The Issue Whether Respondent Employer is guilty of an unlawful employment practice by discrimination against Respondent on the basis of her age and gender (female).
Findings Of Fact Petitioner is female. Petitioner initiated her retirement from Respondent employer in February 2005 at age 65. No evidence was presented at the disputed-fact hearing to establish the number of persons employed by Respondent at any material period of time. However, because Respondent has acknowledged in its Proposed Findings of Fact that Petitioner is an "aggrieved person," as that term is defined in Section 760.02(10), Florida Statutes, and has further acknowledged that at all times material to this cause, Respondent was an "employer" as that term is defined in Section 760.02(7), Florida Statutes, and Respondent is hereby found to be a statutory employer under Chapter 760, Florida Statutes. Petitioner began part-time employment as an Order Entry/Mail Clerk with Respondent in July 1983. At the same time, and dating from May 30, 1983, Petitioner was also employed part-time with Sears, Roebuck and Company (Sears). In 1984, Petitioner accepted full-time commission sales employment with Sears and continued to work part-time for Respondent Employer. She worked full-time for Sears and part- time for Respondent until July 1996. Between 1983 and 1996, Jack Barber, president and CEO of Respondent Employer, repeatedly asked Petitioner to come to work full-time for Respondent. In July of 1996, Petitioner accepted full-time employment as Chief Finance Officer/Human Relations Director of Respondent Employer. At the time of her transition to her new, full-time position with Respondent, Petitioner was doing accounts receivable, accounts payable, payroll, and general ledger bookkeeping. Petitioner was qualified for all positions she held while employed by Respondent. At all times material, Petitioner was an exemplary employee. Petitioner testified that, as an inducement to give up her full-time Sears employment with its vested pension and excellent pay and benefits, Mr. Barber "guaranteed [her] in writing a five percent yearly increase in salary with no end date." It was Petitioner's position that between July 1996 and February 2005, when she retired, Respondent had a written employment contract with her, which contract had been negotiated in July of 1996, and that this contract provided for Petitioner to receive a raise equivalent to five percent of her base pay; one week of vacation in 1996; three weeks of vacation in 1997 and 1998; three days compensatory time (personal holidays) in 1996; six days of compensatory time (personal holidays) in 1997 and 100 percent medical insurance. The document she represented as her contract of employment was admitted in evidence as Petitioner's Exhibit One. Petitioner's Exhibit One is not dated. It also states no ending date and does not contain the signature of either Petitioner or Mr. Barber. It resembles arithmetic computations without setting out in sentences either Petitioner's or Respondent's obligations one to the other. It only lists the years 1996, 1997, 1998, and 1999, with regard to salary; only 1996, 1997 and 1998, as to vacation; and only 1996 and 1997 as to "comp. time." It bears the expression: "$150,000.00 + - 5 yrs." Furthermore, Petitioner testified that the exhibit does not encompass the whole of the parties' oral understanding at that point-in-time, because she believes that Mr. Barber also orally assured her that the five percent annual salary increases would continue as long as she was employed by Respondent, that vacation time and personal holiday time would accrue annually based upon Petitioner's original date of hire in 1983; and that Respondent company would institute a retirement plan in the near future. Mr. Barber testified that he had intended his notes and computations in 1996 on Petitioner's Exhibit One to only show that he anticipated if Petitioner came to work for Respondent in 1996: that he would guarantee Petitioner a term of employment up to at least five years; that there would be at least three years (1997, 1998, and 1999) with a five percent increase for her each year; and that, based on the foregoing prognosis, Petitioner could expect to earn at least $150,000.00 over a five-year period. Mr. Barber never intended Petitioner's Exhibit One to be a contract of employment. Petitioner candidly admitted that Respondent granted her five percent pay increases in January 1997, 1998, and 1999. Petitioner calculated that, without bonuses, she was paid half of $27,300.00 in 1996 because she started in July; $28,665.00 in 1997; $30,097.60 in 1998; and $31,720.00 in 1999. Petitioner accepted Respondent's figures that her annual W-2 compensation 1999 (including bonuses) was as follows: $33,635 2000 $31,720 2001 $32,830 2002 $33,015 2003 $32,330 2004 $31,720 Therefore, Petitioner's income without bonuses from Respondent for her first five years of employment (1996-2000) may have been less than $150,000.00. It was Petitioner's further position that the Respondent Employer had "contracts" similar to Petitioner's Exhibit One with other employees, specifically Greg Barber and Rob Humphrey (both younger male employees), which were honored by Respondent and that Petitioner's "contract" was not honored by Respondent. Petitioner claimed that Jack Barber's honoring the younger men's contracts, and not hers, constituted the acts of age and gender discrimination she complains of here. No contract between Respondent Employer and Greg Barber was presented for comparison with Petitioner's Exhibit One. No contract between Respondent employer and Rob Humphrey was presented for comparison with Petitioner's Exhibit One. Petitioner maintained that she "performed many of the same duties as Barber and Humphrey who were younger than she was at all times material and that she received less compensation." Greg Barber is the son of President/CEO Jack Barber. Since March 1985, Greg Barber has been the company's general manager and sales manager. Greg Barber also acts as co-CEO with his father. At all times material, he received a base salary plus commission based on total company sales. Greg Barber's responsibilities also included overseeing order entry personnel, accounts receivable/payable personnel, purchasing/inventory control personnel, mailroom personnel, shipping/warehouse personnel, service department personnel, and the receptionist. He also answered customer service calls and took phone orders. Rob Humphrey is the salesman responsible for Respondent's United States and Canadian sales. At all times material, he was paid a base salary plus commission based on Respondent's sales in the United States and Canada. Mr. Humphrey's responsibilities included training and overseeing a staff of two or three phone order entry/customer service personnel while also taking phone orders himself. At all times material, Petitioner was a salaried, non- commission employee. Petitioner claims that she performed many duties outside her job description. Specifically, she contends that she assisted both Rob Humphrey and Greg Barber in doing their jobs. Specifically, she described sharing responsibility with Greg Barber for making decisions regarding copy writing, marketing, in-putting of advertising materials, and direct marketing mailings. No witness corroborated Petitioner's assessment of her assistance to Greg Barber or Rob Humphrey, but at most, Petitioner only irregularly assisted these commissioned salesmen with their clerical or office tasks. She did not sell product. Despite Petitioner's contention that she performed some of the same services that Greg Barber and Ron Humphrey performed, it appears that the majority of the services she performed for Respondent were very different from theirs. It further appears that Humphrey and Barber performed services that were different from each other. Greg Barber had far more authority and responsibility than either Mr. Humphrey or Petitioner, and because of his position, Greg Barber received a commission out of Rob Humphrey's commission. In other words, as Mr. Humphrey's sales manager, Greg Barber received a percentage commission of all sales by whomever the sale was made and this increased Greg Barber's overall income. Likewise, Mr. Humphrey's responsibilities, particularly the necessity for him to deal with Canadian sales and marketing problems, varied greatly from Petitioner's responsibilities, which were primarily clerical or financial and home office based, and differed from Greg Barber's responsibilities, which were concentrated on home office management and sales in the United States. Petitioner maintained that other employees received raises when she did not. However, Respondent demonstrated that the annual base wage for Petitioner from 1999 through and including 2004, was $31,720.00; for Mr. Humphrey was $13,000.00; and for Mr. Barber was $47,840.00. Respondent further demonstrated that the base wages for all three employees remained constant from 1999 through 2004, and that Messrs. Barber and Humphrey, the commissioned employees, had fluctuations in their total gross wages during the five years from 1999 through 2004, due to fluctuations in the company sales and their resultant commissions. Rob Humphrey's W-2 compensation was below Petitioner's W-2 compensation from 1999 to 2001 and slightly exceeded hers from 2002 through 2004. Greg Barber's W-2 compensation exceeded Petitioner's W-2 compensation consistently from 1999 through 2004. Respondent demonstrated that in the year 2003, Respondent company suffered substantial losses, which affected the salesmen's commissions, and thus their overall income, but Petitioner's and everyone else's base wages remained the same, regardless of business conditions. How bonuses were calculated is unclear from the evidence, but in 1999, Petitioner's bonus was higher than either Mr. Humphrey's or Greg Barber's bonus. In 2000, no one got a bonus. In 2001, Greg Barber's bonus was $2,360.00; Mr. Humphrey's bonus was $540.00; and Petitioner's bonus was $1,110.00. In 2002, Greg Barber's bonus was $2,500.00; Mr. Humphrey's bonus was $665.00; and Petitioner's bonus was $1,295.00. No one received a bonus from 2003-2004. One of Petitioner's responsibilities while employed by Respondent was to assist Greg and Jack Barber in writing an employee handbook. This handbook clearly states that all of Respondent's employees are "at will" employees. That means that no guarantee of continued employment existed for any employee. Petitioner acknowledged that she had read that part of the handbook. The handbook also provides a reasonable procedure for someone, who believes that he or she is being discriminated against, to report that allegedly discriminatory treatment. Petitioner acknowledged that she never complained of sex discrimination or age discrimination while employed by Respondent. Petitioner also was aware she could file an Equal Employment Opportunity Commission complaint. She never did this either. Petitioner did complain to Jack Barber that her job was of greater importance than that of Greg Barber or Rob Humphrey, and she did repeatedly lodge her concerns with Jack Barber that her pay in comparison to theirs was inappropriate. Although denied by Mr. Barber, Petitioner is more credible that she asked for a five percent increase each year. In response to one of her complaints, Jack Barber "evened out" a bonus for her. In early 2005, Petitioner again approached Jack Barber regarding what she considered to be her "promised five percent annual increases." Petitioner and Jack Barber met several times during the months of April and May 2005. When their negotiations were not fruitful, Petitioner gave notice of retirement and left Respondent's employ on June 3, 2005, at age It had been her prior intent to continue working full-time for Respondent through the end of the year 2005. She hoped to continue working for Respondent part-time for several years beyond 2005. Petitioner testified that all employees received a retirement plan in 2001, but that she was not granted the promised yearly five percent increase in January 2000 and was not provided any reason or explanation for the decline in her base pay after that. She calculated that if the five percent per year increase had been given her, she would have received an additional $63,798.47, provided she had worked to the end of 2005, as she had intended.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 2nd day of August, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2006. COPIES FURNISHED: Kay F. Kelley Post Office Box 559 Center Hill, Florida 33514 Timothy Shea, Esquire 800 North Ferncreek Avenue, Suite 9 Orlando, Florida 32803 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, American Pioneer Title Insurance Company, discriminated against Petitioner, Dennise Raines, in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (2002).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is an African-American female who worked for Respondent from 1999 until October 11, 2002, when her employment was terminated. Respondent owns and operates a title insurance company and is subject to Chapter 760, Florida Statutes (2002). Petitioner was first employed as a data entry operator. In January 2001, she was promoted to a research position and received a pay increase. After an initial period of positive work performance and interaction with co-employees, Petitioner's attitude changed. Her work and relationships with co-workers deteriorated. As a result, in July 2002, Ms. Kathy Bowles, who had hired and supervised Petitioner and who had recommended Petitioner's advancement, demoted Petitioner due to Petitioner's negative behavior toward co-employees which included addressing them with profanity and demonstrated disrespect toward her supervisors. Although Petitioner was demoted, her pay remained the same. The July 2002 demotion is memorialized by an Employee Performance Enhancement Plan (Respondent's Exhibit 6). Subsequent to her demotion, Petitioner requested that her work hours be adjusted to allow her to attend classes. This request was approved, and Petitioner's work hours were changed. Thereafter, Petitioner's attendance and punctuality suffered. In September 2002, Petitioner was absent or late more than one-half of the work days; of these days, there were seven instances of tardiness. Petitioner was counseled regarding tardiness on September 27, 2002. Similarly-situated Caucasian employees, Mss. Beverly Dease and Linda Shapiro, had only been late for work one time between them for the entire year. Petitioner was late for work twice during the first five work days of October. Following the second tardiness, on October 7, 2002, Ms. Bowles counseled Petitioner that an additional tardiness would result in her being discharged. On the third work day following counseling, Petitioner was absent from work. Following this absence, Petitioner was discharged for her attitude, tardiness, and absenteeism. She was replaced by a Hispanic female. Respondent has an extensive, well-conceived, Equal Employment Opportunity policy which prohibits unlawful discrimination. This policy is posted in the workplace and is distributed to every employee as a part of the Employee Handbook at the time he or she is employed. There are published procedures which can be easily followed by an employee who believes that he or she has been the victim of unlawful discrimination. Although she acknowledged awareness of the policy, Petitioner did not avail herself of it. Ms. Bowles, Petitioner's supervisor, hired, promoted and then, demoted Petitioner. No evidence received supports Petitioner's contention that Ms. Bowles or any other employee of Respondent unlawfully discriminated against Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that Petitioner's Petition for Relief be dismissed. DONE AND ENTERED this 15th day of September, 2005, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Dennise Raines 1165 West 16th Street, Apartment B Sanford, Florida 32771 Andrew G. Wedmore, Esquire Jill Schwartz & Associates 180 North Park Avenue, Suite 200 Winter Park, Florida 32789-7401 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether respondent discharged petitioner on account of his national origin? Whether respondent refused to rehire petitioner on account of his national origin and/or because he filed a complaint alleging discrimination?
Findings Of Fact Born in Uvalde, Texas, petitioner Nicasio Guadalupe Ramos, 42 years old at the time of the hearing, is an American citizen of Hispanic or Mexican race, ancestry, heritage and national origin, who, since 1971, has lived in Defuniak Springs, county seat of Walton County, Florida. Walton County's written personnel policies refer to a "PERSONNEL MANAGEMENT DEPARTMENT" and to a "personnel department . . . under the direction . . . of the personnel director," Petitioner's Exhibit No. 1, but other County employees or county commissioners themselves effectively decide before the Commission officially hires and fires. Responsibility is diffuse. E.g., T.284, 309. Hard Worker Mr. Ramos started work at the Walton County landfill on February 2, 1988, at $3.35 an hour. At first he spent most of his time picking up stray paper, opening the gate for garbage trucks, and "tripping" trailers to unload the garbage. Like other landfill employees, Mr. Ramos worked more or less steadily while the landfill supervisor, Clinton Earl "Frog" Ward was at the landfill. After three or four months, Mr. Ward, Clarence Johnson and John "Big John" Curry began teaching petitioner to use heavy equipment including the excavator or "pan," the "chipper" and the "dozer" ("how to work the blade, how to spread the dirt.") T.237. According to a co-worker, Mr. Ramos performed "different jobs like all the rest of us." T.31. When the sign maker quit, Mr. Ramos was assigned that job. If "somebody was missing on the dump truck or the garbage boxes," (T.240) he filled in there. He never turned down requests to work as a night guard, requests that sometimes came only near the end of a full day's work. He once operated the excavator every day for two successive work weeks. On September 16, 1988, he was promoted to "Landfill Equipment Operator." Petitioner's Exhibit No. 11. He became a "permanent" instead of a "temporary" employee, and his wages increased to $5.15. T.240. A cost of living increase in the fall of 1988 raised his wages to $5.35 an hour. T.258. Unfriendly Overseer With one exception, Mr. Ramos got along well with his fellow workers, none of whom was Hispanic. "Nick was one of the boys." T.44. The exception was James Ellis, the assistant landfill supervisor who had moved to Walton County from Lake Placid, Florida. Mr. Ellis once expressed the opinion that "the only thing [Mexicans are] good for is to knock their heads [off]." T.255, 280. He referred to Mr. Ramos as a "gook," a "dago" (T.85) and "that Mexican." T.96. A "long time before" (T.42) it happened, Billy Franklin Reynolds heard Mr. Ellis "say that he was going to get rid of Nick Ramos as soon as he got in a position to do that." T.42. Another co-worker, Harold Ross Daughtery, heard Mr. Ellis say that "whenever he got to be in charge . . . the first one he would fire would be Mr. Ramos." T.44. Harold Eugene Floyd heard Mr. Ellis say "if he ever got to be boss, he would run [Mr. Ramos] off." T.68, 74. Mr. Curry, who heard Mr. Ellis make such remarks (T.77-8) four or five times (T.82), "didn't figure he was joking." T.83. Unlike Mr. Curry (or Mr. Floyd who was uncertain), Messrs. Reynolds and Daughtery testified that they did not take seriously Mr. Ellis' threat to get Mr. Ramos fired. But, in this regard, events proved Mr. Ellis' sincerity. 1/ Mr. Ellis' used racial or ethnic epithets repeatedly to refer to petitioner. Perhaps that is what led Mr. Ramos to ask him one day why he did not like him. When, in the course of the same conversation, Mr. Ramos asked Mr. Ellis whether he had "ever met any Mexicans that [he] like[d]," (T.256) Mr. Ellis answered abusively, in the negative. If Mr. Ward left Mr. Ellis in charge of the landfill, many of the men loafed inside a shed while Mr. Ramos continued working, doing "the dirty stuff" (T.256) that Mr. Ellis assigned him. On such occasions, Mr. Ramos was often "the only one picking up papers or being in the pit, pulling tires out" (T.255) of garbage. T.86. At hearing, nobody except Mr. Ellis had anything unfavorable to say about Mr. Ramos' job performance. In fact, Mr. Ramos did a good job despite the unfair treatment he received at Mr. Ellis' hands. Petitioner was never disciplined, counseled or warned about his work performance even by Mr. Ellis. T. 251. Highly reliable, he "worked in the tire pit" (T.252) the day after the doctor drained his knee. On another occasion, to avoid infection, he wanted to follow his doctor's advice to take "a couple of days" (T.252) off after he had some "lumps" surgically excised. But, even though he arranged to swap shifts with Dewey Collinsworth, Mr. Ellis refused to allow the exchange, and Mr. Ramos reported for work. Reduction In Force In the summer of 1989, the Walton County Commission decided to reduce expenses by discharging County employees. T.11. It fell to Charles R. "Ronnie" Hudson who, as Walton County's public works director for the last three and a half years, reports directly to the Walton County Commission, and is responsible for (among other things) the County's landfill, to lay off landfill workers. Mr. Hudson asked Mr. Ward, the landfill supervisor, to list four employees he could do without (T.151) and to "make an evaluation on the men . . . [explaining] that there was going to probably be a layoff." T.91. The "next day probably," (T.216) Mr. Ward gave Mr. Hudson a written list and evaluation, Petitioner's Exhibit No. 2, and "told him [he] could get by with three men laid off, but . . . couldn't get by with any more than that." T.220. They talked about the three men Mr. Ward had selected. When Mr. Ward handed Mr. Hudson the list and evaluation, he understood Mr. Hudson to agree that "there needed to be three men laid off" (T.220) instead of four. On one page and a fraction of another (T.153) from a legal pad, Mr. Ward had written: Clarence Hobbs Harold Daughtry Earl Robinson NO COMPLAINT Earl Griggs ON THESE MEN John Mann KEEP THESE MEN Dewey Collinsworth Nick Ramos E.B. Phillips Billy Reynolds Clarence Hobbs truck driver Harold Daughtry operator Earl Robinson operator Earl Griggs clerk and signs maker Dewey Collinsworth clerk and sign maker John Mann operator Nick Ramos operator John Curry truck driver or Lee S. Campbell I need to keep 8 of these men until something changes need men [fo]r now Johnny Peters E.B. Phillips night guards Billy Reynolds I need to keep these men for now if I use another man to replace one of the Night Guards it will short me to[o] bad. We can let 3 men go but any more than that will short me to[o] much when something change[s] I can get by with less men Harold Floyd - operator Not dependable calls in sick a lot and has been siding around on roads and don't give notice until the day he is going to be off and won't do any thing unless we tell him to do something and don't look after the equipment at all John Curry - operator a good worker but keeps confusion between the other men and that causes lot of trouble he has already got one complaint form turned in on him Lawton Mathews - garbage truck he is a good worker and reports to work but he is old enough to retire he is failing fast he works with Clarence Hobbs on Garbage truck Petitioner's Exhibit No. 2. On what may have been the other part of the second or evaluation sheet of Petitioner's Exhibit No. 2, see Appendix A, 2/ Mr. Ward wrote: Lee S. Campbell Garbage truck he has been parked at his house on truck when he was on job it takes him to[o] long to go from box to the other and don't see after his truck to[o] good but he shows up to work good Johnny Peters - Night Guard he has had one complaint form turned in on him becuase there was about 48 or 50 gallons of Fuel went missing out of the DU cat ? on the night he was there Respondent's Exhibit No. 2. Whatever Respondent's Exhibit No. 2's origin, Mr. Ward did not give it to Mr. Hudson. Mr. Ward did not and would not have recommended Mr. Ramos' layoff, even if convinced that four men had to be laid off. If Mr. Hudson had asked him to suggest a fourth candidate for a layoff, Mr. Ward would have suggested John Scott Mann, (T.214) or so he testified at hearing. 3/ Later on, when Mr. Ramos asked, Mr. Ward told him not to worry about being laid off. Having "heard there was a layoff coming" (T.244), Mr. Ramos also spoke to Walton County Commissioner Wilson Holley, and asked him if there were vacancies on the road crew he supervises. Commissioner Holley, who had known Mr. Ramos for several years and had employed him on a road crew for about a week once, when over 16 inches of rain fell and "they needed some help," (T.242), told petitioner "that he had been checking up on [him], that [he] was doing good out there and not to worry about it." T.244. Meanwhile, without discussing the matter with Mr. Ward, Mr. Ellis also prepared and furnished Mr. Hudson a list of names and evaluations. Three of the evaluations had a familiar ring but the fourth was all Mr. Ellis' work: Harold Floyd: Not dependable. Days out of work, and when he is out, he does so without notice. In my opinion when he is at work, he don't give 100%. His work ability if fair. John Curry: He keeps confusion among the men and also between the foreman and the asst. foreman. He has also been written up once concerning the matter. His work ability is good. Nick Ramos: Was hired on as a laborer, then transferred to chipping machine, then to sign machine. He's been on the sign machine four weeks now, and he's not catching on to it very fast. I have tried him on the equipment, and he didn't catch on to it either. His work ability is fair. Lawton Mathews: He is eligible for retirement. He has talked about retiring. His work ability is fair. We may talk to him about cutting back and he may go ahead and retire. Petitioner's Exhibit No. 3. Mr. Hudson recommended that the Walton County Commission let all four men go. Mr. Ramos did not stop to pay for his coffee on his way out of the restaurant to see Ronnie Bell the morning the news broke. Like other men who were fired, Mr. Ramos first learned about the decision when he read about it in the newspaper on July 12, 1991. Not Rehired Mr. Bell, Walton County's administrative supervisor, had nothing to do with the decision to discharge Mr. Ramos, and told him as much. Mr. Ramos then left Mr. Bell's office in the courthouse annex for the landfill where Mr. Ward assured him he had not recommended his layoff. When he tried to talk to Mr. Ellis about it, "he walked off and he mumbled something." T.247. Mr. Ramos and the three other landfill employees laid off at the same time received official notification in letters dated July 13, 1989, that their employment would end on July 31, 1989. Mr. Mathews decided to retire. The letter to Mr. Ramos stated: Please be advised that if any openings become available in the future for which you are qualified, you will be one of the first considered to fill that opening. Petitioner's Exhibit No. 5. Mr. Ramos again sought out Commissioner Holley to ask for work, and also approached Commissioner W. F. "Rabbit" Miles, asking him if work was available. Some weeks after the layoff, Commissioner Holley telephoned with news of an opening for a night guard at the landfill. The next day, petitioner spoke first to Mr. Bell then to Mr. Hudson, to whom Mr. Bell referred him, about the position. Mr. Hudson said he knew nothing about an opening, but suggested Mr. Ramos check back. Mr. Ramos returned that afternoon, the next morning and every morning thereafter "for about a week." T.161, 247. Each time Mr. Hudson professed ignorance of the job vacancy, until the last time, when he told Mr. Ramos that "they had done hired Harold." T.249. Not only was Mr. Hudson in fact aware of the opening, he was actively recruiting to fill it. He offered the job to John Curry (T.184), who turned it down because he had found other, better-paying work. "Why don't you call Nick?" Mr. Curry asked Mr. Hudson at the time. "I wouldn't hire him back," was Mr. Hudson's answer. T.87. Harold Floyd got the job. T.163. Complaint Filed Mr. Ramos retained a lawyer who wrote the Walton County Commission on August 4, 1989, requesting petitioner's reinstatement, or in the alternative, a grievance hearing. Petitioner's Exhibit No. 9. (The request was never honored, although a like request by a non-Hispanic employee was.) Harold Burkett began work as a night guard on September 13, 1989. Petitioner's Exhibit No. 14. On November 8, 1989, Mr. Ramos filed a complaint with the Florida Commission on Human Relations. The number of "personnel at the landfill now [not counting prisoners assigned to work there after County employees were laid off (T.270)] is roughly fifty per cent of what it was at the time of Nick and them's layoff." T.175 But Walton County has "replaced, . . . transferred . . . [and] hired," id., employees at the landfill since then, rehiring Harold Floyd temporarily and adding Harold Burkett, Danny Burgess, Timmy Ray Jones and Russell Floyd, all "white Americans" given jobs for which petitioner is qualified, or would have been (T.257) but for his wrongful termination. Messrs. Burgess, Jones and Russell Floyd began work after County officials learned that Mr. Ramos had complained to the Florida Commission on Human Relations. Asked why petitioner was not offered the job given to Mr. Burgess, who was hired as an equipment operator, Mr. Hudson testified that there was no reason "that I know of, you know, other than - - well, no one ever said anything about Nick, you know, being interested . . . ." T.172. In fact, Mr. Hudson was well aware that petitioner wanted a job with Walton County government, as were Mr. Ellis, who succeeded Mr. Ward as landfill supervisor, Mr. Bell and more than one county commissioner. Asked why petitioner was not offered the job Mr. Russell Floyd was given, Mr. Hudson said he knew of no reason. T.173. Commissioner Miles told Mr. Ramos 4/ that Commissioner Sam Pridgen "wouldn't hire [him] back . . . since [he] had filed a complaint against the County." T.284-5. Commissioner Holley testified, "Nick has a record of suing people that he's worked for and that weighs heavy on people's mind, I would imagine." T.310. (No Walton County Commissioner ever said anything to petitioner about his race. T.285.) Lost Wages County employees got a four percent raise on October 1, 1989, another four percent raise on October 1, 1990, and a three percent raise on October 1, 1991. The County made unspecified contributions to the Florida Retirement System at all pertinent times. For single employees, the County paid monthly insurance premiums of $120.10 in 1989, $123.66 in 1990 and $132.12 ($126.62 + $5.50) in 1991. Petitioner's Exhibit No. 3. Assuming no promotions and only cost of living raises, if petitioner had continued working for the County in the same position through the date of the final hearing, he would have received pay and insurance benefits totalling $33,015.60. Instead, after Mr. Ramos lost his job, he mowed grass, cut trees down, painted houses, washed cars and did other odd jobs to make what money he could. T.251, 282. He earned about $2,000 from such jobs in the last five months of 1989. His 1990 income was more than $2,800 but less than $2,900; and his 1991 income was "three thousand." T.282. He has been unable to find regular employment, but has "never been on food stamps or any kind of assistance." T.251. Before the final hearing began, one of petitioner's two attorneys, Mary Koch Polson, had reasonably expended 14.95 hours, Petitioner's Exhibit No. 16, pursuing this claim, and costs aggregating $234.49 had reasonably been incurred. Petitioner's Exhibit No. 17. Ms. Polson bills her time at $125 an hour, and the reasonableness of this rate was not called into question. (Mr. Ramos paid his first attorney $1500, but the reasonableness of this fee was not stipulated and has not been established by evidence.) Aside from the first attorney's fees, prehearing costs and fees aggregate $1868.75.
Recommendation It is, accordingly, RECOMMENDED: That the FCHR enter a final order (a) directing respondent to rehire petitioner as soon as an opening arises that he is qualified to fill that pays at least $5.95 an hour plus benefits; (b) awarding back wages (net of offsets) in the amount of twenty-five thousand, two hundred fifteen dollars and fifty- nine cents ($25,215.59) plus interest; (c) awarding costs and fees in the amount of eighteen hundred sixty-eight dollars and seventy-five cents ($18,868.75); and (d) awarding such additional amounts as are necessary to compensate him for lost wages including interest until he returns to work with the County or spurns a suitable offer, plus attorney's fees and costs reasonably incurred since the final hearing began. DONE and ENTERED this 24th day of April, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1992.
Findings Of Fact The Petitioner, Melvin Blum ("Mr. Blum"), was employed by the Respondent National Enquirer, Inc. ("National Enquirer"), 2/ from 1962 until his voluntary resignation in June 1980. The National Enquirer publishes a weekly tabloid newspaper in Palm Beach County, Florida. Since joining the National Enquirer, Iain Calder ("Mr. Calder") has held various positions as an employee and officer of the publication and its affiliated companies. Mr. Calder first joined the Enquirer in 1964 as London Bureau Chief. In 1967, he came to the United States as articles editor, a position he held until the early 1970's. In due course, he was promoted to senior articles editor, executive editor, editorial director, and then editor in 1975. In 1976, Mr. Calder became President of the National Enquirer. After the death of the owner, Mr. Pope, in 1988, Mr. Calder became Chairman of the company in order to sell the publication. After new owners acquired the publication, Mr. Calder became editor-in-chief of the publication and executive vice- president of the parent company. In December 1995, Mr. Calder stepped down as editor-in-chief and president and assumed the position of editor emeritus. Mr. Calder has known Mr. Blum for close to 30 years. Mr. Calder was familiar with Mr. Blum's work. When Mr. Calder was editorial director and then editor, Mr. Blum indirectly reported to him through his department head. Additionally, Mr. Calder would occasionally sit in as managing editor to learn the business of layouts. During those occasions, he would directly supervise Mr. Blum. While not close friends, Mr. Calder and Mr. Blum occasionally socialized outside of work. In Mr. Calder's view, while Mr. Blum was talented in using photographs, he had problems with headlines and with writing. Malcolm Hayes ("Mr. Hayes") first joined the National Enquirer in 1973. On his first stint at the publication, he held the positions of deskman, assistant editor, associate editor, and then managing editor. Mr. Hayes left the National Enquirer in 1986. Upon his return in 1989, he served in the position of assistant managing editor and then assumed his current position of managing editor upon the death of the prior managing editor, Nat Chrzan. Mr. Hayes first met Mr. Blum when he joined the National Enquirer in 1973. They worked together for seven years. While working together, Mr. Hayes had an opportunity to observe Mr. Blum's work. It was Mr. Hayes' general impression that while Mr. Blum was efficient, thorough, and had good layout skills, he had problems with words and headlines. Mr. Blum has had a hearing impairment since he was 17 years old. During the 18 years Mr. Blum worked at the National Enquirer, he wore a hearing aid. Both Mr. Calder and Mr. Hayes knew Mr. Blum wore a hearing aid while he worked at the National Enquirer. Neither Mr. Calder nor Mr. Hayes felt it was an impediment to his work. It was never considered a negative factor. Mr. Calder believed he communicated well with Mr. Blum while he worked at the publication. Mr. Calder did not view it as limiting Mr. Blum's ability to perform his job in any way. In July of 1990, Mr. Blum wrote to Mr. Calder inquiring about the possibility of returning to work at the National Enquirer. Mr. Calder wrote a cordial letter in reply indicating that there were no openings for the position of a deskman. Additional letters were exchanged between Mr. Blum and Mr. Calder. In a February 1, 1991, letter, Mr. Calder wrote to Mr. Blum informing him there were still no available positions on the "desk." He further indicated that should a position become available, it would be the decision of the Managing Editor whether to rehire him. While Mr. Calder had the authority to hire and always retained veto power, it was his philosophy and policy not to mandate that his department heads hire a particular individual. Upon the resignation of a key member of Mr. Hayes' staff, Mr. Hayes attempted to fill a position on the "desk" with an individual who had in addition to "desk" experience, desktop publishing skills and management potential. The paper was moving into computers and was looking for someone with those skills. Additionally, Mr. Hayes' deputy at the time indicated that he did not want to serve in that role and fill-in for Mr. Hayes in his absence. As the term is used at the National Enquirer, a deskman is an individual who is a layout editor and writes headlines, writes captions, edits copy, and basically puts the pages together. Two members of Mr. Hayes' staff recommended William Condie ("Mr. Condie") for the position. Both individuals had worked with Mr. Condie when they were employed by the New York Post. Mr. Condie was at the Post at the time he was recruited. The National Enquirer had previously been very successful in recruiting newspaper people from the New York Post. Mr. Condie met both the experience requirements and the skill requirements that the National Enquirer was seeking. Mr. Condie had been involved in "desk work" for thirty years. He had served in various "desk" capacities at the London Daily Express, New York Daily News, and New York Post. Mr. Condie had a lot of experience in laying out pages. He was also a very good headline writer with good word skills. In addition to his extensive desk experience, Condie had worked with computers both at the New York Daily News and the New York Post. He also had a personal computer at home and was somewhat of a computer buff. Mr. Condie's background also reflected management experience. Prior to coming to the National Enquirer, Mr. Condie held the position of Night Managing Editor at the New York Post; the Post was considered one of the premier tabloids in the country. Mr. Condie was responsible for supervising all aspects of production of the newspaper after the first edition. He had performed in other management positions as well. Mr. Calder had known Mr. Condie for more than 30 years. Mr. Calder had an opportunity to work with Mr. Condie when Mr. Condie had previously worked at the National Enquirer. At one point in time early in their careers, Mr. Calder had reported to Mr. Condie. Based on his experience and skills, Mr. Condie was invited to the National Enquirer for a try-out in May 1991. At the end of the trial period, Mr. Condie was offered a position. The decision to hire Mr. Condie was made on or before June 5, 1991. Mr. Hayes made the decision to hire Mr. Condie which was approved by Mr. Calder. Mr. Condie began his full-time employment at the National Enquirer on July 8, 1991. The National Enquirer hired Mr. Condie on the basis of his qualifications. Since Mr. Condie was hired, no other positions on the "desk" became available at the National Enquirer. Neither Mr. Hayes nor Mr. Calder viewed the hiring process as a competition between Mr. Condie and Mr. Blum. Had Mr. Condie never been a candidate, Mr. Blum would not have been selected for the position. Mr. Blum lacked the qualifications that the National Enquirer was looking for in a candidate. Both Mr. Hayes and Mr. Calder were familiar with Mr. Blum's abilities and limitations. Mr. Hayes had worked with Mr. Blum for seven years. During that time, Mr. Hayes had an opportunity to observe Mr. Blum's professional work. While he felt Blum was efficient and thorough and had good layout skills, he felt Mr. Blum had problems with words and headlines. The nature of the publication had also changed since Mr. Blum had worked at the National Enquirer. Mr. Blum also did not have the management experience that Mr. Hayes was looking for in a candidate. During his entire time at the National Enquirer, Mr. Blum was never in a management position. Since leaving the National Enquirer, Mr. Blum's only managerial experience was at Senior Power, a free newspaper he started with another individual. While Mr. Blum was responsible for all business decisions, editorial decisions, and finances at Senior Power, it was a naive business concept and a financial failure. Given their personal experience with Mr. Blum, both Mr. Hayes and Mr. Calder felt that his personality was not conducive to supervising people. Additionally, Mr. Blum had no desktop computer experience at a major tabloid. Given their familiarity with Mr. Blum's experience and skills, neither Mr. Hayes nor Mr. Calder considered Mr. Blum a viable candidate for the position for which Mr. Condie was hired. Mr. Blum has no written evidence that the National Enquirer discriminated against him on the basis of his hearing. Mr. Blum knows of no statements made by Mr. Hayes, Mr. Calder, or anyone else evidencing discrimination against him on the basis of his hearing. In fact, Mr. Blum believes he was not rehired because of a grudge. Mr. Blum's hearing impairment played no role in the National Enquirer's decision not to rehire him. Mr. Blum filed his Charge of Discrimination on March 26, 1992.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case dismissing the Petition For Relief and denying all relief sought by the Petitioner. DONE AND ENTERED this 27th day of September, 1996, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1996.
Findings Of Fact The Respondent is an employer under the 1992 Florida Civil Rights Act. Petitioner was employed by Respondent as a laundry attendant in the Laundry Department. Petitioner was hired originally as a cashier in one of the restaurants but was transferred shortly thereafter. Petitioner was employed by Respondent from June 1990 through June 14,1994. Petitioner is a female Hispanic American, and a member of a protected class. Petitioner was born and raised in Puerto Rico and her first language is Spanish. Although she has lived and worked in the United States since 1979 and speaks English well, her reading and writing skills in English are not well developed. On June 25, 1990, as part of the application process, Petitioner was given a medical questionnaire to complete. The questionnaire contained 25 questions relating to Petitioner's past and present physical condition. Question 23 reads: "Have you ever had any occupational disease or serious injury resulting in a worker's compensation claim?". Petitioner checked "no". Question 24 reads: "Have you had any other serious accidental injuries?". Petitioner checked "yes" and explained "arm operation". Petitioner misread question no. 23. She thought that the question was asking if she was receiving worker's compensation benefits at that time, which she was not. She did not ask for assistance in completing the questionnaire because she believed that she had read and understood the questions correctly. Petitioner did receive worker's compensation benefits for an elbow injury which occurred in 1984. During her four year employment at the Dolphin Hotel, Petitioner had several supervisors who rated her work performance as average/satisfactory in her annual performance review. During her employment, her pay had been increased for a starting salary of $5.65 per hour to approximately $6.75 per hour, plus overtime. At the time of her termination, Petitioner's job performance was rated as good by her immediate supervisor On June 9, 1994, it came to the attention of the Respondent's Human Resources Department that Petitioner had filed a claim and received worker's compensation benefits in the early 1980's and had not acknowledged it on her application. Following a conference between Petitioner and Human Resources personnel, Respondent made a determination that Petitioner had falsified information on her employment application. She was terminated on June 14, 1994. Respondent's policy is that falsification of records is an offense which requires termination of the employee. There are no exceptions. Over the four year period, 1990-1994, Respondent determined that between 12 and 15 employees had falsified information on their employment application and all had been terminated. Petitioner failed to prove, as she alleged, that the real reason for her termination was due to her speaking Spanish with other co-workers while on the job. Respondent demonstrated that of the 45 people working in Petitioner's department most were minorities, including 20 who were Hispanic including Petitioner's immediate supervisor. Respondent's stated reasons for its decision to terminate Petitioner were not proven to be pretextual.
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 November, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1995. COPIES FURNISHED: Armida Ramos 181 La Paz Drive Kissimmee, Florida 34743 Carl Maada Division of Labor Relations Walt Disney World Dolphin Hotel 1500 Epcot Resort Boulevard Lake Buena Vista, Florida 32830 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent.
Findings Of Fact Respondent, St. Andrews Bay, is a licensed nursing home that provides in-patient care to its residents. Its facility is located in Panama City, Florida. In order to provide its service, Respondent employs a variety of racially diverse personnel, consisting of both permanent and contract employees. Towards that end, Respondent maintains a variety of employment discipline and transfer policies that are contained in the Employee Handbook for St. Andrews Bay. The April 2011 Employee Handbook, which was in effect in August 2011, set forth the policy regarding transfers, as follows, in relevant part: Employees who wish to be considered for a transfer or promotion to a vacant position may apply if the employee is of "Good Standing." In addition to being in "Good Standing," the employee must possess the following: The minimum qualifications for the position: Received no progressive disciplinary action within the past six months (emphasis added). * * * The Employees Handbook, also, provided for progressive discipline. Such discipline included, in ascending order, coaching, first/second written warnings, suspensions, and Performance Improvement Plans. Petitioner is a black male. As such, Petitioner is a protected person under chapter 760, Florida Statutes. In January 2006, Petitioner was employed by Respondent as a Dietary Aide. As an employee, Petitioner received a copy of, or had access to, Respondent's discipline and transfer policies. At some point, tardiness for work became a problem for Petitioner. Indeed, his supervisor considered him a competent employee with some tardiness issues and, on April 6, 2011, disciplined Petitioner with a "coaching" for being two hours late for work without notifying anyone that he would be late. Although the dates are unclear, the evidence showed that Mr. Munn, who is a white male, worked as a laborer for ManPower. Through a contract between ManPower and St. Andrews Bay, Mr. Munn was performing painting, maintenance, and any other work the Maintenance Director assigned, for approximately four to five weeks, beginning sometime in July 2011. Around August 3, 2011, a sign-up sheet was posted at St. Andrews Bay for the position of Maintenance Assistant. The sign-up sheet was posted to notify any current employees of the job opening and allow them to apply for the position by signing the posted sheet. Within less than six months of Petitioner being disciplined, Petitioner, along with two other current employees, indicated their interest in the Maintenance Assistant position by signing the sign-up sheet. The other two employees who expressed interest in the maintenance position did not testify at hearing and no findings are made regarding their qualifications or, more importantly, Respondent's knowledge regarding their qualifications. Per Respondent's policy, Petitioner did not have to complete an application for the maintenance position since he had two applications, one dated January 4, 2006, and one dated October 24, 2007, on file with the Respondent. Neither of these applications reflected that Petitioner had prior maintenance experience. One application reflects that Petitioner owned a restaurant known as "Daddy's Place." One application reflects that Petitioner was the cook at Daddy's Place. However, neither ownership nor cooking experience indicates maintenance experience and there was no evidence that Respondent knew that Petitioner worked other than as a cook in his restaurant or had any other maintenance experience from such ownership. Moreover, under Respondent's transfer policy, Petitioner was not qualified to sign up for the maintenance position since he had received disciplinary action within six months of this transfer opportunity. On the other hand, the evidence showed that Mr. Munn applied for the position of floor tech at St. Andrews Bay in December of 2010, but was not hired for that position. Unlike Petitioner, and in addition to Mr. Munn's current maintenance work experience at Respondent's facility, Mr. Munn's application reflected some experience in maintenance, albeit not extensive experience. However, like Petitioner, Mr. Munn's application for employment was already on file. Therefore, it was not necessary for Mr. Munn to fill out a second employment application for the position of Maintenance Assistant. Petitioner's policy regarding on-file applications is reasonable and was applied to both black and white applicants in this case. There was no competent evidence that demonstrated this policy was a pretext for discrimination. Petitioner was not interviewed for the position. However, the evidence did not show that anyone was formally interviewed for the maintenance position. On these facts, lack of formal interviews does not demonstrate discrimination by Respondent against Petitioner since Respondent was already familiar with the two applicants at issue in this case. On August 8, 2011, Wesley Munn was selected for the Maintenance Assistant position by the maintenance supervisor, Mr. Emmanuel. Although somewhat unclear, the evidence demonstrated that Mr. Munn's selection was approved by the then Administrator of St. Andrews Bay, Tunecia Sheffield, who is black. Neither of these two individuals testified at hearing. However, the evidence at the hearing did not demonstrate that Respondent discriminated against Petitioner when it hired Mr. Munn for the maintenance position. Conversely, the evidence at hearing demonstrated that Mr. Munn's hiring had a reasonable basis since Mr. Munn had some maintenance experience and was already performing the duties for which he was hired. There was no competent evidence that demonstrated Respondent's reasons for hiring Mr. Munn to be a pretext for discrimination. Therefore, given these facts, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the Petition for Relief. DONE AND ENTERED this 31st day of August, 2012, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2012. COPIES FURNISHED: Tiffany A. Minton, Esquire Preferred Care, Inc. 5500 West Plano Parkway Plano, Texas 75093 Jimmy L. McClain 1527 Grace Avenue, Apartment C Panama City, Florida 32405 Lacey Corona, Esquire Broad and Cassel Suite 205A 200 Grand Boulevard Destin, Florida 32550 Maureen McCarthy Daughton, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 mdaughton@broadandcassel.com Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 violet.crawford@fchr.myflorida.com Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Respondent committed unlawful employment practices as alleged in the Petition for Relief served by mail March 20, 1987. Ten subparagraphs of that Petition address individual allegations, each of which are discussed fully in the following conclusions of law.
Findings Of Fact Petitioner Brahim Derder is a citizen of Algeria with permanent resident status in the United States. At all times relevant, he was an adult male resident of the State of Florida, classified by his employer as "Black." Petitioner is a person within the meaning of Section 760.02(5), Florida Statutes. Petitioner graduated from the University of Miami with a Bachelor's Degree in Industrial Engineering in 1980. Prior to his employment with Respondent American Telephone and Telegraph Information Systems (ATTIS), he was employed from 1981 to 1983 by another subsidiary (Southern Bell) of Respondent's parent company, American Telephone and Telegraph (AT&T), as a marketing representative in Miami, Florida. Respondent ATTIS is in the business of selling and leasing data and voice terminal equipment. Petitioner became an employee of ATTIS in 1984. Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. Petitioner was terminated by Southern Bell as a result of his alleged failure to pass one of its required training courses. He was subsequently reinstated as a result of a complaint resolution pursuant to Southern Bell's own internal affirmative action program, also known as an equal employment opportunity (EEO) complaint resolution. Thereafter, Petitioner continued to be uneventfully employed by Southern Bell for about a year. Approximately August 1983, AT&T began preparation for court-ordered divestiture. Divestiture required the separation of the Bell operating companies from AT&T. Petitioner was assigned to a division within ATTIS in Miami due to the divestiture and its resulting reorganization. Once within ATTIS, Petitioner successfully protested through internal ATTIS-EEO channels a "limited contribution" performance rating given him upon his exit from Southern Bell, and obtained a change to "not rated," which rating, in turn, resulted in a modest pay increase. The subsidiaries of AT&T, like their parent company, had established formalized but voluntary internal EEO/Affirmative Action programs. At no time prior to Petitioner's termination by ATTIS in November 1985, did Petitioner file any charges of discrimination with any external governmental agency, including but not limited to the Federal Equal Employment Opportunity Commission or the State of Florida Commission on Human Relations. In 1984, ATTIS downsized its work force and Petitioner's position was "surplused." Petitioner was offered a position with ATTIS in Atlanta, Georgia but rejected it and located a job at ATTIS' Data Systems operation in Orlando, Florida. Once at ATTIS in Orlando, Petitioner worked under the supervision of four different managers in the course of approximately two years until his involuntary termination on November 18, 1985. This was a period of ongoing reorganization for the AT&T subsidiary and personnel changed frequently. Also, normal employee review and appraisal procedures were not always followed to the letter. Nonetheless, none of the four different ATTIS supervisors for whom Petitioner worked in that period of time found Petitioner's job performance to be satisfactory. Petitioner worked under Lowell Rogers' direct supervision from approximately April 1984 until the end of that year. Because Mr. Rogers accepted a position in New Jersey, he was not always available on ATTIS' Orlando jobsite even though he technically continued to have an office there until well into 1985. The written performance appraisal prepared for Rogers' signature reads in pertinent part: Based upon his exposure to training in the areas listed above, his performance has not been what would normally be expected within the given time frames. * * * Mr. Derder must devote both the time, motivation, and sincere desire to learn and adapt to both technical and development tasks which would allow him to be a more productive employee. It appears that other factors (relocation and job classification issues, etc.) consume far too much time and as a consequence, his training and productivity has suffered to date. (P-3, P-4) The appraisal was not, however, wholly negative. Steve Holmes, Petitioner's second supervisor, showed Rogers' appraisal to Petitioner approximately April 22, 1985 without Rogers' signature thereon (P- 3), and Petitioner made the cognitive leap without any valid foundation, that Holmes (not Rogers) had negatively rated Petitioner for discriminatory reasons only. Rogers did not physically sign this negative appraisal until May 16, 1985 (P-4). Petitioner's confusion concerning Rogers' negative appraisal is reasonable because the appraisal had been signed first by Rogers' supervisor, the District Manager, on January 22, 1985, before being returned for Rogers' signature and Petitioner had received a merit increase on his year's employment anniversary in April 1985 based on his 1984 service, but no discriminatory motivation or act was proven with regard to Rogers' evaluation. Steve Holmes was Petitioner's supervisor at ATTIS in Orlando from January 1985 until May 16, 1985. His exit evaluation of Petitioner was also negative as follows: Brahim has been substantially distracted from the performance of his job by an almost obsessive belief that he has been unfairly treated with regard to his transfer into AT&T-IS ... Brahim needs to treat deadlines with more urgency. He needs to plan his work more effectively so as to identify possible problem areas and develop remedies before they become overwhelming. He needs to double check his work for errors in data (typo's) and information ... (P-12) Petitioner's work for Holmes was to gather data for a report on the Integrated Services Digital Network (ISDN) project. The project involved conversion of several small lines and switches to bigger ones at many locations nationwide. The information gathered was generated from numerous sources geographically scattered throughout the United States. Although component information changed daily as the actual switchovers progressed, the overall intent behind the report was to assemble data, collate it into meaningful graphic tables and verbal explanations, and present it as a finished printed report which could be published monthly and presented to higher levels of management so that the past month's progress could be assessed and future planning decisions could be wisely made. Petitioner's view was that a computer/word processor was necessary to complete his task, whereas management felt Petitioner's input prior to typing of the report could be done with paper and pencil or possibly with paper and pencil and a calculator. Petitioner was nonetheless permitted to use an IBM-PC computer assigned to a peer employee. Petitioner felt his ISDN report had to be rewritten entirely each time there were any data changes whatsoever because the different sections within the report were interdependent. Management had contemplated that because the report would be published monthly, at some point each month Petitioner would reconcile all available data for that month and publish the report. Although Petitioner submitted many draft versions of the ISDN report, which was intended to be published monthly, a final version of the report was never completed by Petitioner to Holmes' satisfaction over at least four months of report drafts. Mr. Holmes felt that the Petitioner was not properly assessing the interdependent sections and relating them to one another so as to give an accurate overview for any single month. Early in their association, Holmes called these problems to Petitioner's attention. Holmes had contemporaneously provided Petitioner with an analysis of his May 1985 ISDN submission, pointing out over 300 alleged errors by Petitioner. At formal hearing, Holmes expressed his concerns with regard to several months' submissions by showing one mathematical error of $300,000 on one of Petitioner's submissions, and by indicating that such an error was one example of several similar significant errors made repeatedly by Petitioner. Holmes indicated that the $300,000 error illustrated how the interdependence of rapidly changing data had not been accounted for by Petitioner, who apparently changed data entries piecemeal, as the data became available, without reconciling data as of one single given date each month. Holmes made distinctions between Petitioner's errors of omission, which Holmes had called to Petitioner's attention and which Petitioner often could rectify, and Petitioner's errors of internal contradiction within the reports which Petitioner seemed unable to comprehend. Simply stated, Petitioner always had some part of the report "out of sync" with another or other parts. Petitioner incorrectly attributes Holmes' criticisms of this and all of his ISDN report submissions to mere cosmetic or stylistic opinions or to Holmes' unawareness of the most up-to-date data. Holmes eventually would not accept Petitioner's relying on ISDN project delays (field implementation delays not attributable to Petitioner) as excuses to cover up ISDN report delays which clearly were attributable to Petitioner. Holmes described Petitioner's problem with the entire project as one of Petitioner's inability to conceptualize the project as opposed to Petitioner's unwillingness to do the project. In assessing the two witnesses' respective approaches to the report, Mr. Holmes' explanations are less emotional, more reasonable, more detailed, and more credible than are Petitioner's. Petitioner used ATTIS' internal EEO procedures to protest his performance appraisals by Rogers and Holmes and to object to the paygrade assigned to him when he came to work with Orlando ATTIS. Once in Orlando, Petitioner had discovered that the maximum of his paygrade range at Orlando ATTIS was lower than the maximum of his paygrade range at Miami ATTIS had been. Petitioner showed no reason management should correct Petitioner's inadvertent error but claimed Holmes blocked attempts which otherwise would have been successful to upgrade Petitioner's paygrade. Holmes denies it, stating he had no such authority. Concerning Petitioner's paygrade adjustment request, there is no space on the form requiring anyone in Holmes' position to approve it. Apparently, a higher superior named Ron Phillips signed the request for a concurrence by David L. Oertle and then signed "R.E. Phillips for David L. Oertle" [emphasis supplied] in the space wherein Mr. A Oertle's concurring signature was required (P-10). Why the paygrade adjustment did not go through under these peculiar circumstances or if there were other management considerations why it was not consummated is anybody's guess, but discrimination or interference by Mr. Holmes with regard to the paygrade adjustment request was not proven. Holmes admits he became aware of an internal EEO investigation of himself requested by Petitioner with regard to the failed pay adjustment request as set out infra. The paygrade adjustment was never a "promotion" as characterized by Petitioner. Mr. Holmes does not deny that he was aware in December 1984 that Petitioner had filed two previous internal EEO complaints at Southern Bell and at Miami ATTIS. He discussed these with Petitioner when Petitioner first joined his workforce because one complaint was ongoing and Holmes was afraid it would detract from some of Petitioner's work time. Early in 1985, Holmes noted these concerns in a personal journal he used to record many different kinds of events at his office. Petitioner acknowledged that he threatened Holmes with an EEO complaint at Orlando ATTIS if Holmes would not sign off on the paygrade adjustment request (TR 91). Holmes, already leery of Petitioner, and increasingly dissatisfied with Petitioner's job performance, gradually began to record in his personal journal reminders relating to Petitioner's job performance. In approximately April, 1985, upon suggestions from internal EEO personnel, Holmes began to more carefully document in his journal his confrontations with, and performance-related concerns about, Petitioner. When Petitioner discovered that portions of Holmes' journal relating to him had been circulated by Holmes to upper management, Petitioner perceived Holmes' actions as purely retaliatory for his EEO involvement and prepared by Holmes solely to get Petitioner fired for discriminatory reasons attributable to racial, ethnic, and national bias. I find that although Holmes' journal includes references to Petitioner and Petitioner's EEO involvement, the entries taken as a whole are reasonable under the circumstances and anticipatory of future need to document employee problems rather than evidence of discrimination against an employee for that employee's exercise of EEO involvement. Petitioner's allegations that Steve Holmes was improperly and unlawfully motivated for this journal are not adequately substantiated. Holmes declined Petitioner's request to sign his AB-36 form (P-19) so as to permit Petitioner to transfer divisions within ATTIS because Holmes felt Petitioner's past job performance for him did not merit the transfer to another job in the international or out-of-state geographic areas and in the substantive areas Petitioner had requested and because Petitioner presented the form to him simultaneously with Petitioner's move to another workforce within the same district. Also, the jobs listed were not necessarily open. In that new workforce, Petitioner was supervised by his third supervisor, Gus Schulties, for what was admittedly a very short period of time, approximately three months, one month of which Petitioner was on vacation. The credible evidence as a whole does not establish that Petitioner was transferred due to any belief in the truth of Petitioner's charges against Rogers or Holmes, but that it was in the nature of diffusing a bad situation created by Petitioner and giving Petitioner an opportunity to perform better. Around August 20, 1985, Schulties was reassigned and replaced by Barbara Wayne. Schulties' evaluation of Petitioner includes the following commentary: I think he should have been able to do more on his own effort. I do not believe he has the initiative to get deeply involved. * * * This employee needs development in many aspects of the data communications environment. (P-32) Schulties' written evaluation was signed by Petitioner's next supervisor, Barbara Wayne, because Schulties had been relocated on the date it was due. Later, Schulties concurred in the decision to terminate Petitioner. Mr. Schulties was present when Ms. Wayne fired Petitioner on November 18, 1985. Petitioner had worked for Wayne for approximately three months. While working for Ms. Wayne, Petitioner was orally counselled several times concerning his inability to conceptualize job assignments so as to achieve results, and these sessions were contemporaneously documented by Wayne, whose testimony at hearing was consistent and credible. Petitioner never achieved the objectives which directly applied to his job and which were set for him by Ms. Wayne. While working under Holmes, Schulties, and Wayne, Petitioner produced a number of what might be termed "self-assigned projects" of cosmetic or internal employee relations value, but these projects were not always directly related to the Petitioner's job or his employer's project objectives. While Petitioner established that ATTIS management would not approve all of the company training he wanted, his requests for such training were not always reasonable in relation to the subject matter of projects to which he was assigned, nor were his requests always reasonable in relation to management standards of cost-effectiveness and the employer's need for Petitioner's presence on the job. All of management's denials or non-approvals of training were reasonable in the context of balancing of costs against expected productivity to be gained from the training. Petitioner was, in fact, approved for, and attended, several training courses, and was paid overtime when he taught himself computer programs on nights and weekends, even though the use of the computer was nonessential to his job duties from management's perspective. Petitioner never established by direct credible evidence that other employees in similar circumstances at ATTIS Orlando were given the training he was denied or that his job truly required the training which he was denied. Petitioner speculated that certain employees resented him because he had a Bachelor's Degree which they did not have, but "college graduate" is not a statutorily protected classification. Several employee witnesses had at least some college courses. A college degree was not necessary for employment or promotion at ATTIS. Employee resentment that Petitioner did not meet deadlines and avoided necessary tasks he felt were below him did exist. Petitioner's initial internal (P-15, P-16) and external (P-40, P-41) complaints did not raise an issue of verbal slurs of national or racial tone, but his Petition for Relief does. At hearing, Petitioner initially accused supervisors Wayne and Holmes, and a coworker, Shipp, of making ethnic jokes and derogatory comments about Petitioner's race and national origin. However, Petitioner conceded that neither Schulties nor Rogers were ever out of line and that Wayne had very little conversation with Petitioner about his ethnic background or race. Petitioner testified that his relationship with Mr. Shipp was satisfactory except that Mr. Shipp repeatedly made comments and jokes concerning Petitioner's light skin and not being as black as a typical African; wanted to know about Petitioner's wife when Petitioner told Mr. Shipp that he had married a black woman; made some discriminatory comments concerning Petitioner's education and schooling in Africa; referred to Petitioner's family as "zebras" and "camel drivers," and suggested Petitioner had bought his University degree. As might be expected, all ATTIS personnel denied making any racial or ethnic slurs. Giving Petitioner every benefit of the doubt that some hurtful, biased comments may have been made by Shipp and Holmes, Shipp was only Petitioner's team leader for a short period of time when Petitioner was assigned to Barbara Wayne, and he was essentially Petitioner's peer. Shipp, like other employees, had input to Wayne's final evaluation, but he was not the sole source of Wayne's displeasure with Petitioner's performance, and Shipp never evaluated Petitioner. Petitioner was transferred away from Holmes' supervision in response to Petitioner's internal EEO complaints against Holmes, which complaints apparently were never verified by EEO and which complaints apparently never alleged any record of ethnic or racial slurs by Holmes. Petitioner concedes that he did not wish to make much of the comments and jokes around him and also took offense at most of his coworkers declining his invitations to coffee and lunch. Shipp did occasionally eat and take breaks with him. There apparently was little socializing in this workforce and Petitioner seemed to misunderstand that. It was also clearly established that the Respondent employer has in place an aggressive internal anti-discrimination grievance and affirmative action policy and procedures which Petitioner had free access to and which repeatedly gave him the benefit of the doubt. It was also affirmatively put forth by Petitioner that he made a point of confronting Mr. Schulties, Ms. Wayne, and Mr. Shipp and of telling each of them that he had had successful internal EEO actions, and/or that he had complained about Holmes before any one of them had any significant contact with him. (TR 176-177, 242, 251-252). Petitioner also affirmatively put forth that he "begged" Schulties and Wayne not to be prejudiced against him almost upon first meeting with each. I conclude that this overly aggressive and hypersensitive behavior on Petitioner's part resulted in his misconstruing some conversations and constituted a non- pretextual reason for Wayne to carefully document each meeting with Petitioner. Petitioner showed that one employee (Karnes) was negatively rated by Ms. Wayne for the first time but was permitted additional time to improve his performance without immediate termination, but Karnes' single negative evaluation does not correlate to Petitioner's negative ratings from four successive supervisors so as to demonstrate unequal treatment of Petitioner. Petitioner perceives all criticisms of, or negative comments about, his job performance as incorrect and without merit but the accuracy of his perception has not been adequately substantiated in this proceeding, and I find that his poor job performance was his employer's and supervisors' primary motivation in terminating Petitioner's employment. Petitioner's charges of discriminatory treatment are based largely on his perception or conjecture that there could be no nondiscriminatory reason for management's actions since he had the academic qualifications to do the job and the willingness to do it. However, his repeated failure to timely complete projects to his employer's specifications is sufficiently documented in the record. Petitioner's education and ability notwithstanding, Petitioner's performance was unacceptable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Human Relations Commission enter a Final Order dismissing Petitioner's Petition for Relief. DONE and RECOMMENDED this 25th day of February, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1258 The following constitute rulings pursuant to section 120.59(2), Florida Statutes, upon Petitioner's and Respondent's respective proposed findings of fact (PFOF). Petitioner's PFOF 1-2. Except as subordinate or unnecessary covered in FOF 1. 3-4. Irrelevant. Except as irrelevant, covered in FOF 1. Rejected as not supported by the greater weight of the credible competent evidence but see FOF 22. 7-18. The only relevant and material history of Petitioner's relationship with Southern Bell is set forth in FOF 3. To the extent these proposals are not covered there, they are irrelevant or immaterial to any dispositive issue in this cause. 19. Covered in FOF 6. 20-23. Except as covered in FOF 6-7, rejected as immaterial. Covered in FOF 8. Not supported by the greater weight of the credible competent evidence as set forth in FOF 8. Job descriptions are not dispositive of any material issue in this cause. Petitioner received oral and written job descriptions at appropriate times. Covered in FOF 9. Covered in FOF 9-10. 28-29. Rejected as not supported by the greater weight of the credible competent evidence which resulted in the FOF 12-13. Had uppermost management approved the change, it would have gone through and there is insufficient proof it was justified just because Petitioner inadvertently accepted a lower pay grade and meant to accept a higher pay grade or that Petitioner interpreted a lateral transfer as being lateral in all respects including salary, when it was not. Peripherally, see the conclusions of law (COL). 30-32. Subordinate and unnecessary but it is noted that Petitioner's PFOF 31-32 admits receipt of a job description in this position and workforce. See peripherally FOF 11. Covered in FOF 11. Immaterial. 35-40. The proposals are mostly mere recitations of part of Petitioner's testimony as opposed to statements of ultimate or even material fact. Additionally, as stated, these proposals are not supported by the greater weight of the credible evidence as a whole. See FOF 11. 41-42 and 44. Immaterial and not dispositive of any issue at bar. 43 and 45. Covered in FOF 10-11, and 22. Rejected as not supported by the greater weight of the credible evidence as a whole. Moreover, Petitioner admits elsewhere in the record that if being told why and how his job performance needed improvement was counselling, the counselling occurred. The Hearing Officer recognizes that "counselling," "criticism," and "harassment" are all subjective words and has considered both the credibility and perspective of all witnesses' testimony and has considered all the documentary evidence in making these findings of fact. Covered in FOF 11. 49. Rejected as not supported by the greater weight of the credible evidence and as related in FOF 11. 48, 50-52. Except as subordinate and unnecessary, covered in FOF 8- 10. Except as subordinate and unnecessary, covered in FOF 19. Covered in FOF 12-13. Covered in FOF 10. There was some overlapping of supervisory- authority as found in FOF 7-12. However, the minimum inconsistencies in testimony and documentation recited by Petitioner's proposal are accounted for due to early failure to document, the on-again, off-again supervision of Mr. Rogers, and Petitioner's mid-year transfer to Mr. Schulties' supervision. Petitioner's proposal is therefore not consistent with the record as a whole, is immaterial, and is not dispositive of any material issue at bar. 56-72. FOF 13-14 cover relevant facts as supported by the greater weight of the credible competent evidence as a whole. Petitioner's proposals are not consistent among themselves and are mostly recitations of Petitioner's testimony concerning his own internal but unsubstantiated perceptions of events, and are rejected for those reasons and in certain respects, as demonstrated by the facts as found in FOF 13-14 and FOF 22, are not supported by the record as a whole. Other rejected material is rejected as subordinate or unnecessary as is also demonstrated by the ultimate facts as found in the recommended order. Rejected as not supported by the greater weight of the credible evidence as a whole. See FOF 11. Most of this proposal is rejected as subordinate and unnecessary. The remainder is rejected as not supported by the record as a whole. See facts as found in FOF 12- 15, and 20. Covered in FOF 20. 76 and 78. Subordinate and unnecessary and not dispositive of any issue at bar. 77. Rejected as not supported by the greater weight of the evidence as a whole except as covered in FOF 18. 79. Covered In FOF 17. 80-81. To the extent supported by the greater weight of-the credible competent, substantial evidence of record, these PFOF are covered in FOF 15-16; otherwise rejected as not so supported. 82, 86, 87. Rejected as not supported by the greater weight of the credible evidence as a whole and as not dispositive of any issue at bar; Petitioner received a job description under a different title plus considerable oral explanation. If Wayne did not reply in writing to every memorandum, it is immaterial. 83-85. Rejected as-covered in FOF 18. Petitioner did not establish that employees in similar circumstances were given more or different training than he was denied. 88-99. Again these are largely recitations of Petitioner's testimony rather than statements of ultimate fact. None are necessary or dispositive of a material issue at bar. The requests for additional work are immaterial since Petitioner was consistently being told he was not satisfactorily completing his basic assignments. See FOF 16, 20, and 22. Petitioner's PFOF 97 and 98 are also immaterial in that Petitioner appropriated all team credit to himself and passed off all personal inadequacies onto the team. See FOF 17 and 22. Except as set out supra, the PFOF 88-99 are subordinate and unnecessary. 100. Subordinate and unnecessary, but see FOF 16 and 17. 101-104. Except as subordinate and unnecessary or as not supported by the greater weight of the credible evidence, covered in FOF 19-20. 105-107. Rejected as stated because they are misleading of the record as a whole. Subject matter covered in FOF 15-16 and 20. 108-114. Except as subordinate or unnecessary or as not supported by the greater weight of the evidence, covered in FOF 15-16. 115. Unnecessary. Respondent's PFOF 1,3. Covered in FOF 1. 2. Covered in FOF 2-6. Covered in FOF 7, 15-16. Covered in FOF 1-6. 6-8. These proposals are generally rejected because they consist of many paragraphs, sentences, footnotes, and quotations which are not appropriately divided out and numbered pursuant to Chapter 120, Florida Statutes, and Rules 22I-6.24 and 22I-6.31, Florida Administrative Code, and instructions contained in the post-hearing order and authority cited therein, and which contain lengthy and burdensome recitations from documentary exhibits and of testimony rather than statements of ultimate facts to be found. Further, they contain large quantities of subordinate and unnecessary material interspersed with mere argument of counsel. Where they could be accepted, they are covered in FOF 7- 22. COPIES FURNISHED: Donald A. Griffin, Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Vidal Marino Velis, Esquire 2100 Coral Way, Number 300 Miami, Florida 33145 Sherryll Martens Dunaj, Esquire 501 City National Bank Building 25 West Flagler Street Miami, Florida 33130
Findings Of Fact The Petitioner, John W. Cohen, Jr., began employment with the Respondent, Department of Health and Rehabilitative Services ("HRS") Duval Detention Center, on June 26, 1976. His position was that of Detention Care Worker I. He continued in that position as a permanent employee until his final dismissal of July 25, 1989, which is the subject of this proceeding. In the course of his employment with the Respondent, the Petitioner has complained of instances of unfair treatment on numerous occasions with both informal complaints and grievances and formal complaints. The current case arises from the Petitioner's claim that his dismissal of July 25, 1989 was discrimination in the form of retaliation, that is, the employer's alleged retaliation as the result of the previously- raised complaints and grievances. The Petitioner maintains that he first became aware that his repeated use of grievance procedures involving his employer was noticed and resented by the circulation of a cartoon in his work place, which depicted his supervisor threatening to shoot the Petitioner with a large firearm in retaliation for using grievance procedures. The Petitioner and his supervisor were named in the cartoon. The Petitioner filed a formal complaint with the Jacksonville Equal Employment Opportunity Commission on March 3, 1985 as a result of this belief. The Petitioner again felt that he had suffered disparate treatment by his supervisor, Ms. Thelma Menendez, while he worked under her supervision for the Respondent agency. Ms. Menendez found the Petitioner to be a good employee and gave him favorable performance appraisals but stated that she had a problem with the Petitioner because of his tardiness and excessive absence. The Petitioner was ultimately terminated for tardiness and excessive absence and filed a retaliation and harassment complaint with the Jacksonville Equal Employment Opportunity Commission in response to that action by the agency. It developed, apparently in the course of investigation and proceeding with regard to that complaint, that the agency's records revealed that other employees, similarly situated to the Petitioner, some of whom apparently worked on his shift, had exhibited tardiness to the same or to a greater degree than the Petitioner, and that some of them had suffered less severe discipline, as imposed by their supervisor, Ms. Menendez. The Respondent acknowledged this problem and took action by reprimanding Ms. Menendez for her failure to document and respond appropriately to abuses of leave procedures and excessive tardiness by all employees. Because the Petitioner was aware that other employees on his shift had been frequently tardy without experiencing disciplinary actions of the same severity, he filed the retaliation and harassment complaint mentioned above. This complaint ultimately culminated in a negotiated settlement agreement between the Union representatives and attorney, who represented the Petitioner, and the Respondent. This settlement reversed the termination and reduced it to an agreed-upon 30-day suspension. Apparently, the Petitioner initially refused to sign the settlement agreement because he felt that the 30-day suspension, itself, was also harassment. On two occasions, allegations of child abuse against the Petitioner were made, pursuant to Chapter 415, Florida Statutes, apparently in connection with the supervisory duties over children in custody at the Respondent's facility where the Petitioner was employed. It is standard practice with the Respondent that any employee who has such allegations made against him must be removed from supervisory duties over children whenever the allegations are pending and until they are resolved. During the investigatory and resolution process concerning such child abuse allegations, employees are customarily and routinely reassigned to another job with the agency, which does not involve direct supervision of clients or children. Such events frequently occur at the Juvenile Detention Center. On the two occasions involving the Petitioner, the Petitioner was reassigned to maintenance duties at the Respondent's facility. The Petitioner consistently protested this reassignment to maintenance duties because other employees in similar situations had not been reassigned to maintenance duties but, rather, to other employment duties, not involving maintenance. Although he protested the reassignment for this reason, he performed in the maintenance or janitorial capacity for over 13 months. The Petitioner remained in the maintenance position, pursuant to his reassignment, because of the allegations pending against him until an Order of the Division of Administrative Hearings was issued and, presumably, an agency Final Order, which removed the disqualification involving the child abuse allegations, effective July 22, 1987. Upon his second such reassignment to maintenance duties, on August 16, 1988, the Petitioner refused to climb up on the roof of the building to perform roof repair work when asked to do so by his supervisor. Instead, he filed a complaint with one of his supervisors, Sub-district Administrator Lucy Farley. In any event, because both allegations of child abuse were disproved, the Petitioner was reassigned to his normal duties as a Detention Care Worker I. The only reason for reassignment to the maintenance duties was because such removal from child supervision duties is mandatory under Department rules and policies. Although the Petitioner maintains that he was subjected to harassment of some sort because he was the only known employee who was given maintenance duties in the face of such allegations, it was established that he was reassigned to maintenance or janitorial duties because those were the only positions available in order for him to continue employment with the agency at the facility until the charges were resolved. His salary and benefits were not affected by this action. It was not demonstrated that he was singled out for reassignment to maintenance duties for any reasons of harassment, disparagement or disparate treatment of any kind. Likewise, it was not proven that the cartoon allegedly circulated in the Petitioner's work place was published by, authored by, or otherwise done at the instance of or within the knowledge of the Respondent. Thus, it cannot be probative of any intent or motive on the part of the employer to harass the Petitioner on the basis of previously- filed grievances or complaints against the employer or for any other reason. It cannot serve as evidence that the ultimate dismissal, which is the subject of this proceeding, constituted a retaliatory dismissal by the employer. On July 14, 1989, the Petitioner reported to work on the 7:00 a.m. to 3:00 p.m. shift, at the Duval Regional Juvenile Detention Center. He was performing his regular duties as a Detention Care Worker I. The client population was high in the facility at that time, and employees were generally unable to take regularly-scheduled breaks from their duties. On that morning, the Petitioner worked without a break from 7:00 a.m. to approximately 11:50 a.m. He then maintained that he felt ill and notified Mr. Arnett Morrell and Mr. Carlton Smith, his coworkers and/or supervisor, that he intended going to the staff lounge to eat. Prior to leaving his work area ("Module A"), the Petitioner advised Mr. Bernard Brock, who was the "Floor Coordinator" between "A" and "B" Modules, that he needed to go eat. He secured Mr. Brock's agreement to cover his module or duties while he took a break. The Petitioner then proceeded to "master control", the control center for the facility. At the master control station, Detention Care Worker Supervisor, Reginald Chambliss, asked the Petitioner why he had not followed proper procedures by calling the master control center before he left his module to come to master control or to leave his module for any reason. The Petitioner responded by explaining that he had secured coverage of his duties and his module from Mr. Brock and two other workers. He also stated to Mr. Chambliss that he had not had a break since 7:00 a.m. that morning and was feeling sick. After some discussion, the Petitioner advised Mr. Chambliss again that he was sick and needed to eat or that he would have to take leave time. Mr. Chambliss then gave the Petitioner his keys so that he could unlock his personal effects. The Petitioner then returned to his module to get his personal effects. The Petitioner later returned to master control to "clock out" because he had apparently decided to leave the work place. Mr. Chambliss approached the Petitioner in the vicinity of the time clock and informed him that he would not be able to authorize him taking leave time that day if the Petitioner left the building. The Petitioner moved toward the time clock in order to carry out his intention to "clock out" of the building while Mr. Chambliss was standing between him and the time clock. Mr. Chambliss repeated his instructions to the Petitioner that if he clocked out, he would not approve his taking leave. The Petitioner ordered Mr. Chambliss to get out of his way, which Mr. Chambliss did not do. Then the Petitioner apparently swore at Mr. Chambliss and said something to the effect of "I am tired of this shit" and then struck Mr. Chambliss one or more times, inflicting a cut in the vicinity of his eye. The Petitioner then apparently left the immediate vicinity of Mr. Chambliss at the master control station. Mr. Chambliss called Supervisor II, Andrea Cash, on the intercom and she came to the area of the master control station where the incident occurred. He informed Ms. Cash of the details of the incident. When Ms. Cash arrived, the altercation was over and the Petitioner appeared relatively calm, although Mr. Chambliss was still upset. Ms. Cash then contacted District Administrator, Lucy Farley, who contacted her immediate supervisor, in turn, by telephone. On instructions from her superiors, Ms. Cash ordered the Petitioner to leave the facility and not to come back. She notified all shifts verbally and by memorandum that if the Petitioner should return to the facility, the Sheriff's Office should be summoned. Mr. Chambliss was advised by superiors to press charges and did so. Ultimately, however, he and the Petitioner entered into an agreement to drop the charges; and the State's Attorney did not prosecute the assault charge. On July 27, 1989, the Petitioner was notified by Administrator, Lucy Farley, that his dismissal would be effective at 5:00 p.m. on July 25, 1989. The Petitioner met with Ms. Farley in the company of an AFSME Union Representative on July 24, 1989 apparently to discuss some sort of resolution to the conflict; however, Ms. Farley terminated the Petitioner. The Department has a policy that any assault or striking of an employee or supervisor is adequate grounds for termination. Mr. Chambliss and other supervisory personnel consider an employee assault to be an unusual and severe incident. The Petitioner was terminated for assaulting another staff member and using abusive language toward that staff member. Because the Petitioner struck his supervisor three times, causing injury to him, in an unprovoked manner, it was determined by the employer to be reasonable grounds for termination. The Department's rules and policies allow for termination for such an offense, and whether or not mitigating circumstances are considered is discretionary with the employer. The Petitioner made no showing of any disparate treatment in this regard. He made no showing that other employees had assaulted a co-employee or supervisor and had not been terminated but, rather, had been subjected to either no discipline or some lesser degree of discipline. In fact, the Petitioner did not demonstrate that any other such assault incident had occurred. The Petitioner simply showed no instances where other employees similarly situated, involved in a similar incident had been subjected to less severe discipline. Consequently, the Petitioner made no showing of a prima facie case of disparate discriminatory treatment in connection with his termination.
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 the Petition of John W. Cohen, Jr. be dismissed in its entirety. DONE AND ENTERED this 30th of January, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-7300 Petitioner's Proposed Findings of Fact 1-4. Accepted, but not necessarily as probative of material issues presented. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. 7-10. Accepted, but not as probative of material issues presented, standing alone. 11. Accepted, but not in itself probative of the material dispositive issues presented. 12-14. Rejected, as not entirely in accordance with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. 15. Accepted, but not itself dispositive of material issues presented. 16-23. Accepted, but not in themselves dispositive of the material issues presented. Rejected, as not entirely in accordance with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself dispositive of material issues presented. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 27-28. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accordance with the preponderant evidence of record. Rejected, as immaterial. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as being immaterial. Accepted as to the first clause, but as to the second, rejected as not being entirely in accordance with the preponderant evidence of record. Rejected, as irrelevant. It was not demonstrated that other employees for whom mitigating circumstances may have been considered were similarly situated to the Petitioner in the instant case situation. Respondent's Proposed Findings of Fact 1-11. Accepted. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 D. Ola David Qualified Representative 600 Victory Gardens Drive Tallahassee, FL 32301 Scott Leemis, Esq. HRS District 4 Legal Office P.O. Box 2417 Jacksonville, FL 32231-0083
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner on the basis of his race in violation of the Florida Civil Rights Act, when Petitioner was an employee of Respondent.
Findings Of Fact From November 2004 until early 2008, which period includes all times relevant to this case, Petitioner Robinson Nelson ("Nelson") worked for Respondent Alutiiq-Mele, LLC ("AML") as a security guard. Nelson, who is black, alleges that on two discrete occasions, AML unlawfully discriminated against him based on race, once denying him an overtime shift which he requested, and the other time refusing to assign him "equal work hours." The first incident allegedly took place on "or about March 1, 2005." According to Nelson, he called his supervisor that day, using a telephone at his workstation, to ask that he be scheduled to work overtime on his day off. The supervisor, Nelson claims, told him that overtime had been "eliminated" and denied Nelson's request. Shortly thereafter, as Nelson tells it, the supervisor called Nelson's coworker, Nadja Abreu, and offered her the overtime that Nelson had just been denied. Nelson's story cannot be squared with AML's records, which the undersigned considers reliable and truthful and hence credits. Nelson's timesheet for the week of February 27 through March 5, 2005, shows (and it is found) that he worked all seven days that week, putting in 40 regular hours and 26 overtime hours. Ms. Abreu's timesheet for the same period shows (and it is found) that she worked four days, accruing 40 regular hours and four overtime hours. At hearing, Nelson claimed (apparently for the first time) that the telephone conversation with his supervisor regarding overtime had not occurred on or about March 1, 2005—— as he had alleged originally in his Charge of Discrimination (signed on November 20, 2005) and maintained as recently as the Joint Prehearing Stipulation (dated May 30, 2008)——but rather some two weeks later, on or about March 15, 2005. Again, however, credible contemporaneous records belie Nelson's claim. A payroll document shows (and it is found) that Nelson and Ms. Abreu each worked 40 regular hours during the week of March 13, 2005——and neither put in overtime. (Moreover, Nelson did not work on March 15 and 16, 2005, which means that, if Nelson called his supervisor on March 15, as he asserted at hearing, then he likely would not have been at his workstation at the time, which is inconsistent with his testimony that he placed the call while at work.) Regarding the second alleged incident of discrimination, Nelson claims that on Monday, October 31, 2005, shortly before 9:00 a.m., he received a telephone call at home from his supervisor, who wanted to know why Nelson had failed to report for work that morning. Nelson says he told his supervisor that he had not been scheduled to work that day, and he could not work because he was babysitting. Nelson complains that, in connection with this situation, AML "denied" him regular work hours because of his race. In addition to being facially illogical, Nelson's claim of discrimination is contradicted by reliable and persuasive documentary evidence. First, AML's payroll record shows (and it is found) that Nelson worked four hours on Sunday, October 30, and seven-and-a-half hours each day the next Tuesday through Friday, making a total 34 regular hours during the week of October 30, 2005. While this was not quite a full-time workweek, that Nelson worked fewer than 40 hours one week is not, of itself, proof that AML "denied" him six hours of work. In fact, AML did not "deny" Nelson a work opportunity, as other contemporaneous documents——not to mention Nelson's own testimony——show. In evidence are two work schedules pertaining to the week of October 30, 2005. One was printed on October 28, 2005, and the other on October 30, 2005. There are a number of differences between them; each, however, notes that "scheduled hours are subject to change as needed." On the earlier schedule, Nelson was to be off on Monday, October 31, 2005. On the subsequent schedule, he was to work from 9:00 a.m. to 4:00 p.m. that day. Had Nelson reported to work on October 31, 2005, as (ultimately) scheduled——and as he was asked to do——Nelson would have worked more than 40 hours the week of October 30, 2005. Ultimate Factual Determinations Taken as a whole, the evidence in this case is either insufficient to establish that AML discriminated unlawfully against Nelson on the basis of his race; or it proves, affirmatively, that AML did not, in all likelihood, unlawfully discriminate against him. Either way, it is determined, as a matter of ultimate fact, that AML did not violate the civil rights laws in its treatment of Nelson while he was an employee of AML.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding AML not liable to Nelson for racial discrimination. DONE AND ENTERED this 23rd day of July, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 23rd day of July, 2008. COPIES FURNISHED: Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141 Christine L. Wilson, Esquire Jennifer A. Schwartz, Esquire Jackson Lewis LLP One Biscayne Tower, Suite 3500 2 South Biscayne Boulevard Miami, Florida 33131 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
