The Issue Whether Respondent discriminated against Petitioner on the basis of her gender, age, and race as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts were established by clear and convincing evidence: Petitioner is a 49-year-old, African-American female. Petitioner was hired as a customer service representative at Respondent's Maitland, Florida, location on June 3, 2002. Petitioner received a copy of NuVox’ Employee Handbook, which addressed Respondent's anti-discrimination policies, as well as its policies regarding employee conduct, attendance, paid time off, and termination. Respondent provides voice and data communications services to businesses. On or about August 24, 2009, Petitioner was discharged from her employment with Respondent. Arleen Couvertier was Petitioner's supervisor between January 30, 2009, and May 2009. On February 20, 2009, Petitioner received a verbal warning for violating a policy regarding breaks, when she left for a break during a team meeting. Petitioner was informed that failure to comply with the expectations stated in the warning could result in further disciplinary action up to, and including, immediate termination. On April 8, 2009, Petitioner asked to have May 13, 2009, off as she had been subpoenaed to be in court. Petitioner was advised that she would not have enough paid time off to cover an absence on May 13, 2009, as she had already been approved for a three-day vacation at the end of May into early June, which would put her time off balance at an unacceptable negative 15 hours. Respondent suggested that Petitioner reduce her planned vacation by one day in May so the requested May 13, 2009, time off could be approved. Petitioner was reminded that if she kept her vacation hours, the May 13, 2009, court day would be an unplanned absence, which would result in an unpaid occurrence in accordance with Respondent's policies. Petitioner did not rearrange her vacation schedule and took May 13, 2009, off as an unapproved, unpaid absence, thus, earning an attendance occurrence. On May 11, 2009, Katylyn Weems became Petitioner’s supervisor. In May and June, Petitioner did not meet her performance goals. Petitioner's supervisor reviewed her performance statistics with Petitioner and suggested ways that she could improve. On July 30, 2009, Petitioner received a verbal warning from Ms. Weems, which was witnessed by her former supervisor, Ms. Couvertier, for an attitude problem that was borderline insubordinate, because Petitioner failed to acknowledge or respond to three different managers’ in-person, email, and instant message communications on July 29, 2009. Ms. Couvertier felt that Petitioner’s body language, her failure to answer a question asked from three feet away, and subsequent failure to turn away from her computer to answer the same question asked by Ms. Couvertier directly to Petitioner, was insubordination. On August 6, 2009, Petitioner was placed on a Final Written Warning for poor performance. In addition to her low work quality scores in May (45 percent) and June (54 percent), Petitioner scored equally as low in July (49 percent), compared to her goal of 85 percent through August. Petitioner was informed that she had to show significant performance improvement in 11 specific areas, including, but not limited to, continue to be on time at the start of the shift. Petitioner was told that she was expected to show immediate and sustained improvement in her performance and that failure to comply with the expectations in the final warning could result in further disciplinary action up to, and including, immediate termination. On August 10, 2009, Petitioner asked her supervisor to allow her to take Thursday, August 20, 2009, off from work. Ms. Weems denied her request, explaining that she had previously approved Petitioner’s request to take off Monday, August 24, 2009, and Wednesday, August 26, 2009, which was going to create a negative 13-hour balance and, therefore, she could not approve any greater negative time off balance. On August 20, 2009, Petitioner left a message for Ms. Weems that she would not be in that day because she had an appointment, which was later repeated by email. Petitioner did not appear for work on August 20, 2009. Ms. Weems sent an email to Petitioner informing her that she had earned a third unpaid occurrence for her August 20, 2009, absence without paid time off available, along with information about her two other occurrences. Ms. Weems also informed Petitioner that her day off on August 24, 2009, was no longer approved due to her lack of paid time off. On Friday, August 21, 2009, Petitioner called in to say she would not be in to work. Ms. Weems verbally informed Petitioner on the telephone that because she had taken unapproved time off on August 20 and 21, 2009, the approvals for time off on August 24 and 26, 2009, had both been rescinded and the days off would have to be rescheduled as she had no more available paid time off. Knowing that Petitioner had been subpoenaed to appear in court on August 26, 2009, Ms. Weems suggested that she try to come in on August 21, 2009, even arriving late, so that she would still have a paid time off day available to use on August 26, 2009. Petitioner said, “okay” before she ended the call, but did not come in to work at all on August 21, 2009. On August 24, 2009, Ms. Weems reminded Petitioner that her absence on August 20, 2009, was unapproved and that Petitioner had taken that day off anyway, as well as August 21, 2009. Ms Weems further reminded Petitioner that the August 20 and 21, 2009, absences had caused the approvals for time off on August 24 and 26, 2009, to be rescinded as Petitioner had no paid time off and could not have a further exception. In response, Petitioner emailed Ms. Weems, "I understand[,] but I will not be here on the 26th[.] I will be in court." As a result, on the same day, Petitioner was terminated due to insubordination related to her attendance and poor performance. The "insubordination" is related to Petitioner taking both August 20 and 21, 2009, off when she was told that she could not have August 20, 2009, as paid time off. Respondent presented evidence that credibly supports its assertion that its attendance policy was applied equitably without consideration of race, sex, or age.
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 finding that Respondent, NuVox, did not discriminate against Petitioner, Jacquelyn Brown, and dismissing the Petition for Relief. DONE AND ENTERED this 15th day of December, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 15th day of December, 2010.
The Issue Whether the Petitioner, Johnny L. Torrence, was subject to an unlawful employment practice by Respondent, Hendrick Honda Daytona, on account of his race or his age in violation of section 760.10, Florida Statutes.
Findings Of Fact Petitioner, who was at all times relevant to this matter an employee of Respondent, is African-American. There was no direct evidence of Petitioner’s age. However, Petitioner worked at the automobile dealership currently owned by Respondent since October 1987. During Petitioner’s questioning of Mr. Moreford, Petitioner indicated that the two had worked together at the dealership for virtually that entire period, beginning when they were 18 years of age, a statement with which Mr. Moreford appeared to agree. Thus, a reasonable inference can be drawn that Petitioner is more than 40 years of age. Respondent owns and operates an automobile dealership located in Daytona Beach, Florida, having purchased the dealership in September 2011. Respondent is part of a larger group of dealerships, with its corporate offices, including that of its human resources department, located in Charlotte, North Carolina. Respondent employs more than 15 full-time employees at any given time. Petitioner was initially employed by Respondent in October 1987. He worked as a detailer for some period, and more recently was employed as a lot attendant. His duties were generally to greet customers and take vehicle information, and move vehicles from place to place as needed by sales and maintenance personnel. On May 2, 2013, a customer brought his vehicle to Respondent for maintenance. The customer was a former employee of Respondent, and was known by Petitioner. The customer was initially met by an advisor other than Petitioner. The customer asked that his vehicle mileage be listed on the service ticket as 1,000 miles less than its actual mileage.2/ Recording a vehicle’s mileage as anything other than its actual mileage is contrary to Respondent’s policies. Thus, the request was refused. Petitioner was assigned to deliver the customer’s vehicle and paperwork to the service lane. After having his request to reduce the vehicle’s mileage on the service ticket refused, the customer asked Petitioner to do the same. Petitioner complied with the request, scratched through the correct mileage written on the service ticket, and wrote in the lower mileage requested by the customer. Upon delivery of the service ticket to the service lane manager, the scratched- through mileage was noticed. Petitioner was asked whether the mileage he had written on the ticket was correct, to which he replied in the affirmative. The vehicle’s mileage was subsequently confirmed as being 1,000 miles more than that written by Petitioner. Petitioner was called into a meeting by Respondent’s management to explain the situation. Petitioner explained that he only did what the customer wanted him to do -- a variant of “the customer is always right.” As a result of his action, Petitioner was given a written reprimand. Based on the testimony of Mr. Moreford, it was determined that the Employee Counseling Report was a business record as defined in section 90.802(6). In late September 2013, a customer brought her vehicle in to Respondent for two new tires. Her old tires were removed and taken to the dealership’s holding area, at which all used tires are marked for identification and collected for delivery to a used tire recycling facility. Respondent does not allow employees to take used tires from the holding area. After the customer’s new tires were mounted, the customer indicated that she wanted one of her old tires for use as a spare. An employee was sent to the holding area to retrieve one of the tires. Since the tires are marked, there would have been no mistaking them. After a search, the employee was unable to locate the used tires. Several employees, including Petitioner, were asked if they knew the whereabouts of the used tires. Petitioner admitted that his sister needed better tires on her car, and that he had given the customer’s used tires to her. Petitioner was instructed to retrieve the tires and return them so they could be provided to the customer. Petitioner left the premises to retrieve the tires. After having waited a reasonable period of time for Petitioner to return, Respondent was compelled to give the customer a new tire from its inventory for her to use as her spare. After the customer left, Petitioner returned to the dealership with two used tires that were not the ones removed from the customer’s vehicle. On or about October 2, 2013, Petitioner was called into a meeting with the service lane manager, Mr. Sandrowicz, along with Dale Lockwood and Ralph Moreford. Mr. Lockwood and Mr. Moreford had worked at the dealership, under its current and prior owners, for most if not all of the years of Petitioner’s employment. During the meeting, the attendees discussed the incident with the tires, which was a violation of Respondent’s policies. Petitioner stated that a younger Caucasian employee, Brandon Swift, had done the same thing without repercussions. Nonetheless, Mr. Moreford advised Petitioner that he was terminated from employment as a result of the incident. On October 7, 2013, Petitioner was provided with a Separation Report describing the incident and its consequences. Based on the testimony of Mr. Moreford, it was determined that the Separation Report was a business record as defined in section 90.802(6). After the meeting was over, Mr. Swift was asked if he had taken any tires from the used tire holding area. Mr. Swift denied that he had done so. The used tire holding area was searched, and the tires alleged to have been taken by Mr. Swift were located. Petitioner speculated that Mr. Swift may have returned the allegedly purloined tires in time to avoid detection, though there was no support for that supposition. Thus, Mr. Swift is not a useful comparator of any dissimilar disciplinary action based on race or age. Mr. Moreford and Mr. Lockwood testified that Petitioner’s race and age had no bearing on the decision to terminate Petitioner. Rather, they testified credibly that the decision was based solely on the fact that Petitioner had violated company policy after having recently received a written warning for a different violation. Mr. Lockwood knew of no employee other than Petitioner having taken used tires. Petitioner identified no instance of any racially disparaging comments directed at himself or any other employee by anyone affiliated with Respondent. Petitioner identified no instance of any ill-treatment directed at him due to his age. Petitioner identified two instances in addition to that involving Mr. Swift that he believed support his claim of discrimination. For some period of time, “J.D.” was Respondent’s service manager. Petitioner did not like the way J.D. talked to him. On one occasion, J.D. came to the back of the shop area and said all of the employees gathered there were “ignorant and stupid.” The group of employees included three African- Americans and one or two Caucasians. In Petitioner’s view, J.D. was generally unpleasant to everyone. Thus, Petitioner’s testimony supports a finding that J.D.’s disagreeable nature was visited equally on all subordinate employees regardless of race or age. As a second comparator, Petitioner alleged that Respondent’s African-American employees were charged for washing their cars at Respondent’s car wash, while Caucasian employees washed their cars, trucks, boats, and motorcycles free of charge. There was no corroborating evidence for Petitioner’s statement and, standing alone, it is insufficient to support a finding that such occurred. Furthermore, the allegation, even if proven, was not so similar to that forming the basis for the adverse employment action as to provide a useful comparison. Petitioner argued that “it wasn’t right the way they fired me.” He asserted that Respondent should have given him a written warning for the tire incident rather than firing him. While the act of taking two used tires that, but for the customer’s request to keep one as a spare, would have been destined for a recycling facility seems a relatively minor infraction, it was nonetheless a violation of Respondent’s policies. More to the point, regardless of the severity of the infraction and the perceived fairness of the sanction, Respondent’s decision to fire Petitioner was not based on racial animus or age bias. Ultimate Findings of Fact There was no competent, substantial evidence adduced at the hearing to support a finding that the decision to terminate Petitioner from employment was made due to Petitioner’s race or age. Rather, the decision was based on Petitioner’s decision to take two tires from Respondent’s used tire holding area in violation of Respondent’s policies, and his eventual return to the dealership with two tires that were not those taken. There was no competent, substantial evidence adduced at the hearing that persons who were not African-American or were under the age of 40 were treated differently from Petitioner, or were subject to dissimilar personnel policies and practices.
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, Hendrick Honda Daytona, did not commit any unlawful employment practice as to Petitioner, Johnny L. Torrence, and dismissing the Petition for Relief filed in FCHR No. 2014-00303. DONE AND ENTERED this 26th day of February, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 26th day of February, 2015.
The Issue The issue presented is whether Respondent City of Gainesville committed an unlawful employment practice when it terminated Petitioner's employment.
Findings Of Fact Petitioner is a white male. Petitioner's employment as a police officer was terminated by Respondent City of Gainesville on September 17, 2008. On the evening of June 26, 2008, Petitioner was voluntarily working an extra duty assignment at the Super Wal- Mart store on Northeast 12th Avenue in Gainesville. Wal-Mart had been experiencing problems with juveniles entering the store in large groups and causing disturbances and property damage. At approximately 11:15 p.m., Ms. Felicia Stallworth, a black female, pulled into a handicapped-parking space and hung her handicapped-parking decal from her rear-view mirror. She was accompanied by two children: her twelve-year-old son and her seven-year-old niece. At the time, Petitioner, who was in uniform and wearing his badge, was engaged in conversation with the occupants of a vehicle parked in another handicapped-parking space. Stallworth and the children exited her vehicle and began walking to the store's entrance. Because Stallworth was talking on her cell phone while she was walking, she heard Petitioner say something but did not know what he said. She stopped walking and asked him what he wanted. Petitioner rudely and loudly demanded to see her documentation to prove she was entitled to park in a handicapped-parking space. Stallworth complied by walking back to her vehicle, sitting in the driver's seat with the driver's door open, and retrieving her handicapped-parking registration from her glove compartment. While she was doing so, Petitioner, who was standing just outside the car door, was shining a flashlight into her car so that it was shining in her face. She told him several times to move the flashlight because she could not see, but he ignored her and continued to shine it in the same manner. Concerned for the safety of the children who were standing at the back of the car on the passenger side, she instructed the children to get back in the car so as to be out of the path of passing vehicles. Petitioner rudely and loudly told them to stand in front of the car instead. The children complied. Stallworth retrieved the registration and handed it to Petitioner. She also handed him her placard. She then attempted to get out of the car so she could put her purse on the hood of the car so she could find her driver's license. As she stood up, Petitioner crossed his arms in front of his chest in a blocking motion and, using them, shoved her forcefully against her car and then down into the driver's seat. Her glasses were knocked askew, and the side of her face and earlobe began to burn, likely from being scraped against the doorframe. After she was shoved back into her car, Stallworth was able to find her driver's license in her purse, and she handed it to Petitioner. When Petitioner finished examining her placard, her placard registration, and her driver's license, he handed the documents back to Stallworth and told her to have a nice day. Petitioner walked to the door of the store, turned and looked at Stallworth, and stood there, apparently laughing at her. Some of the numerous witnesses to this encounter between Petitioner and Stallworth came up to her, inquired as to how she was, and walked into the store with her. Petitioner followed Stallworth while she was in the store. When Stallworth left the store, she saw Petitioner walk behind her car, write down her license tag, and then get into his vehicle. Stallworth thought he was "running her tag" and became afraid of what he might do to her next. She called a relative who worked for the Alachua County Sheriff's Office and asked that person to come to Wal- Mart and watch her leave. After calling, she went back into the Wal-Mart to wait. When she came out again, she and Petitioner did not interact. Before Petitioner shoved her against and then into her vehicle, Stallworth had made no threatening remark or gesture that would cause Petitioner to have any concern for his safety. After Stallworth returned to her home, her back started hurting, and her face and earlobe still burned. She telephoned the City of Gainesville Police Department and complained about Petitioner's unacceptable treatment of her. The complaint was forwarded to Sergeant Lance Yarbrough, the Sergeant on the midnight shift. At 1:45 a.m., when he had "cleared" the matter he was working on, he called Stallworth. She described what had happened, including Petitioner's demeanor and her injuries. She told Yarbrough she had obtained the names and telephone numbers of some of the witnesses who had seen the entire encounter. After attending to some additional duties, Yarbrough arrived at the Wal-Mart at 3:00 a.m. to talk to Petitioner about his use of force on a disabled person. Petitioner's version of what had happened essentially matched Stallworth's, including admitting he had "pinned" her to her vehicle. By the end of their conversation, Petitioner had become confrontational about defending what he had done and demanded of Yarbrough, "Do you have a problem with that?" Yarbrough answered Petitioner in the affirmative. Yarbrough tried to obtain a copy of Wal-Mart's video surveillance tape, but a copy of the tape could not be made by Wal-Mart employees at that hour. After he left Petitioner, Yarbrough, a white male, completed an Administrative Investigation Referral Form regarding Petitioner's treatment of Stallworth, which he considered a violation of the City's Policies and Procedures Number 19, Rule 19. That Form is, essentially, a referral to the police department's internal affairs office. He filed that form on June 27, 2008, in his name and in Stallworth's name. Stallworth filed her own form on that same date. Wal-Mart has a policy of releasing copies of its video surveillance tapes only to law enforcement officers conducting official business. Internal Affairs investigator Sergeant Jorge Campos, a white male, contacted Wal-Mart and arranged to obtain a copy of the video of Wal-Mart's parking lot showing Petitioner's encounter with Stallworth. When he later called Wal-Mart to make sure the copy was ready, he was told that another police officer had come to pick it up, and the copy had been given to him. Campos requested an additional copy and when he went there to pick up that copy, the Wal-Mart loss prevention employees showed Campos the video and also a video of Petitioner picking up the copy of the video that had been made for Campos. Since Petitioner had come there in a police car and in uniform, they had assumed that Petitioner was obtaining the copy of the video for official purposes. In fact, Petitioner never reported to the police department that he was conducting an investigation and that he had obtained evidence of his encounter with Stallworth. Further, he never turned over to the police department his copy of the video so it could be preserved as evidence in the evidence room, as required by department policy. Petitioner did not obtain the video for law enforcement purposes, therefore, but rather for personal purposes. Campos watched the copy of the surveillance video he had obtained from Wal-Mart in conjunction with his investigation. He also interviewed and obtained sworn statements from Yarbrough, from Stallworth, and from all of the identified witnesses who were willing to speak with him about what they saw. During the course of the internal affairs investigation, it was discovered that Petitioner had also repeatedly contacted Stallworth's personal physician, allegedly in his capacity as a police officer, to ascertain what Stallworth's disability was that would have made her eligible for a handicapped placard. Eventually, Petitioner did speak with a doctor in that office who disclosed Stallworth's disability. Campos attempted to interview Petitioner, but Petitioner called in sick and did not appear for the scheduled appointment. Campos' further attempts to interview Petitioner were unsuccessful. At the conclusion of his investigation, Campos prepared his report and consulted with the Chief of Police as to an appropriate disposition of the matter. It was concluded that Petitioner had violated Rule 19 regarding his encounter with Stallworth by his (1) excessive use of force, (2) obtaining a video recording under the color of a law enforcement officer for personal use, and (3) obtaining medical information under the color of a law enforcement officer without proper legal service. It was determined that Petitioner's employment should be terminated. Policy 19, Rule 19 prohibits "[i]mmoral, unlawful, or improper conduct or indecency, whether on or off the job[,] which would tend to affect the employee's relationship to his/her job, fellow workers' reputations or goodwill in the community." The range of penalties for the first offense is from instruction plus 5 days' suspension up through dismissal, and for the second offense is dismissal. Petitioner exercised his right to file a grievance regarding his termination and participated in a multi-level grievance process within the City. His grievance was unsuccessful, and he was terminated from his employment as a police officer. At no time during Petitioner's conversation with Sergeant Yarbrough, during the internal affairs investigation, or during the City's grievance process did Petitioner raise any allegation of disparate or discriminatory treatment of him by the City due to his race or his sex. Sergeants Yarbrough and Campos are, like Petitioner, white males.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed to meet his burden of proof and dismissing the Petition for Relief filed in this cause. DONE AND ENTERED this 16th day of July, 2010, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 2010. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Daniel M. Nee, Esquire City of Gainesville 200 East University Avenue, Suite 425 Gainesville, Florida 32601-5456 Jarrod Rappaport 402 Northwest 48th Boulevard Gainesville, Florida 32607 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was the victim of an unlawful employment practice, by allegedly being subjected to discriminatory terms and conditions of employment, based on her race.
Findings Of Fact The Petitioner Rosa Pearl McDonald is an African- American female. She was employed at times pertinent to this dispute as a driver, delivering meals to elderly clients of the Walton County Council on Aging. The Petitioner is also a Licensed Practical Nurse (LPN). The Respondent, Walton County Council on Aging is a charitable social services agency, domiciled in Walton County. As pertinent to this case, it delivers and serves meals to elderly clients throughout the county, through the use of hired and volunteer drivers. The Petitioner was a recently-hired driver, of less than 30 days' employment, when the operative facts occurred. The Petitioner was still in probationary employment status. The Petitioner contends, in effect, that she was subjected to disparate terms and conditions of employment due to her race. She states she was the only black driver and that her supervisor, Kay Brady, is white. The Petitioner noticed after hiring, that the food delivery boxes had the assigned drivers' names on them. The box she was assigned had only the route name. She states she had asked Ms. Brady to place her name on the box, but the route name was placed on the box instead. The Petitioner acknowledged, upon cross-examination, that she did not know who placed the route label on the food box. She was still a probationary employee at this time. The probationary period was 90 days, and the Petitioner resigned only 30 days or less, after her hiring. Inferentially, it may be that the probationary status was the reason her name was not used, or it may have been an oversight. There is no evidence other than the Petitioner's stated opinion, that the labeling situation was due to racial animus. In fact, the Petitioner had been hired, and fired, by the Respondent twice in the past, and yet it still re-hired her shortly before the subject situation arose. Moreover, Ms. Brady gave the Petitioner extra hours of work when she requested them. These facts tend to negate the existence of racial bias in the imposition of any term or conditions of the Petitioner's employment. The Petitioner also contends that she was treated disparately, compared to other drivers. She maintains that a white driver, "Margaret," on occasion had guests ride along with her on her deliveries. The Petitioner states that she asked twice to be allowed to have friends ride with her on deliveries, but Ms. Brady would not allow it. Ms. Kay Brady was the Petitioner's supervisor. She established with her testimony, that the Respondent has a regularly-adopted policy of allowing no riders to accompany route drivers, other than trained volunteers or office personnel, who occasionally go along on deliveries to ascertain that client services are being provided appropriately. Occasionally spouses of regular drivers make deliveries when the driver is ill or must miss work for any reason. The Respondent also uses volunteer drivers, as well. In both situations, however, the spouses or volunteers are given training before being allowed to make deliveries to clients, chiefly because of the privacy requirements of the "Hippa Privacy Law" and the Respondent's client confidentiality policy. The point is, the Petitioner sought to have friends ride with her on deliveries (for reasons which are unclear) and her friends were not trained and oriented to the Respondent's job requirements. The Respondent had a policy of not allowing friends or family to simply accompany drivers without such training, and for reasons which did not relate to job requirements, except in unusual circumstances. One such circumstance involved a driver who needed to be allowed to take her grandchildren with her on a delivery or deliveries, when she was unable to engage a baby sitter. This was an isolated and unusual occurrence, during a time when the children were out of school for Christmas break. On such rare occasions, the Respondent has allowed children to accompany drivers on short trips, on routes near their homes and where children can safely remain in vehicles during deliveries. The above circumstance was probably the one involving driver "Margaret" which the Petitioner described in her testimony. In any event, however, the Respondent had a regular written policy regarding requirements and qualification for persons making deliveries to clients and it followed it, with the above rare exceptions. The employee handbook, Council on Aging Handbook and the Employee Handbook receipt, in evidence as Respondent's Exhibits 5, 6, and 4, respectively, show this policy and the fact that the Petitioner was informed of it. The Petitioner's friends, whom she sought to have accompany her, were not shown to be qualified under the Respondent's requirements. Because the reasons for requesting the accompaniment of proposed "riders" were different for employees other than the Petitioner, referenced in the above examples of policy exceptions, these other drivers were not shown to be similarly-situated exemplar employees, who received more favorable treatment. In fact, the Petitioner was favored in a different way. The Respondent was able to give the Petitioner extra hours of work "sitting" with elderly clients when their caregivers were absent. The Respondent and Ms. Brady would learn about such needs through its normal service contacts with clients and their families. Because the Petitioner is an LPN, the Respondent would refer her for extra work, to her benefit. In summary, the preponderant evidence and above facts show that no adverse employment action occurred. There were no verbal or other acts or adverse employment directives toward the Petitioner at all, much less any that evidence racial animus, by supervisors or employees. Therefore, there was no racially hostile environment, so there could not be one in which her terms and conditions of employment were altered. Moreover, since there were no disciplinary actions toward the Petitioner, nor adverse employment directives or conditions (in fact she was favored with extra hours), there could be no constructive termination. There certainly was no actual termination. The Petitioner, in fact, resigned her position, telling both Ms. Brady and Mr. Moore that it was for health reasons. She admitted as much in her testimony.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered denying the Petitioner's Petition for Relief in its entirety. DONE AND ENTERED this 24th day of March, 2009, in Tallahassee, Leon County, Florida. S 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 24th day of March, 2009. COPIES FURNISHED: Rosa Pearl McDonald 1961 McLeod Road DeFuniak Springs, Florida 32435 Kay Brady Walton County Council on Aging Post Office Box 648 DeFuniak Springs, Florida 32435 Larry Kranert, 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
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on November 2, 2009.
Findings Of Fact Petitioner is 74-year-old male who was employed by Respondent as Human Resources Director from July 1994 until January 30, 2009. His job was an office job that required him to sit at a desk, attend meetings, and occasionally visit people in other parts of the plant to discuss business. Respondent, Daws Manufacturing Company (Daws), is an employer within the meaning of the Florida Civil Rights Act. Daws is a Florida corporation with its principal office in Pensacola, Florida. Daws is a manufacturer that builds aluminum toolboxes for trucks, and other truck accessories. James Nowak is Daws' Vice President and Chief Financial Officer. According to Mr. Nowak, a decision to cut overhead was made in the summer of 2008, as a result of three years of significant economic losses. The decision was made to close the manufacturing component of its Pensacola facility so that the company could survive. To accomplish this, Daws implemented a reduction in force which involved two layoffs in 2008. As Human Resources Director, Petitioner played a significant role in the layoff process. Mr. Nowak described Petitioner's role as "orchestrating" the layoffs, meaning that Petitioner was the person "who managed it, who disseminated the information, and who was at the center point of getting the project completed." Harold Clinton "Clint" Daws is Respondent's President and Chief Executive Officer. While Petitioner and Mr. Nowak played significant roles in the reduction in force process, Mr. Daws was ultimately responsible for deciding which employees were to be laid off. Forty-seven employees were laid off in August 2008. Thirty-one employees were laid off on December 5, 2008. Only six employees remained in the Pensacola plant following the December 2008 layoff. Petitioner was one of the employees slated to be laid off in December 2008. However, Petitioner suffered a heart attack in mid-November 2008 and underwent open heart surgery. This happened prior to the December 2008 layoff. Because of Petitioner's medical situation, Mr. Daws agreed that Petitioner would not be laid off as scheduled in December 2008, but could remain employed through January 2009. Petitioner was the only employee scheduled to be laid off in December 2008 whose termination was deferred. Petitioner returned to work on January 19, 2009, and was scheduled to be laid off January 30, 2009, the last working day of that month. He requested to stay on longer than scheduled, but that request was denied by Mr. Daws. Petitioner remained covered under the company's health insurance through January. From January 19 through his last day of employment, Petitioner spent time cleaning his office and tending to other matters. During January 2009, Petitioner underwent cardiac rehabilitation. He left the office for a couple of hours during the work day to participate in his rehabilitation. This was handled the same as for any employee who had to go to a medical appointment. However, Petitioner did not request any accommodation regarding any disability during this time. Petitioner acknowledged at hearing that he never made a complaint of discrimination to Mr. Daws based on his age, gender, or perceived disability. Before leaving on his last day of employment, Petitioner wrote a letter to Workforce Escarosa, a local agency that handles unemployment claims, advising that he was "laid off today due to a reduction in force-job elimination." He again made this assertion to Workforce Escarosa in a February 27, 2009 letter in which he reiterated that he was "laid off due to a reduction in force, job elimination, and I am not to be considered a retiree." Upon termination, Petitioner was offered and accepted insurance under COBRA. The COBRA coverage was later rescinded by the insurance company, not by Daws, apparently because it discovered Petitioner was on Medicare and was not eligible. Mr. Nowak never discussed Petitioner's medical expenses from his heart attack or previous medical problems with the company's insurance agent or the company's president. Following Petitioner's termination from employment, the position of Human Resources Director was eliminated as part of its reduction in force. The remaining duties of the Human Resources Director position were apportioned between Mr. Nowak and Ms. Violeta Gordon, Petitioner's assistant. Daws did not hire anyone to serve as the Human Resources Director. At hearing, Petitioner alleged that he was discriminated against earlier in his employment. Specifically, he asserted that he did not receive a pay raise from 1995 until 2002 and that he was asked in 2006 when he was going to retire. While Mr. Daws testified as to legitimate, non-discriminatory reasons for Petitioner not receiving a pay raise and denied asking Petitioner when he was going to retire or encouraging him to retire, these allegations are untimely as will be more fully addressed in the Conclusions of Law. At the time of his layoff, Petitioner was 72. Petitioner alleged in his Employment Complaint of Discrimination that his assistant, Ms. Gordon, was 65. There is nothing in the record to indicate otherwise and, based upon observations of her while testifying at hearing, 65 is a reasonable approximation of her age.
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 finding that Daws Manufacturing Company is not guilty of the unlawful employment practice alleged by Petitioner and dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 7th day of January, 2011, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2011.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was discriminated against by being terminated, allegedly on account of her race, and in retaliation for filing a claim concerning discrimination.
Findings Of Fact Tammy King, the Petitioner, became employed by the Respondent in June of 2000. She was employed as an operations manager, supervising the cleaning service work for various customer accounts as well as the people employed to perform the cleaning service work for those accounts. She was employed by the Respondent for approximately one year. The owners of the Respondent company are Linda and Daniel Coley. On October 18, 2000, Ms. King was evaluated by her evaluator and supervisor Christopher Stettner and received an excellent evaluation, which was apparently co-extensive with the end of her probationary period. Gene Janushanis also was in a supervisory capacity over the Petitioner. Mr. Janushanis, in his supervisory role, is the primary focus of the Peititoner's complaint of discriminatory conduct concerning his conduct and attitude toward her. The Petitioner contends, in essence, that Mr. Janushanis refused to allow the Petitioner to discipline black employees and treated her more harshly, with harassment, including cursing at her, and otherwise interfered with her performance of her job. She stated that he treated black employees, including black supervisors in similar positions to the Petitioner, more favorably, as to disciplinary or job performance issues, than he treated the Petitioner. The Petitioner maintains that she had no problems, disciplinary or otherwise, in the performance of her job before Mr. Janushanis was hired as her supervisor and that their numerous altercations commenced shortly thereafter. However, she also developed a difficult relationship with Christopher Stettner, the supervisor who gave her the excellent evaluation at the end of her probationary period. Apparently, their relationship deteriorated soon thereafter and became quite hostile. In fact, Mr. Stettner filed an internal complaint or grievance against the Petitioner concerning alleged harassment of him by the Petitioner. This resulted in the Respondent's scheduling additional "anti-harassment training" for the Petitioner and other employees thereafter. Thus, a hostile relationship with abrasive arguments ensued between the Petitioner and Mr. Stettner, as well as between the Petitioner and Mr. Janushanis, starting in the late part of 2000 and through the first half of the year 2001. Cassey Clark, the Human Relations Director for Respondent, witnessed a number of "very harsh arguments" between Tammy King and office employees or supervisors Dwayne Coley, Chris Stettner, and Gene Janushanis. Both owners and employees witnessed very hostile, violent arguments between Mr. Janushanis and the Petitioner on a number of occasions, sometimes in the presence of customers of the company and generally in the presence of other employees or owners. These altercations included instances where the Petitioner refused to perform directions of her supervisor. Additionally, a substantial number of employees had verbal altercations with the Petitioner concerning receiving credit for, and payment for, the hours they had worked. On a repetitive basis the Petitioner failed to submit correct hours for the payroll and in one case got into a verbal altercation with an employee, Sonya Ross, chased the employee out in the parking lot, and refused to give her her last paycheck, telling her that she would mail the check to her, which was against company policy. The Petitioner exhibited a hostile, threatening attitude and conduct toward employees concerning hours worked and other aspects of her opinion of the way they were performing their jobs, as well as concerning payroll issues. Such instances occurred with at least nine employees. This hostile, threatening attitude and failure to comply with the payroll policies of the Respondent, as well as the several instances of the Petitioner failing to perform as directed by her supervisors, constituted misconduct under the regular policies of the Respondent. These instances of misconduct occurred on a frequent basis through the first half of 2001, including an instance where an employee called to state that she had to be out for two days because her baby was sick with a high fever. The employee followed company policy and provided documentation from the physician involved concerning her need to be off from work. She then called Tammy King to say that she had to go back to the hospital with her child, and Ms. King told her that she would be terminated. The employee then called the owner, Linda Coley, to inform her of the problem because she was afraid of losing her job. Ms. Coley then spoke with Ms. King and reminded her that it was against company policy to terminate an employee if he or she brought proper documentation from the physician or hospital, which was the case. This also was a clear violation of company policy concerning employees and supervisors. These instances of misconduct and the very hostile verbal altercations between the Petitioner and Mr. Janushanis, her branch manager, continued until June of 2001. The Respondent counseled with both the Petitioner and Mr. Janushanis about their conduct and attitude between themselves and toward other employees. Ultimately the decision was made in mid-June 2001 to terminate the Petitioner and Mr. Janushanis as well. On June 22, 2001, the Petitioner was terminated, as was Mr. Janushanis, on the same date. On June 20, 2001, the Petitioner had filed a complaint with the EEOC, by letter, and informed the Respondent of that fact. The decision to terminate the Petitioner, however, had been made prior to the filing of the complaint with the EEOC. The Petitioner has failed to establish that any actions taken by the Respondent toward her were related to her race. The supervisor complained of by the Petitioner was of the same race, white, and there is no persuasive evidence that shows any intent by the owners or management of the company to treat similarly-situated members of another race more favorably. In fact, there was preponderant and substantial evidence of misconduct on behalf of the Petitioner which established a legitimate, nondiscriminatory reason for her termination. Although her initial performance was rated as excellent in the initial months of her employment, the Petitioner failed to continue that level of performance. In fact, her misconduct on the job, including the instances enumerated in the above findings of fact shows that the Petitioner's conduct and performance had deteriorated so that she was not properly performing the various requirements of her employment position, when viewed in the context of regularly- adopted company policy. Upon the Respondent's becoming aware of these conduct shortcomings, and failure to properly perform in her position, as well as the improper conduct by her supervisor, the Respondent did not condone the Petitioner's level of conduct nor that of her supervisor, Mr. Janushanias. Rather, the Respondent sought to assist them in improving their conduct and performance. When these efforts were not successful, the Respondent ultimately terminated both of them.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 3rd day of December, 2003, in Tallahassee, Leon County, Florida. S 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 3rd day of December, 2003. COPIES FURNISHED: K. Jeffrey Reynolds, Esquire 924 N. Palafox Street Pensacola, Florida 32501 Banks T. Smith, Esquire Hall, Smith & Jones Post Office Box 1748 Dothan, Alabama 36302 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 Suite 100 Tallahassee, Florida 32301
The Issue Whether the Petitioner was subject to an unlawful employment practice by Respondent, the City of DeLand, on account of his race, or as retaliation for engaging in protected activities in violation of section 760.10, Florida Statutes.
Findings Of Fact Petitioner, who was at all times relevant to this matter an employee of the City, is African-American. Respondent is a Florida municipality established pursuant to Article VIII, § 2(b), Florida Constitution and chapter 166, Florida Statutes. Respondent employs more than 15 full-time employees at any given time. Petitioner was initially employed by the City in April 2010 as a Maintenance Worker II in the Parks and Recreation Department. On February 21, 2012, Petitioner was terminated by the City for failing to report to work for a period of days. He was considered by the City to be a “no call/no show.” Petitioner filed a complaint with the federal Department of Labor (DOL), in which he asserted that his absence from work was authorized under the Family Medical Leave Act (FMLA). On April 26, 2012, Petitioner filed a complaint of discrimination with the federal Equal Employment Opportunity Commission (EEOC) alleging that the City?s decision to terminate him was based on race and age discrimination. The complaint was transferred to the FCHR for disposition. The DOL determined that Petitioner?s absence from work was warranted by application of the FMLA, upon which the DOL and the City reached an agreement to resolve the DOL complaint. On July 9, 2012, as part of the agreement, Petitioner was reinstated as a Maintenance Worker II, with back pay and benefits. When the decision was made to reinstate Petitioner, Petitioner withdrew the FCHR complaint. At the time of Petitioner?s reinstatement, the City did not have an opening in its Parks and Recreation Department, his previous position having been filled. The City did have an opening for a Maintenance Worker II in its Utilities Department. The Utilities Department opening had been advertised, the interview process for the opening had been completed, and a candidate had been selected. However, as the result of the DOL settlement, Petitioner was selected to fill the position. Petitioner was placed on the mowing crew, and was responsible for keeping areas around the City?s lift stations, well houses, and wastewater plant mowed. On July 13, 2012, the City issued a written reprimand to Petitioner. The reprimand related to Petitioner?s complaints to the City Utilities Director, Mr. Ailes, regarding Petitioner?s assignment to the mowing crew and his supervisory chain-of-command. The memorandum suggested that Petitioner was not “a team player.” There was no evidence of further adverse action relating to Petitioner?s job performance. After Petitioner settled into the job, he performed well. He was a hard worker, and never had to be coaxed into working. Mr. Swanson described Petitioner as a “go-getter,” who came up with more efficient ways of keeping up with the work and making the areas look nice. Mr. Swanson testified that it was good to have a third person on the mowing crew. On or about July 13, 2012, an equipment operator position came open. It was advertised, and applications were accepted. Petitioner submitted an application for the position. Petitioner was selected as one of five applicants to continue with the interview process.1/ Among the applicants was Jose Alejo. Mr. Alejo is Hispanic. Petitioner and Mr. Alejo were employees of the City, and were considered as “in-house” candidates. The interview team consisted of Mikel Grimm, a foreman with the City?s Utilities Department; Obadiah Henry, a Utility Locator with the City?s Utilities Department; and Danny Pope, a Supervisor with the City. Mr. Henry had been a foreman with the City?s Utilities Department before a voluntary break in service, and had extensive experience as an equipment operator. As a former foreman, Mr. Henry had been on numerous interview committees for positions including equipment operator. He was considered to be the best qualified to serve on the interview committee, even though committee members were typically at the foreman level or higher. Mr. Henry is African-American. Mr. Grimm and Mr. Pope are white. Petitioner had no “issues” with any of the members of the interview team, or with any of the other foremen in the Utilities Department. Petitioner was working on the day that interviews were scheduled. He was taken off of his mower at between 11:00 a.m. and 12:00 p.m. for an interview scheduled for 2:00 p.m. Interviews consisted of a short oral interview, followed by a practical test in which the applicants were tested on a dump truck and a backhoe. The applicants were to drive the dump truck through a sort of “obstacle course” and, using a backhoe, dig a hole to a pre-established specification. The questions asked of each of the applicants during the interviews were identical. The equipment used and the layout of the practical test performed by each of the applicants were identical. Each of the members of the interview team independently prepared his own scoring evaluation, without comparison of notes, numbers, or scores of the other members. After the scoring was completed, the scores were tallied. Mr. Henry was surprised at how even the scores were between the evaluators for each of the applicants. Each of the members of the interview team generally thought Mr. Alejo performed better in the interview. As to the practical test, Mr. Alejo “just proved it on the machine that he was the better applicant.” In short, Mr. Alejo simply dug a better hole. Mr. Henry noted that the decision was based on how the applicant performed on that day. While he acknowledged that Petitioner, or one of the other applicants, may have performed better on another day, “that?s what I had to go off of was that day.” Mr. Henry testified credibly and convincingly that the interview team made the effort to handle the interviews in a professional and honest way. The interview team was not told by higher-level supervisors or anyone else who should be selected as the leading candidate. His testimony is credited. Mr. Henry testified that if he had seen any evidence of racial bias, he would have reported it. He saw none. The recommendation of the interview team was unanimous that the position of equipment operator should be offered to Mr. Alejo, who scored significantly higher than Petitioner. The City accepted the recommendation of the interview team, and offered the position to Mr. Alejo, who accepted.2/ The interview process, using standardized questions and procedures, has been the practice of the City for more than six years. The purpose of the interview and practical test process was to make the hiring process more equal, rather than being based on a “gut feeling” or on how someone may have “felt about the guy.” The interview and selection process raises no issue of discriminatory of retaliatory bias in its application. On or about September 14, 2012, Petitioner received an employee performance evaluation that Petitioner described as “a good evaluation.” During the period of time at issue in this proceeding, Petitioner did not complain to any co-worker or to supervisory staff that he was subject to discriminatory acts as an employee of the City. On May 3, 2013, Petitioner voluntarily resigned from employment with the City. The reason given by Petitioner was that he wanted to return to Minnesota. Petitioner had lived in Minnesota for 30 years, and planned to move back and get a job driving a truck. In his letter of resignation, Petitioner made no mention of any discriminatory or retaliatory act, stating that “[i]t has been a pleasure to work for the City.” The City currently employs six equipment operators. Of those, three are Hispanic, two are white, and one is African- American. Ultimate Findings of Fact The personnel decision to re-hire Petitioner to the position of Maintenance Worker II in the Utilities Department was made because there was an opening in that department. There was no competent, substantial evidence adduced at the hearing to support a finding that the decision was made due to Petitioner?s race, or in retaliation for Petitioner?s earlier EEOC complaint. The decision to hire an applicant other than Petitioner for the position of equipment operator was made after a reasonable and fair applicant interview and evaluation process that was done in accordance with the City?s established and objective hiring practices. There was no competent, substantial evidence adduced at the hearing that any persons who were not members of the Petitioner?s protected class, i.e., African-American, were treated differently from Petitioner, or were not subject to similar personnel policies and practices. There was no competent, substantial evidence adduced at the hearing that the City?s decision to hire Mr. Alejo over Petitioner was made in retaliation for Petitioner?s earlier EEOC complaint.
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, the City of DeLand, did not commit any unlawful employment practice as to Petitioner, Ray Neloms, and dismissing the Petition for Relief filed in FCHR No. 2012-02720. DONE AND ENTERED this 28th day of August, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 28th day of August, 2013.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on October 5, 2007.
Findings Of Fact Petitioner is an African-American female who was hired by Respondent as a temporary employee on January 17, 2005. She continued to be employed by Respondent until she resigned her position on November 7, 2007. Respondent, PPS World Medical (PPS), is an employer within the meaning of the Florida Civil Rights Act. PPS is a distributor of medical supplies from manufacturers to physicians’ offices. Crystal Marx interviewed Petitioner and hired her as a temporary employee in January 2005. Petitioner worked for several months as a temporary employee, and her performance was very good. Ms. Marx recommended to Renee Placette that Petitioner be hired as a regular, full-time employee. Ms. Placette had an opportunity to observe Petitioner’s performance as a temporary employee. Ms. Placette made the final decision to hire Petitioner in a full-time position in May 2006 as a supply chain expediter. Ms. Marx and Ms. Placette are Caucasian females. After three months of employment, Ms. Marx decided to conduct a 90-day performance review of Petitioner. It was not standard procedure in the department where Petitioner worked to receive a 90-day review. However, Ms. Marx made the decision to conduct the review to let Petitioner know about some concerns so Petitioner would have an opportunity to make improvements before her annual review. In a meeting to discuss the 90-day review, Ms. Marx addressed the following issues with Petitioner: work that was not being completed correctly which resulted in Ms. Marx's receiving e-mails concerning mistakes Petitioner was making; issues Petitioner was having with her coworkers; and Petitioner’s practice of skipping lunch and leaving an hour early without prior approval. The score received by Petitioner on her 90-day review did not affect Petitioner’s compensation in any way. When initially hired, Ms. Marx was Petitioner’s direct supervisor. At some point in time, Patricia Barnard was brought in as another layer of supervision. Ms. Barnard worked for Ms. Marx. For a period of time, Petitioner e-mailed Ms. Barnard when she went to, and returned from, her 15-minute break. This issue initially arose when several people asked Ms. Barnard where Petitioner was when she was away on her break. Ms. Barnard discussed this with Petitioner. Petitioner then suggested that she e-mail Ms. Barnard when she left on her break and upon her return. Ms. Barnard did not require Petitioner to do this. When Petitioner stopped sending these e-mails, Ms. Barnard did not instruct Petitioner to resume sending the e-mails or take any action regarding the e-mails. During a period of time when Petitioner was on medical leave, two accounts were reassigned to other employees while she was away. One of the accounts was assigned to another employee, Tracy Hundley, who is African-American. After that, Ms. Barnard and Ms. Marx took over the account for a while, later assigning it to Tara Nelson, another African-American employee. In any event, Petitioner did not receive any extra pay when she handled those accounts, and did not receive any cut in pay when these accounts were reassigned to others. On November 17, 2006, Petitioner received a Documented Verbal Warning for failure to properly notify management of her absence. On August 15, 2007, Petitioner received a Final Written Warning for unprofessional and inappropriate behavior towards an employee relations representative. On May 8, 2007, Ms. Barnard completed a job performance annual review of Petitioner. On her annual review, Petitioner received a score of 80, which is an average score. Ms. Marx approved the review as prepared by Ms. Barnard. Allegations of failure to promote Petitioner applied for the position of “WM Supply Chain Procurement Specialist” in November 2006. Petitioner again applied for the Procurement Specialist position in May 2007. Petitioner received an e-mail from Ms. Placette advising her that three people were hired with “a lot of buying experience.” In July 2007, Petitioner applied for the position of IT Governance Process Analyst. She received a letter from the IT Governance Process Manager of PSS which informed her that she was not selected for the position. There is nothing in the record establishing the qualifications required for these positions, whether Petitioner met these qualifications, or even whether these positions could be considered as promotions. Further, no competent evidence was presented as to the identity, qualifications, or race of the persons who were hired into these positions. Other allegations Petitioner also alleged that she was paid less then what had been promised, $11.54 an hour, in her letter offering employment. Petitioner contends that she was instead paid one cent an hour less, i.e., $11.53 per hour. The official pay stub reflects her rate of pay to have been $11.54 per hour. Further, Petitioner alleged that she was, at some point, given a new wireless headset which was replaced by a used one that she described as “yucky.” Employees who work in “confirmation” received wireless headsets because those employees needed to be able to go to the fax machine and the printer while on the telephone with a vendor. Petitioner was an “expediter” not a “confirmation” person, and did not need to be able to go to the fax machine or the printer as often while on the telephone. Petitioner resigned her position on November 2, 2007. At the time she resigned, she informed her co-workers that she owned her own t-shirt business and resigned to run her own company full time. At hearing, Petitioner asserted that she resigned because there was a “different atmosphere,” that she was stressed, and could not work there anymore. There was no competent evidence presented that establishes or even suggests that any employment action taken by Respondent toward Petitioner was based on race.
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 21st day of August, 2008, 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 21st day of August, 2008.
The Issue Whether Respondent unlawfully terminated the employment of Petitioner, because of his age in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes. Whether Respondent retaliated against Petitioner by terminating him on October 3, 2005, after Petitioner filed a complaint with human resources alleging a hostile work environment.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Leviton Manufacturing Corporation manufactures electrical equipment and components. It is a New York corporation licensed to do business in the State of Florida. Inter allia, Respondent employs a sales force that covers the entire State of Florida. Respondent is an employer as defined by the Florida Civil Rights Act of 1992 ("FCRA"). Respondent has implemented an employee handbook aimed at fostering a work environment that is free from harassment, discrimination and retaliation. Respondent's policies contain reporting and investigation procedures that encourage employees to report any and all incidents of perceived discrimination or harassment, and ensure that all reported incidents are investigated. Petitioner was employed with Respondent from June 1995 until November 2003, and from July 2004 through October 3, 2005. At the time of his termination, Petitioner was 49 years old. Petitioner first began working for Leviton in 1995 as a Service Representative. He received merit pay raises and promotions until November 2003, when Respondent laid-off 150 people in the retail division, including Petitioner. Petitioner was rehired in July 2004, as a Sales Representative. Upon rehire, Petitioner was supervised by District Manager Scott Robbins ("Robbins"). Petitioner presented the testimony of three of Respondent's managers, one retired, who supervised Petitioner for various periods of Petitioner's nine and one-half year career with Respondent. Each of them testified that Petitioner was dedicated and professional in which ever position he was assigned, including two assignments as a manager. Scott Robbins, Petitioner's supervisor immediately prior to Goodman, recommended Petitioner for re-hire as a Sales Representative following a lay-off, and was satisfied with his work in that position. Petitioner also presented the testimony of 12 customers of Respondent, in the territory that he covered between July 2004 and October 2005. Each of them expressed their opinion that Petitioner was an honest, diligent, and professional sales representative for his employer. Respondent presented the testimony of one customer who was not satisfied with Petitioner's performance as a sales representative. In January 2005, District Manager Warren Goodman ("Goodman") replaced Robbins and assumed his territories as well as his role as Petitioner's supervisor. At the time Petitioner was terminated, Goodman was 48 years old. Goodman supervised, and currently supervises, at least, 12 Sales Representatives, the majority of whom are over the age of 40, to wit: Name Age Name Age Roy Boykin 59 Mickey Ferrell 49 Don Yeager 59 Jose Monzon 40 Michael O'Reilly 56 Duane Bishop 38 Dave Lenoir 37 Kevin Bouton 34 Ken Davis 54 Paul Dube 41 Brad Taylor 10. When Goodman 52 took over as District Manager, it became readily apparent that Goodman's management style was distinctly different from Robbins. Goodman is demanding, blunt and aggressive, and closely manages his sales representatives. He expected prompt and accurate responses to his requests from his sales representatives. Petitioner was required to fulfill the same job expectations that were demanded of all other Sales Representatives. It included, but was not limited to, the timely submission of complete and accurate paperwork, client follow up, and travel to specific areas within his designated territory. Petitioner's area extended from Lakeland, Florida, to Thomasville, Georgia. Goodman expected Petitioner to visit customers in his territory at least every three weeks, staying at least two to three days on each trip at each location. Goodman's job as District Manager is to oversee his sales force and to enforce Leviton's guidelines, as he interprets them. Moreover, Goodman is charged with measuring his employees' compliance with Leviton's policies and procedures. Over the course of his tenure, Petitioner failed to abide by company rules and policies, as well as the terms of his employment, as understood by Goodman. On more than one occasion, Petitioner failed to provide expense reimbursements in an appropriate and timely manner. He also failed to travel with the frequency required by his sales position. Additionally, on numerous occasions, Petitioner failed to verify the accuracy of orders he placed for customers. On May 2, 2005, Goodman sent Petitioner an email addressing the importance of administrative responsibility and consistency. Goodman had just reviewed Petitioner's expense reports and noted that they covered a ten-week period, clearly in violation of the requirement that they be submitted within 30 days. Goodman also noted that the expense reports reflected no travel over a two-month period to the Thomasville/Tallahassee area, which composed a large portion of Petitioner's territory. Goodman requested that, thereafter, Petitioner forward his itinerary weekly, attaching as an example a copy of itineraries submitted by Petitioner's colleagues. Petitioner responded, apologizing for the late expenses. He attributed his tardiness in part to a change in his cellular telephone carrier. Petitioner set forth all his travel dates within the northern portion of his territory since his re-hire. The dates provided demonstrated that he was not in compliance with the travel requirements established for all Sales Representatives. Goodman responded and reminded Petitioner of the importance of adhering to guidelines for travel and paperwork submission. He encouraged Petitioner to improve his performance and to do what was necessary to satisfy Goodman's expectations of the proper skills necessary to do his job effectively. On May 9, 2005, Petitioner sent Goodman an email indicating his car was being repaired. The repair estimates attached to the email evidenced that Petitioner had been driving a 12-year-old vehicle, which was not within Respondent's car policy guidelines. Petitioner had reviewed and signed the car policy guidelines on January 12, 2005, and began receiving monthly payments (including retroactive payments), effective February 11, 2005. On May 18, 2005, Petitioner received and signed an Employee Warning. Significantly, Petitioner signed the Employee Warning indicating that he read and understood it. The Employee Warning cited violations for substandard job performance and violations of company policies or procedures, with specific reprimands for: (1) failure to timely submit expense reports; (2) failure to travel as specified and agreed to; (3) sloppy submission of paperwork; (4) lack of involvement with customer; and (5) failure to maintain a proper company vehicle in accordance with company policy. Shortly thereafter, Petitioner purchased a new truck for the purpose of meeting the company vehicle policy. On May 31, 2005, Goodman reviewed numerous quotes submitted by Petitioner for review and renewal. Goodman informed Petitioner that upon review, the quotes prepared by Petitioner were inaccurate and required various revisions and corrections. Some quotes were priced higher than stock; different prices were entered for the same item in a different color (when there should have been no price difference); there were items on quotes that were never purchased; and there was no increase in items ordered/quoted. In August 2005, Goodman advised Petitioner that his sales goals were not ambitious enough and that Petitioner needed to re-evaluate and re-consider his year-end goals. Petitioner indicated that he would do as instructed. In mid-August 2005, Petitioner once again submitted an incomplete quote to Goodman for approval. When brought to Petitioner's attention, he added the items missing from the quote, offering no explanation for this oversight. On August 30, 2005, Petitioner submitted order adjustments to Goodman's administrative assistant for completion. When the request was forwarded to Goodman, he immediately reminded Petitioner that all changes were required to be submitted to him, not his assistant. Moreover, the requested changes contained errors. Goodman requested that Petitioner review the complete order and re-submit it when it was accurate. Three days later, Petitioner still had not acknowledged or responded to Goodman's request. Goodman completed and submitted Petitioner's performance review on July 25, 2005. Due to the fact that no prior goals or skills development were accomplished by Petitioner, his review was deferred until the end of 2005. Based upon his seven-month assessment of Petitioner, Goodman felt that Petitioner only partially met expectations. Rather than precluding a merit increase in salary, Goodman gave Petitioner an opportunity to improve his performance by deferring his review for several months. Petitioner signed this July review, indicating that Goodman discussed the review and appraisal with him. On September 5, 2005, (Labor Day, a holiday) Goodman sent an email to all of his Sale Representatives, which required a response to specific inquiries no later than 5:00 p.m. Petitioner did not respond until September 7, 2005, at 4:15 p.m. This was clearly past the deadline. Goodman reprimanded Petitioner in his responsive email, specifically advising Petitioner that his continued employment was in jeopardy. He invited Petitioner to call Goodman the next day to discuss Petitioner's lack of diligence and timeliness. Only after a telephone call on the morning of September 9, 2005, did Petitioner, for the first time raise the issue of unfair treatment, but he did not raise age as a factor. Petitioner requested, via email, that Goodman assist Petitioner in filing a complaint against Goodman with Leviton's Human Resource Department for creating a hostile work environment. In this same email, Petitioner informed Goodman that Petitioner had involved clients in his grievance by requesting that the clients evaluate Petitioner's performance and provide their input to Respondent. Based upon the preceding client involvement, Goodman advised Petitioner on September 12, 2005, that he was suspended immediately, with pay, pending the outcome of Respondent's investigation regarding Petitioner's inappropriate conduct. Petitioner was therefore instructed to maintain contact with only the Human Resources Department (HR) until further notice. Thereafter, Petitioner corresponded, via email, with Shephard. On September 13, 2005, Petitioner forwarded his May 5, 2005, email exchange with Goodman to Kimberly Shephard, Respondent's Corporate Human Resource Manager. On that same day, Petitioner sent another email to Shephard containing a list of items that were still incomplete and required follow up. In forwarding this lengthy "to do" list, Petitioner demonstrated his inattention to detail and inability to complete administrative tasks. On September 16, 2005, Shephard drafted Petitioner's allegations in memorandum format, the accuracy of which Petitioner verified and signed on September 20, 2005. Goodman was given a copy of the allegations and provided a written response on September 19, 2005, refuting each of Petitioner's allegations. Meanwhile, HR conducted interviews with a random selection of Goodman's employees in the district and noted each employee's assessment of Goodman. Goodman was determined by each of the interviewed employees to provide equal treatment to all employees. The employees interviewed ranged in age from 35 to 58. On or about September 20, 2005, Shephard completed her investigation of Petitioner's complaint and determined that there was no basis that Goodman created an unlawful hostile work environment. Rather, it was determined that Goodman set the same standards for all of his employees; treated them all the same; and that accordingly, there was no basis to conclude Petitioner was singled out. Petitioner was ultimately terminated on October 3, 2005. The reasons cited by Respondent were based on Petitioner's unsatisfactory job performance. The specific reasons given for Petitioner's termination were: (1) his inability to perform the tasks associated with the Sales Representative position; (2) his failure to develop end-users sufficiently; (3) his administrative inadequacies; (4) his failure to meet deadlines and failure to follow instructions; and (5) his choosing to enlist customers in an internal company matter pertaining to Petitioner's poor job performance. Although Respondent determined that Petitioner's involvement of customer's in an internal dispute was grounds for immediate termination, Respondent determined it would investigate Petitioner's complaint prior to taking other action, since it occurred at the same time as the allegations of improper conduct by Goodman. At no time was Petitioner's age raised as a factor in any of the terms and conditions of his employment by Respondent. Nor was it a factor in any work related complaints regarding his deficiencies. Petitioner never informed any member of Respondent's management that he believed he was treated differently during his employment because of his age, or that he had been terminated due to his age. After Petitioner was terminated, Respondent did not hire anyone to replace him. Rather, Respondent re-assigned Petitioner's territory to existing salesmen. Paul Dube ("Dube"), aged 41, inherited the majority of Petitioner's territory. Goodman did not require that Dube travel to, or invest time in customers that only did a nominal amount of business with Respondent. Petitioner attempted to establish that he was unable to respond to several of Goodman's inquiries in a timely manner, or at all, because Petitioner's computer was being repaired by Respondent's IT department. Nevertheless, Petitioner had access to his work email via Respondent's webmail program during this period. Petitioner failed to prove by a preponderance of the evidence that he was terminated by Respondent because of his age. Respondent failed to prove by a preponderance of the evidence that he was subject to retaliation after he filed a hostile work environment complaint with Respondent's HR department.
Recommendation Based upon the above Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order denying Petitioner's Petition for Relief and dismissing his charge with prejudice. DONE AND ENTERED this 13th day of August, 2007, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2007.
The Issue Whether Respondent discriminated against Petitioner as stated in the Petition for Relief in violation of Chapter 760, Florida Statutes (2007).
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following facts were established by clear and convincing evidence: Respondent, Atria Windsor Woods, provides retirement and assisted living facilities and employs more than 15 persons. Petitioner, Judith Monteiro, was hired as a housekeeper in 2002 at the age of 57. On or about November 29, 2006, Petitioner was discharged from her employment with Respondent. She was advised that she was discharged for violating company policy regarding entering an apartment while the occupant was absent due to hospitalization. Petitioner testified that she entered an apartment of an absent occupant when she smelled spoiled food, disposed of the spoiled food, and reported the matter to her supervisor. On the following day, a theft of approximately $150.00 was reported from the apartment. Petitioner appears to be the victim of disgruntled relatives of the apartment's occupant who, apparently, complained about the purported theft to Respondent and confusing rules about when to enter an unoccupied apartment and who was authorized to enter an unoccupied apartment. Petitioner presented no direct or circumstantial evidence that her discharge was based on age, sex, or any other right actionable under Chapter 760, Florida Statutes, the Florida Civil Rights Act.
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 finding that Respondent, Atria Windsor Woods, did not discriminate against Petitioner, Judith Monteiro, and dismissing the Petition for Relief. DONE AND ENTERED this 18th day of March, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 18th day of March, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Thomas J. Birchfield, Esquire Fisher and Phillips, LLP 220 West Main Street, Suite 2000 Louisville, Kentucky 40202 Judith Monteiro 13738 Lavender Avenue Hudson, Florida 34667
