Findings Of Fact Petitioner applied to Respondent for employment approximately September 1, 1981, and was hired on October 7, 1981, effective October 11, 1981. Hire dates were set by Respondent based upon the first day of work. Petitioner was terminated simultaneously with her husband on November 17, 1981. Larry G. Chivers, Petitioner's husband, was hired by Respondent on September 7, 1981, as a tractor--trailer driver, sharing driving with several other drivers until October 11, 1983. Thereafter, until he was terminated, he drove exclusively with Petitioner. Respondent claimed Mr. Chivers was initially hired as a "casual" driver and did not go on permanent status until his wife was hired. While his work did not change, with the exception of his new partner, his status with the company changed significantly since casual drivers accrued no seniority nor did the alleged 30 work day probationary period begin to run. Since Petitioner and her husband were fired a few hours after completing their work on their thirtieth day of work together and since probationary employees were given no recourse when fired, Mr. Chivers' status was important to him in any challenge to his discharge. The evidence was conflicting as to whether the Chivers were ever informed of their probationary status or if such status was intended by their employer. However, regardless of status at the time of firing, Respondent could not have lawfully discharged Petitioner because of her sex or marital status. See Subsection 23.167(1)(a), Florida Statutes (1981). The Chivers reported directly to Mr. Dennis O'Neal, Supervisor of Terminal Operations, Caribbean Air Express (CAX) a division of Westinghouse located at Sanford, Florida. O'Neal was responsible for driving assignments for CAX, which obtained its drivers from Respondent. Although O'Neal had no authority to hire or fire drivers, he made recommendations directly to Mr. Robert Adair, Manager of Personnel Relations for Respondent, who had such authority. On November 16 or 17, 1981, O'Neal recommended to Adair that the Chivers be fired and Adair instructed O'Neal to terminate them. Petitioner was the only female driver ever hired by Respondent and her hiring presented special problems. Although it was assumed that she would drive with her husband on a team basis, company policy required that she drive with any available driver in the event her husband was not available. Petitioner, her husband, Adair and O'Neal acknowledged that some drivers had indicated they would refuse to drive with a woman. Such refusal to drive was grounds for discharge under company policy and Respondent so advised at least one driver who raised this issue. Respondent urges a finding that Petitioner was guilty of "unsatisfactory performance" and was fired for that reason. See Petitioner's proposed findings numbered 14, 15, 16, 17, 18 and 19. Although the evidence establishes that the Chivers were unable to report their precise location on one trip during a scheduled call-in, and that on several trips they made excessive stops, their overall job performance met company standards. Their trip times were somewhat below the company average, but were not the slowest. There were no allegations against them of misconduct, unsafe practices or mishandling of company equipment or cargo. Therefore, "unsatisfactory performance" as a proffered basis for discharge is rejected. Respondent's primary grounds for discharging the Chivers involved their attitude. This reason was given to them at the time of firing along with the unsatisfactory performance assertion. Specifically, they were told that they did not have a "Westinghouse attitude." The Chivers made frequent complaints about the condition of their equipment to their supervisor, Dennis O'Neal. Although these complaints and "write-ups" had at least some validity, O'Neal resented their frequency. On their last trip from Sanford, Florida, to Irwin, Pennsylvania, where Robert Adair was located, the Chivers called on Adair to voice a number of grievances. Mr. Chivers did most of the talking, but Petitioner was present and indicated by her participation that she agreed with the complaints her husband presented. The Chivers complained that other teams were getting the longer, better paying routes and that the dispatcher was not following a first-in, first-out policy. They also accused another team which they met on the highway of being off-route and speeding. The Chivers further complained about their employing company and its practices to other drivers, dock workers, dispatchers and customers. In one case a dock foreman, Mr. Rick Scheaffer, asked O'Neal to keep Petitioner off his dock because of her griping. Petitioner contends that most of the complaining which her employer found unacceptable originated with her husband, and that his complaints were unfairly attributed to her. This argument must be rejected since Petitioner was present at virtually all times when her husbands complained to Adair or O'Neal. These supervisors reasonably understood all complaints to be hers as well as those of her husband by her participation and assent. The parties sought to develop evidence on the basis which drivers were hired and fired. Since Petitioner was the only female driver ever hired by the company (which is now out of business) the relevance of company practices is somewhat limited. Although the company tried to hire drivers as teams whenever possible, it did not fire them together unless both team members were guilty of the same misconduct or both were unacceptable workers. Respondent hired Petitioner in the face of opposition from its then exclusively male driving pool. Their concerns involved possible domestic relation problems which could arise if a married male driver was dispatched on an out of state trip with Petitioner. Respondent's refusal to give in to such pressure is inconsistent with Petitioner's claim that a month and a half later she was fired because of her sex and marital status.
Recommendation From the foregoing, it is RECOMMENDED that the Human Relations Commission issue a Final Order dismissing petitioner's complaint. DONE and ENTERED this 31st day of January, 1984, in Tallahassee, Florida. COPIES FURNISHED: Ransford C. Pyle, Esquire 621 East Washington Street Suite 7 Orlando, Florida 32801 Barnett Q. Brooks, Esquire Westinghouse Building Gateway Center Pittsburg, Pennsylvania 15222 T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1984. Dana Baird, Esquire Florida Commission on Human Relations 2562 Executive Center Circle Suite 100, Montgomery Building Tallahassee, Florida 32301 Donald A. Griffin, Executive Director Human Relations Commission Carlton Building Tallahassee, Florida 32301 =================================================================
Findings Of Fact Petitioner is a black female. At all times material, Petitioner was employed by Respondent corporation in one of its general retail merchandise stores in Ocala, Florida. Petitioner was hired by Respondent's white male store manager, Mr. John Sasse, on October 20, 1992, as a stock clerk in the shoe department. Petitioner was terminated on January 10, 1993, within the ninety day probationary period published in Respondent's employee handbook. In making the foregoing finding of fact, it is recognized that Petitioner attempted to show that the probationary period for new employees was only sixty days. However, she only showed that the sixty day period was applicable in a different time frame than is material here. On October 31, 1992, while working in a stock room, Petitioner's back and neck were injured when a box fell on her. Supervisors called an ambulance, and Petitioner was transported to the emergency room of a local hospital. She was treated but not hospitalized. Respondent duly filed the "Notice of Injury" as mandated by Chapter 440 F.S., "The Florida Workers' Compensation Act," and began to pay Petitioner's medical expenses. Prior to her injury, Mr. Sasse considered Petitioner to be only a marginal employee. Petitioner was released by hospital doctors for return to work as of November 6, 1992. At that time, she had no work restrictions imposed by a doctor, so Mr. Sasse reassigned Petitioner to her usual duties. Petitioner worked at the tasks she felt she could do until November 11, 1992, when she returned to the hospital. She was examined and medicated. Later that same day, as is standard procedure with workers' compensation injuries wherein the employer pays for an injured worker's medical care and as a result has the legal right to specify which doctors attend the employee, Mr. Sasse ordered Petitioner to go to "Care One," a "walk-in" medical facility specializing in occupational medicine. Petitioner went to Care One, where she was again examined and medicated. Petitioner was released for work the same day with written work restrictions from the Care One doctor. Petitioner's resentment against Respondent that she had been injured in the first place apparently was a motivating force in her actions after she returned to work the second time. Petitioner's candor and demeanor while testifying, as well as her persistence in returning her testimony to the circumstances surrounding the box falling upon her in the storeroom, made it very clear that she considered it discriminatory, or at least unfair, that Respondent had "forced" her or anyone to work under the cluttered stock room conditions that had resulted in her initial accident or injury. In Petitioner's mind, at least, the fact that an accident or injury had occurred in the first place was sufficient to establish "dangerous working conditions" and "an unlawful employment practice." After November 11, 1992, she persisted with these complaints to the employer. However, no competent evidence established a nexus between Petitioner's race and her pre-injury job assignments, and no evidence demonstrated that after her accident, the Respondent-employer handled her workers' compensation medical care any differently because she was black. On November 11, 1992, Care One's written restrictions provided: Restricted Employee should avoid movements of the upper body and neck that would place undue stress on the neck, such as strenuous pushing and pulling, heavy lifting, and working above the shoulders. Employee should avoid lifting > 20 pounds, avoid frequent bending and twisting of the back, and avoid strenuous pushing and pulling. Mr. Sasse and his subordinate supervisors assigned Petitioner tasks consistent with Mr. Sasse's interpretation of Petitioner's written restrictions, as modified over time by subsequent information. On November 11, 1992, a position was created for Petitioner in the soft goods department. At this time, Petitioner became the only black clerk in the soft goods department. Initially, Mr. Sasse told her she was not to reach above her shoulders or bend to pick up anything below her knees. Petitioner complained that these tasks constituted too much physical exertion for her due to her physical condition. Petitioner continued to complain about the accident and her pain. The employer and insurance carrier continued to refer her back to Care One. There was a short delay with regard to some medical services requested by Petitioner or by referring and consulting doctors under the workers' compensation medical care delivery system, but the employer/insurance carrier in due course authorized physical therapy, a consultation with an orthopedic specialist, and magnetic resonance imaging (MRI) for further diagnosis. Derrick Proctor, a black male employee and Petitioner's friend, presented as a credible witness, even though he claimed to have been fired by Mr. Sasse under what Mr. Proctor termed "suspicious circumstances" and at the time of formal hearing had some type of action pending against this employer. Mr. Proctor described Petitioner as "embittered" against the employer because of the employer's refusal or delay in dealing with Petitioner's medical concerns and stress. However, it appears that Petitioner's problems, if any, were common disputes and communication delays inherent in the workers' compensation medical care delivery system. For instance, when asked, the doctors reported directly to the employer, insurance carrier, and store manager concerning the Petitioner- employee's medical condition, consultant treatment, and recovery progress. On December 10, 1992, Mr. Sasse told Petitioner that he had received an oral report on her December 9, 1992 MRI results and that they were negative. This conversation occurred before any of the doctors had reported the MRI results to the Petitioner, and Petitioner inferred therefrom that information was being withheld from her. Later, on December 22, 1992, Petitioner learned, during a reprimand and counselling session for insubordination and failure to work up to her capacities, that the employer had been informed much earlier that she could return to work with no restrictions. (See Findings of Fact 32-36) Although Mr. Sassy and others had told her this before December 22, 1992, the events of December 22, 1992 triggered a belief in Petitioner that the employer was "out to get" her. Notwithstanding the extreme light duty assigned her, Petitioner complained about the work assigned and was uncooperative about helping supervisors find a job description she felt she could perform. Although Petitioner may not have known about it until November 25, 1992, on November 20, 1992 Care One deleted the prior restrictions on lifting items over 20 pounds, bending, and strenuous pushing and pulling, and narrowed her restrictions to the following: Restricted. Employee should avoid movements of the upper body and neck that would place undue stress on the neck, such as strenuous pushing and pulling, heavy lifting, and work above the shoulders. In December 1992, Mr. Proctor was required to close his department, hardware, every night, and Petitioner closed the soft goods department some nights. Petitioner considered being required to close some nights to be discrimination against her since she was the only black employee in the soft goods department at that time and the white female employee in soft goods had been switched to the day shift in Petitioner's place. The greater weight of the evidence shows that the whole store's evening hours increased from midnight to 1:00 a.m. due to the Christmas season, and on December 6, 1992, Petitioner was assigned to work nights so that she could go to daytime medical and physical therapy appointments. The employer's accommodation of Petitioner's situation in this respect was comparable to the accommodation given a white female employee in soft goods. Beginning November 23, 1992, that white female employee, Ms. Audrey, had been assigned to a daylight shift so that her husband, who had bad night vision, could drive her to and from work. Race was not a factor in the accommodation rendered Ms. Audrey or Petitioner. Who closed the store during December 1992 depended upon who worked the evening shift, not race. It is not entirely clear on the record whether, on December 3, 1992, Petitioner withdrew from physical therapy because she could not do the weight training assigned her or was rejected by the physical therapist as a client because she would not cooperate in weight training. Petitioner testified that she returned to physical therapy thereafter for ultrasound treatment. It is clear that Petitioner believed she was rejected by the therapist because she could not lift the heavy weights assigned her by the therapist as part of Petitioner's planned recovery. It is also clear that the decision to end the weight phase of Petitioner's treatment did not have employer input. By December 5, 1992, Petitioner's personally professed physical limitations and complaints about Mr. Sasse's treatment of her had resulted in Mr. Sasse accommodating her by creating a "make-work" job description. Under it, she was asked to push a cart that other employees had hung clothes on; she was not required to load the car with clothes. She was required only to pick up single articles of clothing that were left in the women's dressing rooms and return them to the racks. She was told only to bend if an occasional article of clothing was found on the floor. She was also told to open dressing room doors for customers and, if requested, fetch more clothes for them to try on while they remained in the dressing room. Petitioner was permitted to wear her softly padded neckbrace at all times, even though she presented no written doctor's instructions to do so. Petitioner described it as an "agony" imposed on her by the employer when, on December 5, 1992, Mr. Sasse ordered her not to sit continuously on the sales floor in a chair she had removed from the women's dressing room. Petitioner had previously complained because she had been required to sit for long hours on a very hard chair Mr. Sasse had provided for her, and this time she had gotten a different chair herself. On December 5, 1992, Mr. Sasse told her she must leave the dressing room chair in the dressing room for the customers, that she was not permitted to sit all the time on the sales floor where customers could see her, and she must not just sit without doing any work, until all her work was done. He told her to do a variety of the tasks of which she was capable, including but not limited to sitting while pricing goods. Petitioner considered these orders to be contrary to her doctor's limitations and to constitute "physical abuse." Petitioner repeatedly requested time off with pay so that she could recover completely through bed rest. Mr. Sasse would not allow her time off for medical reasons without a doctor's written approval. Petitioner considered this condition imposed by management to be "abusive." Petitioner described Mr. Sasse as being rude to her on December 6, 1992, when he refused to discuss her accusations of "physical abuse" and her request for time off in the presence of other employees and customers in the public buffet area of the store, and walked off, leaving her there. Petitioner referred to this incident as at least part of her "opposition to unlawful employment practices" which she believed resulted in her termination. Petitioner presented no evidence that a doctor had ever recommended that she stay at home and do nothing so that she could heal. From all the evidence, it is inferred that as a probationary employee, Petitioner had no accrued sick leave to expend for this purpose. Ms. Gardner was a long-time white female employee who had her doctor's approval for knee surgery and who required a month of bed rest at home afterwards. The employer allowed Ms. Gardner to use earned compensatory time as sick leave for that purpose during the month of December 1992. By mid-December, 1992, Mr. Sasse was frustrated because Petitioner refused to do every job he devised, even the "make work" ones, and he believed that she only pretended to be busy when he was watching her. Mr. Sasse had told Petitioner that she could do normal work again and she would not accept this from him without hearing it also from her doctor. Mr. Sasse decided to discipline Petitioner for not working up to her limitations as he understood them and for insubordination. He directed the soft goods manager trainee, Ms. Lynn Tyler, a white female, to "write up" Petitioner. Ms. Tyler and the assistant store manager, Ray Harding, a white male, met with Petitioner on December 22, 1992 to discuss the contents of the prepared memo. One of the supervisors' concerns at the time Petitioner was "written up" was that they could not get Petitioner to do anything at all without an argument, even after pointing out various light work job duties on a walk around the whole store. They were also concerned that without Petitioner doing some tasks, the employer had to pay other employees overtime to accomplish what Petitioner was not accomplishing in her regular shift hours. It was stipulated that Petitioner was never asked to work overtime. Petitioner refused to sign the December 22, 1992 memorandum of reprimand because she did not agree with it and because Tyler and Harding were, in her opinion, "grudgeful." Petitioner was informed later on December 22, 1992 by her Care One doctor that he had, indeed, released her for normal work activities effective December 16, 1992. His December 16, 1992 report which had been previously received by the employer read: Please note employee's current duty status is as follows: Regular May return to normal work activities full time. After her accident, Petitioner was observed by Derrick Proctor doing some of the same types of physical exertion the employer had required that she do before the accident, including reaching above her head to put clothes on and take them off clothes racks and picking clothes up from the floor, but he never knew her medical restrictions other than what she told him. He also observed her in agitated conversations with Ms. Tyler and Mr. Sasse while she was wearing a neck brace. On January 7, 1993, he saw Ms. Tyler "very out of sorts" when talking to the Petitioner. At first, he stated that he did not consider Petitioner to be rude or insubordinate on these occasions because the topic was working conditions, but later he admitted that he could not overhear what was actually said on all these occasions. Mr. Proctor also observed that, "Mr. Sasse rode everybody pretty hard," including white workers. It was "his way of getting things done." Mr. Proctor once observed Petitioner hiding in another department, behind racks, to avoid management. Petitioner acknowledged and described her "hiding out" at that time to Mr. Proctor as due to her "feeling mistreated" and "avoiding management." In her formal hearing testimony, Petitioner described it as "opposing unlawful work practices and abusive treatment." After learning on December 22, 1992 of her release from all medical restrictions, Petitioner continued to be uncooperative with management. Petitioner's testimony conceded that she had understood that all doctors had released her with no restrictions as of December 28, 1992 and that she had still refused to reach and bend in the stock room when ordered to do so by Mr. Sasse and Ms. Tyler on January 7, 1993. After evaluating Petitioner's continued failure or refusal to perform even the lightest of duties, Mr. Sasse decided to terminate Petitioner before her ninety days' probationary period ended. Mr. Sasse, who was terminated by Respondent-employer sometime later in 1993 and who, at the time of formal hearing, was litigating an unemployment compensation claim against Respondent, had no reason to fabricate information or testify favorably for the Respondent-employer. He was credible to the effect that the decision to terminate Petitioner in January 1993 was his unilateral decision and that he made his decision without reference to, or motivation by, Petitioner's race. Specifically, it was Mr. Sasse's foundational assessment that Petitioner could physically do the light work he assigned her after reasonable accommodation for a temporary disability but that she would not do the work assigned by him that caused him to terminate her. Petitioner testified that she was replaced by a white female. In fact, a white female was hired approximately one or two weeks prior to Petitioner's January 10, 1993 termination, with a due date to report to work on January 11, 1993, which subsequently turned out to be the day immediately following Petitioner's termination. The employer did not hire this white female with the intent of replacing Petitioner, but she was ultimately placed into the soft goods department. Mr. Proctor testified that other blacks worked in soft goods after Petitioner's termination. Within four weeks of Petitioner's termination, three new employees were hired. None of these were assigned to the soft goods department. Mr. Standley Gillings, a black male, was originally employed in another of Respondent's Ocala stores. In October 1993, Mr. Gillings was demoted with a loss of pay and transferred to the store from which Petitioner had been fired ten months earlier. His new immediate supervisor in that store was also black. Respondent continued to employ Mr. Gillings under the black supervisor until Mr. Gillings found another job and quit.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing the Petition for Relief. RECOMMENDED this 25th day of August, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1994.
Findings Of Fact Petitioner, Mose Howard, Jr., was hired by the Respondent, K-Mart Corporation, as a night maintenance man at its store number 7339 located at 2620 N. Hiawassee Road in Orlando, Florida on July 10, 1984. According to Mr. Howard, his job was to help clean up after the store closed for the evening and to -notify the store authorities if and when the alarm went off during that period. His duty hours were from 9:00 p.m. to 7:00 a.m., Monday through Friday. He worked at the store for approximately six weeks during which time, according to him, he was never told by anyone in authority that his work was unsatisfactory. On August 16, 1984, Mr. Howard was called in by Mr. King who advised him that his work was not satisfactory. Mr. Howard contends that at the time in question, Mr. Ring gave him two pieces of paper to sign and advised him that if he didn't perform better, he'd be laid off. At the time, Mr. Howard looked at the papers and determined that his name was on them, but nothing else. The form in question was a Personal Interview Record consisting of two pages and Mr. Howard contends that that portion of the record dealing with the summary of discussion held between the parties at the interview was left blank. According to Mr. Howard, he signed the form in blank because he thought it was merely a notice that he was being placed on probation. In fact, though he may not have known it, he was on a probationary period from the time he was hired. During the course of the discussion, Mr. King advised him that the store had been receiving complaints about his work from undisclosed sources and also information that he had been sleeping on the job. Mr. Howard categorically denies having slept on the job at any time during the period of his employment and Respondent produced no evidence that he had. He admits, however, that his cleaning duties may have been, from time to time, accomplished in a less than satisfactory fashion. From time to time, when he was cleaning up paper and other debris from under the counters, crews of the contractor hired to maintain the floors in the store, whose job it was to strip and re-wax the floors periodically, were working on other aisles of the store. He contends that when this crew would go from one aisle to another, they would turn off and on the lights. Because he could not turn the lights on where he was working if the crew had previously turned them off, it was too dark for him to see and clean up well. He believes that it was this inability to clean up properly because of lack of lighting that formed the basis of the complaints against him. In addition, he states, the burglar alarms would periodically sound and when this happened, it would be necessary for him to call someone to come in and turn them off. This caused him to lose work time because when the alarm sounded, he felt he had to stop working and leave-the store because, had he stayed in there, the police might think he was breaking in. While denying, unequivocally, that he ever slept on the job, Mr. Howard admitted he would sit down from time to time in the break room but only on his two 15 minute breaks or during his 30 minute meal period. There were other times, he admits, that because of the lighting situation, he was unable to work in the store while the floor crew was there. In that case, he would sit down and wait until the crew would finish where it was working and he could go back to work. Sometimes this would be for an hour or even a couple of hours and during the period of enforced break from sweeping, he would try to find something else to do like cleaning the restrooms. In this regard, according to Mr. King, the cleaning of the restrooms was an integral part of Petitioner's responsibilities and his accomplishment of these duties was also periodically and repeatedly unsatisfactory. After the personnel interview conducted on August 16, 1984, Mr. Howard finished work for the evening and left. When he returned the following evening, a Friday, he was called in by another supervisor and advised that he was discharged. He says that at this point he was not given any reason for his discharge. However, he waited around outside the store until the closing time of 9:30 p.m. (approximately a half-hour after he came to work and was fired), went into the office, and picked up his paycheck from Payroll. The check he received that night was for all that was owed him up to the end of the pay period. A few days later, (the following Monday), he went back and was given another check for the day and a half wages owed him for the new pay period up until he was discharged. Mr. Howard denies having received a call in advance to advise him his work was unsatisfactory nor was he given a reason for being fired. Nonetheless, he did not question the basis for his firing either on August 17, or the following Monday, but merely accepted the pay due him and left. Even though Mr. Howard says he was not given a reason for his discharge and does not know why he was fired, he is convinced the discharge action was taken on the basis of his race because he always did his duty to the best of his ability and worked extra hours without pay on many occasions. It is because of his own satisfaction with his duty performance that he contends his discharge must have been racially motivated. However, he admits that no one from K-Mart Corporation or the store in which he worked ever gave him any indication of a desire to get rid of him or other black employees. Further, during the period of time he worked there, he never heard any racial comments or slurs from any employees, either upper management or low level, except from one young stockboy who used the term "nigger" frequently. He admits to being told on one occasion by an employee of the contractor that he had missed an area in his sweeping and had to go back and do it again and, on several occasions, he observed areas he missed and went back and cleaned them on his own, but aside from those instances, he contends no one from the corporation ever complained to him about the way he was performing his duties until the night of August 16, 1985, when he was interviewed by Mr. King about his performance. Even on that occasion, according to Petitioner, there were few specifics in Mr. King's comments. As he remembers it, Mr. King merely stated that he was deficient in keeping the floors, the walls, the restrooms, etc. clean but Mr. Howard states that these allegations are all lies. Mr. King, on the other hand, indicates that when Mr. Howard was hired, he was fully briefed on the nature and scope of his duties and was taken around the store and shown where and how things were to be done. At that time, the routine janitorial. duties such as wet mopping the floors, cleaning the restrooms and the cafeteria, and the other items of a similar nature were clearly made known to him. In the interim, Mr. King has personally discussed his performance, which was not up to par with Mr. Howard on at least three or four separate occasions, including in his comments such things as the stools not being kept clean, the floors not being mopped, spots being left on the mirrors. These duties and others of a similar nature were solely the responsibility of the Petitioner on the nights he worked. On each occasion, Mr. King found Petitioner's attitude to be negative. Mr. Howard gives the impression he feels he is performing satisfactorily and if management doesn't like the way he's doing his job, that's too bad. Though Mr. Howard contends that the problems he faced in accomplishing his duties were caused by the low availability of light in the store after closing hours due to the actions of the contractor's crew, he never complained to anyone about this. He didn't feel he had to say anything to the contractor's employees because he did not work for them and he felt that they could see the problem because it was obvious. He also contends that he cleaned the ladies' room as he was required to do and that any unsatisfactory condition may well have been caused by two white contractor's employees who would sleep in there from time to time. Again, he did not say anything to the contractor or anyone else about this because he thought what was happening was obvious. Petitioner's deficiencies and the counselings he received for them ultimately culminated in the personal interview reduced with a written memorandum on August 16, 1985. At that time, Petitioner was told that if he didn't improve, it would be necessary to get someone else to do the job. The personal interview on August 16, 1984 was the last effort on the part of K-Mart management to get Petitioner to do a better job. The description of his deficiencies, according to Mr. King, was placed on the interview form before the interview and was given to Petitioner to read at the time. Mr. King is quite certain that Petitioner looked at the form containing these comments and signed it. The personnel manager for the store was present at the time. When the work was not done properly that August 17, 1984 when he came to work, he recommended Petitioner's termination to the store manager. The other assistant manager, Mr. Avera, concurred in this recommendation on the basis that Petitioner was simply not getting the job done. Mr. King unequivocally denies that his recommendation for termination was racially motivated. He has, in the past, recommended only one other termination of an employee. This employee was white. The list of all employees terminated by this K-Mart store from August , 1983 through November, 1984, with reasons therefor, reflects that of the three other night maintenance personnel terminated during that period, two were white and one was black. The reasons for termination include sleeping on the job, unsatisfactory performance and drug possession. Of the fifteen total employees discharged during the period, at least ten were white, four were black, and one is not identified by race. On balance it is clear that Mr. Howard was terminated not as a result of any racial motivation but simply because he was a probationary employee and management was dissatisfied with his performance during the period of probation. Mr. Howard rejects Mr. King's evaluation of him on the basis that Mr. King did not personally supervise his work and that his analysis is based on matters outside his personal knowledge. He contends that his work was always done to the best of his ability and he does not accept the possibility that his performance could have resulted in his termination. Nonetheless, he does not know if any other black maintenance employees were discriminated against or, for that matter, if any other black employees in any job were discriminated against at this facility. Mr. Howard denies signing the separation report that was prepared on the night of his discharge even though, admittedly, it bears his signature. It is for this reason as well as because of his denial that any detail was included on the interview report when he signed it that a question is raised as to the accuracy of his analysis of the situation. In substance, there is ample evidence with specifics to establish the legitimate ground of inappropriate performance as the basis for his discharge and very little evidence other than his allegation to support a claim of racial prejudice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Petition of Mose Howard, Jr. be denied. RECOMMENDED this 30th day of September, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1985. COPIES FURNISHED Mose Howard, Jr. 67 West Michael Gladden Blvd. Apopka, Florida 32703 Janice Paulsen, Esq. International Headquarters K-Mart Corporation 3100 West Big Beaver Road Troy, Michigan 48084 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303 Aurelio Durana General Counsel Florida Commission on Human Relations 325 John Knox Road Building F - Suite 240 Tallahassee, FL 32303
The Issue Mary Harrison's charge of discrimination dated August 4, 1995, alleges that Jodan, Inc., doing business as Manpower (Jodan), discriminated on the basis of her race and for retaliation by constructively discharging her, giving her verbal and written reprimands and a poor performance rating, by denying her training and by intimidating her. The issues for disposition in this proceeding are whether the alleged discrimination occurred, and if so, what relief is appropriate.
Findings Of Fact Jodan, Inc., is a family owned franchise of Manpower Temporary Services. Jodan provides temporary staff to its clients. It has six offices in Central Florida: two in north Orlando; one in south Orlando; and one each in Deland, Daytona, and Melbourne. Dan Gavin, president, is responsible for the day to day operations; John Gavin, his brother, is a co-owner. In March 1994, Margaret Jones was Jodan's district manager for the north Orlando (Maitland) and south Orlando (Sand Lake Road) offices. She recruited and hired Ms. Harrison to work as a service representative in the Maitland office. Shortly before that time John Gavin had asked her to recruit specifically for a minority employee as it would be helpful for the office to have a more diverse staff to serve its clients. Ms. Harrison is an African-American woman. At the time that she was hired by Ms. Jones in March 1994, her substantial work experience was in real estate and property management. Service representatives at Jodan perform the intake process with temporary employees (application, interview and testing); they take orders from clients and place temporary employees with those clients. Jodan provides a detailed training program for its employees, including its service representatives. Upon the commencement of her employment with Jodan, Ms. Harrison began a training program known as Professional Service 1 (PS-1) under the supervision of Margaret Jones. PS-1 is a self study course where the employee learns the policies and procedures of a Manpower franchise through tapes and other training materials. It is the responsibility of the employee to keep track of and complete PS-1. Normally it takes between three and six months for an employee to complete PS-1; however, it can take longer, depending on the employee's office work load at the time. Disgruntled and upset by what she perceived as criticism of her management and hiring decisions, Ms. Jones left the employ of Jodan on or about August 1, 1994. Prior to that time, Ms. Harrison had completed all but three or four minor details in the PS-1 training. Ms. Harrison was satisfied by her training under Ms. Jones and she admits that no one at Jodan attempted to prevent her from completing PS-1. In September 1994, Ms. Harrison reported to Dan Gavin that her PS-1 materials were lost. He was surprised that one of his employees would lose her training materials and he assisted Ms. Harrison in looking for the materials by, among other things, looking in an off-site storage facility for them. Ms. Harrison's materials were never found and she includes the disappearance of her training materials as one of the basis for her charge of discrimination. There is no evidence that anyone took the materials but neither is there any explanation for their disappearance. Normally, when an employee completes PS-1, a checklist is sent to Manpower headquarters in Milwaukee, Wisconsin, indicating the employee has completed the training. On the checklist, the employee is required to record the dates that she completed each aspect of PS-1. Mr. Gavin contacted Manpower headquarters and obtained a new checklist. He also set up a schedule to meet with Ms. Harrison to go over the items on the checklist and verify that all of PS-1 had been completed. At their first meeting, Ms. Harrison assured Mr. Gavin that she had completed all of PS-1. Based on their conversation, he called Manpower headquarters and verbally confirmed that Ms. Harrison had completed PS-1. Manpower records indicate that she officially completed PS-1 as of December 1, 1994. Ms. Harrison's testimony at hearing with regard to whether she actually had an opportunity to finish the training was confused and unclear as she seemed to contend that there were materials that she was supposed to send to the home office, but could not, due to the lapse of time and loss of her training package. After an employee completes PS-1, the next step is to attend PS-2, which is a week-long training seminar at Manpower headquarters in Milwaukee. PS-2 reinforces what is learned in PS-1 and teaches additional marketing skills. Employees are given a list of dates during which PS-2 will be offered and, because the training requires them to be away from home for a week, they can schedule it at their convenience. Employees can schedule PS-2 before actually completing PS-1 but must have completed PS-1 before they actually attend PS-2. Ms. Harrison could have attended PS-2 any time after December 1, 1994. In January 1995, Mr. Gavin directed the area manager, Kathy Stanford, to ensure that all eligible employees, including Ms. Harrison, sign up for and attend PS-2. The PS-2 classes fill up quickly and it was a priority for Mr. Gavin to have his employees enroll. On more than one occasion, Ms. Stanford gave Ms. Harrison a list of available classes and the opportunity to attend PS-2. However, Ms. Harrison failed to sign up for PS-2. Jodan evaluates employees' performance and salaries on an annual basis. On January 30, 1995, Ms. Harrison was given her annual evaluation. Although the "Appraisal Period" on her evaluation is listed as March 21, 1994, to September 1994, the uncontradicted evidence was that this was a scrivener's error and the appraisal period was March 21, 1994, (Harrison's date of hire) through December 31, 1994. Her review was performed by Mr. Gavin, who was familiar with her performance, with input from Ms. Harrison's immediate supervisor, Gloria Michael. Ms. Stanford sat in on all evaluations done at that time, including Ms. Harrison's, because she was the new area manager and sitting in on the reviews was one way for her to become familiar with the staff and their performances. Ms. Harrison's overall score on the evaluation was a 2.66 on a scale of 1 to 5. A score of 2 means "Below Expectations" and a score of 3 means "Consistently Meets Expectations." A service representative learns all performance areas covered by the evaluation through PS-1. Although she claims that she was evaluated in areas in which she was not trained, Ms. Harrison did not raise this issue with Mr. Gavin and she did not write in any comments on the evaluation in the space provided for employee comments. Further, the uncontradicted testimony, including that of Margaret Jones, established that Ms. Harrison did receive training in all areas of her job in which she was evaluated. Ms. Harrison did not suffer any job detriment as the result of this evaluation or the unusual circumstances surrounding her PS-1 training. She received a pay increase following the evaluation and was then the highest paid service representative. On March 29, 1995, Ms. Harrison was presented with a memorandum by Ms. Michael that addressed concerns she had with Ms. Harrison's job performance. Specifically, the memorandum addressed the following areas: Failure to be responsive to customer needs; The high number of personal calls Ms. Harrison was receiving at the office; Failure to properly match an employee's skills with a client's needs; Failure to consistently enter and update employee information in the computer system each time she spoke with an employee; Failure to open the office on time in the morning; Failure to set up computer training for applicants when she opened the office in the morning. Neither Mr. Gavin nor Ms. Stanford played any role in the preparation or presentation of this memorandum. Ms. Harrison did not suffer any adverse employment action as the result of the March 29, 1995, memorandum. Ms. Michael followed up the March 29, 1995, memorandum with a memorandum on May 3, 1995, detailing Ms. Harrison's improvement in all of the areas discussed in the March 29, 1995, memorandum. On May 15-16, 1995, Ms. Harrison and Ms. Michael (who is white) failed to provide an important client with prompt and appropriate service. As a result, Ms. Stanford counseled both women and placed them both on 90 days probation. Ms. Harrison does not contend that this action was discriminatory. On July 17, 1995, Ms. Harrison submitted a letter of resignation. In the letter she stated that she enjoyed her position as service representative. She also stated that she felt she had been subjected to discriminatory treatment. Ms. Harrison's resignation and the allegations of discriminatory treatment came as a surprise to Ms. Stanford and Mr. Gavin as Ms. Harrison had never before told them she was unhappy or felt discriminated against. In her letter of resignation, Ms. Harrison offered to meet with Mr. Gavin and Ms. Stanford to discuss her resignation, but during her exit interview she refused to discuss her allegations. Although many of Jodan's temporary employees were minorities, Ms. Harrison was the only African-American service representative. There were, however, other minorities, including Hispanic-Americans. Ms. Harrison presented her case in an articulate organized professional manner. It is clear that she felt the work environment was stressful and uncomfortable. However, she did not prove that she was discriminated against or was the object of hostile or adverse employment actions. The temporary employment agency business is highly competitive. Jodan had several large corporate clients and it had to work hard to meet the needs of those clients, sometimes on short notice. This created pressure on Jordan's regular staff that was experienced by white or non-minority employees as well as Ms. Harrison.
Recommendation Based on the above, it is RECOMMENDED: that the Florida Commission on Human Relations dismiss Ms. Harrison's charge of discrimination. DONE AND ENTERED this 1st day of December, 1998, 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 1st day of December, 1998. COPIES FURNISHED: Mary A. Harrison 2356 Carborn Street Orlando, Florida 32839 Kelly T. Blystone, Esquire Moran & Shams, P.A. Post Office Box 472 Orlando, Florida 32802-0472 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The Petitioner's Amended Petition for Relief involves matters which have been the subject of final agency action in other administrative and court proceedings in which the Petitioner was a party. On September 1, 1987, the Respondent filed a "Motion to Take Official Recognition" pursuant to Section 120.61, Florida Statutes, in which the Respondent prayed for an order taking official recognition of the Final Orders in each of those proceedings and prohibiting the parties from relitigating issues previously adjudicated in those proceedings. Respondent's motion is well taken and is GRANTED in all respects. Therefore, the hearing is limited to a consideration of whether the Respondent was in violation of Section 760.10, Florida Statutes. The issue presented is whether the Respondent has discriminated against the Petitioner in its employment practices on the basis of the Petitioner's race or sex in violation of Section 760.10, Florida Statutes, in the hiring of persons for the 15 positions for which the Petitioner applied between January 1, 1985 and August 27, 1985.
Findings Of Fact Stipulation and Admissions Petitioner is a black male. Respondent is a public employer within the meaning of Section 760.02(6), Florida Statutes. During the period between January 1, 1985 and August 27, 1985, the Petitioner applied for 15 positions within the school district of Leon County, Florida. Findings Based on Evidence Presented at Hearing Petitioner, James Weaver, holds a bachelor's degree in political science with a minor in history from North Carolina A & T State University in Greensboro, North Carolina; a master's degree in education with a concentration in social studies from the same institution; and a Ph.D. in education leadership with a concentration in adult education and social studies from Florida State University. The Petitioner held these degrees prior to his employment with the Respondent. The Petitioner has been certified to teach social studies in grades 7-12 since July 1, 1978 and is certified through June 30, 1993. The Petitioner taught social studies at North Carolina A & T State University while working on his master's degree in 1974-75. While an officer in the U.S. Air Force, he taught history at Gulf Coast Community College in Panama City, Florida. The Petitioner was given a year's teaching credit for teaching social studies at FAMU High School from January 1980 until June 1980. Petitioner was a substitute teacher for the Leon County School Board from the period 1979 until 1985. He held a temporary position with the Leon County School Board from November 2, 1984 until March 15, 1985. He had significant teaching experience. Based upon his master's degree in social studies, the Petitioner is qualified to teach social studies in the schools of the State of Florida. This is the minimum qualification necessary for the positions for which the Petitioner applied. The Petitioner applied for 15 positions, six of which were part-time hourly positions and nine of which were full-time. The Respondent filled 11 of the 15 positions. Four of the positions, one full-time and three part-time, were not filled due to budgetary constraints. However, one full-time position was filled twice and one part-time position was filled twice. Consequently, there were nine hiring opportunities for full-time positions and four hiring opportunities for part-time positions. The evidence indicates that the wages and benefits for the part-time positions were less than the wages and benefits for full-time positions. When the statistics are analyzed separately for full-time and part-time positions which were actually filled, a picture develops which is different from what Respondent reports. The Respondent reports that there were 109 white applicants and 73 black applicants and 1 applicant from the group denominated as "other" for all 15 positions. Further, Respondent represents that 89 of these applicants were male and 94 were female. Based upon these statistics, approximately 60 percent of the applicants for the 15 positions were white and 40 percent were black. The Respondent represents that 64 percent of the persons hired were white and 36 percent were black based upon its statistics which combine full-time and part- time positions and positions which were filled and not filled. These representations distort the real picture and are rejected. There were only 23 applicants for the three part-time positions which were actually filled: 15 blacks (65 percent) and 8 whites (35 percent). There were 85 applicants for the full-time positions which were actually filled: 27 blacks (32 percent) and 58 whites (68 percent). The 35 percent of applicants for part-time jobs who were white accounted for 50 percent of those hired, and the 68 percent of the applicants for full-time jobs who were white accounted for 87.5 percent of those hired. Appendix B, based on Respondent's Exhibits 8 and 9, is included and made a part of these findings. Appendix B sets forth the closing date, position number, location, type of position, number of applicants, a break down of the applicants by race and sex, the race and sex of the individuals hired to fill the positions, and indicates by a single asterisk those positions in which individuals were hired who had not applied for the positions. In Appendix B, those positions indicated by an asterisk clearly reflect that the individuals hired to fill the position are inconsistent with the race and sex of applicants reportedly applying for the jobs. For example, in the first position, a white male was hired for the position yet the break down of the applicants by race and sex indicate that there were no white male applicants. Either the Respondent hired persons to fill the positions who did not apply for the positions or the data provided by the Respondent in Exhibits 8 and 9 to show the relative equality of its hiring practices is inaccurate. The Respondent offered the testimony of those administrators who made the hiring recommendation to the Respondent regarding the positions involved in this case. In two cases, position 0040-0011 and position 0040-0001, the reason the Petitioner was not hired was that the administrator making the recommendation was actually hiring a coach for one of the school's athletic teams; however, coaching was not a stated part of the positions' criteria. At Fairview, the Petitioner was not considered because the administrator could not contact the Petitioner at his home number during the day. Other administrators within the system indicated that they called applicants after 5:00 p.m. and took other action to notify them of job interviews. In the remaining cases, the administrators stated that the sole reason they did not hire the Petitioner was because he lacked experience in teaching. There was no evidence presented concerning the experience of Messina who filled position 0590-0004, the Detention Teacher at Rickards High School. Nix(W/F) had a BS and two years of experience, Davis(W/M) had a BS and five years of experience, McCarron(W/F) had a BS and six years of experience, and Boggs(W/M) had an MS and five years of experience. Nix, who had the least experience, was employed in two full-time positions at Fairview Middle School. Only the administrator at SAIL facility presented credible testimony that the conditions of teaching at that facility were unique and that Cynthia Waddell, who was employed, possessed specialized training and experience required in the job. It was established that the Respondent had a legitimate, nondiscriminatory reason for not hiring the Respondent at SAIL.
Recommendation Having found that the Petitioner has presented a prima facie case of discrimination, and having found that the Respondent did not have a legitimate, nondiscriminatory reason for not hiring the applicant, it is RECOMMENDED that the Commission grant the Petitioner such relief as is necessary to rectify the Respondent's discrimination against him to include but not limited to a Final Order directing the Respondent to desist from its discriminatory practices, to hire Petitioner in a full-time position, and to award him attorney fees. DONE and ORDERED this 18th day of November, 1987, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0605 The Respondent presented Proposed Findings of Fact and Conclusions of Law which were read and considered by the Hearing Officer, as follows: Incorporated in Appendix B. Adopted. Rejected on the basis of the inconsistencies in the data pointed out in Appendix B. True; however, it is rejected as irrelevant. 5-6. Rejected on the basis of the inconsistencies in the data pointed out in Appendix B. 7-9. Consistent with the testimony of the administrators; however, their testimony is inconsistent with the statistical facts and it is highly doubtful that these administrators would admit to any discriminatory motive. 8-10. Portions of these paragraphs relating to the Petitioner's background experience and certification are adopted and consolidated. Rejected. See transcript, page 69. First sentence is rejected as inconsistent with the evidence. Remainder of the paragraph is rejected as irrelevant. Although the Notice of Determination: No Cause was read and considered, it was concluded that the Commission's hearing officer had not considered the eight full-time positions separately and had not identified the inconsistencies in the statistics submitted by the Respondent. The Petitioner presented Proposed Findings of Fact and Conclusions of Law which were read and considered by the Hearing Officer, as follows: 1-8. Adopted 9. Rejected as irrelevant 10-12. Adopted 13 Restated in greater detail. SAIL articulated a legitimate, nondiscriminatory reason for not hiring Petitioner. 14. Petitioner lost the wages he would have earned from Respondent. Petitioner was not employed in other positions during the period. However, the statute apparently does not permit recovery of economic damages, therefore, 14 is irrelevant. APPENDIX A SCHOOL # APPS. B/M B/F W/M W/F HIRED *01/08/85 0040-0011 Lincoln Soc. Studies 3 1 1 0 1 W/M Davis 01/11/85 0590-0004 Rickards Det. Tchr. 12 2 4 2 4 W/M Messina 01/11/85 0011-0051 Ad. Ed. Adult Ed. 8 1 6 1 0 B/M Weaver 01/18/8 0040-0003 Rickards Soc. Stud. 7 2 0 2 3 B/M Parrish *01/18/85 0011-0051 Ad. Ed. Adult Ed. 3 0 0 1 2 B/M Weaver *01/25/85 0011-0087 Gilchrist Adult Ed. 13 3 5 0 W/F 4 Stephenfield W/M Andrews 02/01/85 0011-0051 Ad. Ed. Adult Ed. 26 3 8 4 11 N/A 02/08/85 0011-0087 Gilchrist Adult Ed. 4 2 1 0 1 N/A 02/12/85 0011-0051 Ad. Ed. Adult Ed. 12 2 2 3 5 N/A 02/15/85 0590-0005 Fairview Detent. Tchr. 14 5 4 1 4 W/F Nix 06/14/85 0040-0011 Lincoln Soc. Studies 14 3 1 8 2 W/F McCarron B/M Parrish *06-14-85 0040-0006 SAIL Soc. Studies 6 2 0 4 0 W/F Waddell 08/23/85 0590-0005 Fairview Detent. Tchr. 32 5 8 12 7 N/A 08/23/85 0040-0010 Fairview Soc. Studies 19 1 0 11 7 W/F Nix 08/23/85 0040-0001 Leon Soc. Studies 10 1 0 7 2 W/F Boggs Based upon Resp. Exh. 8 & 9. *Person hired did not apply based on Respondent's data. COPIES FURNISHED: Curley R. Doltie, Esquire Post Office Box 125 Tallahassee, Florida 32302-0125 Graham Carothers, Esquire AUSLEY, McMULLEN, McGEHEE, CAROTHERS & PROCTOR 227 South Calhoun Street Post Office Box 91 Tallahassee, Florida 32302 Donald A. Griffin Executive Director Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1570
The Issue The issues are as follows: (a) whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her age and handicap contrary to Subsection 760.10(1), Florida Statutes (2003); and (b) whether Respondent committed an unlawful employment practice by retaliating against Petitioner contrary to Subsection 760.10(7), Florida Statutes (2003).
Findings Of Fact From March 30, 1998, until April 9, 2002, Respondent employed Petitioner as a payroll and billing clerk at Respondent’s Pensacola support center. The role of the support center is to process payroll checks and billing for 85 to 90 of Respondent’s field offices in five states. In January 1999, Petitioner applied for the team lead position in the payroll department. Jessica Pope, one of Petitioner’s co-workers, also applied for the position. Like Petitioner, Ms. Pope had worked at the support center for about a year. The role of the team lead is to handle questions and problems from other members of the team. The employee chosen to act as team lead must be adaptable and have leadership, teamwork, and communication skills. Sandi Hartzog, support center manager, and Kerri Golmon, payroll supervisor, selected Ms. Pope for the team lead position because they believed that Ms. Pope demonstrated better leadership and teamwork skills than Petitioner. Additionally, Ms. Pope had prior management experience. Ms. Pope’s performance appraisal for the relevant time period (June 1998 through May 1999) rated her teamwork skills as a "4," or "Above Expectations." Petitioner’s performance appraisal for that time period (April 1998 through March 1999) rated Petitioner’s teamwork skills as a "3," or "Meets Expectations." In or about June 1999, Petitioner informed Ms. Hartzog, that she suffered from allergies. Petitioner also informed Ms. Hartzog that her condition was exacerbated by scents. Petitioner requested that Ms. Hartzog prohibit all employees at the support center from wearing any scented substances, including perfumes and colognes. Ms. Hartzog informed Petitioner that she would not impose a scent-free environment but that she would request that support center employees voluntarily refrain from wearing strongly scented substances. Accordingly, Ms. Hartzog sent an e-mail to all support center employees on June 11, 1999, requesting that they voluntarily refrain from wearing perfume and cologne in the workplace. Ms. Hartzog also requested that Petitioner provide medical documentation regarding her health condition. In response to Ms. Hartzog’s request for medical information, Petitioner provided Ms. Hartzog with a memorandum dated June 22, 1999, from Tanya Hodge, nurse practitioner. The memorandum stated that Petitioner was "under the care" of the First Physicians Internal Medicine Group and that "she has been evaluated" for several conditions. The memorandum did not contain a medical diagnosis. In February 2000, Petitioner requested that Ms. Golmon send out another e-mail reminding her co-workers not to wear fragrances in the office. Ms. Golmon complied and sent a reminder to all employees at the support center asking them to refrain from wearing perfumes and colognes. In February 2001, Petitioner again requested that Ms. Golmon send out a reminder regarding fragrances in the office. Within a half-hour, Ms. Golmon sent out another reminder to all employees at the support center. In addition to sending out these periodic reminders concerning the wearing of fragrances, Ms. Golmon warned several employees concerning their wearing of fragrances in the office. Ms. Golmon threatened to discipline employees who continued to wear fragrances. Ms. Golmon attempted to police the wearing of fragrances in the workplace because Ms. Golmon knew fragrances bothered Petitioner. Ms. Golmon wanted to "keep some sort of peace" and "ease tension in the office." Despite Ms. Golmon’s efforts to prevent Petitioner’s co-workers from wearing fragrances, Petitioner confronted employees who were wearing fragrances on her own. These employees complained to Ms. Golmon that Petitioner was singling them out and ignoring other co-workers who were also wearing fragrances. Petitioner also complained to Dawn Adams, an employee relations representative at Respondent’s headquarters in Milwaukee, Wisconsin, about the wearing of fragrances at the support center. In an e-mail dated August 31, 2001, Petitioner told Ms. Adams that her supervisors were taking her condition lightly and suggested that Respondent adopt a policy for a mandatory "scent-free environment." In October 2001, Petitioner complained to Respondent concerning mold in the support center building. Because Respondent was only a tenant in the building, Ms. Hartzog contacted building management. The landlord subsequently remediated the mold damage. Ms. Hartzog permitted any employees who were bothered by the construction to leave the office early. Ms. Hartzog did not dock the pay of anyone who left work early. Petitioner took advantage of this opportunity. On October 3, 2001, Ms. Hartzog again requested medical documentation of Petitioner's health condition with respect to her request for an accommodation. Ms. Hartzog gave Petitioner a form/doctor's certificate for Petitioner's doctor to complete. A series of e-mails followed in which Petitioner stated that she had provided the form to her doctor and would provide it to Ms. Hartzog as soon as she received it. However, Petitioner never returned the completed form to Ms. Hartzog. On October 4, 2001, Petitioner sent an e-mail to Ms. Adams complaining about Respondent’s handling of the mold problem. Petitioner's e-mail included a reference to a prior inquiry from Ms. Adams, asking whether Respondent would pay employees who left early during the mold-removal construction. Petitioner copied this e-mail to, among other people, Respondent’s president, Jeffrey Joerres. In her October 4, 2001, e-mail, Petitioner mentioned that three of her co-workers, Ms. Pope, Joyce Hillig, and Mary Jordan, also suffered from allergies and breathing problems. Each of these co-workers were copied on the e-mail. Shortly thereafter, each of the co-workers complained to Petitioner’s supervisors and/or to Petitioner herself that they were upset for the following reasons: (a) Petitioner included them in her complaint; and (b) Petitioner disclosed their medical conditions to, among other people, Respondent’s president. Around that same time, Ms. Golmon learned about the complaint of another of Petitioner’s co-workers. Specifically, Felicia Myrick, complained to her supervisor about Petitioner's unannounced visit to Ms. Myrick's home to discuss Petitioner's concerns about mold and air quality in the support center building. Petitioner’s actions, such as involving co-workers in an e-mail to Respondent's president, caused tension in the office. Ms. Golmon was aware that the tension adversely affected the cohesiveness of the team. Petitioner received a verbal warning on October 8, 2001, for confronting co-workers regarding their use of cologne and for inappropriately discussing other employees’ medical conditions. Ms. Hartzog and Ms. Golmon also informed Petitioner in a meeting on October 8, 2001, that further such conduct could result in further disciplinary action, up to, and including, termination. After receiving the verbal warning, Petitioner continued to confront co-workers regarding fragrances in the workplace. She also conducted herself in other ways that made her co-workers feel threatened and uncomfortable. In October 2001, Tim Gainer was Respondent's payroll/billing clerk in charge of bridge error corrections. Petitioner was his assistant. When Mr. Gainer announced that he was resigning his position, Petitioner understood that she would replace Mr. Gainer and that Tracy Hughes, a temporary employee, would be Petitioner's assistant. However, Respondent subsequently trained Ms. Hughes and increased her pay equal to Petitioner's pay rate. Ms. Hughes' desk was placed next to Petitioner's desk so that they could share all books and paperwork pertaining to bridge error corrections. There is no competent evidence that Ms. Hughes, a younger person than Petitioner, was treated more favorably than Petitioner. On March 8, 2002, Petitioner confronted a co-worker, Tenisha Malden, at her desk. Petitioner handed Ms. Malden an e-mail about spraying air freshener in the women’s restroom. The e-mail erroneously implied that Ms. Malden was purposefully attempting to harm Petitioner by using air freshener. Ms. Malden was offended by Petitioner’s accusation. Ms. Malden also worried that Petitioner intended to report to management that Ms. Malden was attempting to harm Petitioner. Ms. Malden reported this incident to Ms. Golmon. On March 20, 2002, Petitioner called an attorney from her desk during work hours. During the telephone call, Petitioner inquired about filing a civil lawsuit against co-workers who were intentionally causing her harm. Petitioner spoke in a raised voice so that several of her co-workers, including Ms. Pope and Ms. Hughes, could hear her side of the conversation. Both Ms. Pope and Ms. Hughes felt threatened and anxious about Petitioner’s discussion of suing a co-worker. Ms. Pope reported this disruptive incident to Ms. Golmon. Both Ms. Pope and Ms. Hughes felt that Petitioner was "unapproachable." Ms. Pope and Ms. Hughes were concerned that any interaction with Petitioner could upset or offend her. Other employees also avoided approaching Petitioner's work area, because she created a "tense" and "uncomfortable" atmosphere in the office. Petitioner’s conduct left the team unable to work together as well as it should have. On March 27, 2002, Respondent gave Petitioner a written warning. The warning specifically referenced the incident with Ms. Malden and the telephone call to the attorney. In the warning, Respondent informed Petitioner that such conduct "negatively affect[ed] productivity, individual and team performance, and morale, as well as cause[d] conflict and fear"; and that Petitioner "must discontinue the inappropriate and confrontational behavior with coworkers as well as the abuse of company time, systems and equipment, etc." The written warning also stated, "If this behavior or any form of retaliatory action occurs, further disciplinary action up to and including termination, will occur." Ms. Hartzog and Ms. Golmon met with Petitioner on March 27, 2002, to discuss the written warning. On April 5, 2002, approximately ten days after receiving the written warning, Petitioner initiated a discussion with Ms. Hughes regarding her employment status. Petitioner stated that she was the reason Ms. Hughes could not become a permanent employee. Petitioner further told Ms. Hughes, "I like you but I don’t like you that much." Apparently, Petitioner believed that Respondent had not made Ms. Hughes a permanent employee due to Petitioner's complaints about Ms. Hughes receiving equal job responsibilities and rate of pay. Ms. Hughes was confused and bothered by the conversation, which implied that Petitioner had control over Ms. Hughes’ employment status and that Petitioner had a problem with Ms. Hughes. The conversation made Ms. Hughes apprehensive about approaching Petitioner. Ms. Hughes reported her conversation with Petitioner to Ms. Golmon. At Ms. Golmon’s request, Ms. Hughes sent her an e-mail on April 9, 2002, describing the situation. After learning of Petitioner’s inappropriate conversation with Ms. Hughes, Respondent decided to terminate Petitioner’s employment. The termination was necessary due to the stress and tension that Petitioner's conduct was causing in the workplace. Respondent's management did not believe that further warnings or other discipline would be effective in curbing this conduct because Petitioner disregarded two prior warnings. On April 9, 2002, Ms. Hartzog and Ms. Golmon met with Petitioner to inform her that she was terminated for violating the March 27, 2002, written warning. Specifically, Petitioner violated the written warning when she talked to Ms. Hughes concerning Ms. Hughes’ employment status.
Conclusions For Petitioner: Hazel M. Casler, pro se 6950 Frank Reeder Road Pensacola, Florida 32526 For Respondent: Michael R. Phillips, Esquire McGuireWoods, LLP 150 North Michigan Avenue, Suite 2500 Chicago, Illinois 60601 Jane M. Rolling, Esquire Post Office Box 2053 Milwaukee, Wisconsin 53201-6351
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 28th day of May, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 28th day of May, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Hazel M. Casler 6950 Frank Reeder Road Pensacola, Florida 32526 Michael R. Phillips, Esquire McGuireWoods LLP 150 North Michigan Avenue, Suite 2500 Chicago, Illinois 60601 Jane M. Rolling, Esquire Post Office Box 2053 Milwaukee, Wisconsin 53201-6351 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent Employer is guilty of an unlawful employment practice, as defined by Chapter 760, Part I, Florida Statutes, against Petitioner on the basis of his race (African- American).
Findings Of Fact White Oak Plantation is an "employer" as defined by Section 760.02(7), Florida Statutes. At all times material, Respondent was in the business of breeding, raising, selling, and showing thoroughbred horses. Petitioner is an adult African-American male. Petitioner was employed by Respondent from January 17, 1996 until March 19, 1999. Petitioner's employee evaluations showed that at all times material he met expectations or exceeded expectations. Petitioner was terminated by Billy Davis, his immediate superior, on March 19, 1999. Davis is a Caucasian male and at all times material was a Stable Manager. It is undisputed that Petitioner alleged in both his Charge of Discrimination and his Petition for Relief instances of racial harassment and the use of racially derogatory names against himself in the work place by Frank Gowen, a co-employee, and by Mike Brown, who at one point was a co-employee and who later was not an employee of Respondent. With regard to his termination, Petitioner's Charge of Discrimination alleged: 3. On March 19, 1999, Mr. Martin, Billy Farmer and myself were heading to clean the stalls. Mr. Martin called me "buckwheat" [sic]. He then grabbed a nearby hose and hosed me down, soaking my clothes with water. I stood there in shock as Mr. Martin ran out of the stable. He came back and began threatening to turn me White [sic] with lime. He threw the lime, and it landed on my shoes. I threw a bucket of water on him in self-defense, hoping he would leave me alone to do my job. Instead, he began punching and kicking me, and I protected myself. Mr. Davis then entered the stable and asked if there was horse-play [sic] going on. He then stated that everyone would be punished. When questioned later, I told Mr. Davis what happened, and he accused me of letting Mr. Martin take the fall. On March 24, 1999, I was unjustly terminated. On June 4, 2002, the Commission entered its Determination: No Cause. Petitioner timely filed a Petition for Relief, pursuant to Chapter 760, Florida Statutes, and the Rules of the Commission. His Petition alleged, with regard to his termination, as follows: 5. During my employment with respondent another incident that involved racial names being made to an African American [sic] employee by a white [sic] employee occurred. The African American [sic] employee complained to management. Both employees were terminated after the African American [sic] employee stated that he was defending himself after being called racial [sic] derogatory names by the white [sic] employee. The African American employee was rehired after EEOC intervined [sic]. I was defending myself and received serious injury to the right ankel [sic]. The ligament was torn out of place when another employee threw a 50# bag of shavings that hit me on the ankel [sic]. I suffer with a limp and serious pain from my ankel [sic] being reaggravated [sic] from the incident that occured [sic] on 03/20/99. I also suffer with anxity [sic] and depression from having been allowed to go through the comments alone when no one tried to stop it. I am seeking relief in the amount of 68000.00 [sic] for injuries sustained and for mental distress and anxity [sic]. After the case was referred to the Division of Administrative Hearings, a Notice of Hearing was issued, indicating that the disputed issues of material fact would be "as stated in the Petition for Relief." While Petitioner's testimony was vague as to dates, chronology, and relationship of some discriminatory events to other identifiable events, he testified concerning several incidents of racial harassment. Petitioner testified that sometime in 1996, a Caucasian male employee named Frank Gowen spotted another Caucasian male and an African-American male wrestling in one of Respondent's parking lots. Gowen asked aloud, in Petitioner's presence, "What does that Nigger think he's doing?" No other witness corroborated that this comment was made. Petitioner admitted that he never reported the comment to anyone in management until after he was terminated in 1999. Respondent's management employees, Billy Davis and Ronnie Rogers, Human Resources Officer, were credible in their testimony that they never knew of this incident until after Petitioner's termination. Petitioner testified that on another unspecified date, Gowen asked a Caucasian female employee, also in Petitioner's presence, what "Pontiac" meant, and then answered his own question as, "Pontiac means 'Poor Old Nigger Thinks It's A Cadillac.'" At hearing, the female employee denied this event happened. No other witness corroborated Petitioner's account of this incident. No other witness even seemed to understand the so-called joke or anagram for Pontiac. Petitioner admitted that he never reported this comment to any superior until after he was terminated in 1999. Respondent's management employees were credible that they never knew of this specific incident until after Petitioner's termination. There is sufficient evidence to corroborate Petitioner's account that in approximately January 1998, he had a knife in his hand, opening a feed sack, with the knife's point aimed at a Caucasian male employee, without any intended threat, and at that point, Gowen said to the other employee, something like, "You got to watch them Niggers. They'll cut you." Petitioner admitted that he never reported this incident to any superior until after he was terminated in 1999. Petitioner also testified credibly that on the same day as the "cutting" comment, Frank Gowen prevented him from sitting in the front of a flatbed dump truck with Gowen and another Caucasian male, Donovan Rewis, while saying something to the effect of "That's right. Let the Nigger ride in the back of the truck." Mr. Rewis corroborated that this discriminatory comment and event, in fact, occurred. On the same day as the "cutting" and "back of the truck" comments/events occurred, another male African-American employee named Clarence McClendon approached Billy Davis. McClendon told Davis that a bad situation was developing between Petitioner and Gowen. Exactly what McClendon told Davis is unclear, but it appears that Davis was at least made aware that the term "Nigger" had been repeatedly used by Gowen to Petitioner and was further made aware that the "cutting" and "back of the truck" incidents had occurred on the same day. Upon learning of the "cutting" and "back of the truck" incidents from McClendon, Davis immediately asked Petitioner to come to his office. Davis asked Petitioner to explain what had happened involving Gowen. Petitioner did not specifically describe the "wrestling" comment or the "Pontiac" comment, and it is unclear whether Petitioner described either the "cutting" or "back of the truck" incidents in the detail provided by the foregoing Findings of Fact, but Petitioner did explain to Davis that Gowen had repeatedly used the word "Nigger" in his presence and about himself. Davis then told Petitioner that Gowen's behavior was unacceptable behavior for a White Oak Plantation employee and that Gowen's comments and behavior would subject Gowen to discipline, which discipline could go as far as Gowen's termination. Petitioner then told Davis that he did not want Gowen to be punished or to get in any trouble for making the comments. Petitioner requested that Gowen simply be asked to make a sincere apology to him and to promise that he would never again make such comments. Davis specifically told Petitioner that he could inform Respondent's Human Resources Office of the incidents. Petitioner, however, requested that Human Resources not be involved and that, instead, the matter be handled by Davis. Petitioner testified that he simultaneously met with Davis and Rose Harley, an owner-manager, about the Gowen matter. It is important to Petitioner that all concerned know that Harley stated to him that the Gowen situation should have been brought to her attention sooner and that he would receive a record of the comments and management's response. Davis recalls only meeting with Petitioner alone and then meeting alone with Rose Harley to further discuss the situation. Petitioner is credible that at some point Harley made the statement to him which he related, but Davis is just as credible that Petitioner asked him not to involve the Human Resources Office. After meeting with Petitioner, Davis and Harley met with Gowen to discuss the matter with him. Davis told Gowen that he and White Oak Plantation were disappointed in his behavior. He instructed Gowen to apologize to Petitioner. Gowen, in fact, apologized to Petitioner. After the apology, Davis met with Petitioner again, and Petitioner told Davis that he was satisfied with the apology that he had received from Gowen. At this meeting, Davis instructed Petitioner to inform him if any further incidents occurred. He further told Petitioner that if Petitioner did not feel comfortable talking to him, Billy Davis, Petitioner could notify any other supervisor, which presumably would include Ms. Harley, or the Human Resources Officer, Ronnie Rogers. Although Petitioner claimed at hearing that he had told Davis by phone about Gowen's earlier comments, Davis denied that any such phone call took place, and no witness corroborated Petitioner's timeline. What is undisputed is that in 1998, no more than one day elapsed from the time McClendon notified Davis of Gowen's comments until the time the incident was resolved to Petitioner's apparent satisfaction. Davis continued to check with Petitioner, informally, in passing, on a regular basis, to ensure that Petitioner was not having any more problems with Gowen. Petitioner never indicated to Davis that any further discrimination problems existed. Mike Brown was a Caucasian male employee of Respondent who left Respondent's employ in 1999. How long he was a co- employee with Petitioner is not in evidence. While they were both employees of Respondent, Brown and Petitioner fell into a habit of addressing each other by nicknames. Brown referred to Petitioner as "Buckwheat." Petitioner referred to Brown as "Cracker," "Vidalia," "Onion Head,"1 and "Grand Wizard." Various Caucasian employees considered Petitioner and Brown to be only "cutting the fool" or "joking around" when they addressed each other this way. Other employees, including Brown's girlfriend, Missy Springer, also referred to Brown as "Vidalia." Apparently, Petitioner was always aware that the term, "Grand Wizard," inferred that Brown held that rank in the Ku Klux Klan, and Petitioner saw nothing wrong in addressing Brown that way, because Brown had asked Petitioner to call him "Grand Wizard." However, Petitioner initially did not think "Buckwheat" had any racial connotation or derogatory intent. Petitioner testified that he initially took the term "Buckwheat" to refer to the African-American character of the same name in "The Little Rascals" series of films; to be a joking nickname; and to be a harmless "stereotype."2 At some point, Petitioner contacted the National Organization for the Advancement of Colored People (NAACP) and was informed by that organization that references to the character "Buckwheat" in "The Little Rascals" series constituted disparagement of the Negro race, based on a stereotypical, uneducated, ragamuffin, Negro child who ate watermelon and behaved like a wild animal. The record does not reveal when Petitioner consulted the NAACP or whether the insult was explained to him in this way before or after Brown's leaving Respondent's employ. However, it is clear that Petitioner did not go to Davis or Rogers about the situation with Brown at any time. Once again, Petitioner's situation was reported to Davis by Clarence McClendon, after Brown left Respondent's employ. After Brown ceased to be one of Respondent's employees, Brown continued to come on Respondent's premises to provide transportation for his girlfriend, Missy Springer. During this period of time, the trading of offensive nicknames between Petitioner and Brown continued without any complaint from Petitioner to management. Over one year after the disciplining of Gowen, and after Brown was no longer Respondent's employee, McClendon reported to Davis that he had observed Brown call Petitioner "Buckwheat" and that Petitioner had called Brown "Vidalia" and "Cracker." At hearing, Petitioner claimed, without any corroborating testimony, that Davis was aware of Brown's racial disparagement of him at some time while Brown was still employed by Respondent, because Davis had been present in the break room once when Brown had telephoned, and when Petitioner answered the break room phone, Brown had addressed Petitioner, over the phone, as "Buckwheat." Petitioner testified that other employees in the break room laughed and Missy Springer told Davis that the caller had to be "Vidalia," a/k/a Mike Brown, because Brown was the only one who called Petitioner "Buckwheat." Davis categorically denied being present when any such event occurred, if it occurred. Based on the evidence as a whole, Davis is the more credible witness on this aspect of the case. Petitioner did not ever affirmatively approach Davis for redress of the nasty nickname situation with Brown. However, immediately after being informed by McClendon, Davis approached Petitioner about McClendon's allegations involving Brown. He asked if Petitioner wanted him to ban Brown from Respondent's premises. Petitioner agreed that was what he wanted done. In this discussion with Petitioner, Davis suggested that Ronnie Rogers, Human Resources Officer, be contacted regarding Brown's behavior, because Brown now was a member of the public. Petitioner agreed that Human Resources should be consulted. A meeting was held by Davis and Rogers with Petitioner. During this meeting, Rogers reviewed White Oak Plantation's Equal Employment Opportunity (EEO) statement with Petitioner. During Petitioner's employment, Respondent's EEO anti- discrimination and anti-sexual harassment statement had consistently been displayed at the time clocks of the East Stable, where Petitioner was assigned, and in the employee cafeteria, where employees daily received a free lunch. This statement prohibited racial disparagement or harassment. It set out to whom reports of such activities should be made, which included any supervisor. It stated that Respondent would not retaliate against anyone who made a good faith report of discrimination, even if that person turned out to be wrong. It did not promise confidentiality. In their meeting concerning banning Brown from the premises, Petitioner told Rogers that he was familiar with the EEO statement. Rogers agreed with Davis and Petitioner that Brown should be banned from the premises. Davis told Petitioner sometime during this period that if he experienced any repercussions as a result of Brown being barred from the property, Petitioner was to inform Davis immediately. Petitioner's testimony suggested that he now considers this statement to have been a threat by Davis or to demonstrate Davis's reluctance to ban Brown from Respondent's property, but Davis is more convincing that if he said anything close to this, it related to what Missy Springer might do or say. Rogers told Petitioner that if Petitioner experienced any future problems, whether those problems were related to Brown or not, Petitioner should immediately contact either his supervisor, Davis; another supervisor; or Rogers, himself, depending upon with whom Petitioner felt more comfortable. After meeting with Petitioner, Davis and Rogers immediately sought out Missy Springer, Brown's girlfriend whom he was transporting to and from work. They met alone with Springer and told her that Brown would no longer be allowed on Respondent's premises. They directed Springer to telephone Brown to tell him that. In the presence of Rogers and Davis, Springer telephoned Brown and instructed Brown that he was banned from coming onto White Oak Plantation property. Rogers then contacted Respondent's Head of Security and instructed him to post notices at both gates stating that Brown would no longer be allowed on White Oak Plantation property. White Oak Plantation maintains security guards on a twenty-four hour basis, seven days per week, and they were instructed not to allow Brown onto the property again. Since the date that the notices were posted and Brown was notified that he was barred from White Oak Plantation property, Brown has not returned. After the situation with Brown had been investigated and apparently resolved in late February 1999, Davis continued to check with Petitioner informally to inquire whether Petitioner was having any further problems. Petitioner was credible that he did, in fact, receive some unpleasant comments from other employees as a result of Rogers's and Davis's banning of Brown from the White Oak Plantation property. However, Petitioner did not report any such problems to Davis. Instead, he took a vacation for two weeks. After Petitioner returned to work, on March 19, 1999, Davis was shoeing a horse at the Forge, a small stabling facility about 100 yards from Respondent's East Stable. From the Forge, Davis had a direct line of sight to the East Stable. From the Forge, Davis witnessed two individuals running around and throwing water at each other. Because they were in the dark hallway of the stable, because of the distance, and because Davis was looking from lightness into darkness, Davis could not make out exactly who they were, but he could clearly see the conduct in which they were engaged. Respondent White Oak Plantation had gone out of business by the date of hearing. However, at all times material, White Oak Plantation was world renowned for its thoroughbred horse breeding program. It housed many mares valued in excess of $1,000,000.00 and foals with insurance values up to, and in excess of, $1,000,000.00. What Davis witnessed on March 19, 1999, was inconsistent with the training and instructions provided to employees working around such valuable blood stock. After contacting another employee to secure the horse in the Forge, Davis walked to the East Stable to investigate the commotion. Upon arriving at the East Stable, Davis discovered water in the hallway, disinfecting powder (lime) covering the black asphalt hallway, and a broken director's chair, normally reserved for guests, in the vicinity of a stall housing a young thoroughbred mare and her three-day-old foal. Davis approached the employees who were working at the East Stable at that time. They were Petitioner; Jason Martin, a minor Caucasian male; Clarence McClendon; and Billy Farmer, an adult Caucasian male. Davis noticed that Petitioner and Martin were both soaked with water, while McClendon and Farmer were dry. Davis asked Petitioner and Martin separately, but within earshot of each other, what had been going on, and both said they had been working. Davis then asked Farmer and McClendon, individually, what had occurred involving the water, lime, and broken chair. Both Farmer and McClendon avoided the question and responded that they did not want to get involved in the situation. Davis again asked Farmer and McClendon what had happened. Farmer and McClendon replied that they were working and that Davis should ask Martin and Petitioner what had happened. Davis asked Farmer and McClendon a third time what had occurred at the East Stable. Each of them replied that while they were working, Martin and Petitioner were horsing around. Davis then asked both Petitioner and Martin two or three times what had occurred, and each time Petitioner and Martin claimed that they had been working. Ultimately, Martin confessed that he had been involved in horse play and the commotion had been his fault. Davis immediately terminated Martin. Petitioner began to walk away from the situation, but Davis called after him something to the effect of "No, you can't let him take the fall for you. You are out of here, too." Petitioner protested that since Martin had confessed the incident was his fault, he, Petitioner, should not be terminated as well. The mare and three-day-old foal that were in the East Stable when Petitioner and Martin were horseplaying had a combined insurance value of between $750,000.00 and $800,000.00. The foal was only the mare's second or third birthing, and as a youngish mother she could be presumed to be nervous. Due to the age of the foal and the highly temperamental nature of young thoroughbred mares, the conduct in which Petitioner and Martin were engaged was very dangerous to the well-being of this mare and her three-day-old foal. It was conceivable that the mare could have been spooked and stepped on the foal, injuring it. Fortunately, that did not happen. Davis had trained all of his stable employees, including Martin and Petitioner, in the correct way to act around thoroughbred horses. Even though their horseplay was not actually in the stall with the new mother and foal, Davis considered Petitioner's and Martin's conduct with the water, lime, and broken chair to be inconsistent with the training provided. He accordingly terminated both Martin, the Caucasian boy, and Petitioner, the African-American man, because both had been involved in the event. Either orally or in paperwork, both Petitioner and Martin were terminated for engaging in horse play, for creating an unsafe work environment for themselves and their co-workers, and/or for reckless misconduct around the blood stock or thoroughbred horses. Petitioner pointed out that some or all of these reasons were not specifically listed as major offenses, subjecting an employee to termination, in Respondent's personnel manual at the time of his termination. That fact might be relevant in a case of unlawful termination pursuant to a contract of employment or collective bargaining agreement, but it is not material to the resolution of this case under Chapter 760, Florida Statutes. The manual does not purport to be exhaustive of the reasons an employee could be terminated. What is material here is that Petitioner agrees that he and Martin were terminated for the same reason or reasons, however phrased. Petitioner feels that his termination was unfair because Martin essentially took the blame for them both, but Davis's reason for terminating both employees may be summed up by the old adage, "It takes two to make a fight." On the day of his termination, Petitioner told Davis that he and Martin were fighting, and that he was defending himself, but he did not say anything to Davis about Martin making any racial comments towards him. During Mr. Davis's contemporaneous investigation of the incident in the East Stable, neither McClendon nor Farmer told him that Martin had used any racial terms while engaged in horse play with Petitioner. After Petitioner was terminated, he appealed to Respondent's Human Resources Officer, Ronnie Rogers, so Rogers conducted his own investigation of the facts surrounding Davis's terminations of Petitioner and Martin. In connection with that investigation, Rogers interviewed Farmer, McClendon, and Petitioner. McClendon told Rogers that on the day of Petitioner's and Martin's terminations, he witnessed Petitioner and Martin running, playing, and throwing water on each other. McClendon further stated that he saw either Martin or Petitioner push the other individual into the director's chair, breaking it. Farmer told Rogers that on the day of Petitioner's and Martin's terminations, he had witnessed Petitioner and Martin running around and playing for 10 to 15 minutes. Rogers concluded that Davis had made a proper decision in terminating both Martin and Petitioner. The Monday following Petitioner's termination, Petitioner telephoned Rogers to inquire whether he was still terminated. During the course of this conversation, Petitioner admitted to Rogers that he and Martin were horse playing in the stables where the thoroughbred horses were housed. During this conversation, Petitioner did not say anything to Rogers about Martin or any other individual using any racial or inappropriate language on the date of Petitioner's termination. Rogers and Davis met with Petitioner on March 24, 1999, five days after Petitioner was terminated. During this meeting, Petitioner reiterated what he had told Rogers, that he and Martin were playing around in the East Stable on the day of their terminations, but he also brought up the previous racial incidents involving Gowen and Brown and inquired whether Rogers was aware of them. Rogers had not been aware of the incidents involving Gowen and asked Petitioner if he were satisfied with the way that all the previous incidents involving both Gowen and Brown had been handled. Petitioner indicated that he was satisfied with the manner in which the incidents involving Gowen and Brown had been handled. Petitioner claimed at hearing that in the March 24, 1999, meeting, he related to Davis and Rogers that the March 19, 1999, altercation with Martin had been self-defense because he had been attacked by Martin and/or provoked by Martin's racist comments. Both Davis and Rogers credibly deny that Petitioner told them anything about racial comments by Martin. They also credibly deny that Farmer or McClendon reported any racial comments. They are less clear that Petitioner said nothing about self-defense or about Petitioner having to fight Martin, and I accept Petitioner's testimony only to the extent that he did claim both horseplay and self-defense as of March 24, 1999. Neither Davis nor Rogers independently observed or was aware of any racially inappropriate conduct or comments. At hearing, Petitioner testified that on March 19, 1999, the date of termination, Martin had called Petitioner "Buckwheat." Petitioner related that Martin had then stated that if Mike Brown were permitted to call Petitioner "Buckwheat," then he, Martin, should be allowed to call Petitioner "Buckwheat," too, and that Petitioner told Martin that he could not because Petitioner now knew it to be racist language. Petitioner related that Martin then hosed Petitioner down, soaking Petitioner's clothes with water. Petitioner said he let this event pass, because it was hot. He then filled a pail of water and spilled some. He poured the remainder of the water in his pail into a wash stall. Martin ran away from Petitioner, thinking Petitioner was going to throw water on him, and said something to the effect of "Since you think you White and you want to be White, I'm going to take this lime and throw it on you and turn you White." Petitioner related that Martin was referring to the lime used to disinfect the stalls. However, Petitioner did not testify that Martin picked up any lime. Rather, Petitioner testified that Petitioner picked up a bucket of water and threw it on Martin. Petitioner related that Martin reacted to being doused by Petitioner by getting Petitioner in a headlock and punching and kicking him. A fight ensued, in close vicinity to the young mare and her three-day- old foal, but not within their stall. Petitioner testified that the director's chair was broken when Petitioner threw Martin into it. The area was also flooded with water.
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 dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 11th day of December, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 11th day of December, 2002.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was discriminated against on the basis of his race when the Respondent terminated his employment.
Findings Of Fact The Petitioner, Joseph Farris, is a black male who resides in Pensacola, Florida, and was an employee of the AES corporation at times pertinent hereto. AES produces thermoplastic elastomers and vulcanized rubber products, with operations in Pensacola, Florida, and with its headquarters in Akron, Ohio. On or about August 8, 1994, the Petitioner completed an application for employment having heard that the company was hiring. The Petitioner inflated his educational experience and work credentials on his application by including inaccurate information. The Petitioner was subsequently called for an interview and was interviewed by a committee of persons who were apparently all white. Mr. Farris testified, however, that the interview went very well and that no racial bias was involved. Shortly thereafter, the Petitioner was hired as a process technician as part of a class of 16 new employees. He commenced employment on November 14, 1994. Four of the new employees out of 16 were black. AES has an extensive training program for Process Technicians that is four to six months in duration. The training involves classroom instruction, field observation, and "hands-on" instruction. Upon completion of the training program, one is placed on a work-shift with other more trained technicians as part of a team approach. During the training period in which Mr. Farris and his class were involved, the classroom instructor was Bryon Shay. Mr. Shay was a process engineer in Pensacola from June 1992 to January 1995. In January 1995, he became the plant's Quality Assurance Manager. During the classroom training Mr. Shay observed that Mr. Farris was falling behind the rest of the class. He arranged special sessions with him to advance him up to the point where he was comparable with the rest of the class in training and ability. Mr. Shay met with him individually to help him "catch up." Charles Brown, the plant's Manufacturing Superintendent, also met with Mr. Farris during the training period concerning his falling behind the others in his training class and to find ways to help him advance satisfactorily. Mr. Farris testified that while he felt he was not falling behind, he accepted this idea and asked Mr. Brown what he needed to do to improve. In order to help Mr. Farris during the training period, the plant manager at that time, Mr. Caisson, recommended to Mr. Brown that Fred Lewis, an experienced process technician, work with Mr. Farris as well. Mr. Lewis worked with Mr. Farris for approximately one week on the Provox program, the company's computer program that helps run the various production lines and is located in the control room. Because of a disability, Mr. Lewis could not work in other areas of the plant with Mr. Farris. He reported to Mr. Brown that, based upon his observations, while Mr. Farris was unsure of certain things, he seemed to be grasping Provox-based information. Mr. Shay kept the class from graduating for a week so that Mr. Farris could catch up with them without informing the class or Mr. Farris that he was doing that for him. As each phase of the training is completed, a trainee receives a Certificate of Completion reflecting the segments completed. AES also provides its employees with a variety of human resource, group dynamics, and diversity training programs. The purpose of the programs is to foster communication among peers, as well as between employees and supervisors. If communication difficulties arise, an employee can request a confidential, Human Resource-facilitated meeting to resolve problems and map out strategies for communication enhancement. Diversity training workshops are also provided to enhance mutual respect and educate workers concerning racial and cultural differences within the workplace. These programs are often conducted by independent training professionals in the area. Employees are encouraged to contact Human Resource personnel in Florida and/or Ohio to express any concerns they may have. The company has a policy of "zero tolerance" for discriminatory conduct. Witnesses for both the Petitioner and the Respondent established that when such matters are brought to management's attention, they are dealt with swiftly and employees are disciplined for wrong-doing. Sometime in late March or early April 1995, Mr. Farris was assigned to "B shift." In May 1995, he was transferred to "A shift." Mr. Farris had felt that he was not getting the support he needed on "B shift." In this regard, during the April-May time period, another technician, Mr. Kouns, came to Mr. Brown to see if he could switch to "B shift" since it would allow him and his wife to spend more time together, given her own shift schedule as a nurse. Mr. Kouns also approached Mr. Farris to see if he was agreeable to making that change. While the company typically does not transfer technicians between shifts, Mr. Brown decided that the switch would benefit both employees. He believed too that the employees on "A shift" were very good people who would support Mr. Farris and help him grow in the job. Mr. Farris acknowledged that he had good rapport with the members of "A shift." "A shift" members included Willie Murphy, an experienced process technician, with whom Mr. Farris interacted and received guidance. Mr. Murphy is black. Shannon Payne, Patricia Neal and Neil Sammon, are also members of "A shift" and confirmed the pleasant relationship between all members of the shift. In 1995 through 1997, process technicians were typically under the direction of two supervisors, Henry Klug, the Packaging and Compounding Superintendent who oversaw the compounding area, and Charles Brown, the Manufacturing Superintendent who oversaw the "DVA" area. Mr. Klug and Mr. Brown typically divided up the process technicians for the purposes of providing performance evaluations. In early April 1996, Mr. Farris received his performance form for 1995 and received a "below expected" evaluation. Mr. Klug prepared that evaluation. Mr. Klug testified that on multiple occasions in 1995, he had observed Mr. Farris in both the compounding area and the DVA area and had spoken with him. He concluded that Mr. Farris was struggling with understanding how the process worked and was tentative in his decision-making. Mr. Klug further testified that he spoke with both Mr. Brown and the new plant manager, Mr. Bosse, about his concerns. Mr. Brown had also observed Mr. Farris struggling and concurred with Mr. Klug's assessment when they sat down to review Mr. Klug's findings of "below expected" performance. These findings were based on personal observation, as well as from information received from various employees. In this connection, because the evaluation was "below expected," Mr. Klug and Mr. Brown were required to meet with Mr. Bosse and the Human Resource Manager, Kimberly Wheeler, as a matter of company policy, to explain why a "below expected" rating had been given. On April 12, 1996, Mr. Klug sat with Mr. Farris to discuss the performance evaluation. Mr. Farris neither objected to the evaluation nor did he ever complain that it was racially motivated. During 1996, Mr. Farris continued to struggle in the areas of knowledge of the process, troubleshooting and decision- making. Mr. Klug testified that the behaviors that he had observed in 1995, were still present throughout 1996 and that he and Mr. Brown discussed ways to help Mr. Farris improve. Mr. Brown established that by the Fall of 1996, he had grown increasingly concerned that Mr. Farris was not only falling far behind his peers, but also that he did not understand the process. Accordingly, in November of that year he met with him and gave him a written assignment in order to assess whether he knew the process. This assignment included answering questions and drawing the process and the equipment involved on paper. The information on the assessment was drawn from the materials the Petitioner had received in training. Mr. Farris was not able to draw the equipment or correctly answer many of the questions, including questions pertaining to safety, for which he had received a reprimand approximately one week before. Mr. Brown established that Mr. Farris' lack of understanding of the process and the equipment had serious safety consequences, as well as consequences for productivity, decision-making and so forth. Upon reviewing the assessment with Mr. Farris he asked him to take the training manuals home to review, walk throughout the plant to observe and repeat the written assignment at home in order to master the concepts and the information he had received from observations. Mr. Farris also acknowledged that Mr. Brown took him to the engineering department to look at diagrams and advised him that if he could draw the equipment and picture it in his mind it would help him to troubleshoot better. In late November 1996, Mr. Farris complained to Ms. Wheeler that he felt he was having difficulty with Mr. Brown and requested her to set-up a "join-up" session with his supervisor to "iron things out." "Join-ups" are confidentially facilitated sessions designed to resolve communication difficulties between employees that might arise. Ms. Wheeler agreed to the request and scheduled a meeting for late January 1997. The facilitators included Robert Parker, AES's Manager of Human Resources and Global Training Coordinator. Mr. Parker had been Ms. Wheeler's mentor in Human Resources and spoke with her regularly about employee relation issues. Mr. Farris never raised the issue of racism or discriminatory conduct in his November meeting with Ms. Wheeler nor did he raise it in the January session with Mr. Parker. Mr. Parker and Ms. Wheeler, who are black, testified that had it been raised, the issue would have been addressed immediately. On March 18, 1997, Mr. Farris received his performance evaluation for 1996. He again received a "below expected" level evaluation. In paragraph six thereon it was noted that he "continues to fall further behind his peers. Joe's performance for the year was again less than expected." The evaluation also expressed concern about Mr. Farris' growing absenteeism. Mr. Brown had met personally with Mr. Farris in July and November 1996 to discuss the issue of his absenteeism. Before meeting with Mr. Farris, Mr. Brown, along with Mr. Klug, met with Mr. Bosse and Ms. Wheeler to discuss the evaluation. Mr. Bosse questioned them again, as supervisory personnel, concerning the basis for the findings and determined that the evaluation was appropriate. On March 26, 1997, Mr. Farris e-mailed Ms. Wheeler that he disagreed with the evaluation and met with Ms. Wheeler to discuss his concerns. He did not tell her that he believed that the negative performance review was racially motivated. Ms. Wheeler also met with Mr. Bosse to discuss the issue, as well as with Mr. Brown. It was determined that Mr. Brown, Ms. Wheeler and Mr. Farris should meet to develop a performance improvement plan. Mr. Brown was informed of and kept apprised of the plan. Mr. Klug was also aware of some of the drawings Mr. Brown had Mr. Farris work on and confirmed their importance as a means to create a visual map in a process technician's mind as to how the process worked. On April 3, 1997, Ms. Wheeler, Mr. Brown and Mr. Farris met at length to review performance and communication issues and to develop an improvement plan. Between April 3, and April 23, 1997, Mr. Farris and Mr. Brown worked on an improvement plan. In finalizing the plan, Mr. Brown extended the original deadline dates for completion of each component that Mr. Farris had set for himself. Mr. Brown testified that he wanted to give Mr. Farris ample time to master the material. Mr. Farris claimed that he felt Mr. Brown gave him a longer completion time to make him look bad. He introduced no evidence to substantiate that opinion, however. Ms. Wheeler testified that Mr. Farris told her that he was comfortable with the plan and could demonstrate what was being asked of him. In late May 1997, Mr. Farris submitted new drawings to Mr. Brown for review. Mr. Brown testified that he saw marked improvement and complimented Mr. Farris accordingly. Mr. Farris admitted that Mr. Brown had praised him on that occasion and acknowledged that in his deposition he had admitted that Mr. Brown had previously encouraged him to improve. On or about July 9, 1997, an independent Quality Assurance Agency conducted a "pre-audit" of Pensacola operations. This agency (BSI) was represented by Mildred LaCorte, and the Quality Assurance Manager for AES was Mr. Shay. The purpose of the pre-audit was to allow Ms. LaCorte to inspect the premises at random and question employees at random as well. During her "walk-through," Ms. LaCorte randomly stopped in the DVA control room where Mr. Farris was working and asked him questions about the process. She found that he did not understand the process or proper procedure. Mr. Shay, Mr. Brown, Mr. Klug and Mr. Bosse were present during the walk-through and testified that Mr. Farris had difficulty answering Ms. LaCorte's questions. Moreover, they observed him behaving nervously and excusing himself during the questioning and walking out. Mr. Farris testified that there had been a line problem that he had to correct. He provided no confirming evidence or testimony to support that rationale. He also testified that he did fine in response to the questions and that his peers congratulated him on how well he did. Mr. Brown was quite concerned by Mr. Farris' inability to respond to Ms. LaCorte's questions adequately and especially in light of his apparent improvement during May. As a consequence, he went first to Ms. Wheeler and then met with Mr. Farris in late July and asked him to draw the process once again. Mr. Farris could not do so and admitted that he did not do well. However, he claimed that his failure to perform adequately was because he felt that he should not have to do the drawings and that his supervisor was harassing him by asking him to do so. He provided no confirming evidence or testimony that Mr. Brown was harassing him in any way, however. Mr. Farris complained to Ms. Wheeler about having to do the drawings again. Ms. Wheeler testified that she told Mr. Farris that what he was being asked to do was part of the performance improvement plan, which items he had told her he could readily demonstrate and she told him that his supervisor had a right to set work standards and performance expectations. Even then Mr. Farris never complained that this purported harassment was racially motivated. Ms. Wheeler nevertheless apprised Mr. Bosse and Mr. Brown about the complaint. It was determined that an objective assessment of Mr. Farris' knowledge of his job should be undertaken by someone other than Mr. Brown. In early September 1997, Tim Caton, the Engineering Superintendent at the plant, who had a good rapport with Mr. Farris, met with him for three to four hours. He testified that he was surprised at Mr. Farris' lack of knowledge in several key areas and the level of difficulty he was having. After the meeting he reported his findings to Mr. Brown who wrote down the findings, which Mr. Caton confirmed at the hearing as true and accurate. Mr. Payne, Ms. Neal and Mr. Sammon all testified that Mr. Farris had been struggling for over two years, did not understand the process, had difficulty with troubleshooting and retaining information. Ms. Neal established that on one occasion when she was out working near the feed stock silos, she saw Mr. Farris out there with his clipboard and drawing looking around. She asked him what he was looking for and he responded that he was looking for the line two test bins. Ms. Neal testified that she told him that they were not in that area but were located on the other side of the building. She noted that what interested her was that after years on the job, he was looking in the line one compounding area for line two equipment. Subsequent to Mr. Caton's assessment, it was clear that Mr. Farris was having serious difficulties and was not at the competency level expected of a person with over two and one- half years of process technician experience. Sometime in late October 1997, Mr. Farris met again with Ms. Wheeler after he had been warned again by Mr. Brown about absenteeism. Mr. Farris complained that he was being discriminated against on the basis of race. This was the first time the race issue had been raised. Ms. Wheeler was surprised by the allegation because it had never been raised before. She spoke at length about the matter with Mr. Parker, as well as with Mr. Bosse. After being notified, Mr. Parker questioned Ms. Wheeler at length about the issue and also spoke with Mr. Brown. It was determined that Mr. Farris' allegation was not founded and the real issue with Mr. Farris was work performance. At some point, apparently in mid-October, Mr. Brown recommended that Mr. Farris be terminated. Termination recommendations are typically reviewed by the Human Resources Division and the plant manager in Pensacola (Ms. Wheeler and Mr. Bosse) and are then forwarded to the Human Resources legal counsel and senior executive personnel in Ohio (Mr. Parker, Mr. Liskiewicz, Mr. Kaluza and Mr. Voellmacke) for review. On November 11, 1997, after completion of the review of the termination recommendation, Mr. Farris was discharged. He filed separate racial discrimination complaints with the Escambia Human Relations Commission and the Florida Commission on Human Relations. Both Commissions investigated the matter and found no cause or that the allegations were unfounded. Several white employees in Pensacola had also been terminated, disciplined, and/or given "below expected" reviews by AES, including Kenneth Thompson, Tony Davis, Steven Carr, Jennifer Nowling and Mike Mosley. Mr. Carr, for example, was given an improvement plan by Mr. Brown. Mr. Brown evaluated the 1995 performance of Rodgi Campbell, an black process technician, and gave him an "above expected" rating. Mr. Klug was the evaluator for Mr. Campbell for 1996, and gave him an "above expected" rating as well. Mr. Brown was also the evaluator for Walter Williams, a black process technician, for 1995 and gave Mr. Williams an "above expected" rating.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject Petition in its entirety. DONE AND ENTERED this 8th day of April, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 8th day of April, 2002. COPIES FURNISHED: 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 Jonathan D. Fishbane, Esquire Goodlette, Coleman & Johnson, P.A. 4001 Tamiami Trail North Suite 300 Naples, Florida 34103 Ronnie L. Williams, Esquire 814 Saint Francis Street Mobile, Alabama 36602
Findings Of Fact At all times material hereto, Petitioner has been employed by the Respondent as a multi-trades worker. On or about September 2, 1987, Petitioner was demoted from the position of multi-trades worker III to II, with a 5% reduction in pay. He currently remains in the multi-trades worker II position. Petitioner was demoted because he made discriminatory and derogatory racial remarks to employees under his supervision. Specifically, he referred to black employees as "niggers, sambos and blackies" on several occasions. He also told a female employee under his supervision that he would not promote her because she was a woman. Following his demotion, Petitioner appealed this action to the Civil Service Board of Hillsborough County. On or about December 16, 1987, the Civil Service Board upheld his demotion based upon its finding that Petitioner had "uttered racial slurs, racially derogatory remarks and other insulting and abusive language directed toward subordinate employees under his supervision over an extended period of time and on a number of occasions." On or about March 24, 1988, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations, and after investigation, a finding of No Cause was entered. Thereafter, Petitioner timely filed a Petition for Relief alleging that Respondent had unlawfully discriminated against him due to his national origin, Hispanic. No evidence in this record supports Petitioner's allegation.
Recommendation Based upon the foregoing, it is recommended that Petitioner's charge of discrimination against Respondent be DISMISSED. DONE AND ENTERED this 7th day of February, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1989. COPIES FURNISHED: Clemente Quintana 162 Venice Circle Land O'Lakes, FL 34639 Catherine P. Teti, Esquire Post Office Box 1110 Tampa, FL 33601 Margaret Agerton, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Donald A. Griffin Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
The Issue The issue to be resolved in this matter is whether the Petitioner was terminated from employment with the Respondent because of her race.
Findings Of Fact Petitioner is a black female and is a member of a protected class. Respondent employed Petitioner at the time of the alleged discrimination. Petitioner was employed by Respondent for approximately three and a half months, from her date of hire on December 17, 1994, through her date of termination on March 30, 1995. She was fired for insubordination. Petitioner was employed by Respondent as a Certified Nursing Assistant (CNA). Her responsibilities as a CNA included taking care of patients and cleaning the facility. Her direct supervisor was Barbara Jean Gossett. Petitioner claims she was fired because of her race, alleging disparate treatment. To support this allegation, Petitioner cited an example of a white female who was having problems with her baby, whom Petitioner testified was sick, and that the white employee would come in for work when she was ready. Petitioner alleges the employee often reported late for work. Petitioner does not know the name of the employee, does not know who the white female talked to about reporting to work, and was not involved in any decision about whether the white female could or could not report late as a result of her child's ailments. Petitioner presented no other evidence or documents to support this allegation. Petitioner, when asked for any other basis for her claim of discrimination, cited an example of a woman who she claims never did what she was required to do, although she said the woman was in charge. Petitioner presented no other evidence or documents to support this allegation. Petitioner also alleges she was fired because of her race based on the way her supervisor, Barbara Jean Gossett, acted toward her. Petitioner also cited the varying way her supervisor verbalized instructions to the black and white staff. During examination by Respondent's counsel, Petitioner acknowledged receipt of Respondent's employee handbook on her first day of employment. She acknowledged that the purpose of the handbook is to notify employees of the rules and expectations and also to provide notice of behaviors that would lead to discipline or termination. She admitted that, based on the handbook, she knew what kind of behaviors were appropriate and what were considered inappropriate. She admitted that in the setting of a nursing home, punctuality was important. Petitioner admitted that there was a progressive disciplinary schedule in place for tardiness. She further admitted that under the schedule in place during her employment, an employee who was late seven or more times in a 90-day period would be fired. The supervisor, whom Petitioner claims was racist, however, did not fire Petitioner as the policy permitted. In fact, that same supervisor recommended a discretionary merit increase for Petitioner. Petitioner's performance evaluations show that as of March 14, 1995-approximately three months into her employment- she had been tardy nine times, absent three times, and had a performance rating below standard, which was the lowest rating permitted by the evaluation form. On March 29, 1995, Petitioner refused to clean an assigned work area during her shift. The employee handbook Petitioner received lists refusing a job assignment as number one on the list of behaviors that can lead to immediate termination and for which there is no progressive disciplinary schedule (as there is for tardiness and certain other offenses). As noted, Petitioner was fired for this incident. Finally, Petitioner admitted that she signed her Charge of Discrimination on June 18, 1996, and that it was filed June 20, 1996.
Recommendation Based on the 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 11th day of October, 2001, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 11th day of October, 2001. COPIES FURNISHED: Joann Annichianrico Tandem Healthcare, Inc. Cherrington Corporate Center 200 Corporate Center Drive, Suite 360 Moon Township, Pennsylvania 15108 Josephine Hayes Davis Route 4, Box 4699-M Monticello, Florida 32344 James Garrity, Esquire McConnaughay, Duffy, Coonrod, Pope & Weaver, P.A. 101 North Monroe Street Post Office Drawer 229 Tallahassee, Florida 32302-0229 Azizi M. Dixon, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
