The Issue The issue for consideration in this case is whether Petitioner was discriminated against in employment by Respondent because of his race or gender.
Findings Of Fact Petitioner, Brian Poole, started work for the Respondent, Manatee Association for Retarded Citizens (MARC) on September 7, 1993. He was employed as a habilitation assistant and earned $5.48 per hour. As a rehabilitation assistant, his job was to help with clients who were retarded workers employed by MARC. These workers needed supervision at all times. A part of his job was to write case notes about the workers, and these notes were reviewed by Laurie Mayberry, the Department of Heath and Rehabilitative Services liaison. Petitioner’s immediate supervisor at the time was James Disbro, with whom he did not get along very well. He claims that in October 1994, after he had been employed at MARC for over a year, and had already received one raise to $6.01 an hour and was expecting another to $6.73 an hour, he was interviewed by Disbro who went over his performance with him to determine if he would get the raise or not. During the interview, Petitioner claims, Disbro said he felt Petitioner did not deserve a raise, but Petitioner took the matter to John Schwartz, the MARC Chief Executive Officer, who reversed Disbro’s decision to deny Petitioner the raise. As they left Schwartz’ office, however, Dosbro reportedly told Petitioner that so long as he, Disbro, was there, Petitioner would not get a promotion. In November 1994, Petitioner received another evaluation to decide how large his raise would be. It ultimately was determined he should be raised by $45.00 per month. In December 1994, just before Christmas, a job opening was announced, for which Petitioner applied. A co-worker, Ms. Bradford, also applied for the job and she was interviewed first. Petitioner was then interviewed as well, but Ms. Bradford was given the position because, Petitioner was told, she was more qualified than he was. What bothers Petitioner about the situation is that while he was being interviewed, Disbro kept interrupting to get Petitioner to do other things. When Petitioner later complained to the CEO about this, he was told Disbro would be counseled about it and that he should overlook Disbro’s conduct. At this particular time, the only black employees at MARC were Petitioner and Mr. Lee. Others were hired later. Petitioner contends that a black female employee quit because of similar working conditions, but there is no identification of the employee or independent evidence of when or why she quit. It also appears other black employees were employed on a routine basis. When Petitioner came to work on January 31, 1995, he was told he did not get the job he had been interviewed for before Christmas. It seemed to Petitioner that everyone but him knew the job had gone to the female employee. He relates that another female employee told him that she could have had the job because of her close relationship with management. Again, however, there is no independent evidence to support this claim. Petitioner contends that the environment within his section was uncomfortable for him. That is why he applied for other jobs within the organization. It was to get out of the situation in which he found himself more than to seek promotion. As an indication of what he considers to be the antipathy toward blacks in evidence at MARC, Petitioner notes that when one black employee was absent from work on January 31, 1995, a white assistant commented that Petitioner and Lee would know where he was because they lived on that side of town. To Petitioner, this was a case of the white employee inferring that because Petitioner and Lee were black, they would automatically know where other black employees lived. The employee who allegedly made this comment was not identified. Later that day, however, another "anti-black" comment was made regarding a white residence manager to the effect that he was not a "preppie" because he went with a black girl. According to Petitioner, comments such as this were not uncommon at Respondent’s facility at the time, but there is no independent evidence to support the claim. At an in-service luncheon one day, Petitioner recounts, a white lady implied that the two black attendees were rude and inconsiderate and did not know how to act in public. She allegedly stated they should be grateful they had been taken out for lunch. There is no evidence to indicate if Petitioner present at the time, or who the speaker was. On February 9, 1995, Petitioner was absent from work. While he was gone, Ms. Carrol, a lab worker, approached Mr. Lee, a black employee, and asked him if he believed Petitioner was sick or out looking for another job. Mr. Lee called Petitioner at home and reported this. While Petitioner considers this a racially motivated comment, absent any independent information surrounding it, it is not found to be so. On February 10, 1995, Disbro told Petitioner and Mr. Lee to move all the furniture out of the work shop and clean the shop. While the two black employees were pulled off their jobs to do this, all the white employees, both male and female, continued to do their regular jobs. Being away from his duties to do the clean-up put Petitioner behind in his regular duties. When Petitioner tried to talk to Disbro about why other employees couldn’t help with the move, Disbro allegedly said he and Lee were to do it and a complaint to Mr. Schwartz would be non- productive. No evidence was presented to support Petitioner’s claim this was racially motivated. The mere fact that two black males were directed to do manual labor does not prove racial discrimination absent a showing there were others capable of doing the work who were not occupied with other, more demanding duties. On February 15, 1995, Petitioner was supervising a female client who needed help to go to the bathroom. Consistent with the rules for that situation, Petitioner called for help but was put off with what he considered to be a lie. When he reported this to Disbro, Disbro said to forget it. Petitioner is sure that if it had been him who was complained about, Disbro would have taken corrective action, but there is no evidence to show this. In late February 1995, a special training program in Orlando was announced. Management asked who wanted to go. It was reported that those who received the training would be certified and would receive more money. Though Petitioner applied, he was not selected to go. When he asked if his failure to get the training would be held against him if he applied for a better job, he was told it would not. However, subsequent to the training, whenever he applied for any jobs in that area, he was rejected because he was not trained. Mr. Schwartz, the CEO, contends that all employees were offered the opportunity for in- house training. Training away from the facility, however, was offered to those who would best benefit from the training due to their responsibilities. Schwartz insists that in making the selection of those to attend the away-training, the employee’s performance and disciplinary records were not considered - just the need for the training. One of those selected was Ms. Sparks, who had a background in special education and a demonstrated ability to deal with retarded clients. The agency’s position seems reasonable, and no evidence was offered to indicate its assertion is not true. In March 1995, a social worker from the Department of Health and Rehabilitative Services, Ms. Peterson, accidentally threw away an assessment of a client Petitioner had done and asked Petitioner to re-do it. Petitioner refused and she complained to Disbro who, in what Petitioner considered to be a harsh manner, directed him to do so. Petitioner felt this was unfair and wrong, aside from Disbro’s use of abusive language. It is a fact, however, that case notes are the responsibility of the habilitation assistant. If no record is made, there is no way to recover information relating to the clients. Though Petitioner claimed he was being treated unequally in that other assistants did not have to do what he was directed to do, this allegation was unexplained. On March 16, 1995, Petitioner complained to Disbro about the way he felt he was being treated. Disbro said that they would work it out - the past was past. However, later that day a statement was made that Petitioner was improperly eating in the workshop. When Petitioner told Disbro he was not eating, Disbro replied that there were chicken bones all over; a comment which Petitioner took as racially-oriented. Petitioner claims to have been humiliated by the comment, and when he got upset at that comment, he claims Disbro wrote him up for his response. Disbro claims the write-up was for eating on duty. He claims he saw chicken bones in the trash in Petitioner’s area, and eating at a work station is not permitted under MARC rules. After that incident, Petitioner requested to see Mr. Schwartz, but his request went unanswered. This led Petitioner to believe that not only was his rapport with his supervisor, Mr. Disbro, poor, but so it was with Mr. Schwartz. Petitioner concluded this also based on his perception that Mr. Schwartz never acted on any of his complaints against Disbro. In early May 1995, Ms. Carrol came into Petitioner’s workshop at least three to five times a day. Petitioner felt she was spying on him, but when he complained about this to Disbro, Disbro contended she was just lonesome for her old work group. He indicated he would follow up on it, but to Petitioner’s knowledge, nothing further was said about that situation. However, at the end of the day, Disbro called Petitioner aside and spoke to him about a reported safety violation. He was told another worker had reported that she thought Petitioner was improperly running a machine which could have resulted in injury to a client. When Petitioner indicated he was not satisfied with Disbro’s attitude toward other employees "spying" on Petitioner, and asked to speak with Mr. Schwartz, Disbro reportedly stated "I really hate you guys." Disbro would not explain what he meant by that comment, but Petitioner considered it a racial slur. Disbro denies having made the comment. Assuming it was made, however, absent other evidence to support Petitioner position, it cannot be concluded that the comment was racially motivated. It could well have been a reference to a myriad of other things. On May 19, 1995, Petitioner noticed a posting for a job which he felt he could do and which would get him out of the environment in which he was having so much trouble. Petitioner applied for the job but heard nothing about it in response. He was the only applicant from within the agency, and the job was not a promotion. He reports that all the associates laughed at him when he applied, and he didn’t know why. A month later, when Petitioner still had not heard about the job, he was told by a co-worker that the job had been filled. When he checked on it and found that report was true, he asked the personnel staffer why he hadn’t been interviewed and, reportedly, she just laughed. This made it clear to Petitioner that he was not going to get any other job at MARC. Mr. Schwartz claims it is normally MARC policy to promote from within if they have personnel in house who possess the needed qualifications. He recalls the incident about which Petitioner complains. This job required an enormous amount of non-supervised performance, and due to Petitioner’s record of absenteeism, tardiness, and other documented problems, it was felt he did not meet the qualifications of the job. Management believed Petitioner needed much more structure and direct supervision than this particular job would provide. On June 21, 1995, he told the personnel people he felt he had been discriminated against in his initial hiring, his salary, in promotions, and in working conditions. He was told to speak with Mr. Schwartz about it, but when he tried to do so, Schwartz suggested he speak with someone else in the agency, Mr. Paul Welsh. Petitioner was not able to reach Mr. Welsh for several days, however, both Mr. Schwartz and the personnel staffer indicated it was MARC policy to hire first from within the agency. In Petitioner’s case, Mr. Schwartz said he didn’t think it was a question of discrimination, but he would look into it. A few days after this conversation, Mr. Schwartz’ secretary told Petitioner that Mr. Schwartz wanted to see him. When the two met, Schwartz asked Petitioner if he felt he was being discriminated against. Petitioner explained how he felt. Schwartz then thanked Petitioner and said he would get back to him. On June 27, 1995, Schwartz told Petitioner he had been too busy to talk to Mr. Welch about Petitioner’s situation but would do so and get back to him. The next day Schwartz called Petitioner to tell him he had met with Welch and would speak with Petitioner the next day. Petitioner did meet with Schwartz the next day and Schwartz told him that HRS had changed the requirements of the job he had applied for and that was the reason he wasn’t selected. Petitioner asked to see the changes but was not shown anything to support Schwartz’ claim. Petitioner claims he asked if the training he had applied for but not received would have helped, but Schwartz was unable to give him a firm answer. When Petitioner asked if there were some form he could fill out to complain about the treatment he had received, he was told to ask the secretary. The secretary advised him she didn’t have the forms. Several days later Petitioner saw an EEOC poster with an 800 number which he called. When he explained his situation, he was told what to do and furnished with the forms he needed. He filled them out and submitted them, which initiated this action. Petitioner resigned from MARC in August 1995, after about a year and a half on the job because he was fed up with what was going on as it related to him. Documentation introduced at the hearing reflects that on most appraisals he received he was rated down because of his attitude, yet he continued to received periodic pay raises. However, though Petitioner and Ms. Sparks, a white employee, were doing the same work, he discovered, when he accidentally received her paycheck instead of his own, that she was making more than he was. Mr. Schwartz indicates, however, that Ms. Sparks dealt with more difficult clients than did Petitioner, which required her to assume a greater responsibility than his, and according to Mr. Schwartz, she had far greater experience in the program than he did. According to a co-worker, Ms. Ball, Ms. Sparks has a background in special education. She had the proper attitude for working with retarded clients and was very conscientious and dedicated. She had an extra ability to work with autistic individuals and those with behavioral disorders. If true, and no evidence was presented to show it was not, this would justify her receiving a higher pay than Petitioner who was only employed at the facility for a total of a year and a half. According to Mr. Schwartz, MARC had several other individuals doing the same work as Petitioner was doing. Three were black males, and the remainder were white females. MARC had an equal employment policy which was enforced. At the time Petitioner was employed there approximately 30 percent of the employees were male and 70 percent were female. There were two Hispanics of whom one was male and one was female. The reason for the predominately female employee census was that most applicants for jobs were female. The racial mix at the facility, 25 percent black and 75 percent white, was approximately equivalent to that in the community. Schwartz categorically denies there was any policy calling for a difference in pay due to race or gender, nor were minority males singled out for the dirty jobs, as Petitioner contends. He admits, however, that because Petitioner and Lee were the only two males on the floor in that shop, they were assigned jobs from time to time which females could not do readily, because of their size or strength. The immediate supervisors, such as Disbro in Petitioner’s case, were responsible for day-to-day supervision and were usually left alone to manage their work load and their employees. If, however, a situation arose which needed next- level intercession, Schwartz would step in. He was the appeal authority in disciplinary matters, and remembers serving as such several times for Petitioner. He cannot recall the details of the incidents, however. Mr. Schwartz also recalls an incident where Petitioner was requested to bring in a doctor’s slip to justify his being absent for several days. The documents Petitioner presented were inconsistent with his story. On follow-up, it was determined that neither was a legitimate report relating to Petitioner’s condition. One was from a gynecologist and one from a pediatrician. Mr. Schwartz also acknowledges that Petitioner came to him to express concern over Disbro’s alleged comments which Petitioner felt were racially motivated. In that same vein, though Petitioner contends that MARC management did not want minority job coaches to represent it in the community, Mr. Schwartz denies that race or gender played any part in promotions or assignments. The sole issue was who could best do the job. Petitioner also objects to being the only employee written up as the result of an incident when a client eloped, even though at least one other employee was present at the time. Habilitation assistants are responsible for the well-being of their clients and cannot afford to lose track of clients whose safety is at risk. Petitioner was the individual responsible for the client who eloped. Disbro, as Petitioner’s immediate supervisor, oversaw the employment of eight employees. Of these, four, including Petitioner, were black and four were white. Most were female. All did the same type of work, except for specific personal care issues where gender was a consideration. Work requiring heavy lifting was done by whoever was there to do it and was capable of doing so. Pay was based on performance without regard to minority status or gender. While Petitioner was supervised by Disbro there were times when Disbro felt it necessary to discipline him. In one case Disbro observed Petitioner sleeping at work. This was also observed by a vocational trainee, and others have seen similar instances. Petitioner claims he was not sleeping and that the observers were mistaken because of his small eyes. Disbro has no doubt that Petitioner was sleeping, and from personal observation of Petitioner at hearing, his eyes did not appear significantly smaller than those of any other person. Petitioner was written up for tardiness numerous times during the course of his employment, as well as for a general lack of attentiveness. As a result, he was placed on probation for a period of time, and at least one pay raise was deferred. On one occasion, he was suspended without pay for three days. Though Petitioner claimed he was discriminated against when not selected to attend away training, he was scheduled for an in- service training which he failed to attend and failed to call in to advise he would not be there. When subsequently asked why he had not been present, Petitioner claimed he didn’t need the training being offered. On August 23, 1995, he was issued a letter of reprimand for this. According to Disbro, at no time did he ever address Petitioner or any minority employee in a racially derogatory manner. He denies ever having used the term, "you guys," to Petitioner. He adamantly rejects any contention that he treated Petitioner any differently than any other employee, and denies he was ever instructed to do so. Disbro contends Petitioner could not take constructive criticism and when corrected, would become very defensive. Petitioner’s progress notes kept on the clients he served were not up to par, according to Ms. Mayberry, the individual responsible for developing client program systems and overseeing documents prepared by Petitioner and other habilitation assistants. Case notes have to be a direct reflection of the program plans, and must show goals, accomplishment, plans, and the like. The goals indicated what information needed to be reported, and case notes were the support documents for funding from HRS, Medicaid, and other fund sources. In the opinion of Ms. Mayberry, Petitioner had an ongoing struggle with the documentation system. He was not the only habilitation assistant who had problem with case notes, and whenever she found a problem, she would send a memo about it to the assistant and to Disbro. Though the other assistants cooperated, Petitioner’s general attitude toward case notes was that he was willing to sit down with her and review them, but he often became frustrated and felt he was being picked on. As a result, she developed fill-in forms to help him provide the proper information. Nonetheless, Petitioner seemed to have both an attitude problem and an ability problem with the case notes. As other assistants improved in the note preparation, Petitioner continued to struggle without much improvement. Ms. Bouse, also an habilitation assistant, as were Petitioner and Mr. Lee, could not recall either ever having been singled out for dirty jobs. She observed Petitioner on the job and noted that he slept a lot during the workday and talked on the phone a lot. In her opinion, he did not do his job very well. He was absent a lot and often tardy, and when he was not there, the other assistants had to do his work as well as their own. Ms. Lawrence worked with Petitioner one day shortly after she was hired during which he showed her the ins and outs of the cable contract on which he and his crew were working. After that day, she took that contract over from him. On one occasion, Ms. Lawrence and Petitioner attended a convention in Sarasota, and during the course of a lecture, she had to wake him twice. Other than that incident, she denies having seen him sleep on the job. Janet Ball has worked at MARC for 19 years as the adult basic education teacher. As a part of her duties, though she did not supervise Petitioner, she could observe him for approximately an hour and a half per day while she was working in the same module as he was. On at least two occasions she observed him asleep. On one of those it appeared his son had been sick all night. She considers this significant because the safety of the clients is an issue. Petitioner supervised ten individuals, all of whom were severe and profoundly retarded, and he had to remain alert at all times with them. Since his resignation from MARC, Petitioner has worked for a construction company at $9.50 per hour for 40 to 50 hours per week. However, on July 28, 1996, he was involved in an automobile accident which kept him out of work for a while, and, in any event, made it impossible for him to do construction work ever again. After his recovery, Petitioner worked at several jobs including temporary services. At one job, with Wellcraft, he earned $7.77 per hour for a 40 hour week, plus overtime, and worked there for about two months until he was fired for leaving the job early. He then went to work for a cleaning service and eventually obtained his own franchise from which he earns approximately $2,000 per month. Except for his period of recuperation after the accident, he has worked full-time since leaving MARC, at a rate higher than he earned there.
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 Brian C. Poole’s Petition For Relief alleging employment discrimination based on race and gender. DONE AND ENTERED this 23rd day of March, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1999. COPIES FURNISHED: Brian C. Poole 817 18th Street East Bradenton, Florida 34208 Omer Causey, Esquire Nelson Hesse 2070 Ringling Boulevard Sarasota, Florida 34237 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Petitioner, Beth Mulligan McKnight, was terminated from her position with Respondent as a Call Center telephone operator on or about August 28, 1997, based on her sex, (pregnancy), in violation of Section 760.10(1)(a), Florida Statutes (1997).
Findings Of Fact The Respondent, Sears Termite & Pest Control, is an employer as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by Respondent as a Termite Technician. Her duties included servicing existing customers, solicitation of contract renewals, and the sale of contracts to new customers during the relevant period April 1, 1997 through termination on August 28, 1997. Petitioner was earning between $800.00 to $1,300.00 per month, a combination of hourly wages from servicing existing customers and from commissions from her sale of renewals and of new contracts. Each week Respondent paid Petitioner an advance draw of $225.00 and at the end of the month, previously paid draws were deducted from Petitioner's commissions earned during the preceding month. Commissions paid Petitioner were eleven percent on contract renewals and twelve percent on new contract sales. Petitioner worked an average of 30 to 60 hours each week during her employment with Respondent. Ed Blumenthal was Petitioner's immediate supervisor and zone manager. Petitioner was assigned to the Ovedia/Geneva/ Chuluota route for the service of existing customers and for the solicitation of new customers. Though he could assign Petitioner routes within his zone, Blumenthal had no authority to transfer Petitioner from his technician service center to another service center. Ed Blumenthal assigned Petitioner a company vehicle and permitted her to take the vehicle home overnight to provide technicians more route time to service customers and additional time for sales of contracts to new customers. On August 4, 1997, at about 7:30 a.m., Petitioner arrived at the Sears Longwood district office for her daily assignments. Petitioner informed Ed Blumenthal of her recently confirmed pregnancy (about three and one-half months at that time). Petitioner initiated a discussion with Ed Blumenthal regarding her desire to continue working as a technician until the end of August, thereby enabling her to earn additional commissions. Petitioner specifically requested that, if possible, her requested transfer to the call center become effective the first Monday of the following month, September 1, 1997. Ed Blumenthal, without promising specific results, assured Petitioner that he would make some calls and see what he could do with her transfer request. Within the next few hours, Ed Blumenthal called Petitioner into his office and informed her he had a telephone conversation with his manager, Kemp Anderson, regarding her request for transfer to the call center. Ed Blumenthal instructed Petitioner to contact Robert Gleeson, call center director, for further details regarding the requested transfer. Ed Blumenthal, at that time, reassigned Petitioner to a new service-solicitation route. Petitioner worked as a service technician on her newly assigned route until August 19, 1997. On that date, Robert Gleeson, instructed Petitioner to report to the Edgewater Drive corporate office and contact Erskin Nunn, call center manager, for an interview and discussion of her technical and secretarial skills background. During the course of her interview with Erskin Nunn, Petitioner alleged Mr. Nunn said, "A woman in your condition should not be doing that kind of work . . . crawling around attics with guys." Petitioner understood Nunn's comment to have been made in reference to her recently announced pregnancy. Petitioner did not report Erskin Nunn's comment about her pregnancy to Ed Blumenthal, Robert Gleeson, Kemp Anderson or the Human Resource Director at or near the time the statement was made. Though upsetting to her, Petitioner did not consider Nunn's comment to have an impact on her continued employment with Respondent. Erskin Nunn hired Petitioner and informed her that August 20, 1997, training class would be her first work day. Robert Gleeson testified that training class was mandatory for every call center worker. The actual transfer of Petitioner from the service center to the call center was accomplished by verbal communications from Ed Blumenthal to Kempt Anderson to Robert Gleeson to Erskin Nunn. Petitioner made repeated requests to Ed Blumenthal, Erskin Nunn, Robert Gleeson, and Kempt Anderson to start her new assignment on September 1st. The requests were denied. Petitioner's request for a September 1, 1997, starting day for her transfer to the call center was made to Kempt Anderson. During the meeting with Petitioner, Anderson said, "A women in your condition should not be doing this." From August 20 through August 24, there were daily telephone calls between Petitioner and Robert Gleeson. Gleeson inquired if Petitioner was coming to work and Petitioner responded that due to her lack of personal transportation and her requested starting day of September 1st she would not be in to work. By September 24th, Petitioner had not appeared for training as requested, and Robert Gleeson fired Petitioner on September 25, 1997. On November 26, 1997, three months after Petitioner's termination on August 28, 1997, Robert Glesson fired Erskin Nunn. Nunn's termination letter listed the reason for his dismissal as "inappropriate behavior in the workplace." The "inappropriate behavior" was two or more sexual harassment offenses made toward female employees by Erskin Nunn. Petitioner first raised Nunn's sexual harassment conduct during her cross-examination of Robert Gleeson at the final hearing. Robert Gleeson acknowledged that his firing of Nunn was, in fact, because of Nunn's repeated sexual harassment conduct toward female employees at Sears. Respondent's handbook, "Employee Personnel Policies Manual," February 1997, was given to Petitioner at the time of her initial employment. The manual contains the company's blanket reservation of the "right to transfer employees to whatever job or location may be necessary to accomplish the objectives of the company." The actual transfer of Petitioner from the service center to the call center was accomplished by verbal communications from Ed Blumenthal to Kempt Anderson to Robert Gleeson and finally to Erskin Nunn. Robert Gleeson, at all times pertinent hereto, as director of the Customer Service Center (call center) was responsible for the overall operational functions of the call center. Gleeson gave Esrkin Nunn, call center manager, sole authority to hire and to train personnel to work in the call center. Erskin Nunn, at all times pertinent hereto, was Robert Gleeson's assistant. Mr. Nunn reported directly to Robert Gleeson who reported directly to Kemp Anderson. At all times pertinent hereto, Kemp Anderson was District Manager, with duties and responsibilities for an area just north of Vero Beach to Gainesville, consisting of seven or eight zones offices, several hundred trucks and employees and administrative staff. He was responsible for sales and renewals on a monthly basis, employee retention, customer services, and basic operational functions. Mr. Anderson was Ed Bulmenthal and Robert Gleeson's immediate supervisor. As district manager, Kemp Anderson was the first person called by Ed Bulmenthal to convey Petitioner's pregnancy condition and her transfer request. Robert Gleeson, call center manager, reported directly to Kempt Anderson. Accordingly, Kemp Anderson's testimony, that he did not have authority to grant Petitioner's request for transfer, nor could he alter her starting date for training in the call center, nor was he involved in her termination, is suspect.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered which dismisses Petitioner's claim of discrimination based upon her (sex) pregnancy. DONE AND ENTERED this 6th day of June, 2001, in Tallahassee, Leon County Florida. FRED L. BUCKINE 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, 2001. COPIES FURNISHED: Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Donald C. Works, III, Esquire Anthony J. Hall, Esquire Jackson, Lewis, Schnitzler & Krupman 390 North Orange Avenue Suite 1285 Orlando, Florida 32801-1641 Beth Mulligan McKnight 3083 Erskine Drive Oviedo, Florida 32765 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 presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent was certified by Petitioner as a law enforcement officer on December 26, 1989, and was issued certificate numbered 121960. From time to time, the City of Miami Police Department conducts prostitution stings. An undercover female police officer is assigned to be the prostitute or "decoy." She stands at the assigned location. Another undercover police officer acts as "look-out," hiding nearby and watching the "prostitute" until she signals that she has been offered money for sex. She advises the person soliciting prostitution where to drive so they can complete their transaction. Upon her signal, the look-out radios a description of the vehicle and tag number to the "take-down" officers who are in their patrol cars nearby. The take-down officers then stop the vehicle and arrest the person who solicited prostitution. After she gives the signal, the "prostitute" walks over to the look- out, describes the person who made the offer of money for sex, advises what kind of sex was solicited and how much money was offered, and then returns to her assigned location. The look-out radios that additional information to the take-down officers who are making the arrest. On March 2, 1994, the City of Miami Police Department conducted a prostitution sting at S. W. 8th Street and 44th Court, an area with a reputation for prostitution. Officer Kelly Macina was assigned to be the prostitute, Officer Jorge Fernandez was assigned to be the look-out, and Officers Jorge Castano and Carlos Ortega were assigned to be the take-down officers in their patrol cars. The officers were instructed that Officer Macina would tell anyone soliciting her for prostitution to turn into the driveway of Burke's Motel. The motel was located on the corner opposite where she was standing. Prior to March 2, 1994, Officer Macina had only participated in two undercover prostitution operations in the 15 months she had been a police officer for the City of Miami. She had received no formal training in how to conduct a prostitution sting but for a supervisor showing her the statute on solicitation to commit prostitution and telling her to read it. On that evening Respondent was driving home from a club where he had had drinks with some friends. He was driving his black Corvette east on S. W. 8th Street near 44th Court when traffic slowed due to some commotion. He saw a woman standing in the street and saw a patrol car drive up and pull over a vehicle when it drove away from the woman. It occurred to him that he might be observing an undercover operation. He continued to drive by and then noticed two patrol cars parked in an abandoned gas station lot. He thought he recognized the driver of one of the patrol cars as one of his buddies from the apartment complex where Respondent lived. Respondent continued driving to his apartment at Ponce de Leon Boulevard and S. W. 8th Street. When he got there, he changed his clothes, checked his wallet and found that he had only $8, and then left to meet a friend at the pool hall near S. W. 8th Street and Red Road. Driving west on 8th Street, he decided to stop and speak to his buddy whom he thought he had seen in the patrol cars when he earlier drove by the 44th Court area. When he reached 44th Court, he turned right, heading north on 44th Court, made a U-turn, and headed back on 44th Court, heading south. He saw that the patrol cars were no longer at the gas station lot. When he stopped at the stop sign on 44th Court at S. W. 8th Street, Macina approached his vehicle and initiated a conversation. Before Respondent drove away, Macina gave the "take-down" signal. Respondent had given no money or other item to Macina. Respondent turned right on S. W. 8th Street, heading west toward the pool hall. When he had gone approximately 15-25 yards, he saw lights in his rear-view mirror bearing down on him. He pulled over, and a patrol car pulled in behind him. Over a loud speaker, Respondent was told to exit his vehicle, which he did. He was told to come back to the patrol car, which he did. He asked the police officers why he was being stopped and if he was being stopped for speaking to a pretty girl. The take-down officers asked to see Respondent's driver's license. When he opened his wallet, one of them saw a badge and asked Respondent if he were a police officer. Respondent advised them he was a police officer with the City of Coral Gables. The take-down officers exercised their discretion, determining not to arrest Respondent. They told him to leave, and Respondent apologized to them for interfering in their sting operation. Eighteen people were arrested that night. The following day, Officer Macina was asked to give a sworn statement to internal affairs at the City of Coral Gables Police Department. She did not remember what sex act Respondent was alleged to have requested, did not remember how much money was offered for that sex act, and did not remember the conversation she had with Respondent (except that he allegedly had said in response to her questioning that he was married and that his wife was on vacation). By the time of the final hearing in this cause, she had also forgotten which take-down signal she had used that evening.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 23rd day of July, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1998. COPIES FURNISHED: Richard Courtemanche, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lawrence E. Besser, Esquire 1925 Brickell Avenue, Suite D-207 Miami, Florida 33129 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent’s rights and benefits under the City of Tampa General Employees’ Retirement Fund (the Fund) are required to be forfeited pursuant to section 112.3173, Florida Statutes (2018).1/
Findings Of Fact The Fund is a public retirement system as defined by Florida law. The Fund is charged with administering and managing a pension plan for City employees. Respondent was an employee of the City’s Parks and Recreation Department. Although she began working as a seasonal employee during the summers when she was in college, Respondent began in a permanent capacity as a recreation leader in October 2006. As part of her duties, Respondent was responsible for working in the City’s afterschool and cheerleading program. In Fall 2018, Respondent was responsible for ordering the uniforms for the participants in the cheerleading program. The money for the uniforms was provided to the City by the participants’ parents. Initially, the money was collected by a parent representative who converted it to a pre-paid purchasing card in the amount of $762.00, and submitted the card to Respondent. Respondent was to use the card to order the uniforms for the cheerleaders, and the uniforms were to be delivered to the City’s Parks and Recreation office. Michelle Keeler, Respondent’s supervisor, noticed the uniforms had not arrived at the expected date. On October 26, 2018, she questioned Respondent about the delay. Respondent initially told Ms. Keeler there had been a mistake by the delivery company. At this point, Ms. Keeler, who had supervised Respondent since Respondent had started working at the City, had no reason to suspect Respondent was lying. Over the next few weeks, Ms. Keeler periodically asked Respondent about the status of the cheerleading uniforms and was told there was a problem with the delivery. By mid-November, Ms. Keeler became suspicious and again asked Respondent about the uniforms. Respondent indicated the uniforms had been delivered and left in the office, but were now missing. Respondent suggested to Ms. Keeler that the cleaning crew may have thrown out the box of uniforms. On November 26, 2018, Ms. Keeler called the cheerleading uniform company and discovered no uniforms had been ordered for delivery to the City’s Parks and Recreation Department. The same day, Ms. Keeler confronted Respondent about the uniforms. Respondent insisted she had ordered them, but could not produce any records to show that she had made the order. She was also questioned by another Parks and Recreation supervisor, and gave the same response. Upon further interrogation, Respondent changed her story, admitting she had not actually ordered the uniforms. She claimed the card had been stolen from her. Respondent later provided a written statement to the City, in which Respondent claimed she still had the pre-paid card in her possession, but that the card no longer had any funds. Eventually, Respondent admitted to City staff that she no longer had the funds. On November 30, 2018, the City placed Respondent on suspension, pending an investigation. The City considered the funds collected for the purchase of the uniforms to be City property. Ultimately, the City ordered the missing uniforms and covered the cost. Based on the investigation, the City found Respondent to be in violation of section B28.2A(3)(d)(1) of the City’s Personnel Manual concerning “Moral Turpitude,” prohibiting “[f]alsification, misrepresentation, or material omission of statements, testimony, or any document or record completed in the course of employment or in obtaining employment, including group insurance claims.” The City also found Respondent had violated section B28.2A(3)(d)(11) of the Personnel Manual prohibiting theft or unauthorized removal or use of City property. As a result of its investigation and the violations, the City terminated Respondent on March 12, 2019. At the hearing, Respondent admitted she collected the money for the uniforms, misled City staff about the missing uniforms, and was terminated for theft.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, City of Tampa General Employees’ Retirement Fund enter a final order determining Respondent, Deirdre Williams, has forfeited all of her rights and benefits in the pension plan administered by the Fund, except to the extent of Respondent’s accumulated contributions, if any, as of March 12, 2019. DONE AND ENTERED this 29th day of August, 2019, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 29th day of August, 2019.
The Issue Whether Respondent discriminated against Petitioners based on their race in violation of Chapter 760, Florida Statutes (2006) ("Florida Civil Rights Act").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: All Petitioners are African-American males; all were employed by Respondent. Petitioners Alexander, Daniels and West were discharged on September 20, 2006. Petitioner Cole was laid off on August 25, 2006. Respondent, Solid Wall Systems, Inc., is an employer as defined by the Florida Civil Rights Act; it constructs cast-in- place solid concrete wall structures for the production home industry. This construction methodology is typically employed in large residential developments, and the construction "critical path" requires timely completion of each construction progression. For example, if walls are not timely completed, roof truss installation will be delayed, erection equipment will be idle, follow-up subcontractors are delayed, and money is lost. Petitioner, Ralph Alexander, was employed by Respondent in July 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $14.00 per hour. Petitioner, Stevie Daniels, was employed by Respondent in March 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $13.00 per hour. Petitioner, Ernest West, Jr., was employed by Respondent in October 2004, as a laborer and paid $9.00 per hour. He received pay raises during the next several years. At his discharge, he was being paid $11.00 per hour. Petitioner, Carlos Cole, was hired in September 2003, as a yard helper with Space Coast Truss, a subsidiary of Respondent's corporate owner, being paid $6.50 per hour. In October 2003, he was transferred to Respondent and received $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, on August 25, 2006, he had been promoted to leadman and was being paid $15.00 per hour, but was working as a laborer. On September 11, 15 and 19, 2006, Petitioners Alexander, Daniels and West were "written-up." That is, they were disciplined for failing to follow the specific instructions of supervisors. On September 11, 2006, Petitioners Alexander, Daniels and West were on a "stripping" crew working at Wedgefield in East Orange County. Alexander was advised that the job had to be completed that day, because trusses were scheduled to be installed the following day. Notwithstanding direction to the contrary, the crew left the job without completing the stripping. The time cards of Petitioners Alexander, Daniels and West indicate that these Petitioners "clocked-out" at between 5:24 p.m. and 5:30 p.m. It is between 30 and 45 minutes from the job site and Respondent's yard. Petitioners would have spent several additional minutes cleaning up before "clocking- out." Not only did Petitioners fail to complete the job, they left the job site early. Petitioner Ernest West, Jr., had a part-time job working for Space Coast Cleaning, a janitorial service, from 6:00 p.m. to 9:00 p.m., Monday, Wednesday and Friday. The job was located in Viera approximately 15 to 20 minutes from Respondent's yard. September 11, 2006, was a Monday and a work day for West's part-time job. Petitioner West told Respondent's operations manager that they left the job site so that he could get to his part-time job on time. On September 15, 2006, Petitioners Alexander, Daniels and West were assigned to strip a multi-unit job site in Titusville. The crew was told to complete the stripping before they left the job site. Time cards indicate that Petitioners "clocked-out" between 3:30 p.m. and 4:00 p.m. Petitioners left the job unfinished, because they thought they would be unable to complete the job that day. On September 19, 2006, Petitioners Alexander, Daniels and West were assigned to strip a building at Viera High School. After a building is stripped, crews have standing orders not to leave any "cap" forms on the job site. This is a particular type of form that crews are specifically instructed to return to the main yard immediately after use and re-stock in bins for use on subsequent projects. On this day, Petitioner Alexander called Roy Brock, a field manager, and inquired regarding the "cap" forms. He was instructed to bring all forms to the yard. Brock visited the Viera High School job site after the stripping crew had returned to the yard and found several caps that had been left at the site. He loaded them on his truck and returned them to the yard. As a result of these three incidents, which were deemed acts of insubordination, Petitioners Alexander, Daniels and West were terminated on September 20, 2006. In May, June, and July 2006, the housing construction market suffered a significant decline. This was reflected by Respondent having a profit of $10,000 in May, a profit of $2,000 to $3,000 in June, and a $60,000 loss in July. In August, there was literally "no work." Respondent's employees were being sent home every day because there was no work. As a result of the decline in construction, Vince Heuser, Respondent's operations manager, was directed to lay off employees. Petitioner Cole was among five employees laid off on August 25, 2006. Of the five, three were African-American, one was Caucasian, and one was Hispanic. Seven Hispanic laborers were hired on July 5 and 6, 2006. Respondent had taken over the cast-in-place wall construction portion of two large projects from a subcontractor named "JR." The general contractor/developer, Welch Construction, requested that these seven Hispanic individuals, who had been "JR" employees, and had done all the stripping on these two Welch Construction jobs, be hired to complete the jobs. Hiring these seven individuals to continue to work on the jobs was part of the take-over agreement. In September 2006, three Hispanic laborers were hired. Two were hired to work on "amenity walls" which require a totally different forming process than does the standard solid- wall construction. The third was hired to work on the Welch jobs as he had worked with the "JR" crew previously.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter final orders dismissing the Petitions for Relief for Petitioners Ralph Alexander, Stevie Daniels, Ernest West, Jr., and Carlos Cole. DONE AND ENTERED this 31st day of January, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 31st day of January, 2008. COPIES FURNISHED: 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 Tallahassee, Florida 32301 Adrienne E. Trent, Esquire Enrique, Smith and Trent, P.L. 836 Executive Lane, Suite 120 Rockledge, Florida 32955 Chelsie J. Roberts, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801
The Issue The issues in this case are whether Respondent, as City Manager for the City of Opa-locka, violated Section 112.313(6), Florida Statutes, by (1) using his position to engage in sexual, or romantically-oriented, comments, behavior, and/or invitations to female City employees; (2) having a subordinate's car repaired using City resources; (3) soliciting a personal sexual or romantic relationship with a female job applicant; and (4) if yes, what penalty is appropriate.
Findings Of Fact Respondent served in the Marines for two years and in the Florida Department of Law Enforcement (FDLE) for thirteen years. He then served as Police Chief of Florida City for two years before resigning to become the Executive Officer in Charge of Investigations at the City of Lauderhill Police Department. After two or three months he quit that job, and conducted private investigations until he was hired by the City of Opa- locka. Respondent was appointed acting City Manager for the City of Opa-locka (City/Opa-locka) on Friday, June 9, 1995. He was appointed City Manager effective July 28, 1995, and remained in that position until May 1997. All City employees, other than those in the City Attorney's Office, ultimately reported to the Respondent as City Manager. Also, as City Manager, Respondent could terminate City employees. In Respondent's positions as acting City Manager and City Manager, he was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Employees and Officers. Remarks and Conduct Toward Female Employees At all times relevant hereto, Angelita Griffin was employed by the City of Opa-locka. Ms. Griffin first started working with the City of Opa-locka during a Federal Emergency Management Agency (FEMA) project in late 1992. Thereafter, in March 1993, Ms. Griffin was hired by the City, in a temporary position as an accounts clerk in the Water Department, which was under the City's Finance Section. Ms. Griffin was eventually placed in a permanent position with the City and continued to work as a clerk in the Water Department until June 1995. Ms. Griffin first met Respondent on Saturday, June 10, 1995, the day after he was appointed acting City Manager. Respondent was visiting the Finance Department with Winston Mottley, Director of the Finance Department. Ms. Griffin and several other employees were in the office working that day. Respondent briefly spoke to some of the employees, but he did not engage in extended conversations with any of them. On June 10, 1995, while at the Finance Department, Respondent asked Mr. Mottley if he could send someone to Respondent's office on Monday to answer the telephones. Mr. Mottley said that he had just the right person, someone who he had been "trying to get out of his office." Even though Mr. Mottley did not name or otherwise identify that person to Respondent, the employee to whom he was referring was Ms. Griffin. The following Monday, June 12, 1995, Mr. Mottley informed Ms. Griffin that she was being transferred to the Building Department and told her to report there the next day. After Ms. Griffin reported to the Building Department on June 13, 1995, she was directed to report to the City Manager's Office. Although Ms. Griffin reported to the City Manager's Office, she was unhappy about being transferred from the Water Department. Ms. Griffin wanted to remain in the Water Department because she enjoyed the work, believed that she knew the job, and was comfortable there. Almost immediately after being transferred from the Water Department, Ms. Griffin openly expressed her disatisfaction about the transfer and took steps which she believed would possibly result in her being reassigned to the Water Department. Within a day or so of Ms. Griffin's being transferred to the City Manager's Office, she told Respondent that she wanted to go back to the Water Department. However, he did not comply with her request. Also, as early as June 13 or 14, 1995, Ms. Griffin telephoned former City Manager Dennis Whitt and asked him if he could "talk to someone in City Hall and see if [she could] go back to the Water Department." Ms. Griffin called former City Manager Whitt because she believed that he was "still close to the mayor and the commissioners." When former City Manager Whitt did not call Ms. Griffin with a response regarding her request, Ms. Griffin telephoned Mr. Whitt. In that conversation, Mr. Whitt told Ms. Griffin that he had been unsuccessful in trying to help her get transferred back to the Water Department. Mr. Whitt conveyed to Ms. Griffin that he had spoken to someone in the Water Department who said that Ms. Griffin was incompetent and that there was "nothing they could do to help [her]." Based on her telephone conversation with Mr. Whitt, Ms. Griffin believed that Respondent had told City Commissioner Helen Miller that Ms. Griffin couldn't return to the Water Department because she was "incompetent, . . ., didn't know [her] work over there, [and]. . . couldn't even type." During the week of June 12, 1995, Ms. Griffin also went to the office of the City's Vice-Mayor Timothy Holmes and asked him to help her "get back to the Water Department." Vice- Mayor Holmes apparently believed that such a transfer was unlikely and advised Ms. Griffin that Respondent had said Ms. Griffin "didn't know [her] work over there." Despite Ms. Griffin's soliciting the assistance of Mr. Whitt and Vice-Mayor Holmes, whom she considered to be influential, and Respondent, she was never reassigned to the Water Department. Between June 1995 and November 1995, Ms. Griffin worked in four different offices: the City Manager's Office, the Mayor's Office, Safe Neighborhoods, and Code Enforcement. While working in each of the aforementioned offices, Ms. Griffin's sole or primary responsibility was to answer the telephone. Beginning on June 13, 1995, Ms. Griffin worked for Respondent in the City Manager's Office and was there for about two months. While working in the City Manager's Office, there were two instances when Respondent spoke to Ms. Griffin about reporting to work late. In the first instance, Ms. Griffin indicated that her tardiness was due to transporting her son to daycare. During this or a subsequent conversation, Respondent asked Ms. Griffin several personal questions. The questions concerned Ms. Griffin's marital status, the paternity of her child, and her financial status as it related to her ability to take care of herself and her child. It was then that Ms. Griffin told Respondent that she earned extra money by working part-time as a singer. Ms. Griffin agreed to and did eventually bring him a tape of her music. On another occasion, when Ms. Griffin was working in Respondent's office, he commented on her weight and the junk food she was eating. Respondent then suggested that Ms. Griffin contact a company to inquire about having a juice machine put in the building. Respondent's comments upset Ms. Griffin so much that she almost stayed home from work the next day. However, she later decided to report to work even though she was late. When Ms. Griffin arrived at the office, Respondent called Ms. Griffin into his office to discuss her tardiness. Respondent also called his assistant, Ms. Robinson, into the office while he talked to Ms. Griffin. Mr. Mottley, who was already in Respondent's office when Ms. Griffin arrived, remained there during the meeting. Ms. Griffin became frustrated and told Respondent and Mr. Mottley that she was tired of them "harassing" her. After Ms. Griffin made this comment, Respondent demanded that she write a letter of apology for her accusation against Respondent and Mr. Mottley. Ms. Griffin acknowledged that she, in fact, wrote the letter and gave it to Respondent. However, there is no indication of what Respondent did with the letter. After working full-time in the City Manager's Office for about two months, Ms. Griffin was transferred to the Mayor's Office for a short time. From the Mayor's Office, Ms. Griffin was sent to Safe Neighborhoods, where she worked for approximately three weeks. Ms. Griffin's assignment to Safe Neighborhoods was the result of a request by the director of that program for additional assistance. From Safe Neighborhoods, Ms. Griffin went to work in Code Enforcement, where she worked until November 6 or 7, 1995. In the City of Opa-locka, a Report of Personnel Action was to be completed whenever an employee was transferred from one section to another section. However, it was not unusual for City employees to be transferred without such forms being completed. In Ms. Griffin's case, there was never any paperwork reflecting any of her interdepartmental transfers or reassignments. During Ms. Griffin's tenure with the City, even when she was not assigned exclusively to the City Manager's Office, she was called to that office several days a week, for some part of the workday, to answer the telephone. Ms. Griffin had no set schedule for reporting to the City Manager's Office to answer the telephone, but was considered a relief person and, as such, went there whenever she was called upon to report. When Ms. Griffin was needed, she was always called by a support staff person from the City Manager's Office. Ms. Griffin also served as a relief person under the two former city managers who preceded Respondent. In addition to Ms. Griffin, employees from other City departments were required to serve as relief persons by answering the telephone in the City Manager's Office. Again, this practice was in place prior to Respondent's being appointed City Manager and continued during his tenure. Several City employees, mainly Department heads or other highly placed staff, had Rotary Club memberships paid for by the City. Although Ms. Griffin did not fall into this category of employees, Respondent also authorized a City paid membership for her. Ms. Griffin was one of the City employees who regularly attended Rotary functions and meetings. In addition to her job with the City, Ms. Griffin was a singer. Because Ms. Griffin was a performing artist, she often sang at Rotary Club activities. Notwithstanding the fact that Ms. Griffin customarily sang at Rotary Club or other functions, there was at least one occasion when Respondent asked Ms. Griffin to sing at an event and she refused to do so. After Ms. Griffin refused to sing at that particular event, Respondent asked her why she was not more cooperative given "all that he had done for her." In response to this inquiry, Ms. Griffin told Respondent that her refusal to sing was not anything "personal." However, Ms. Griffin maintained her position that she "couldn't do it." After this exchange, there is no indication that Ms. Griffin sang at this function or that she suffered any adverse consequences as a result of her decision. During the period between June 13, 1995, and November 6, 1995, none of Ms. Griffin's supervisors ever documented any complaint about her job performance or observed any changes in her behavior or attitude. In fact, those individuals who worked with Ms. Griffin and saw her on a regular basis found her to be pleasant and happy, and noticed no changes in her demeanor. However, while Ms. Griffin worked in Safe Neighborhoods, a fellow employee, Mildred Bradshaw, observed that Ms. Griffin sometimes appeared disgusted or disturbed when she returned from the City Manager's office. In response to Ms. Bradshaw's inquiry about what was wrong, Ms. Griffin expressed her dissatisfaction with Respondent and told Ms. Bradshaw that she was "tired of [Respondent] calling her back over to his office" and "switching me back and forth and the way he was treating me as far as coming on to me." Ms. Griffin testified that she gave Ms. Bradshaw no detailed explanation of what she meant by these comments. None the less, contrary to Ms. Griffin's statement, Ms. Bradshaw testified that Ms. Griffin told her that she and Respondent had had "sex" in Respondent's office. According to Ms. Bradshaw, Ms. Griffin made this statement to her in October 1995, when Ms. Griffin worked in Safe Neighborhoods. On October 1, 1995, while Ms. Griffin was working in Safe Neighborhoods, City Commission authorized a 5 percent cost of living salary increase for City Employees. As a result thereof, Ms. Griffin's annual salary went from $16,500 to $17,388. Respondent authorized an additional raise for Ms. Griffin, on October 9, 1995, which increased her salary to $18,000. For the three weeks Ms. Griffin was in Safe Neighborhoods, she was supervised by Ms. Lockhart. However, Ms. Lockhart was unaware of Ms. Griffin's salary or of the pay raise authorized by Respondent. During Respondent's tenure as City Manager for the City Of Opa-locka, City employees other than Ms. Griffin received salary increases in excess of the 5 percent cost-of- living increase approved by the City Commission. Some of those salary increases, approved by Respondent, were substantially higher than the one received by Ms. Griffin. Completion of a Report of Personnel Action (RPA) is required to effectuate a salary increase for City employees and the form contains a "remarks" section that may be used to indicate the reason for any pay adjustment. Nonetheless, it is not unusual for such a statement to be absent from the RPA. In Ms. Griffin's case, no reason for the October 9, 1995, salary increase was provided on the form. Ms. Griffin signed the RPA authorizing her salary increase. However, when she signed the form, the only pay raise shown was the 5 percent cost of living adjustment. Ms. Griffin testified that the first she knew of the raise was when the Respondent called her in and asked her how she liked her raise. According to Ms. Griffin, she was upset to know she was receiving special treatment, and was concerned about what Respondent might want in return. On October 25, 1995, Ms. Griffin submitted a letter of resignation to the City, with such resignation being effective November 6, 1995. At the time Ms. Griffin tendered her letter of resignation, she told City colleagues that she was leaving the City to accept a job as a singer. Ms. Griffin told some City employees that she would be going on tour with someone, although after leaving the City, Ms. Griffin performed as a singer on a cruise ship. On the evening of November 1, 1995, Respondent and a number of City officials who belonged to the Rotary Club, including Respondent's assistant, Michael Jones, and Police Chief Craig Collins, attended a Rotary Club function. Ms. Griffin also attended and sang at the event. While enroute to the Rotary Club function on November 1, 1995, Ms. Griffin damaged her car. Ms. Griffin testified that the car was damaged when she backed into the gate or lock at her apartment complex as she was leaving for the Rotary Club event. However, that evening Ms. Griffin told Respondent, Michael Jones, and Craig Collins, in separate conversations, that someone had hit her car. On November 1, 1995, after learning that Ms. Griffin's vehicle was disabled, Police Chief Craig Collins offered to drive her home. Even though Ms. Griffin knew Chief Collins not only as the City's Police Chief, but also as a relative of one of her friends, she declined his offer. Michael Jones also offered to provide Ms. Griffin with a police escort to take her home. Again, Ms. Griffin declined this offer and instead accepted a ride with Respondent. At Respondent's suggestion, Ms. Griffin then drove her car to the City Police Station and parked it. Respondent went to the Police Station to pick up Ms. Griffin and drive her home. Respondent drove Ms. Griffin home after the Rotary Club event. When Respondent arrived at Ms. Griffin's apartment complex, he entered through the security entrance and drove Ms. Griffin to her apartment. About fifteen minutes after Respondent left the Rotary function, Respondent called Mr. Jones from the cellular telephone in Respondent's car to advise him of matters that the Mayor had discussed earlier that evening. This call was made after Respondent took Ms. Griffin to her apartment. Ms. Griffin's and Respondent's versions of what occurred once they arrived at Ms. Griffin's apartment complex are at odds. Respondent's version of the events that transpired on the evening of November 1, 1995, is that after he arrived at Ms. Griffin's apartment complex, she exited his car and he immediately left. According to Respondent, he never went into Ms. Griffin's apartment. According to Ms. Griffin, Respondent carried Ms. Griffin's belongings upstairs, entered her apartment, put the items in her bedroom, seated himself on her couch, and asked for something to drink. Ms. Griffin testified that while she was getting Respondent something to drink, he came up behind her, and rubbed against her. Ms. Griffin stated that she then turned around and tried to push him away, but Respondent persisted in his efforts, asking her why she was resisting after all he had done for her. Finally, according to Ms. Griffin, Respondent pushed her down and asked her for oral sex, and when she did not comply, he engaged in sexual intercourse with her against her will. Ms. Griffin testified that she did not want Respondent in her apartment on the evening of November 1, 1995, but claims that she did know how to stand up to him. Ms. Griffin never reported the aforementioned alleged sexual assault to anyone before about August 1996, when she mentioned it to her attorney. Moreover, Ms. Griffin never reported the incident to law enforcement officials nor did she seek medical attention after the alleged assault. There is no physical or otherwise reliable evidence that the alleged sexual assault occurred. Furthermore, it is found that Ms. Griffin's testimony regarding the alleged assault is not credible. Thus, it is found that on the evening of November 1, 1995, Respondent never entered Ms. Griffin's apartment. The next day, November 2, 1995, Ms. Griffin reported to her City job as usual. During that day, Ms. Griffin went to the City Manager's office after she was called to report there. Ms. Griffin continued to work for the City until November 7, 1995. Although Ms. Griffin's resignation was to be effective November 6, 1995, she worked an extra day until November 7, 1995, at the request of Respondent. During the period between November 7, 1995, and August 19, 1996, Ms. Griffin was employed as a singer on the a cruise ship, Europa Sea Cruise. About nine months after Ms. Griffin left her job with the City, she filed a sexual harassment claim against Respondent. According to Ms. Griffin, the reason she decided to file the complaint was that she "had gone for a long time without saying anything to anybody." Also, Ms. Griffin acknowledged that she filed the complaint because she was struggling financially, was in a low-paying job, was away from her son, had given up her apartment, and was "stressed out and worried." The basis of the claim was alleged acts that occurred between June 1995 and November 1995. With the possible exception of comments that may have been made to Ms. Bradshaw in October 1995, Ms. Griffin never told anyone that Respondent made inappropriate remarks to her or behaved inappropriately toward her. Ms. Griffin testified that from the first month that she reported to Respondent's office and continuing until she left the City's employ four and one-half months later, she was subjected to continuous sexual harassment by the Respondent. According to Ms. Griffin, in addition to the questions about her personal life noted in paragraph 15 above, Respondent asked her whether there was a man in he life, told her he was looking for a girlfriend, and asked for her help. Ms. Griffin also testified that during the time she worked in Respondent's office, he stared at her breasts. Moreover, Ms. Griffin testified that Respondent hugged her almost everyday that she came into the office. According to Ms. Griffin, Respondent sometimes hugged her in the presence of other City employees who worked in the office. According to Ms. Griffin, Respondent not only hugged her, but also hugged other female City employees. From the reception area, anyone could see into Respondent's private office through a transparent window. This was possible because there was no covering on the window to obscure the view. Regla Mederes, who worked as Respondent's executive secretary at the time relevant to this proceeding, worked in an area where she was able to observe both Ms. Griffin and Respondent and would have seen Respondent hug Ms. Griffin if he had done so. However, Ms. Mederes never saw Respondent hug Ms. Griffin when she came into the office to answer the telephones or any other time. Aletha Robinson, Respondent's assistant when he worked for the City, was in and out of Respondent's office on a regular basis, but also never saw Respondent hug Ms. Griffin. Ms. Robinson stated that Respondent was always professional and "very much" a gentleman when he was in the office. Respondent never hugged Ms. Griffin or any other City employee in the workplace and was never overheard making sexually inappropriate remarks to female employees in the workplace. Ms. Griffin testified that at on two separate occasions, Respondent touched her on the buttocks. According to Ms. Griffin, Respondent touched her buttocks with his knee when he sat behind her at a banquet. Based on Ms. Griffin's account of events, Respondent also touched her buttocks with his hands while they stood in a buffet line at a Rotary function. Ms. Griffin stated that in the first situation, she made no attempt to move her chair and in neither of the aforementioned situations did she say anything to Respondent. Other City employees and officials attending these events never observed Respondent touching Ms. Griffin. In fact, at Rotary events, Respondent never sat near Ms. Griffin. As City Manager, Respondent was seated at the front of the room, typically at the head table. On the other hand, Ms. Griffin was usually late and sat in or near the back of the room. Moreover, Ms. Griffin testified that during the course of her employment, Respondent asked her out to dinner and on another occasion, called her at home and asked if her boyfriend was in bed with her. Ms. Griffin never reported this to anyone during her employment with the City. According to Ms. Griffin, on the evening of November 1, 1995, after the Rotary Club function had concluded, Respondent remarked that since Ms. Griffin had resigned from the City, she could now go out with him. Moreover, Ms. Griffin testified that these comments were made in the presence of City officials and/or employees, namely Vice Mayor Holmes, Aletha Robinson, and Michael Jones. Neither of the aforementioned individuals heard Respondent make any comment that Ms. Griffin could now be his girlfriend or go out with him. Respondent, on one occasion, commented to Mr. Mottley about Ms. Griffin's breasts and their size. During this conversation, which Mr. Mottley characterized as "talking as men," he jokingly warned the Respondent that "breasts" could get him into trouble. This was a private conversation between only Respondent and Mr. Mottley. It is unknown where or when this discussion took place. Respondent has had numerous courses dealing with sexual harassment. Thus, he was aware that remarks of a sexual nature to subordinates are inappropriate; that it was improper to ask a subordinate employee about her sexual partners; that it was improper to ask a subordinate employee to kiss him; and that it was improper for a superior to attempt to engage a subordinate employee in a sexual or romantic relationship. Ana Otero was employed by the City of Opa-locka for eight years, leaving in September 1997, after she was asked to resign by Arlington Sands. Ms. Otero testified that she did not like anyone associated with the City of Opa-locka, including Respondent. On one occasion when Ms. Otero went to Respondent's office, he told her that he wanted to come to her house for rice and beans. On another occasion, while passing through the small room where the copier was located, Respondent came up behind Ms. Otero while she was making photocopies. He was so close to her that she could feel his breath on her neck. Also, there was a time that Respondent made a comment to Ms. Otero regarding short Puerto Rican women. In another incident that occurred at the workplace, Respondent asked Ms. Otero to give him an "intimate" kiss. Ms. Otero never reported Respondent's conduct or comments during her tenure with the City. Liliana Cuevas was employed by the City of Opa-locka from 1990 until 1996. At one point, when Ms. Cuevas was in a meeting with Respondent on a personnel matter, he began to inquire about her personal life. Respondent asked such questions as why she was divorcing her husband, and whether her husband was her son's father. Respondent also asked her if she wanted to go out with one of his colleagues. On another occasion, Ms. Cuevas was delivering papers to the Respondent. As she gave him the items, he brushed his fingers lightly against her hand. As she was about to exit his office, he called her back to give her something else to take back with her. This scene was repeated several times, each time with Respondent brushing Ms. Cuevas' hand and watching her as she went back and forth. Respondent never asked Ms. Cuevas to have sex with him, asked her out, or made any "moves on her." Notwithstanding, Ms. Cuevas' description of the the incident described above, she stated that Respondent has never flirted with her or gotten physical with her. Ms. Cuevas never reported any inappropriate conduct by Respondent while she was employed by the City. While Ms. Cuevas filed sexual harassment charges against other employees of the City, she has not filed any such charges against Respondent. Sonia Hernandez started working for the City as an administrative assistant in the Public Works Department in November 1995. She left the City's employ in December 1996, after being terminated by Aibola Balogun. One week into her employment with the City, someone at a staff meeting asked Ms. Hernandez if she were single. Respondent told the staff member to "back off." When Ms. Hernandez came to this meeting, she unknowingly sat in the area designated for upper management, Respondent grabbed her arm and hand as if indicating she was in the wrong area. Ms. Hernandez characterized Respondent's action as physical rather than sexual. Nonetheless, when he put his hand on Ms. Hernandez, she felt uncomfortable. About a week after the staff meeting Respondent called Ms. Hernandez and invited her to the Christmas party. During this call, another person was on Respondent's speaker phone. Respondent made comments to this third person about Ms. Hernandez's "big brown eyes." On another occasion, during one of his regular visits to the City's public works section, Respondent observed Twinkies on Ms. Hernandez's desk and suggested that she "lay off the Twinkies." Ms. Hernandez believed that the comment was a negative reference to her weight, and responded by telling Respondent that she was "comfortable with herself." Respondent then looked at her, chuckled, and said, "Well, when I usually go to the meat market, I buy a pound of meat as opposed to a pound of bones." Ms. Hernandez did not understand the meaning of Respondent's statement, but the earlier reference to her weight made her feel uncomfortable. Although Respondent made comments about Ms. Hernandez's weight, she testified that Respondent made no sexual advances toward her either at the Christmas party or the workplace. Finally, at the City employees' Christmas party, Respondent approached Ms. Hernandez and her date, and told Ms. Hernandez that someone wanted to meet her. Ms. Hernandez indicated that she was not interested. During the conversation, Ms. Hernandez believed that Respondent was looking at her breasts, rather than at her face. This made Ms. Hernandez feel uncomfortable. At the end of the conversation Respondent shook Ms. Hernandez's hand. The entire conversation lasted about 30 seconds. While serving as City Manager, Respondent was aware that it was improper for a superior to engage in unsolicited or unwelcome sexually or romantically-oriented remarks or behavior toward a subordinate employee. Repair of Employee's Vehicle Using Public Resources As previously noted, on November 1, 1995, Ms. Griffin damaged her car on the way to a Rotary Club function at which she was to sing. After the event, Ms. Griffin approached Michael Jones and told him that someone had hit her car, that the bumper was on the ground, and that the car was inoperable. Nevertheless, later that evening, Ms. Griffin was able to drive the damaged vehicle to the City Police Station, where she left it overnight. The next day, Ms. Griffin went to see Michael Jones about having her car repaired. Mr. Jones instructed City employee, Jesus Corrales, to look at the car to assess the damage. Mr. Corrales told Mr. Jones that he could reattach the bumper in about five minutes. Thereafter, Mr. Jones directed Mr. Corrales to repair Ms. Griffin's car. Pursuant to Mr. Jones' directive, Mr. Corrales repaired Ms. Griffin's car. Even though no City-owned parts were required, it took Mr. Corrales two to three hours to repair the vehicle. After the vehicle was prepared, Ms. Griffin offered to pay Mr. Corrales $20.00 for repairing the damage to her car. Mr. Corrales refused to accept the money. Respondent never authorized or directed Mr. Corrales to repair Ms. Griffin's car. Nor did Respondent authorize or instruct Mr. Jones to have Mr. Corrales repair the vehicle. Behavior Toward Job Applicant One day during Respondent's tenure as City Manager, he went to the City's Revenue Department. While in that office, Respondent observed an individual who was not employed by the City in that office typing. The Respondent then asked Deborah Ford, Director of the Revenue Department, who the person was and why she was in the office working. Ms. Ford indicated that the individual, Tonia Sanders, was good and had previously worked with her. Respondent admonished Ms. Ford, reminded her that there were procedures for hiring people, and directed her to have Ms. Sanders leave the office. Respondent then told Ms. Ford to have Ms. Sanders pick up an employment application and he offered to interview her if Ms. Ford brought her by his office. A couple of days later Ms. Ford brought Ms. Sanders by Respondent's office. After both women entered the office, Ms. Ford commented to Respondent about Ms. Sanders' physical appearance, indicating that Ms. Sanders was attractive and had nice legs. Respondent cut this conversation off and then talked to Ms. Sanders about matters related to her application. Immediately after Ms. Sanders left, Respondent counseled Ms. Ford and told her not to ever bring anyone else to the office and "talk like that." Respondent put Ms. Sanders' City employment application on file and subsequently interviewed Ms. Sanders on one other occasion. However, Respondent never hired her for a position with the City. Ms. Sanders testified that Respondent later called Ms. Sanders and asked her out socially. On one occasion, he suggested she prepare dinner for him and offered to purchase the ingredients. On another occasion, Ms. Sanders spent some time talking with Respondent at a restaurant called Shula's, as part of a gathering organized by City employee Debra Ford. Following the gathering, Ms. Ford invited Respondent to go out with her and Ms. Sanders, but Respondent declined and all three decided to go home. However, as Respondent was leaving, he asked Ms. Sanders to ride with him. Ms. Sanders refused Respondent's offer. On another occasion, Respondent called Ms. Sanders and told her to make hotel reservations at a specified hotel. Respondent instructed Ms. Sanders to call him after she had made the arrangements and he would meet her at the hotel. Although Respondent never expressly spoke to her about sexually-related matters or made sexually-explicit suggestions, Ms. Sanders reasonably assumed that Respondent was attempting to set up a sexual liaison with her. Ms. Sanders was not interested and did not comply with Respondent's instructions. The aforementioned incidents involving Ms. Sanders occurred while Ms. Sanders' job application with the City was pending.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that a Final Order and Public Report be entered finding that the Respondent, Earnie Neal, violated Section 112.313(6), Florida Statutes, in two of the three instances alleged; imposing a civil penalty of $3,000 per violation; and issuing a public censure and reprimand. DONE AND ENTERED this 13th day of November, 1998, in Tallahassee, Leon County, Florida. _ CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative this 13th day of November, 1998. COPIES FURNISHED: Virlindia Doss, Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 David H. Nevel, Esquire Law Offices of Ronald S. Lowy Seventh Floor 420 Lincoln Road Miami Beach, Florida 33139 Cynthia Everett, Esquire City of Opa-locka City Hall 777 Sharazad Boulevard Opa-Locka, Florida 33054 Kerrie J. Stillman Complaint Coordinator and Clerk Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Bonnie Williams, Executive Director Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709
The Issue Whether Respondent Employer committed an unlawful employment practice by discrimination on the basis of age and/or retaliation1/ against Petitioner, in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Deanna L. Eftoda, was born on August 26, 1949. Respondent, HealthSouth Rehabilitation Hospital of Tallahassee (HealthSouth), is a healthcare facility providing both in-patient and out-patient rehabilitation services in Tallahassee, Florida. As such, it employs personnel designated as "exempt" and "non-exempt," pursuant to the federal Fair Labor Standards Act. Generally speaking, "exempt" employees are salaried employees, in managerial posts, who do not receive over-time pay by the hour, and "non-exempt" employees are regular, non- managerial employees, who are paid a set amount per hour up to 40 hours per week and time and a-half per hour for every hour above 40 hours that they work in the same 40-hour week. There are some exceptions to this federal compensation scheme which are immaterial to this case. At all times material, a “Nursing House Supervisor” or “RN House Supervisor” were interchangeable job titles. Petitioner was initially hired by Respondent on January 26, 2004, as an "RN-Baylor Nurse." The RN-Baylor position was a non-exempt position, and in that position, Petitioner's hourly pay rate was $28.00. Petitioner's hourly rate of $28.00, was very high for an RN-Baylor Nurse, but Petitioner's credentials are exceptional. Within days of her hire, Petitioner was asked whether she would take an RN House Supervisor position. Petitioner accepted the RN House Supervisor position, and a corrected personnel action form reflecting this change was prepared on January 30, 2004. Petitioner signed an acknowledgement of her acceptance of the House Supervisor position on February 22, 2004. Every House Supervisor employed by Respondent during Petitioner's period of employment was an exempt employee. The RN House Supervisor position that Petitioner accepted was an exempt position. Nursing House Supervisors traditionally worked the evening and night shifts, when there was no member of the hospital administration on duty. Without a member of the hospital administration on duty, the Nursing House Supervisor was the highest ranking management employee at the facility. While Petitioner was employed with Respondent as an RN/Nursing House Supervisor, Respondent simultaneously employed “Charge Nurses.” The duties of a Charge Nurse were similar to the duties of a Nursing House Supervisor. However, unlike Nursing House Supervisors, Charge Nurses traditionally worked the day shift, during which higher-ranking members of the facility’s administration were simultaneously on duty. In 2004, Respondent also employed a Charge Nurse on the weekend day shift(s) when at least one administrator was present for several hours. (This anomaly seems to be at least one element which confused Petitioner and led to this case.) Even so, unlike RN House Supervisors, all Charge Nurses were classified by Respondent Employer as filling non-exempt positions. Every Charge Nurse employed by Respondent during Petitioner's employment was classified as a non-exempt employee, eligible to earn time-and-a-half for overtime. Petitioner’s salary was not increased when she accepted the RN House Supervisor position, because her base salary (calculated at $28.00 per hour) was commensurate with the salary of other RN House Supervisors already being paid as managerial employees at straight salary. On the other hand, because Petitioner worked as an RN/Nursing House Supervisor on a “Baylor,” or weekend, shift, Respondent paid Petitioner a special compensation for being scheduled to work every weekend, with no weekends “off.” This special compensation took the form of Respondent’s paying Petitioner as if she had worked 36 hours per week, even though she was only scheduled for 32 actual hours of work per week. Petitioner believes that she worked a minimum of four additional hours per week, because it was her practice to come on shift an hour early and leave an hour late to set up and wind down the area and staff under her supervision as Nursing House Supervisor. She “guessed” there were some weeks when, between this practice and meetings she was required to attend, she worked 32 hours above the usual 40 hours per week. Her “best guess” was that she was working “two (additional) hours per eight-hour shift,” plus attending meetings which were not held during her shift(s), beyond her scheduled 32 hours, but Petitioner never worked straight eight-hour shifts. (See Findings of Fact 12-15, and 25.) A Nursing House Supervisor working the Baylor shift, or an RN-Baylor Nurse, normally worked two twelve-hour shifts on the weekend and one eight-hour shift during the week. When Petitioner was hired by Respondent in January 2004, she was completing a second doctoral degree. In order to accommodate Petitioner's work on her dissertation, Respondent had offered Petitioner an irregular shift pattern consisting of two sixteen- hour shifts on the weekends. Petitioner had accepted this scheduling accommodation. As RN House Supervisor, Petitioner was required to attend occasional mandatory meetings for Nursing Supervisors and other nursing staff. These meetings were held during the week, and usually, but not always, between 5:00 and 6:00 p.m. This meeting time was more convenient for employees regularly working the weekday shift immediately before 5:00 p.m. or coming on shift immediately after 6:00 p.m., than for staff on other shifts, but no age or retaliation component existed with regard to Petitioner or anyone else on other shifts. Petitioner also was required once or twice to attend several hours of computer classes in a single day and other training, but so was everyone else on staff. Because the meetings were not on the weekends during the hours Petitioner would normally work, Petitioner’s attendance at the mandatory weekday meetings upset Petitioner's personal plans for study, research, and writing her doctoral dissertation, but there is no evidence she was singled out for this inconvenience. Petitioner claimed herein that she was entitled to be paid overtime for coming to "work" for meetings and classes. Because her Nursing House Supervisor position was an exempt position, Petitioner was not paid overtime for attending these mandatory meetings and classes, but no other exempt employees were paid overtime for attending these meetings and classes outside of their normal working hours, either. Respondent's policy does provide that if a Nursing House Supervisor works an additional shift as a "floor nurse," separate and apart from his/her regularly scheduled shifts as a House Supervisor, then that Nursing House Supervisor can be granted additional pay for that additional shift during which he/she works as a floor nurse, even though the House Supervisor position is that of an exempt employee. In order to be granted this additional pay, the Nursing House Supervisor must fill out an "Additional Pay for Exempt Employees" request form and submit the form to management for prior approval. The mandatory weekly meetings that Petitioner was required to attend as a part of her Nursing House Supervisor duties did not qualify as a full additional shift, for any employee. Petitioner received a memorandum dated April 12, 2004, explaining this. In fact, When Petitioner filled out the correct form for work as a floor nurse, she was paid at the $27.50 per hour rate for a floor nurse. She was not paid when she filled out such a form for mandatory staff meetings, classes, and training sessions. Petitioner represented that throughout her employment by Respondent, she repetitively and persistently inquired about how her pay was being calculated and why the Employer did not calculate it the way she thought it should. She also claims to have repeatedly requested a different calculation of her pay and leave accruals on the basis of her beliefs and desires, but at the time she made no formal claim or discrimination complaint related to these inquiries and requests. In her testimony, even Petitioner described what she was doing as “negotiating” her salary. Throughout her employment by Respondent, Petitioner was cited by management for performance problems, including but not limited to difficulty in dealing with staff; poor management style; poor judgment in dealing with her supervisors and subordinates; creating confusion and chaos for staff on her scheduled shift by her confrontational manner; failing to properly address performance concerns with staff on her scheduled shift; and failure to take responsibility for her own actions. Giving Petitioner the benefit of the doubt, some of her friction with management and staff may have arisen because of her complaining that evaluators did not observe her for an entire shift; because she mis-read management’s instructions on how to code her timesheets as a requirement to falsify them; because she perceived that Respondent’s staffing levels occasionally fell below matrix, and she then created turmoil by calling in extra staff, whereas her superiors did not share her interpretation of the matrix requirements or the staffing events themselves; because she blamed the preceding shift for cleanliness issues; because she perceived herself undervalued for her extensive nursing experience; because she perceived herself personally opposed and ridiculed by a nurse of lesser or equal rank (Mandar); and because she did not believe that her superiors backed her up sufficiently and/or did not afford her the appropriate discretion in her interactions with subordinates. Petitioner objected to Respondent’s chain of command, which had her reporting to Ms. Roberts, Nurse Manager. Petitioner felt she should report directly to the Director of Nursing, her “two-up” supervisor. However, none of these disputes rose to the level of a protected activity under Chapter 760.10(7), Florida Statutes (see Finding of Fact 35), or related to Petitioner's age in any way. From Respondent's perspective, its administration received a myriad of complaints from Petitioner's supervisors, peers, and subordinates, regarding Petitioner's management style and performance. Some of Respondent's employees threatened to quit if they were forced to continue to work under Petitioner's supervision. Petitioner testified that in July 2004, she had polled her subordinates and asked them to indicate that they had “no problems” with her management style. Then she presented the list of subordinates to her superiors. This could have legitimately been viewed by Respondent’s management as Petitioner’s insubordination to them and/or intimidation of the polled subordinates by Petitioner. Respondent’s Nurse Manager and Petitioner’s direct supervisor, Barbara Roberts, felt that she was being required to spend an inordinate amount of her time dealing with Petitioner's problems. As a result of these problems, Petitioner was placed on probation on September 10, 2004. Petitioner challenged this probation, and a review was conducted by Respondent's management. Despite the fact that the complaints concerning Petitioner's management style and performance came from various sources, Petitioner complained that Ms. Roberts was unfairly disciplining and harassing her. Respondent's management concluded that the attention Petitioner had received from Ms. Roberts was not improperly motivated, but was a result of personality conflicts between Petitioner and other employees. Some of the allegations against Petitioner were substantiated, but investigation into an allegation that Petitioner had coerced or threatened employees into working, only produced limited supporting documentation. In the absence of additional documentation, Lynn Streetman, Hospital Administrator, concluded that probation was not the correct level of discipline for Petitioner. (P-22) Ms. Streetman recommended that Petitioner's supervisor, Ms. Roberts, chalk the problems up to differences in management style and downgrade Petitioner’s probation citation to a "written warning." On September 30, 2004, the probation citation was replaced with a written warning citation. Also on September 30, 2004, six months after Petitioner’s initial hire and approximately five and a-half months after she accepted the exempt Nursing House Supervisor position, Ms. Roberts sent Petitioner a memorandum informing her that it was no longer operationally feasible to continue the irregular pattern of two sixteen-hour shifts on the weekend (R- 3).2/ Respondent's reason for this change was that for four hours of each day that Petitioner was scheduled to work, there was an overlapping period when two supervisors were on duty, and this duplication of supervisory personnel resulted in an unnecessary expense for Respondent. Ms. Roberts' memorandum informed Petitioner that it was operationally necessary for Petitioner to begin working the traditional Baylor-RN's two twelve-hour weekend shifts and one eight-hour shift during the week, beginning with the October 16-17, 2004, weekend. This managerial decision obviously inconvenienced Petitioner for purposes of completing her doctoral dissertation, and she contends the decision was “retaliatory.” However, the change had been in discussion with management before September 30, 2004. Immediately after her probation was down-graded to a written warning, Petitioner asked for a weekend off, which was granted. Because she took a weekend off at that time, Petitioner had one less weekend to use later in December 2004. (See Finding of Fact 36.) Approximately October 17-18, 2004, when her new shift arrangement was beginning, Petitioner's supervisors again sought to put her on probation, due to a series of complaints by staff similar to the previous ones. Ms. Roberts and other superiors believed Petitioner distorted common conversations and created chaos on her shift by misinterpreting in her conversations with her subordinates the instructions her superiors had given her. In accord with its policy, Respondent launched a second investigation into Petitioner's alleged misconduct. On December 11, 2004, prior to conclusion of the second investigation, Petitioner sent an e-mail to Ms. Roberts and to Respondent's Human Resources Director, Jackie Chaires, requesting that her status be changed from full-time Nursing House Supervisor to "PRN," or "as needed," status. Petitioner's e-mail stated, I believe I have 'too many irons in the fire.' With my dissertation and numerous meetings outside my 32 hours, I find myself run down. To remedy this situation I am willing to wait until January 17, 2005 for this transition to begin. Please advise as to the salary changes. Petitioner believed that by giving four weeks’ notice before the date she wanted to “go PRN” she would be entitled to a payout of “personal time off” (PTO). However, due to subsequent events, she was not entitled to an "in cash" payout of PTO. (See Findings of Fact 59-60.) Respondent's policy provided that at any time an employee moved to a new position, he/she was placed on a 90-day mandatory probation to assess his/her performance in that new position. Because Petitioner was to be placed on a mandatory 90-day probation at the time that her status changed to PRN, there was no need to also place Petitioner on probation due to the conclusions of the second investigation into her alleged misconduct. However, Ms. Streetman instructed Ms. Chaires and Ms. Roberts to meet with Petitioner to go over the various performance problems that Petitioner was experiencing, and to inform Petitioner that continued poor performance in these areas during her PRN probationary period could result in disciplinary action up to, and including, termination. This meeting took place on December 15, 2004, and led to a rebuttal by Petitioner on December 29, 2004. (See Finding of Fact 34.) Petitioner previously considered moving to PRN status during February 2004. Petitioner also claimed that in March or April 2004, she had requested to be moved back to an RN-Baylor Nurse position, and that Ann McElreath, Director of Patient Care Services/Director of Nursing, told her that she could not make such a move without suffering a 45-percent decrease in compensation. Ms. McElreath testified that she did not remember any such request from Petitioner, and that she never told Petitioner that Petitioner would suffer a 45 percent decrease in pay if she moved back to a Baylor-RN position. Ms. McElreath further testified that she would have no reason to make such a statement to Petitioner, because she was not involved in any way in setting salaries. In light of the differential between part-time and full-time pay schedules, as discussed hereafter (see Findings of Fact 38 and 58), and the complexity of Respondent Employer’s other pay categories, coupled with the complexity of Baylor status, one can see how Petitioner misunderstood her situation, but her testimony evidences a clear misunderstanding of how Respondent calculated salaries, as well as a misunderstanding of the effect of designating exempt and non-exempt positions. On December 29, 2004, Petitioner sent a memorandum to Ms. Roberts, Ms. Chaires, Ms. Streetman, and Ms. McElreath, requesting to rescind her request to move to PRN status and requesting to finish another six months as House Nursing Supervisor; complaining about “harassment” by Ms. Roberts due to Ms. Roberts’ telephone calls reminding Petitioner to attend meetings and Ms. Roberts’ “insulting” Petitioner’s professional abilities by not seeing/taking Petitioner’s side of many issues with staff. Petitioner requested to begin “dispute resolution.” At no point in this memorandum did Petitioner mention anything about alleged discrimination on the basis of age. At no point during any investigation, nor at any other time, did Petitioner allege that she was being discriminated against based on her age. She did allege harassment by her immediate supervisor, Ms. Roberts, but this was in the nature of challenging Respondent’s basic chain-of-command decisions; Ms. Roberts' not permitting her sufficient discretion; and Petitioner’s belief that only Petitioner could interpret Center for Disease Control (CDC) requirements regarding cleanliness and restrictions on the employment of coughing personnel and Occupational Safety and Health Act (OSHA) staffing requirements with regard to scheduling additional staff and instructing staff concerning these issues. Yet, Petitioner has never posed any complaint directly alleging violations of any federal or state regulation besides her “exempt” versus overtime issues, which she raised for the first time, herein. Petitioner wanted to take off December 31, 2004, and January 1, 2005 (New Year’s Eve and New Year’s Day), and she had been authorized in advance to do so. However, that authorization was rescinded when management discovered that she had already used the three weekend leaves to which she was entitled and that there might be staffing problems for the weekend period requested. (See Findings of Fact 26 and 54-57.) Petitioner had already made arrangements for her personal activities, and badgered management by e-mail to give her one or the other day off. Management ultimately let her have one of the days off, despite its “only three weekends” policy. Due to Petitioner’s on-going performance problems; management’s continuing concerns about her ability to effectively function as Nursing House Supervisor raised in the second misconduct investigation; and the patient safety concerns raised by her admission that she felt she had too many demands on her time, Respondent's management declined to allow Petitioner to rescind her request to move to PRN status. On January 5, 2005, Ms. Chaires told Petitioner, and on January 10, 2005, Ms. Chaires sent Petitioner a formal acknowledgement, of Respondent's acceptance of Petitioner's request to move to PRN status, effective January 17, 2005. On January 12, 2005, Ms. Chaires sent Petitioner an e- mail communication outlining the Respondent Employer’s pay rates for PRN status/service. Because Petitioner would be moving from a full-time House Nursing Supervisor position to a part-time PRN position, Ms. Chaires informed Petitioner that there would be a reduction in her salary from $28.00 per hour to $21.00 per hour. Ms. Chaires testified that it was customary for an employee moving from a full-time House Supervisor position to a PRN position to experience a reduction in pay. Petitioner claimed she was discriminated against because she received no merit increase at the end of 2004. She believes the lack of merit increase constituted retaliation for her obtaining the rescission of probation on September 30, 2004. Actually, Respondent’s employees undergo performance evaluations approximately every October. According to Respondent's policy, if an employee is on probation at any time during the third- quarter (July, August, September) of the calendar year, that employee is not eligible for a merit increase in connection with that year's October performance review. Respondent considered Petitioner ineligible for a merit raise at the end of 2004, because she had been on probation in September 2004; because there was a second investigation into Petitioner's performance and alleged misconduct that continued at least until December 15, 2004; and because Petitioner had requested to change her status to PRN. Because Petitioner’s probation was rescinded on the last day of September 2004, she technically was not barred from a merit increase due to being on probation in the third quarter, but she continued to be in the turmoil of some sort of disciplinary investigation until at least December 15, 2004. Respondent may have not followed the letter of its policy, but it maintained that policy’s spirit and purpose in not rewarding with a merit increase an employee who was subject to discipline at any moment. Petitioner also has not demonstrated that she was eligible for a merit increase based on meeting or exceeding performance standards. There is no credible evidence that the lack of an evaluation, the contents of an evaluation, or the lack of a 2004 merit increase in pay for Petitioner, constituted discrimination against her on the basis of her age or in retaliation for any protected activity. On January 14, 2005, a Friday, Petitioner had a friend phone Ms. Roberts on her behalf. The friend informed Ms. Roberts that Petitioner had undergone surgery that same day and would not be able to work as scheduled on the upcoming weekend. When Ms. Roberts inquired as to what kind of surgery Petitioner had undergone, the speaker would not give that information to Ms. Roberts. Ms. Roberts informed the caller that Petitioner should call Respondent to discuss her expected recovery time and her availability to return to work. Petitioner, who testified that she had listened to the foregoing conversation, described Ms. Roberts as “rude,” and the phone call may, indeed, have been acrimonious, in that the caller insisted on Petitioner’s right to medical privacy and Ms. Roberts wanted some detailed explanation why Petitioner was unable to report for work and why Petitioner was giving such short notice for her weekend shift(s), if she had not been in an accident and if she had elected the surgery in advance. At hearing, Petitioner’s explanation for her inability to work her last House Supervisor shift(s) covering January 14, 15, and 16, 2005, was that she had elected minor surgery with the intent to return to work her regular shift, but the procedure had turned out to be more debilitating than she had expected, so she could not return to work as scheduled. Also by date of January 14, 2005, Petitioner submitted an application for PRN employment with a different health care provider, Interim Healthcare. This date was a little more than a month after Petitioner had requested PRN status with Respondent; a little more than two weeks after Petitioner had sought to rescind that request; and two days after Respondent had declined in writing Petitioner's PRN rescission request. It was three days prior to Petitioner's scheduled move to PRN status with Respondent on January 17, 2005, pursuant to her accepted request. There was nothing to prohibit Petitioner from signing-up for PRN work with multiple health care providers. Because Petitioner did not show up for her last three scheduled shifts (two days) as Nursing House Supervisor, Respondent's policy required Petitioner to provide a doctor's note releasing her to return to work before Respondent would place her on PRN duty. Petitioner never provided Respondent with a doctor's note releasing her to return to work. Petitioner's testimony, that Ms. Chaires had told Petitioner on some previous occasion that as an "exempt" employee Petitioner did not need a doctor’s note for her absences, is not credible upon the record as a whole. It also is immaterial whether Petitioner's absence for her last three shifts/two days equate with "three consecutive days' absence," per Respondent’s policy on doctors’ notes, because more than three days passed without any word from Petitioner in response to Ms. Robert’s January 14, 2005, instructions by telephone. Respondent’s witnesses maintain that after January 14, 2005, Petitioner never initiated contact with Respondent in any way to discuss her availability for work, and that Ms. Streetman first phoned Petitioner in March 2005, to determine whether she was returning to work as a PRN. Petitioner claims that Respondent did not call her for any PRN work until May 2005, and therefore, in effect, Respondent constructively terminated Petitioner’s employment. There also is some divergence in testimony whether or not Respondent mailed Petitioner a package of materials with instructions that she must complete and return those materials before Respondent would call her for PRN duty, in March or at any other time. However, there is no dispute that during May 2005, Ms. Streetman, as acting interim Human Resources Director for Respondent, had telephone contact with Petitioner to coordinate Petitioner’s return to work as a PRN nurse. During this conversation, Petitioner informed Ms. Streetman that she would not return to work for Respondent as a PRN nurse under any circumstances. Petitioner stated that she would only work for Respondent if: Petitioner were returned to the position of full-time House Supervisor; Petitioner would only work a 16-hour shift on the weekends; and Ms. Streetman would set up a meeting with herself, Petitioner, Ms. Roberts, and a corporate representative of Respondent to discuss the resolution of various issues Petitioner wanted addressed. These issues were much as set out previously. (See Findings of Fact 17-19 and 35-39.) Age does not seem to have been one of Petitioner’s issues. Petitioner also indicated that she had not received the PRN packet of information that Respondent maintains it had sent her. Ms. Streetman immediately forwarded a copy of the PRN package to Petitioner. Although Petitioner provided a copy of a current CPR card to Respondent in May of 2005, she did not provide a doctor's note releasing her to return to work, her executed PRN paperwork acknowledging her duties and responsibilities as a PRN nurse, or an executed acknowledgement of Respondent's HIPPA policies and procedures, all of which Respondent required before putting Petitioner on its PRN status/phone list. On or about May 24, 2005, Ms. Streetman once again contacted Petitioner and informed her that she was unable to bring Petitioner back to work under the conditions that Petitioner had previously outlined, but Respondent was willing for Petitioner to work as a PRN nurse. Once again, Petitioner informed Ms. Streetman that she would not return to work as a PRN nurse under any circumstances. Accordingly, at that time, Ms. Streetman terminated Petitioner. During her employment with Respondent as a Nursing House Supervisor, Petitioner accrued PTO, in accordance with her position and length of service. As a Nursing House Supervisor, Petitioner should have accrued PTO at the rate of 7.69 hours of accrued PTO per two week pay period, which corresponds to the PTO accrual schedule for staff employees. However, due to a clerical error by Ms. Chaires, Petitioner actually had been allowed to accrue PTO at a rate of 9.54 hours of accrued PTO per two-week pay period, which corresponds to the PTO accrual schedule for department head employees, even though as Nursing House Supervisor, Petitioner was not a department head. Respondent's policy in 2004, permitted all Baylor, or weekend, employees of Respondent to expend PTO hours on no more than three weekends per year. Because Petitioner worked a Baylor, or weekend, schedule as Nursing House Supervisor, Petitioner was limited to using PTO for three weekends per year. Petitioner signed off on, and acknowledged, this three weekend limitation. Although this policy limited the weekend days on which Petitioner was entitled to use her accrued PTO, Petitioner was entitled to use her accrued PTO for any weekday shifts for which she was scheduled after September 30, 2004, when Ms. Roberts informed her that it was operationally necessary for her to work at least one eight-hour shift during each week. During 2004, Petitioner used 171 hours and 15 minutes of PTO, and all three of her allotted weekends off as a Baylor employee of Respondent. (See Findings of Fact 26 and 36.) Later in 2005, Respondent re-examined its PTO leave policy. In order to compete for staff with other local health care providers, Respondent changed the number of allowed weekend PTO days for its Baylor employees from three to four weekends. However, this increase in the number of weekend leaves permitted for Baylor employees did not affect Petitioner, because her request to move from full-time Nursing House Supervisor to PRN nurse had been granted, effective January 17, 2005, and the new leave policy was not retroactive. A PRN nurse occupies a part-time position. As a PRN nurse, Petitioner was not eligible to accrue or use PTO. On January 22, 2005, Petitioner’s PTO balance was 4.37 hours, meaning Petitioner had 4.37 hours of PTO available for use. The dollar value of Petitioner’s remaining PTO hours amounted to $83.09. According to Respondent's policy, an employee was eligible for a cash payout for his/her unused PTO hours upon voluntary resignation (including a voluntary employment status change) and/or involuntary lay-off if: (1) the employee had successfully completed his/her 90-day probationary period; (2) the employee provided Respondent with proper notice; and (3) the employee worked a minimum of four hours on his or her final scheduled day of work. Whether Petitioner successfully completed her probationary period as a Nursing House Supervisor is not at issue in this case. Sufficient notice of status change is not at issue in this case. (See Findings of Fact 29- 30.) Petitioner did not receive a cash payout for her 4.37 unused PTO hours on January 17, 2005, when she moved from a full-time Nursing House Supervisor position to a PRN nurse position, because she did not work the required four hours on her final scheduled day of work as a Nursing House Supervisor. Petitioner missed her final three scheduled shifts as a Nursing House Supervisor in January of 2004, and she did not work on the day that her employment with Respondent was terminated. whether one counts the status change date of January 17, 2004 or the final termination date in May 2005. (See Findings of Fact 45 and 52.) Therefore, Petitioner was not eligible for a PTO payout under Respondent Employer’s policy at the time her status changed to PRN nurse, January 17, 2005. Between January 14, 2005, and November 2005, Petitioner did not apply for any type of work so as to mitigate potential damages. After January 14, 2005, she had PRN status with Interim Healthcare, but she did not accept work from Interim until November 2005. During that period, she only attended classes and lived on her student loans. Petitioner had previously acquired at least a J.D. (law degree), two nursing degrees, and possibly another doctorate. With these credentials, she was certainly not “unemployable” during the interim of January-November 2005. Petitioner never complained to Ms. Roberts, her direct supervisor, that Petitioner believed that she was being discriminated against on the basis of her age. In 2004, Petitioner would have been 55, and Ms. Roberts would have been 51 years of age. Ms. Roberts never treated Petitioner any differently than any other Nursing House Supervisor. Ms. Roberts was not actively aware of Petitioner's age at any time during her employment. Petitioner never complained to Ms. McElreath, then- Director of Nursing and Petitioner's “two-up” supervisor, that Petitioner believed she was being discriminated against on the basis of her age. Ms. McElreath would have been 50 to Petitioner's 55 years of age at all times material. Petitioner never complained to Ms. Chaires, Director of Human Resources, that Petitioner believed she was being discriminated against on the basis of her age. No decision that Ms. Chaires made concerning Petitioner was motivated by Petitioner's age. Petitioner never complained to Ms. Streetman, Respondent's administrator, that Petitioner believed she was being discriminated against on the basis of her age. Ms. Streetman would have been 49 years of age, at all times material. No decision that Ms. Streetman made concerning Petitioner was motivated by Petitioner's age.
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 Charge of Discrimination. DONE AND ENTERED this 22nd day of September, 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 22nd day of September, 2006.
The Issue Whether Respondent, American Support, discriminated against Petitioner, Linda Dodge, in violation of the Florida Civil Rights Act of 1992 (the Act) sections 760.01–760.11 and 509.092, Florida Statutes, based upon her sex or in retaliation for participation in a protected activity.1/
Findings Of Fact American Support is a third-party telemarketing contractor for providers of cable and satellite service, with an office located in Daytona Beach, Florida. American Support is an employer within the meaning of the Act and Title VII of the Civil Rights Act of 1964, as amended. Petitioner is a 61-year-old female who was hired on August 19, 2008, as a telemarketer for Evergreen, a predecessor company to American Support. Petitioner worked in telemarketing for approximately one year, was laid off by Evergreen, but was shortly thereafter reemployed by Evergreen as a receptionist/administrative assistant. Between October 2011 and December 2011, Petitioner solely performed receptionist duties. Petitioner was replaced as company receptionist by Debora Jenkins, whom Petitioner helped train. Ms. Jenkins was hired on a full-time temporary basis as the company was transitioning to new ownership. In December 2011, Petitioner was promoted to Human Resources Assistant by Nancy Cantero, Human Resources Director for American Support beginning in November 2011. Petitioner’s duties were to initiate and process criminal background checks and credit checks on applicants, validate I-9 information received for newly hired employees, create personnel files for new employees, and manage employee personnel files. Employee personnel files contain personal identifying information including dates of birth, social security numbers, driver’s licenses, and the results of criminal background and credit checks. Both parties agree that keeping applicants’ and employees’ personal information protected is a high priority for the Human Resources Department. Ms. Cantero left American Support in February 2012 and was replaced by Steven Schaible, first as a Human Resources Generalist under contract, then as corporate Human Resources Manager in March 2012. In his capacity as Manager, Mr. Schaible supervised Petitioner and two Human Resources Recruiters: Warren Hernandez and Elaine Zoe. Ms. Zoe was a virtual recruiter operating from her home in Phoenix, Arizona. Petitioner described Mr. Schaible as very friendly and outgoing when he first became Human Resources Manager. In mid-April 2012, Mr. Schaible hired a third recruiter, Anthony Sarelli, at a rate of $17 per hour. No evidence was introduced to establish the hourly rate of either Mr. Hernandez or Ms. Zoe, but Mr. Hernandez earned less than $17 per hour. Petitioner earned $13.50 per hour as Human Resources Assistant. On Thursday, April 19, 2012, Ms. Jenkins, the temporary receptionist, gave her notice and stated that she would be starting a new job Monday, April 23, 2012. Ms. Jenkins’ last day on the job was Friday, April 20, 2012. Mr. Schaible, together with Mary Celle, Vice President of Operations, made a decision to eliminate the position of receptionist. Mr. Schaible had been unable to keep Ms. Jenkins busy full-time with receptionist duties such as answering and routing phone calls, accepting parcel deliveries, handing out job applications, and directing individuals to appropriate offices. Mr. Schaible determined Petitioner was competent to perform these duties, in light of her previous service as company receptionist. Petitioner had the day off on Friday, April 20, 2012. When she returned to work on Monday, April 23, 2012, Mr. Schaible informed Petitioner that she would take over the receptionist duties while continuing to serve as Human Resources Assistant. Petitioner was physically moved from her desk to the receptionist desk at the front of the building.2/ Neither Petitioner’s title nor her salary changed when she was moved to the receptionist desk. Mr. Schaible made efforts to reduce Petitioner’s duties as Human Resources Assistant, reassigning responsibility of managing Kahuna, a software program through which new telemarketers were assigned log-in and password information, to a payroll employee, Maryanna Hilton. Additionally, Mr. Schaible instructed Petitioner to discontinue sending personal faxes for other employees. The company had taken some steps to streamline the receptionist function to make it more efficient and less time- consuming. For example, the company moved from paper applications to an online application system. The receptionist was to direct persons inquiring about job applications to computer terminals located at the building entrance in front of the receptionist desk. Similarly, the company telephone system was changed from a switchboard to automatic routing of calls to direct extensions by department. Petitioner was instructed to continue her regular Human Resources duties, but to place personnel files in a locked Human Resources file room located ten feet from the receptionist desk when she was away from her desk. On April 24, 2012, Mr. Schaible arrived at work early and noticed a stack of employee personnel files on the receptionist desk. Petitioner was not at the desk. Mr. Schaible concluded that the files had remained on the desk overnight. The files contained copies of social security cards, driver’s licenses, and the results of criminal background checks and credit checks for newly hired employees. Mr. Schaible secured the files and addressed Petitioner about the issue later that day. Mr. Schaible stressed with Petitioner the importance of keeping personnel files secure, and offered to get her a rolling file cabinet. The next day, April 25, 2012, Petitioner sent Mr. Schaible the following e-mail: “I apologize for the files when I left . . . it won’t happen again.” The following day, April 26, 2012, Mr. Schaible found a personnel file containing personal identifying information on Petitioner’s desk. Mr. Schaible removed the file and placed it in the locked file room. Later that same day, Petitioner sent the following e-mail to Mr. Schaible: “Will make sure forms are upside down on my desk before I take a break . . . my bad.” Mr. Schaible spoke to Petitioner that same day and explained that turning files upside down on the desk in her absence was not sufficient. He explained that personnel files must be secured in the locked file room when she was not at her desk. On Monday, April 30, 2012, Petitioner was on vacation, and Mr. Schaible sat at the front desk for at least some part of the day.3/ He discovered in one of the desk drawers over 50 completed W-4 forms for current employees. Mr. Schaible discussed with Ms. Celle the need to initiate the company’s progressive discipline policy and give Petitioner a verbal warning.4/ Mr. Schaible planned to meet with Petitioner late in the afternoon on May 1, 2012, and deliver the verbal warning. Petitioner was back in the office on May 1, 2012. While Petitioner was on a break and Ms. Hilton was manning the receptionist desk for Petitioner, Mr. Schaible discovered six personnel files on the desk. Mr. Schaible removed the files and decided to modify the verbal warning to a written warning, in essence moving to the second step of the company’s progressive discipline policy. Mr. Schaible did not have a meeting with Petitioner on May 1, 2012, as planned. On May 2, 2012, Mr. Schaible planned to meet with Petitioner at 3:00 p.m. to present her with the written warning and discuss the confidentiality issues. He requested that Carrie Santana, Manager of Customer Care and Quality, attend the meeting as well. At 3:00 p.m., Mr. Schaible asked Petitioner to come to his office. She was busily working in the Kahuna program, adding two new employees at the request of a manager in the Jacksonville office. Petitioner requested Mr. Schaible to wait until she completed the log-in and password information for the new employees. Mr. Schaible became angry, told her that task would have to wait, and ordered her into his office immediately. Petitioner accompanied Mr. Schaible to his office, where Ms. Santana was waiting. Mr. Schaible confronted Petitioner with the W-4 forms he had found in the receptionist desk on April 30, 2012, as evidence of her failure to follow his directions to secure personal information of company employees. Before Mr. Schaible brought up the six personnel files he had removed from the desk the previous day, Petitioner stated, “I quit,” stood up and left Mr. Schaible’s office, then exited the building. Petitioner denies that she quit her job on May 2, 2012, instead testifying that she stated, “I quit this,” meaning she quit Mr. Schaible’s treatment toward her. However, Mr. Schaible’s testimony that Petitioner stated, “I quit” on May 2, 2012, was corroborated by Petitioner’s own e-mail dated May 3, 2012, to company President Matthew Zemon, as well as Ms. Santana’s written memorandum dated May 3, 2012, in which she memorialized the events of May 2, 2012. The evidence conflicted as to whether Petitioner returned to the office on May 2, 2012, following the disciplinary meeting. Mr. Schaible testified he did not see Petitioner after the meeting that day or the next day, May 3, 2012. Petitioner testified that she returned to the building within 30 minutes, stating first that she went into Mr. Schaible’s office to complain about his treatment of her, but later testifying that his office door was closed, so she did not go in to see him. Mr. Schaible’s testimony on this issue is credible and accepted by the undersigned. Mr. Schaible e-mailed Ms. Celle following the disciplinary meeting on May 2, 2012, informing Ms. Celle that Petitioner had resigned. Mr. Schaible then completed a Record of Termination for Petitioner showing a separation date of May 2, 2012. The evidence showed that American Support did not accept Petitioner’s resignation. In response to Petitioner’s email of May 3, 2012, Mr. Zemon e-mailed Mr. Schaible and asked him to contact Petitioner and offer her a position in inbound/outbound sales at the high end of the pay range. Mr. Schaible did so, but Petitioner did not accept the offer. Petitioner clearly considered her assignment to the receptionist desk to be demeaning. She was subjected to comments from other employees suggesting she had been demoted because she could not perform Human Resources duties. She felt that the Human Resources Assistant did not belong at the front desk. Petitioner was overwhelmed with performing Human Resources duties while assisting job applicants at the computers, answering telephone calls that were not automatically routed, accepting delivered parcels, and dealing with the myriad inquiries typically made of the receptionist at any business. Petitioner complained that it was impossible to secure applicants’ and employees’ personal information with other employees passing by the front desk on their way in and out of the building. She noted that running back and forth to the Human Resources file room every time she was required to get up from the desk -- even though it was only ten feet away -- rendered her work inefficient, if not impossible. In support of her argument that she was discriminated against based on her sex, Petitioner alleged that Mr. Schaible hired a second male recruiter out of a mixed pool of applicants, that Mr. Schaible made inappropriate comments about some applicants, and that he hired a male recruiter at a rate of $17 per hour -– higher than other Human Resources employees. Petitioner submitted no evidence to establish what comments were made about any applicant for the position of Human Resources recruiter. As to hourly rates of pay, Petitioner testified that the new recruiter was paid at a higher rate than Mr. Hernandez. Further, Petitioner did not produce any evidence as to the rates of pay for either Ms. Zoe or Mr. Hernandez. Petitioner also alleged that following her move to the receptionist desk on April 23, 2012, Mr. Schaible instructed her not to take breaks with Mr. Hernandez, not to check her work e- mails from home, and excluded her from meetings with other Human Resources employees. However, Petitioner was unable to testify with certainty that other employees were allowed to continue checking e-mails from home. Ms. Zoe, the female virtual recruiter on the team, continued to participate in Human Resources meetings. Petitioner likewise complained that she was denied a raise while Mr. Hernandez received one. On April 19, 2012, in response to Mr. Schaible’s request, Petitioner submitted a self- evaluation for Mr. Schaible’s consideration. Petitioner testified that Mr. Hernandez told her a week later that he received a raise. Petitioner then asked Mr. Schaible about the time period for a decision on her raise; Mr. Schaible responded, according to Petitioner, “Not sure about it yet.[5/]” Petitioner’s hearsay statement alone is insufficient to support a finding that Mr. Hernandez received a raise. No evidence was introduced as to the status of other employees’ evaluations or raises. Petitioner’s most-repeated claim is that Mr. Schaible treated her unprofessionally by speaking to her sharply in front of other employees, yelling when he ordered her into his office on May 2, 2012, and “slamming” the W-4 files on the desk during the disciplinary meeting. Petitioner felt his treatment of her was demeaning, harassing, and embarrassing. Petitioner presented no evidence, however, that Mr. Schaible’s treatment of her was related in any way to her status as a female. In fact, when Mr. Schaible hired a replacement Human Resources Assistant, he hired another female. Petitioner alleged that Mr. Schaible acted in retaliation, but could not articulate any event for which the retaliation was lodged. When questioned by the undersigned as to her retaliation claim, Petitioner testified, It just didn’t seem like the right thing for an office atmosphere, I should say, or speak to an employee in such a manner. So it’s just his mannerism and his attitude toward me that made me feel like it was a retaliation [sic] for something, and I couldn’t figure out what it was.[6/] Petitioner may very well have been put in an impossible work situation, treated unfairly, or forced to resign. However, there is no evidence that her treatment was related in any way to her status as a female. Petitioner did admit to improperly handling employee personnel files and applicant files on at least two occasions. She denies that leaving the six files on the desk when Ms. Hilton was covering for her break was improper because Ms. Hilton worked in the payroll department and had access to employee personal information. As to the W-4 forms in her desk, Petitioner admitted that even if the forms were left in the desk by Ms. Jenkins, Petitioner was ultimately responsible for securing those documents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 6th day of June, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 6th day of June, 2013.
