioner's subordinates was H. E. Walls, who was in charge of the Acquisition section. Petitioner's immediate supervisor was J. F. Culpepper, Assistant Right-of-Way Administrator. In April, 1980, a new Right-of-Way Administrator, J. A. Alfes, was assigned to District III. In 1980, and again in 1981, Petitioner filed charges of discrimination against Respondent with the Florida Commission on Human Relations premised upon Petitioner's aforementioned disability. The 1980 charge was resolved through the entry of a settlement agreement. The charge filed in 1981 was premised upon the same disability, but that charge was ultimately dismissed by the Florida Commission on Human Relations. In January, 1981, a hearing was held in Tallahassee, Florida, on one of the charges of discrimination filed by Petitioner. On the day following that hearing, Petitioner was called into Mr. Alfes' office in Chipley, Florida, and was told that the hearing held in Tallahassee had been several hours of "horse shit." On May 18, 1981, Mr. Alfes advised Petitioner of an impending reorganization of the section in which Petitioner was employed. Subsequently, on June 17, 1981, Mr. Alfes told Petitioner that there would be "consequences" as a result of Petitioner's having filed complaints with the Florida Commission on Human Relations. In 1981 a reorganization of functions occurred in all six districts statewide of DOT. This reorganization eliminated one classification of position, Right-of-Way Agent III, which Petitioner had held in District III, and elevated the positions at the head of Acquisition and Relocation sections to the administrator level. At the time this reorganization occurred, Petitioner, as previously mentioned, was a Right-of-Way Agent III, and Herbert Walls headed the Acquisition section. Mr. Alfes, Petitioner's immediate superior, recommended that Petitioner be placed in charge of Relocation, and that Mr. Walls, who had been working in Acquisition, be placed in charge of the Acquisition section in light of his experience in that area since 1978. J. F. Culpepper, who occupied the position on DOT's organization chart to whom the Acquisition section, Relocation section, and Property Management section would report, recommended that the Petitioner be placed in charge of the Acquisition section, based upon his belief that Petitioner was better qualified by reason of his real estate training and college degree. Mr. Walls had only a high school diploma. During the period of his employment with DOT, Petitioner had not handled any complete right-of-way acquisition matters, and had never negotiated for DOT in the acquisition of any right-of-way parcels. Petitioner had, however, attended two relocation seminars while employed by DOT. Mr. Walls had been continually engaged in acquisition work for DOT since at least 1978. DOT's District Engineer, Alan Potter, was the DOT employee ultimately responsible for selecting the heads of the Acquisition and Relocation sections. Mr. Potter concurred with the recommendation that Petitioner be placed in charge of the Relocation section, based upon his belief that it was the most important job involved in right-of-way acquisition, and that it required a very thorough and cautious person. Based upon Mr. Potter's evaluation of Petitioner as possessed of high ability, and being very mature and compassionate, Petitioner was placed in charge of the Relocation section. At the time Petitioner was named as head of Relocation and Mr. Walls was placed as head of Acquisition, the two positions were both classified as Right-of-Way Specialist II's, pay grade 22. Later both were reclassified as Right-of-Way Administrator I's, at pay grade 23. The record in this cause establishes that neither position was more prestigious" than the other, or that either position placed the individual holding it in a more favorable posture for promotion or advancement. Subsequently, in the summer of 1981, the reorganization of DOT was completed, with Mr. Walls having been appointed head of Acquisition, with approximately six subordinates. Petitioner became responsible for Relocation, and shared the supervision of a clerical employee with the head of Property Management. After reorganization, Mr. Alfes relocated Petitioner's office in another building 100 feet away from the main office. Petitioner's office was initially located in a passageway and, as a result, Petitioner was required several times a day to make trips to the main building to obtain files necessary to complete his work. In August of 1983, prior to final hearing in this cause, Mr. Alfes retired, and Petitioner's office was relocated in a more spacious office close to the Acquisition section.
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. DONE AND ENTERED this 23rd of May, 1984, at Tallahassee, Florida. WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1984. COPIES FURNISHED: BEN R. PATTERSON, ESQUIRE POST OFFICE BOX 4289 TALLAHASSEE, FLORIDA 32315 VERNON L. WHITTIER, JR., ESQUIRE DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING TALLAHASSEE, FLORIDA 32301 JEAN OWEN, ESQUIRE ASSISTANT GENERAL COUNSEL FLORIDA COMMISSION ON HUMAN RELATIONS WOODCREST OFFICE CENTER 325 JOHN KNOX ROAD SUITE 240, BUILDING F TALLAHASSEE, FLORIDA 32303 DONALD A. GRIFFIN, EXECUTIVE DIRECTOR FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BUILDING F, SUITE 240 TALLAHASSEE, FLORIDA 32303
The Issue Whether Respondent engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact Graham is a black male. He filed an employment application with Pier 1, a "chain retailer," on August 23, 1999. The application indicated that he applied for a position as a sales associate but in fact he was to be employed as a stockroom assistant. His employment application included a block denominated, "Work Availability." Graham completed this block indicating that he was available to work between 6:00 a.m., and 12 p.m., Monday through Saturday. The employment application stated in the block denominated, "Work Availability," the following: "Although an effort will be made to accommodate individual work schedule preferences and availability, work schedules such as start time, number of daily or weekly hours and assigned work days are subject to change at any time. Availability to work on weekends is required. Number of hours may vary based on business necessity and could change an individual's employment status." Graham was hired on August 30, 1999, as a full-time employee. He worked primarily in the back stockroom. A meeting of store personnel was scheduled at the store on Sunday, November 17, 1999, at 6:30 p.m. Graham was aware of the meeting. He was 20 minutes late because he was participating in a church service at Macedonia Primitive Baptist Church. As a result of his tardiness he was presented with an Associate Corrective Action Documentation, which is a confidential Pier 1 form. The form noted that this was his first "tardy." The form as completed took no action such as suspension or loss of pay. It merely informed him that further instances of tardiness could lead to disciplinary action. Graham testified that he was treated differently from a white woman employee, one Christy Musselwhite, who did not attend the meeting, because Musselwhite did not receive a counseling form. However, Graham's personal knowledge of Musselwhite's situation was insufficient to demonstrate that Musselwhite was treated differently from Graham because of race or gender. Graham felt humiliated because he received the Associate Corrective Action Documentation form. Graham resigned from Pier 1 effective November 12, 1999, so that he could begin employment with the Florida Department of Children and Family Services at a rate of pay in excess of that which he received at Pier 1.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission Human Relations enter a final dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2001. COPIES FURNISHED: Russell D. Cawyer, Esquire Kelly, Hart & Hallman 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Kenneth Terrell Graham 2811 Herring Drive Tallahassee, Florida 32303-2511 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ronni Morrison Pier 1 Imports Post Office Box 961020 Fort Worth, Texas 76161-0020
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing and apparent intent to withdraw her request for an administrative hearing.
Findings Of Fact The Notice of Hearing in this case was issued on May 22, 2012, setting the hearing for July 17, 2012, at 9:30 a.m., by video teleconference at sites in Tallahassee and Fort Myers, Florida. Also, on May 22, 2012, an Order of Pre-hearing Instructions was entered. Respondent timely complied with the pre-hearing requirements by filing a witness list and exhibit list and tendering its proposed exhibits, all of which were served on Petitioner. Petitioner did not file or exchange a witness list, exhibit list, or proposed exhibits. Petitioner spoke by telephone with a secretary at DOAH on July 16, 2012, the day before the scheduled hearing, and indicated that she had sent a letter withdrawing her hearing request; however, to this day, no such letter has been received. Petitioner was advised to send another written statement confirming that she was withdrawing her hearing request, and she indicated she would do so by facsimile that day. However, no such facsimile was received by DOAH. After hours on July 16, 2012, a typed, but unsigned letter, was sent by facsimile to counsel for Respondent. The letter appears to have been sent by Petitioner and states that she wished to cancel the hearing scheduled for July 17, 2012. Petitioner did not make an appearance at the scheduled hearing at the start time or within 25 minutes after the scheduled start time. While it would have been better practice for Petitioner to file a written, signed statement with DOAH to withdraw her hearing request, it is found that Petitioner intended to withdraw her hearing request, and that is why Petitioner did not appear at the scheduled hearing. Petitioner should have made her intentions clear sufficiently in advance of the scheduled hearing to avoid the inconvenience and expense of convening a hearing by video teleconference and assembling all of those who were prepared to go forward.
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 the Petition for Relief in this case. DONE AND ENTERED this 3rd day of August, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Todd Evan Studley, Esquire Florida Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399 Natalie Goldenberg Post Office Box 7388 Fort Myers, Florida 33911
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was discriminated against by being terminated, allegedly on account of her race, and in retaliation for filing a claim concerning discrimination.
Findings Of Fact Tammy King, the Petitioner, became employed by the Respondent in June of 2000. She was employed as an operations manager, supervising the cleaning service work for various customer accounts as well as the people employed to perform the cleaning service work for those accounts. She was employed by the Respondent for approximately one year. The owners of the Respondent company are Linda and Daniel Coley. On October 18, 2000, Ms. King was evaluated by her evaluator and supervisor Christopher Stettner and received an excellent evaluation, which was apparently co-extensive with the end of her probationary period. Gene Janushanis also was in a supervisory capacity over the Petitioner. Mr. Janushanis, in his supervisory role, is the primary focus of the Peititoner's complaint of discriminatory conduct concerning his conduct and attitude toward her. The Petitioner contends, in essence, that Mr. Janushanis refused to allow the Petitioner to discipline black employees and treated her more harshly, with harassment, including cursing at her, and otherwise interfered with her performance of her job. She stated that he treated black employees, including black supervisors in similar positions to the Petitioner, more favorably, as to disciplinary or job performance issues, than he treated the Petitioner. The Petitioner maintains that she had no problems, disciplinary or otherwise, in the performance of her job before Mr. Janushanis was hired as her supervisor and that their numerous altercations commenced shortly thereafter. However, she also developed a difficult relationship with Christopher Stettner, the supervisor who gave her the excellent evaluation at the end of her probationary period. Apparently, their relationship deteriorated soon thereafter and became quite hostile. In fact, Mr. Stettner filed an internal complaint or grievance against the Petitioner concerning alleged harassment of him by the Petitioner. This resulted in the Respondent's scheduling additional "anti-harassment training" for the Petitioner and other employees thereafter. Thus, a hostile relationship with abrasive arguments ensued between the Petitioner and Mr. Stettner, as well as between the Petitioner and Mr. Janushanis, starting in the late part of 2000 and through the first half of the year 2001. Cassey Clark, the Human Relations Director for Respondent, witnessed a number of "very harsh arguments" between Tammy King and office employees or supervisors Dwayne Coley, Chris Stettner, and Gene Janushanis. Both owners and employees witnessed very hostile, violent arguments between Mr. Janushanis and the Petitioner on a number of occasions, sometimes in the presence of customers of the company and generally in the presence of other employees or owners. These altercations included instances where the Petitioner refused to perform directions of her supervisor. Additionally, a substantial number of employees had verbal altercations with the Petitioner concerning receiving credit for, and payment for, the hours they had worked. On a repetitive basis the Petitioner failed to submit correct hours for the payroll and in one case got into a verbal altercation with an employee, Sonya Ross, chased the employee out in the parking lot, and refused to give her her last paycheck, telling her that she would mail the check to her, which was against company policy. The Petitioner exhibited a hostile, threatening attitude and conduct toward employees concerning hours worked and other aspects of her opinion of the way they were performing their jobs, as well as concerning payroll issues. Such instances occurred with at least nine employees. This hostile, threatening attitude and failure to comply with the payroll policies of the Respondent, as well as the several instances of the Petitioner failing to perform as directed by her supervisors, constituted misconduct under the regular policies of the Respondent. These instances of misconduct occurred on a frequent basis through the first half of 2001, including an instance where an employee called to state that she had to be out for two days because her baby was sick with a high fever. The employee followed company policy and provided documentation from the physician involved concerning her need to be off from work. She then called Tammy King to say that she had to go back to the hospital with her child, and Ms. King told her that she would be terminated. The employee then called the owner, Linda Coley, to inform her of the problem because she was afraid of losing her job. Ms. Coley then spoke with Ms. King and reminded her that it was against company policy to terminate an employee if he or she brought proper documentation from the physician or hospital, which was the case. This also was a clear violation of company policy concerning employees and supervisors. These instances of misconduct and the very hostile verbal altercations between the Petitioner and Mr. Janushanis, her branch manager, continued until June of 2001. The Respondent counseled with both the Petitioner and Mr. Janushanis about their conduct and attitude between themselves and toward other employees. Ultimately the decision was made in mid-June 2001 to terminate the Petitioner and Mr. Janushanis as well. On June 22, 2001, the Petitioner was terminated, as was Mr. Janushanis, on the same date. On June 20, 2001, the Petitioner had filed a complaint with the EEOC, by letter, and informed the Respondent of that fact. The decision to terminate the Petitioner, however, had been made prior to the filing of the complaint with the EEOC. The Petitioner has failed to establish that any actions taken by the Respondent toward her were related to her race. The supervisor complained of by the Petitioner was of the same race, white, and there is no persuasive evidence that shows any intent by the owners or management of the company to treat similarly-situated members of another race more favorably. In fact, there was preponderant and substantial evidence of misconduct on behalf of the Petitioner which established a legitimate, nondiscriminatory reason for her termination. Although her initial performance was rated as excellent in the initial months of her employment, the Petitioner failed to continue that level of performance. In fact, her misconduct on the job, including the instances enumerated in the above findings of fact shows that the Petitioner's conduct and performance had deteriorated so that she was not properly performing the various requirements of her employment position, when viewed in the context of regularly- adopted company policy. Upon the Respondent's becoming aware of these conduct shortcomings, and failure to properly perform in her position, as well as the improper conduct by her supervisor, the Respondent did not condone the Petitioner's level of conduct nor that of her supervisor, Mr. Janushanias. Rather, the Respondent sought to assist them in improving their conduct and performance. When these efforts were not successful, the Respondent ultimately terminated both of them.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 3rd day of December, 2003, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 December, 2003. COPIES FURNISHED: K. Jeffrey Reynolds, Esquire 924 N. Palafox Street Pensacola, Florida 32501 Banks T. Smith, Esquire Hall, Smith & Jones Post Office Box 1748 Dothan, Alabama 36302 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether the Petitioner timely filed a complaint of discrimination in accordance with the provisions of Chapter 760, Florida Statutes (2009).
Findings Of Fact Prior to November 28, 2007, the Petitioner was employed by the Respondent. On November 26, 2008, the Petitioner sent a Technical Assistance Questionnaire (TAQ) to the Florida Commission on Human Relations (FCHR). The TAQ was submitted via facsimile transmission and was not signed. The Petitioner believed she was complying with the directives of the FCHR website and that follow-up assistance (from the FCHR) would not be required. The Petitioner did not understand that a signature was required, notwithstanding the place for same (along with a date) on page 2 of the TAQ. The Petitioner maintains that the FCHR website instructions were unclear and that she erroneously relied on the directions that did not specify she was required to sign the TAQ. The Petitioner filed a signed Charge of Discrimination with the FCHR on January 14, 2009. On February 5, 2009, the Petitioner received a "Notice of Receipt of Complaint" from the FCHR. At the same time, a copy of the complaint was furnished to the Respondent, who was then, presumably, put on notice of the Petitioner's charge. The FCHR did not advise the Petitioner that the TAQ had to be signed. In the course of its review of the instant charge, the FCHR entered a determination of "untimely." Per the FCHR's assessment, the charge of discrimination was filed more than 365 days from the last incident or act of discrimination. Thereafter, the Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against the Respondent. The Commission then forwarded the matter to the Division of Administrative Hearings for formal proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's claim of discrimination. DONE AND ENTERED this 29th day of September, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2009. COPIES FURNISHED: Mark Levitt, Esquire Allen, North & Blue 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Marie C. Perez 517 29th Street West Palm Beach, Florida 33407 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
