The Issue The issue is whether Respondent discriminated against Petitioner on the basis of his alleged disability.
Findings Of Fact Respondent, John G's Restaurant, Inc., has operated a restaurant located at 10 South Ocean Boulevard, Lake Worth, Florida, since 1973. Respondent began as a small business owned by John Giragos, Sr., and was essentially operated by his family including his children, Wendy Giragos Yarbrough; John "Jay" Giragos, Jr.; and Keith Giragos. In 1993, John Giragos, Sr., transferred ownership of John G's to Wendy Giragos Yarbrough, Jay Giragos, and Keith Giragos, and the restaurant has grown to the point where it now employs approximately 40 employees, a significant percentage of whom are minorities. Petitioner, Oswald Norton, worked as a cook at John G's for 12 years from October 1991 through March 20, 2003. His typical day included working the grill in the morning and the broiler in the afternoon. Petitioner was known as a hard-worker at John G's. Petitioner was known to have a strong temper on the job. On several occasions over the years Petitioner had outbursts directed at his fellow employees. Keith Giragos stepped in on many occasions to calm Petitioner down when he was having an emotional outburst in the kitchen. On March 20, 2003, Petitioner cooked breakfast, but was not feeling well in the afternoon. Petitioner sat on a stool in the kitchen because he felt dizzy and lightheaded. Petitioner believes he had told John "Jay" Giragos, Jr., that he had not been feeling well for two weeks, had blurred vision, was dizzy from time to time, and was on a restricted diet. Jay Giragos did not like his employees sitting down on the job and commented on this to Petitioner. Petitioner either threw or dropped forcefully a large bag of frozen french fries on a table in the kitchen and yelled at several employees who were working in the kitchen at the time. French fries spilled out of the bag and were on the table and the floor. Jay Giragos told Petitioner that he should "get the [expletive] out of the kitchen and go drive a truck." Petitioner clocked out of the restaurant and went home. In telling Petitioner to leave and go drive a truck, Jay Giragos meant he should go home and calm down. Mr. Giragos never told Petitioner explicitly that he was fired from his job. Petitioner was scheduled to work the following day, Friday, March 21, 2003, as well as Saturday, March 22, 2003, and Sunday, March 23, 2003. He then had Monday, March 24, 2003, and Tuesday, March 25, 2003, off. Petitioner failed to report to work on Friday, Saturday, or Sunday, as scheduled, and failed to call John G's to advise he would not be reporting to work. Accordingly, he was a "no-show, no-call" for three consecutive days following the March 20, 2003, incident. In the past, when he was ill, Petitioner either told his employer he would not be coming in the next day or he called from home to say he was ill. Jay Giragos knew that Petitioner usually suffered from one cold every year since he had been working at the restaurant. On March 25, 2003, Petitioner visited his physician, Susan Barish, M.D. At that visit, Petitioner was diagnosed for the first time as a diabetic. The parties stipulated that prior to March 25, 2003, neither Petitioner nor anyone at John G's had any knowledge of Petitioner's diabetes. The owners of John G's first learned of Petitioner's diabetes when he arrived at the restaurant on March 26, 2003. Respondent has a long history of accommodating its employees who suffer either from a disease or disability, or who require accommodation due to pregnancy. On March 26, 2003, rather than reporting to work at 6:00 a.m. as scheduled, Petitioner arrived mid-morning with his bundle of uniforms and asked for his paycheck. At this time, Petitioner informed everyone that he was suffering from diabetes. Petitioner claims that he asked for his job back, but none of Petitioner's owners recall his asking to be re-hired. After his absence on March 21-23, 2003, Jay Giragos was not interested in retaining Petitioner, even though he had not yet hired a replacement cook. According to Dr. Barish, Petitioner has obtained good control of his diabetes with oral medication and diet. Dr. Barish believes that Petitioner is not restricted from working as a cook or in any other occupation. Petitioner remained unemployed until October 2003, at which time he opened his own restaurant, which remained in business for eight months. During the time that he was unemployed, Petitioner lost about $13,000 in pay based upon his salary at John G's. Petitioner is currently employed as a cook at Flix Restaurant working 39.5 hours per week cooking breakfast and lunch, and performing essentially the same duties as he had performed at John G's.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding that the Respondent did not discriminate against Petitioner and dismissing the Petition for Relief. DONE AND ENTERED this 26th day of January, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 26th day of January, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 F. Dean Hewitt, Esquire Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A. Post Office Box 4940 Orlando, Florida 32802-4940 Stewart Lee Karlin, Esquire Law Offices of Stewart Lee Karlin, P.A. 500 West Cypress Creek Road, Suite 230 Fort Lauderdale, Florida 33309 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue addressed in this proceeding is whether Petitioner was the subject of an unlawful employment practice.
Findings Of Fact The Petitioner, Kenneth E. Brown (Brown) is a black male and is a person as defined within Chapter 760, Florida Statutes. He had been employed by Respondent Stone Container Corporation for several years. In 1989, Petitioner was employed as an electrician/maintenance repairman at the Corporation's mill plant in Panama City, Florida. Part of his duties was to perform preventive maintenance on the plant's machinery. Petitioner's work time did not include a 30 minute lunch allowed by the Company. Time cards were completed by Petitioner and turned in at the mill office. Stone Container Corporation is an employer as defined within Chapter 760, Florida Statutes. Throughout his employment the mill had a strict policy against an employee leaving work without advising his or her supervisor and working on personal property while the employee was on duty at the plant. Such violations of company policy could result in dismissal of the employee and had resulted in dismissal of both non-minority and minority employees in the past. The Corporation also had a policy on an employee keeping accurate records of the time spent on the job. Again failure to comply with this policy could result in dismissal of the employee. On October 8, 1989, Petitioner left work early to go to lunch without advising his supervisor and remained out to lunch for more than his allotted time. The Petitioner was out of the plant for one hour and 50 minutes (1:50). None of the time Petitioner took for lunch was reflected on Petitioner's time card. Petitioner's time card showed that he had worked eight full hours when he had not actually done so. Additionally, Petitioner used work time to work on his personal vehicle in the mill parking lot. Petitioner, was discharged by the Corporation a few weeks later for leaving his job without authorization from his supervisor and failing to reflect his extended absence on his time card. Petitioner made no showing that there was any relationship between his race and his termination. Likewise, Petitioner did not present any evidence that on October 8, 1989, he satisfactorily performed his job. Therefore, Petitioner has failed to prove a prima facie case and Petitioner's charge of discrimination should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations issue a Final Order dismissing Petitioners complaint. RECOMMENDED this 18th day of October, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1991. COPIES FURNISHED: Mr. Kenneth E. Brown, pro se 1014 Mercedes Avenue Panama City, Florida 32401 G. Thomas Harper, Esquire HAYNSWORTH, BALDWIN, JOHNSON AND HARPER Post Office Box 40593 Jacksonville, Florida 32203-0593 Dana Baird, General Counsel Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road, Building F (Suite 240) Tallahassee, Florida 32399-1570 Ronald M. McElrath Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue Whether Respondent committed the unlawful employment practice alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations (“FCHR”), and, if so, what relief should Petitioner be granted.
Findings Of Fact Respondent is a construction company. Petitioner is a black male who was employed by Respondent for almost six years as an electrical helper until his termination on February 2, 2015. The incident giving rise to Petitioner’s termination occurred on February 2, 2015, in Port Everglades, Florida. On that date, Petitioner was working on a project as an electrical helper. Petitioner and another employee in the area of the work reportedly violated Respondent’s “Lock out/Tag out” (“LOTO”) safety policy. LOTO is required to cutoff electrical power whenever construction, modification, testing, start-up, servicing, or maintenance is being performed on equipment or systems in which the unexpected energization, start-up, or release of stored energy, could cause injury to people or damage equipment. Any employee of Respondent whose job requires him or her to operate or use a machine or equipment on which construction, modification, testing, start-up, servicing, or maintenance is being performed under a LOTO, or whose job requires him or her to work in an area in which such activities are being performed, must comply with LOTO. Petitioner and another employee reportedly failed to comply with LOTO in an area in which they were working on February 2, 2015. Respondent considers the failure of an employee to comply with LOTO to be a terminable offense. Both Petitioner and another employee in the area were discharged by Respondent on February 2, 2015, for failing to comply with the LOTO policy. The persuasive and credible evidence adduced at hearing demonstrates that Petitioner was terminated for legitimate, nondiscriminatory reasons having nothing to do with his race, color, or national origin. Petitioner’s charge of discrimination is based on speculation and conjecture, and Petitioner failed to prove that Respondent’s reasons for his firing are a mere pretext for intentional race, color, or national origin discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 19th day of December, 2016, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 19th day of December, 2016.
The Issue On April 27, 1995, Petitioner filed a charge of discrimination alleging that Respondent discriminated against him on account of his race when it discharged him from employment. The issue for disposition in this proceeding is whether that discrimination occurred and, if so, what remedy is appropriate.
Findings Of Fact The Center for Drug Free Living Center is a not-for- profit corporation which operates substance abuse and juvenile justice programs in central Florida. It works in four counties with approximately 500 employees. The Center receives state and federal grants and contracts and also receives funds from United Way and various local governments. Approximately 5 years ago the Center expanded from a substance abuse treatment program into a program that also targets young juvenile offenders. Its largest facility for juvenile offenders is a 100-bed residential facility in Intercession City, Florida. That facility is called the Adolescent Residential Campus (ARC). Youths at the ARC are involuntarily committed for a variety of offenses, from property crimes to violent crimes against persons. ARC provides educational treatment, skills training, health care, and a broad range of residential services with the goal of returning the youths to productive lives in their communities. The entire ARC staff is trained in crises intervention. Dana Monroe is an African-American male who was hired by the Center on October 21, 1993, to work as a night monitor at the ARC. On June 15, 1994, retroactive to April 16, 1994, he was promoted to counselor and received a raise from $15,000.00 to $18,000.00. The new hire and promotion were both approved by the Center president, Donald J. "Jerry" Feulner. Bill Ferguson was the ARC program director when Dana Monroe was hired. Mr. Ferguson was a cordial, low-key professional administrator. When Mr. Ferguson left he was replaced with Scurry Miller sometime in late 1994. Mr. Miller's management style was very different from his predecessor's. As described by both superiors and subordinates, Mr. Miller was bold, abrasive, unorthodox, and strict. He began disciplining employees for matters which Mr. Ferguson had evidently ignored. Some employees found him a charismatic leader; others found him disagreeable and offensive. In December 1994, Dana Monroe received his first verbal warning for inappropriate use of physical force. A written memorandum documenting the meeting between Dana Monroe and Scurry Miller is dated December 15, 1994. A copy was provided to Finn Kavanaugh, the assistant director of ARC. The incident confirmed Mr. Kavanaugh's own observations of Dana Monroe's growing tendencies to yell and use physical intervention with clients or to inappropriately lose his temper. On March 3, 1995, Mr. Kavanaugh personally counseled Dana Monroe, by telephone, after Mr. Monroe failed to appear for work the preceeding day, March 2. Mr. Monroe's immediate supervisor, Vince Hennessy, an African-American male, had called Mr. Monroe at home when he did not appear for work and was told that Mr. Monroe was ill. The nature of the work and need for adequate staffing required that ARC employees give at least 2 hours prior notice for absenteeism due to illness. Also in the March 3 telephone conversation Finn Kavanaugh informed Mr. Monroe that Vince Hennessy had documented a written warning for Mr. Monroe's loss of professional composure with a client subsequent to the incident that was addressed by Mr. Miller in December. When asked what could be done to help him, Mr. Monroe denied that he had a problem. On March 31, 1995, Scurry Miller documented another verbal warning to Dana Monroe when two clients escaped while under his supervision. Mr. Monroe does not dispute the escape but claims that he was occupied with other clients at another location and was not responsible. On April 17, 1995, Finn Kavanaugh issued another written warning to Dana Monroe for two incidents of tardiness: April 2 and April 17. In a meeting that same date, among Mr. Kavanaugh, Mr. Miller, and Dana Monroe, Mr. Monroe became belligerent and abusive and refused to calm down. The meeting was terminated. On April 20, Scurry Miller and Finn Kavanaugh again met with Dana Monroe. Mr. Miller offered Mr. Monroe the opportunity to resign, based on his continued poor performance and lack of response to supervision. When Mr. Monroe refused to resign he was told that Mr. Miller would recommend his termination. As Center president, Jerry Feulner accepted the recommendation and Finn Kavanaugh notified Dana Monroe, by letter, that he was terminated effective April 21, 1995. There is no credible evidence that Dana Monroe's termination was based on racial discrimination. At the time of Dana Monroe's employment and continuing to the time of hearing, approximately half of the ARC employees were African-American; several of Mr. Monroe's immediate supervisors were African-Americans whom he conceded also disciplined him on occasion. Mr. Monroe heard Scurry Miller say "you guys" or "you people," but never any specific racial references. Those comments are not themselves evidence of racial animus and could be directed to any group, of any racial composition. Scurry Miller used profanity with staff and with clients and was counseled for that. White employees, including Mr. Monroe's witness, Ms. Parker, viewed him as disrespectful to all staff, not just the African-Americans or minorities. In June 1995, the Center hired Mr. Monroe's replacement, another African-American male.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Dana L. Monroe's charge of discrimination be dismissed. DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida. MARY 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1999. COPIES FURNISHED: Dana L. Monroe 5116 Hernandes Drive Orlando, Florida 32810 Kimberly A. Wells, Esquire Jackson, Lewis, Schnitzler, & Krupman 390 North Orange Avenue, Suite 1285 Orlando, Florida 32801 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 34303-4149 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 34303-4149
The Issue The issue presented for decision in this case is whether Petitioner is entitled to costs as a prevailing party pursuant to Section 760.11, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: On July 17, 2000, the Florida Commission on Human Relations forwarded to DOAH a request for formal administrative hearing filed by Anthony Cirruzzo, alleging that USAA, his employer, had discriminated against him because of his age. DOAH Case No. 00-2929 was opened and consolidated with two related age discrimination proceedings, Knopfel v. United Services Automobile Association, DOAH Case No. 00-2314, and Henry v. United Services Automobile Association, DOAH Case No. 00-2931. Mr. Cirruzzo was also one of the plaintiffs in a lawsuit filed in the United States District Court, Middle District of Florida, on July 25, 2000, claiming age discrimination against USAA. On June 21, 2000, USAA filed an answer and affirmative defenses to the petition in DOAH Case No. 00-2929. In its answer, USAA requested a judgment awarding it attorneys' fees and costs pursuant to Florida law. On November 15, 2000, counsel for Mr. Cirruzzo filed a motion for leave to withdraw as counsel. On November 30, 2000, USAA filed a motion to sever and administratively dismiss the petitions of Knopfel and Henry, pursuant to a settlement reached between USAA and those persons. By order dated December 7, 2000, the motion to sever and dismiss was granted. By order dated December 8, 2000, the motion to withdraw as counsel was granted. Also on December 8, 2000, the undersigned entered an order requiring Mr. Cirruzzo to notify this tribunal of his intent to proceed in the matter, either on his own behalf or represented by new counsel. On December 15, Mr. Cirruzzo filed a response stating his intent to proceed in the matter pro se. By Order dated December 28, 2000, the case was set for hearing on January 31 through February 3, 2001, in Tampa, Florida. On January 5, 2001, Mr. Cirruzzo filed a notice of voluntary dismissal of DOAH Case No. 00-2929. By order dated January 9, 2001, the file in DOAH Case No. 00-2929 was closed. USAA seeks costs in the amount of $1,410.00 for the transcription of the deposition of Mr. Ciruzzo taken on October 3, 2000, and the deposition of his supervisor at USAA, John Luke Carscallen, taken on October 5, 2000. The transcript of Mr. Cirruzzo’s partial deposition is 137 pages long. During the deposition, counsel for USAA questioned Mr. Cirruzzo regarding his age discrimination claim, but also as to whether Mr. Cirruzzo was discriminated against because of his gender and national origin, matters not alleged in DOAH Case No. 00-2929. Gender and national origin discrimination were alleged by Mr. Cirruzzo in a later filed complaint filed with the Florida Commission on Human Relations, and in a federal lawsuit filed in December 2000. Mr. Carscallen’s deposition contains questions as to gender and national origin discrimination, as well as the age discrimination at issue in DOAH Case No. 00-2929. At the hearing, Mr. Cirruzzo argued that the costs for these depositions should not be fully taxed in this proceeding because large portions of them dealt with issues relevant only to his federal gender and national origin discrimination case. On or about February 8, 2001, USAA filed in the federal court a request for a shortened discovery period in the federal lawsuit. The request states that DOAH Case No. 00-2929 was "nearly identical" to the federal case, that the parties had already engaged in extensive discovery of the issues in the DOAH case, and that repeating that discovery in the federal case would be a waste of time, money and judicial resources. The record does not indicate whether or how the federal court ruled on this request. Thus, USAA does not dispute that the depositions will be useful in other phases of its litigation against Mr. Cirruzzo. Nonetheless, the depositions were taken in DOAH Case No. 00-2929. As the defendant in multiple cases, USAA acted reasonably and efficiently by covering in a single deposition all the issues raised by Mr. Cirruzzo. It would be unreasonable to expect USAA to separate the motives for the discrimination from the common set of facts and persons involved in Mr. Cirruzzo’s allegations regarding his employment at USAA, and to take a separate deposition for each alleged motive. The costs for the depositions are properly a part of this case. USAA seeks an award of costs in the amount of $260.00 for service of summons and subpoenas, and $37.50 in witness fees in DOAH Case No. 00-2929. These costs were documented, reasonable, and all related to obtaining documents and records related to Mr. Cirruzzo’s claims, or to securing the presence of witnesses identified by Mr. Cirruzzo as possessing relevant information. These costs are properly part of this case. Mr. Cirruzzo testified that his voluntary dismissal of DOAH Case No. 00-2929 was premised on his understanding that USAA had agreed that it would absorb its own costs if the case were dismissed. As evidence therefor, Mr. Cirruzzo offered a "Confidential Settlement Agreement and Release of All Claims" drafted by counsel for USAA, in which USAA offered to pay a portion of Mr. Cirruzzo’s legal fees and to absorb its own fees and costs in exchange for Mr. Cirruzzo’s dropping all claims and causes of action against USAA relating to his employment. USAA did not disclaim having made this offer, but rightly pointed out that Mr. Cirruzzo had rejected it. This draft proposal provides no reasonable basis for Mr. Cirruzzo’s claim of an agreement with USAA that the company would absorb its costs.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter a final order denying USAA's petition for costs incurred in DOAH Case No. 00-2929. DONE AND ENTERED this 8th day of May, 2001, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON 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 8th day of May, 2001. COPIES FURNISHED: John W. Campbell, Esquire Constangy, Brooks & Smith, LLC Post Office Box, 1840 Tampa, Florida 33601-1840 Anthony Cirruzzo 7692 Deer Foot Drive New Port Richey, Florida 34653 Azizi M. Coleman, Clerk Florida Commission on Human Relations Department of Management Services 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Department of Management Services Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner on the basis of her race in violation of the Florida Civil Rights Act, when Petitioner was an employee of Respondent.
Findings Of Fact From 1991 until she resigned in November 2005, Petitioner Gloria J. Bias-Gibbs ("Bias-Gibbs") worked for Respondent Jupiter Medical Center ("JMC") in several different positions, which were mostly clerical in nature. Starting in 2001, and continuing throughout the time period relevant to this case, Bias-Gibbs' job was to perform "chart prep" in the Same Day Surgery unit, which is within JMC's Surgical Services Department. As a chart prep employee, Bias-Gibbs' task was to assemble patients' charts for the medical personnel. During the time she held the chart prep position, Bias-Gibbs was the only person who occupied it. Volunteers had performed the chart prep duties before Bias-Gibbs assumed them, and, after she resigned, volunteers once again were given the chart prep duties to perform. Bias-Gibbs' immediate supervisor in Same Day Surgery was Janet Sparks, the Clinical Manager. Ms. Sparks, in turn, reported to Beth Suriano, the Director of Surgical Services. Ms. Sparks and Ms. Suriano are white women; Bias-Gibbs is a black woman. Not long after she began her tenure as a chart prep, Bias-Gibbs began to believe that she was a victim of racial discrimination at work. In particular, she felt that Ms. Sparks was a racist who repeatedly took adverse action against her solely because she is black. The many allegedly discriminatory acts about which Bias-Gibbs presently complains can be divided into three main categories: (a) denials of her requests for promotion or transfer to another position; (b) Ms. Sparks' conduct; and (c) refusals to provide training, most notably in relation to a computer program known as "Fast Forms," about which Bias-Gibbs alleges she received inadequate instruction. The Requests for Transfer. Between April 16, 2001, and February 22, 2005, Bias-Gibbs submitted sixteen job transfer applications, seeking positions at JMC that she believed were more in keeping with her qualifications than chart prep. None of these applications was approved. Bias-Gibbs does not know the identities, racial characteristics, or qualifications of any of the persons whom JMC hired for the sixteen positions Bias-Gibbs sought. Because she applied for these positions and did not get them, however, Bias-Gibbs feels that she was discriminated against. In addition, Bias-Gibbs once sought to transfer to another position in the Surgical Services Department. The job of Patient Access Specialist was given, however, to another employee of JMC, Joyce Stokes, who assumed the position some time in 2004. Unlike Bias-Gibbs, Ms. Stokes (who happens to be white) had taken a medical terminology course and examination. Because proficiency in medical and surgical terminology is desirable for the position in question, Ms. Stokes was more qualified than Bias-Gibbs to be a Patient Access Specialist. Ms. Sparks' Conduct. Bias-Gibbs' complaints about Janet Sparks, whom she calls a "racist," revolve around allegations that Ms. Sparks forced Bias-Gibbs to sit in a back room while on the job; made racially insensitive remarks concerning Bias-Gibbs' appearance (specifically, her hair); refused to transfer Bias-Gibbs to a different position in the Surgical Services Department (the incident discussed above); kept an overly watchful eye on Bias- Gibbs while she was working; and generally declined to give Bias-Gibbs more challenging assignments in addition to chart prep. Work Station. Bias-Gibbs worked in a room apart from the secretaries in the unit. Her work area was neither "on the floor" nor in public view. While she believes that this "back room" placement was discriminatory, Bias-Gibbs' job as a chart prep employee did not require her to sit "out front." There is no evidence that Bias-Gibbs was singled-out for different treatment regarding her work station. To the contrary, after Bias-Gibbs resigned, the chart prep work continued to be done in the same room where Bias-Gibbs had labored, with the same supplies that were available to Bias- Gibbs while she was employed. Insensitive Remarks. Bias-Gibbs does not believe that she was harassed because of her race. She does complain, however, about derogatory remarks she attributes to Ms. Sparks. According to Bias-Gibbs, when Bias-Gibbs wore her hair in braids to work, Ms. Sparks made comments to the effect that she (Bias- Gibbs) looked like Whoopi Goldberg. In addition, Ms. Sparks once told Bias-Gibbs that she wished she (Ms. Sparks) were black because, if she were black, then it would be easier to take care of her hair. The undersigned takes Bias-Gibbs at her word that these quips were offensive and hurtful to her (although she never told Ms. Sparks that the comments at issue made her uncomfortable). To infer, however, that racial animus motivated these comments (there being no direct evidence of discriminatory intent) would require that the words be given a very mean connotation (and the speaker absolutely no benefit of the doubt) because, viewed objectively, the statements appear to be, at worst, inconsiderate, unkind, or rude. Ultimately, there is insufficient evidence upon which to base a finding (or to infer) that these remarks were anything but workplace banter of the sort that anti-discrimination laws are not designed to reach. "Excessive" Supervision. Bias-Gibbs believes that Ms. Sparks was hypervigilant about watching her work, which made Bias-Gibbs nervous or uncomfortable. Although she attributes this watchfulness to racism, Bias-Gibbs conceded, when pressed, that it was not discriminatory for her supervisor to keep an eye on her at work. There is no evidence, in any event, that Ms. Sparks subjected Bias-Gibbs to closer scrutiny than other employees, much less that she treated Bias-Gibbs differently in this regard based on her race. Underutilization. As an overarching complaint about Ms. Sparks, Bias-Gibbs believes that her supervisor generally refused to allow Bias-Gibbs to perform the kind of work that would make full use of her skills. At most, however, the evidence shows that Ms. Sparks and Bias-Gibbs had different opinions about Bias-Gibbs' potential for taking on other responsibilities. There is no evidence that Ms. Sparks' opinion, which was that Bias-Gibbs should continue working in chart prep, was racially based. Inadequate Training. Bias-Gibbs felt that she was discriminated against because other individuals were given more training than she was on using the Fast Forms computer program. Bias-Gibbs did receive instructions on using Fast Forms, however, which were sufficient to enable her to look up patients' names in the database——the only function of the program that was relevant to, and helpful in the performance of, her duties. The secretaries who used Fast Forms were provided more training in the use of the program, it is true, but their duties were different than Bias- Gibbs's duties, and hence they used Fast Forms for reasons in addition to retrieving names. The secretaries, in short, were provided more training than Bias-Gibbs, not because the latter is black, but because, as secretaries, they needed more training than Bias-Gibbs. The bottom line: there is no persuasive evidence that Bias-Gibbs was given inadequate training——period. At all times during Bias-Gibbs' tenure as an employee of JMC, the hospital had an anti-discrimination policy, an anti- harassment policy, an equal employment policy, and a grievance policy, which were available to all employees. Bias-Gibbs was aware of these policies, yet she never made any allegations of racial discrimination or harassment, disparate racial treatment, or racial comments to Ms. Sparks, Ms. Suriano, or anyone else. Similarly, she never used the grievance procedure to complain that she had been denied a promotion or transfer because of her race. Bias-Gibbs resigned her position at JMC in November of 2005. Although she now maintains that she felt compelled to resign her position because she was denied opportunities to advance at the hospital (and because she needed a job that paid more money), at the time Bias-Gibbs informed others that she was leaving her position in Same Day Surgery because she had gotten a better-paying job at the post office. Bias-Gibbs filed a Charge of Discrimination against JMC at some point on or after July 19, 2006. (She signed the charging document on September 22, 2006, but there is an inscription on the instrument indicating that it was filed on July 19, 2006. There is no evidence explaining this discrepancy.) Ultimate Factual Determinations Taken as a whole, the evidence in this case is either insufficient to establish that JMC discriminated unlawfully against Bias-Gibbs on the basis of her race; or it proves, affirmatively, that JMC did not, in all likelihood, unlawfully discriminate against her. Either way, it is determined, as a matter of ultimate fact, that JMC did not violate the civil rights laws in its treatment of Bias-Gibbs while she was an employee of JMC.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Bias-Gibbs' Petition for Relief as partially time- barred, and alternatively (and additionally) finding JMC not liable on the merits for racial discrimination. DONE AND ENTERED this 24th day of April, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2008.
The Issue The issue in this proceeding is whether the Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Respondent Republic Parking System, Inc., operates paid parking lots and facilities at a variety of public and private locations. One of its locations is at the Northwest Florida Beaches International Airport in Panama City, Florida. As part of its operations, Republic maintains an equal- employment opportunity, anti-sexual harassment and non- discrimination policy. The policy also prohibits harassment at work by anyone, including supervisors, co-workers or customers. The evidence showed that the policy is disseminated to its employees in its Employee Handbook and is consistently enforced by the company. Under its Employee Handbook the company generally follows a progressive-disciplinary policy for violations of company policy, with increasing penalties ranging from reprimands to dismissal. However, certain violations of policy, such as use of abusive language or being discourteous to customers, supervisors or fellow employees, may result in immediate dismissal. In October of 2010, Petitioner, Joni Barkley, an African-American, was employed by Respondent as a parking booth cashier at the international airport in Panama City. Upon employment, Ms. Barkley received a copy of Republic Parking System, Inc.’s Employee Handbook and signed an acknowledgement of her receipt of that handbook. She was aware of the company’s policy regarding discrimination and harassment. During her tenure and prior to the end of December 2013 or early 2014, Ms. Barkley had no complaints of racial discrimination or harassment towards her. On the other hand, she had been verbally counseled about a remark she made that co- employees had interpreted as racially motivated. Respondent also had been disciplined for repeated tardiness. Additionally, during her employment, Ms. Barkley was known for misinterpreting statements of others and believing innocent statements or actions by others were directed at her. Towards the end of December 2013 or early January of 2014, one of Ms. Barkley’s co-workers, Eva Bishop, a Caucasian, showed her co-workers, including Ms. Barkley, several photographs and a video of her trip to Alaska. Among the photos she showed to everyone was a picture of a Ketchikan Native American clan house. The picture depicts a rustic blue wooden structure with several Alaskan Native American symbols painted on it to form a face with an open mouth for the front entry. Three large Native American totem poles dominate the front of the structure and are placed at the front corners and in the middle over the front entry way to the structure. When Ms. Barkley was informed that the photo was of a clan house, she mistakenly believed that the photo was related to the Ku Klux Klan and thought Ms. Bishop was referring to a “Klan” house. Unfortunately, Ms. Barkley maintained the correctness of her mistaken belief even though several co- workers who had seen the same picture tried to explain the picture to her. Through January of 2014, Ms. Barkley and Ms. Bishop had several arguments and animated discussions. Ms. Barkley insisted that Ms. Bishop was a member of the Ku Klux Klan and accused her of the same, with her rank in the Klan growing from member to president of the local chapter. She also insisted that the picture Ms. Bishop had shown Petitioner was related to the Ku Klux Klan. Due to her mistaken beliefs, Ms. Barkley became very anxious and fearful of Ms. Bishop. On February 5, 2014, Ms. Barkley first reluctantly complained about Ms. Bishop to Kim Hall, Republic’s Assistant Manager and Ms. Barkley’s immediate supervisor. She complained that Ms. Bishop had used racial slurs in talking with her and had discussed with her the Ku Klux Klan. Ms. Hall immediately took Ms. Barkley to Kelly Blum, Republic’s General Manager at the Panama City airport. Ms. Barkley made the same complaint, but indicated that she “loved” Ms. Bishop and did not want to see her fired. Shortly thereafter, Ms. Blum met with Ms. Barkley and Ms. Bishop together, and told them that they could not fight with each other at work. At the conclusion of the meeting, Ms. Barkley and Ms. Bishop hugged, apologized to each other, said they loved each other and told Ms. Blum they could work together. There was no evidence that demonstrated the manner in which Ms. Blum investigated or handled Ms. Barkley’s complaint was intimidating, harassing or discriminatory. Ms. Blum also stated that she would try to avoid scheduling Ms. Barkley and Ms. Bishop on the same shift. However, due to limitations in personnel, Ms. Blum could not ensure that the two employees would not be on the same shift. Unfortunately, sometime after this conversation, Ms. Barkley worked two hours with Ms. Bishop because Ms. Bishop’s replacement for the next shift was late or couldn’t make it in to work due to bad weather. The manager that day offered to stay with Ms. Barkley, but Ms. Barkley said it would be alright and that she could work with Ms. Bishop present. The evidence did not demonstrate that the one-time, unanticipated shift overlap was in retaliation for Ms. Barkley’s earlier complaint. Over the next several days and notwithstanding their mutual apologies, Ms. Barkley and Ms. Bishop continued to argue with each other, create a hostile work environment and use abusive, profane language. Eventually, Ms. Barkley called the F.B.I. and continued to accuse Ms. Bishop of being a racist and a member of the Ku Klux Klan. At some point, Ms. Barkley insisted on showing Ms. Bishop some books about the Ku Klux Klan, again accused Ms. Bishop of being a member of the Ku Klux Klan, and indicated that Ms. Bishop’s connection to the Klan scared her. Ms. Bishop told Ms. Barkley, in essence, that the KKK hung niggers, and asked why Ms. Barkley thought she would take a similar action. Ms. Barkley responded and, in essence, referred to Ms. Bishop as a white cracker bitch who would hang niggers from trees and that she better hang her with her pearls on. As a consequence, Ms. Blum looked into the continued behavior and reported her concerns about Ms. Barkley’s and Ms. Bishop’s behavior to her supervisor, Regional Manager Linda Kelleher. Ms. Kelleher requested that Republic’s human resources department investigate the matter. Again, there was no evidence that demonstrated this inquiry was intimidating, harassing or discriminatory towards Ms. Barkley. Jan Veal, Republic Parking System, Inc.’s Director of Human Resources, interviewed all witnesses, including Ms. Barkley, Ms. Bishop, Ms. Williams, Ms. Hall, Ms. Blum, and Ms. Kelleher. During the investigation, Ms. Bishop admitted using racial epithets towards Ms. Barkley. Based upon Ms. Bishop’s admission, Ms. Bishop was suspended, with pay, pending the conclusion of the investigation. Shortly thereafter, following Ms. Veal’s interview with Ms. Barkley and the other witnesses’ report of the racial remarks of Ms. Barkley, Ms. Barkley also was suspended with pay, pending the conclusion of the investigation. Such actions were reasonable since both Ms. Bishop and Petitioner were at fault in their behavior towards each other. On February 25, 2014, Republic Parking Systems, Inc., terminated Ms. Barkley’s employment, having concluded that she used offensive and threatening language of a racial nature including the use of profanities and creation of a hostile work environment in violation of company policies. Republic Parking System, Inc., terminated Ms. Bishop’s employment on the same day for the same reasons. As such, the evidence was clear that both employees engaged in similar behavior and were disciplined in the same manner. Both were terminated. Based on these facts, Petitioner failed to establish that Respondent discriminated against her based on race or retaliation when it terminated her from employment. As such, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter an Order dismissing the Petition for Relief. DONE AND ENTERED this 4th day of August, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 2015. COPIES FURNISHED: Joni Marie Barkley 15221 Banks Drive Southport, Florida 32409 (eServed) Jan Veal Republic Parking System, Inc. Suite 2000 633 Chestnut Street Chattanooga, Tennessee 37450 James Scott McDearman, Esquire Grant Konvalinka and Harrison, P.C. 633 Chestnut Street Chattanooga, Tennessee 37450 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Petitioner was terminated from her position with Respondent as a picker/stock keeper on or about September 26, 2001, on the basis of her race (African-American) and/or gender (female), in violation of Section 760.10(1)(a), Florida Statutes (2001).
Findings Of Fact Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by Respondent as a temporary employee to perform the job of picker/stock keeper at its Parts Distribution Center in Orlando, Florida, during the time period from September 12, 2001, to September 26, 2001, the date she was terminated. Petitioner worked a total of 14 days for Respondent. Petitioner is an African-American female, a member of a protected class. The Parts Distribution Center for Respondent in Orlando, Florida, is a facility that holds automotive parts that are then shipped to dealerships. All temporary employees at Respondent are at-will employees. Temporary employees are told during their orientation that they are at-will employees who can be terminated at any time, for any reason. Temporary employees at Respondent are only eligible to work 119 days. Most temporary employees are not offered full time permanent employment. There is no guarantee that a temporary employee will receive an offer to work as a permanent employee. Petitioner was hired to perform the job of picker/stock keeper. A picker/stock keeper takes parts off of shelves to be shipped to dealerships. Petitioner participated in an orientation, and Petitioner received the same training as every other temporary employee. Petitioner worked the night shift. Respondent maintains written Standards of Conduct to which all employees must adhere. The Standards of Conduct apply to both temporary and permanent employees. The Standards of Conduct were in effect in September 2001, when Petitioner worked as a temporary employee. All employees are given a copy of the Standards of Conduct when they are hired. Petitioner received a copy of the Standards of Conduct when she was hired, and the Standards of Conduct are posted throughout the plant. The Standards of Conduct provide that an employee's "[f]ailure or refusal to follow the instructions of supervision" is grounds for "disciplinary action up to and including discharge." The supervisors who worked at Respondent's Distribution Center during Petitioner's employment were Richard Alvarez ("Alvarez") (Hispanic male), Lenier Sweeting ("Sweeting") (Black male), and Joe Bromley (White male). Alvarez was temporary supervisor for the night shift from June 2001 until December 2001. Alvarez was Petitioner's direct supervisor. Sweeting was a supervisor in September 2001. Sweeting was chosen to become a supervisor by Hal McDougle, a Black male. Sweeting was the supervisor on the day shift when Petitioner worked at the Distribution Center. His shift ended at 3:30 p.m. but he stayed in the building to help with the transition to the night shift. Alvarez would normally walk Sweeting to the front door to discuss what had occurred during the day shift. On September 25, 2001, Sweeting was walking past the bathroom with Alvarez and heard two women talking and laughing in the bathroom. Alvarez recognized one of the voices to be that of Petitioner. Alvarez had heard rumors that Petitioner had been taking a lot of extended breaks and told Sweeting about the complaints he had been receiving. Alvarez received at least two complaints, and possibly four or five, from Petitioner's co- workers that she was taking extended breaks and not on the floor working. Alvarez wanted to wait and see how long Petitioner remained in the bathroom. Sweeting and Alvarez waited outside the bathroom until they saw Petitioner exit the bathroom with Maria Dejesus. Alvarez believes that he and Sweeting waited outside the bathroom for approximately ten to 15 minutes. Alvarez told Petitioner that she had been taking an extensive break and needed to go back to work. Sweeting witnessed Alvarez tell Petitioner to go back to work in a professional tone. Alvarez also told Petitioner that he had heard rumors that she was taking extended breaks. He told her that since he saw it first hand, he wanted to mention it to her and let her know it would not be tolerated. Petitioner asked Alvarez which bathroom she could use in a very sarcastic tone. Sweeting observed Petitioner ask this question. Alvarez told Petitioner that he did not care which bathroom she used, as long as she did not abuse the break period. Petitioner proceeded to ask Alvarez in a sarcastic tone which bathroom she could use several times throughout the night. Despite Petitioner's sarcastic tone, Alvarez answered her questions professionally. Alvarez never asked Petitioner how old she was, whether she was married or how many children she had. Sweeting asked Maria Dejesus to go back to work as well. Sweeting and Alvarez have told other employees to go back to work when they have observed employees taking extended breaks. They have spoken to employees of both genders and all racial groups. On September 26, 2001, Alvarez assigned Petitioner to the "fast rack" area. Petitioner had never previously worked in the fast rack area. Alvarez personally instructed Petitioner in how to perform the assignment. Alvarez told Petitioner to pick the parts and put them on a rack float. After Alvarez gave Petitioner her instructions, Petitioner began her assignment. Petitioner never asked Alvarez any questions about her assignment or expressed that she was having difficulty with the job. Wanda Carithers ("Carithers") saw Petitioner using the wrong equipment to complete her assignment. Petitioner was using a bin cart instead of a float to pick the items. Alvarez noticed that Petitioner's assignment was running late. Alvarez walked over to the fast rack area and asked Petitioner two questions. Alvarez asked Petitioner whether she was going to be able to pick the whole assignment using the bin cart that she was using. Petitioner did not respond to or acknowledge Alvarez. Alvarez then asked Petitioner if she was almost done with her assignment. Petitioner rolled her eyes and said, "Your first question, yes, second question, no." Alvarez was very uncomfortable with Petitioner's response and demeanor. Alvarez told Petitioner that perhaps they had gotten off on the wrong foot. Petitioner asked Alvarez something about her union rights. Alvarez saw Petitioner's co-worker, Carithers, who was a union representative, driving by. Alvarez asked Carithers to explain to Petitioner her union rights as a temporary employee. During this conversation, Alvarez tried repeatedly to talk to Petitioner and on each occasion, Petitioner cut Alvarez off and would not let him speak. When Alvarez realized that he was not making any progress with Petitioner, he asked her to go to the warehouse office so that they could talk to a senior supervisor, Al White ("White") (Black male). Alvarez hoped that they could work out their differences with White's help. Alvarez started to walk approximately ten steps. He turned back and realized that Petitioner was not moving towards the office. Alvarez walked back to Petitioner and asked her a second time to go to the office. Once again, Petitioner did not move. Alvarez told Petitioner, "This is your last chance; go to the warehouse office." Once again, Petitioner did not move. Alvarez, after asking Petitioner to go to the office three times with no response, told Petitioner that her services were no longer needed, that she should gather up her things, and that she was terminated. Alvarez terminated Petitioner for her failure to follow a direct order of her supervisor in violation of Respondent's Standards of Conduct No. 6. Petitioner refused to move even after she was terminated. Petitioner asked Alvarez to reconsider, and he said that he had made up his mind. Alvarez started to walk away. When he saw that Petitioner was still not moving, he told her that he could call law enforcement to escort Petitioner off the property. Alvarez, and ultimately Petitioner, walked to the office. White asked Petitioner if she knew why she was terminated. Petitioner never asked to have someone from the union with her in the office until after she was terminated. At that time, Alvarez and White complied with her request and paged Rodney Witt, a union official, to come to the office. Carithers observed Petitioner fail to follow Alvarez's instruction to go to the office. Carithers recalls that Petitioner told Alvarez that Petitioner did not have to listen to Alvarez. Amber McPherson heard Alvarez call Petitioner to the office several times. Petitioner did not respond to Alvarez's requests. Sweeting has never experienced discrimination from management while working for Respondent for over seven years. Sweeting has never heard Alvarez make any gender or race-related comments or slurs. Sweeting has never heard any management employee at Respondent make a gender or race related comment or slur. Alvarez did not consider Petitioner's gender or race when he made the decision to terminate Petitioner. In addition, Petitioner lied on her application to Respondent and failed to indicate that she had been terminated from a prior employment. Petitioner had been terminated from Walt Disney World Company for theft. If Respondent had known that Petitioner had lied on her application or had been terminated for theft from a prior employer, it would not have hired her. Had Respondent learned that she had lied on her application after she was hired, she would have been terminated. Petitioner had no idea why she thinks she was treated differently based upon her gender or race. She just had a "feeling" or a "hunch." Petitioner had no evidence or information that her termination was based on her gender or race. Petitioner had no idea why she was terminated. She did not believe that it was because she failed to follow a command. Petitioner had no idea whether her supervisor, Alvarez, considered her gender or race when he terminated her employment with Respondent. Petitioner bases her claims that Respondent discriminated against her on the fact that there is general racism and sexism in society. Petitioner checked the "sex" and "race" box on her FCHR Charge of Discrimination simply because she is female and African-American. Petitioner felt as though she was harassed but cannot articulate a reason for it.
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 which DENIES the Petition for Relief. DONE AND ENTERED this 8th day of April, 2003, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2003. COPIES FURNISHED: Stephanie L. Adler, Esquire Susan K. McKenna, Esquire Jackson Lewis LLP 390 North Orange Avenue, Suite 1285 Orlando, Florida 32801 Dorothy J. McCrimmon 5361 Commander Drive Number 304 Orlando, Florida 32822 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed the unlawful employment practices alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact At all times material to this proceeding, Petitioner, an African-American female, was employed by Respondent as a clerk coordinator in its Section 8 housing1/ department. As established during the final hearing, Petitioner's duties required her, among other things, to field inquiries concerning rental assistance, maintain records, receive applications, and, of particular importance here, conduct inspections of rental properties. As Petitioner was responsible for transporting herself to the inspection sites (at first in her personal automobile and, beginning in April 2012, in a county-issued vehicle), her written job description mandated that she hold a valid driver's license. Petitioner's term of employment, which began in 1990, proceeded largely without incident until September 19, 2013. On that occasion, Tom Baker——Petitioner's supervisor and the head of Respondent's Section 8 department——was engaged in discussions with the DeFuniak Springs Housing Authority concerning the development of a memorandum of understanding between the two agencies. At one point during the talks, DeFuniak Springs' housing director suggested that Mr. Baker confirm the status of his employees' driver's licenses. Finding the suggestion well taken, Mr. Baker immediately asked Brady Bearden, Respondent's loss control manager, to perform driver's license checks of the employees in the Section 8 department. Later in the day on September 19, Mr. Bearden informed Mr. Baker that Petitioner's license was not valid (due to her failure to maintain liability insurance), and that Petitioner's driving privilege had been continuously suspended since January 2, 2013——a period of more than eight months, during which Petitioner had operated a county-owned vehicle on numerous occasions. Although eager to address this issue with Petitioner, Mr. Baker was unable to do so until the morning of September 24, 2014, when Petitioner returned from a vacation. During the discussion that ensued, Petitioner erroneously insisted that she did, in fact, hold a valid driver's license. Upon being shown documentation that refuted her claim, Petitioner stated that she would clear up the matter with the clerk of court and return to work later in the day. Over the course of the next few hours, Petitioner obtained liability insurance and took the necessary steps to reinstate her driver's license. Later that afternoon, Petitioner returned to work and explained that she had trusted her daughter to secure automobile insurance for the both of them; that her daughter had failed to do so; and that she (Petitioner) had no knowledge of the suspension until Mr. Baker informed her as much. Predictably, this explanation did not sit well with Mr. Baker, who was troubled by Petitioner's acute lack of diligence in maintaining a valid driver's license——as noted above, a prerequisite of her position as a housing clerk coordinator. Shortly thereafter, Mr. Baker recommended to Respondent's human resources department that Petitioner's employment be terminated for violations of policies 31.4(A), 31.4(C), and 31.5(A), which provide: POLICY A. Any employee who loses the use of his/her driving privileges, whether knowingly or unknowingly, for any reason other than a temporary medical/disability condition, will be subject to disciplinary action, or transfer to another job classification, if available, for failing to meet the minimum qualifications of the job description. * * * C. Driving a County vehicle . . . without an appropriate valid driver's license . . . or failure to report the loss or use of a valid license, whether by suspension, revocation, or cancellation is subject to disciplinary action up to and including termination. POLICY A. Any employee who loses the use of his/her license shall report that fact to his/her immediate supervisor at the earliest possible time, and not later than the beginning of the next work shift. Failure to do so may result in disciplinary action. (Emphasis added). During the final hearing in this cause, Petitioner offered no direct evidence in support of her claim of race discrimination. Instead, Petitioner attempted to prove her case circumstantially by identifying two supposed comparators, Kendalleigh Marse and Jerry Tuggle, both of whom, according to Petitioner, were not terminated by Respondent despite their commission of similar misconduct. This approach fails, for neither Ms. Marse nor Mr. Tuggle is a valid comparator for the purposes of establishing a prima facie case of race discrimination. First, the undersigned is not persuaded that the driving privileges of the purported comparators were ever actually suspended.2/ Even assuming, however, that the record permits such a finding, it is evident that the suspensions were relatively brief, particularly when compared to Petitioner's.3/ Moreover, again assuming that the driving privileges of Ms. Marse and Mr. Tuggle were suspended for any period of time, there has been no showing that either employee ever operated a county-owned vehicle without a valid license. In any event, the record makes pellucid that, at the time of Petitioner's termination, no one in Respondent's employ was aware of any issues concerning the driver's licenses of Ms. Marse or Mr. Tuggle.4/ Even if the evidence were sufficient to raise an initial inference of impropriety, which it is not, Petitioner has failed to prove that Respondent's proffered reason for the firing——i.e., driving on a suspended license in a county-issued vehicle for more than eight months——is a mere pretext for race discrimination. On the contrary, the undersigned credits Mr. Baker's testimony that race placed no role whatsoever in Petitioner's termination.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief. DONE AND ENTERED this 1st day of December, 2014, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 1st day of December, 2014.
