The Issue The issue in this case is whether Respondent engaged in an unlawfully discriminatory employment practice against Petitioner on the basis of race and religion, and retaliated against him, in violation of the Florida Civil Rights Act of 1992 ("FCRA").
Findings Of Fact The Parties Petitioner, Lawrence N. Brown, III, is an African- American male and is of the Christian faith. Petitioner has been employed with Respondent since April 14, 2014, at its store located at 3800 Oakwood Boulevard, Hollywood, Florida (hereafter, the "Store"). As of the final hearing, Petitioner continued to be employed by Respondent at the Store. Respondent is a corporation doing business in Florida. Respondent owns and operates the Store at which Respondent was employed at the time of the alleged discriminatory and retaliatory actions. Employment Charge of Discrimination and Petition for Relief Petitioner filed an Employment Charge of Discrimination ("Discrimination Charge") with FCHR on or about March 10, 2016.4/ The pages attached to the Discrimination Charge form (which apparently was filled out in typewritten form by FCHR staff) were prepared by Petitioner. On or about July 18, 2016, Respondent issued a Determination: No Reasonable Cause, determining that Petitioner had not shown reasonable cause to believe that Respondent had committed unlawful employment practices against him. On or about August 16, 2016, Petitioner timely filed a Petition for Relief requesting a hearing to determine whether Respondent committed unlawful employment practices against him. The Petition for Relief alleges that Respondent engaged in unlawful discrimination against him on the basis of both his race and religion, and also alleges that Respondent engaged in unlawful retaliation. These charges, as specifically set forth in the Petition for Relief, are the subject of this de novo proceeding.5/ In the Petition for Relief, Petitioner claims that Respondent discriminated against him on the basis of race by failing to promote him into supervisory or managerial positions for which he claims he was qualified; by giving him lower scores on his employment evaluations than were given to a white employee working in the same position (part-time hardlines merchandiser); by not paying him as much as they paid that same white employee; and by retaining that same white employee as a part-time hardlines merchandiser in the Toy Department, while moving Petitioner to another position as cashier. Petitioner also claims that Respondent discriminated against him on the basis of his religion by scheduling him to work on Christmas Day 2015, while giving other employees that day off. Additionally, Petitioner claims that Respondent retaliated against him for complaining to Respondent's corporate legal department about having to work on Christmas Day 2015, by removing him as a hardline merchandiser in the Toy Department and reassigning him to a cashier position, then subsequently effectively "terminating" (in his words) his employment. Petitioner seeks an award of $5,000,000 in damages in this proceeding. Background Events As noted above, Petitioner was hired by Respondent on or about April 14, 2014. Petitioner initially was hired in a part-time position as a part-time overnight hardlines replenishment associate. In this position, Petitioner's work scheduling availability was between 10:30 p.m. and 6:00 a.m. When Petitioner was hired, Alberto Rodriquez was the Store manager. In his position as a part-time employee with Respondent, Petitioner was not guaranteed any specific number of weeks or hours of employment in any given calendar year, nor was he guaranteed that he would attain full-time employee status. The number of work hours Petitioner was assigned was dependent on the company's business needs and on Petitioner's ability to meet the applicable job performance standards. Petitioner acknowledged these and the other conditions of his employment as evidenced by his signature on the Pre-training Acknowledgment Summary dated April 14, 2014. As a result of the elimination of the overnight replenishment associate position, on or about October 26, 2014, Petitioner was transferred to another position as a part-time daytime hardlines merchandiser. In this position, his work scheduling availability was between 6:00 a.m. and 1:00 p.m. As a hardlines merchandiser, Petitioner was responsible for stocking store shelves with merchandise, straightening merchandise on store shelves, putting returned merchandise on shelves, and generally keeping the hardlines departments neat and the shelves fully stocked. The Toy Department at the Store was one of several departments that were categorized as "hardlines" departments. In his duties as a hardlines merchandiser, Petitioner was not assigned to any specific hardlines department, and his responsibilities entailed working in any hardlines department as needed. However, as a practical matter, due to the work demand, Petitioner worked mostly, if not exclusively, in the Toy Department until he was reassigned to the cashier position after Christmas 2015. David Leach became the Store manager in April 2015. At some point before Christmas Day 2015, the work schedule for the week of December 20 through 26, 2015, was posted. Petitioner was scheduled to work on Christmas Day, December 25, 2015. Petitioner did not volunteer, and had not otherwise requested, to work on Christmas Day 2015. The Store was closed on Christmas Day 2015, which was a paid holiday for Respondent's employees. On or about December 23, 2015, Petitioner contacted Respondent's corporate legal department, requesting to be removed from the work schedule for Christmas Day 2015. Pursuant to a directive from Respondent's corporate office, Petitioner was removed from the work schedule for that day. Petitioner was not required to work on Christmas Day 2015, and he did not work that day. Petitioner was paid for the Christmas Day holiday. Although the Store was closed on Christmas Day 2015, some Store employees were scheduled to work, and did work, that day on a volunteer basis, for which they were paid. On December 28, 2015, Leach presented Petitioner with a Request for Religious Accommodation form to sign. Petitioner signed the form. The form was marked as showing that Respondent "granted" the religious accommodation. Also on December 28, 2015, Leach informed Petitioner that he had eliminated the part-time daytime hardlines merchandiser position. He offered Petitioner other part-time positions, either as a cashier or in making pizza at the Little Caesar's pizza station in the Store. Leach did not offer any other positions to Petitioner at that time. Petitioner was reassigned to the cashier position, but informed Leach that he was unable to stand in a single place for long periods of time due to injuries he previously had sustained while working on the overnight shift. Petitioner was reassigned to the cashier position, effective January 3, 2016.6/ Petitioner's hourly wage did not change when his position changed to cashier. He continued to make the same hourly wage that he had made as a daytime hardlines merchandiser. At some point on or after December 28, 2015, Petitioner signed a Personnel Interview Record form that reflected his revised work hours associated with his position change to cashier. The form stated his availability to work between 8:00 a.m. and 5:00 p.m., Monday through Saturday. The evidence is unclear as to whether Petitioner did (or did not) call in to inform the appropriate Store personnel that he would not be working on Tuesday, December 29, or on Thursday, December 31, 2015. Regardless, the persuasive evidence shows that Petitioner worked on Monday, December 28, 2015; did not work on Tuesday, December 29, or Thursday, December 31, 2015; and worked on Saturday, January 2, 2016. The work schedule for the week of January 3 through 10, 2016, was computer-generated some time during the week of December 27, 2015, through January 3, 2016. If an employee does not report to work when scheduled and does not call in to be excused from work on those days, this situation is termed a "no call-no show," and the employee will not be scheduled to work the following week. This is to ensure that there are cashiers available as needed to work on upcoming dates. Regardless of whether Petitioner did or did not call in to inform Respondent he would not be working on Tuesday, December 29, or Thursday, December 31, 2015, the posted work schedule for the week of January 3 through 10, 2016, showed Petitioner as not being scheduled to work that week. However, the evidence shows that Petitioner did, in fact, work a total of 15.90 hours the week of January 3 through 10, 2016. The work schedule posted as of Saturday, January 9, 2016, also showed Petitioner as not being scheduled to work the week of January 10 through 16, 2016. However, the evidence shows that Petitioner worked a total of 15.41 hours the week of January 10 through 16, 2016. At some point between January 13 and January 26, 2016, Petitioner was moved from the cashier position to the Store's date code specialist position. The date code specialist position also is a part-time position, for which Petitioner is paid the same hourly wage as he was paid as a daytime hardlines merchandiser. As of the final hearing, Petitioner continued to be employed by Respondent, working as the Store's date code specialist. Race Discrimination Claims As previously noted, Petitioner began working for Respondent at the Store on April 14, 2014. His initial employment position was as a part-time overnight replenishment associate. In October 2014, he moved to a part-time daytime hardlines merchandiser position. In both positions, he was responsible for stocking and restocking merchandise in all hardlines departments, so was not assigned exclusively to the Store's Toy Department. However, as noted above, due to work demand in the Toy Department, Petitioner did most, if not all, of his work in that department until he was moved to the cashier position in late December 2015.7/ Petitioner contends that starting in mid-2014,8/ he periodically requested to be promoted to "Toy Lead" or to another supervisory or managerial position. He testified that he had undertaken many activities and implemented various systems to improve the efficiency and productivity of the Toy Department and other departments at the store, and had documented these activities and transmitted that information to the Respondent for inclusion in his personnel file. He testified that rather than promoting him to a supervisory position in the Toy Department, Respondent instead hired a non-African-American person to fill that position.9/ Petitioner additionally testified that he periodically would request to be transferred or promoted to other supervisory positions, but that Respondent did not grant these requests. He contends that since he was qualified for these positions, the only basis for Respondent's decision to fill those positions with other employees was discrimination against him on the basis of his race. In response, Leach testified that there was no formal "Toy Lead" position at the Store; rather, the person supervising the Toy Department is an assistant store manager, a position that entails supervising other hardlines departments besides the Toy Department. Further, Leach testified that in his view, Petitioner was not qualified to occupy certain supervisory positions because of his lack of experience in those areas and his relatively short period of employment with Respondent. Leach also testified that Petitioner had not ever formally applied for a promotion through Respondent's online application process. Petitioner further asserts that Respondent discriminated against him on the basis of race because he was not paid the same amount as Corey Harper, a white male hardlines merchandiser who also often worked part-time in the Toy Department on the afternoon or evening shift, even though he worked harder and received higher evaluation scores than did Harper.10/ However, Leach credibly testified that Respondent does not currently base its pay rate for part-time employees on job performance evaluation scores, but instead pays them a set hourly pay rate. According to Leach, Respondent has not given an hourly pay rate raise to part-time employees since 2009, so that any pay differential depended on whether employees were hired before or after 2009. Leach credibly testified that Harper has been employed by Respondent since 2004, so had received hourly pay rate raises between 2004 to November 2008; this would result in his hourly pay rate being higher than Petitioner's, even though both are part-time employees. Petitioner testified that when he was moved from the daytime hardlines merchandiser position to the cashier position after Christmas 2015, he made it clear that he wanted to remain in the Toy Department; however, Respondent transferred him out of that department while allowing Harper to remain in a hardlines merchandiser position, which entailed work in the Toy Department. Petitioner also made clear that he wished to return to the hardlines merchandiser position in the Toy Department when such a position became available; however, at some point, Leach reassigned Carol Yaw, who was white, from her previous office manager job to a hardlines merchandiser position. Petitioner asserts that Respondent's actions in allowing Harper to remain as a part-time hardline merchandiser and reassigning Yaw to a hardlines merchandiser position constituted discrimination against him on the basis of his race. However, Leach credibly testified that the part-time daytime hardlines merchandiser position that Petitioner had occupied was eliminated because of the lack of work in that position, primarily due to declining Toy Department sales after the holiday season. Additionally, immediately after Christmas 2015, Leach consolidated the overnight merchandise unloading and daytime shelf stocking positions and moved the overnight unloading employees to the day shift, where their duties consist of unloading merchandise from trucks and stocking shelves.11/ Leach credibly testified that Harper was not moved from his position because Leach had specifically decided not to move others unaffected by this reorganization out of their existing positions, and that Harper was an afternoon/evening hardlines merchandiser. Leach also credibly testified that he had moved Yaw to a full-time hardlines merchandiser position after her office manager position was eliminated because she was a 25-year employee of Respondent, and he felt that she deserved that position out of loyalty for being a long-term employee of Respondent. Petitioner also contends that Respondent's evaluation of his job performance was unfair because it was conducted by an assistant store manager, Marjorie McCue, who was not his direct supervisor. Specifically, he contends that McCue was unfamiliar with his job performance, so did not appropriately consider, in his evaluation, improved Toy Department sales performance and efficiency that were due to measures that he had implemented. Petitioner also contends that McCue initially deliberately gave him an inaccurately low job performance evaluation in an effort to create a record to support terminating his employment, but that when he complained, those lower scores were changed to higher scores. The only performance evaluation regarding Petitioner's job performance that was admitted into evidence is a document titled "Employee Review" that was dated January 31, 2015; Petitioner received a 3.10 overall performance score on this performance evaluation.12/ The Employee Review for Harper dated January 31, 2015, also was admitted into evidence; Harper's overall performance score was 3.00. Upon careful consideration of the competent substantial evidence in the record, it is determined that Petitioner failed to carry his burden13/ to establish a prima facie case of employment discrimination by Respondent on the basis of his race. To do so, Petitioner must show that: (1) he is a member of a protected class; (2) he was subject to adverse employment action; (3) he was qualified to do the job; and (4) his employer treated similarly-situated employees outside of his protected class more favorably than he was treated.14/ It is undisputed that Petitioner, as an African- American, is a member of a protected class. However, the evidence does not support a finding that Petitioner was subject to adverse employment action. With respect to his assertion that Respondent failed to promote him on the basis of his race, Petitioner needed to show that, in addition to being a member of a protected class, he applied for and was qualified for a promotion; that he was rejected despite his qualifications; and that other equally or less-qualified employees outside of his class were promoted.15/ While Petitioner frequently sent email correspondence to Respondent's corporate legal office requesting to be promoted, the evidence does not show that he followed Respondent's formal online application process for applying for promotions.16/ Further, although the evidence indicates that Petitioner is very hard-working, energetic, bright, and detail-oriented, he did not demonstrate that those characteristics necessarily qualified him for the supervisory positions about which he inquired. He also did not demonstrate that Respondent filled the positions about which he had inquired with less-qualified non-African-American employees. In fact, Petitioner acknowledged, in testimony at the final hearing and in email correspondence with Respondent's corporate legal office, that in his view, some of the individuals who had been promoted were qualified for the positions to which they had been promoted. For these reasons, it is determined that Petitioner did not demonstrate adverse employment action by Respondent by failing to promote him on the basis of his race. Petitioner also did not show that he received a lower pay rate and lower evaluation scores than did other similarly- situated employees who were not members of his protected class. The only comparator to which Petitioner referred was Harper, the other part-time hardlines merchandiser that sometimes worked in the Toy Department. However, as discussed above, the evidence showed that Harper actually scored lower than did Petitioner on the January 31, 2015, evaluation.17/ Further, Harper was not similarly situated to Petitioner with respect to pay rate because Harper is a longer-term employee who had received hourly pay rate raises in 2005 through 2008, before Respondent ceased giving raises of hourly pay rates in 2009, but Petitioner was hired in 2014, after Respondent ceased giving hourly pay raises. Petitioner also did not show, by the greater weight of the evidence, that Leach discriminated against him on the basis of his race by electing to reassign him, rather than Harper, to a cashier position after Christmas 2015, and by later reassigning Yaw to fill a full-time hardlines merchandiser position that included responsibilities of working in the Toy Department. As discussed above, when Leach decided to eliminate the part-time daytime hardlines merchandiser position, he chose not to reassign other employees who were not directly affected by the elimination of that position. The evidence shows that Leach did not reassign Harper to a cashier position because Harper's position was not directly affected by the elimination of the daytime hardlines merchandiser position——not because Leach favored Harper over Petitioner due to race. Also as discussed above, Leach reassigned Yaw to a full-time hardlines merchandiser position after her office manager position——also a full-time position——was eliminated. Because Yaw was a full-time employee, she did not fill a position for which Petitioner was eligible as a part-time employee; furthermore, under any circumstances, she was not similarly situated to Petitioner because of her longer term of employment with Respondent. For these reasons, neither Harper nor Yaw are similarly situated to Petitioner for purposes of being comparators. For these reasons, it is found that Petitioner did not establish a prima facie case of employment discrimination against him by Respondent on the basis of his race. Further, even if Petitioner had established a prima facie case of employment discrimination on the basis of race, Respondent articulated legitimate, non-discriminatory reasons for its actions with respect to Petitioner. As discussed above, Respondent did not promote Petitioner because he did not go through Respondent's formal application process for seeking promotions, and also because Leach determined, on the basis of Petitioner's lack of experience and employment longevity, that Petitioner was not qualified for supervisory positions at that time. Additionally, Leach's decisions regarding reassigning Petitioner to a cashier position while retaining Harper and reassigning Yaw to hardlines merchandiser positions were management decisions based on business needs and requirements, rather than on the basis of race. Petitioner did not present evidence showing that these reasons were a pretext for discrimination against him on the basis of his race. Based on the foregoing, it is determined that Respondent did not discriminate against Petitioner on the basis of his race, in violation of section 760.10(1)(a). Religious Discrimination Claim As previously discussed, shortly before Christmas Day 2015, the employee work schedule for the week of December 20 through 26, 2015, was posted in the Store. This schedule showed Petitioner as being scheduled to work from 6:00 a.m. to 3:00 p.m. on Christmas Day, which fell on a Friday in 2015. The Store was closed on Christmas Day 2015, which was a paid employee holiday; however, employees could work that day on a voluntary basis and they would be paid time-and-a-half for doing so. As noted above, Petitioner did not volunteer or otherwise indicate that he was willing to work that day. Upon seeing that he was scheduled to work on Christmas Day, Petitioner contacted Respondent's corporate legal department, which then contacted Leach. Leach had Petitioner removed from the work schedule for December 25, 2015. Petitioner was not required to work that day, did not work that day, and was paid for the Christmas Day 2015 holiday. Petitioner claims that by scheduling him to work on Christmas Day, Respondent discriminated against him on the basis of his religion. Petitioner asserts, as evidence of Respondent's discriminatory intent, that there are others who worked in the Toy Department who were not of the Christian faith, so that if someone was needed to work on Christmas Day, one of those individuals could instead have been scheduled. As previously noted, on December 28, 2015, Leach presented Petitioner with a Request for Religious Accommodation form to sign. Leach credibly testified that the purpose of having Petitioner sign the form was to have a written record of Petitioner's religion so that Petitioner would not again be assigned to work on a Christian religious holiday. Petitioner signed the form, but protested being required to do so, because, in his view, Respondent already was on notice that he is of the Christian faith because he always had Sundays off of work. Petitioner testified that when he was hired in April 2014 (notably, before Leach became Store manager) he had verbally requested Sundays off, effectively placing Respondent on notice that he is of the Christian faith. On this basis, Petitioner asserts that Leach and other managers and supervisors at the Store knew that he is Christian and that they nonetheless intentionally scheduled him to work on Christmas Day. Petitioner acknowledged that he never heard Leach make any comments with respect to his (Petitioner's) religion. Leach credibly testified that before he was contacted by Respondent's corporate office regarding Petitioner's concerns about being scheduled to work on Christmas Day 2015, he did not know that Petitioner was Christian, and he had not inferred that from the fact that Petitioner did not work on Sundays.18/ Leach testified, credibly and persuasively, that Petitioner was scheduled to work on Christmas Day 2015 by mistake. He explained that the work schedule for the week of December 20 through 26, 2015, was generated using a pre-populated "template" method. This method, which is a method by which the Store sets its weekly work schedules, entails week-to-week copying of the regular——i.e., "template"——work schedule for all Store employees, then modifies that schedule as needed to address changes to individual employee work schedules. Leach explained that in using this method to establish the work schedule for the week of December 20 through 26, 2015, Respondent had inadvertently scheduled employees who had not volunteered to work on Christmas Day. He surmised that this was a possible explanation for why Petitioner mistakenly was scheduled to work that day. As noted above, Petitioner was not the only Store employee scheduled to work on Christmas Day 2015. Upon consideration of the competent substantial evidence in the record, it is determined that Petitioner failed to carry his burden to establish a prima facie case of employment discrimination by Respondent on the basis of his religion. To do so, Petitioner must show that he: (1) was a member of a protected class; (2) informed Respondent of this belief; and (3) suffered adverse employment action as a result of failing to comply with the employment requirement that conflicted with his belief. It is undisputed that Petitioner falls within a protected class for purposes of a discrimination claim on the basis of religion. However, Petitioner did not prove the existence of the other two elements necessary to establish a prima facie case of employment discrimination on the basis of religion. Specifically, Petitioner did not prove that Respondent knew that he was Christian or that his Christian faith prohibited him from working on Christmas Day. As noted above, Petitioner was hired at the Store before Leach became Store manager. Further, because Petitioner had not been required to complete a written religious accommodation form when he was hired in April 2014, Respondent did not have any written notice in its possession that would have informed Leach that Petitioner was Christian or that Petitioner needed certain Christian holidays, such as Christmas Day, off of work. As noted above, Leach credibly testified that he did not know that Petitioner was Christian until Respondent's corporate legal office contacted him regarding Petitioner's religion-based complaint about being scheduled to work on Christmas Day 2015. The evidence also shows that Petitioner did not suffer any adverse employment action. As soon as Respondent was informed of Petitioner's complaint, Petitioner was removed from the work schedule for Christmas Day 2015, did not work that day, and was paid for that holiday. For these reasons, it is determined that Petitioner did not establish, by the greater weight of the evidence, a prima facie case of discrimination by Respondent against him on the basis of his religion. However, even if Petitioner had established a prima facie case of discrimination on the basis of religion, Respondent produced credible, persuasive evidence showing a legitimate, non- discriminatory basis for its action——that is, that through the Store's use of the template work scheduling system, Petitioner was mistakenly scheduled to work on Christmas Day 2015. As noted above, as soon as Petitioner complained to Respondent, Respondent immediately accommodated his request by removing him from the Christmas Day 2015 work schedule. Petitioner did not present any evidence showing that Respondent's proffered reason for scheduling him to work on Christmas Day 2015 was a pretext for discrimination on the basis of his religion. For these reasons, it is determined that Petitioner did not show, by a preponderance of the evidence, that Respondent discriminated against him on the basis of his religion, in violation of section 760.10(1)(a). Retaliation Claim Petitioner claims that Respondent retaliated against him for complaining to Respondent's corporate legal office about being scheduled to work on Christmas Day 2015 by reassigning him from his position as a daytime hardlines merchandiser——a position that he clearly liked and at which he believed he excelled——to a cashier position——a position that he clearly considered demeaning and that also was physically difficult for him to perform due to a previous injury. Petitioner was informed that he was being reassigned to a cashier position only five days (and the first workday) after he complained to Respondent's corporate legal office about being scheduled to work on Christmas Day.19/ Petitioner testified that Leach told him that the part- time daytime merchandiser position had been eliminated due to the lack of work demand, particularly in the Toy Department, after the Christmas season was over. Petitioner testified that when he asked Leach about available positions in to which he could transfer, Leach told him that only cashier or pizza-making positions were available. Petitioner provided evidence that a softlines customer service job, which he claims he would have preferred, was open at the time he was reassigned and that Leach did not inform him of that opening or offer him that position. Petitioner also disputes that the part-time daytime merchandiser job that he had occupied had been eliminated. As evidence, he contends that Harper continued to occupy that position, and also that Leach subsequently reassigned Yaw to a full-time hardlines merchandiser rather than transferring him back into a hardlines merchandiser position, as he had requested. The part-time cashier position to which Petitioner was transferred was the same level of employment position in Respondent's employment hierarchy as was the part-time daytime merchandiser position that he previously held. Additionally, as discussed above, as a part-time cashier, Petitioner continued to receive the same hourly pay rate and work scheduling availability as he had received when he was employed as a part-time daytime hardlines merchandiser. As discussed above, on or before January 26, 2016, Petitioner was reassigned to the Store's date code specialist position. According to Leach, that position came open after Petitioner was reassigned to the cashier position, and Leach believed that the date code specialist position would play well to Petitioner's strengths of being methodical and detail- oriented. Petitioner bears the burden, by the greater weight of the evidence, to establish a prima facie case of retaliation by Respondent. To establish a prima facie case of retaliation, Petitioner must show that: (1) he engaged in a protected activity; (2) he suffered a materially adverse employment action; and (3) there was a causal connection between the protected activity and the adverse action.20/ For the following reasons, it is found that Petitioner did not satisfy his burden to establish a prima facie case of retaliation. It is determined that Petitioner engaged in a "protected activity" when he complained to Respondent's corporate legal office, by email dated December 23, 2015, that he had been scheduled to work on Christmas Day 2015. The email stated: Attn: Legal My schedule states that I am scheduled for Christmas day. I am a Christian I exercise religious right no work on a high religious day. Christmas is the day I celebrate the birth of Christ thus the name Christmas day. A Jewish person was assigned to my department (toys) and was allowed to have off all the Jewish holidays. I was told that is his right and approved, I said fine, I don't know who was arguing this but this was fine with me, because I have many Jewish friends, so I understand. Easter which falls on a Sunday and Christmas are my holidays. I am requesting off. I am requesting Christmas day off with holiday pay as my religious day, just like I requested Sundays off. Only I can change my religious day and work on Sunday, which I might have to when promoted. If management tells me I cannot be promoted because I exercise my religious right not to work on the seventh day, then I will have to do as Jewish people have done for centuries, they are released from the commandment that they may only eat Kosher. If captured by the enemy they may eat to survive. So if I can only be manager if I give up my religious right not to work on Sunday, then I will do what management says is a requirement. Thank you. Lawrence Brown Kmart-Hollywood, Fl Oakwood Plaza To be a "protected activity," the activity giving rise to the alleged retaliatory action must, at the very least, communicate to the employer that the complainant believes the employer is engaging in discrimination against him. Petitioner's email can be read broadly to inform Respondent that he believed he was being discriminated against on the basis of his religion by being scheduled to work on Christmas Day 2015. To that point, Petitioner specifically compared his circumstances to those of a Jewish employee who had requested and been allowed to have all Jewish holidays off of work. While not specifically using the word "discrimination," Petitioner's email can be reasonably read to place Respondent on notice that Petitioner believed he was being treated differently than a similarly-situated employee who was not a member of Petitioner's protected class and who had been excused from work on the holidays observed by his religion. Additionally, Leach was aware that Petitioner had complained to Respondent's corporate legal department about being scheduled to work on a Christian holiday. Accordingly, it is determined that Petitioner has established the "protected activity" element of his retaliation claim. However, Petitioner did not show that he suffered a materially adverse employment action as a result of having engaged in protected activity. His reassignment to the part-time cashier position effectively was a lateral transfer that did not affect his hourly pay rate or hours of work scheduling availability. Although Petitioner subjectively considered the cashier position to be demeaning and below his skill level21/ and although his job responsibilities changed, the evidence shows that Petitioner was not reassigned to an objectively less prestigious or otherwise inferior employment position. Furthermore, in any event, approximately three weeks after Petitioner was reassigned to the cashier position, Respondent reassigned him to a position as the Store's date code specialist——a position that he has officially held since January 26, 2016, and from which he has not requested to be transferred. In this position, Petitioner earns the same hourly wage and has the same number of hours of work availability as he did in the hardlines merchandiser and cashier positions. He is solely responsible in the Store for ensuring that date-coded merchandise on the shelves has not exceeded its expiration date—— a position that entails significant responsibility and, as Leach put it, is "very important." The evidence also does not support Petitioner's assertion that his removal from the work schedule in early January meant that he was effectively terminated. Although the evidence does not clearly show what days Petitioner did not work during the week after Christmas in 2015, or whether he did (or did not) call in to notify Respondent that he would be absent, the evidence does clearly establish that Petitioner was not scheduled to work the first week of January 2016, and it is also clear that management personnel at the Store did not believe that he had called in to notify them of his absence. Leach explained that if an employee does not report to work when scheduled and does not call in to notify the Store of his or her absence, the employee will not be scheduled to work the following week; this is to ensure that there are enough cashiers available as needed to work in the upcoming week. In any event, when Petitioner noticed that he had not been scheduled to work, he contacted the Store's human relations manager, who told him to come back to work. In fact, Petitioner worked the first and second weeks of January 2016, and thereafter, and he continues to be employed at the Store. Further, Petitioner was never told or otherwise notified, formally or informally, that his employment with Respondent had been terminated. For these reasons, it is determined that Petitioner did not suffer a materially adverse employment action by being reassigned for a short period of time from a part-time daytime hardlines merchandiser to a part-time cashier position. Petitioner also did not demonstrate the existence of a "causal link" between a protected activity and adverse employment action. As discussed above, Petitioner's sending an email to Respondent's corporate legal office about being scheduled to work on Christmas Day 2015 constituted a "protected activity." However, as discussed above, it is determined that Respondent did not engage in an adverse employment action; thus, Petitioner's engagement in protected activity did not "cause" Respondent to take any material adverse employment action against him. Furthermore, in any event, Respondent articulated a legitimate, non-discriminatory reason for reassigning Petitioner to a cashier position shortly after Christmas Day 2015—— specifically, that the part-time daytime merchandiser position that Petitioner had held was eliminated due to seasonal workload decline and other business management decisions reallocating hardlines merchandise-related tasks between the overnight and daytime shifts. For these reasons, it is determined that Petitioner did not prove, by the greater weight of the evidence, that Respondent retaliated against him for engaging in a protected activity, in violation of section 760.10(7). Damages Petitioner has requested an award of damages in the amount of $5,000,000. However, section 760.11(6), which governs the award of remedies in administrative proceedings brought under the FCRA, does not authorize DOAH to award damages. Further, the evidence establishes that Respondent did not engage in any unlawful employment practices with respect to Petitioner, and, in any event, Petitioner did not present any evidence to support his entitlement to an award of damages in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of June, 2017, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 14th day of June, 2017.
The Issue This cause concerns a Charge of Discrimination and Petition for Relief filed by the above-named Petitioner, concerning which it must be determined whether she was discriminated against by being terminated from her employment for alleged reasons of gender discrimination (female) and age discrimination (age 59).
Findings Of Fact It was thus established that the Petitioner was working at the Lucent Technologies, Inc., job site (Lucent) as a security guard when she was terminated on June 1, 2001. She had previously been offered an opportunity to cross-train on other security posts, working in her job as a security guard so that if one post closed down, she would be already trained in performing the required duties at other security posts. She refused such cross-training, however. On or about June 1, 2001, Lucent, the client of the Respondent company, Ideal Services, Inc., notified the Respondent that it would have to close down the security guard post where the Petitioner worked. Because the Petitioner had not been cross-trained and there were no other security guard posts or positions where she could work, due either to her failure to become cross-trained or to be qualified with a weapon-carrying license or due simply to a lack of available positions, the Respondent was forced to terminate her. The Respondent offered the Petitioner other positions at comparable, although not necessarily exactly the same pay rates; some of them being at higher pay rates and one or more being lower. The Petitioner refused these job offers, however, telling the Respondent that she was going to truck-driving school to train to become a truck driver. The Respondent also offered to help the Petitioner out with on-call jobs, or "fill- in" work, which she also refused at the time. In fact, the Respondent offered the Petitioner still another full-time position at another job site at comparable pay to the pay she had earned before she was laid off, when her post closed down. She refused that job, as well. The Respondent had other women as employees in comparable positions to that occupied by the Petitioner. The Respondent's Exhibits numbered one through four, in evidence, show the Respondent's employee profiles by sex and age for the Orlando area and for the whole company at all of its operational locations. Exhibit numbered three shows the pay rates for all employees, as well as the contracted clients of the Respondent company, by way of coroborative proof of the competitive jobs offered to the Petitioner after she was laid off and which she refused. In summary, the evidence shows that the Respondent had a legitimate business reason to terminate the Petitioner from her employment. She had been advised to cross-train so that she would be qualified and competent to serve at different posts or positions of responsibility with the company. Her supervisor, Mr. Ray Bradley, had advised her to do this because he knew that Lucent was reducing operating costs and might close one or more security guard posts or positions. The Petitioner refused to so cross-train. Therefore, Mr. Bradley later did not have an opening for her when her post closed down, because he had to use other employees who had already cross-trained for varied positions or posts. Nonetheless, although it had its legitimate reason for not retaining the Petitioner in its employ, the Respondent continued to attempt to assist the Petitioner by offering her other comparable competitive positions with other security service clients, when they became available, which she refused.
Recommendation Accordingly, in consideration of the foregoing findings and conclusions, and being advised in the premises, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 12th day of June, 2003, 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 12th day of June, 2003. COPIES FURNISHED: Diane M. Cox Ideal Services, Inc. 211 North Ridgewood Avenue Suite 203 Daytona Beach, Florida 32114 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Janet Rousch 2212 Point of Rocks Road Chesterfield, Virginia 23836 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent terminated Petitioner's employment in violation of the Florida Civil Rights Act of 1992 (Florida Civil Rights Act or the Act).
Findings Of Fact Petitioner was employed by Respondent at various times beginning in February 1999 and ending in her termination effective September 30, 2004. Respondent is an employer within the meaning of the Florida Civil Rights Act. At all relevant times, Respondent is in the hotel business. Respondent provides related services and amenities to its guests and to the general public, including a restaurant and bar on the hotel premises. Petitioner commenced her employment with Respondent as a waitress and was eventually promoted to bartender. At all relevant times, she worked under the supervision of Kurt Pfister (Pfister). At no time prior to the commencement of her employment, nor at any time during her employment, did Petitioner advise Respondent that she was disabled in any way, or that she required any type of accommodation(s) for any medical condition or disability in order to perform her job. Likewise, Petitioner never advised Respondent that she had ever been diagnosed, treated, or hospitalized for any medical condition or disability. In fact, as Petitioner herself admits, she first claimed to be disabled approximately two weeks after she was terminated. Petitioner, as well as all of Respondent's employees, were trained in and required at all times to follow all of Respondent's policies and procedures generally applicable in its workplace. Additionally, every employee was trained in and expected to comply at all times with all policies and procedures applicable to his or her particular job. Violation of any of Respondent's policies or procedures subjected an employee to disciplinary action ranging from counseling to termination. As a bartender, Petitioner was trained and responsible for taking food and beverage orders; to present patrons with their bill(s); and to collect an approved form of payment, including cash. With regard to cash, Petitioner was trained in Respondent's policies and procedures known as "cash control policies." Cash control policies included a specific process for reconciliation of cash and tips at the end of each shift and a process for making cash drops and filling out deposit logs. Petitioner and all similarly situated employees were required to comply with cash control policies and were subject to disciplinary action up to and including termination if they failed to do so. Petitioner was qualified for her bartending position, and from the beginning of her employment through September 16, 2004, Respondent was well satisfied with Petitioner's work. Petitioner was often called upon to train new bartenders with regard to Respondent's policies, including cash control policies. She did so very well. For her efforts, Petitioner achieved the status of Respondent's most senior bartender, and as a reward was given the best shifts. Respondent enforced a policy against smoking on its grounds, except that smoking was permitted in a small, outside area at the south end of the premises. Petitioner was well familiar with the smoking policy and to Respondent's knowledge, complied with it until September 16, 2004. On that date, Petitioner was discovered smoking in a liquor storage room located inside the hotel building. She was given a written reprimand. Apart from the smoking infraction, Petitioner's September 16, 2004, shift was uneventful. She gave no indication to her customers or supervisors that she was in distress or could not perform her duties on account of disability or any other reason, nor that she required any type of accommodation(s) to perform her job. Yet, on that night, Petitioner failed to follow cash control policies at the end of her shift. Of most concern to Respondent was that Petitioner left work with her cash sales short for the evening in the amount of $97.64. On September 17, 2006, Pfister learned of the policy violations and the attendant cash shortage; he thereupon contacted Petitioner by telephone. Petitioner again did not indicate to Respondent that she could not perform her duties on account of disability or any other reason, nor that she required any type of accommodation(s) to perform her job and to comply with cash control policies. Petitioner conversed normally with Pfister and acknowledged that she had the $97.64 belonging to Respondent. Although she was not scheduled to work again until September 21st, she agreed to meet with Pfister and to return the money on September 19, 2004. Petitioner did not show up for the meeting. Neither did she return the money, or contact Pfister to advise when, or if, she would return the money. Respondent was entitled, at that point, to treat the matter as a theft; to terminate Petitioner's employment; and to seek law enforcement's assistance in recovering its money. Instead, Respondent exercised forbearance and gave Petitioner an indefinite suspension to afford her additional time to return the money and to explain to Pfister her reason(s) for failing to follow cash control policies on September 16, 2004. Respondent enforced a policy it called the no-call, no-show rule. Under the rule, employees are required to provide Respondent with four hours’ notice if for any reason they are unable to report on time for a scheduled shift. Absent extraordinary circumstances, which do not exist here, failure to provide the required notice is ground for disciplinary action. On September 21, 2004, and again the next day, Petitioner failed to report for her scheduled shift(s). She also failed to fulfill the four-hour notice requirement of the no call, no-show rule. For these two violations of the no-call, no-show policy, Petitioner was given a written warning. On September 23, 2004, Petitioner telephoned Pfister from an undisclosed location and advised she could not work previously scheduled shifts for the balance of the week. At first, Petitioner claimed she wanted time off on account of her “health.” Pfister offered her the opportunity to submit medical documentation in support of her request. At that point Petitioner stated that she was not seeing a doctor(s), and further stated that she was out of the state with her boyfriend. Petitioner added that she did not care about the hotel; that she was going to take care of herself first. Pfister responded that Petitioner should call him upon her return to town because the issue concerning the $97.64 could not remain unresolved. In the course of this conversation, Petitioner did not advise Respondent that she was disabled in any way, or that she required any type of accommodation(s) for any medical condition or disability in order to perform her job. Petitioner's next contact with Respondent was on September 29, 2004, when Petitioner called Pfister and said she was back in town and wanted to meet with him. It was agreed the meeting would take place the following day at 1:00 p.m. and would also be attended by Rick Reilly (Reilly), Respondent’s senior vice president. Petitioner did not arrive at the appointed time and did not call to explain her absence. Instead, she arrived at 2:10 P.M. Petitioner smelled of alcohol; she swayed, staggered, and slurred her speech. She was profane and belligerent. Petitioner again failed and refused to return Respondent's money or to explain why she took the money. As previously and repeatedly noted, Petitioner did not take this opportunity to advise Respondent that she was disabled in any way, or required any type of accommodation(s) for any medical condition or disability in order to perform her job. She did, however, state that she was "not coming back" and demanded a paycheck and vacation pay. Reilly asked her if she was resigning and she replied, "I guess so." Fearing that Petitioner would attempt to deny or to retract her ambiguous resignation when she sobered up, Pfister and Reilly made a reasonable determination, based upon legitimate non-discriminatory business reasons, to terminate her employment effective September 30, 2006. The termination was not pretextual. There was no evidence regarding who, if anyone, replaced Petitioner. There was no evidence Petitioner was, at any time, treated less favorably than any similarly situated co- worker on account of her membership in any protected class, or for any other reason. Petitioner did not dispute that Respondent had no reason, at any relevant time, to believe she needed accommodations of any sort to perform her job. On October 15, 2004, Pfister received a fax from Petitioner requesting a "leave of absence, medical reason." In apparent support thereof, Pfister also receive a fax purporting to be from a doctor and further purporting to provide a medical explanation for Petitioner's request for "leave of absence, medical reason." In the latter fax, a representation was made that Petitioner was presently hospitalized for "an undetermined amount of time" due to "depression symptoms for the last several month (sic) in context of stressors related to her job and impending hurricanes." This information, such as it was, was untimely and was insufficient to cast doubt upon the bona fides of Petitioner's termination. On November 1, 2004, Petitioner came to Pfister's office to pick up her check(s) and, at last, to return Respondent's money. She made no comment or complaint regarding any alleged disability; neither did she indicate in any way that she believed herself to be a victim of discrimination. In sum, Petitioner could have been terminated as early as September 16, 2004, for legitimate non-discriminatory business reasons. There is no persuasive evidence that disability played any role in Petitioner's termination. Indeed, there was no persuasive evidence that Petitioner was, at any time, disabled within the meaning of the Act, or within the meaning of any other state or federal law. There was no evidence that Petitioner was replaced by a non-disabled individual, nor that she was, at any time, treated less favorably than any similarly situated co-worker.
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 the FCHR issue a final order dismissing the Petition for Relief. DONE AND ENTERED this 9th day of November, 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 9th day of November, 2006.
The Issue Whether Respondent discriminated against Petitioner because of his race or age when he was not selected as Lead Mechanic in Area I KA/Nitric.
Findings Of Fact Petitioner is a black male who was over 40 at the time he applied for the Area I (One) Lead Mechanic position. At the time Petitioner applied for the Area I Lead Mechanic position, he was a lead mechanic in the Central Maintenance Compressor and Gear Box shop, pay grade level 28 position. Pay grade level 28 is the highest nonexempt pay grade at Solutia, Inc. On January 25, 1999, Solutia posted a job opening for a lead mechanic position in Area I KA/Nitric, a pay grade level 28 position. Petitioner applied for the Area I Lead Mechanic position. Had Petitioner been selected for the Area I Lead Mechanic position, it would have been a lateral transfer and not a promotion because Petitioner was already at a level 28 pay grade. No evidence was received that the incumbent of the Area I Lead Mechanic position would have had more authority or promotion opportunities than the position previously held. Petitioner, along with three other mechanics, interviewed for the Area I Lead Mechanic position. The other three applicants were: William G. Cook (a white male); Joseph S. Mann (a white male); and David Wolfe (a white male). Petitioner admits that all the applicants were qualified for the Area I Lead Mechanic position. Respondent used a ranking procedure to evaluate the applicants for the Area I Lead Mechanic position. The applicants were ranked by subjectively grading their answers to questions in five areas: 1) problem-solving and decision-making ability; 2) teamwork and coaching ability; (3) communication ability; (4) honoring differences; and (5) results orientation and initiative. The applicants were given a score from one to five by each panel member based upon the panel members' subjective assessment of applicants’ answers on each of the five criteria. Five was the highest grade and one being the lowest. The points were totaled and converted into a percentage score. The applicant having the highest overall score was selected to fill the job. The applicants were interviewed by a panel composed of six employees: Nikki Owens; Mike Conley; Darren Dobson; Tony Williams (a black male); Terry Wilcox (who was over 40 at the time of the interview); and Greg Barker. All of these persons were from Area I. The majority of the panel worked regularly with the person ultimately selected. Petitioner admits that there was no overtly discriminatory questions or activity in the interview. There were no questions or discussions amongst the panel members about the applicants' race or age. The panel members scored each applicant separately without knowing how the other panel members scored the applicants. The panel members scored the applicants as follows: W. Cook S. Holly J. Mann D. Wolfe Nikki Owens 45% 77% 90% 67% Michael Conley 53.3% 63.3% 70% 63.6% Darren Dobson 40% 63% 70% 67% Greg Barker 40% 57% 73% 57% Tony Williams 57% 73% 67% 50% Terry Wilcox 33% 66.6% 76.6% 57.7% After the individual panel members totaled their respective scores, the applicants were ranked. Joseph Mann was ranked first by five of the six panel members, and one panel member, the black male, ranked Petitioner first. The panel discussed the results and reached a unanimous consensus to offer the Area I Lead Mechanic position to Joseph Mann. The panel prepared and provided feedback to all the applicants. Petitioner's shortcoming was that he failed to give specific examples to questions posted during his interview. When he was not selected, Petitioner complained about the outcome, believing he was the most qualified applicant and was rejected for racially motivated reasons. Rachel Gold (a black female) and Lerissa Rowe, who both worked in Respondent's Human Resources Department, investigated Petitioner's complaint. During their investigation, it came to their attention that a panel member, Terry Wilcox, stated to a co-employee, "I don't think that there would ever be two black people in charge of a group of white mechanics in a shop." After learning of Terry Wilcox' comment, Respondent took the following action: (a) Respondent recalculated the panel's score leaving out Terry Wilcox' score; and (b) Respondent disciplined Terry Wilcox by suspending him for two days without pay. After recalculating the scores, Joseph Mann still had the highest overall score. Petitioner's overall score remained the same. Petitioner remained with Respondent until he voluntarily retired effective November 1, 1999. No one forced Petitioner to retire. The decision was Petitioner's alone, prompted in part by a change in Respondent's retirement plan. Petitioner admits that none of the panel members had ever discriminated against him because of his race or age prior to the complained of selection. Since retiring, Petitioner has not sought employment elsewhere. He is basically enjoying retirement.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the instant petition. DONE AND ENTERED this 30th day of November, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 30th day of November, 2001. COPIES FURNISHED: Sylvester A. Holly, Jr. Post Office Box 301 Cantonment, Florida 32533 Erick M. Drlicka, Esquire Emmanuel, Sheppard & Condon 30 South Spring Street Pensacola, Florida 32596 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue in this proceeding is whether the Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Remedy provides staffing services for temporary employment positions with a variety of independent business clients. The relationship between Remedy and its clients is governed by contracts it has entered into with those clients. Towards that end, Remedy solicits applications and/or maintains an applicant pool of people known as “associates” for temporary work assignment to Remedy’s clients. However, Remedy does not operate or manage its clients' business or employment decisions. At the commencement of an associate’s staffing relationship with Remedy, all associates are required to review Remedy’s policies and procedures, including its Discrimination and Harassment Policy. Under that policy, a Remedy associate who believes he or she has been discriminated against while performing an assignment for a Remedy client is encouraged to notify Remedy of the perceived discrimination. After notification, Remedy investigates and advises the client of its findings. After investigation, if a Remedy associate engaged in misconduct while at a temporary assignment, Remedy is entitled to take disciplinary action against the associate, including removal of the associate from the assignment. However, Remedy cannot take disciplinary action against a direct employee of the client, nor can it require the client to take disciplinary action against the client’s direct employee. Similarly, if a client demands that a Remedy associate’s assignment be terminated, Remedy has no authority to second-guess that decision or to refuse to terminate the associate’s assignment with the client. Importantly, when a Remedy associate’s assignment with a client is terminated early by the client, the associate’s relationship with Remedy remains in place unless and until either party expressly advises the other that the relationship is being terminated. In this case, Remedy had a contract with Trane, a manufacturer of air conditioning units. Under its contract with Trane, Trane notified Remedy of temporary assignments that needed to be filled at its manufacturing plant in Panama City, Florida. Upon such notification, Remedy identified qualified associates for Trane’s consideration for work at its plant. On or about February 8, 2013, Petitioner submitted an application to Remedy, seeking consideration for assignment to an open temporary position with Trane. He was selected by Trane for the position and began working as a Production Technician for Trane on March 4, 2013. In performing the duties and responsibilities of his position as a Production Technician, Petitioner was subject to the supervision of Trane management, including Group Leader, Shirley Gunn, and Operations Leader, Jesse Arnold. On or about May 30, 2013, Petitioner advised Remedy’s Staffing Coordinator, Jaime Chapman, that he needed to take medical leave due to a growth on his finger. The growth was unrelated to his employment at Trane. Petitioner was granted leave by Trane. On June 17, 2013, while on medical leave, Petitioner provided a doctor’s note to Ms. Chapman, which indicated that Petitioner was capable of returning to work in a light-duty capacity. The note imposed various restrictions on Petitioner’s permissible work duties, including, but not limited to, “no machine, manipulator, compressor, wall rear, no lifting above 15 lb.” Ms. Chapman passed Petitioner’s leave request to Trane. However, Trane's policy did not permit light duty assignments for non-work related injuries or medical issues and the request was denied by Trane. There was no evidence that Trane’s policy was based on discrimination or that Remedy had any input or control over Trane’s light-duty policy. As such, Petitioner’s allegations that denial of such light duty was discriminatory should be dismissed. Ms. Chapman advised Petitioner of Trane’s policy on light-duty assignments and explained to him that he must remain on leave until he was medically cleared to return to full work duties. On or about June 27, 2013, Petitioner provided Ms. Chapman with a new doctor’s note, stating that Petitioner had undergone surgery for his medical condition, and would be unable to work in any capacity from June 27, 2013, until July 1, 2013. Four days later, on July 1, 2013, Petitioner provided Ms. Chapman with medical clearance to return to full work duties. That same day he returned to his job as a Production Technician at Trane. Clearly, neither the growth on Petitioner’s hand nor its subsequent medical treatment significantly impaired a major life activity of Petitioner since he recovered and returned to work. Moreover, there was no evidence that demonstrated Petitioner’s medical issue with his hand or treatment thereof constituted a disability that significantly impaired a major life activity or was seen as such by Respondent or Trane. Given this lack of disability, Petitioner’s allegations regarding discrimination based on disability should be dismissed. At 2:00 a.m., on July 2, 2013, Ms. Chapman received an email from Ms. Gunn, the Trane manager with supervisory authority over Petitioner, indicating that during the July 1 night shift, Petitioner and Remedy Associate Tarmecia Jackson, who is Black, were involved in a verbal altercation with Ms. Jackson calling Petitioner an “asshole.” In the email, Ms. Gunn requested that Ms. Chapman counsel Petitioner as well as Ms. Jackson regarding the need for each of them to improve their level of professionalism during their co-worker interactions. The evidence demonstrated that the name-calling incident was only a verbal feud between co-workers. There was no evidence that demonstrated such name-calling was discriminatory or had its aegis in discrimination. Ms. Chapman complied with Ms. Gunn’s request, and conducted separate counseling sessions with Petitioner and Ms. Jackson. During Ms. Jackson’s counseling session, Ms. Chapman advised her that the conduct she exhibited during the July 1, 2013, incident was unacceptable and would not be tolerated going forward. In response, Ms. Jackson apologized for her conduct and assured Ms. Chapman that she would comply with Trane’s conduct requirements going forward. During Petitioner’s counseling session, Ms. Chapman advised him that he must refrain from arguing with co-workers at the Trane worksite, and that if he had any additional issues with co-workers, he must report those issues to Remedy. Petitioner accepted Ms. Chapman’s counseling, without objection. At no time during the counseling session did Petitioner express a perception that he was being treated unfairly or discriminatorily. On July 12, 2013, Ms. Chapman received a second email from Ms. Gunn stating that Petitioner and Ms. Jackson were once again involved in an altercation. However, in the latest instance, Ms. Gunn determined that Petitioner was responsible for instigating the conflict, noting that his conduct had left Ms. Jackson “in tears.” The email went on to state that when Ms. Gunn attempted to counsel Petitioner in the wake of the second incident, Petitioner continually interrupted her and refused to allow her to proceed with the counseling. On the morning of July 12, 2013, in addition to reviewing Ms. Gunn’s email, Ms. Chapman received a telephone call from Trane’s Operations Leader, Mr. Arnold, who advised her of Trane’s decision to request the termination of Petitioner’s assignment. Prior to the start of Petitioner’s shift on July 12, 2013, Ms. Chapman called him and notified him of Trane’s decision to end his assignment. The evidence was clear that Remedy did not participate in and was not responsible for Trane’s decision to terminate Petitioner’s assignment with it. Moreover, the evidence was clear that Remedy did not make any adverse decision regarding Petitioner’s employment with Trane.1/ Remedy simply advised Petitioner of Trane’s termination. In fact, in light of Petitioner’s continuing status as a Remedy associate, Ms. Chapman advised Petitioner that he should continue to update Remedy regarding his interest and availability for future assignments, and likewise, Remedy would continue to consider him for future assignments with Remedy clients. In essence, Petitioner’s status with Remedy did not change. Based on these facts, Petitioner failed to establish that Remedy discriminated against him when it informed him of Trane’s decision to terminate his assignment and the allegations in regards thereto should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter an Order dismissing the Petition for Relief. DONE AND ENTERED this 31st day of December, 2014, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 2014.
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 is whether Respondent engaged in an unlawful employment practice pursuant to chapter 760, Florida Statutes, against Petitioner due to his age.
Findings Of Fact Petitioner was employed by Respondent as an Employee Relations Specialist from July 30, 2007, to March 7, 2008. Petitioner’s position as an Employee Relations Specialist was a full-time salaried exempt position. Throughout Petitioner’s employment, Mary Campbell was the Director of Human Resources for Respondent, and William Davis was the Human Resources Manager for Respondent. Campbell was Petitioner and Davis’s direct supervisor. On March 6, 2008, Petitioner submitted a letter of resignation to Campbell, effective Friday, March 7, 2008. Pursuant to Respondent’s termination policy, salaried exempt employees are expected to provide a minimum of four weeks’ notice of their resignation, and failure to do so could block their eligibility for rehire and payment of accrued paid time off (PTO). Petitioner failed to provide the required four weeks’ notice when he resigned his employment with Respondent. Petitioner understood that resigning with less than four weeks’ notice would block his eligibility for rehire, but, despite that understanding, he chose to resign on such short notice because he was starting a new job the next Monday. Petitioner expressed that understanding in his resignation letter, stating: “I understand the ramification of my early resignation but my future employer will not hold a position for thirty days.” (Resignation letter, Respondent’s Ex. 1). On March 7, 2008, Campbell signed a Personnel Action Notice relating to Petitioner’s resignation of employment, stating that “Dwayne Clark resigned his position for another opportunity without proper notice, accepting the consequences of losing PTO and rehire eligibility.” Campbell, without the involvement of Davis, classified Petitioner as ineligible for rehire on March 7, 2008. At hearing, Petitioner acknowledged this action was not discriminatory. The Monday after his resignation, Petitioner began working for Citizens Property Insurance as a Human Resources Generalist, and was involuntarily terminated after six weeks of employment with Citizens. In July 2009, Davis was promoted to Director of Human Resources after Campbell resigned from her employment with Respondent. On April 15, 2011, Richard Rivera was hired by Respondent as the Human Resources Manager. Prior to that, Rivera was employed by University of Florida Shands Medical Center’s (UF Shands) Human Resources Department, which shares the same building with Respondent’s Human Resources Department. Rivera knew Petitioner as a human resources employee of Respondent in 2007/2008. However, they had never spoken prior to mediation of this matter in 2017. Since becoming Director of Human Resources, Davis has received several requests for an exception to the termination policy from former employees classified as ineligible for rehire. Though he has the authority to do so, Davis has never made an exception to the termination policy or rehired anyone who had been classified as ineligible for rehire. In July 2010 and early 2012, Petitioner asked Davis to make an exception to the termination policy and reclassify him as eligible for rehire. However, Davis did not reclassify Petitioner as eligible for rehire because “[w]hen you make an exception, you have problems enforcing the policy going forward, so that’s why I do not make exceptions.” Petitioner claims that while he was employed with Respondent, Campbell made two exceptions to the termination policy and allowed the rehire of two former employees who had been classified as ineligible for rehire. However, other than their gender and race, Petitioner could not name or otherwise identify the two former employees in a way that would allow Respondent to attempt to verify his claim. Petitioner asserted that a physician assistant (PA) had been rehired by Respondent after providing less than four weeks’ notice of her resignation. Respondent was able to identify that individual as Allison McFauls. Ms. McFauls has worked as a Senior PA since 1998 and has never been an employee of Respondent or subject to Respondent’s termination policy. Ms. McFauls has always been employed by UF Shands, which is a separate entity from UF Jacksonville Physicians, Inc., with a separate human resources department and separate personnel policies. Neither Davis nor Rivera is aware of any employee of Respondent receiving an exception to the termination policy. Davis classified Hubert Collins, an Employee Relations Manager, who is nearly 20 years younger than Petitioner, and Christy Wright, who is even younger than Collins, as ineligible for rehire due to their failures to comply with the required resignation notice period in the termination policy. During their conversation in July 2010, Petitioner asked Davis if Respondent would be interested in contracting with Petitioner’s consulting company to assist with the Office of Federal Contract Compliance Programs (OFCCP) compliance review. Respondent did not contract with Petitioner because Respondent performed compliance review work and completed its Affirmative Action Plan in-house. Davis did not ask Petitioner questions regarding his age and does not recall having a conversation with Petitioner about retirement since Petitioner’s employment with Respondent. Even if such topics of conversation occurred, Petitioner agreed he may have been the one to raise them. On September 12, 2016, Petitioner applied online for a vacant Employee Relations Specialist position with Respondent. However, due to Petitioner’s failure to comply with Respondent’s four-week notice requirement, Petitioner was ineligible for rehire with Respondent in September 2016. On September 14, 2016, Rivera reviewed the applications and selected which applicants would be interviewed and considered for the open Employee Relations Specialist position. Because Petitioner was ineligible for rehire, Rivera removed Petitioner from further consideration. Rivera did not base his decision on Petitioner’s age, and there was no persuasive evidence of record that Rivera was biased against Petitioner because of his age. On September 14, 2016, Rivera rejected Petitioner’s application in the online application system and entered “ineligible for rehire” as the reason for rejecting Petitioner’s application. The same day, Petitioner was sent a form email notifying him that his application had been removed from consideration for the Employee Relations Specialist position. No one but Rivera was involved in the decision to remove Petitioner from consideration for the position. Rivera did not inform Davis or anyone else that Petitioner had applied for the Employee Relations Specialist position. Likewise, Davis never directed Rivera or anyone else to reject applications from Petitioner. Petitioner did not communicate with Davis, Rivera, or any other employee about his September 12, 2016, application. Nor did Petitioner request an exception to the termination policy from Davis or anyone else in 2016. Davis did not know that Petitioner had applied for the Employee Relations Specialist position until November 2016, when Respondent was notified by the Commission that Petitioner had filed a charge of discrimination. After receiving Petitioner’s charge of discrimination in November 2016, Davis reviewed Petitioner’s September 2016 application, and noticed that Petitioner stated that he had resigned from his employment with Citizens Property Insurance, which Davis knew to be false. If Petitioner had been hired for the Employee Relations Specialist position, Davis would have terminated Petitioner’s employment for falsifying his application.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 30th day of November, 2017, 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 30th day of November, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Margaret P. Zabijaka, Esquire Constangy, Brooks, Smith & Prophete, LLP Suite 1700 200 West Forsyth Street Jacksonville, Florida 32202 (eServed) Jesse D. Bannon, Esquire Constangy, Brooks, Smith & Prophete, LLP Suite 1700 200 West Forsyth Street Jacksonville, Florida 32202 (eServed) Dwayne E. Clark, Sr. 11334 Bridges Road Jacksonville, Florida 32218 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of his age, as stated in the Charge of Discrimination, in violation of Section 760.10(1), Florida Statutes. Preliminary Statement Petitioner, Alton Saunders, filed a Charge of Discrimination with the Florida Commission on Human Relations ("Commission") on May 10, 2000. The Commission did not make a determination regarding Petitioner's charge of discrimination within 180 days as required by Section 760.11(3), Florida Statutes. On December 27, 2000, Petitioner filed a Petition for Relief and thereby requested an administrative hearing. On March 2, 2001, the Commission referred the matter to Division Of Administrative Hearings to conduct an administrative hearing. On March 22, 2001, a final hearing was set for May 9-11, 2001, in Orlando, Florida. The final hearing was reset for June 6-8, 2001. On March 27, 2001, Respondent filed a Motion to Dismiss alleging that Petitioner "failed to timely request an administrative hearing with the Florida Commission on Human Relations as required by Section 760.11(6), Florida Statutes." On May 17, 2001, an Order Reserving Ruling on Respondent's Motion to Dismiss was entered, reserving ruling until the matter was reconsidered after the close of evidence at the final hearing. At the onset of the final hearing, Petitioner requested a continuance, which was denied. In support of his request for continuance, Petitioner presented a letter from Robert Wheelock, an Orlando attorney, which was made a part of the record as Petitioner's Exhibit A, but not received into evidence. Petitioner presented James "Jan" Saunders, Hugh Paton, Brett Saunders, Doris Dixon, Debra Sweeney, and himself as witnesses. Petitioner offered two exhibits, 1 and 2, which were received into evidence. Respondent presented Debra Sweeney and two additional witnesses, Richmond Taylor and Karl D. Fillauer, by deposition. Respondent offered 13 exhibits; 1-8 and 14-17 were received into evidence. Respondent's exhibit 11 was not admitted into evidence. The Transcript of proceedings was filed on July 23, 2001. Respondent filed a Proposed Recommended Order on August 20, 2001. Petitioner did not file a proposed recommended order.
Findings Of Fact Petitioner was born on August 16, 1922, is 79 years old, and is a member of a protected class. Respondent, Hanger Prosthetics and Orthotics, Inc. ("Hanger"), employed Petitioner at the time of the alleged discrimination. Hanger is engaged in the manufacture, service, and sale of prosthetics and orthotic devices around the country, including in Central Florida. Petitioner and his family have also been engaged in the prosthetics and orthotics industry throughout Central Florida for many years, operating under a variety of different business names. From approximately 1985 through 1997, Petitioner was employed as a general office employee by Amputee and Brace Center, a prosthetics and orthotics company owned by Petitioner's sons, Jerome and Jan Saunders. In 1997, Amputee and Brace Center was acquired by NovaCare, a competitor in the prosthetics and orthotics industry. As part of the sale, members of the Saunders family, including Petitioner, became employees of NovaCare. Shortly after the acquisition of Amputee and Brace Center by NovaCare, several members of the Saunders family left NovaCare's employ to work for competing prosthetics and orthotics companies. For example, Scott Saunders, Petitioner's grandson, left NovaCare's employ and opened a competing company, ABC Prosthetics and Orthotics, Inc. across the street from NovaCare's facility on Gore Street in Orlando. In July 1999, NovaCare was acquired by Hanger, previously another competitor of NovaCare. Following the merger of NovaCare and Hanger, Petitioner became an employee of Hanger and remained at the facility located on Gore Street in Orlando. As a result of the merger, numerous personnel changes occurred at the Gore Street facility. For example, Debra Sweeney, a longtime Hanger employee, was transferred to the Gore Street facility as the Clinical Operations Director. In December 1999, the title of Clinical Operations Director was changed to Area Practice Manager. Ms. Sweeney was the individual ultimately responsible for the Gore Street facility where Petitioner was then employed. On March 8, 2000, a misdirected envelope and its contents arrived with the rest of the mail at the Gore Street facility. The envelope was addressed to Dr. Steven Goll, a significant source of patient referrals for Hanger. The return address on the envelope was the return address of ABC Prosthetics and Orthotics, Inc., the company owned by Petitioner's grandson, Scott Saunders, and Hanger's biggest competitor in Central Florida. The envelope was routinely opened by a member of Hanger's office staff and then delivered, along with its contents, to Debra Sweeney. The envelope addressed to Dr. Steven Goll contained a solicitation letter bearing Petitioner's signature seeking business referrals on behalf of a new company, Anatomically Correct Cosmetic Restorations ("Anatomically Correct"). The envelope also contained Petitioner's business card and a trifold marketing piece which explained the types of products and services offered by Anatomically Correct. According to the trifold, Anatomically Correct offered prosthetic and orthotics services and devices which were identical to significant services and devices being offered by Hanger. Upon receiving the marketing materials, Debbie Sweeney immediately recognized the return address on the envelope and trifold marketing piece as the return address for Hanger's competitor, ABC Prosthetics and Orthotics, Inc. ABC Prosthetics and Orthotics, Inc., Hanger's competitor, had given Petitioner permission to use the business address of ABC Prosthetics and Orthotics, Inc., as well as ABC Prosthetics and Orthotics, Inc.'s envelopes in distributing the Anatomically Correct marketing materials. Petitioner's granddaughter-in-law, the wife of the president of ABC Prosthetics and Orthotics, Inc. designed the marketing materials for Anatomically Correct. Upon examining the contents of the envelope, Ms. Sweeney suspected that Petitioner was engaged in improper competition with their employer, Hanger. On March 9, 2000, a meeting was held among Ms. Sweeney, Petitioner, and Rose DeLucia, the branch manager of the Gore Street facility, during which time Ms. Sweeney presented Petitioner with an opportunity to explain the contents of the envelope that had arrived at Hanger's Gore Street facility the previous day. During the March 9, 2000, meeting, Petitioner admitted that he had developed the marketing materials, signed them, and distributed them. Additionally, Petitioner admitted that he had mailed the solicitation materials out to physicians practicing throughout the Orlando area who referred patients to Hanger for the purpose of seeking patient referrals from them for his new business. Petitioner had not solicited business from Hanger's referring physicians during the time that he was actively working for Hanger, i.e., 8:00 a.m.-5:00 p.m. Petitioner acknowledged that he had not advised Hanger that he intended to start Anatomically Correct and engage in business. Petitioner's conduct was a violation of Hanger policy as well as the policy of Petitioner's former employer, NovaCare, which merged with Hanger. As a result of the discussion and Petitioner's acknowledgment of production and distribution of the solicitation materials, Ms. Sweeney advised Petitioner that his employment was terminated for conduct in conflict with his obligations to Hanger, specifically competing with Hanger while employed by Hanger. Petitioner's employment was terminated for his improper competition with his employer, Hanger, and was unrelated to Petitioner's age. In his March 10, 2000, application for unemployment compensation benefits with the State of Florida Department of Labor, Petitioner indicated that he had been informed that he was being terminated because his "outside work is in conflict with their type of work." In a July 1999, conversation involving overstaffing at the Gore Street facility, Wallace Faraday, a Hanger executive, suggested, "Isn't it time for Al [Respondent] to resign, maybe one of his sons will hire him," or words to that effect. On April 27, 2000, Petitioner signed and dated a Charge of Discrimination. The Charge of Discrimination was filed with the Commission on May 10, 2000. Section 760.11(3), Florida Statutes, requires that the Commission determine whether there was reasonable cause for the Charge of Discrimination within 180 days of the date Petitioner filed his Charge of Discrimination. The last day the Commission could have issued its determination of reasonable cause was November 6, 2000. The Commission failed to issue an order determining reasonable cause. When the Commission failed to determine reasonable cause, Petitioner had 35 days from November 6, 2000, or no later than December 11, 2000, to request an administrative hearing in accordance with Sections 760.11(4), (6), (7), and (8), Florida Statutes. Petitioner executed an Election of Rights form indicating his desire to withdraw his Charge of Discrimination and file a Petition for Relief to proceed with an administrative hearing on December 27, 2000. Petitioner did not file his request for administrative hearing within 35 days of November 6, 2000. Petitioner's claim is barred. Section 760.11(6), Florida Statutes, expressly provides, in pertinent part: "An administrative hearing pursuant to paragraph 4(b) must be requested no later than 35 days after the date of determination by the commission."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order granting Hanger's Motion to Dismiss finding that Petitioner's Election of Rights and request for an administrative hearing was not timely filed, finding that Hanger did not discriminate against Petitioner, and denying Petitioner's Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 12th day of September, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2001. COPIES FURNISHED: Lisa H. Cassilly, Esquire Ashley B. Davis, Esquire Alston & Bird, LLP One Atlantic Center 1201 West Peachtree Street Atlanta, Georgia 30309-3424 Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Alton M. Saunders Jerome Saunders 418 Seville Avenue Altamonte Springs, Florida 32714 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 issues to be determined in this case are whether Respondent discriminated against Petitioner based upon a disability in violation of section 760.10(a), Florida Statutes (2017); and, if so, what remedies are appropriate.
Findings Of Fact The original complaint filed with FCHR states in pertinent part: “I am a disabled female. I have been discriminated against based on disability. On 8/17/2017, I told my CEO (Mr. David Yokeum) that I had to leave the office due to my disability. I was feeling dizzy and needed to take my medication. . . . Respondent knew I had a previous injury on my arm/hand and that I couldn’t use my hand in an excessive amount. I re-injured my hand while cleaning and went to the Emergency Room. I was placed on medical leave until I was cleared by Hand Surgeon. . . . I was told I was no longer needed because I couldn’t clean. The Petition for Relief filed after the FCHR’s Determination of No Cause states in pertinent part: “discriminated, treated unfairly due to anxiety disorder; wrongfully demoted to cleaning person resulting in further aggravation of an injury.” No mention of the anxiety disorder appears in the original complaint. Melissa Bruno is a single mother with two sons. Her father, Thomas Tegenkamp, owns a local business in the Sunrise area. Mr. Tegenkamp has enjoyed a long-standing friendship with David Yokeum, the chief executive officer of WCA USA, Inc. (WCA). There was little, if any, evidence presented about WCA, except that Mr. Yokeum was the chief executive officer and that, at the time of Petitioner’s employment, there were approximately 25 employees. At some point, Mr. Yokeum mentioned to Mr. Tegenkamp that his company was looking for an employee for the office.1/ Mr. Tegenkamp told Mr. Yokeum that his daughter was looking for a job. No evidence was presented regarding her qualifications for the job at WCA-–her past training and job experience was as a cosmetologist. It appears from the evidence that she was hired primarily because of her father’s friendship with Mr. Yokeum. Petitioner was hired by WCA in July 2014 as a receptionist. Initially, her duties included answering the phone and the door, ordering supplies, and helping around the office. Her position was a salaried, as opposed to an hourly, position. About four months after Petitioner was hired, she was given responsibility for the UPS program. The UPS program is a billing function that needed to be completed each week, and involved downloading approximately 20,000 lines of data regarding shipping charges, separating the lines by “members,” and invoicing those members for their shipping costs. Matthew West is the regional director of North America for WCA, and has been with the company for approximately six years. He performed the duties related to the UPS program previously, in addition to several other responsibilities, and performed these duties after Petitioner’s departure. He believes that the UPS program can be completed by one person and is not a full-time job. He was not informed by Petitioner or anyone else that Petitioner had any type of disability. Sudkhanueng Bynoe has worked for WCA for 16 years in a variety of capacities, and currently serves as the company’s office manager. She participated in Petitioner’s hiring, and performs the company’s human resources functions. She remembered that, at some point, Petitioner told her that Petitioner had G.A.D. (generalized anxiety disorder), but she was not familiar with the acronym, and Petitioner did not explain what G.A.D. meant. Petitioner did not ask for any modification of her work based on her anxiety. She acknowledged that she did not advise Ms. Bynoe that her generalized anxiety disorder limited her ability to perform tasks, and did not ask for an accommodation. Both Petitioner’s brother and father testified at hearing. When asked at hearing, neither identified any disability from which Petitioner suffered while working at WCA. Both knew she took medication, but did not know what kind of medication or the basis for taking it. Neither identified any activity of daily life that was impaired by any type of disability. In late 2014, Petitioner was arrested for driving under the influence (DUI). She claimed that the reason for the arrest was that she was overmedicated for her anxiety disorder. She notified her employer about the DUI, and had a conference with Mr. Yokeum and Ms. Bynum about the legal requirements she needed to fulfill with respect to the DUI. None of the documents related to the DUI were admitted into evidence, and the specific requirements were not identified. However, it is undisputed that WCA allowed her time off to attend whatever court dates she had, and that she was allowed to come in late and leave early for an unspecified length of time because she needed to get a ride from her father to and from work. Mr. West described Petitioner as someone who tried very hard, and put in a lot of hours. However, her performance was not up to par. The UPS program needed to be completed each week, and her timeline for completion was way too long. She was often as much as a week behind. He recalled her having a couple of “meltdowns” while with the company, but was never informed that she had a disability. In addition to the length of time that it took Petitioner to complete her work each week, she developed a problem with attendance. When she did come to work, she was frequently late, and took lengthy breaks during the day. Mr. West testified that employees started with five vacation days at the beginning of employment, which would progress to ten days. He testified that there was no specific time allotted for personal time in addition to the vacation days. Ms. Bynoe indicated that employees were allotted ten days each year for vacation, and ten PTO (personal time off) days. Respondent believed that she had ten days for vacation and ten days for PTO, for a total of 20 days each year. Assuming that the attendance policy in fact allowed both vacation days and PTO days, Petitioner’s absences exceeded what was allowed. For example, in 2015, Ms. Bruno took nine days of sick leave, 15.5 days of PTO, and nine days of vacation, for a total of 33.5 days. She was allowed to work from home an additional five days, although working from home meant that someone else had to perform her receptionist duties. In 2016, she took 14 days of sick leave, 10.5 of PTO, and nine days of vacation, again for a total of 33.5 days. She came in after 10:00 a.m. an additional six days and worked from home an additional three days (two full days and two half days).2/ Petitioner had hand surgery in June 2016, which accounted for at least some of her absences. In 2017, from January 1 until August 31, Petitioner took six days of sick leave, 6.5 days of personal leave, and one day of vacation. She worked from home on 8.5 days, and was late (coming in after 10:00 a.m.) 13 times. She was also absent from the office an additional 11 days, of which ten were attributed to her suspension as of August 17, 2017. There were two occasions, although the dates were not specified, where Petitioner did not come into work and did not call to say that she would not be coming in. In short, Petitioner was late or absent more times than anyone else in the company. Because of her absenteeism, there was a meeting at some point in 2017 with Ms. Bynoe and another employee, where Ms. Bynoe requested that Petitioner sign in when she came to work and sign out when she left. She was the only employee required to sign in and out, but the procedure was implemented because of her excessive absences that other employees did not share. Petitioner’s absences were related to a variety of problems, including her mother’s passing, an anxiety disorder, dental work, hand surgery in June 2016, a partial hysterectomy, and ovarian cysts. Petitioner also had some issues with one of her sons, which increased her stress. However, the greater weight of the evidence does not indicate that she had a disability as is contemplated under the Americans with Disabilities Act. The evidence also does not establish that Petitioner ever asked for an accommodation based upon a disability. The greater weight of the testimony established that WCA made several attempts to assist her, by having people help her with carrying supplies and allowing her to occasionally work from home, even though that impeded her ability to perform her receptionist duties. In 2017, issues related to Petitioner’s performance came to a head. Mr. West had several discussions with Petitioner during the last six months of her employment, because she was often as much as a week late completing each week’s invoices. She was also often late in the mornings, and while she testified that when she came in after 10:00 a.m., it was because she was picking up supplies for the office, she did not notify her supervisor at the time that that was what she was doing. As noted above, she was allowed to work from home several times during her last year of employment. A few months before her termination, Petitioner came to work with a cast on her arm, and told Mr. West that she had dropped a couch on it at home. She had broken her wrist. However, she did not ask for a less strenuous job because of her hand, and did not ask for help with the UPS program. Other employees helped her with carrying supplies and other manual tasks. Petitioner was aware that she was behind in her work. On August 16, 2017, she spoke directly with Mr. Yokeum and told him she needed additional help. The next morning Petitioner reported to work, but had to leave for the day shortly after she started, because she was dizzy and “twitching,” and was afraid it would evolve into a panic attack. Once again, Petitioner texted Mr. Yokeum to advise him of her absence and the reason she had to leave the office. Mr. Yokeum was not her direct supervisor. On August 17, 2017, Petitioner was advised by letter from Mark Mairowitz, WCA’s Executive Vice President, that she was being suspended from the office until at least September 1, 2017, due to her office attendance. The letter she received states in part: Hello Melissa David Yokeum called me to his office this morning to express his displeasure at your office attendance record as he has grown very concerned. Because of his relationship with your father, he has asked me, as WCA Executive Vice President, to interact with you and to let you know that you are NOT to contact David from now on. He has no desire to hurt your family and so he has turned all matters regarding your employment over to me. Again, you are NOT to contact David in any way. Doing so will jeopardize your continued employment at WCA. You are only to deal with me from this day forward. Your attendance record has been examined by David and myself and we find a disturbing pattern of absence, with far more days/hours out of the office than other WCA employees. We are concerned for your health and your safety in getting to and from the office and before you can return to the office, you will be required to undergo a complete medical evaluation/examination and obtain a “clean bill of health” letter from a physician before you can return to work. Furthermore, as David will be out of the office until September 1st, he prefers you NOT be in the office until his return. So, consider yourself on suspension until that date. Mr. Mairowitz’s letter also requested that Ms. Bruno return her office computer and cell phone until she was reinstated, and advised her that her salary would be unaffected by the suspension. However, it is unclear from the letter what health issue Mr. Mairowitz is referencing. In early September 2017, Ms. Bruno returned to the office. At this time, she was relieved of her responsibilities related to the UPS program and reassigned to cleaning in addition to stocking the office and breakroom. The cleaning consisted of vacuuming, mopping the floor, and taking out the trash. From management’s point of view, this assignment would allow her to have flexible hours and less responsibility, while not suffering any reduction in pay. From Petitioner’s point of view, the change in job responsibilities was demeaning and humiliating, and meant to embarrass her. Ms. Bruno cleaned the office once, over Labor Day weekend, and did not do so again. She testified that after cleaning the office that weekend, she experienced significant pain in her hand and had to go to the emergency room to have it examined. While she testified that the emergency room sent her home with a work release for two days or until cleared by her hand surgeon, no documentation from the emergency room was submitted at hearing, and no evidence was submitted to demonstrate that the emergency room records were provided to WCA.3/ Ms. Bruno advised Mark (presumably Mark Mairowitz) that she hurt her hand and could not clean the office the way it needed to be cleaned. She did not report back to work at WCA. There was some testimony that the office was closed for a period in September related to a hurricane that hit the area, but there was no evidence as to how many days the office was closed. Petitioner’s employment was terminated as of September 29, 2017. Petitioner saw her hand surgeon on or about September 26, 2017. She submitted documentation from the Vanguard Aesthetic Plastic Surgery which is, for the most part, illegible, but is clear enough to confirm that she was seen as a patient and received some instructions. She did not report to Ms. Bynoe that she had gone to the emergency room, and did not inform her that she was unable to perform work cleaning and organizing the office because of her hand or because of any other disability. Petitioner did not testify that she was unable to perform the duties of cleaning and organizing the office because of her G.A.D. Petitioner did not establish by the greater weight of the evidence that she has a disability. However, she did establish that toward the end of her employment, WCA perceived her as having some sort of disability, as evidenced by Mr. Mairowitz’s letter to her requesting that she get a doctor’s clearance to return to work. Despite evidence that there were concerns, it is not at all clear whether WCA’s perception is based upon problems with her hand or problems caused by her anxiety disorder. Petitioner did not establish by the greater weight of the evidence that she requested an accommodation from her employer based on a disability. Likewise, she did not establish that WCA ever denied a request from Petitioner for an accommodation. Petitioner did not establish that WCA treated persons without a disability differently. No evidence was presented regarding any employee with a similar position and a similar attendance history, much less that such a person was treated differently than Petitioner. If anything, the evidence supports the view that WCA went to great lengths to accommodate Petitioner, in large part because of her father’s relationship with Mr. Yokeum.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner’s Petition for Relief be dismissed. DONE AND ENTERED this 30th day of January, 2019, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 30th day of January, 2019.
The Issue The issue for determination in this proceeding is whether the Respondent discriminated against Petitioner on the basis of handicap under Section 760.10, Florida Statutes, or disability under the Americans with Disabilities Act (ADA), by failing to award him the physical science/chemistry teaching position at Nease High School.
Findings Of Fact Petitioner applied for a position in 2002 and renewed the application in 2003. As a result of the 2002 application, Petitioner was offered a job, which he declined before attending orientation. On the 2002 application, Petitioner fully disclosed that he had been found guilty of DUIs in 1986 and 1988. In 2004, Petitioner became aware of a teaching position as teacher at Nease High School in the Respondent's school system. He was very interested in the position, called about the position, and was told that he must update his application on-line, which he hurriedly did. He was interviewed by Robert Corson, who was then the vice principal of Nease, who found that he was well qualified as a graduate of the U.S. Naval Academy with a degree in engineering who had taken three or four courses in physics. Petitioner was not certified, but there would have been no problem in getting him a temporary certificate that would permit him to teach while taking education courses to qualify him for certification in Florida. Corson observed that there were not a large number of quality applicants for hard science positions today, and Petitioner was the best qualified of the three candidates who applied. Just before orientation, Respondent's Human Relations (HR) office called and advised Corson that there was a problem with Petitioner's application because he had failed to report an arrest. It was normal for HR to tell the school the nature of the problem. HR told them that they would have to repost or re- advertise for the position, which they did. Corson reported that he failed to establish contact with Petitioner, but that the HR office was able to stop him at the orientation as he entered, and have Petitioner call the HR office. When Petitioner called, the HR office advised him that the employment offer was withdrawn. Petitioner first went to Corson. Petitioner wanted to see the principal of Nease, Mr. Schiavone, but Petitioner was so upset that Corson told him that he would not help himself unless he calmed down. Petitioner and Corson discussed the fact that Petitioner reported the arrests on the initial application, and Corson explained that it was out of his hands, and was an HR issue. Petitioner told Corson that he was going to the HR office. Petitioner went to the HR office and spoke with Mr. Springfield, the head of HR. Ms. Geiger, the head of the Instructional Employees' branch of HR sat in on the meeting. From the testimony of Mr. Springfield, it is fairly certain that he presented the problem as a matter of Petitioner lying on his application. This was the term that Springfield used in testifying at hearing. Petitioner explained that, while he may not have completed the on-line application correctly, he certainly did not intentionally misrepresent the matter of his arrest because he had reported them in his initial application. Ms. Geiger looked in the files under O'Brien's previous job offer, and found his initial application, which reported the DUIs as Petitioner had stated. Therefore, Springfield knew on the day the offer of employment was withdrawn that there had been no intent by Petitioner to misrepresent his qualifications. There was testimony presented by the Board about its procedures, and the superintendent's requirement that all job offers be withdrawn when a background check failed to agree with an applicant's application. After the matter of the "lie" had been resolved, the position of Springfield was that Petitioner would have to reapply for the position. This Petitioner did on that afternoon. There was no conflict regarding the correctness of his second application, which did report the DUIs. It is at this point that conflicts develop in the testimony, and there is a departure from normal procedures. Springfield testified that he could not remember if Petitioner was told that he must provide proof of "treatment" with regard to the DUIs. Geiger, who was present at the meeting, testified that Petitioner was told that he must provide proof of "treatment." Petitioner did not testify. Geiger testified that she did not follow the normal procedures of writing a letter to Petitioner outlining what he must do in response to the problems with his first on-line application because he was told these things at the meeting. Geiger made a memo to herself to follow up on Petitioner's application and on July 22, 2004, sent him an e- mail "reminding" him to submit proof of treatment. On July 27, 2004, Petitioner brought his Navy medical records to Geiger for her review and based thereon she and Springfield cleared him making him an "active" applicant. Unfortunately, Nease filled the position on July 26, 2004, by hiring Ms. Nall, a certified science teacher, who was presumably not handicapped. Petitioner asserts that the withdrawal of the job offer and denying him the position was discriminatory and based upon perceived disability. The Respondent asserts that it was just following standing procedures.
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 its Final Order directing that the Respondent cease and desist in the practices mentioned; that the Respondent be directed to hire the Petitioner upon his submitting an application for employment. Jurisdiction is retained for factual consideration of the damages to include costs and fees upon entry of the Commission's final order. DONE AND ENTERED this 29th day of December, 2005, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 29th day of December, 2005. COPIES FURNISHED: Karen J. Gallagher Qualified Representative 124 North Cove Drive Ponte Vedre Beach, Florida 32082 Thomas J. Leek, Esquire Kelly V. Parsons, Esquire Cobb & Cole Post Office Box 2491 Daytona Beach, Florida 32115-2491 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
