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 case is whether the Respondent discriminated against the Petitioner on the basis of age for the reasons stated in the Charge of Discrimination and Petition for Relief in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact The Petitioner was born in 1953. At the time of the events which form the basis for his claim, he was more than forty years old. The Petitioner was born in Cuba and spent most of his life in Cuba. The Petitioner came to the United States of America approximately two years before the events which form the basis for his claim. The Petitioner speaks fluent Spanish, but does not speak English. In October of 1999, the Petitioner was hired by the City of Hialeah Gardens as a laborer in the Parks Department at a pay rate of $6.50 per hour. The Petitioner is still employed by the City of Hialeah Gardens as a laborer in the Parks Department at a pay rate of $6.50 per hour. The Petitioner's pay rate has never been changed during his employment with the City of Hialeah Gardens. During his employment with the City of Hialeah Gardens, the Petitioner has never held either the position of "Maintenance Supervisor" or the position of "Assistant Parks Director." During his employment with the City of Hialeah Gardens, the Petitioner has never been demoted from either the position of "Maintenance Supervisor" or the position of "Assistant Parks Director." The Mayor of the City of Hialeah Gardens has the sole authority and responsibility to make employment decisions. The Mayor appointed Nivaldo Rodriguez (Rodriguez) to the position of Assistant Parks Director. At the time of the appointment, Rodriguez was in his late twenties. At the time of the appointment, Rodriguez spoke fluent English and Spanish. At the time of the appointment, Rodriguez was a friend of the Mayor and the Mayor was aware of his qualifications for the position. The Mayor appointed Rodriguez to the position of "Assistant Parks Director" because he thought he was qualified for the position. The Mayor also thought that the Petitioner was not qualified for the position because, among other things, the Petitioner did not speak English. It is necessary to be able to speak English in order to fulfill all of the duties of the position of "Assistant Parks Director." The Mayor had credible non-discriminatory reasons to appoint Rodriguez as "Assistant Park Director," and not to appoint the Petitioner to that position. There is no credible evidence that the Mayor's reasons for appointing Rodriguez were pretextual. Age was not a factor in the decision to appoint Rodriguez rather than the Petitioner. The evidence regarding the Respondent's hiring and termination practices does not establish any pattern of age based discrimination.
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 the petition in this case and denying all relief sought by the Petitioner. DONE AND ENTERED this 3rd day of January, 2002, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2002.
The Issue Whether the Petitioner, a member of a protected class, was terminated from his employment with the Respondent in the Hospitality Department at the Grand Floridian Hotel on or about March 18, 1993 on the basis of his national origin (Hispanic-Dominican Republic), in violation of Section 760.10(1)(a), Florida Statutes (Supp. 1992).
Findings Of Fact The Respondent is an employer under the Florida Civil Rights Act of 1992. The Petitioner was employed by the Respondent at its Grand Floridian Hotel as a valet/greeter/bellman in the Hospitality Department during the relevant period of time, including March of 1993. The Petitioner is of Hispanic origin from the Dominican Republic and is a member of a protected class. In approximately October of 1988, the Petitioner began his employment with the Respondent at the Contemporary Hotel as a valet/greeter. In April of 1989, the Petitioner received a written reprimand for not logging in a piece of luggage. The Petitioner did not grieve the April 1988 written reprimand. In May of 1989, the Petitioner transferred to the Respondent's Grand Floridian Hotel, where he was a valet/greeter/bellman. In February of 1990, the Petitioner received an oral reprimand for three separate incidents of improperly logging luggage. 9. The Petitioner could not recall if he grieved the February, 1990 oral reprimand. In August of 1990, the Petitioner again received an oral reprimand, this time for mixing up luggage while loading it into vehicles. The luggage had to be mailed to each rightful owner at the Respondent's expense and caused an inconvenience to the guests. The Petitioner could not recall if he grieved the August 1990 oral reprimand. In December of 1991, the Petitioner mishandled luggage by failing to tag all of a guest's bags. In May of 1992, the Respondent's management discussed with the Petitioner his failure to tag a piece of luggage. In July of 1992, the Petitioner received a verbal reprimand for failing to log in a guest's luggage. The Petitioner's verbal reprimand in July of 1992 was the result of a direct complaint by a guest, who was required to search for a piece of his own luggage in the Hotel's storage room. The Petitioner could not recall if he grieved the July 1992 verbal reprimand. In September of 1992, the Petitioner received a verbal reprimand for approaching a guest to discuss splitting a tip with a bellman, an impermissible practice. The Petitioner was not suspended for this incident. In December of 1992, the Petitioner received a written reprimand for failing to follow proper procedures regarding a guest's luggage on two separate occasions. The Petitioner did not grieve the December 1992 written reprimand. The Respondent decided not to consider the two incidents in December of the Petitioner's luggage-mishandling as separate incidents for progressive discipline purposes, even though such action was permissible under the collective bargaining agreement. The Respondent's decision not to consider the two December 1992 incidents separately for progressive discipline purposes was based upon the Petitioner's length of service and his good performance in other areas. The Petitioner had a good attitude, had good people skills, and had received good guest comments during the course of his employment. In December of 1992, the Petitioner understood that he was in the progressive discipline process. In January of 1993, the Respondent met with the Petitioner and offered to remove him from the responsibility of handling luggage by putting him in a non-tipped, dispatcher position. Also, in January of 1993, the Respondent and the Petitioner's union representative were working together to preserve the Petitioner's job. The Petitioner was reminded by his union representative about his previous reprimands and that one more incident would cause his termination. The Petitioner was told by his union representative that the purpose of moving him to a dispatcher position was to get him away from the luggage-handling area. The Petitioner was told that if he remained free of similar reprimands for one year, he could return to the tipped position of valet/greeter with no loss of seniority. After initially refusing the dispatcher position, the Petitioner accepted. The Petitioner was given the shift that he requested when he was transferred to the dispatcher position. In February of 1993 while on duty as a dispatcher, the Petitioner received a three-day suspension, without pay, for using poor judgment. He interrupted a valet while the valet was servicing a guest. The Petitioner did not grieve the February 1993 suspension. The Petitioner's action as a dispatcher of interrupting a valet was grounds for the valet to grieve such actions to the union. The suspension in February of 1993 for the Petitioner's poor judgment as a dispatcher was not the basis for his termination. The Petitioner requested a reclassification back to valet/greeter/bellman position. The Petitioner understood that one more incident of any kind would result in his immediate termination. The Petitioner requested the change from dispatcher back to valet/greeter/bellman for personal financial reasons; and his union representative also advised him that if one more incident of any kind occurred, he would be terminated. On March 16, 1993, the Petitioner mishandled luggage. The Petitioner did not properly log in a guest's luggage (a garment bag). 35. The Petitioner was terminated on March 18, 1993 for poor job performance. The progressive discipline which the Petitioner received was consistent with the union contract. The contract provides that an employee can be terminated for the next offense following a single written reprimand. The Petitioner had the opportunity to grieve all of the reprimands he received, and his union representative was aware of the actions taken in connection with the Petitioner's employment. The Petitioner grieved his termination, and that grievance was denied. The Petitioner failed to provide evidence of any similarly-situated employee who was not terminated for mishandling luggage on as many occasions as he had. The Petitioner failed to provide evidence regarding any discrimination against other Hispanic employees, other than his own belief, speculation or conjecture. The Petitioner understood that the Respondent's management was closely checking into everyone's performance. Management asked all of the employees at the Grand Floridian Hotel to help the Hotel earn a five-star rating. The Petitioner was never part of the Respondent's management and did not attend manager meetings. During the course of his employment, the Petitioner was chosen to train other employees because he knew the proper procedures for his valet/bellman/greeter position. The Petitioner knew the proper procedures for handling luggage received from guests. The Petitioner knew the proper procedures for logging in and handling bags. The Petitioner received copies of the Respondent's policies and procedures for a valet/bellman, including luggage handling. The Petitioner did not report many of the alleged discriminatory actions of his co-workers to management. The Petitioner conceded that on those occasions when he did make reports to management, these alleged actions stopped. The Petitioner received the overtime and schedules which he requested because of his seniority. The number of minorities employed at the Respondent's Orlando, Florida, work site has increased from 1993 to 1996. The number of minorities employed at the Respondent's Grand Floridian Hotel has either remained the same or increased from 1992 to 1995. In January of 1993, the number of minorities in the Grand Floridian Hotel's Hospitality Department was 14, of which 11 were Hispanic; and there were four Hispanics in the valet/greeter classification. In February of 1996, the number of minorities in the Grand Floridian Hotel's Hospitality Department (including valets, bellmen, greeters and dispatchers) was 16, of which 12 were Hispanic; and there were four Hispanics in the valet/greeter classification. The Petitioner failed to produce any evidence of an overall plan by the Respondent's management to eliminate minorities, including Hispanics, from employment at the company. The Respondent allows employees to review their employment records at any time upon request. The Petitioner presented only his own beliefs, speculation or conjecture as a basis for his claims of 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 which denies the Petition for Relief. DONE AND ENTERED this 19th day of April, 1996, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3990 The following constitute my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. The Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by the Respondent: Accepted in substance: paragraphs 1-20, 22-31, 33-39, 41-61. Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 21, 32, 40. COPIES FURNISHED: Mr. Jorge V. Jimenez 2716 FDC Grove Road Davenport, Florida 33837 Myrna L. Galligano, Esquire Garwood, McKenna & McKenna, P.A. 731 North Garland Avenue Orlando, Florida 32801 Dana C. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Petitioner, Norma J. Nolan, was discriminated against by Respondent, K.D.P., Inc. d/b/a Western Sizzlin Steak House, in violation of the Human Rights Act of 1977, as amended, Section 760.10, Florida Statutes, on the basis of handicap, constituting an unlawful employment practice. Whether Petitioner has established a basis for, or entitlement to, an award of damages if, in fact, the alleged unlawful employment practice occurred.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: K. D. P., Inc., operated a restaurant known as Western Sizzlin Steak House in Bradenton, Florida, which business was established prior to the alleged incident of July 1990. This business has continued in operation to the current time under the same management and with many of the same employees, although the restaurant has subsequently become known as Cattle Company Cafe. The Respondent, K. D. P., Inc., d/b/a Western Sizzlin Steak House, now known as Cattle Company Cafe (KDP), owned by Jack Parrish, has been managed by Kevin Wreford for approximately twelve years. Parrish relies on Wreford for the day-to-day operation of the business, hiring and firing decisions, and supervisory responsibility. The Petitioner was employed from December 1989 through February 1990 by Upjohn Health Care on a part-time basis as a respite worker. While she was physically able to do that job, Petitioner chose to leave that employment as it had little work available for her with that agency and Petitioner wished to work at a location closer to her home. Petitioner applied for employment with KDP by way of written application on August 2, 1990. Petitioner's employment application did not indicate any physical handicap, disability or limitation. Wreford interviewed Petitioner for the position of part-time cashier in early 1991. During the interview, Wreford discussed with the Petitioner the duties of the position for which she had applied. Those duties included taking payment from customers at the cashier's stand, overseeing the salad and sundae bar, checking the women's restroom, cleaning glass in the area of cashier's stand and watching for walkouts (walkouts being customers who walk out without paying for their meals). Petitioner advised Wreford that she was capable of performing these duties but was concerned about her lack of experience in working with cash and making change. Wreford hired Petitioner as a temporary, part-time cashier, and Petitioner began work in that capacity for Respondent on February 3, 1991. Petitioner continued in the employment of the Respondent in the capacity of part-time cashier through July 17, 1991. At the time Petitioner was hired by Respondent on February 3, 1991 there was a large wooden bar stool located behind the counter where the cashier took payments for meals. All cashiers working for the Respondent, including Petitioner, were allowed to sit on this stool at times when they were not waiting on customers (cashiers were required to stand while waiting on customers) or performing other assigned duties as set out in Finding of Fact 6. Sometime around July 1, 1991, Wreford discussed with the cashiers, including Petitioner, his concerns about the cashiers not performing their other assigned duties when they were not waiting on customers. Performing other assigned duties required the cashiers to be away from the cashier's area. At this time, Petitioner made Wreford aware of her knee problem and advised him that she may have difficulty standing for long periods of time. There had been no mention of this problem previously nor had Petitioner experienced any problem with her knee previously. Likewise, Petitioner did not experience any problems with her knee in carrying out her assigned duties during the next two weeks. In fact, both Wreford and Parrish were pleased with Petitioner's performance during this period. On or about July 12, 1991, Parrish's wife who had become involved in the management of the restaurant advised Parrish that the stool needed to be removed from the cashier area because: (a) the stool was showing its wear and tear and was aesthetically unpleasing; (b) the stool was taking up too much room resulting in the cashiers not being able to perform their duties properly, particularly looking for walkouts and; (c) to prevent a certain cashier (not Petitioner) from abusing the privilege of the stool by sitting on the stool for extended periods of time and not performing her other assigned duties. On or about July 12, 1991, Parrish removed the stool from the caahier's area and placed it in his office where it remains today because the stool has a sentimental value in that Parrish used the stool in his first restaurant. On or about July 13, 1991, when Petitioner arrived for work and noticed the stool had been removed she met with Parrish and Wreford and advised them that she could not work without the stool because of her knee. Parrish and Wreford offered to accommodate her problem by allowing Petitioner to sit at a table adjacent to the cashier area when she was not waiting on customers or performing her other assigned duties. Petitioner advised Parrish and Wreford that she could not work under those conditions but that she would stay on until a replacement was found. Parrish and Wreford accepted Petitioner's resignation but encouraged Petitioner to continue her employment until she could determine if the accommodation would be satisfactory. Petitioner continued to work for Respondent until July 17, 1991, and was able to function without any problems with her knee under the accommodations provided by Respondent. However, after Petitioner resigned she never asked to be reinstated even though she was able to function under the accommodations provided by Respondent. Although Petitioner alleged that she had a physical disability/handicap because of problems she had related to an alleged right knee replacement done some years earlier, there was no medical evidence or other documentation establishing any physical handicap or restrictions/limitations in her ability to work. There were other cashiers employed by Respondent who had conditions similar to Petitioner's conditions who were able to function with the same accommodation offered Petitioner. One of those was the person hired by Respondent to take Petitioner's position. Petitioner collected unemployment compensation after leaving Respondent's employment, as well as other forms of assistance, such as food stamps and housing assistance. Additionally, after leaving Respondent's employment Petitioner developed "female problems" and is not seeking employment even though she attended computer school. There was no evidence as to the amount of damages suffered by Petitioner. There is insufficient evidence to establish facts to show that Petitioner was discriminated against on the basis of a handicap by Respondent or that any unlawful employment practice occurred. There is competent substantial evidence in the record to establish facts to show that there were legitimate, nondiscriminatory business reasons for the action taken by Respondent in removing the stool and providing other accommodations for the cashiers, including Petitioner. There was insufficient evidence to establish facts to show that the Respondent's articulated reasons for its action were pretextual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a Final Order finding that the Petitioner, Norma J. Nolan, was not discharged due to her handicap in violation of Section 760.10, Florida Statutes, and that the Petition For Relief be dismissed. RECOMMENDED this 8th day of June, 1993, at Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3903 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. 1. Proposed Findings of Fact 1 through 13 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial or a restatement of testimony rather than presented as a finding of fact. Respondent's Proposed Findings of Fact. 1. Proposed Findings of Fact 1 through 32 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial or a restatement of testimony rather than presented as a finding of fact. COPIES FURNISHED: Norma J. Nolan, Pro Se 1109 Harvard Avenue Bradenton, Florida 34207 Donna L. Derfoot, Esquire Post Office Box 3979 Sarasota, Florida 34230 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahasse, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Petitioner proved that Respondent discriminated against her on the basis of her race at Respondent's restaurant or place of public accommodation, and, if so, what the relief should be.
Findings Of Fact Based on the evidence presented at hearing, the undersigned makes the following findings of material and relevant facts: Scott is an African-American woman. On May 22, 2015, Scott visited the McDonald's in Marathon, Florida, with her husband in the afternoon. Scott ordered two meals, including a hamburger, and testified that the type of hamburgers she received at the inside counter were incorrect. Scott complained to the counter staff and was provided the correct hamburgers and ultimately received the food that she ordered. Scott then complained that the new burger she was given was cold. She insisted on getting another burger and also demanded to keep the first one. There were several customers inside the McDonald's on the afternoon in question, and Scott's actions and demeanor were visible to and done in the presence of the other customers. Scott became loud and started screaming at the employee(s) behind the counter. Scott's dissatisfaction and yelling caused a disturbance in the store in front of other patrons and also caused patrons in the drive-through line to ask what was going on inside. The disturbance Scott was creating escalated to the point that the counter employee could not handle Scott and had to turn the matter over to a supervisor, who tried to quell the problem. The supervisor was not successful either. One of the managers of McDonald's called the police in response to Scott's disruptive behavior. It was not until then that Scott left the service counter and sat back down.1/ Deputies Matthew O'Neill and Rose DiGiovanni of the Monroe County Sheriff's Department arrived. Upon their arrival, Scott was still yelling, protesting, and being disruptive, again, inside the restaurant, around other patrons. Because Respondent requested a trespass notice be issued, Deputy O'Neill reminded Scott that, if she did not leave the premises, she would be arrested. Instead of promptly departing, Scott demanded her money back. Deputy O'Neill advised Scott that the restaurant did not have to refund her the money, particularly if Scott was going to keep the food she was given. McDonald's staff nevertheless decided to refund Scott her money in an effort to accommodate her and resolve the matter. Scott testified that she did receive her money back. As they were being escorted out by Deputies O'Neill and DiGiovanni, Scott's husband told Deputy O'Neill to take off his uniform so that he could fight him. Deputies O'Neill and DiGiovanni escorted Scott and her husband out of the premises and advised them of the trespass warning that McDonald's had asked to be issued. Once outside, Scott continued to yell at the officers across the parking lot. Scott never mentioned to the staff or officers that her race (African-American) or race discrimination by McDonald's, or its staff, played any role in (1) the service or hamburger product or type delivered to Scott during the incident or (2) McDonald's response to the incident. Likewise, the undersigned heard no persuasive evidence to suggest or prove that race discrimination played any role in the incident that day. No action, inaction, or treatment of Scott was because of her race. Other than conclusory allegations, there were no facts, either direct or circumstantial, to prove that Scott's race played any role in what she was served or how she was treated by McDonald's.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice and find in Respondent's favor. DONE AND ENTERED this 26th day of May, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 26th day of May, 2016.
The Issue Whether Petitioner's termination from employment by Respondent on June 15, 2005, was discriminatory in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2005), due to Petitioner's race (African American).
Findings Of Fact Petitioner, a Black female, was employed by Respondent from November 23, 1998, until her termination on June 14, 2005. Petitioner had performed her duties as a housekeeper adequately during her employment period and had no major disciplinary reports in her record. Her annual reviews indicate she was a fair employee. She had a history of tardiness, but seemed to be getting better in her last years of employment. Petitioner had received a verbal warning notice on March 8, 2005, relating to an altercation with another employee, Katrina Stevens. It appears Petitioner did not instigate the confrontation nor did she actively participate in the argument between Stevens and another employee. She simply happened to be standing nearby when it occurred. A verbal warning notice is preliminary to a reprimand. The other employee, Martine Lane, received a reprimand for the incident. On June 8, 2005, Petitioner received another verbal warning notice, this time for instigating negative remarks toward her supervisor. The gravamen of her complaint about the supervisor was that a certain co-worker had been named Employee of the Month instead of Petitioner. Petitioner became more defiant towards her supervisors and management toward the end of her employment. She would not help out other employees when asked, preferring to tend to her own work area, even when her work was completed. She also made derogatory comments to the co-worker who had won Employee of the Month. When Petitioner's behavior did not change, a decision was made to terminate her employment. It was a difficult decision because good housekeepers were hard to find and Petitioner's work product had always been acceptable. Petitioner had always been well-liked and respected by fellow employees. Both co-workers and management had encouraged Petitioner to apply for supervisory positions when they opened. Her supervisors indicated that, with some training, she could handle a supervisory position. The decision to terminate Petitioner from employment was made by the Executive Housekeeper, Steve Jensen. He relied upon input from other management. On June 18, 2005, Petitioner was stopped from clocking in when she came to work. She was told to report to Jensen's office, which she did. At that time Jensen asked her whether she was still happy with her job, then told her she was being terminated. The reasons given were that she was not supportive, not a team player, and had become more belligerent to management. No mention of race was made as a basis for her termination and none seems to have existed. Petitioner was advised she would be entitled to vacation pay, but it was later discovered she had already used up her available vacation time. Respondent subsequently called Petitioner to offer her a different job, but Petitioner had no interest in returning to work for the company. Respondent has anti-discrimination policies in place, is an equal opportunity employer, and employs minorities in supervisory positions. Interestingly, however, there were no other Black housekeepers employed while Petitioner was working. When a supervisory position opened, Respondent would attempt to fill the position from within its existing employee pool. Two such positions opened when Petitioner was employed. Seven then-current employees applied for those positions, including Petitioner. Of the seven, four had prior supervisory experience; Petitioner did not. Two of the applicants had been with the company longer than Petitioner. Five of the seven applicants had computer knowledge and skills; Petitioner did not. Petitioner is the only candidate who admitted a fear of heights, a minor consideration for the position. Petitioner is the only candidate who stated she could not work on weekends. Petitioner was clearly not the best applicant for the job based on comparison to other candidates. Petitioner did not provide any evidence that her race was a basis for her termination from employment. None of her witnesses provided credible statements concerning discrimination. In fact, her witnesses by and large did not see any discrimination by management.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 5th day of January, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2007. COPIES FURNISHED: Diane Hawkins 1556 University Lane, Number 407 Cocoa, Florida 32922 Theodore L. Shinkle, Esquire GrayRobinson, P.A. 1800 West Hibiscus Boulevard, Suite 138 Melbourne, Florida 32901 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
