Findings Of Fact Respondent, Russell Corporation, has a plant located in Marianna, Florida. The work done at the Marianna plant consists of sewing pre-cut cloth into a finished garment. Shirley Melton is a middle-aged black woman who had been employed at Russell Corporation's, Marianna, Florida plant for 4 years as a sewing machine operator. She was one of the plant's best workers and until this incident, her supervisors had never had any trouble with her. On September 30, 1985, Ms. Melton filed a discrimination complaint against Russell Corporation, alleging that Respondent had discriminated against her on the basis of her race. The charge was based on the fact that Ms. Melton did not receive a sewing job she was interested in. The sewing position she sought was a temporary job. Ms. Melton did not know the job was temporary. While the job was originally discussed with Ms. Melton, the decision was made to place Clarice Moats, a white woman in the temporary job. Ms. Moats was chosen because (1) her original job had been eliminated; (2) she had more seniority; (3) little training was required because her prior job was similar; and (4) Ms. Melton was currently in a permanent job. The Human Relations Commission found no probable cause in Ms. Melton's complaint and took no further action regarding the complaint. After that date, but before July 16, 1986, Ms. Melton had gotten in a personal dispute with Carolina Myrick. The dispute was outside of work and did not relate in any way to work. Carolina Myrick was a quality control inspector for Russell Corporation and was related to Ms. Melton. On July 16, 1986, Ms. Melton and Ms. Myrick had worked most of the day without incident. However, beginning about 3:55 p.m., Ms. Melton learned that Ms. Myrick had "red tagged" a bundle of items she had sewn. A red tagged bundle is a bundle of sewn items which have not passed the quality control inspection Ms. Myrick performs on the bundle. Ms. Myrick then returns the rejected bundle to the appropriate employee's supervisor. A red tagged bundle can subject an employee to disciplinary action if the employee receives too many red tags. In this instance, Carol Hall was the floor supervisor over Ms. Melton. Ms. Melton went to see Carol Hall about the bundle "all the women on the line were talking about." While walking to Ms. Hall's desk, she passed Ms. Myrick and stated that she was going to whip Ms. Myrick's tail if she got another red tagged bundle. Upon arriving at Ms. Hall's desk, Ms. Hall informed Ms. Melton that it was her bundle that had been tagged. Ms. Melton left Ms. Hall's desk and began to walk out of the building since the quitting bell had rung. Ms. Melton was quite upset about the red tagged bundle. She believed Ms. Myrick was picking on her because of their earlier personal disagreement. Ms. Melton was in front of Ms. Myrick on the way out when she turned and said that she was an old witch and that "the Lord took the wrong one, it should have been you," referring to Ms. Myrick's sister Christine McGriff, who had suddenly and unexpectedly died of encephalitis a few weeks earlier. Ms. Myrick became upset over Ms. Melton's words and complained to the supervisor, Carol Hall. Carol Hall then took Ms. Myrick in to speak with Doris Durden, the floor supervisor. Ms. Durden then went to talk to Claude Nall, the plant manager. All three people believed that Ms. Melton's action was unusually cruel and it was their policy not to allow such behavior in the plant, particularly where a quality control person was involved. All three individuals testified that they had never had such extreme language used in the plant. The next day, Ms. Melton was suspended, pending an investigation. After a full investigation, during which Ms. Melton admitted making the above statements, it was decided to terminate Ms. Melton for gross insubordination towards a fellow employee and willful verbal abuse by making degrading remarks about the employee's job performance and about her family. It was the willful aspect of this misconduct which formed the basis for the discharge. At the time the termination was decided, Mr. Nall, the plant manager, did not even know about Ms. Melton's earlier complaint, because he had been transferred to the Marianna plant sometime after the earlier complaint had occurred. The decision to terminate was reviewed and approved by the personnel office in Alexander City, Alabama. Ms. Melton was formally terminated on July 21, 1986. Ms. Melton instituted the review proceedings the plant had established for employee disciplinary actions taken by plant supervisors. She appeared before a review board consisting of four (4) people from various other corporate offices and plants. The hearing was held on July 29, 1986. At the hearing, Ms. Melton again admitted making the alleged statements. However, even in the face of these admissions, Ms. Melton, at the hearing, maintained she never said she "would whip Ms. Myrick's tail." Respondent presented sufficient evidence to show that Ms. Melton's denial is incorrect. Ms. Melton asserted at the hearing that there were other incidents of a similar nature at the plant for which termination was not the end result. However, she presented no evidence, other than uncorroborated hearsay, that such incidents had in fact occurred. The witnesses called by Respondent flatly denied that any similar incidents had ever occurred which would be comparable to the extreme nature of Ms. Melton's conduct. Other than these hearsay statements by Ms. Melton, there was absolutely no evidence presented that Respondent discriminated against Ms. Melton in retaliation for her earlier filed discrimination action. Ms. Melton had the right to subpoena the persons involved in the allegedly similar conduct to testify to those matters. However, she did not exercise her right to do so.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition against respondent, Russell Corporation, be dismissed. DONE AND ORDERED this 6th day of May, 1988, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 6th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4132 Petitioner did not number her paragraphs in her recommended order. I, therefore, have numbered the paragraphs in her recommended order sequentially and utilize those numbers in this appendix. Petitioner's proposed finding of fact contained in paragraph 1, have been adopted, in so far as material, except the finding regarding Ms. Melton having more experience and the finding regarding retaliation. The evidence did not show these two (2) facts. Petitioner's proposed finding of fact in paragraph 2, have been adopted, in so far as material, except the evidence did demonstrate Ms. Melton said that she would whip Ms. Myrick's tail... and had admitted saying such at least two (2) times prior to the hearing. Because of the prior admissions the evidence demonstrated more than just a swearing match between Ms. Myrick and Ms. Melton. Petitioner's proposed finding of fact contained in paragraph 3 have been adopted as to the admissions. The rest of paragraph 3 is immaterial and uncorroborated hearsay Petitioner's proposed finding of fact contained in paragraph 4 are immaterial and evidence demonstrated admissions by Petitioner. Respondent's proposed finding of fact numbers 1, 4, 6, 9, 10, 11, 13, 22, 24, 25, 26 and 27 have been adopted, in substance, in so far as material. Respondent's proposed finding of fact number 2 was not shown by the evidence. Respondent's proposed finding of fact number 3 have been adopted, in substance, except the last sentence in paragraph 3, which was not shown by the evidence. Respondent's proposed finding of fact number 5 have been adopted, in substance, except evidence showed Ms. Melton's initial statement to Ms. Myrick was on her way back to supervisor's desk and not outside work area. Respondent's proposed finding of fact numbers 7, 8, 16 and 28 are immaterial. Respondent's proposed finding of fact number 12 have been adopted, in substance, except for leaving work area. Respondent's proposed finding of fact number 14 is immaterial, except as facts relate to one of Ms. Melton's admissions. Respondent's proposed finding of fact number 15 is immaterial, except as facts relate to one of Ms. Melton's admissions. Respondent's proposed finding of fact numbers 17, 18, 19, 20, 21 and 23 are subordinate. COPIES FURNISHED: Shirley Melton Star Route Box 98 Gordon, Alabama 36343 Carol Sue Nelson, Esquire CONSTANGY, BROOKS & SMITH 1015 First National Southern Natural Building Birmingham, Alabama 35203 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Margaret Agerton, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Petitioner, a member of a protected class, was denied promotion to the position of Secretary III with the Respondent in the Environmental Services Department on or about June 10, 1992, on the basis of her race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1991).
Findings Of Fact The Respondent is a constitutionally created school district charged with the duty to operate, control, and supervise all free public schools in Brevard County, Florida, and is an employer under the Florida Human Relations Act of 1977, as amended. Petitioner was employed by the Brevard County School District as a Clerk-Typist in the Environmental Services Department during the relevant period of time including April 1992. Petitioner is an African-American, and a member of a protected class. She is the only African-American who is assigned to work in the Environmental Services Department. During April of 1992, Petitioner worked as a Clerk Typist in the Environmental Services Department, and the Secretary III position was held by Sylvana Wall. Subsequent to April of 1992, Sylvana Wall resigned, creating a vacancy in the Secretary III position in the Department. In the interim period from the time Sylvana Wall resigned, and the date the position was filled in July of 1992, Petitioner undertook to perform the duties of the Secretary III position, and in accordance with the applicable collective bargaining agreement, was paid for said period of time in the higher classification. Following creation of the vacancy, a job vacancy announcement was posted and advertised. Applications were received and reviewed by a selection committee composed of Irma Reinpoldt, Department Director, and Michael Rogers, Environmental Engineer. Petitioner submitted application for the vacant position. Subsequently, applicants except Petitioner, were interviewed by the committee, and a decision was made to employ applicant Rhonda Steward, a white female, for the Secretary III position in the Environmental Services Department. Petitioner was not personally interviewed for the Secretary III position by the committee. They based their decision on the fact that Petitioner had been working for the department as a clerk typist for a number of months, and she had also filled in as the Secretary III for several months when the vacancy was created until the position was filled. Both members of the committee knew the Petitioner, her capabilities and qualifications, and considered it "redundant" to interview her. There was no School Board policy, custom, or practice that required the employer to personally interview all applicants for vacancies. The candidate selected, Rhonda Stewart, was fully qualified to fill the Secretary III position. The evidence showed that during the relevant period there were certain conflicts in the Department, not related to race. There was evidence of personality disputes, such as name calling, and unwillingness by Petitioner to do secretarial functions for certain members of the Environmental Services Department, particularly an Environmental Specialist who was dyslexic. In addition, certain co-employees did not get along with the Petitioner and vice versa. However, there was no indication from the sworn testimony that race played a part in the decision made by the Respondent to hire someone else for the position. It was the practice of Respondent that the immediate supervisor and department head determine who was the best qualified for a job vacancy, subject to any review by the Personnel Division. The Petitioner presented no testimony including her own, that she did not get promoted to the Secretary III position because of her race, or that there was disparate treatment of African-Americans by the Respondent in the hiring or promotion of minorities.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief. DONE AND ENTERED this 20th day of October, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2650 The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8(in part), 9, 10(in part), 11 Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 8(in part), 10(in part) COPIES FURNISHED: Cislyn Stephenson Emil Stephenson Qualified Representative 2298 September Street Melbourne, Florida 32935 Bill Walker, Esquire School Board of Brevard County 2700 St. Johns Street Melbourne, Florida 32940 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue in the case is whether the Department of Labor and Employment Security (Department), in implementing a workforce reduction that resulted in layoffs and demotions for employees, should have adopted by rulemaking, policies related to compensation reductions that occurred during the workforce reduction.
Findings Of Fact In 1999, a funding shortfall at the Department of Labor and Employment Security resulted in implementation of a workforce reduction plan. Petitioners Altamese Thompson and Sue Ezell were employees of the Department with permanent status in the Career Service system and whose employment and compensation were substantially affected by the Department’s workforce reduction program. Petitioner Florida Public Employees Council 79, AFSCME, represented the employees on collective bargaining issues affected in the workforce reduction. AFSCME members’ employment and compensation were substantially affected by the Department’s workforce reduction program. The 1999 workforce reduction was not the Department’s first experience with employee layoffs. In previous reductions, Department policy, set forth in LES Manual 1101.1.1.1 (October 1, 1996) was to retain, at existing salaries, as many employees as funding permitted. The Department policy was not adopted as an administrative rule. When the Department began to consider the workforce reduction of mid-1999, the Department apparently decided to increase the number of retained employees by reducing the salaries of workers who accepted "voluntary" demotions in lieu of layoff. By issuance of a "Change Notice" to LES Manual 1101.1.1.1, dated May 14, 1999, the Department redefined voluntary demotion to include "demotions requested by associates in lieu of layoff during workforce reduction pursuant to Chapter 60K-17, F.A.C." The revision also set forth a formula by which the compensation paid to employees who accepted voluntary demotion in lieu of transfer would be reduced. The change in the Department policy was not adopted as an administrative rule. Chapter 60K-17, Florida Administrative Code, sets forth the rules applicable to reduction of Career Service employees through the layoff process. The rule essentially establishes what is generally identified as the "bumping" procedure utilized by state agencies when employee levels are reduced. Rule 60K-17.004(3)(j), Florida Administrative Code, states in part, "[w]ithin 7 calendar days after receiving the notice of layoff, the employee shall have the right to request a demotion or reassignment. " Rule 60K-17.004(3)(p), Florida Administrative Code, states that "[a]n employee who accepts a voluntary demotion in lieu of layoff and is subsequently promoted to a position in the same class in the same agency from which the employee is demoted in lieu of layoff, shall be promoted with permanent status." Chapter 60K-17, Florida Administrative Code, does not prohibit salary reductions implemented as part of a voluntary demotion. Rule 60K-4.007, Florida Administrative Code, governs "demotion appointments" in the career service system. The rule states that a "demotion appointment" includes assignment to a job class having a "lower maximum salary or having the same or higher maximum salary but a lower level of responsibility. Rule 60K-2.004, Florida Administrative Code, governs salary determinations upon appointment to employment. Rule 60K- 2.004(4), Florida Administrative Code, states, "[a]n employee who is given a demotion appointment in accordance with Chapter 60K-4, F.A.C., may be demoted with or without a reduction in base rate of pay. " Rule 60K-9.005, Florida Administrative Code, addresses a Career Service employee’s right to appeal employment actions to the Public Employees Relations Commission. Generally, an employee who has attained permanent status in the Career Service System can appeal employment actions to the Public Employees Relations Commission. However, Rule 60K-9.005(5)(c), Florida Administrative Code, states than "[a]n employee who receives a reduction in pay, a demotion, or a transfer shall waive all rights to appeal such action if the employee has signed a written statement that the action is voluntary." By certified letters dated May 24, 1999, Petitioners Thompson and Ezell were advised that "[d]ue to impending budget cuts" the Department was reducing the number of positions in the Department’s Division of Jobs and Benefits (where Petitioners Thompson and Ezell worked) and that "[r]egretfully, you will be adversely affected by this work force reduction on June 30, 1999, at the close of business." The May 24 letter included a form titled "STATEMENT OF CHOICE OF OPTIONS DUE TO LAYOFF SITUATION" which set forth available jobs and included an option allowing the employee to select a layoff rather than the job demotion. The form included a signature line that stated, "I understand that by selecting demotion as an option, I am requesting a voluntary demotion in lieu of layoff, and my pay upon such voluntary demotion will be subject to the newly revised Section 1101.1.1.1.9d of the LES Personnel Manual." The evidence fails to establish the content of Section 1101.1.1.1.9d of the revised LES Personnel Manual. The documents entered into evidence at the hearing are identified as 1101.1.1.1. There is no subsection 9d. Subsection (c)2.c. addresses pay upon voluntary demotion and states as follows: Associates requesting voluntary demotions must have their base rate of pay reduced by one-half (1/2) of the percentage/salary increase received upon promotion and/or reassignment. For example, if an associate received a 10 percent promotional increase, his/her base rate of pay must be reduced by 5 percent. Permanent career service associates who have not had a promotional increase will have their base rate reduced by 5 percent. The Division Director/Commission Chairman equivalent has authority to take final action provided, however, that any variations must be submitted to the Assistant Secretary of Administration for review prior to final action. This provision also applies to demotions to classes that are higher or lower than the classes held prior to promotion and/or reassignment. Ms. Thompson noted her preferences as to the available jobs positions and signed the form. Ms. Ezell noted her preferences as to the available jobs positions and signed the form, but wrote a notation on the form indicating her disagreement with the situation, in part stating, "I am not voluntarily requesting demotion. I have absolutely no other choice after 27 years. A pay reduction should not occur. " At hearing, both Ms. Thompson and Ms. Ezell suggested that being forced to accept a demotion and pay reduction in lieu of total layoff did not present an entirely voluntary choice. There is no evidence that the Department provided copies of the cited Personnel Manual revision directly to affected employees either before or after the May 24 letters were issued. There is no evidence that either Ms. Thompson or Ms. Ezell saw the revised Personnel Manual prior to signing the "STATEMENT OF CHOICE" forms. During the spring of 1999, the Division’s Director circulated a publication entitled "Friday Fax" to employees of the Department’s Division of Jobs and Benefits. The "Friday Fax" dated March 19, 1999 indicates that an employee demoted as part of the pending reduction in force would retain their current salary. This reflects the existing policy of the Department that had been applied in prior workforce reductions. There is no credible evidence that the Division Director was explicitly authorized to restate the Department policy in the March 19, 1999 Friday Fax. There is evidence that the Department executives were considering the possibility of salary reductions during the ongoing planning for the workforce reduction. By the following week, a new Division Director had been appointed. By April 2, 1999, publication of "Friday Fax" was suspended. A new publication "Just The Facts. . ." began to be issued by the Department’s Office of Communications and was circulated to agency personnel. On May 24, 1999, the same day that the workforce reduction letters were mailed to Petitioners Thompson and Ezell, an issue of "Just The Facts" was published which stated that demotions in lieu of layoff would incur salary reductions, and referenced the revised LES Personnel Manual section as "1101.1.1.1 9.d.(1)(6)(c)2.c."
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was unlawfully discriminated against due to her age, with regard to her termination from employment on June 19, 1996, and, collaterally, whether her claim is barred by the doctrine collateral estoppel because of Findings of Fact and Conclusions of Law entered by a hearing officer in an unemployment compensation appeals proceeding also related to her termination from employment.
Findings Of Fact Roberta McCabe, the Petitioner, was employed by the Respondent, Woodland Towers, Inc., as a dining room manager from October 22, 1991, through June 19, 1996. During her employment with Woodland Towers that entity employed more than fifteen employees. Ms. McCabe's initial date of employment was August 19, 1991, but she began her capacity as dining room manager on October 22, 1991. She served in that capacity until her termination date of June 19, 1996. She was terminated on that date against her will. Ms. McCabe was born on June 3, 1935, and at the time of her termination she was sixty-one years of age. After her termination, on June 21, 1996, the Petitioner filed a claim against Woodland Towers with the Florida Department of Labor and Employment Security, Division of Unemployment Compensation. In that claim she first raised the issue that she had been discharged due to her age. That claim was filed, of course, before a different state agency, with a different jurisdiction, although the parties were the same. The legal issues were not established to be the same, however, with the exception that in that case, as in this one, the Petitioner raised the question of discharge due to age discrimination. The statutory standards for liability for unemployment compensation, however, were not shown to be co-extensive and identical to those statutory standards and statutory-based legal issues which prevail in the instant case before a different state agency. While the issue of age discrimination may have been the reason offered by the Petitioner in the employment compensation case for her separation from employment, as opposed to what was ultimately found (discharge for misconduct) that legal concept was not shown to have the same definition under the Unemployment Compensation statutes involved in that proceeding, nor was it shown that those statutes support the same or similar actions and remedies as does Chapter 760, Florida Statutes, under which the instant proceeding arises. Therefore it cannot be determined that the legal issues or, for that matter the factual issues in the instant proceeding, are substantially identical to those extant in the unemployment compensation proceeding. In any event, Ms. McCabe timely filed a charge involving age discrimination with the Florida Commission on Human Relations, on or about August 26, 1996. The matter ultimately came on for hearing before the undersigned judge. Ms. McCabe testified at hearing that the only act of discrimination she contends occurred with regard to her termination from employment, on June 19, 1996, occurred on that date and involved discrimination on account of her age. She did not, however, establish that anyone at Woodland Towers ever actually made any discriminatory comments or remarks regarding her age. Ms. McCabe essentially inferred from her status as an older employee, and the fact that she was terminated, the conclusion that Woodland Towers had terminated her on account of her age. She offered no testimony other than her own to support her claim of age discrimination. Conversely, Eleanor Gustavsson and Sidney Roberts both testified that age had nothing to do with their decision to terminate her. Their testimony was unrebutted by the Petitioner. The testimony supporting Petitioner's position that age discrimination or animus resulted in her termination is based solely on the Petitioner's own testimony, chiefly involving her conjectural position, without corroborating evidence, that Woodland Towers intended to terminate her because of her years of seniority which resulted in higher pay and benefits and that therefore, resultingly, her age, with attendant higher pay and benefits, in her position, caused her to be terminated in a discriminatory way, predicated upon her age. Moreover, the Petitioner failed to describe any other co-employee who committed a similar infraction but who was treated more favorably than the Petitioner and did not show that there was any other employee of a younger age who was treated more favorably after committing a similar infraction. The Petitioner did produce the testimony of two fellow employees and offered to produce others to testify that another employee was rude and hostile to the Petitioner. This is insufficient, however, to establish that she was discriminated against because of her age. It was not shown that that employee was in a supervisory position over the Petitioner and merely being rude and hostile to a fellow employee does not rise to the level of Ms. McCabe's infraction. It is therefore unpersuasive to show that Ms. McCabe was the subject of disparate treatment because of her age. Uncontradicted evidence was presented at hearing which establishes that the Petitioner was allowing employees under her supervision, in her capacity as dining room manager, to report for duty before normal working hours and begin work without compensation for the extra time. It was established that she was aware of and indeed responsible for these employees "working off the clock" or before "punching-in." The evidence establishes that she was aware that this was contrary to federal law and Woodland Towers' policy. She was also aware that she was responsible for supervising those offending employees and enforcing the law and policy concerning hours of employment. The Petitioner took full responsibility for the law and employment policy violation in this regard and admitted during the hearing that her actions violated Woodland Towers' employment hours policy. Additionally, Woodland Towers presented credible evidence that Ms. McCabe was terminated solely for reasons of violation of that federal law and policy concerning hours of employment. Woodland Towers' evidence establishes that her age was not the reason for her termination, but rather that her violation of federal law and employment policy concerning the working hours of her employees was that reason. That showing was not rebutted.
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 argument of the parties, it is RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by the Petitioner herein. DONE AND ENTERED this 5th day of April, 1999, 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 the Clerk of the Division of Administrative Hearings this 5th day of April, 1999. COPIES FURNISHED: Robert W. Lloyd, Esquire Cobb, Cole and Bell Post Office Box 2491 Daytona Beach, Florida 32115 Roberta McCabe 701 North Ocean Street Jacksonville, Florida 32201 Sharon Moultry, Clerk Florida Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Petitioner was employed by HRS at the Broward County Public Health Unit ("BCPHU") as a Fiscal Assistant II, a career service position. Petitioner began working for HRS in approximately August, 1973. From approximately July of 1986 through July of 1991, Petitioner's supervisor at BCPHU was Sylvia Villafana. During this time period, Ms. Villafana frequently counseled Petitioner regarding excessive absenteeism and tardiness which interfered with Petitioner's ability to meet necessary deadlines at work. Even before 1986, Petitioner's personnel record reflects excessive use of sick leave and problems with prompt and consistent attendance at work. These issues were discussed with Petitioner on several occasions. In March of 1991, Ms. Villafana scheduled a meeting for March 21, 1991, with Petitioner and Jeff Keiser, the personnel manager for BCPHU. At that meeting, Ms. Villafana intended to issue a written reprimand to Petitioner regarding excessive absenteeism. The March 21, 1991, meeting was scheduled to begin at 2:00. Petitioner left the BCPHU building at approximately 1:00 p.m. that day and did not attend the meeting. Petitioner contends that she was having chest pains and went to the hospital that afternoon. Petitioner did not advise her supervisor that she was leaving the premises. Petitioner did advise at least one co-worker at BCPHU that she was leaving. The next day, Petitioner's daughter called Ms. Villafana and told her that Petitioner was in the hospital. Ms. Villafana told Petitioner's daughter that documentation would be needed of Petitioner's medical problems. No records of Petitioner's hospitalization were ever presented to Ms. Villafana or any other HRS supervisor. Petitioner was apparently discharged from the hospital on the evening of March 22, 1991. Petitioner contends that she called Ms. Villafana on Monday, March 25, and told her that she was still under a doctor's care and that she would return to work as soon as he released her. Ms. Villafana contends that the telephone conversation did not occur until March 29, 1991. In any event, Petitioner did not ask for authorized leave. During the telephone conversation, Petitioner indicated that she had a doctor's appointment on April 2. Ms. Villafana told Petitioner that medical documentation of her problem would be necessary. On April 3, 1991, Petitioner did not return to work. At this point, Ms. Villafana had virtually no information regarding Petitioner's alleged illness and/or condition. Ms. Villafana inquired of other employees regarding Petitioner's condition, but was unable to learn anything more. On the afternoon of April 3, 1991, Petitioner contacted Ms. Villafana and indicated that she would be back to work on April 9, 1991. The April 3 conversation was acrimonious. Because there were several large project deadlines coming due, Ms. Villafana emphasized that medical documentation was needed to support Petitioner's claim of illness. Petitioner did not show up for work on April 9, 1991. On April 10, 1991, Petitioner called and told Ms. Villafana that she was mailing in notes from her doctors and then hung up. On April 11, 1991, Ms. Villafana found notes from two doctors on her desk. The notes were submitted into evidence at the hearing, but were not authenticated by the physicians who purportedly authored them. One of the notes was allegedly from Dr. Murillo, a cardiologist. This note indicated that Petitioner would be able to return to work on April 15, 1991. The second note was from Dr. Love, an orthopedic surgeon, who indicated that he was scheduled to see Petitioner again on April 24, 1991, and that Petitioner was "unable to return to work" until then. No explanation was given as to the nature of Petitioner's injuries. At the hearing in this case, Petitioner contended that she was seeing Dr. Love in connection with injuries supposedly received during an automobile accident on February 20, 1991. No persuasive evidence was presented as to the nature and extent of those injuries. The car accident occurred on the evening of February 20 and Petitioner reported to work the next day. No evidence was presented to establish that Petitioner missed any work as a result of the car accident prior to the time she left work on March 20, 1991, complaining of chest pains. Ms. Villafana advised Petitioner that the doctor's notes submitted on April 11 did not provide adequate documentation of her medical condition and/or inability to work. Petitioner did not report to work on April 25, 1991, and did not contact her supervisor. Neither Ms. Villafana nor the personnel office had a home phone number or current residence address for Petitioner. One of Petitioner's friends gave Ms. Villafana a P.O. Box number which Petitioner was using as a mailing address. On April 30, 1991, Ms. Villafana prepared a letter which was sent to Petitioner at her last known address and by certified mail to the post office box. That letter advised Petitioner that as of the close of business on Monday, April 29, 1991, she was absent without authorized leave and was in jeopardy of being deemed to have abandoned her position. The letter noted that the last medical excuse from Dr. Love expired as of the end of the normal work day on April 24, 1991. The certified letter was not claimed. On April 30, 1991, Petitioner spoke with Jeff Keiser who advised her that she would be receiving a letter regarding the possible abandonment of her position. Petitioner did not request and was not given authorized leave. During one of their conversations over this period of time, Ms. Villafana advised Petitioner that she should document in writing a request for leave. No such written request was ever received. Also during one of these conversations, Petitioner acknowledged that she had received the April 30, 1991 letter. On May 2, 1991, Ms. Villafana received two additional notes on Dr. Love's letterhead. One of the notes was dated April 24, 1991, and indicated that Petitioner was scheduled for a follow up visit on May 8, 1991. The second note was dated May 1, 1991, and indicated that Petitioner was unable to return to work for two weeks. The note on Dr. Love's letterhead dated May 1, 1991, included some information regarding Petitioner's alleged medical problems. However, Ms. Villafana advised Petitioner that she needed additional information regarding her condition. On May 13, 1991, Petitioner provided Ms. Villafana with a note on Dr. Love's stationery dated May 8, 1991. This note indicated that Petitioner was unable to work for two more weeks and was scheduled for a follow up visit on May 22, 1991. Ms. Villafana spoke with Petitioner on May 23, 1991. During that conversation, Petitioner indicated that she was returning to the doctor on May 30 and hoped to be in the office on May 31. Petitioner did not show up for work on May 31, 1991. On June 3, 1991, Petitioner called Ms. Villafana and advised her that she was going to see the doctor and, if he released her, she would be back at work on Wednesday, June 5. Petitioner did not show up for work on June 5, 1991. On June 20, 1991, Ms. Villafana received a note on Dr. Love's office letterhead indicating that Petitioner visited his office on June 14, 1991, and was unable to return to work for one week. Around this time, another note was received which indicated that Petitioner had an office visit on June 7, 1991, and was unable to return to work for one week. In a letter dated June 21, 1991, Ms. Villafana advised Petitioner that her [C]ontinued actions have placed [her] employment with the HRS BCPHU in serious jeopardy. Leave of absence (sick leave and/or leave without pay) was never formally requested by you since your midday departure on 3/20/91 and was, therefore, not approved. Chapter 22A-8.002 of the State of Florida Career Service Personnel Rules and Regulations states that 'the granting of any leave of absence with our without pay shall be in writing and shall be approved by the proper authority within the agency.' This was not done. On various occasions, I requested that you inform me of your intentions in reference to your leave, which you did not communicate to me, your supervisor, of your plans. As of this date, you have been on unauthorized leave for three months... All avenues of communication to you have been exhausted; I am unable to call you because you state that you have no telephone; certified mailings to your P.O. Box and various addresses have been returned unclaimed; etc. On the few and far between telephone calls from you, I received the run around stating that medical notes are forthcoming in the mail. This practice will no longer take effect. You are therefore, Ms. Gray, to return to work on 8:00 a.m. on Monday, July 1, 1991... The June 21, 1991 letter was sent to Petitioner by certified mail. Copies were also sent to Petitioner's P.O. Box and last known address in unmarked envelopes. Petitioner did not show up for work on July 1, 1991. During the hearing, Petitioner contended that she did not receive the June 21 letter until July 3, 1991. Petitioner contends that Dr. Love did not release her to return to work until July 10, 1991. Petitioner admitted during the hearing that she spoke to Ms. Villafana and Mr. Keiser on July 3, 1991. Neither of these supervisors gave her authorization for any additional leave. Petitioner contends that she told them that she would not return to work until released by her physician. There is no evidence that either Ms. Villafana or Mr. Keiser granted her leave to remain absent for any additional time. On July 10, 1991, Petitioner contacted her supervisor about returning to work, but was told that she was deemed to have abandoned her position. At the hearing Petitioner produced two typewritten notes on the stationary of Dr. Love dated June 21, 1991, and July 10, 1991 (Petitioner's Exhibits 4 and 2). Neither of these notes were properly authenticated and there is no evidence to establish who wrote them or when. As noted above, Dr. Love did not testify at the hearing. These alleged records of Dr. Love's treatment of Petitioner were not provided to Ms. Villafana or the BCPHU Personnel Office until after Petitioner as deemed to have abandoned her position. Petitioner contends that she provided the Personnel Office and/or her supervisors with a copy of Dr. Love's reports prior to receiving the June 21, 1991 certified letter. However, the more credible evidence established that from June 20 through at least July 10, neither Ms. Villafana nor the Personnel Office was provided with any documentation from any physician that Petitioner was unable to work. The evidence established that from June 21, 1991, until July 10, 1991, Petitioner did not show up for work, did not provide any additional documentation regarding her absences and was not granted authorized leave. During the time she was employed at BCPHU, Petitioner was presented with a copy of the HRS Employee Handbook. That Handbook advised employees that they could be deemed to have abandoned their position if they were absent for three consecutive work days without authorization. Ms. Gray should have been aware of the requirements regarding sick leave and leaves of absence and her need to provide documentation regarding her course of treatment to the BCPHU Personnel Office. By certified letter dated July 25, 1991, Respondent advised Petitioner that she was deemed to have abandoned her career service position.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order finding that Inez Gray abandoned her career service position with HRS and is not eligible to be reinstated or to receive any back pay. DONE and ENTERED this 7 day of August 1992, at Tallahassee, Florida. J. STEPHEN MENTON 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 7 day of August 1992. APPENDIX Only Petitioner submitted a proposed findings of fact. The following constitutes my rulings on those proposals. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Subordinate to Findings of Fact 7. Subordinate to Findings of Fact 3. Subordinate to Findings of Fact 4. Subordinate to Findings of Fact 7 and 24. Rejected as not supported by the weight of the evidence. This subject matter is addressed in Findings of Fact 24. The last note submitted was dated June 14, 1991 and indicated that Petitioner was unable to return to work for one week. This last note was received by Petitioner's supervisors on June 20, 1991. Adopted in pertinent part in Findings of Fact 19-22. Subordinate to Findings of Fact 22. Adopted in substance in Findings of Fact 33. The first sentence is subordinate to Findings of Fact 25 and 27. The second sentence is subordinate to Findings of Fact 26. Rejected as vague and unnecessary. Rejected as unnecessary and irrelevant. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Larry Strong, Acting Secretary Department of Management Services 2737 Centerview Drive, Knight Building Koger Executive Center Tallahassee, Florida 32399-0950 Augustus D. Aikens, Jr., Esquire Department of Management Services 2737 Centerview Drive, Knight Building Koger Executive Center Tallahassee, Florida 32399-0950 Ben Patterson, Esquire Patterson & Traynham 1215 Thomasville Road P.O. Box 4289 Tallahassee, Florida 32315 Judith C. Engelberg Acting District Legal Counsel Department of Health and Rehabilitative Services 201 West Broward Boulevard, Suite 513 Fort Lauderdale, Florida 33301-1885
The Issue Was Petitioner denied a promotion on account of her gender?
Findings Of Fact Petitioner has been employed by the Department since 1991. Petitioner is a Field Biologist, Grade Level I. Among other things, she monitors surface water quality by collecting water in various environments and analyzing it in a laboratory. Early in 1994, there was a reorganization of her section and she began to work in the laboratory under the supervision of Jerry Owen. In the middle of 1994, Jim Wright became the supervisor of the laboratory section and, thus, Petitioner's supervisor. Subsequent to Mr. Wright becoming her supervisor, she experienced problems with regard to work assignments. Petitioner had been trained to operate the section's motorboats in 1991, and had operated them in the past. In January 1995, there were questions about Petitioner operating the boats. Subsequently, Environmental Specialist III Lee Banks told her she could no longer operate the boats. Under the supervision of Mr. Wright, Petitioner was assigned many secretarial duties. She was criticized for her lack of skill in filing. Mr. Wright suggested that she get some advice on how to properly file. She was instructed to learn to type and criticized when she failed to learn that skill. She was told that she couldn't travel to meetings and seminars until she completed a typing tutorial. During this period at least two informal documents were circulated in the section which were derogatory toward women. They could be considered offensive to someone with tender feelings, but they contained no vulgarity and were not outrageous. The origin of the documents was not demonstrated. Mr. Wright sometimes belittled the employees who were under his and he or others in the section sometimes told jokes, including "dumb blonde" jokes. On October 15, 1996, Petitioner learned that a co- worker, Pat O'Conner, a Field Biologist, Grade Level I, had his position upgraded to Field Biologist, Grade Level II. Pat O'Conner is a male and had less seniority in the Department than Petitioner. The position upgrade was not advertised and was not open to competition. Petitioner complained about this and was told to "sit tight" until an ongoing investigation of Mr. Wright was completed. Mr. Wright was removed from his position in March 1997. Petitioner prepared a complaint with the Jacksonville Equal Opportunity Commission, which was signed on September 20, 1997, and filed sometime shortly afterward. Petitioner's complaint with the Florida Commission on Human Relations was filed on November 14, 1997.
Recommendation Based upon the Findings of Fact and Conclusions of Law, and because of the reasons set forth in paragraphs 21 and 28, it is RECOMMENDED: That a final order be entered which dismisses Petitioner's claim of discrimination based upon gender. DONE AND ENTERED this 16th day of February, 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 16th day of February, 2001. COPIES FURNISHED: Azizi M. Coleman, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Amy B. Kalmbacher 600 Domenico Circle, A-10 St. Augustine, Florida 32086 Marshall G. Wiseheart, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-6515 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race, age, sex, or as retaliation in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, a 56-year-old African- American female, as a Food Support Worker at Florida State Hospital in Chattahoochee, Florida, at all times relevant to these proceedings. Petitioner was promoted to the position of Food Service Worker on May 10, 2002, with probationary status until May 10, 2003. On February 12, 2003, Petitioner was terminated from her employment for failure to satisfactorily complete her probationary period in the career service. In the course of her employment with Florida State Hospital, Petitioner was aware of the strict safety guidelines implemented by Respondent to protect employees from injury. Petitioner also knew that violation of the safety rules could result in dismissal of an erring employee. Violations of these policies had resulted in dismissal of both non-minority and minority employees in the past. On February 9, 2003, due to an unsafe act and violation of Respondent’s safety rules, Petitioner proceeded to cut the tip of her left thumb in the process of slicing cabbage. Petitioner was not using a cutting glove, a mandatory requirement of the safety rules. As a result of this rule violation, Respondent terminated Petitioner’s employment on February 12, 2003. At final hearing, Petitioner admitted the cutting injury to her finger, but contended that termination of employment had not been effected for other younger white employees for similar offenses in the past. These allegations of Petitioner were non-specific and uncorroborated; they are not credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 3rd day of November, 2004, in Tallahassee, Leon County, Florida. S DON W. 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 3rd day of November, 2004. COPIES FURNISHED: Annette Carroll 10202 Northwest Third Street Bristol, Florida 32321 Kathi Lee Kilpatrick, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000 Jacqueline H. Smith, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent County is guilty of an unlawful employment practice pursuant to Chapter 760, Florida Statutes, and if so, what is the appropriate remedy?
Findings Of Fact Petitioner is female, and within a class protected by Section 760.10(1), Florida Statutes. Respondent County is an "employer" within the meaning of Section 760.02(7), Florida Statutes. Petitioner claimed that Respondent treated her disparately from male employees on the basis of her gender in the areas of pay during her probationary period, reprimands and discipline, provision of equipment, poor performance evaluations, and training. Petitioner's initial relationship with Respondent was as an independent contractor at Respondent's Sanitary Landfill under a written contract entered into on September 15, 1989. In this capacity, she acted as a "spotter." As an independent contractor, she received $250 per month and salvage rights to whatever material customers brought to the Respondent's Sanitary Landfill. Effective August 14, 1990, the State Division of Personnel and Retirement required Respondent to put all contractual people on the County payroll. Thereafter, Petitioner was paid $350 per month and continued to have salvage rights only at the sufferance of the Respondent. After that date, Petitioner earned retirement and social security benefits. Withholding of federal taxes and deduction of social security benefits were also provided.(P-12). The value of the salvage rights were never calculated by anyone. While she was employed as a "spotter," Petitioner was the only female "spotter." Petitioner was on probation as an employee from August to December 1990. Petitioner was paid $1.442 per hour from August 12, 1990 through October 1990, and $1.63 per hour from October 1990 through December 3, 1990. At that time, her rate of pay was raised to $3.85 per hour. The record contains no evidence of what was paid to any male employee similarly situated during this period. Without proof that similarly situated male spotters were consistently paid better, there is no proof of gender discrimination in pay during Petitioner's probationary period.3 Mark Hawes, a male, was hired as a spotter on June 1, 1993. He was paid $4.35 per hour while on probation. Willie George, also male, was hired as a spotter on October 1, 1993, and was paid $4.4805 per hour while on probation. There is no evidence of how much Petitioner was being paid during this period, so there is no means of assessing disparate treatment in pay, if any, during this period.4 During the period that Petitioner was employed as a "spotter," there was no statute or rule requiring that "spotters" receive formalized training or be certified in any field. During Petitioner's employment, no spotter were provided more than a printed Job Description and on-the-job oral instructions. They were expected to use courtesy and common sense in dealing with the public. Two employees (gender unspecified) who were not spotters were sent to train at a state "school" to become Certified Landfill Operators. A State Rule was enacted after Petitioner was terminated which required that all spotters must have eight hours of specialized training. Thereafter, the Respondent provided such training to spotters. At all times material to any Personnel Citations, Petitioner was a union member, and all benefits of her union's collective bargaining agreement with the Respondent accrued to her. No performance evaluations were submitted in evidence. With the exception of the events related within the following findings of fact, no witness found any fault with Petitioner in the performance of her job description as a "spotter" at Respondent's landfill. (P-1) Wayne Hardee, Director of the Landfill, issued a Personnel Citation against Petitioner early in her employment on the basis of lack of personal hygiene. The citation was later removed from Petitioner's personnel file as an act of good will. On or about January 16, 1994, Petitioner admitted to an immediate supervisor that her carelessness with a hand-held CB radio had resulted in loss of the radio. She offered to pay for the radio. Mr. Hardee did not require her to pay for the radio, but issued a written Personnel Citation to her on January 20, 1994 for her carelessness. This Personnel Citation simultaneously cited Petitioner because Mr. Hardee had received complaints that Petitioner was overly concerned about other spotters doing their jobs. In this Personnel Citation, Mr. Hardee warned Petitioner to do her job without complaining about other employees. Petitioner admitted that she signed this citation and that she did not grieve it through her union. The radio was later recovered, but the citation remained in Petitioner's personnel file. (P-2) On Saturday, July 9, 1994, Petitioner called her union's senior shop steward, Jessie Ellzey, to the landfill to complain about items left at her spotter station. Mr. Ellzey's perception was that Petitioner was accusing another employee of putting the items in the wrong place. Petitioner also told Mr. Ellzey that another employee had threatened her. After investigation and interviews the following week, Mr. Ellzey and Mr. Hardee determined that the items had been brought by a landfill customer to the landfill between shift changes. Mr. Hardee's and Mr. Ellzey's perception was that Petitioner had unfairly complained about another spotter, Willie George, not doing his job. At least three days and two meetings were involved in this investigation and counseling procedure. Mr. Hardee issued a written Personnel Citation against Petitioner for complaining about a co-employee. (P-3) Petitioner also was suspended without pay for one day and warned that if the problem was not corrected, further disciplinary action would be taken against her. Petitioner did not grieve this citation through her union. Based on all of Mr. Ellzey's credible testimony, due to reputation testimony about Mr. Ellzey's standard operating procedure, and because Petitioner was actually suspended for one day without pay, I reject as not credible Petitioner's testimony that she never knew of this citation in time to grieve it. On August 13, 1994, Ann Harrell, a landfill customer, filed a written complaint of rudeness against Petitioner. (P-9) A written complaint of rudeness by Petitioner was also filed by another customer, Mr. Richburg, at about the same time. Mr. Hardee considered courtesy to customers to be an unstated policy of County government and further perceived rudeness to customers to be an on-going problem in Petitioner's relationship with the public. Due to the foregoing written complaints and many similar oral complaints he had received, Mr. Hardee assigned Petitioner two days' suspension without pay by a written Personnel Citation issued August 15, 1994. The citation also warned Petitioner she would be terminated if there were another complaint about her. Petitioner refused to sign this citation. (P-4) On August 25, 1994, Petitioner grieved the August 15, 1994 Personnel Citation through her union. (P-5) A hearing was held in response to Petitioner's grievance. All concerned agree that Mr. Ellzey, the union representative advocating Petitioner's position, and not a representative of management, kept Petitioner from testifying. Chester Humphries testified on Petitioner's behalf at the grievance hearing that he had been unable to hear what Mr. Richburg said but could hear what Petitioner said to Mr. Richburg. From this, Mr. Hardee inferred that Petitioner had raised her voice to Mr. Richburg. Mr. Hardee assessed Petitioner's character witnesses in Petitioner's favor but noted that they knew nothing about the specific incident between Petitioner and Mr. Richburg. Ultimately, Mr. Hardee relied on Mr. Richburg's testimony concerning the incident. (P-6) Mr. Hardee denied Petitioner's grievance and disciplined Petitioner in accord with the August 15, 1994 Personnel Citation. Upon advice of her union steward, Petitioner did not appeal the grievance hearing result. It was further agreed that if Petitioner's behavior resulted in no more complaints against her for 30 working days, the August 15, 1994, citation would be removed from her personnel file. Petitioner met this requirement, and the citation was removed from her personnel file. (P-6; P-7). Petitioner's December 13, 1994, charge of discrimination before the Florida Commission on Human Relations listed August 11, 1994, as the last date of alleged discrimination. No witness at formal hearing herein, including Mr. Ellzey and Mr. Humphries, both of whom also had been present at the grievance hearing, confirmed Petitioner's perception that her gender had affected the result of her grievance hearing. Another female employee (not a landfill spotter) currently works in Respondent's administrative offices. That female employee also has had employment disputes with Mr. Hardee which she attributes to his gender bias, but the type of dispute was not clearly specified on this record. Therefore, no similarity to Petitioner's situation can be discerned and no pattern of gender bias was proven on that basis. This female employee is still employed by Respondent. A different female employee (also not a spotter) employed by Respondent's Emergency Medical Services (EMS) was terminated by Mr. Bill Beddow, EMS Director, for failing to timely report (or complain about) her immediate supervisor for "doing something [Mr. Beddow] thought he shouldn't be doing with drugs." The male supervisor resigned for "personal reasons." The female employee was rehired by Mr. Beddow after intercession by her union. This means another female not similarly situated to Petitioner was terminated for not complaining about a male employee's job performance and was then hired back, whereas Petitioner was progressively disciplined with reprimands and suspensions for repetitive unsubstantiated complaints about male employees' job performances. Petitioner seeks to have the conclusion drawn that female employees were disciplined both for reporting and for not reporting male employees' misbehavior. However, the two isolated situations are so dissimilar as to develop no pattern recognizable at law. I accept as credible and unrefuted Petitioner's testimony that all of the complaints she initiated about other employees were oral. However, Petitioner's testimony that she did not complain about other employees' performance of, or failure to perform, their jobs and her assertion that her complaints were only motivated by the requirements of her Job Description to "inspect loads" and "report all problems" was not corroborated by any other witness. Petitioner's testimony that her concerns were directed not at individual employees but at addressing hazardous wastes also was not corroborated by any other witness.5 Petitioner's middle level supervisor acknowledged that Petitioner told him that other employees had improperly handled hazardous materials as well as non-hazardous materials but that he did not cite anyone as a result of Petitioner's complaints about hazardous wastes because it was impossible to prove who was responsible. He counseled all subordinates about each incident whenever he considered counseling appropriate. Otherwise, all witnesses with reason to know the situation generally acknowledged that Petitioner's oral complaints were recurring almost daily and were directed to other employees' job performances rather than hazardous materials. It is the repetitive and personal nature of Petitioner's complaints rather than their being oral that management found offensive. The evidence also generally shows that all employees orally complained about each other and that Petitioner's two immediate supervisors, Felippe McCelroy and Robert Murray, orally reprimanded everybody who complained or who was complained about as they each saw fit within their supervisory discretion on individual occasions. No gender pattern is to be discerned from the foregoing. Only on those occasions that either an oral or written complaint reached Mr. Hardee was anyone written up and/or disciplined. Petitioner complained about not being assigned or provided with one of Respondent employer's trucks when other male employees were provided trucks. With the exception of the following findings related to the Respondent's trucks, there is no relevant evidence in this record concerning employees' use of trucks. All employees were cautioned against carelessness. Tommy Dean, a male employee, dented one of Respondent's trucks. He was not disciplined for careless driving. There is no evidence the dent was caused by Mr. Dean's careless driving. In February 1995, Charles Kennedy, a male spotter, filed a written complaint or incident report. Therein, he claimed that Petitioner had attempted to prohibit his bulldozing landfill material out of the way because Petitioner was trying to remove salvageable items. He further alleged that Petitioner had thrown a jar of grease at him. Petitioner was requested to file a written account of the incident. In her written account, she basically admitted the incident but not any intent to hit Mr. Kennedy with the grease jar. Mr. Kennedy was not disciplined for filing the written complaint/report. Petitioner was not disciplined for the actions complained about by Mr. Kennedy. Instead, as of February 3, 1995, landfill spotters were prohibited from salvaging at the landfill. (P-13) Petitioner desires that the conclusion be drawn that male spotters who complained in writing about other employees were not disciplined for complaining but that Petitioner, a female, was disciplined for making oral complaints. However, it appears Respondent addressed Mr. Kennedy's written complaint in much the same way as it had addressed Petitioner's oral complaint against Willie George, by giving each participant in the dispute a chance to state his or her position, before management decided who should be disciplined. The difference was that Mr. Kennedy was not a chronic complainer and management's investigation revealed some fault on both sides, so a neutral solution was found rather than discipline being imposed. There is no evidence beyond Petitioner's assertion that she was ever asked to do more work or heavier work than male spotters. From this point on, the dates that events occurred or their chronology is not entirely clear from the record. However, approximately April 14, 1995, there was an occasion when Petitioner was asked to move metal pieces in a wheelbarrow-sized pile over a three-hour period. The largest piece weighed 21 pounds. The next day, Petitioner reported a workers' compensation back injury or aggravation. She was then off work until approximately May 11, 1995, when she returned to "light duty." She worked for awhile for only four hours per day. Respondent hired someone to help her. It is disputed whether Petitioner was reinjured or whether Mr. Hardee just sent her home. However, on or about July 8, 1995, Mr. Hardee discussed the situation with "the workers' compensation people," and it was agreed there was not enough light duty work for Petitioner. Three months later, Petitioner returned to full duty. Because a spotter had been hired to do her work, Petitioner was assigned to a variety of jobs. She worked at the dog pound, the recycling building, and even washed Mr. Hardee's truck.6 One day, Petitioner's immediate supervisor ordered her to cut out the top of a metal drum. At formal hearing, Petitioner asserted that this was heavier work than she should have been required to do on light duty, but there is no evidence the supervisor's order was motivated by gender bias. There also is no evidence a full-time male spotter was never required to do similarly heavy work. Petitioner advised her supervisor that she had hurt her arms and elbows and she went home on sick leave. Petitioner had complained over the term of her employment about not being provided one of Respondent's trucks so that she could conveniently get from her sector of the landfill to a restroom. After her workers' compensation injury, Respondent arranged for male employees to drive Petitioner to the restroom. Eventually, Respondent provided Petitioner with a portable toilet in her work sector. Mr. Hardee maintained that no spotter had ever been assigned a truck but that all spotters, including Petitioner, had access to one. There is evidence to show that male employees drove the trucks and Petitioner did not, but insufficient evidence to show this was an active management decision or that Mr. Hardee acquiesced in male employees preempting trucks as a result of any gender bias. On or about November 13, 1995, Petitioner informed Mr. Hardee that she was permanently physically disabled and would have to be on light duty indefinitely. After consultation with his "workers' compensation people," Mr. Hardee terminated Petitioner as of that date. 7 At formal hearing, Petitioner admitted Respondent was still paying her workers' compensation benefits and that her workers' compensation claim has not been settled.
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 finding no discrimination and dismissing the Petition for Relief. RECOMMENDED this 19th day of November, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1997.
Findings Of Fact On October 23, 1978, Petitioner was hired as secretary to W. J. Crist, president of Hygroponics, Inc. On February 26, 1979, W. J. Crist evaluated Petitioner's overall job performance as "good." With respect to cooperation, the Petitioner was rated in the category of "cooperates very well," the highest rating possible for that category of performance. With respect to job knowledge, she was rated as showing "unusual capacity," also the highest rating possible for that category of performance. On March 5, 1979, Petitioner received an increase in salary from $4.18 per hour to $4.51 per hour, based in part upon her increased responsibilities and in part upon demonstrated merit. Following is Hygroponics, Inc.'s office staff organization chart dated May 2, 1979: HYGROPONICS, INC. OFFICE STAFF ORGANIZATION CHART | President | /| W. J. Crist |\ / | | \ / | \ \ \ | Purch. Agent | | Controller | \ | Technical Service | | Dick Destival | | James Jobe |" \ | Dick Jeffery | | | | | "" \ | | " / | | " "\ | " / | | " \" | " / | | " \ " | " / | | " \ " | " / | | " \ " | " / | | " \ " | " / | | "\ "| | Marsha | | Liz | | Nell | | Arlene | | Carolyn | | Betsy | | | | | | | | | | | | | /|\ Direct lines of authority. Answerable to this person at all times " Indirect lines of authority. Answerable for secondary duties and when direct lines are not available. The above organizational chart does not include the company's chief executive officer. On occasion, members of the company's secretarial staff went directly to the chief executive officer with employment-related problems. In September, 1979, after James Jobe, the controller referenced in the above chart, left the company's employ, W. J. Crist, the company president, advised Petitioner that she was to become office manager. After that time, Petitioner assumed many of the duties of office manager. Petitioner inquired when she would receive a raise commensurate with her increased responsibilities, and was advised that this would be accomplished after the company hired a new controller. Emmett Singleton was hired to fill the position of controller on October 29, 1979. On December 11, 1979, Petitioner formally became acting office manager. On that date Petitioner was evaluated by Emmett Singleton, who rated Petitioner highest in the areas of decision-making and ability to organize, and lowest in the areas of acceptability and responsibility. Specifically, Singleton made the following comments concerning Petitioner's job performance: "Has difficulty in establishing satisfactory relationships with people"; "Average leader, conventional in manner and enthusiasm, conveys ideas but does not motivate group"; "Has problem with admitting an error or fault"; "Reluctant to accept job responsibilities. Supervision and follow-up often required"; "Considers job an eight to five task with scheduled breaks reguardless [sic] of status of workload"; "Employee is preoccupied with the position rather than a concern for getting the job done"; and, "Employee resents being monitored or controlled. Sometimes uncooperative and slow to respond to direction." In addition, members of the company management group, other than Emmett Singleton, commented on this evaluation that Petitioner "alienates co-workers," "Has experienced confusion in the scheduling of grower school," and expressed concern with Petitioner's "attitude." The controller noted on the evaluation form that he planned ". . .to work closely with [Petitioner] for the next 60 days and make an assessment during this time as to whether on [sic] not suited for office manager." Finally, Mr. Singleton noted on Petitioner's performance review form that Petitioner ". . .is classified as Acting Office Manager and is on probation with reguard[sic] to classification. No change in rate of pay is being made at this time. Employee will be reevaluated in 60 days on or about 2/10/80." In order to improve her skills in the area of acceptability and responsibility, Petitioner requested that Mr. Singleton issue a memorandum clarifying the lines of her authority especially since her subordinates had not been advised that she had been given supervisory responsibility over them. Her request was denied at that time because Singleton wanted to first determine whether she could handle the position. On January 12, 1980, Singleton reevaluated Petitioner's job performance. According to Singleton's rating, Petitioner had improved in the areas of acceptability and responsibility, which had been her weak points in the evaluation performed one month earlier. On this same day, Petitioner was reclassified from acting office manager to office manager, and received an increase in pay to $821.60 per month, retroactive to November 1, 1979. Petitioner also assumed the duties of payroll clerk and accounts payable in addition to the duties of office manager. Shortly after receiving this promotion, Petitioner advised employees of Hygroponics, Inc., that she was pregnant. W. J. Crist and Emmett Singleton acknowledged her pregnancy, and the latter inquired concerning her intentions regarding her employment. Petitioner responded that she intended to continue working for the company, and to return to work after the birth of her child. Hygroponics, Inc., had no maternity leave policy. No other female employee had ever given notice of pregnancy and stated her intention to return to work following childbirth. However, at least two other employees had become pregnant during the term of their employment with Hygroponics, Inc. One of these employees, in fact, suffered two miscarriages during her term of employment, and continued working with the company. Another female worker became pregnant, gave birth to a child, and returned to work without ever advising the company or the company ever being aware that she had been pregnant until after she had returned to work. On January 30, 1980, Petitioner submitted a memorandum to Eugene Crist, the company's chief executive officer. The memorandum suggested changes regarding the responsibilities of certain of the office personnel under her supervision. Petitioner had previously discussed these suggested changes with Emmett Singleton, her immediate supervisor, who advised her that he thought her suggestions were a good idea. At the time the memorandum was submitted to the company's chief executive officer, W. J. Crist, the president of the company, was out of the state. On January 30, 1980, Eugene Crist showed the memorandum to Emmett Singleton. The memorandum was then returned to Petitioner by the company's chief executive officer with a notation that the matters contained in the memorandum should be handled through Singleton. Two days later, on February 1, 1980, Singleton asked Petitioner for the memorandum. When Petitioner could not locate the memorandum, and offered to discuss the details of it with Singleton, Singleton advised her that there was no basis for conversation if she could not produce the memorandum. As noted above, Singleton had seen and read the memorandum two days previously when it was shown to him by Eugene Crist. Upon W. J. Crist's return to Florida, Singleton advised him that Petitioner had submitted a memorandum directly to the company's chief executive officer, and that when Singleton asked Petitioner to see the memorandum, she advised him that she had misplaced it. On February 8, 1980, W. J. Crist circulated a memorandum to the Hygroponics, Inc., executive staff concerning Petitioner's ". . .insubordination, poor attitude [and] defiance of executive orders. This memorandum provided, in part, as follows: It is my understanding that Carolyn recently drafted a memorandum on her proposed changes in office duties for many people, changes in accounting procedures, etc. I have been informed that she: "by-passed you, her immediate superior and by-passed me, her next-in-line superior." and delivered this memo directly to Gene, our CEO. Then when Gene informed her to "discuss the memo directly with you," she advised you "she did not even have the memo anymore." I find these actions, on Carolyn's part very distressing and feel we must take disciplinary actions with her. So - what are the problems. Her "uncooperative" and "attitude" problems outlined in your personnel evaluation of her on December 11, 1979 (which she acknowledged) when you put her "on probation," the first time, still persist. She demonstrated anything but teamwork in by-passing her two immediate superiors and going directly to our CEO. This is very bad for an employee to do but even worse for her since she is suppose [sic] to be a leader of our people in her slot as Office Manager. Her disregarding Gene's directive to discuss the memo with you was corrected only by your insistance[sic] that the two of you discuss it. Her statement to you that "she no longer had the memo" is also distressing. Has she destroyed it? This additional negative certainly weakens her argument that "she went directly to Gene because he was going out.[sic] (Original emphasis.) The above-referenced memorandum solicited the views of the company's executive staff as to whether to terminate Petitioner, discipline her in some fashion, or give her an opportunity to resign. The decision was unanimous among all five members of the executive staff to terminate Petitioner. No member of the executive staff questioned Petitioner before concurring in the decision to discharge her. Such a memorandum of concurrence was not the company's standard practice in discharging employees, which generally was for the discharge decision to be made by the employee's supervisor alone. Hygroponics, Inc., was, at all times material to this proceeding, a rather small organization, numbering at the most approximately fifty employees. As a result, many of the internal functions of the company were informal in nature. For example, there were no strict lines of authority for secretarial staff to air grievances or make suggestions. There was, however, a generalized procedure for employees to approach their immediate supervisor with any employment-related problems. There is no direct substantive evidence in the record in this cause from which it can be concluded that Petitioner was terminated from her employment because she was either female or pregnant. Further, whatever circumstantial evidence there is in this record to support such a contention is overcome by Respondent's demonstration that Petitioner was at best an employee of average ability who management viewed at times to be a problem employee. It appears, therefore, that the reason for Petitioner's discharge was an accumulation of events, culminating in her memorandum of January 30, 1980, being submitted to the company chief executive officer, and not for any reason relating to her sex.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Commission on Human Relations, dismissing the Petition for Relief, and denying the relief requested therein, with prejudice. DONE AND ENTERED this 2nd day of March, 1983, at Tallahassee, Florida. WILLIAM E. WILLIAMS 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 2nd day of March, 1983. COPIES FURNISHED: James H. White, Jr., Esquire 229 McKenzie Avenue Panama City, Florida 32401 John F. Daniel, Esquire Post Office Box 2522 Panama City, Florida 32401 Dana Baird, Esquire Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301 Richard E. Williams Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301
