Findings Of Fact The Parties. The Petitioner, Andrea Bateman, is a female. At all times relevant to this proceeding, Ms. Bateman was 41 or 42 years of age. Ms. Bateman is an attorney. Ms. Bateman failed to prove that she was a member of The Florida Bar during the period of time at issue in this proceeding. The Respondent, the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department"), is an agency of the State of Florida. Ms. Bateman's Employment by the Department. In October of 1990, the Department employed Ms. Bateman as an attorney in the Department's Office of Child Support Enforcement. Ms. Bateman was required to be a member of The Florida Bar. Ms. Bateman's position with the Department was classified as a "Select Exempt Service" position. Pursuant to Chapter 22SE-1.002(5), Florida Administrative Code, and Part V, Chapter 110, Florida Statutes, persons employed in select exempt service positions may be terminated from employment without cause. Ms. Bateman's immediate supervisor was Chriss Walker. Mr. Walker is a Senior Attorney with the Department and, at the time Ms. Bateman was hired, also served as the Assistant Secretary for Child Support Enforcement. As of December 4, 1991, the Assistant Secretary for Child Support Enforcement, and Mr. Walker's immediate supervisor was Anne F. Donovan. At all times relevant to this proceeding, William H. Bentley was an Assistant Deputy Secretary of the Department with supervisory authority over the Department's Assistant Secretary's, including Mr. Walker and Ms. Donovan. "Productivity Enhancement" at the Department. During 1991, the Department was required to evaluate all employment positions at the Department and to reduce those positions in an effort to improve the productivity of the Department. Generally, all positions at the Department and the work performed by the persons filling those positions were considered and decisions were made as to which positions could be eliminated. The Department referred to the elimination of positions as "red-lining". The Department also made efforts to insure that any person affected by the elimination of their position would be placed in another position. Ms. Bateman's attorney position with Child Support Enforcement was identified for elimination. Another attorney position in Child Support Enforcement and Mr. Walker's Senior Attorney position were not identified for elimination. The decision to eliminate one of the attorney positions was based upon conclusion that the administrative duties of the two attorney positions could be handled by a paralegal position and the legal duties could then be handled by one attorney. Efforts to assist Ms. Bateman to find another position were not successful. Ultimately, the Department decided to find a position in which to continue to employ Ms. Bateman rather than to terminate her position and release her. The Department reclassified another vacant position so that Ms. Bateman could continue to be employed as an attorney for Child Support Enforcement. Mr. Walker was directed to create an attorney position for Ms. Bateman by the Assistant Secretary for Human Services. This decision was made during the early Fall of 1991. The Department's decision to continue to employ Ms. Bateman was based in part on the Department's concern about terminating an employee of the Department. The evidence failed to prove that the Department acted unreasonably with regard to the red-lining of Ms. Bateman's position. Ms. Bateman's Performance. During the year after Ms. Bateman began her employment with the Department, Mr. Walker, Ms. Bateman's supervisor, began to develop concerns about the adequacy of her work product. Ms. Bateman also began to evidence behavior which was not acceptable for an attorney of the Department. As a result of Ms. Bateman's odd behavior, Mr. Walker became concerned about Ms. Bateman's mental well-being. Mr. Walker memorialized his concerns about Ms. Bateman in a memorandum to Mr. Bentley dated December 2, 1991. The memorandum was revised December 19, 1991 to eliminate references to a counselor that Ms. Bateman had informed Mr. Walker she was seeing. Ms. Bateman's work deteriorated to an extent which necessitated other employees carrying out some of her duties. Among the difficulties experienced with Ms. Bateman which formed a reasonable basis for terminating her employment were the following: Ms. Bateman had difficulty communicating with other employees and her supervisor. As an attorney, Ms. Bateman was required to communicate orally and in writing. She was unable to do so in an adequate manner. Ms. Bateman failed to demonstrate good judgment and trustworthiness and, therefore, her supervisors were unable to rely upon her judgment as an attorney of the Department. Ms. Bateman's appearance was unacceptable for an employee of the Department who was required to meet and communicate with the public. Ms. Bateman's hair was unkempt and dirty, her clothes were often soiled and wrinkled, she failed to brush her teeth and she appeared not to be bathing based upon her appearance and her strong body odor. Although required to do so by Department policy, Ms. Bateman refused to give her supervisor a permanent home address or phone number. On one occasion Ms. Bateman was found asleep in the offices of the Department at night and on one occasion she was found asleep during working hours. Based upon the inadequacy of Ms. Bateman's performance, the Department had a reasonable basis for terminating Ms. Bateman's employment. Mr. Walker's Evaluation of Ms. Bateman. On December 18, 1991, Mr. Walker presented Ms. Bateman with a Professional Employee Performance Appraisal form he had completed on her performance. The Appraisal was reviewed by Ms. Bateman and signed by her on December 18, 1991. Mr. Walker gave Ms. Bateman's performance a rating of "effective" on the Appraisal. Of the factors evaluated on the Appraisal, Mr. Walker judged Ms. Bateman's performance as "excellent" on one factor, "effective" on eleven factors and "needs improvement" on nine factors. Mr. Walker gave Ms. Bateman's performance an "effective" rating despite his conclusion that her work product was not acceptable and despite his concerns about her inappropriate behavior. He did so because he had recently been directed to create a position to keep Ms. Bateman as an employee of the Department and in an effort to avoid litigation over Ms. Bateman's termination. Mr. Walker did not believe that his supervisors wanted to avoid any difficulties concerning Ms. Bateman employment. Mr. Walker failed to follow Department procedure in presenting the Appraisal to Ms. Bateman. The Appraisal was required to be reviewed and approved by Mr. Walker's immediate supervisor, Ms. Donovan, before it was given to Ms. Bateman. Mr. Walker, contrary to Department policy, presented the Appraisal to Ms. Bateman before Ms. Donovan had seen and approved it. Ms. Donovan was aware of the problems with Ms. Bateman's performance and would not have approved an "effective" rating. Upon receiving the Appraisal, Ms. Donovan discussed the Appraisal with Mr. Walker and rejected it, as it was her right to do. Ms. Donovan, consistent with Department policy, specified that Ms. Bateman would be evaluated again in sixty days. The Department's Request that Ms. Bateman Undergo a Psychological Evaluation. Although the Department had a reasonable basis for terminating Ms. Bateman's employment by the end of 1991 and in early 1992, the Department decided to attempt to discover the cause of Ms. Bateman's decline in performance and the onset of her odd behavior rather than terminate her employment. The Department made this decision in an effort to determine what assistance Ms. Bateman might need. Ultimately, the Department was attempting to determine what work, if any, Ms. Bateman was capable of performing. The Department's decision was based upon a number of incidents involving Ms. Bateman. Those incidents are included in Mr. Walker's Chronology of December 2, 1991 and his Revised Chronology of December 19, 1991 and are hereby incorporated herein. Although not all the incidents described in the chronologies were proved during the final hearing to have occurred, the Department's consideration of the incidents reported by Mr. Walker was reasonable. Due to the Department's concerns about Ms. Bateman, the Department requested that Ms. Bateman voluntarily participate in the Department's employee assistance program. Ms. Bateman refused. In order to determine what could be done to help Ms. Bateman, and to determine what duties and responsibilities she was capable of performing, the Department requested that Ms. Bateman undergo a psychological, or other, evaluation. Ms. Bateman refused. After discussing the matter with Ms. Bateman and legal counsel she had retained, the Department notified Ms. Bateman that her continued employment was conditioned upon her undergoing a psychological evaluation or some other evaluation which would allow the Department to determine what work she was capable of performing. In a letter of February 12, 1992, Ms. Bateman, through her representative, was informed of the following: As you also know, we are attempting to help Andrea address a problem which we believe exists and has been well documented over the past 16 months. In return, we need Andrea's help and cooperation. If Andrea chooses to agree to our request that she undergo a psychiatric evaluation and authorize the release to us of the psychiatrist's prognosis, diagnosis and recommendation for treatment, we will be glad to schedule an appointment for her with a psychiatrist, and will pay for such an evaluation. We will use the evaluation to determine an appropriate course of action. Ms. Bateman's Termination from Employment. Ms. Bateman continued to refuse to undergo any evaluation or to suggest any alternative course of action. Consequently, based upon Ms. Bateman's inadequate and unacceptable work performance, the Department terminated Ms. Bateman's employment with the Department on or about February 13, 1992. Ms. Bateman's termination from employment was effective February 28, 1992. Ms. Bateman was terminated from employment due to the fact that she was not adequately performing her job and she refused to cooperate with the Department to find out what could be done to help her become an effective employee. Ms. Bateman failed to prove that the Department's reason for terminating her employment was a pretext. Ms. Bateman's Charge of Discrimination. On or about September 15, 1992, Ms. Bateman filed a Charge of Discrimination against the Department with the Florida Commission on Human Relations. Ms. Bateman alleged that she had been discriminated against on the basis of sex and a perceived handicap. On February 10, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " Ms. Bateman filed a Request for Redetermination on March 4, 1992. On April 12, 1993, the Commission issued a "Redetermination: No Cause" affirming its decision. On May 12, 1993, Ms. Bateman filed a Petition for Relief seeking a formal administrative hearing. In the petition Ms. Bateman alleged that the Department had discriminated against her on the basis of sex, a perceived handicap and, for the first time, age. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Ms. Bateman. Alleged Sex Discrimination. Ms. Bateman failed to prove that any action of the Department was based upon Ms. Bateman's sex: she was not held to any standard or requirement based upon her sex, she was not terminated because of her sex and the Department's efforts to determine the cause of Ms. Bateman's problems was not based upon her sex. Ms. Bateman failed to prove that any Department policy or standard had a disparate impact on female employees. Ms. Bateman failed to prove that she was replaced by a male attorney. Ms. Bateman's grooming habits were discussed with her. Some of those discussions concerned the wearing of panty hose and her makeup. It must be inferred that such discussions were not carried on with male employees. The evidence, however, failed to prove that Ms. Bateman's termination was based upon these matters. Although grooming played a part in the decision to terminate Ms. Bateman's employment, it was grooming related to basic cleanliness and neat appearance required of all employees and not just female employees. Ms. Bateman failed to prove that the Department discriminated against her on the basis of her sex, female. Alleged Age Discrimination. At the time that Ms. Bateman was hired she was 41 years of age, and at the time she was terminated she was 42 years of age. Ms. Bateman failed to prove that age played any part in her treatment by the Department. This finding is supported, in part, by the fact that the difference between Ms. Bateman's age when she was hired and when she was terminated was only one year. Ms. Bateman failed to prove that she was replaced by a younger person. Ms. Bateman failed to prove that the persons who made the decision to terminate her employment were aware of her age. Ms. Bateman failed to prove that the Department discriminated against her on the basis of her age. Alleged Perceived Handicap. The Department did believe that Ms. Bateman was suffering from some mental problem. This belief was based upon Ms. Bateman's odd behavior and a concern that Ms. Bateman was "homeless". It was for this reason that the Department requested that Ms. Bateman undergo a psychological evaluation. Ms. Bateman failed to prove, however, that the Department treated her differently from the manner other employees of the Department were treated under similar circumstances. Ms. Bateman also failed to prove that the Department's request that she undergo a psychological or other evaluation to determine how to assist her to meet the requirements of her employment was made for a discriminatory reason. Under the circumstances, the Department's request of Ms. Bateman was reasonable. Ms. Bateman also failed to prove that she was terminated from employment because of any perceived handicap. The evidence proved that she was in fact terminated from employment due to her inability to satisfactorily carry out her job responsibilities. Ms. Bateman also failed to allege or prove that she has a handicap based upon her mental condition. Ms. Bateman also failed to prove that the Department discriminated against her on the basis of a handicap or a perceived handicap.
The Issue Whether Petitioner was demoted from his position as a security officer, and later terminated from his position with the Respondent as a groundskeeper on or about May 22, 1995, on the basis of his race (Black) or sex (male), in violation of Section 760.10(1)(a), Florida Statutes (1995).
Findings Of Fact The Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992. Petitioner is an African-American male, and is licensed as a Class D security officer by the State of Florida. Respondent, Life Care Retirement Communities, Inc., is a not-for-profit corporation, based in Iowa, which owns Village on the Green, a community with 241 independent living units and 60 skilled health center beds in Longwood, Florida. Petitioner was hired by Respondent, on April 27, 1998, as a security guard at Village on the Green in Longwood, Florida. He worked in that capacity until May 12, 1995. In accordance with the company's standard procedure, all employees who have keys or access to resident's private property are required to have a criminal background check completed. Petitioner's position as a security guard required such a check. Petitioner signed a consent form and the background check was completed. The background check revealed that, in 1993, Petitioner was arrested for the felony of grand theft auto. The charge was later reduced from the misdemeanor charge of Trespass to a Conveyance. On May 17, 1994, Petitioner pled nolo contendere to the charge. Adjudication was withheld by the Court and Petitioner was placed on six months probation. Petitioner successfully completed probation. It is the policy of Respondent that an employee with a prior criminal record which involves theft may not be placed in a safety-sensitive position which permits employee access to a resident's living quarters or personal property. A security officer has such access. Petitioner was then informed that he would be removed from his position as a security guard. Petitioner was then offered a position in groundskeeping and Petitioner accepted. He was transferred to groundskeeping, at the same salary, and was employed from May 15, 1995, until May 22, 1995, at which time he was terminated. Between May 15 and May 22, 1995, Petitioner performed his job satisfactorily. On May 15, 1995, a severe electrical storm knocked out electricity to Petitioner's residence. As a result, Petitioner overslept and did not report to work at 7:00 a.m., the scheduled beginning of his shift. At approximately 8:00 a.m., Petitioner called the security guard on duty and advised her of the reason he was late and that he would not be in that day because the storm had caused damage to his automobile. The fact that Petitioner reported in on May 15th was not conveyed by the unidentified security guard to Petitioner's supervisor. Respondent's policy, as stated in the Employee Handbook, called "No show/no call," requires an employee to notify his supervisor if he is going to absent, or if he is unable to contact the supervisor, then he is to report his absence or tardiness to the switchboard operator. The Employee Manual, at page 45, states in pertinent part: ". . . Failure to report for duty without notification, failure to call in prior to shift change and tardiness will result in disciplinary action." After an internal investigation, which included an interview with Petitioner, Respondent was unable to determine that Petitioner had called in on May 15, 1995. Petitioner was terminated. Petitioner has failed to demonstrate that Respondent's reason for termination was pretextural, or that the employer engaged in unlawful hiring, firing, pay or promotion practices.
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 3rd day of June, 1998, in Tallahassee, Leon County, Florida. COPIES FURNISHED: John V. Griffin DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1998. Director of Human Resources Life Care Retirement Communities, Inc. d/b/a Village on the Green 200 East Grand, Suite 390 Des Moines, Iowa 50309 Terrance Davenport 861 Carver Street Winter Park, Florida 32789 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on November 17, 2004.
Findings Of Fact Petitioner, Linda Marchinko, was employed by the Witteman Company, Inc., from 1966 until April 2003. The Witteman Company, Inc. (hereinafter "Inc.") was a division of the Dover Corporation. While employed by Inc., Petitioner held the position of traffic manager. The most recent description of the duties of the position of traffic manager reads as follows: Responsible for, but not limited to, traffic managerial duties, coordinate and arrange for all product shipments, required documentation, customer interaction, and providing back-up support as required to others within the Company. Work with minimum supervision, produce quality, complete and accurate work and be an active and positive participant on teams and committees to which assigned. In February 2003, Cryogenic Industries made an asset purchase of Inc. and established Witteman, LLC (hereinafter LLC). LLC engineers and sells carbon dioxide, recovery, and production equipment to soft drink and brewing companies. Whereas Inc. had a maximum of 110 employees, LLC was established with only 17 employees, as many departments such as purchasing, traffic, and accounting were eliminated or "farmed out." At the time of the asset purchase, all employees of Inc. were terminated due to the sale of the assets of Inc. Petitioner was terminated from employment with Inc. effective April 8, 2003. She signed a Severance Agreement and Waiver and Release of Claims, releasing Inc. from all claims, including any related to the Age Discrimination and Employment Act. The position of traffic manager has not and does not exist at LLC. Petitioner was not hired by LLC. Petitioner has never been employed by LLC and, therefore, was not terminated by LLC. A few employees of Inc. were hired by LLC. Petitioner was not one of them. Cara Brammer is one of the employees of Inc. who was hired by LLC. Her position is Comptroller. Petitioner contends that regardless of Ms. Brammer's title, Ms. Brammer performs the same functions that Petitioner used to perform for Inc. Petitioner believes that Ms. Brammer was hired by LLC because she is younger than Petitioner. At the time Ms. Brammer was hired by LLC, she was approximately 39 years old and Petitioner was 55 years old. Ms. Brammer's duties as Comptroller include accounts payable, cost accounting, and general ledger work. According to Ms. Brammer, the traffic manager duties previously performed by Petitioner were separated between two of LLC's sister companies in California, which handle all of the major equipment, including manufacturing and shipping for LLC. William Geiger is General Manager of LLC. According to Mr. Geiger, the manufacturing of the product was shifted to two divisions located in California. The primary shipping of the company's product was also shifted to California. This is consistent with Ms. Brammer's testimony. According to Ms. Brammer, a small portion of the shipping duties that had initially been sent to California are now handled by LLC. She estimates that she spends only four to five hours a week on these traffic duties, that Mr. Geiger handles some of these duties, and that "quite a bit" of these traffic duties have been farmed out to a company called Freight Forwarder. LLC employs people in their thirties, forties, fifties, and sixties. There is no competent evidence that LLC used age as a criterion in its determination of who would and who would not be hired for the newly formed company.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 1st day of November, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 1st day of November, 2005.
The Issue Whether Petitioner, Norma J. Nolan, was discriminated against by Respondent, K.D.P., Inc. d/b/a Western Sizzlin Steak House, in violation of the Human Rights Act of 1977, as amended, Section 760.10, Florida Statutes, on the basis of handicap, constituting an unlawful employment practice. Whether Petitioner has established a basis for, or entitlement to, an award of damages if, in fact, the alleged unlawful employment practice occurred.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: K. D. P., Inc., operated a restaurant known as Western Sizzlin Steak House in Bradenton, Florida, which business was established prior to the alleged incident of July 1990. This business has continued in operation to the current time under the same management and with many of the same employees, although the restaurant has subsequently become known as Cattle Company Cafe. The Respondent, K. D. P., Inc., d/b/a Western Sizzlin Steak House, now known as Cattle Company Cafe (KDP), owned by Jack Parrish, has been managed by Kevin Wreford for approximately twelve years. Parrish relies on Wreford for the day-to-day operation of the business, hiring and firing decisions, and supervisory responsibility. The Petitioner was employed from December 1989 through February 1990 by Upjohn Health Care on a part-time basis as a respite worker. While she was physically able to do that job, Petitioner chose to leave that employment as it had little work available for her with that agency and Petitioner wished to work at a location closer to her home. Petitioner applied for employment with KDP by way of written application on August 2, 1990. Petitioner's employment application did not indicate any physical handicap, disability or limitation. Wreford interviewed Petitioner for the position of part-time cashier in early 1991. During the interview, Wreford discussed with the Petitioner the duties of the position for which she had applied. Those duties included taking payment from customers at the cashier's stand, overseeing the salad and sundae bar, checking the women's restroom, cleaning glass in the area of cashier's stand and watching for walkouts (walkouts being customers who walk out without paying for their meals). Petitioner advised Wreford that she was capable of performing these duties but was concerned about her lack of experience in working with cash and making change. Wreford hired Petitioner as a temporary, part-time cashier, and Petitioner began work in that capacity for Respondent on February 3, 1991. Petitioner continued in the employment of the Respondent in the capacity of part-time cashier through July 17, 1991. At the time Petitioner was hired by Respondent on February 3, 1991 there was a large wooden bar stool located behind the counter where the cashier took payments for meals. All cashiers working for the Respondent, including Petitioner, were allowed to sit on this stool at times when they were not waiting on customers (cashiers were required to stand while waiting on customers) or performing other assigned duties as set out in Finding of Fact 6. Sometime around July 1, 1991, Wreford discussed with the cashiers, including Petitioner, his concerns about the cashiers not performing their other assigned duties when they were not waiting on customers. Performing other assigned duties required the cashiers to be away from the cashier's area. At this time, Petitioner made Wreford aware of her knee problem and advised him that she may have difficulty standing for long periods of time. There had been no mention of this problem previously nor had Petitioner experienced any problem with her knee previously. Likewise, Petitioner did not experience any problems with her knee in carrying out her assigned duties during the next two weeks. In fact, both Wreford and Parrish were pleased with Petitioner's performance during this period. On or about July 12, 1991, Parrish's wife who had become involved in the management of the restaurant advised Parrish that the stool needed to be removed from the cashier area because: (a) the stool was showing its wear and tear and was aesthetically unpleasing; (b) the stool was taking up too much room resulting in the cashiers not being able to perform their duties properly, particularly looking for walkouts and; (c) to prevent a certain cashier (not Petitioner) from abusing the privilege of the stool by sitting on the stool for extended periods of time and not performing her other assigned duties. On or about July 12, 1991, Parrish removed the stool from the caahier's area and placed it in his office where it remains today because the stool has a sentimental value in that Parrish used the stool in his first restaurant. On or about July 13, 1991, when Petitioner arrived for work and noticed the stool had been removed she met with Parrish and Wreford and advised them that she could not work without the stool because of her knee. Parrish and Wreford offered to accommodate her problem by allowing Petitioner to sit at a table adjacent to the cashier area when she was not waiting on customers or performing her other assigned duties. Petitioner advised Parrish and Wreford that she could not work under those conditions but that she would stay on until a replacement was found. Parrish and Wreford accepted Petitioner's resignation but encouraged Petitioner to continue her employment until she could determine if the accommodation would be satisfactory. Petitioner continued to work for Respondent until July 17, 1991, and was able to function without any problems with her knee under the accommodations provided by Respondent. However, after Petitioner resigned she never asked to be reinstated even though she was able to function under the accommodations provided by Respondent. Although Petitioner alleged that she had a physical disability/handicap because of problems she had related to an alleged right knee replacement done some years earlier, there was no medical evidence or other documentation establishing any physical handicap or restrictions/limitations in her ability to work. There were other cashiers employed by Respondent who had conditions similar to Petitioner's conditions who were able to function with the same accommodation offered Petitioner. One of those was the person hired by Respondent to take Petitioner's position. Petitioner collected unemployment compensation after leaving Respondent's employment, as well as other forms of assistance, such as food stamps and housing assistance. Additionally, after leaving Respondent's employment Petitioner developed "female problems" and is not seeking employment even though she attended computer school. There was no evidence as to the amount of damages suffered by Petitioner. There is insufficient evidence to establish facts to show that Petitioner was discriminated against on the basis of a handicap by Respondent or that any unlawful employment practice occurred. There is competent substantial evidence in the record to establish facts to show that there were legitimate, nondiscriminatory business reasons for the action taken by Respondent in removing the stool and providing other accommodations for the cashiers, including Petitioner. There was insufficient evidence to establish facts to show that the Respondent's articulated reasons for its action were pretextual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a Final Order finding that the Petitioner, Norma J. Nolan, was not discharged due to her handicap in violation of Section 760.10, Florida Statutes, and that the Petition For Relief be dismissed. RECOMMENDED this 8th day of June, 1993, at Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3903 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. 1. Proposed Findings of Fact 1 through 13 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial or a restatement of testimony rather than presented as a finding of fact. Respondent's Proposed Findings of Fact. 1. Proposed Findings of Fact 1 through 32 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial or a restatement of testimony rather than presented as a finding of fact. COPIES FURNISHED: Norma J. Nolan, Pro Se 1109 Harvard Avenue Bradenton, Florida 34207 Donna L. Derfoot, Esquire Post Office Box 3979 Sarasota, Florida 34230 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahasse, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent, Cracker Barrel Old Country Store (Respondent), committed the unlawful employment practice, as alleged, in the Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner, Reza Mahallaty (Petitioner), be granted.
Findings Of Fact Petitioner did not testify in this case. Based upon the undisputed testimony of the witnesses, Petitioner was employed by Respondent and served as a senior assistant manager (SAM). At all times material to the allegations of the case, Respondent employed Petitioner. As a nationally recognized purveyor of food and goods to the public, Respondent presumably employs more than 15 employees. At all times material to this matter, Respondent used a management structure at its stores that included managers in training, assistant managers, senior assistant managers, and general managers. Persons seeking to become general managers typically work their way through the ranks and serve as a SAM before promotion to general manager of a store. On or before August 2010, Petitioner sought a position with Respondent as a general manager. He did not get the promotion. Thereafter, he filed the underlying complaint with FCHR. The complaint stated: I have been employed by Cracker Barrel Old Country Store since June 26, 2006. My most recent position is Senior Associate Manager. I hereby allege that I have been discriminated against due to my race and national origin in violation of Title VII of the Civil Rights Acts of 1964. The foregoing allegations were made under penalty of perjury and for purposes of this case have been accepted as to the facts alleged, but not as to the legal conclusion of discrimination. Petitioner presented no evidence as to his race or national origin. Petitioner’s Petition for Relief reiterated his conclusion that he had been discriminated against based upon his claim of being Iranian and of Persian origin. In addition to not having received promotions, Petitioner included complaints about retaliation that were not addressed by the FCHR. As previously indicated, retaliation issues are not part of the determination that was presented for administrative review. With regard to Petitioner’s attempt(s) to be promoted prior to August 2010, Petitioner did not present evidence that he was more qualified than the applicant Respondent chose. Respondent uses an interview process that rates the candidates for general manager by a selection team. The selection team looks at the candidates’ credentials, history with the company, and responses to the interview questions to rate each applicant for the position sought. Petitioner did not present evidence that he had achieved a higher score in the rating process than the applicant chosen. Petitioner did not present evidence that Respondent knew or should have known Petitioner was the best qualified candidate for the position of general manager. Petitioner did not present evidence that Respondent selected a candidate for general manager that had fewer years of employment with the company than Petitioner. Petitioner did not present evidence that any general manager Respondent selected in preference to Petitioner was of a race or national origin that received special deference over Petitioner. Other than Petitioner’s assertion that he must have been denied promotional opportunities due to his race and national origin, Petitioner failed to establish bias on Respondent’s part. To the contrary, Respondent asserted that Petitioner was not qualified to be a general manager because he was unwilling to master and fully support the company’s core operating systems, the company’s philosophies, and the company’s initiatives. Petitioner presented no credible evidence to refute Respondent’s assertion.
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 finding no cause for an unlawful employment practice as alleged by Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 10th day of April, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 10th day of April, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Shane T. Munoz, Esquire Ford and Harrison, LLP 101 East Kennedy Boulevard, Suite 900 Tampa, Florida 33602 Reza Mahallaty 656 English Lake Drive Winter Garden, Florida 34787 Larry Kranert, General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue in the case is whether Respondent unlawfully discriminated against Petitioner by terminating her employment in violation of the Age Discrimination Employment Act.
Findings Of Fact Lombardi started her employment as a judicial assistant with Dade County in 1971. Judge Mattie Belle Davis was the first judge who hired Petitioner. Judicial Assistants serve at the pleasure of the appointing Judge.1 Judge Bruce Levy hired Lombardi as his judicial assistant after Judge Davis retired. In December 2004, Judge Levy lost his re-election bid and Petitioner no longer had a full-time position as a judicial assistant with a judge. Lombardi started working in the temporary pool of judicial assistants. The position allowed Petitioner to retain her benefits while seeking a permanent judicial assistant position. While serving in the pool, Petitioner worked for Judge Leon Firtel from February 14, 2005, through February 28, 2006, before he let her go. Petitioner then worked for Judge Rosa Rodriguez from April 1, 2006, through May 23, 2007, until she let her go. Petitioner last worked for Dade County when she served as retired Judge Roger Silver's ("Silver") judicial assistant from September 1, 2007, until January 7, 2008. Lombardi was terminated in Silver's chambers with a bailiff and Ms. Suarez from Human Resources present. Silver informed the Petitioner her services were no longer needed and he was letting her go. Petitioner questioned why she was being terminated; however, Silver did not provide an explanation. Silver terminated Petitioner because he was not happy with her work performance. Silver testified that Petitioner had the following problems regarding her work: taking lunch breaks beyond the one hour he had discussed with her; numerous complaints from attorneys; selling Avon at the work place; not answering the phones and allowing calls to go to voicemail; and repeatedly setting unnecessary hearings on the docket. Prior to terminating Lombardi, Silver inquired with Human Resources about a replacement and was informed that he could not be assured that he would be able to get a temporary assistant to replace Lombardi due to the unavailability of funding. He still choose to terminate Petitioner because, "[he] felt having no one was better than what [he] had under the circumstances." Petitioner was not able to go back in the "temporary pool" of judicial assistants as she had in the past after Silver terminated her. In 2008, the Eleventh Judicial Circuit had a hiring freeze whereby the temporary pool was no longer funded. Human Resources eventually sent Elizabeth Gonzalez, whose date of birth is May 26, 1965, to Silver as a temporary judicial assistant. Silver had never met Gonzalez prior to her coming to work for him. There was no discussion of age when Silver requested a judicial assistant or when Gonzalez was assigned to him. Gonzalez served as Silver's temporary judicial assistant for a number of weeks and, when personnel advised him he could hire someone, including Gonzalez, Silver hired Gonzalez on or about March 10, 2008, because he was pleased with her work. Gonzalez worked with him until his retirement in December 2008. At the time when Petitioner filed her Charge of Discrimination, Petitioner was unaware of the exact age of her replacement. Petitioner's date of birth is May 18, 1948.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 30th day of November, 2009, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 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, 2009.
The Issue In two separate Petitions For Relief From An Unlawful Employment Practice, Petitioner, George F. Carter, alleges that Respondent, State of Florida, Department of Environmental Regulation (DER), discriminated against Petitioner on the basis of his age and as retaliation for his previous filing of a complaint alleging age discrimination by DER. Petitioner alleges that as a result of the discrimination and retaliation, Petitioner was not chosen for various positions for which he applied and was given performance evaluations lower than he deserved. DER's position is that there are legitimate, non- discriminatory reasons for the actions Petitioner complains of, and that these reasons are not pretextual.
Findings Of Fact Based on the testimony of the witnesses at hearing, on the exhibits received in evidence, and on the stipulations of the parties, I make the following findings of fact. Findings based on stipulations Petitioner, George R. Carter, is an-employee of DER in the Northeast District Office in Jacksonville, Florida. Petitioner became an employee of DER after its creation in 1975. He was first employed as a Field Inspector (Position No. 0532). He was previously employed by the Board of Trustees of the Internal Improvement Trust Fund and by the Department of Agriculture. On January 3, 1977, Petitioner took a voluntary demotion (deleting lead worker status) to transfer from the Gainesville office to the Jacksonville Office (Position No. 0097). On June 15, 1977, Petitioner was promoted to an Environmental Specialist I position (0097) when his Pollution Control Specialist position was deleted. On May 16, 1980, Petitioner was promoted to an Environmental Specialist II position (No. 0532). At that time Petitioner was given a 10% salary increase. On March 1, 1982, Environmental Specialist II positions were reclassified by the Legislature as Environmental Specialist I. Petitioner was placed into the new class and given a salary increase. On October 21, 1982, Petitioner received a written reprimand for taking unauthorized leave. On July 1, 1985, Petitioner was voluntarily assigned to another ESI position (00597) in Jacksonville. On February 20, 1986, Petitioner was voluntarily reassigned to another ESI position (00524) in Jacksonville. The rest of the findings Petitioner was born February 1, 1915. On January 11, 1980, Petitioner filed a complaint with the Florida. Commission on Human Relations in which he asserted that DER had discriminated against him because of his age. On August 2, 1982, Petitioner filed a complaint with the Florida Commission on Human Relations in which he asserted that DER had discriminated against him because of his complaint of January 11, 1980. On October 19, 1976, Petitioner received a written reprimand for: (1) falsification of timekeeping records, (2) unauthorized use of a state vehicle, and (3) unauthorized leave. Petitioner was suspended without pay April 27 through April 29, 1983, for insubordination. The suspension was upheld by order of the Career Service Commission dated January 7, 1986. Petitioner has appealed the suspension to the Duval County Court. Petitioner's principal claim of age discrimination concerns his non-selection for an Environmental Specialist II position (No. 00354) in Tallahassee in 1978. Petitioner filed a grievance with DER alleging age discrimination. DER investigated the grievance and then dismissed it as unwarranted. The State Personnel Director adopted the DER recommendations and conclusions. Petitioner appealed the State Personnel Director's decision to the Career Service Commission, which assigned the case Docket No. 79-58. By order dated September 21, 1979, the Career Service Commission sustained the decision of the State Personnel Director that Petitioner's complaint of age discrimination was without foundation. In addition to that specific complaint, Petitioner broadly contends that he has been discriminated against because of his age by DER's failure to hire him for a large number of other positions for which he applied, which positions are listed on Petitioner's Exhibit No. 33A. The only basis for this aspect of Petitioner's charge of discrimination is that a younger person was chosen to fill each position. In 1979 Petitioner filed a grievance with DER alleging age discrimination regarding the positions listed in Petitioner's Exhibit No. 33A. DER investigated the charges. The investigation included an examination of interview summaries from twenty-three of the positions for which Petitioner applied. DER concluded that there was no evidence of age discrimination in the selection process. During the course of the investigation Petitioner admitted that age was never mentioned when he was interviewed for the positions. Most of the positions for which Petitioner applied were high level positions which would have involved several steps of promotion for Petitioner. It is unusual for a person in DER to be so quickly promoted without working his way through the ranks. It is a legitimate consideration when hiring a person to look at his pattern of application for positions. If a person applied for a broad range of positions without an apparent sincere interest, that would weigh negatively against the indiscriminate applicant. The positions for which Petitioner applied were in widely varied fields, e.g., hazardous waste, solid waste, dredge and fill, potable water, groundwater, coastal zone management, limnology, noise control, domestic and industrial wastewater, water analysis, water resources restoration, grant coordination, enforcement, and quality assurance. DER could have legitimately concluded that Petitioner was indiscriminately applying for positions and weighed this against Petitioner when making its selection decisions. Petitioner claims to have a Ph.D. degree in Biology from Pacific Southern University in Seattle, granted in 1976 while Petitioner was employed by DER in Gainesville, Florida. Petitioner's applications formerly listed a Ph.D. and Petitioner attached a copy of his supposed degree. Petitioner's current resume does not include a copy of his degree and notes that PSU is unaccredited. Searches by DER in 1977 and 1978 were unable to confirm the existence of PSU. The address listed on Petitioner's transcript was at the time of the search occupied by Marcia's Steno and Message Center. According to Petitioner, after discovering that PSU was unaccredited, Petitioner changed his resume to reflect that fact. Falsification or misrepresentation of credentials on an employment application can properly be a negative consideration when making a personnel decision. DER could have appropriately used this information in deciding to not promote Petitioner. An employee's history of adherence to established policies and procedures is a valid consideration when making personnel decisions. DER could reasonably have considered Petitioner's disciplinary history when making personnel decisions concerning Petitioner. Petitioner's disciplinary history would be particularly relevant to the supervisory positions he sought. Since 1980 the Petitioner has received the following performance evaluation ratings: September 1, 1980 to August 31, 1981: 6.86 September 1, 1981 to August 31, 1982: 5.6 August 31, 1982 to July 14, 1983: 4.14 July 14, 1983 to September 1, 1983: 4.93 September 1, 1983 to August 31, 1984: 5.1 September 1, 1984 to June 30, 1985: 6.0 Petitioner was rated by the same supervisor, Jeremy Tyler, from 1980 through 1985. Mr. Tyler explained that Petitioner's initial evaluation was fairly high because he had not known Petitioner for a long time and had not had a good opportunity to appraise his work. Mr. Tyler explained that he lowered Petitioner's ratings in subsequent evaluations so that they accurately reflected Petitioner's performance in relation to his co-workers. This method of rating Petitioner was in accord with a memorandum from the Secretary of DER in 1981 requiring that performance evaluations be fair and accurate, and that outstanding evaluations be given only in instances of truly outstanding work. Petitioner has been a good employee and has done acceptable work, but he has not been an outstanding employee. Petitioner's performance evaluations accurately reflect his performance. All of Petitioner's evaluations fall into the satisfactory or above satisfactory categories, (or, for the 1985 evaluation, the "achieves performance standards" category) except for the special evaluation of 4.14 which was triggered by the incident of insubordination which led to Petitioner's suspension. DER's Internal Management Policies and Procedures Manual explains that "Achieves Performance Standards" means "fully satisfactory performance or 'a job well done.'" The policy manual recognizes that the majority of the workforce should receive this rating. Some employees in similar positions did less work than Petitioner or performed their work in a less timely manner than Petitioner, but had performance ratings higher than Petitioner. This was because Petitioner's supervisor attempted to evaluate his employees relative to each other based on their total performance, not on just one facet of their performance. While some employees performed fewer inspections than Petitioner, their inspections were more complex and demanded more time. While some employees were habitually late with their inspection reports, the high quality of their reports compensated for their untimeliness and the reports were never so late as to prejudice DER. With each employee's performance taken as a whole, Petitioner's performance evaluations were fair and accurate. Petitioner is openly disdainful of authority. He frequently questions the decisions and policy choices of his supervisor and even of the Secretary of DER. In the incident that led to Petitioner's suspension for insubordination, Petitioner admitted that he wrote a letter (stating that DER would not allow development on a piece of property) in order to help a private individual escape a contract which Petitioner determined was fraudulent. Such a letter was not authorized by Petitioner's superiors, but Petitioner wrote it because he felt that it was the proper thing to do. Petitioner will frequently independently evaluate a situation and do what he believes is right, regardless of whether such action is authorized or in accordance with agency policy. Additionally, Petitioner claims, with sincerity. that he is an expert in a multitude of fields, although his claims of expertise have not been borne out by his performance or the observations of his superiors. Petitioner's broad claims of expertise reduce his credibility when he is being considered for positions, even when Petitioner actually may be competent in the subject matter of the position under consideration. Further, Petitioner is overly considerate of the needs and desires of the public, bending and breaking the rules as he feels is appropriate in order to aid members of the public seeking permits from DER. Petitioner does not apologize for his unauthorized and improper actions (such as doing construction drawings for applicants or requesting information by telephone instead of in Writing as required by DER rules); rather, Petitioner takes pride in helping citizens avoid the bureaucratic "red tape." DER has not discriminated against Petitioner on the basis of his age, nor has DER retaliated against Petitioner because of his having filed a discrimination charge against DER. DER has had legitimate, non-discriminatory reasons for denying promotions to Petitioner, and those reasons have not been pretextual. Petitioner's performance evaluation ratings have been fair and do not reflect discrimination or retaliation against Petitioner in any way.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing both of the Petitions For Relief filed by George F. Carter. DONE AND ORDERED this 12th day of May, 1986, at Tallahassee, Florida. 4 MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1986. COPIES FURNISHED: Mr. George F. Carter Post Office Box 17949 Jacksonville, Florida 32216 Paul R. Ezatoff, Esquire Deputy General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Donald A. Griffin, Executive Director Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee, Florida 32303 Dana Baird, Esquire Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee, Florida 32303 Ms. Betsy Howard, Clerk Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee, Florida 32303 APPENDIX The following are my specific rulings on the proposed findings of fact contained in the post-hearing submissions of the parties. Rulings on Petitioner's proposed findings Petitioner's post-hearing document titled Suggested Stipulations For Settlement does not contain any proposed findings of fact. Accordingly, no specific rulings on proposed findings of fact are addressed to that document. Petitioner's post-hearing document titled Summary Of Appellant's Presentation contains a mixture of Petitioner's factual contentions, legal contentions, conclusions, and arguments, all of which are substantially intertwined. A large number of Petitioner's comments in the subject document are irrelevant to the issues to be decided in these consolidated cases. Similarly, much of what is included in Petitioner's post- hearing summary consists of subordinate details and unwarranted conclusions. Addressing first the top half of the first page of the summary, the factual contentions in the first three numbered paragraphs are rejected as contrary to the greater weight of the evidence and as in large part not supported by competent substantial evidence. The unnumbered paragraph addressing low morale is rejected for several reasons, including being irrelevant to the issues in this case and not supported by competent substantial evidence. With regard to the contentions at the bottom half of page one and at the top of page two to the effect that Petitioner is an "outstanding employee," the greater weight of the evidence supports a finding that Petitioner is on the whole a good employee or a satisfactory employee, but not an outstanding employee. While Petitioner certainly has some outstanding qualities, he has also displayed characteristics which detract from his job performance. Some of these characteristics are summarized in DER Exhibit No. 11. Other characteristics which contraindicate classification of Petitioner as an outstanding employee are reflected in the incidents described in the findings of fact which led to disciplinary action against Petitioner. With regard to the contentions on page two of Petitioner's summary to the effect that his evaluation was unjust, the following are my specific rulings on each of the paragraphs related to that topic. Paragraph number one is rejected because it is in part inconsistent with the greater weight of the evidence. Further it fails to take into account the quality of work, which is a major factor in evaluations. Paragraphs number two, three, four and five are rejected because they are for the most part irrelevant. They contain inferences not warranted by the evidence and are not supported by persuasive competent substantial evidence. The unnumbered paragraph at the bottom of page two is rejected as constituting argument rather than proposed findings, as not supported by competent substantial evidence, and as constituting inferences not supported by the evidence. With regard to the contentions on pages three and four of Petitioner's summary on the subject of the alleged pattern of harassment, discrimination, reprimand, and reprisal, the following are my specific rulings on each of the paragraphs related to that topic. Paragraph number one is rejected as not supported by persuasive competent substantial evidence. Paragraph number two is rejected as not supported by competent substantial evidence. Paragraph number three is rejected as not supported by competent substantial evidence. Paragraph number four is accepted in part and rejected in part. The first sentence is accepted. The second sentence is rejected as irrelevant and as not supported by competent substantial evidence. Paragraphs number five and six are rejected as irrelevant, as not supported by competent substantial evidence, and as inconsistent with the greater weight of the evidence. Paragraph number seven is rejected as not supported by competent substantial evidence. The top two unnumbered paragraphs on page four are rejected as contrary to the greater weight of the evidence. Paragraph number six at the top of page four is accepted. With regard to the contentions on page four of Petitioner's summary under the caption "REPRISALS," the following are my specific rulings on each of the paragraphs related to that topic. The first unnumbered paragraph under the subject caption is rejected as not supported by competent substantial evidence. Paragraph number one is rejected as subordinate and as irrelevant in light of other more persuasive evidence as to why Petitioner was not promoted or given higher evaluations. Paragraph number two is rejected because it consists of conclusions not warranted by the evidence, is not supported by persuasive competent substantial evidence, and is for the most part irrelevant to the issues in this case. With regard to the contentions on page four and five of Petitioner's summary under the caption "DISCRIMINATION," the following are my specific rulings on each of the paragraphs related to that topic. The first unnumbered paragraph under the subject caption is rejected because the first sentence is irrelevant standing alone and the second sentence is not supported by competent substantial evidence and incorporates inferences not warranted by the evidence. Paragraph number one is accepted in part and rejected in part. The substance of the first two sentences is accepted. The last three sentences are rejected as irrelevant in light of other evidence in the record. Paragraphs number two, three, and four are rejected as irrelevant in light of other evidence in the record. Paragraph number five is rejected because it includes conclusions not warranted by the evidence and is not supported by persuasive competent substantial evidence. Paragraph number six is rejected as irrelevant in light of other evidence in the record. The paragraphs on pages five and six under the caption "PROTEST AND SUGGESTION ON HANDLING OF GRIEVANCES" do not constitute proposed findings of fact. Rulings on Respondent's proposed findings Paragraphs 1 through 11 of Respondent's proposed findings are accepted. Paragraph 12 is rejected because it is a discussion of the issues rather than a proposed finding of fact. Paragraphs 13, 14, 15, 16, and 17 of Respondent's proposed findings are accepted. Paragraph 18 is for the most part rejected as redundant or as constituting argument rather than proposed findings. The substance of paragraphs 19, 20, and 21 is accepted. Paragraph 22 is rejected because it is a discussion of the issues rather than a proposed finding of fact. The substance of paragraphs 23, 24, and 25 is accepted with the exception of certain gratuitous editorial comments.
The Issue Whether Respondent is liable to Petitioner for employment discrimination in violation of section 760.10, Florida Statutes (2018).1/
Findings Of Fact Petitioner is a 63-year-old female, who was employed by Respondent in its Child Support Program in the Tallahassee Service Center from June 9, 1997, to April 5, 2010. In 1997, Petitioner became employed as a Revenue Specialist II (“RS II”) in the Payment Processing and Funds Distribution (“PPFD”) section, where she performed financial reviews and audits of client financial accounts. On January 28, 2005, Petitioner was promoted to RS III in that section, where Petitioner continued to perform financial reviews and audits, and assumed supervisory duties, including interviewing candidates and training new employees. In that position, Petitioner was considered a PPFD team expert. At her request to “learn something new,” Petitioner was transferred to the Administrative Support section in April 2009. She was assigned half-time to the Administrative Paternity and Support (“APS”) team, and half-time to support the PPFD team. The split-time arrangement was terminated in July 2009, and Petitioner was assigned to APS full-time. On December 7, 2009, Petitioner received her first performance evaluation for her new position. The evaluation covered the time period from April 17, 2009, to January 29, 2010.2/ Petitioner’s supervisor, Katherine Osborne, rated Petitioner’s overall performance at 2.11. Petitioner was placed on a Corrective Action Plan (“CAP”) concurrent with her December 7, 2009 performance evaluation. The CAP period ended on February 8, 2010. On February 16, 2010, Petitioner was notified, in writing, that the Department intended to demote her to the position of RS II because she did not successfully complete the expectations during the CAP period, or “failed the CAP.” Petitioner exercised her right to an informal hearing to oppose the intended demotion. On March 2, 2010, Petitioner was notified, in writing, that she was being demoted to the position of RS II because she failed the CAP. Petitioner resigned from her position with the Department, effective April 5, 2010. On September 15, 2010, Petitioner filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), challenging her demotion as illegal employment discrimination. On February 12, 2011, the EEOC issued its determination, stating that it was “unable to conclude that the information obtained establishes violations of the [requisite] statutes.” Petitioner’s 2017 Applications On August 16, 2017, the Department advertised 20 openings for an RS III (position 4372) in customer service administration. Petitioner applied for the position, met the screening criteria, took and passed the skills verification test, and was interviewed for the position. Petitioner was interviewed by a selection committee composed of Tiffany Clarke, Janeen Evans, and Jonathan McCabe. Each of the three committee members rated Petitioner’s interview as “fair” on a scale which ranged from “poor,” “fair,” and “good,” to “excellent.” Petitioner was not considered for the position following her interview. While the Department made some offers to candidates, ultimately the Department did not hire any candidates for position 4372. On October 2, 2017, the Department advertised 30 openings for an RS III (position 6380) in customer service administration. The main difference between the screening criteria for positions 4372 and 6380 was in education and experience. Position 4372 required applicants to have child support experience, while position 6380 gave a preference to applicants with child support experience. The Department’s goal in revising the requirements was to increase the applicant pool in response to the advertisement for position 6380. Petitioner applied for position 6380, met the screening requirements, passed the skills verification test, and was interviewed for the position. Petitioner was interviewed by a selection committee composed of Tiffany Clarke, Lance Swedmark, and Taronza Robinson. All three committee members rated her interview as “good,” and recommended advancing Petitioner’s application for reference checks. Mr. Swedmark conducted reference checks on Petitioner’s application. During that process, he was informed of Petitioner’s prior CAP failure, demotion, and resignation. Based on that information, the selection committee determined Petitioner would not be considered for the position. Hires for Position 6380 The Department hired 30 applicants from the pool for position 6380. Of the 30 hires, 10 were over age 40. Specifically, their ages were 56, 50, 49, 49, 48, 46, 44, 43, 42, and 41. Petitioner was 61 years old when she applied for position 6380. None of the members of the selection committee were aware of Petitioner’s age when she applied, or was interviewed, for the position. The ages of the 30 new hires were compiled from human resources records specifically for the Department’s response to Petitioner’s March 2018 charge of discrimination. None of the members of the selection committee were aware of Petitioner’s 2010 EEOC complaint against the Department.
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 finding that Respondent, Florida Department of Revenue, did not commit any unlawful employment practice as to Petitioner, Jacquelyn James, and dismissing the Petition for Relief filed in FCHR No. 2018-04904. DONE AND ENTERED this 16th day of July, 2019, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 16th day of July, 2019.
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of age for the reasons stated in the Charge of Discrimination and Petition for Relief in violation of Section 760.10(1), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated).
Findings Of Fact In the summer of 1997, Respondent advertised several employment positions. The advertised positions included a position for Corporate Training Representative and a position for Coordinator of Continuing Education. The advertisement informed potential applicants of the minimum qualifications; the knowledge, abilities, and skills associated with each position; and the application deadline for each position. Petitioner was one of approximately 65 candidates who applied for the position of Corporate Training Representative. Petitioner was also one of 85 candidates who applied for the position of Coordinator of Continuing Education. Petitioner was over age 40 at the time he applied for both positions. Petitioner's application, like the application of each candidate, included an application supplement. The application supplement identified the applicant's gender, ethnic origin, birth date, and included a statement of how the candidate learned of the open position. Respondent uses application supplements to collect data needed to respond to inquiries from the Commission, the U.S. Equal Employment Opportunity Commission, the Veterans Administration, and the U.S. Department of Labor. Respondent directs completed applications to Respondent's Human Resources office. The Human Resources office separates the application supplement attached to each application, files the application supplement in a separate location, and forwards each application to the selection committee responsible for filling the position to which the application pertains. After, the position is filled, the Human Resources office re-attaches the application to the application supplement and retains the documents in data files maintained by the Human Resources office. The selection committee, responsible for reviewing the applications submitted for the two positions sought by Petitioner, was comprised of four members. The selection committee reviewed each application, selected candidates for interview, and recommended those candidates the committee determined to be best suited for the position. In selecting candidates for interview, the selection committee reviewed only the application of each candidate. The selection committee did not have access to any of the application supplements. The application supplements originally attached to the applications had been previously separated by the Human Resources office and retained in separate files in the Human Resources office. No one on the selection committee considered the age of an applicant, including Petitioner, when selecting a candidate for interview. The selection committee did not select Petitioner for an interview. The selection committee selected for an interview only eight of the 65 applicants for the position of Corporate Training Representative and only eight of the 85 applicants for the position of Coordinator of Continuing Education. Six of the eight applicants selected for interview for the position of Corporate Training Representative were over 40 years of age at the time they applied. Three of those applicants were aged 50 or older. Four of the eight applicants selected for interview for the position of Coordinator of Continuing Education were aged 40 or older. The applicant ultimately hired was in her mid-forties at the time. No employee or representative of Respondent made any derogatory comments about Petitioner's age. No member of the selection committee discussed the age of any applicant. Petitioner admits that had he been selected for an interview he might not have been selected as the successful candidate.
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2008),1 by discriminating against Petitioner based on her color and/or her age.
Findings Of Fact The Town is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner was hired by the Town in November 2004 as an administrative assistant to Mayor Anthony Grant. Petitioner is a dark-skinned African-American woman who was 51 years of age at the time of the hearing. Petitioner was interviewed and hired by a committee appointed by Mayor Grant. The committee included town clerk Cathlene Williams, public works director Roger Dixon, and then- chief administrative officer Dr. Ruth Barnes. Mayor Grant did not meet Petitioner until the day she started work as his administrative assistant. The mayor's administrative assistant handles correspondence, filing, appointments, and anything else the mayor requires in the day-to-day operations of his office. For more than two years, Petitioner went about her duties without incident. She never received a formal evaluation, but no testimony or documentary evidence was entered to suggest that her job performance was ever less than acceptable during this period. In about August 2007, Petitioner began to notice a difference in Mayor Grant's attitude towards her. The mayor began screaming at her at the top of his lungs, cursing at her. He was relentlessly critical of her job performance, accusing her of not completing assigned tasks. Petitioner conceded that she would "challenge" Mayor Grant when he was out of line or requested her to do something beyond her job description. She denied being disrespectful or confrontational, but agreed that she was not always as deferential as Mayor Grant preferred. During the same time period, roughly July and August 2007, Petitioner also noticed that resumes were being faxed to the Town Hall that appeared to be for her job. She asked Ms. Williams about the resumes, but Ms. Williams stated she knew nothing and told Petitioner to ask the mayor. When Petitioner questioned the mayor about the resumes, he took her into his office and asked her to do him a favor. He asked if she would work across the street in the post office for a couple of weeks, to fill in for a post office employee who was being transferred to the finance department; as a team player, Petitioner agreed to the move. While she was working as a clerk at the post office, Petitioner learned that the mayor was interviewing people for her administrative assistant position. She filed a formal complaint with the Town. For a time after that, she was forced to work half-time at the post office and half-time in the mayor's office. On or about October 22, 2007, Petitioner was formally transferred from her position as administrative assistant to the mayor to the position of postal clerk in the post office. Her salary and benefits remained the same. At the hearing, Mayor Grant testified that he moved Petitioner to the post office to lessen the stress of her job. Based on his conversations with Petitioner, he understood that Petitioner was having personal or family problems. He was not privy to the details of these problems, but had noticed for some time that Petitioner seemed to be under great stress. The post office was a much less hectic environment than the mayor's office, and would be more amenable to her condition. Ms. Williams, the town clerk, testified that the mayor told her that Petitioner was stressed and needed more lax duties than those she performed in the mayor's office. Mr. Dixon, the public works director, testified that Petitioner had indicated to him that she was under pressure, but she did not disclose the cause of that pressure. He recalled that, toward the end of her employment with the Town, Petitioner mentioned that she felt she was being discriminated against because of her skin color. Petitioner denied ever telling Mayor Grant that she was feeling stressed. She denied telling him anything about her family. Petitioner stated that the only stress she felt was caused by the disrespect and humiliation heaped upon her by Mayor Grant. Petitioner's best friend, Gina King Brooks, a business owner in the Town, testified that Petitioner would come to her store in tears over her treatment by the mayor. Petitioner told Ms. Brooks that she was being transferred to the post office against her will, was being forced to train her own replacement in the mayor's office,3 and believed that it was all because of her age and complexion. Mayor Grant testified that he called Petitioner into his office and informed her of the transfer to the post office. He did not tell her that the move was temporary. He did not view the transfer from administrative assistant to postal clerk as a demotion or involving any loss of status. Mayor Grant testified that an additional reason for the change was that he wanted a more qualified person as his administrative assistant. He acknowledged that Petitioner was actually more experienced than her eventual replacement, Jacqueline Cockerham.4 However, Petitioner's personal issues were affecting her ability to meet the sensitive deadlines placed upon her in the mayor's office. The mayor needed more reliable support in his office, and Petitioner needed a less stressful work environment. Therefore, Mayor Grant believed the move would benefit everyone involved. Mayor Grant denied that Petitioner's skin color or age had anything to do with her transfer to the post office. Petitioner was replaced in her administrative assistant position by Ms. Cockerham, a light-skinned African- American woman born on October 17, 1961. She was 46 years of age at the time of the hearing. Documents introduced by the Town at the hearing indicate the decision to hire Ms. Cockerham was made on March 26, 2008. Ms. Williams testified that she conducted the interview of Ms. Cockerham, along with a special assistant to the mayor, Kevin Bodley, who no longer works for the Town. Both Ms. Williams and Mayor Grant testified that the mayor did not meet Ms. Cockerham until the day she began work in his office. Petitioner testified that she knew the mayor had met Ms. Cockerham before she was hired by the Town, because Mayor Grant had instructed Petitioner to set up a meeting with Ms. Cockerham while Petitioner was still working in the mayor's office. Mayor Grant flatly denied having any knowledge of Ms. Cockerham prior to the time of her hiring. On this point, Mayor Grant's testimony, as supported by that of Ms. Williams, is credited. To support her allegation that Mayor Grant preferred employees with light skin, Petitioner cited his preferential treatment of an employee named Cherone Fort. Petitioner claimed that Mayor Grant required her to make a wake-up call to Ms. Fort every morning, because Ms. Fort had problems getting to work on time. Ms. Fort was a light-skinned African-American woman. Under cross-examination, Petitioner conceded that Mayor Grant and Ms. Fort were friends, and that his favoritism toward her may have had nothing to do with her skin color. Petitioner claimed that there were other examples of the mayor's "color struck" favoritism toward lighter-skinned employees, but she declined to provide specifics.5 She admitted that several dark-skinned persons worked for the Town, but countered that those persons do not work in close proximity to the mayor. As to her age discrimination claim, Petitioner testified that a persistent theme of her conversations with Mayor Grant was his general desire for a younger staff, because younger people were fresher and more creative. The mayor's expressed preference was always a concern to Petitioner. Petitioner testified that she felt degraded, demeaned and humiliated by the transfer to the post office. She has worked as an executive assistant for her entire professional career, including positions for the city manager of Gainesville and the head of pediatric genetics at the University of Florida. She believed herself unsuited to a clerical position in the post office, and viewed her transfer as punitive. In April 2008, Petitioner was transferred from the post office to a position as assistant to the town planner. Within days of this second transfer, Petitioner resigned her position as an employee of the Town. At the time of her resignation, Petitioner was being paid $15.23 per hour. Petitioner is now working for Rollins College in a position she feels is more suitable to her skills. She makes about $14.00 per hour. The greater weight of the evidence establishes that there was a personality conflict between Petitioner and Mayor Grant. Neither Petitioner nor Mayor Grant was especially forthcoming regarding the details of their working relationship, especially the cause of the friction that developed in August 2007. Neither witness was entirely credible in describing the other's actions or motivations. No other witness corroborated Petitioner's claims that Mayor Grant ranted, yelled, and was "very, very nasty" in his dealings with Petitioner.6 No other witness corroborated Mayor Grant's claim that Petitioner was under stress due to some unnamed family situation. The working relationship between Mayor Grant and Petitioner was certainly volatile, but the evidence is insufficient to permit more than speculation as to the cause of that volatility. The greater weight of the evidence establishes that, due to this personality conflict, Mayor Grant wanted Petitioner transferred out of his office. He may even have used the subterfuge of a "temporary" transfer to exact Petitioner's compliance with the move. However, the purpose of this proceeding is not to pass judgment on Mayor Grant's honesty or skills as an administrator. Aside from Petitioner's suspicions, there is no solid evidence that Mayor Grant was motivated by anything other than a desire to have his office run more smoothly and efficiently. Petitioner's assertion that the mayor's preference for lighter-skinned employees was common knowledge cannot be credited without evidentiary support. Petitioner's age discrimination claim is supported only by Petitioner's recollection of conversations with Mayor Grant in which he expressed a general desire for a younger, fresher, more creative staff. Given that both Petitioner and Ms. Cockerham were experienced, middle-aged professionals, and given that Mayor Grant had nothing to do with the hiring of either employee, the five-year age difference between them does not constitute evidence of discrimination on the part of the mayor or the Town. Petitioner was not discharged from employment. Though Petitioner perceived it as a demotion, the transfer to the post office was a lateral transfer within the Town's employment hierarchy. Petitioner was paid the same salary and received the same benefits she received as an administrative assistant to the mayor. A reasonably objective observer would not consider working as a clerk in a post office to be demeaning or degrading.
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 finding that the Town of Eatonville did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 17th day of February, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 2009.
