The Issue Whether respondent's rules of conduct contained in Department of Law Enforcement Directive #200.08 constitute an invalid exercise of delegated legislative authority on the ground that they were not promulgated in accordance with Chapter 120, Florida Statutes (1979)
Findings Of Fact Petitioner Maggie L. Allen was a Career Service employee (with permanent status) of the Department of Law Enforcement until she was terminated from her position or about June 15, 1981. She has appealed her termination to the Florida Career Service Commission. (Prehearing Stipulation, p. 2; Respondent's Admissions.) The reason given for her termination was, in part, her alleged violation of Department Directive #200.08(5), Rules of Conduct ("Directive") . More specifically, the Department charged her with violating specific rules of conduct contained in the Directive: Rule 10, entitled, "Insubordination"; Rule 22, entitled, "Departmental Reports"; Rule 23, entitled, "Performance of Lawful Duty"; and Rule 34, entitled, "Truthfulness." (Prehearing Stipulation, p. 2; Respondent's Admissions; Exhibit No. 3.) The Directive, effective November 27, 1978, is an official statement of Department policy and is generally applicable to all employees of the Department. Its stated purpose is "to provide each Departmental employee with clear examples of acts which would violate the above personnel rules or statutes." (Emphasis supplied.) (Exhibit No. 1.) Essentially, the Directive defines acceptable conduct for Department employees by specifically enumerating 35 standards of conduct. By its terms, breach of one or more of those standards constitutes employee misconduct and may result in disciplinary action against an employee ranging from oral reprimand to discharge. However, these standards are not intended to be an exclusive, or exhaustive listing of impermissible conduct. (Respondent's Admissions; Exhibit No. 1.) The Directive is part of the Department's Duty Manual, a volume containing directives on personnel, administrative, training, and fiscal matters as well as the operations of the Department's divisions. The stated purpose of the Duty Manual is to "inform and guide . . . [Department] officers and employees in the performance of their official duties." (Exhibit No. 2.) The Duty Manual recites that it is "promulgated" pursuant to Chapter 120, Florida Statutes, that copies are disseminated to all employees and that employees must obey, comply with, and follow the Manual's directives. The Manual has been incorporated, by reference, in Department Rule 11-1.12, Florida Administrative Code. All formalities concerning publication of Rule 11-1.12 were complied with prior to its publication in the Florida Administrative Code. (Prehearing Stipulation; Exhibit No. 2.) Department Rule 11-1.12, incorporating--by reference--the Duty Manual, was adopted on March 20, 1979, for the purpose of validating those portions (unspecified) of the Manual which constituted "rules" under the APA. At the time, the Department anticipated that adopting the Manual, by rule, would "lead to greater efficiency." (Exhibit No. 2.)
The Issue The issue in this case is whether Respondent, Steve E. Montgomery, committed the violations alleged in the Second Amended Notice of Specific Charges and, if so, what disciplinary action should be taken against him.
Findings Of Fact Steve Montgomery has been employed with the School Board since May 13, 1988. He last held the position of a Plumber II Journeyman in Miami-Dade County Florida. Montgomery's job description and the maintenance employee's handbook mandated that he maintain a valid driver's license and Certificate of Competency in order to remain employed by the School Board. During the hearing, Montgomery admitted that he was aware that he had to maintain such minimum qualifications for his job. Montgomery started a pattern in 2003 of his driver's license getting suspended and then being reinstated again. Montgomery admitted during hearing that his driver's license had been suspended at least four times. Each time, the School Board notified Montgomery that his license was not valid and provided him five working days to get a valid license. Montgomery was placed in an alternative work assignment whenever he did not have the valid credentials. The School Board kept a record of the occurrences in Montgomery's personnel file. The file contained a December 15, 2003, memorandum entitled "FAILURE TO MAINTAIN QUALIFYING DOCUMENTS REQUIRED BY JOB DESCRIPTION" directing Montgomery that his license was suspended and/or revoked and detailing that his job description requires that he maintain a valid State of Florida Class D license as one of the minimum qualifications of the position. The memorandum also stated that Montgomery had five days until December 22, 2003, to present evidence of a valid license. A May 24, 2004, memorandum almost identical to the one dated December 15, 2003, except for the deadline dates, was also in Montgomery's personnel file. The memorandum provided a deadline of June 1, 2004, to present evidence of a valid driver's license and indicated that, if there was a failure to satisfy the requirement in the allotted time period, a Conference-for-the Record ("CFR") would be scheduled to discuss the matter further. A July 26, 2005, memo identical to the two previous memorandums except for the dates was also in Montgomery's personnel file. The memorandum gave a deadline of August 2, 2005, to present evidence of a valid driver's license. Mr. Palacio personally gave the invalid driver's license memorandums to Respondent and verbally notified Montgomery of the requirement to get a valid license. Montgomery signed the memorandum dated September 15, 2005, entitled "FAILURE TO MAINTAIN QUALIFYING DOCUMENTS REQUIRED BY JOB DESCRIPTION." As in the previous memos, it stated: Attached please find a report dated September 15, 2005 that indicates your driver's license has been suspended and/or revoked. Your official job description requires you to maintain a valid State of Florida CDL Class D* driver's license as one of the minimum qualifications of this position. (Effective July 1, 2005, Class D licenses were converted to Class E.) You are advised that this requirement is a condition of your continued employment with Miami-Dade County Public Schools. Without a valid driver's license you are no longer qualified to perform the requirements of your position with the District. Effective immediately, you are being placed on an alternate work assignment. Accordingly, you are directed to present evidence of this required license to your Satellite Director or designee within five (5) working days from the date of this memorandum, which will be September 23, 2005. Until such time, you are not authorized to operate any District vehicle or motorized equipment that requires possession of a driver's license. If you fail to satisfy this requirement within the allotted time period, a Conference-for-the-Record will be scheduled to address this matter further. Please review your Maintenance Operations handbook (Trades Chapter, Page 4) for further details. A CFR was held with Montgomery on September 30, 2005, because he did not obtain a valid driver's license by September 23, 2005. Montgomery was provided a copy of the job description for plumber II and the September 15, 2005, memorandum. At the CFR, Montgomery was again informed that maintaining his valid driver's license is a minimum qualification of his position and that "Without a valid driver's license, you are no longer qualified to perform the requirements of your position with the District." Montgomery signed the summary of the CFR on October 3, 2005. On October 13, 2005, the School Board notified Montgomery by memorandum that he had failed to maintain his Certificate of Competency and it had expired on August 31, 2005. Montgomery signed the memorandum and was instructed to present a valid certificate no later than October 17, 2005, at 8:00 a.m. Montgomery was aware that it was his responsibility to know when his qualifying documents expired and keep them valid as a minimum requirement for his job. A CFR was held on February 11, 2006, regarding Montgomery not possessing a renewed Certificate of Competency and a valid driver's license. At the CFR, Montgomery produced a renewed certificate but did still did not have a valid license. On May 4, 2006, Montgomery still did not have a valid driver's license and Mr. Palacio recommended Montgomery's termination. In Palacio's memorandum, the grounds for such discipline were as follows: Mr. Montgomery is in violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, members of the non-instructional staff shall maintain all certifications, licenses and job requirements as a condition of employment. Failure to do so shall warrant disciplinary action. On May 9, 2006, Mr. Brown and the maintenance officer signed a memo entitled Recommendation for Termination Mr. Steve E. Montgomery Employee # 169252 Plumber II, Region Maintenance Center II providing grounds for disciplinary measures inasmuch as Montgomery was unable to produce a valid Florida's driver's license, a condition of employment. The memo stated: As a Plumber II, Mr. Montgomery must maintain all certifications, licenses and job requirements. Failure to comply with minimum job requirements warrants dismissal. Montgomery let the Certificate of Competency expire again on August 31, 2007. Subsequently, on September 17, 2008, another CFR was held with Montgomery notifying him of the recommendation for suspension and termination because Montgomery's license and Certificate of Competency were not valid. During the CFR, Montgomery did not offer any explanation as to why his license was still suspended or submit proof of his Certificate of Competency but only commented he "will have [both] soon."4 Montgomery also did not complain about any working conditions during the CFR. At a regularly scheduled meeting on January 14, 2009, the School Board suspended Montgomery without pay and initiated dismissal proceedings against him from all employment with Miami-Dade County Public Schools for just cause, including, but not limited to: violation of School Board Rules 6Gx13-4A-1.21 Responsibilities and Duties, 6Gx13-4A-1.213 Code of Ethics, and Sections 1001.32(2), 1012.22(1)(f), 1012.40, and 447.209, Florida Statutes. Montgomery's license was suspended at the time of his suspension and termination. Likewise, Montgomery's Certificate of Competency had still not been renewed at the time of his suspension and termination. No other School Board employee had his/her license suspended as many times as Montgomery with an expired Certificate of Competency at the same time. Further, the School Board has disciplined employees by termination for having a suspended driver's license. Montgomery had a valid Florida driver's license and a renewed valid Certificate of Competency at the hearing. On August 20, 2009, the School Board filed its Second Amended Notice of Specific Charges charging Respondent with violating School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, School Board Rule 6Gx13-4A-1.213, Code of Ethics, and State Board Rules 6B-1.001 and 6B-1.006 by failing to maintain a valid driver's license and Certificate of Competency.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order that: (a) dismisses Count I; (b) finds Respondent in violation of Count II as charged; and (c) upholds Respondent's suspension without pay and termination. DONE AND ENTERED this 26th day of February, 2010, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 2010.
Findings Of Fact The policy being challenged provides that: The hearing may be cancelled if a petitioner or intervenor fails to timely file its prehearing statement. This provision is routinely and customarily embodied in the notices issued by Respondent to parties before it in matters arising under Florida Statutes 447.307 and 447.503. The Respondent acknowledges that it did not adopt and promulgate the policy pursuant to Florida Statutes 120.54 or any other relevant provision of Chapter 120. On 12 July 1979 Petitioner filed a petition with Respondent in which Petitioner sought to represent certain employees employed by the Collier County Board of County Commissioners. This petition was accepted by Respondent and on 30 July 1979 Respondent issued a Notice of Representation Hearing and a Prehearing Order. This Prehearing Order directed the parties to that proceeding to file with Respondent at least seven (7) days prior to the date of the hearing, and serve upon each other, a prehearing statement, identifying: Those fact disputes to be presented for resolution. Any and all legal questions to be presented for resolution. The legal authority to be relied upon by each party in presenting its arguments. Those witnesses to be called at the hearing, except rebuttal witnesses. The approximate time necessary to present the party's case. Any outstanding motions or procedural questions to be resolved. This Pre-Hearing Order then provided: The hearing may be cancelled if a petitioner or intervenor fails to timely file its prehearing statement. Petitioner did not file its prehearing statement within the prescribed 7-day period and on 21 August 1979 Petitioner was notified that the hearing scheduled to commence 23 August had been cancelled. On 22 August Petitioner was advised that a written order cancelling the 23 August hearing had been entered by the Commission. Thereafter Petitioner filed the petition here under consideration contending that the policy of Respondent to enter the cancellation-of-hearing notice in prehearing orders is a rule and invalid by reason of not being promulgated pursuant to Chapter 120. Respondent takes the position that the provision in the prehearing order is not a rule, but even if it could otherwise be considered to be a statement of general applicability, it is exempt from being so found by 447.207(6), Florida Statutes.
The Issue Did Respondent, Emerald Grande, LLC (Emerald), discharge Petitioner, Shelia Demons, on account of her race in violation of chapter 760, Florida Statutes (2013)?1/
Findings Of Fact By Notice dated December 3, 2013, the hearing was originally scheduled for January 14, 2014. On January 8, 2014, Petitioner filed a request that the hearing be continued. The undersigned continued the hearing until February 4, 2014. On January 17, 2014, Respondent filed an Unopposed Motion for Continuance. The undersigned continued the hearing until March 11, 2014. On March 7, 2014, Respondent filed a Motion to Exclude Petitioner’s Undisclosed Witnesses and (Proposed) Exhibits on the grounds that Petitioner had not disclosed her witnesses and exhibits to Respondent as required by the Order of Pre-Hearing Instructions. The hearing convened as scheduled at 9:00 a.m., Central Time, on March 11, 2014. Counsel for Emerald and Emerald's representative and witnesses appeared. Emerald had previously timely provided Petitioner with its witness and exhibit lists. As of 9:16 a.m., Ms. Demons had not appeared or contacted the office of the undersigned. At 9:17 a.m., counsel for Respondent moved, ore tenus, for an order of dismissal. The undersigned informed counsel for Respondent that a written recommended order would be entered granting Respondent’s motion. Ms. Demons presented no evidence. Emerald presented no evidence. The hearing was adjourned at 9:20 a.m. When the undersigned left the hearing room at 9:30 a.m., Petitioner had still not appeared or contacted the office of the undersigned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny the Petition for Relief of Shelia Demons. DONE AND ENTERED this 17th day of March, 2014, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2014.
The Issue Whether Respondent engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact Graham is a black male. He filed an employment application with Pier 1, a "chain retailer," on August 23, 1999. The application indicated that he applied for a position as a sales associate but in fact he was to be employed as a stockroom assistant. His employment application included a block denominated, "Work Availability." Graham completed this block indicating that he was available to work between 6:00 a.m., and 12 p.m., Monday through Saturday. The employment application stated in the block denominated, "Work Availability," the following: "Although an effort will be made to accommodate individual work schedule preferences and availability, work schedules such as start time, number of daily or weekly hours and assigned work days are subject to change at any time. Availability to work on weekends is required. Number of hours may vary based on business necessity and could change an individual's employment status." Graham was hired on August 30, 1999, as a full-time employee. He worked primarily in the back stockroom. A meeting of store personnel was scheduled at the store on Sunday, November 17, 1999, at 6:30 p.m. Graham was aware of the meeting. He was 20 minutes late because he was participating in a church service at Macedonia Primitive Baptist Church. As a result of his tardiness he was presented with an Associate Corrective Action Documentation, which is a confidential Pier 1 form. The form noted that this was his first "tardy." The form as completed took no action such as suspension or loss of pay. It merely informed him that further instances of tardiness could lead to disciplinary action. Graham testified that he was treated differently from a white woman employee, one Christy Musselwhite, who did not attend the meeting, because Musselwhite did not receive a counseling form. However, Graham's personal knowledge of Musselwhite's situation was insufficient to demonstrate that Musselwhite was treated differently from Graham because of race or gender. Graham felt humiliated because he received the Associate Corrective Action Documentation form. Graham resigned from Pier 1 effective November 12, 1999, so that he could begin employment with the Florida Department of Children and Family Services at a rate of pay in excess of that which he received at Pier 1.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission Human Relations enter a final dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2001. COPIES FURNISHED: Russell D. Cawyer, Esquire Kelly, Hart & Hallman 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Kenneth Terrell Graham 2811 Herring Drive Tallahassee, Florida 32303-2511 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ronni Morrison Pier 1 Imports Post Office Box 961020 Fort Worth, Texas 76161-0020
Findings Of Fact At the times pertinent to this proceeding, Petitioner held a career service position with the Department of Health and Rehabilitative Services (DHRS). His job title was Public Assistance Specialist II. On September 10, 1990, Petitioner requested authorization to use 120 hours of accumulated annual leave beginning September 17, 1990, through October 5, 1990. Because of the office work load, Petitioner's supervisor, Doreen Moskowitz, authorized him to take 80 hours of leave beginning September 17, 1990, through September 28, 1990. Petitioner accepted this authorization and agreed to return to work on the morning of Monday, October 1, 1990. While on leave, Petitioner traveled to his native country of Nigeria to visit his mother who was ill. While in Nigeria, Petitioner became ill and was under the care of a doctor in Nigeria between September 27, 1990, and October 5, 1990. On October 5, 1990, Petitioner was determined by his doctor to be fit to travel. Because his travel plans had been disrupted by his illness, Petitioner had difficulty making arrangements to return to Miami. On Monday, October 8, 1990, Petitioner flew from London to New York and from New York to Miami. On Tuesday, October 9, 1990, Petitioner reported to work. Petitioner's wife did not accompany him to Nigeria, but remained in the Miami area. Petitioner contacted his wife from Nigeria by telephone and caused her to call his supervisor on several occasions to advise that Petitioner would not be returning to work on October 1, 1990, as scheduled and the reasons for his absences. On October 1, 1990, Petitioner's wife called Ms. Moskowitz and informed her that Petitioner had fallen ill in Nigeria and would not be able to return to work as scheduled. Petitioner's wife was informed that Petitioner's leave was unauthorized. Petitioner's wife called Ms. Moskowitz again on October 4 and on October 5, 1990, and informed her that Petitioner was still ill in Nigeria. Petitioner's wife also called Ms. Moskowitz on October 8, 1990, and told her that Petitioner was in London en route to Miami. On October 1, 1990, Petitioner left a telephone message with a coworker, Shirley Franklin, advising that he was ill in Nigeria and hoped to return to work on October 5, 1990. Ms. Franklin, at Petitioner's request, gave this message to Ms. Moskowitz. Petitioner also called another coworker, Sylvester Onyemeziem, to advise him of his illness in Nigeria and asked that he contact Ms. Moskowitz and to make sure that Petitioner's wife had spoken to Ms. Moskowitz. Mr. Onyemeziem gave this information to Ms. Moskowitz and confirmed with Petitioner's wife that she had also contacted Ms. Moskowitz. The DHRS Employee Handbook, dated October 1, 1988, advises employees at page 13 under the heading of Absences: If you expect to be absent from work for any reason, you must request leave from your supervisor as much in advance as possible, so that suitable disposition of your work may be made to avoid undue hardship on fellow employees and clients. As soon as you know you will be late or absent from work you must notify your supervisor. Absence without approved leave is cause for disciplinary action. If you are absent for three consecutive workdays without authorization, you may be considered to have abandoned your position and thus resigned. The standard procedure followed by this DHRS office is to require employees to make personal contact with his or her supervisor to advise the supervisor of any absences and to explain the reasons therefor. This standard procedure has not been adopted as a rule. In this instance, it was very difficult for Petitioner to call Ms. Moskowitz during her business hours because of his limited access to international telephone lines. (The telephone calls Petitioner made to his wife and to his coworkers were placed either before or after normal business hours.) Petitioner was absent from his employment without authorized leave on October 1, 2, 3, 4, 5, and 8, 1990. On October 8, 1990, DHRS terminated Petitioner's employment as a career service employee. The letter of termination provided, in pertinent part, as follows: In accordance with Chapter 22A-7 of the State of Florida Career Service Rules and Regulations, since you did not report to work as scheduled October 4, 5, 8, 1990 and you have not reported to work since that time; you have abandoned your position of Public Assistance Specialist II. Your resignation was effective at the close of business October 4, 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Petitioner did not abandon his career service position and which orders that Petitioner be reinstated with back-pay to his career service position with the Department of Health and Rehabilitative Services. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day of April, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1991. COPIES FURNISHED: William C. Robinson, Esquire 220 Courthouse Plaza 28 West Flagler Street Miami, Florida 33130 Jacqueline S. Banke, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard, Room 513 Fort Lauderdale, Florida 33301 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Linda Stalvey Acting General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether petitioners have standing to challenge the validity of respondent's proposed rules, 38F-5.30 through 38F-5.70, Florida Administrative Code I.
The Issue The issue is whether Respondent engaged in an unlawful employment practice by retaliating against Petitioner for filing a charge of discrimination.
Findings Of Fact Petitioner, Jacques Pierre (Petitioner or Mr. Pierre) is black and his national origin is Haitian. He has worked in the United States for 24 years. On or about January 25, 2006, Mr. Pierre filed with the Equal Employment Opportunity Commission (EEOC) a charge of discrimination against his employer, Respondent, SSA Security, Inc., a/k/a Security Services of America, a California Corporation (Respondent or SSA). SSA, under a subcontract with a federal government contractor, Alutiiq-Mele, provided security services for a federal building in Miami. SSA continued to employ Petitioner as a security guard when it took over the contract from his previous employer, Superior Protection. Contractors and managers changed, in the past, but the security guards stayed the same. On August 10, 2006, and August 15, 2006, first Mr. Pierre, then a representative for SSA signed an agreement to settle the EEOC complaint. With a letter dated August 23, 2006, Mr. Pierre received a settlement check in the amount of $1,257.04, and he was advised to report any future unlawful harassment or discrimination charges by use of a "Harassment Hotline and [to] speak with your local area manager, Barry Hirsch [sic]." Captain Barry Hersch was Mr. Pierre's immediate supervisor. The agreement was approved, in principle, by Kent Jurney, Sr., an SSA corporate officer. The language of the agreement is, in relevant part, as follows: Removal of all Disciplinary Notices in File. Company agrees to remove all writings related to disciplinary actions taken against Employee from Employee's personnel file maintained by the Company. Employee understands that the removal of said documents does not prevent the Company from issuing disciplinary notices and/or taking disciplinary action against Employee as necessary in the future should Employee violate the Company's rules of [sic] policies. * * * 4. Confidentiality Clause. The Employee and the Company agree to the following confidentiality and non-disclosure agreement: (a) The parties represent and agree that they will keep the terms and amount of this agreement completely confidential. The parties will not hereafter disclose any information concerning this agreement to anyone, including but not limited to, any past, present or prospective employee of the Company or any prospective employer of the Employee. On August 25, 2006, the federal government changed the requirements in the contract. No longer would security guards be allowed to take breaks at the start or end of their shifts, but only during the middle. Mr. Pierre was made aware of the change. In violation of the requirement, on September 1, 2006, Mr. Pierre took his break at the end of his shift. The federal government contract also prohibited security guards from being on the work premises more than 30 minutes before or after their shifts. On August 28, 2006, Mr. Pierre returned to his work site and entered the building more than 30 minutes after his shift to retrieve keys and a telephone charger. Mr. Pierre also got into a loud and profane argument with another worker during his unauthorized return to the building. Mr. Pierre admitted he had an incident where he got into an argument with and "fired back" at a supervisor in 1995 or 1996. Beginning on or about July 10, 2006, Petitioner began to request, but initially was denied, leave. Mr. Pierre was feeling threatened and harassed by his supervisors and was suffering physically as a result. On a form dated August 25, 2006, Mr. Pierre said he was requesting leave from September 11 to September 25, with a return date of September 27, 2006. Spaces on the form to indicate whether it was approved or disapproved, and by whom are blank. As the reason for the request, Mr. Pierre indicated "stress related: as a result of retaliation.” This time, Captain Hersch, approved the request and Mr. Pierre went on vacation in September 2006. On September 5, 2006, as instructed by Mr. Jurney, another Miami supervisor, Bill Graham, issued a memorandum to Mr. Pierre requiring him to attend a mandatory meeting "about several important issues and notifying him of his "temporary removal from the schedule until this meeting has taken place." Copies of the memorandum were sent to Mr. Jurney and Captain Hersch. The evidence is insufficient to determine if other security guards who violated the same rules were subjected to the same consequences, or if discipline was uniformly applied. Mr. Pierre requested, either through his supervisor, Captain Hersch, or directly to Mr. Graham, that the attorney who handled his EEOC complaint and settlement agreement be allowed to attend the meeting with him. Mr. Jurney denied the request. Because he never attended a meeting, Mr. Pierre remained "off the schedule." For the remainder of 2006 and in early 2007, he was working part-time only at his second job with the State Department of Corrections. Mr. Pierre's income was reduced from $15 an hour ($17 minus $2 for insurance) for 40-hour weeks with SSA, plus $1,000 every two weeks from Corrections to only his Corrections pay. The evidence is insufficient to determine how long Mr. Pierre was, or if he still has, a lower income and what, if any, efforts he has taken to secure alternate employment to mitigate damages. SSA supposedly notified Mr. Pierre, in a memorandum dated September 22, 2006, that he was suspended without pay for two weeks for his rule violations and his failure to attend the mandatory meeting. The authenticity of the memorandum was questioned, and no witnesses testified to sponsor it or to explain why it was necessary, given the fact that Mr. Pierre was already "off the schedule." On October 3, 2006, Mr. Pierre filed a charge of retaliation with the Florida Commission on Human Relations which, on July 2, 2008, found that reasonable cause existed to believe that an unlawful employment practice had occurred. In the fall of 2006, Mr. Pierre applied for a job with the Miami-Dade Corrections and Rehabilitation Department (Miami- Dade). It was his understanding that his background investigation had been successfully completed, but that SSA had not responded to a reference form. Mr. Pierre took the form to SSA. The form, dated October 4, 2006, was completed by Captain Hersch, who responded, in relevant part, as follows: Reason for termination (voluntary/fired)? NON APPLICABLE Describe the applicant's work performance. GENERALLY ACCEPTABLE Describe the applicant's attendance record. GOOD OVERALL Was the applicant ever disciplined for any reason? If YES, please explain. YES CONFIDENTIAL." Is applicant able to work well with others? YES Is applicant trustworthy? YES Describe applicant's work habits? KNOWS HIS JOB, AND DOES IT Is applicant eligible for re-employment? If NO, please explain why. STILL EMPLOYED There is no explanation why Captain Hersch mentioned the confidential agreement, but not the subsequent disciplinary actions that were the focus of concern to Mr. Jurney and Mr. Graham, which could have been disclosed without violating the agreement. Based on the earlier assurances from Miami-Dade, Mr. Pierre, having put "no" when asked about discipline of his job application, believes the contradictory response from SSA caused him not to get the job. He received a letter informing him, but without giving specific reasons, that he was not hired by Miami-Dade. He failed to prove the correctness of his belief. Mr. Pierre testified, but presented no supporting evidence, that he could have earned up to $120,000 a year with Miami-Dade. SSA received notice on the second anniversary of its contract, in October 2006, that the federal government contract would not be renewed. Some time in 2007, most likely in February, at Mr. Pierre's request, he met with Mr. Jurney. It was not until that meeting, Mr. Pierre remembered, that Mr. Jurney had someone remove pre-settlement discipline records from his personnel file. By that time, SSA no longer had a contract with the federal government and was transferring its personnel over to work for the next contractor, Alutiiq. Mr. Pierre asked to be transferred and Mr. Jurney testified that he contacted someone at Alutiiq and asked for Mr. Pierre to be interviewed, but the evidence is insufficient to support a finding that SSA attempted to transfer Mr. Pierre to Alutiiq, or what the routine procedures were for transferring security guards. When Mr. Pierre found out that the necessary paperwork was never sent from SSA to Alutiiq, he tried unsuccessfully for two or three weeks to contact SSA. It is reasonable to believe that SSA, while not allowing Mr. Pierre to work, would not help him transfer over to the next contractor. Mr. Pierre was not transferred and was not employed by Alutiiq. Mr. Jurney testified unconvincingly that he made non-federal contract job offers to Mr. Pierre and Mr. Pierre found the offers acceptable, “but he didn’t accept them.” It is inconceivable that Mr. Pierre, who has three children to support and a wife who works part-time, would have rejected any legitimate job offer at that time. Mr. Pierre and Mr. Jurney, a former highway patrol trooper and member of an advisory board for the Florida Highway Patrol, discussed Mr. Pierre’s desire to be a trooper. Mr. Jurney offered to assist him but that employment never materialized. As a corporate officer, Mr. Jurney was responsible for overseeing hundreds of contracts involving 1,500 employees. He was senior to Mr. Graham and Captain Hersch. Yet, once he authorized the EEOC settlement, he became directly involved in the decision-making concerning discipline and consequences for Mr. Pierre. There is no evidence that Mr. Pierre had ever come to his attention before he approved the settlement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order directing that Respondent cease the discriminatory employment practice evidenced in this case and awarding Petitioner back pay at the rate of $15.00 an hour for each normal 40-hour work week between September 5, 2006, and the date of the final order, offset by earnings from substitute employment, if any. DONE AND ENTERED this 27th day of January, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2010. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ronald G. Polly, Esquire Hawkins & Parnell, LLP 4000 SunTrust Plaza 303 Peachtree Street, Northeast Atlanta, Georgia 30308-3243 Jacques Pierre 19601 Northwest 12th Court Miami, Florida 33169 Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141
The Issue Whether Petitioner was the victim of an unlawful employment practice.
Findings Of Fact Petitioner is a black woman who was employed by Wal- Mart, Inc., at its Marianna, Florida store, as a cashier, from May 29, 1995, until her termination on April 19, 1999. The Marianna store is a "Super Wal-Mart." Respondent is a large retail establishment subject to the "Florida Civil Rights Act of 1992," as contemplated by Section 760.02(7), Florida Statutes. Prior to being employed by Respondent, Petitioner experienced mental depression and mood swings. She had anxiety attacks, including agoraphobia. Once she resided in her bedroom without exiting for nine months. Eventually, she became well enough to hold a job with Respondent. During the time she worked for Respondent she was also employed by a nearby service station. Ms. Jeannie Garrett, a black woman called as a witness by Petitioner, related an incident where she believed she was mistreated in a conflict involving whether a mop was or was not placed in a sink. She also was involved in a disturbance involving a customer in the restaurant portion of the store. She was admonished by the person in charge of the restaurant. Ms. Garrett was transferred to a cashier position and quit as a result. Ms. Garrett testified that, "It wasn't about race. It was because she didn't like me." Neither Ms. Garrett nor Petitioner presented any evidence that Respondent was prejudiced against anyone because of race. The evidence of record indicating that Petitioner was disabled consisted solely of her testimony that she had emotional problems, and a doctor's note dated August 26, 1998, entitled "For Margie Israel," which stated, "(undecipherable) needs one week off due to severe anxiety depression." Petitioner presented testimony regarding a number of incidences which she believed proved she was mistreated. In a question involving a determination of the correct amount of change, William Michael Gilmore (Mr. Gilmore), the store manager, talked harshly to her. Jan K. Peterson, in Petitioner's opinion, wanted to dominate Petitioner, resented Petitioner, talked harshly to Petitioner's husband, and "sassed" Petitioner's husband. Petitioner bought numerous items in the store and some of the cashiers did not want to check her out because she used coupons and determining the value of the coupons was too complicated for them. On one occasion Petitioner tried to use a coupon and a cashier named Rose instigated an argument about the matter. Petitioner believed Rose had a vendetta against her. The disagreement became loud and the Customer Service Manager (CSM) got involved. Francis Baker was the shift manager on duty and Petitioner tried to talk to him about the incident but he walked off. This hurt Petitioner's feelings. On one occasion a man attempted to utilize a discount card at another cashier's post and Petitioner intervened and informed the cashier that the man was separated from his wife, an employee of Respondent, and therefore was not eligible to use his discount card. The husband became angry and called her a "bitch." On another occasion the midnight cashier refused to check out Petitioner who had attempted to use a "comp ad." A "comp ad," is utilized in a situation where a customer produces an advertisement from a competitor which demonstrates that the competitor offers an identical product at a lower price. In such a situation, Respondent will sell the product at the competitor's price. Petitioner complained about this which attracted the attention of the night manager. This resulted in a disputatious event which disturbed the tranquility of the store. Petitioner wanted to be a backup CSM but was not installed as such. There is no actual position of "back-up CSM." It is simply a temporary working title. Petitioner never told Respondent's manager, Mr. Gilmore, or anyone else in authority, that she had a mental disability, although she once told Mr. Gilmore that she was suffering from depression. Petitioner never requested an accommodation. Mr. Gilmore was aware that Petitioner was afflicted with diabetes and made every accommodation for that condition, including giving her "breaks" and allowing her to have juice and water at her work station. This was accomplished even though Petitioner never provided Respondent with information from a physician indicating that she had diabetes. There was no record in her personnel file indicating that Petitioner was afflicted with diabetes or any other disorder. Petitioner agreed that during the time she worked for Respondent the drugs she was ingesting, designed to combat depression, controlled her problem. Petitioner affirmed that she was not limited in any major life activity as a result of her depression. Moreover, the record reveals that during the period prior to her termination she successfully worked at two different jobs. Jan K. Peterson is experienced in the retail trade. She was a supervisor of cashiers and CSM supervisor. She supervised Petitioner and observed that Petitioner was often late. Ms. Peterson tried to establish new hours for Petitioner for the convenience of Petitioner but Petitioner continued to be tardy nevertheless. She observed Petitioner clock in and thereafter visit with other associates rather than report to her work station. Ms. Peterson observed that Petitioner was disrespectful to the CSM's. On one occasion, Petitioner threatened to "get" her in the parking lot. Ms. Peterson concluded this communication was a threat of physical harm. Even though Ms. Peterson was often Petitioner's supervisor, Petitioner generally refused to speak to her. Petitioner indicated that she desired to be promoted to CSM. Ms. Peterson tried to train her so that her hopes could be realized. Ms. Peterson put Petitioner on the service desk to expand her vocational horizons. However, no openings for CSM occurred subsequent to Petitioner requesting the promotion and her eventual termination. Respondent demonstrated its caring attitude toward its personnel by providing a program called Resources for Living. This is a program for the benefit of employees although residual benefit is gleaned by Respondent. The program is designed to provide help to those who experience stress, or mental problems, alcoholism, or other maladies. The availability of this program was widely advertised in the store and Petitioner was aware of its availability. Petitioner never took advantage of this program. Brenda Garrett has worked at Wal-Mart for six and one half years and worked as a manager in another retail store before being employed by Wal-Mart. She is also a certified nursing assistant. Ms. Garrett observed Petitioner reporting to work late on numerous occasions. She was never informed by Petitioner that Petitioner believed she was mentally disabled. Ms. Garrett did, however, know that Petitioner was diabetic. During April 1997, Mr. Gilmore became manager of the Marianna Super Wal-Mart. Upon assuming his duties he reviewed employee work histories. Petitioner's record attracted his attention because it revealed entries involving insubordination, dress code violations, and tardiness. Mr. Gilmore attempted to counsel Petitioner in an effort to make her a better employee. Petitioner would not talk to him upon his initial attempt. Eventually she consented to talk to him and told him she wanted to be a CSM. Mr. Gilmore stated that if she improved her performance in her current position she could possibly be a CSM. Mr. Gilmore observed that Petitioner was capable of accomplishing her assigned duties. On one occasion Petitioner informed him that she was depressed. Mr. Gilmore asked her for documentation with regard to her depression but she never provided it. He did ensure that she was provided juice to ameliorate problems caused by her diabetes. Petitioner never asserted to Mr. Gilmore that she was disabled in any way and he observed no disability. Petitioner was the recipient of "coaching" forms. Some were entitled "Coaching for Improvement" forms. These forms are used to record a disciplinary breach and the corrective action taken. They cover the period May 7, 1997 through May 17, 1999. The coaching forms revealed that Petitioner was counseled for being short in her cash drawer, tardiness (twice), failing to make correct change, insubordination, shopping on duty, and causing a disturbance in the presence of customers on two occasions. Petitioner, during the time she worked at Respondent's store, was recorded as being late to work at least 38 times. Mr. Gilmore fired Petitioner because of her bad behavior, tardiness, absenteeism, and insubordination. He did not fire her because he did not believe she had a disability. He indicated a willingness to rehire her at some future date.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered dismissing the Petition. DONE AND ENTERED this 21st day of June, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 2002. COPIES FURNISHED: Margie R. Israel 2940 Carver Lane Marianna, Florida 32446 John A. Unzicker, Jr., Esquire Vernis & Bowling of Northwest Florida, P.A. 635 West Garden Street Pensacola, Florida 32501 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
