The Issue The issue for determination in this proceeding is whether the Respondent discriminated against Petitioner on the basis of handicap under Section 760.10, Florida Statutes, or disability under the Americans with Disabilities Act (ADA), by failing to award him the physical science/chemistry teaching position at Nease High School.
Findings Of Fact Petitioner applied for a position in 2002 and renewed the application in 2003. As a result of the 2002 application, Petitioner was offered a job, which he declined before attending orientation. On the 2002 application, Petitioner fully disclosed that he had been found guilty of DUIs in 1986 and 1988. In 2004, Petitioner became aware of a teaching position as teacher at Nease High School in the Respondent's school system. He was very interested in the position, called about the position, and was told that he must update his application on-line, which he hurriedly did. He was interviewed by Robert Corson, who was then the vice principal of Nease, who found that he was well qualified as a graduate of the U.S. Naval Academy with a degree in engineering who had taken three or four courses in physics. Petitioner was not certified, but there would have been no problem in getting him a temporary certificate that would permit him to teach while taking education courses to qualify him for certification in Florida. Corson observed that there were not a large number of quality applicants for hard science positions today, and Petitioner was the best qualified of the three candidates who applied. Just before orientation, Respondent's Human Relations (HR) office called and advised Corson that there was a problem with Petitioner's application because he had failed to report an arrest. It was normal for HR to tell the school the nature of the problem. HR told them that they would have to repost or re- advertise for the position, which they did. Corson reported that he failed to establish contact with Petitioner, but that the HR office was able to stop him at the orientation as he entered, and have Petitioner call the HR office. When Petitioner called, the HR office advised him that the employment offer was withdrawn. Petitioner first went to Corson. Petitioner wanted to see the principal of Nease, Mr. Schiavone, but Petitioner was so upset that Corson told him that he would not help himself unless he calmed down. Petitioner and Corson discussed the fact that Petitioner reported the arrests on the initial application, and Corson explained that it was out of his hands, and was an HR issue. Petitioner told Corson that he was going to the HR office. Petitioner went to the HR office and spoke with Mr. Springfield, the head of HR. Ms. Geiger, the head of the Instructional Employees' branch of HR sat in on the meeting. From the testimony of Mr. Springfield, it is fairly certain that he presented the problem as a matter of Petitioner lying on his application. This was the term that Springfield used in testifying at hearing. Petitioner explained that, while he may not have completed the on-line application correctly, he certainly did not intentionally misrepresent the matter of his arrest because he had reported them in his initial application. Ms. Geiger looked in the files under O'Brien's previous job offer, and found his initial application, which reported the DUIs as Petitioner had stated. Therefore, Springfield knew on the day the offer of employment was withdrawn that there had been no intent by Petitioner to misrepresent his qualifications. There was testimony presented by the Board about its procedures, and the superintendent's requirement that all job offers be withdrawn when a background check failed to agree with an applicant's application. After the matter of the "lie" had been resolved, the position of Springfield was that Petitioner would have to reapply for the position. This Petitioner did on that afternoon. There was no conflict regarding the correctness of his second application, which did report the DUIs. It is at this point that conflicts develop in the testimony, and there is a departure from normal procedures. Springfield testified that he could not remember if Petitioner was told that he must provide proof of "treatment" with regard to the DUIs. Geiger, who was present at the meeting, testified that Petitioner was told that he must provide proof of "treatment." Petitioner did not testify. Geiger testified that she did not follow the normal procedures of writing a letter to Petitioner outlining what he must do in response to the problems with his first on-line application because he was told these things at the meeting. Geiger made a memo to herself to follow up on Petitioner's application and on July 22, 2004, sent him an e- mail "reminding" him to submit proof of treatment. On July 27, 2004, Petitioner brought his Navy medical records to Geiger for her review and based thereon she and Springfield cleared him making him an "active" applicant. Unfortunately, Nease filled the position on July 26, 2004, by hiring Ms. Nall, a certified science teacher, who was presumably not handicapped. Petitioner asserts that the withdrawal of the job offer and denying him the position was discriminatory and based upon perceived disability. The Respondent asserts that it was just following standing procedures.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter its Final Order directing that the Respondent cease and desist in the practices mentioned; that the Respondent be directed to hire the Petitioner upon his submitting an application for employment. Jurisdiction is retained for factual consideration of the damages to include costs and fees upon entry of the Commission's final order. DONE AND ENTERED this 29th day of December, 2005, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings This 29th day of December, 2005. COPIES FURNISHED: Karen J. Gallagher Qualified Representative 124 North Cove Drive Ponte Vedre Beach, Florida 32082 Thomas J. Leek, Esquire Kelly V. Parsons, Esquire Cobb & Cole Post Office Box 2491 Daytona Beach, Florida 32115-2491 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed the unlawful employment practices alleged in the employment discrimination complaint Petitioner filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The County is a political subdivision of the State of Florida. The County Park and Recreation Department (Department) is a department of County government. At all times material to the instant case, Carolyn Gibson was a Region Manager with the Department, having ultimate supervisory authority over the operations at the County parks in her region (Region 2), including Arcola Park and West Little River Park. At all times material to the instant case, Rhonda Ham was a Recreational Specialist 2/Service Area Manager with the Department, who was based at Arcola Park and worked under the immediate supervision of Ms. Gibson. Ms. Ham has been married to her husband Earl for the last 13 or 14 years. Although Ms. Gibson considers Ms. Ham to be a friend,4 her friendship with Ms. Ham has not prevented her from taking disciplinary action against Ms. Ham when the "facts" have warranted. Petitioner is a single, custodial father of three children (two daughters and son) aged three, five, and seven. He is now, and was at all times material to the instant case, "the sole support of these children." Unlike Ms. Ham, Petitioner is college educated. He attended the University of Miami and Clarksdale Community College in Clarksdale, Mississippi, before receiving his Bachelor of Arts degree from Virginia State University (VSU) in 1993. After finishing his undergraduate studies, he spent a year in graduate school at VSU. Petitioner played football in college, and he went on to play the sport professionally after being selected in the National Football League (NFL) draft. One of Petitioner's teammates on the University of Miami football team was James Stewart.5 As teammates, Petitioner and Mr. Stewart "got along with one another and communicated from time to time," but they were not "close friends" and did not "hang out" together. Mr. Stewart also went on to play in the NFL. Following his playing career, he was convicted of a felony, and, in 2001, began serving a five-year prison sentence. He was released from prison in 2006 and is currently on probation. From March 20, 2006, until December 14, 2006, Petitioner was employed by the County as a Park and Recreation Manager 1 at West Little River Park. In that capacity, he had supervisory authority over the other Department employees assigned to work at the park. At all times during his employment with the County, he was a probationary employee with no entitlement to continuing employment.6 Ms. Ham was Petitioner's immediate supervisor for the duration of Petitioner's employment with the County except for a three-week period in April and/or May 2006.7 Her office (at Arcola Park) was located approximately two miles from Petitioner's office (at West Little River Park). Ms. Ham had the authority to monitor and evaluate Petitioner's job performance and to counsel and reprimand Petitioner, both verbally and in writing. The authority to terminate Petitioner's employment resided, not with Ms. Ham, but with Ms. Gibson. It was Ms. Gibson who hired Petitioner. She did so after reviewing Petitioner's application and interviewing him. Petitioner had applied for the position on or about March 2, 2006, by submitting a filled out and signed County employment application form. By signing the application, he "certified," among other things, the following: I certify that to the best of my knowledge and belief, all of the statements contained herein, and any attachments, are correct, complete and made in good faith. I understand that a background check will be conducted and that should an investigation disclose any misrepresentation, I may be subject to dismissal. The application form had an "Employment History" section, which contained the following instructions: List previous employment history, starting with your current or most recent employment. If you have held more than one position within the same organization, list each position as a separate period of employment. Be sure to indicate where employment may be verified. Please include job-related volunteer, temporary, part-time work and military experience. On his application, Petitioner knowingly failed to disclose that he had been employed from May 30, 2005, to September 17, 2005 as a Recreation Aide V with the City of Miami Parks and Recreation Department, working under the supervision of Lewis Mahoney, who was the Park Manager at Gibson Park. As a City of Miami Parks and Recreation Department employee, Petitioner had had a poor work record and had not gotten along with Mr. Mahoney. He undoubtedly knew, at the time he filled out the County employment application form in March 2006, that Mr. Mahoney, if contacted by the County, would not have good things to say about him. Ms. Gibson did not find out about Petitioner's failure to disclose his employment with the City of Miami on the County employment application form until after she had terminated Petitioner. Had she known about this non-disclosure, she would have never hired Petitioner and allowed him to work for the County. As part of the application and hiring process, Petitioner signed various forms in addition to the County application form. One of these forms was an Oath on Outside Employment for Full-Time Employees form that Petitioner signed on March 2, 2006. It read as follows: I, Damacio Green, a full-time employee of Miami-Dade Park and Recreation Department, certify that I am not engaged in any type of outside employment. I certify that I am not paid by, nor do I receive any equivalent gratuities from, any employer for any of my services except as performed during the normal course of my employment with the Miami-Dade Park and Recreation Department. I certify that before accepting outside employment, I will submit a complete record of intended outside employment to my Department Director for approval. I will abide by the Department Director's decision on the matter. I further certify that I fully understand the County policy on outside employment outlined below. MIAMI-DADE COUNTY POLICY ON OUTSIDE EMPLOYMENT (SEC. 2-11 OF THE CODE OF METROPOLITAN DADE COUNTY, FLORIDA) No full-time County employee shall accept outside employment, either incidental, occasional or otherwise, where County time, equipment or material is to be used or where such employment or any part thereof is to be performed on County time. A full-time County employee may accept incidental or occasional outside employment so long as such employment is not contrary, detrimental or adverse to the interest of the County or any of the department and the approval required in subsection (C) is obtained. Any outside employment by any full-time County employee must first be approved in writing by the employee's department head who shall maintain a complete record of such employment. Any employee convicted of violating any provision of this section shall be punished as provided in Section 1-5, and, in addition thereto, shall be subjected to dismissal by his Department. (Ord. No. 58-5, Sec. 25.01, 2-18-58) When Petitioner "first started working" for the County, he asked Ms. Gibson if, under the County's Policy on Outside Employment, he would be able to operate his mobile food service business, Damacio's Mr. Tasty, LLC, while employed with the County. Ms. Gibson responded to Petitioner's inquiry by telling him, "You can't do it." On at least two occasions during his employment with the County, Petitioner operated his mobile food service business without Departmental approval, despite knowing that doing so was in violation of the County's Policy on Outside Employment. It was not until after Petitioner had been terminated that Ms. Gibson discovered that Petitioner had committed this violation of the County's Policy on Outside Employment. Ms. Gibson would have terminated Petitioner's employment had he still been employed with the County at the time she learned of the violation. Among the other forms that Petitioner signed during the application and hiring process was an Acknowledgment of Receipt of the County's Unlawful Harassment Policy (Administrative Order No. 7-37). He signed this form on March 2, 2006. By doing so, he acknowledged the following: I have received a copy of this Unlawful Harassment Policy and understand that it contains important information on filing a complaint of harassment with my department or the Office of Fair Employment Practices. I will familiarize myself with the Unlawful Harassment Policy and understand that I am governed by its contents. If I have questions about the policy I can contact my Department Affirmative Action Officers Yolanda Fuentes-Johns or William Lindley at (305)755-7866 or the Office of Fair Employment Practices at (305)375-2784. The County's Unlawful Harassment Policy (which was printed on the form) provided, in pertinent part, as follows: POLICY The policy of Miami-Dade County is to ensure that all employees are able to enjoy a work environment free from all forms of discrimination, including harassment, on the basis of race, sex, color, national origin, religion, retaliation, age, disability, ancestry, marital status, pregnancy, sexual orientation, or the exercise of their constitutional or statutory rights. Administrative Order 7-28 was adopted in 1987 specifically to protect County employees from sexual harassment. Administrative Order 7-28 and Administrative Order 7-6, Personnel Policy on Equal Employment Opportunity, have since been interpreted to extend similar protection to employees who believe they have been harassed for unlawful reasons other than sex. This Administrative Order is intended to make clear that all County employees who believe they have been unlawfully harassed must notify the County's Office of Fair Employment Practices or their Departmental Affirmative Action Officer and may file a complaint for prompt and proper investigation. Employees who are found guilty of unlawfully harassing other employees shall be subject to appropriate sanctions, depending on the circumstances. These may range from counseling up to and including termination. Miami-Dade County will not tolerate adverse treatment of employees because they report harassment or provide information related to such complaints. The County, in exercising reasonable care to prevent and promptly correct harassment or retaliation for reporting harassment, will protect victims from further unlawful harassment and retaliation. * * * COMPLAINT PROCEDURE Employees who believe they have been the subject of harassment prohibited by this Administrative Order, must notify the County's Office of Fair Employment Practices or their Departmental Affirmative Action Officer and, if they choose, may file a formal complaint with the County's Office of Fair Employment Practices. Employees may, if they desire, also report such incidents of unlawful harassment to their supervisor but are under no obligation to do so. Employees are encouraged to report harassment before it becomes severe or pervasive. This will facilitate early mediation and effective resolution of potential unlawful harassment complaints. All complaints of harassment, subsequent investigations and corrective actions shall be handled on a confidential basis to the extent possible under the law. Protective measures will be instituted to protect the complainant. Miami-Dade County has established procedures for resolving, filing and processing complaints of unlawful harassment. If the investigation confirms the existence of unlawful harassment, the Fair Employment Practices Office will pursue prompt corrective action, including remedial relief for the victim, and appropriate disciplinary action against the offender. * * * At no time during his employment with the County did Petitioner complain, in accordance with the "complaint procedure" described in the County's Unlawful Harassment Policy, that he was being, or had been, sexually harassed by Ms. Ham. During much of the time that Petitioner worked under Ms. Ham's immediate supervision, the two had an amicable relationship--so amicable that on one occasion, without being asked by Ms. Ham, Petitioner gave her a check in the amount $125.00 to help her purchase a dance outfit for her daughter. What started out as a friendly, non-physical relationship evolved into a sexual one, in which both Petitioner and Ms. Ham freely and willingly participated. They engaged in sexual activity on three separate occasions--once in Petitioner's office at West Little River Park and twice in Ms. Ham's office at Arcola Park. The first of these consensual sexual encounters occurred in August 2006. The third and final encounter was in October 2006. On each occasion, Petitioner was the one who initiated the physical contact. "[A]shamed and embarrassed" by her conduct, Ms. Ham decided to put an end to her adulterous affair with Petitioner. There was no further sexual activity between Ms. Ham and Petitioner after October 2006. Ms. Ham oversaw a Children's Trust-funded after-school program at Arcola Park in which Petitioner's daughter, DK, was registered. It was Ms. Ham's responsibility to make sure that children in the program were picked up from their respective schools at the end of the school day and transported to Arcola Park. After the end of the school day on November 6, 2006, Petitioner received word from DK's school that DK had not been picked up and was still at school. Petitioner ultimately telephoned Ms. Gibson on her cell phone and, in a "very loud" tone of voice, said, "Ms. Ham left my daughter, she didn't pick my daughter up from school, what are you going to do about it?" Ms. Gibson later met with Petitioner and Ms. Ham to discuss the matter and try to sort things out. During the meeting, Petitioner was, in Ms. Gibson's eyes, "irate" and "out of control." He told Ms. Gibson that she "couldn't tell him anything" because she did not "have any kids" and she "kn[e]w nothing about parenting." Ms. Gibson sensed from Petitioner's and Ms. Ham's "body language" and the way that they were "glaring at each other" at the meeting that they might be involved in a non-work- related relationship. She therefore asked them, before they left, whether they had "crossed the line." They both denied that there was anything going on between them. A few days later, Petitioner came into Ms. Gibson's office and asked her, rhetorically, "Do you think I'm interested in Ms. Ham?" He then told her, "Well, Ms. Gibson, I'm not interested in Ms. Ham, I'm interested in you." Ms. Gibson's response to this come-on was to direct Petitioner to "get out of [her] office." Petitioner was due to be evaluated on or about September 24, 2006, but it was not until November 17, 2006, that he received his first Management Performance Evaluation. This November 17, 2006, evaluation was prepared by Ms. Ham (who signed the evaluation as the "rater") with input from Ms. Gibson (who signed the evaluation as the "reviewer"). The overall rating was unsatisfactory. The evaluation contained the following narrative: ACHIEVEMENT OF OBJECTIVES: RATING: Unsatisfactory Mr. Green, you entered this department on March 28, 2006 as a Park & Recreation Manager 1 at West Little River Park. From your inception there has been an increase in participant enrollment in spring and summer camp, and [the] after school program. However, there has been a decrease in registration/attendance in your sports development program, which is the region's primary program. DECISION MAKING AND JUDGMENT: RATING: Needs Improvement Mr. Green, over the past 6 months I have had the opportunity to observ[e] your decision- making skills and often times your decisions are hasty. At your level you should take the opportunity to first identify the problem, gather the facts and make decisions based on facts and not what you are feeling at the time, i.e. sending part-timers home and then call[ing] them back to work within the hour.[8] Also, it is important that you understand parents are our customers, they might not always be right in their actions. However, as professionals we must always maintain our composure by allowing them to vent and then by explaining the circumstances rather than trying to talk over them and suggesting they bring a spouse to deal with the situation instead, as you have done.[9] PERSONAL DEVELOPMENT RATING: Satisfactory Mr. Green, you have a solid educational foundation and you have taken the initiative to enroll in PAR training to aid you in better understanding the payroll attendance record. You are currently involved in the recreation modular training. However, being new to the department it is extremely important that you make a concentrated effort to enroll in trainings in the following areas[:] time management and dealing with conflict in the workplace, progressive discipline and a host of other trainings relative to your professional development. You need to encourage your subordinate staff to enroll in training to improve their knowledge and skills. PLANNING AND ORGANIZING RATING: Needs Improvement Mr. Green, during your first six months in the department you have not taken the initiative to plan, organize or implement any special events, activities or sporting events.[10] You have not shown any creativity or enthusiasm. INTERPERSONAL SKILLS RATING: Needs Improvement Mr. Green, your relationship with your subordinate staff has been less than cohesive. There have been instances of verbal conflict and derision between you and Mr. Morgan and Ms. Johnson,[11] a seasonal employee[,][12] and several parents of patrons that you were not able to resolve satisfactorily as the leader. Although we have discussed strategies on how you can improve in this area improvement is still needed to foster the teamwork ethic at West Little River Park. You have not made an effort to understand[] how the chain of command works. It is very important that you understand your first point of contact is your Service Area Manager. If we cannot resolve the situation at my level and if you're not satisfied with the resolution, you can then request a meeting with the next level in the chain of command. COMMUNICATIONS RATING: Unsatisfactory Mr. Green, your very limited knowledge of the computer has been a hindrance for you as a Park & Recreation Manager 1. It is very important for you to have a basic working knowledge of the computer. The computer is an essential tool that is used everyday. Our reliance on them is an ever increasing fact. Mr. Green, you are not taking the initiative to learn what you need to know in order to function in your capacity as a manager. During our regional staff meetings you are not attentive and you do not take notes, yet you come back to me with questions that were covered during the staff meetings.[13] I have been supportive by consistently aiding you with your assignments. However, in many instances you have not comprehended the information well and have looked to me for more than just support. You are now faced with spreading your part- time budget and coming up with goals and objectives. You have missed every deadline given. ADMINISTRATIVE POLICY AND PROCEDURE RATING: Needs Improvement Mr. Green, an improvement is needed in the area. You have been encouraged to avail yourself of all the resources available to educate yourself on the subject of the department's policies and procedures via the use of our various manuals and through counsel with your supervisors and peers. However, you have been challenged in your role as a leader in applying them in the daily operations of the park and rapport with your staff and patrons. ADDITIONAL FACTORS RATING: Not Applicable RATER'S OVERALL EVALUATION: Unsatisfactory Is employee eligible for merit increase? Deferred. Re-evaluate in 1 1/2 months/ Is employee eligible for permanent status? N/A IN WHAT WAYS CAN OR MUST THE EMPLOYEE IMPROVE PERFORMANCE? Mr. Green, to improve your overall performance, concentrate on the following: Increase participant registration/ attendance in the Sports Development Program which has declined under your supervision. Demonstrate more leadership before subordinate staff. Enroll in department management courses. They will help in your professional growth. Enroll for "Service Excellence" training to enhance you customer service skills with patrons. Plan, organize and market at least 2 annual special events at West Little River Park. Enroll [in] computer courses to be more proficient in the use of the personal computer. Follow the chain of command as mandated by our Regional Manager and your immediate supervisor. You will be re-evaluated in the next 1 1/2 months. If there has been no substantial improvement stronger measures will be made. Petitioner prepared a written rebuttal to his November 17, 2006, evaluation, which he provided to Ms. Ham and Ms. Gibson on or about November 27, 2006. It read as follows: SECTION 2: DECISION MAKING AND JUDGMENT: RATING: NEEDS IMPROVEMENT In the subject of decision-making and judgment, I received a rating of need[s] improvement. I totally feel that this rating is unfair because of one incident that happened in a six-month period. However, the situation with the parent being treated unprofessionally is completely wrong. The parent made the statement to me of having her husband deal with the issue rather than herself. I simply responded, "If you feel that this is necessary for your spouse to speak with me rather than you, then I have no problem with it. I will be here in my office whenever he ha[s] time to speak with me." The entire ordeal was handled totally in a professional manner. SECTION 4: PLANNING AND ORGANIZING: RATING: NEEDS IMPROVEMENT In the area of planning and organizing, I received a rating of need[s] improvement, which I feel is totally unfair and incorrect. During the entire six month[] period, I never once received a memo or any corresponden[ce] to the effect that my planning and organizing skills was not up to par.[14] When I received this position on March 21st, 2006, I was given a brief overview pre-training of my duties and responsibilities i.e., administrative paper work, sports development participation, seasonal camp programming, after school daily programming and maintenance responsibilities. Special events were never mentioned. My facility participated in spring break and summer camps in which we increase[d] the numbers a great deal from past history. We also participated in every sport development cycle. According to the directions I was given, I felt as if I was totally within my responsibilities. Now to receive an impromptu surprise that I am not on task is not only incorrect but also absolutely unprofessional. SECTION 5: INTERPERSONAL SKILLS: RATING: NEEDS IMPROVEMENT I feel that this rating, needs improvement, is unfair and incorrect. During my first six months, I've had two situations with parents that are sisters, which was a misunderstanding about the kids coming into the facility unsupervised. After explaining the danger of that to the parents, they both agreed with me. The second situation had already been explained in section 2 when a parent felt she would like for her husband to address the issue rather than herself. At that time the situation was resolved without further discussion. The issues that I had with Mr. Morgan, I feel personally w[ere] created by Mrs. Ham by allowing him to break the chain of command by calling you without discussing anything with me first was wrong. When I give Mr. Morgan an assignment that he does not like, he feels that he could call you to change it. Must I remind you that Ms. Gibson warned you about this behavior during summer camp. Ms. Gibson also stated to you, "Rhonda, this is wrong! You wouldn't want Mr. Green to do this to you with me." This is not the support I expected from my immediate supervisor. I feel sabotaged, betrayed and set up for failure. In my evaluation, you mentioned me breaking the chain of command and asked me to call my immediate supervisor about any issue before contacting the regional manager. If I remained unsatisfied, what did I violate if you were contacted twice, you were told that I was unhappy with your answer and I needed immediate attention? This would mean that I followed the chain of command to the letter. SECTION 6: COMMUNICATIONS: RATING: UNSATISFACTORY The rating that I received in section 6 communication: Unsatisfactory, I feel that it is unfair and incorrect. I have basic knowledge of the computer and can perform all of my duties as a Park and Recreation Manager 1. During our regional staff meetings, I did not always take written notes because at times I recorded the meetings. However, I feel my immediate supervisor should be someone I can go to for clarity which is not outside of her responsibilities. On top of this, I was faced with spreading a part-time budget in this department for the very first time and was left hanging out to dry by Mrs. Ham. I received very little directions and had to look toward other colleagues for help. Mrs. Ham set meeting dates when I asked for help and never met them. When she finally did show, she took the work that I had already done and said, "I'll handle it from this point." Mrs. Ham may have her method of assisting her staff but I feel the more hands on involvement I have with the new work and assignments will make me effective in learning the process and being more self- sufficient with the budget assignments as well as other paper work. However, I received no correspondence or memos of any type reflecting how off the mark I was in the area of communication during the entire six months. As a matter of fact, I felt the communication between Mrs. Ham and I was great. It was so great that I had no problem doing financial favors for her when she needed it. Now for everything to turn so bad so fast, I have no choice but to feel it is retaliation [for] the call made to Ms. Gibson on the day my daughter was an hour and a half late being picked up from her school which was supposed to be done by one of Mrs. Ham's staff workers which I had to do myself because of the number of calls I received from her school. This is pertaining to the issue of the broken chain of command. SECTION 7: ADMINISTRATIVE POLICIES AND PROCEDURE: RATING: NEEDS IMPROVEMENT I received a rating of need[s] improvement, which I feel it is only natural that a new employee to need improvement in this area if it is based on the knowledge of the manual instead of knowing where to go in the manual to retrieve the information. However, I will continue to read through my operation manual and my personal handbook in my sp[are] and down time. Overall, I feel this evaluation was a personal attack for some personal reason, i.e. contacting Ms. Gibson after trying to resolve the issue with Mrs. Ham to no satisfaction. This is when I first found out I was doing such a poor job as a manager and feel th[ere] will be more retaliation. While Petitioner's written rebuttal contained various accusations against Ms. Ham of supervisory wrongdoing, it was devoid of any allegation that Ms. Ham had subjected Petitioner to any type of sexual harassment.15 On November 30, 2006, after it had been brought to her attention that Petitioner was having his subordinates complete for him written assignments that Petitioner was supposed to be doing himself for a Department-sponsored management training class he was taking, Ms. Ham sent the following memorandum to Petitioner: I was informed by your PSA Jerome Jamison that you have been delegating your Recreation Module Training assignments to him and PSA Tremaine Morgan to complete. If this is correct, please stop this immediately. The training series that you have been recommended to participate [in] requires you to complete these assignments. These exercises [are] a part of your development and training as a manager. On December 5, 2006, Ms. Ham sent another memorandum to Petitioner. This memorandum was about an incident that had occurred the previous day. It read as follows: On Monday, December 4, at approximately 2:18 p.m. you called to let me know that the key for the West Little River Park's van was misplaced and that you could not find the key. I asked you why you were just now reporting this when your driver is scheduled to be at your first scheduled pickup point at 2:00 p.m. You began to yell in a loud voice at me, "You were the one that told me to schedule my driver to report at 2 p.m." I responded that you needed to lower your voice and that you were being insubordinate and that this is my last warning. Your statement was untrue as well. I directed you to schedule your staff to report at least one half hour prior to the first pick up anticipating travel time and to inspect the van. This is not the first instance of offensive conduct to me and I am aware that you acted similarly toward our Region Manager. I have discussed your conduct with you before. Mr. Green, there must be an immediate and sustained improvement in your performance or more serious disciplinary action will result. I need the Unusual Incident Report detailing the details on the missing van keys today. On December 5, 2006, in response to the November 30, 2006, and December 5, 2006, memoranda he had received from Ms. Ham, Petitioner sent a memorandum of his own to Ms. Ham. He provided a copy of this memorandum to Ms. Gibson. The memorandum read as follows: Ms. Ham, pertaining to the memo I received on Nov. 30, 2006, stating you were told by Mr. Jamison that I was delegating my module training to him and Mr. Morgan. That alleged statement you claimed Mr. Jamison made after speaking with Mr. Jamison, he stated that it was not true. Mr. Jamison stated that he was only inquiring more about the module. Now, let me tell you what really happened. What I simply did was shared the information that was in the module training with my staff because of their daily hands on with the participants. I felt as the Park Manager that I was well within my rights to discuss the information with my staff and ask for feedback w[hether] it was verbal or written. The reason I did this was because the questions in the training w[ere] not only rel[evant] to me but to them as well because of their dealings with the participants on a daily basis. When I told them why I was doing this, they both agreed. Mr. Jamison and Mr. Morgan also told me that the few questions they went over [were] not only intriguing but also very helpful in dealing with some of the issues they encounter with some of the participants. By the way Mrs. Ham, I was told in a discussion with Mr. Jamison that the question about the module was asked three weeks ago prior to [the] Nov 30, 2006 memo I received from you. My question to you is why give me a memo pertaining to this now. Pertaining to the memo I received today on my alleged conduct on December 4, 2006 is not only unfair but also untrue that I was yelling at you when I called about the missing key. I deplore that statement. What is true that I did do the right thing by notifying and informing you about the missing key. What is also true is that contrary to popular opinion, you were the one that became angry with me because I was asking you what else could I do in terms of getting my after school participants picked up. I also asked you should I go in my personal van to make sure that they were all picked up in a timely manner. You then started . . . yelling at me in sequence, "when did you first notice that the key was missing, Mr. Jamison must be just getting to work, what time do[es] he come in and why is he coming in at 2 p.m. when he has a 2 o'clock pick-up.["] I simply stated to you that "you were the one that made me change his scheduled time to come in from 1 o'clock to 1:30 p.m. to now 2:00 p.m." which was all I said in return with my regular tone of voice. Then you replied "you better watch [your] tone of voice with me. This is your last warning about that tone of voice." When in fact, you were the one that was doing all of the yelling and I have a witness to prove it. As I stated in my rebuttal to my regretful performance evaluation which came a week later after my call to our Regional Manager when I was doing so well before then. "I feel that th[ere] will be more retaliation to come" and it is now clear that I was right. You are doing just that because of my phone call to our Regional Manger about my daughter being an hour and a half late picked up by one of [your] subordinates which I had to do myself. In his memorandum, Petitioner alleged retaliation only for his having complained to Ms. Gibson about Ms. Ham's not having picked up his daughter on time. He made no allegations of sexual harassment. On December 5, 2006, Petitioner attended a Department- sponsored training class, the title of which was "How to Maintain a Harassment Free Work Environment." The class was lead by Beatriz Lee, the Department's Human Resources Manager and its Affirmative Action Officer. In her introductory remarks, Ms. Lee told the class "what [her] role [was with] the [D]epartment." The class lasted approximately three hours, during which Ms. Lee discussed, among other things, the County's Unlawful Harassment Policy, including how to file an unlawful harassment complaint. After the class ended Petitioner walked up to Ms. Lee and indicated that he wanted to talk to her. Ms. Lee took Petitioner into her office so that they could converse in private. Petitioner told Ms. Lee that he was "having problems with his supervisor," Ms. Ham, and then showed Ms. Lee the November 17, 2006, evaluation he had received. Ms. Lee asked Petitioner why he thought these "problems" existed. Petitioner replied that he and Ms. Ham were "tight" and were "good friends" and that he "didn't understand why [Ms. Ham] was being so demanding with him, because he had even helped her out financially." During their conversation, Petitioner told Ms. Lee about Ms. Gibson's having asked him and Ms. Ham if they had "crossed the line." Ms. Lee then inquired why Ms. Gibson would ask such a question. Petitioner responded, "I guess because we were so close. Because we-–you've got to understand me and Rhonda [Ham] are very tight . . . ." Petitioner crossed his middle finger over his index finger to show Ms. Lee how "tight" he and Ms. Ham were. At no time during his talk with Ms. Lee did Petitioner claim he had been sexually harassed by Ms. Ham. On Thursday, December 14, 2006, less than one and a half months after receiving his first Management Performance Evaluation, Petitioner received his second (and last) Management Performance Evaluation. This December 14, 2006, evaluation was prepared by Ms. Ham (who signed the evaluation as the "rater"). Ms. Gibson was on vacation, so Bobby Johnson signed the evaluation as the "reviewer" in her stead. Ms. Gibson, however, "concur[ed] with the statements contained in this performance evaluation" and had already decided that Petitioner's "probation [would] be failed." The evaluation contained the following narrative: ACHIEVEMENT OF OBJECTIVES: RATING: Satisfactory Mr. Green, the sports development program registration increased by 4, however you need to continue this effort by better utilizing your present staff and by developing a recruitment strategy. DECISION MAKING AND JUDGMENT: RATING: Needs Improvement Mr. Green, your continued effort is still needed for your improvement in this area. Please follow the recommendations given to you in your last performance evaluation. PERSONAL DEVELOPMENT RATING: Unsatisfactory Mr. Green, you completed the recreation module training, although I had to advise you that you are not allowed to delegate any of the related assignments to your subordinate staff.[16] You have enrolled for department training as I recommended. Remember, you need to encourage your subordinate staff to enroll in training likewise to improve their knowledge and skills. Your effort to recruit satisfactory seasonal and year round part-time staff has been a challenge for you. I recommended that you visit the local colleges for satisfactory applicants, however, thus far you have resisted my suggestions.[17] PLANNING AND ORGANIZING RATING: Unsatisfactory Mr. Green, there have no special events, activities or sporting events implemented by you for West Little River Park or as a regional event. On December 6 during the trial budget reviews with the Region Manager it was noted that you had set a goal of forming a basketball league to operate from January-May 2007. However in your planning you failed to include adequate time for publicizing the event in the community. You should have routed all your budget related items through your Service Area Manager. INTERPERSONAL SKILLS RATING: Unsatisfactory Mr. Green, improvement is still needed to foster teamwork at West Little River Park. During this rating period you were verbally reprimanded for your unprofessional conduct when speaking to me and our Region Manager, during presentation of your 6 month performance evaluation for a merit increase, during a phone conversation with me about a missing van key and during a phone conversation with Ms. Gibson. You have also reacted defensively when receiving constructive criticism from your supervisor. COMMUNICATIONS RATING: Unsatisfactory Mr. Green, use of the computer and related programs has been a challenge for you. Your registration paper work was not organized as I had directed and as a result the input of West Little [River Park] Program registrants into the CITRIX system has not been completed.[18] As I stated in your earlier evaluation, the computer is an essential tool and our reliance on them is an ever increasing fact. ADMINISTRATIVE POLICY AND PROCEDURE RATING: Satisfactory Mr. Green, I encourage you to avail yourself of all the resources available to educate yourself on the subject of the department's policies and procedures via the use of our various manuals and through counsel with your supervisors and peers. ADDITIONAL FACTORS RATING: Not Applicable RATER'S OVERALL EVALUATION: Unsatisfactory Is employee eligible for merit increase? Deferred. Not Granted. Is employee eligible for permanent status? Not Granted. Because she considered Petitioner to be a "substandard employee" who had performed poorly during his probationary period (and for this reason alone), Ms. Gibson decided to "fail [Petitioner's] probation" and terminate his employment with the County. Ms. Gibson's decision was based on: (1) Ms. Ham's evaluation of Petitioner's performance; (2) information provided to Ms. Gibson by other employees about Petitioner's performance19; and (3) Ms. Gibson's "independent observations of [Petitioner's] performance." On the evening of December 14, 2006, after having been presented with his second Management Performance Evaluation, Petitioner was advised that he was being terminated. Later that evening, Petitioner telephoned a friend of his, Jennifer Williams. (Ms. Williams taught reading to Petitioner's daughter DK and to the other children in the Children's Trust-funded after-school program at Arcola Park.) Petitioner began his conversation with Ms. Williams by telling her, "That bitch fired me," referring to Ms. Ham. He then asked if he could come by Ms. Williams' home. Ms. Williams told him that he could. Petitioner arrived at Ms. Williams' home shortly thereafter, and Ms. Williams invited him in. They went to the den, sat down, and talked. Petitioner again explained to Ms. Williams that "Ms. Ham had terminated him." He then told Ms. Williams that Ms. Ham had been "harassing him sexually." When Ms. Williams heard this she "just started laughing." Having seen Petitioner and Ms. Ham and "their interactions," she "could not believe" that Ms. Ham had sexually harassed Petitioner. Petitioner then asked Ms. Williams "to help him type up a letter" (on Ms. Williams' computer) describing "exactly what [had] happened between [Petitioner] and Ms. Ham." Ms. Williams agreed to provide such help. Following Petitioner's directions, Ms. Williams typed a letter addressed to Ms. Gibson, which read as follows: Subject: Wrongful Conduct from Immediate Supervisor This letter is in reference to the meeting that took place yesterday on December 7, 2006 around 3:00 p.m. at the region office.[20] You stated to me that you have a problem with me not being truthful about things that have happened between Mrs. Ham and I. As I indicated to you "yes, you are right! I have not told you everything that has happened." I feared that if I had told you Ms. Gibson about the constant request for money as well as the constant request for sexual favors that I would be terminated. Mrs. Ham has explained to me on several occasions that I can be terminated anytime she felt like it and it would be nothing I could do about it, each time before financial and sexual favors were requested. Mrs. Ham and I have been sexually involved over 10 times. These sexual acts have taken place at West Little River and Arcola Park. Also, at times when Mrs. Ham has told me to take her [to] lunch she has then pulled into a nearby motel and again requested sexual favors. Many times I wanted to tell you about these issues between Mrs. Ham and me, however, I feared for my job and I wanted to pass probation so that I could then start denying Mrs. Ham of these favors. Sincerely Damacio Green Petitioner asked Ms. Williams to "backdate the letter" to December 8, 2006, and Ms. Williams complied. The following day, Friday, December 15, 2006, Petitioner (or someone acting on his behalf) went to the Region 2 office to return his Department uniforms and, while there, surreptitiously placed in Ms. Gibson's desk an envelope containing the backdated "Wrongful Conduct from Immediate Supervisor" letter Jennifer Williams had typed the evening before. Ms. Gibson was not in the office that day, and her administrative secretary, Debbie Williams,21 was on break when the envelope was placed in Ms. Gibson's desk. Later that day, Petitioner telephoned Ms. Lee, complaining that Ms. Ham had sexually harassed him and had "fired" him because he had refused to "put up with it any more." Ms. Lee asked Petitioner why he had not said anything to her previously about Ms. Ham's sexually harassing him. Petitioner responded that he "had been afraid" and thought he might "lose [his] job." During his conversation with Ms. Lee, Petitioner falsely told her that, prior to his termination, he had "provided a letter to Ms. Gibson telling her that [Ms. Ham] had been forcing him to engage in sex." Ms. Lee asked Petitioner to send her a copy of that letter. At approximately 3:00 p.m. on December 15, 2006, Petitioner faxed to Ms. Lee a copy of the backdated "Wrongful Conduct from Immediate Supervisor" letter that Jennifer Williams had typed for Petitioner the evening of December 14, 2006. Ms. Lee showed the letter to her supervisor, Yolanda Johns, who subsequently telephoned Ms. Gibson to inquire about the matter. Ms. Gibson informed Ms. Johns that she did not know anything about a "Wrongful Conduct from Immediate Supervisor" letter addressed to her from Petitioner. Ms. Johns then faxed a copy of the letter to Ms. Gibson, who was at Martin Luther King Park attending a Christmas party. After reviewing the letter, Ms. Gibson confirmed that she had never seen it before. On Monday, December 18, 2006, Ms. Gibson (who was on leave) came by her office and discovered the letter inside an envelope in her desk drawer (where it had been placed on December 15, 2006, the day after Petitioner's termination). Ms. Lee conducted an investigation of Petitioner's allegations of sexual harassment. As part of her investigation, she interviewed Petitioner and numerous other individuals. Based on the information she obtained, Ms. Lee determined (correctly, as it turns out) "that Mr. Green and Mrs. Ham not only engaged in a consensual sexual relationship, but . . . Mr. Green was persistent in pursuing Mrs. Ham to engage in such activity." Consequently, Ms. Lee concluded that Petitioner's allegations of sexual harassment were unfounded. Ms. Lee issued her investigative report in February 2007. In her report, Ms. Lee recommended that Ms. Ham be suspended 30 days without pay for her "lack of judgment in succumbing to the pursuit of a subordinate." By letter dated March 15, 2007, Ms. Ham was given "formal notification" that she was being "suspended without pay for four (4) weeks to be served beginning Monday, April 9, 2007 through Sunday May 6, 2007," for having "engaged in a consensual sexual relationship with a subordinate employee, Mr. Damacio Green, former Park and Recreation Manager 1, which affected [her] ability to properly supervise this employee."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding the County not guilty of the unlawful employment practices alleged by Petitioner and dismissing Petitioner's employment discrimination complaint. DONE AND ENTERED this 29th day of May, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 2009.
The Issue Whether this case is properly before the Division of Administrative Hearings.
Findings Of Fact On or about April 2, 2004, the Florida Commission on Human Relations (Commission) forwarded a packet of papers, as more fully described below, to the Division of Administrative Hearings (Division). At the request of the parties, a disputed- fact hearing was scheduled for June 30, 2004 through July 1, 2004. The Charge of Discrimination in this cause bears a signature date of April 23, 2002. It states that the most recent alleged discrimination occurred in December 2001, and alleges race, color, and religious discrimination and retaliation. The copy of the Charge sent to the Division in the Commission's referral packet bears a Commission date-stamp of December 2, 2002. However, Respondent has provided a copy of the Charge, showing that it was first filed with the Commission on November 19, 2002, and the parties are in agreement that November 19, 2002, was the date of actual filing of the Charge with the Commission. The Charge filed with the Commission was accompanied by a cover letter dated November 14, 2002, and a "confidential" affidavit also dated November 14, 2002. On December 6, 2002, Respondent received the Commission's Notice of Petitioner's Charge of Discrimination. Thereafter, Respondent submitted its position statement with attachments to the Commission. The parties subsequently engaged in settlement discussions but were unable to come to terms.1/ On November 20, 2003, the law office representing Petitioner notified the Commission that settlement was not possible and that Petitioner's attorney wanted to be advised of the Equal Employment Opportunity Commission (EEOC) case number assigned to the same allegations of discrimination by the EEOC, pursuant to the Commission's work-sharing agreement with that Federal agency. On January 21, 2004, Petitioner's attorney's law office again wrote to the Commission requesting the EEOC case number and stating, "[W]e may take our client's issues up in the judicial arena."2/ Petitioner filed with the Commission on February 10, 2004, an Election of Rights signed by her attorney on February 9, 2004, on which the following option had been checked: More than 180 days have elapsed since I filed my charge of discrimination. I wish to withdraw my charge and file a Petition for Relief to proceed with an administrative hearing as provided for under Florida Statutes Section 760.11(4)(b) and (8). On February 16, 2004, the Commission sent a letter to Petitioner's attorney confirming its receipt of the Election of Rights on February 10, 2004, and reciting the foregoing reason stated therein. The Commission attached to its letter a blank petition for relief with instructions that the petition should be completed and returned to the Commission within 20 days. Twenty days from the Commission's February 16, 2004, letter would have been March 8, 2004. By a letter dated March 16, 2004, Petitioner's attorney wrote the Commission advising that for purposes of the EEOC claim, "March 23, 2002," should be used as the last date of discrimination. March 23, 2002, is a date four months after the date alleged in the Charge of Discrimination which had been filed with the Commission. (See Finding of Fact No. 3.) Apparently, the Commission filed the EEOC complaint with that federal agency on March 18, 2004. By a March 18, 2004, form letter, the Commission advised Petitioner, via her attorney, that the EEOC claim had been filed and given a number. The Commission's form advises that Petitioner need do nothing with the EEOC until the Commission has made its final findings in the case before the Commission. The March 18, 2004, EEOC complaint is virtually identical in all respects to the Charge filed by Petitioner with the Commission on November 19, 2002, except for the date of alleged discrimination. (See Finding of Fact No. 9.) On March 29, 2004, Petitioner's attorney signed a second Election of Rights, checking the same reasons as were given in the February 10, 2004, Election of Rights. (See Finding of Fact No. 7.) The second Election of Rights was filed with the Commission on March 31, 2004. On April 1, 2004, the Commission sent a second letter to Petitioner via her attorney, confirming receipt of Petitioner's second Election of Rights dated March 29, 2004, and stating that it had been filed on March 30,[sic] 2004. This Commission letter again reiterated the option requested by the Petitioner. (See Finding of Fact Nos. 7 and 13.) The April 1, 2004, letter from the Commission attached a second blank petition for relief for Petitioner to complete, and further advised: The initial letter dated February 16, 2004 included the Petition for Relief to be filed with the Commission within 20 days of the dated letter. We have not received the Petition for Relief to date; therefore I am enclosing another Petition for Relief to be completed. Forward the original Petition for Relief to the Division of Administrative Hearings and mail a copy to the Division. The Election of Rights Form will be forwarded to the Division of Administrative Hearings for case assignment as requested. On April 1, 2004, the Commission filled out a Transmittal of Petition form, which it forwarded to the Division, attaching only the Commission's April 1, 2004, letter to Petitioner's attorney, a copy of the original Charge of Discrimination incorrectly date-stamped as filed with the Commission on December 2, 2003 (see Finding of Fact No. 3), and a copy of Petitioner's Election of Rights, dated March 29, 2004, which had been signed by her attorney. (See Finding of Fact No. 13.) Petitioner admits that at no time within 20 days of either the Commission's February 16, 2004, letter or the Commission's April 1, 2004 letter, did Petitioner file a Petition for Relief either with the Commission or the Division. Not until after Respondent had moved to dismiss before the Division on June 15, 2004, did Petitioner file a Petition for Relief. On June 24, 2004, that Petition for Relief was filed with the Division, without prior leave of an Administrative Law Judge of the Division. The Petition was not on a Commission form. As of June 25, 2004, the date of oral argument on the Motion to Dismiss and Response thereto, the free-form Petition for Relief had only been filed with the Division and had never been filed with the Commission. On the basis of the record before the Division, it appears that Petitioner has never filed with the Commission a Petition for Relief, also known as a request for administrative hearing. It is undisputed that no Petition for Relief or request for administrative hearing was filed by Petitioner with the Commission within 215 days of filing the Charge of Discrimination with the Commission, which would have been 180 days plus 35 days; nor within 35 days of February 16, 2004, the date of the Commission's first letter advising Petitioner to timely file a Petition for Relief with the Commission; or within 35 days of April 1, 2004, the date of the Commission's second letter advising Petitioner to timely file a Petition for Relief with the Commission.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss this case, which exists only by the Charge of Discrimination, and a late-filed petition before the Division of Administrative Hearings. DONE AND ENTERED this 29th day of July, 2004, 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 29th day of July, 2004.
The Issue The issue in this case is whether the Respondent discriminated against the Petitioner on the basis of age for the reasons stated in the Charge of Discrimination and Petition for Relief in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact The Petitioner was born in 1953. At the time of the events which form the basis for his claim, he was more than forty years old. The Petitioner was born in Cuba and spent most of his life in Cuba. The Petitioner came to the United States of America approximately two years before the events which form the basis for his claim. The Petitioner speaks fluent Spanish, but does not speak English. In October of 1999, the Petitioner was hired by the City of Hialeah Gardens as a laborer in the Parks Department at a pay rate of $6.50 per hour. The Petitioner is still employed by the City of Hialeah Gardens as a laborer in the Parks Department at a pay rate of $6.50 per hour. The Petitioner's pay rate has never been changed during his employment with the City of Hialeah Gardens. During his employment with the City of Hialeah Gardens, the Petitioner has never held either the position of "Maintenance Supervisor" or the position of "Assistant Parks Director." During his employment with the City of Hialeah Gardens, the Petitioner has never been demoted from either the position of "Maintenance Supervisor" or the position of "Assistant Parks Director." The Mayor of the City of Hialeah Gardens has the sole authority and responsibility to make employment decisions. The Mayor appointed Nivaldo Rodriguez (Rodriguez) to the position of Assistant Parks Director. At the time of the appointment, Rodriguez was in his late twenties. At the time of the appointment, Rodriguez spoke fluent English and Spanish. At the time of the appointment, Rodriguez was a friend of the Mayor and the Mayor was aware of his qualifications for the position. The Mayor appointed Rodriguez to the position of "Assistant Parks Director" because he thought he was qualified for the position. The Mayor also thought that the Petitioner was not qualified for the position because, among other things, the Petitioner did not speak English. It is necessary to be able to speak English in order to fulfill all of the duties of the position of "Assistant Parks Director." The Mayor had credible non-discriminatory reasons to appoint Rodriguez as "Assistant Park Director," and not to appoint the Petitioner to that position. There is no credible evidence that the Mayor's reasons for appointing Rodriguez were pretextual. Age was not a factor in the decision to appoint Rodriguez rather than the Petitioner. The evidence regarding the Respondent's hiring and termination practices does not establish any pattern of age based discrimination.
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 in this case and denying all relief sought by the Petitioner. DONE AND ENTERED this 3rd day of January, 2002, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2002.
The Issue The issue posed for decision herein is whether or not the Respondent, G & B Products/Bates File Company, unlawfully discriminated against Petitioner, Leona Sanders, a black female, in violation of Title VII of the Civil Rights Act of 1964, as amended, by unlawfully failing to consider her for employment based on her race. Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record complied herein, I make the following:
Findings Of Fact The parties stipulated that the Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Petitioner timely filed her complaint and Petition for Relief with the Florida Commission on Human Relations. Chapter 9D-9.08, Florida Administrative Code, and Section 120.57(1), Florida Statutes. The Petitioner, Leona Sanders, is a black female who filed an application for employment with the Respondent, G & B Products/Bates File Company, for a factory worker's job on July 13, 1978. 1/ The Respondent, having employed fifteen (15) employees for each working day in each of twenty (20) or more calendar weeks during times material herein, is an employer within the meaning of the Human Rights Act. Petitioner satisfied Respondent's listed requirements for the position of factory worker and sought factory employment based on the advice of her doctor. Petitioner was unable to obtain a personal interview from Respondent when her application was originally filed inasmuch as Respondent's Personnel Director and Executive Secretary, Dorothy Russell (Director), was then on vacation. Petitioner was informed by a Personnel employee that she would be scheduled for an interview when the Director returned from vacation on July 17. Petitioner, after having waited until Wednesday, July 19, without receiving a call from Respondent, called the Director, since in her opinion the Director would not be granting her request for an interview without some prodding on her (Petitioner's) part. Petitioner was unable to schedule an interview with the Director on the following day, Thursday, July 20, at which time she was told by the Director that a full complement of employees had been hired. The Director assured Petitioner that she would be called during the following week should any vacancies occur. Petitioner was assured that in any event she would be notified if she would be hired by July 25. During the interview, Petitioner expressed a desire in being considered for work on the first and second shift inasmuch as she had four children who ranged in ages from ten to sixteen. However, she advised the Director that she would accept a position on any shift. From the date of the interview, July 20, through August 7, Petitioner was not called or otherwise notified of any vacancies for factory workers by Respondent. While reading the employment section of the classified ads in the local newspaper on August 7, Petitioner noted an advertisement by Respondent's Personnel Office for factory workers. Upon reading the ad for the factory workers, Petitioner immediately visited Respondent's factory and reported to the Personnel Office in hopes of being employed. Petitioner was again told by Respondent's Personnel Director that a full complement of workers had been hired but that she would be notified should any vacancies occur. Respondent hired sixteen non-black females as factory workers during the period July 15 through August 23. All of the sixteen newly hired employees made application for employment after Petitioner, i.e., July 15. Respondent, in completing the final phase of its heavy seasonal hirings, hired its first black factory worker on approximately August 28, 1978. Petitioner has suffered from hypertension in the past. As stated, she was encouraged to seek factory work by her physician. Petitioner has an automobile to commute from her home to Respondent's factory if offered a position. Petitioner passed a test designed to measure dexterity and aptitude. Results of the tests were provided to the Personnel Director. Petitioner has sought, and continues to seek, employment from neighboring employers. The list of employers she has applied to for employment includes St. Joseph Medical Center, The News Press, R. L. Polk & Company, and all local nursing homes. Petitioner's interim earnings during times material amount to $968.16. RESPONDENT'S DEFENSE Respondent's Personnel Director testified that the number of applicants greatly outnumbered the available factory worker positions. Director Russell considered Petitioner better suited for employment at a hospital, nursing home or for clerical work and suggested that she seek employment in those areas. According to Director Russell, Petitioner displayed a poor attitude during the interview since she attempted to dictate the hours that she was willing to work and she concluded that Petitioner would not work out satisfactorily in the factory based on her expressions as to the hours and positions for which she wanted to be considered for employment.
Conclusions The Florida Commission on Human Relations, a Section 706 deferral agency for the United States Equal Employment Opportunity Commission, administers the Human Rights Act of 1977, as amended. The intent of the Human Rights Act of 1977 (Act) is to eradicate employment discrimination based on certain protective classifications, including race. Chapter 23.167(1)(a), Florida Statutes (1979). Respondent is an employer subject to the guides of the Act. Respondent, as an employer, has an established affirmative action policy and employee selection plan which guides it in its search of employees on an equal opportunity basis. Respondent also has a policy of attempting to hire those employees with children to work on the first shift. (Testimony of Director Russell.) During the months of July and August, Respondent repeatedly placed ads for employees in the local newspaper. Petitioner, during this period, repeatedly sought employment at Respondent's factory, as well as with other employers. As reflected by all the available criteria required by Respondent for its selection of employees. Despite Petitioner's continuing efforts to be selected for employment with Respondent, she was repeatedly told that a full complement of employees had been selected. On the other hand, Respondent continued to advertise for factory employees. Given the above factors which reveal that Petitioner satisfied the eligibility criteria for employment selection as required by Respondent; Petitioner's continued efforts to be selected for employment with Respondent; Respondent's continued search for employees by the placing of ads in the local newspaper and the rejection to Petitioner based on the claim that the full employee complement had been selected, leads to the inescapable conclusion that the Petitioner was unlawfully discriminated against by Respondent in violation of Section 23.167(1)(a) and (b), Florida Statutes (1979). I shall so recommend. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and in order to effectuate the purposes of the Florida Human Rights Act of 1977, it is RECOMMENDED: That the Florida Commission on Human Relations enter an order requiring Respondent, G & B Products/Bates File Company, to: Cease and desist from discriminatorily denying or limiting Petitioner's employment opportunities. Take the following affirmative action which will effectuate the policies of the Florida Human Rights Act of 1977, as amended: Make Petitioner whole by: Reimbursing Petitioner for the difference in wages between what Petitioner would have earned as a factory worker and what she earned in other employment from July 13, 1978, plus interest until Petitioner is offered employment by Respondent as a factory worker. Back pay is to be computed in accordance with Schedule "A" attached here. Offer to Petitioner the next available factory worker position on the first shift. Post, for a period of sixty (60) days, in Respondent's facilities in places where notices to employees are usually posted, copies furnished by the Commission to the effect that Respondent will not discriminate because of race in affording equal employment opportunities and terms and conditions of employment to all its applicants and employees. Report to the Commission, within thirty (30) days of the Commission's order, steps taken by it respecting the fulfillment of the above conditions. RECOMMENDED this 22nd day of August 1980, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August 1980.
The Issue The issue in the case is whether Respondent unlawfully discriminated against Petitioner by terminating her employment in violation of the Age Discrimination Employment Act.
Findings Of Fact Lombardi started her employment as a judicial assistant with Dade County in 1971. Judge Mattie Belle Davis was the first judge who hired Petitioner. Judicial Assistants serve at the pleasure of the appointing Judge.1 Judge Bruce Levy hired Lombardi as his judicial assistant after Judge Davis retired. In December 2004, Judge Levy lost his re-election bid and Petitioner no longer had a full-time position as a judicial assistant with a judge. Lombardi started working in the temporary pool of judicial assistants. The position allowed Petitioner to retain her benefits while seeking a permanent judicial assistant position. While serving in the pool, Petitioner worked for Judge Leon Firtel from February 14, 2005, through February 28, 2006, before he let her go. Petitioner then worked for Judge Rosa Rodriguez from April 1, 2006, through May 23, 2007, until she let her go. Petitioner last worked for Dade County when she served as retired Judge Roger Silver's ("Silver") judicial assistant from September 1, 2007, until January 7, 2008. Lombardi was terminated in Silver's chambers with a bailiff and Ms. Suarez from Human Resources present. Silver informed the Petitioner her services were no longer needed and he was letting her go. Petitioner questioned why she was being terminated; however, Silver did not provide an explanation. Silver terminated Petitioner because he was not happy with her work performance. Silver testified that Petitioner had the following problems regarding her work: taking lunch breaks beyond the one hour he had discussed with her; numerous complaints from attorneys; selling Avon at the work place; not answering the phones and allowing calls to go to voicemail; and repeatedly setting unnecessary hearings on the docket. Prior to terminating Lombardi, Silver inquired with Human Resources about a replacement and was informed that he could not be assured that he would be able to get a temporary assistant to replace Lombardi due to the unavailability of funding. He still choose to terminate Petitioner because, "[he] felt having no one was better than what [he] had under the circumstances." Petitioner was not able to go back in the "temporary pool" of judicial assistants as she had in the past after Silver terminated her. In 2008, the Eleventh Judicial Circuit had a hiring freeze whereby the temporary pool was no longer funded. Human Resources eventually sent Elizabeth Gonzalez, whose date of birth is May 26, 1965, to Silver as a temporary judicial assistant. Silver had never met Gonzalez prior to her coming to work for him. There was no discussion of age when Silver requested a judicial assistant or when Gonzalez was assigned to him. Gonzalez served as Silver's temporary judicial assistant for a number of weeks and, when personnel advised him he could hire someone, including Gonzalez, Silver hired Gonzalez on or about March 10, 2008, because he was pleased with her work. Gonzalez worked with him until his retirement in December 2008. At the time when Petitioner filed her Charge of Discrimination, Petitioner was unaware of the exact age of her replacement. Petitioner's date of birth is May 18, 1948.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 30th day of November, 2009, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2009.
The Issue The issues are whether Respondent subjected Petitioner to unlawful employment practices by discriminating against her based on her age, sex, and/or disability contrary to Section 760.10(1), Florida Statutes (2003), and by retaliating against her contrary to Section 760.07, Florida Statutes (2003).
Findings Of Fact On or about February 17, 1992, Petitioner began working for Respondent in the College of Pharmacy and Pharmaceutical Sciences as an Other Personnel Services (OPS) Secretary. On or about January 11, 1993, Petitioner became a Program Assistant in the University and Support Personnel System. In late 1999 or early 2000, Petitioner began working as an Administrative Assistant for Dr. Folakemi Odedina, a Professor and Director of the Economic, Social, and Administrative Pharmacy Division (ESAP). Initially, Petitioner enjoyed working for Dr. Odedina in an office located in the Frederick S. Humphries Science and Research Center (Science and Research Center). However, in time Petitioner's professional relationship with Dr. Odedina began to deteriorate, along with the expanding responsibilities of the job.1 In January 2001, Petitioner fell while she was carrying some documents from one of Respondent's buildings to another. The fall injured Petitioner's ankle, hip, and lower back. Petitioner was pregnant at the time of her fall in January 2001. She filed a workers' compensation claim as a result of the accident and subsequently returned to work with medical limitations as to activities involving lifting and walking. In a memorandum dated May 16, 2001, Petitioner advised Dr. Odedina and the ESAP faculty that she soon would be going on three to four months of parental leave. She also advised them that she had removed her personal belongings and other items belonging to other departments that had been on loan to her. In June 2001, Petitioner fell again while she was at work. She was in her ninth month of pregnancy at the time of the second accident. She decided not to return to work until after the birth of her baby. In a memorandum dated June 14, 2001, Dr. Odedina acknowledged that Petitioner would be out on sick leave, followed by parental leave until October 2001. Dr. Odedina wanted Petitioner to turn in her office keys and provide information about the office voicemail password so that the office would continue to function efficiently during Petitioner's absence. Apparently, Petitioner had not removed her personal belongings from her office as stated in her May 16, 2001, memorandum. On June 14, 2001, Petitioner and Melvin Jones, an investigator for Respondent's Police Department went to the office after 5:00 p.m. to remove Petitioner's personal belongings. During the moving process, Mr. Jones took a typewriter and a chair, both of which were university property on loan to Petitioner from another university office, to the library on the fourth floor of the Science Research Center. Petitioner intended to leave the chair and the typewriter there until someone could return them to the office in the department to which they were officially assigned. Additionally, in packing her personal items, Petitioner or Mr. Jones inadvertently packed and removed a black office telephone from the premises. On June 15, 2001, Dr. Odedina noticed that the typewriter and telephone were missing from Petitioner's office. After making an unsuccessful effort to contact Petitioner, Dr. Odedina reported to Respondent's Police Department that the typewriter and telephone were missing from Petitioner's office. Respondent's Police Department immediately initiated an investigation of unauthorized removal of state property with Petitioner as the suspect. On June 15, 2001, Petitioner realized that she had mistakenly packed the black telephone with her personal belongings. She returned it to Respondent that same day. Thereafter, Respondent's Police Department closed its investigation after verifying that Petitioner never removed the typewriter from the Science Research Center and that she returned the telephone on June 15, 2001. On June 25, 2001, Petitioner delivered her baby. Subsequently, Petitioner received medical treatment for physical problems that were the result of her on-the-job falls. Between parental leave and workers' compensation leave, Petitioner was out of work for approximately eighteen months. During Petitioner's absence from work, Dr. Odedina hired an OPS employee to temporarily fill Petitioner's position. At some point in time, Petitioner contacted FCHR to make an inquiry concerning discrimination. In a letter dated August 28, 2002, relative to FCHR Case No. 2202827, FCHR advised Petitioner as follows: "Based on the information you provided, we are unable to pursue this matter further." FCHR then cited Section 760.11(1), Florida Statutes (2002), for the proposition that a complaint must be filed within 365 days of the alleged discriminatory act. From 1994 to 2004, and at all times relevant here, Dr. Henry Lewis was the Dean of the College of Pharmacy and Pharmaceutical Sciences. From January 2002 through July 2002, Dr. Lewis also served as Respondent's interim president. Since 2004, Dr. Robert Thomas has served as Dean of the College of Pharmacy and Pharmaceutical Sciences. At all times relevant here, Dr. Thomas served as Associate Dean of the College of Pharmacy and Pharmaceutical Sciences. In a letter dated October 9, 2002, Dr. Lewis advised Petitioner that he had received documentation from Ruth Beck, Petitioner's Rehabilitation Consultant, regarding accommodations for Petitioner's return to work with medical restrictions. Dr. Lewis requested that Petitioner meet with Respondent's Equal Opportunity Programs Office to determine what accommodation are to be provided upon Petitioner's return to work. The recommended accommodations included an ergonomic chair and a desk equipped with a keyboard tray and mouse extension. It was also suggested that Respondent provide Petitioner with a flat screen monitor and a utility cart because Petitioner's permanent office in the Science and Research Center was small and too cramped to accommodate Petitioner's physical limitations. Petitioner needed a more spacious work area, with adequate storage space in close proximity, than was available in her office at the Science and Research Center. Even with the new furniture and equipment, Petitioner's needs could not be met in her old office. Accordingly, it was mutually agreed that, upon her return to work, Respondent would assign Petitioner to work temporarily in the Division of Pharmacy Practice, under the supervision of Dr. Otis Kirksey. Dr. Kirksey's office was located off-campus at 565 East Tennessee Street, Tallahassee, Florida, in a building with a ramp and without stairs that Petitioner would have to climb. Petitioner's assignment to work in Dr. Kirksey's office was temporary. Dr. Odedina and the ESAP faculty and staff planned to move to the new Dyson Pharmacy Building as soon as it was completed. The new facility would have sufficient space, furniture, and equipment to accommodate Petitioner's needs in her position as Administrative Assistant to Dr. Odedina. In November 2002, Petitioner learned that her doctor would not sign a form stating that Petitioner had a permanent disability. Instead, he agreed that she needed a disabled parking permit for a temporary period, for three months through February 5, 2003. On December 2, 2002, Petitioner began to work for Dr. Kirksey as an Administrative Assistant/Receptionist. She agreed to begin working in that capacity even though all the accommodations she needed were not immediately available. Petitioner was eager to return to work. By February 18, 2003, Respondent had provided Petitioner with all necessary accommodations. She had the ergonomic chair and a desk equipped with a keyboard tray and mouse extension. Given her more specious work area, a flat screen monitor and/or utility cart was not required to accommodate her physical limitations. Petitioner did not want to return to work for Dr. Odedina under any circumstances. She was aware that Dr. Kirksey was going to hire a new employee for a Program Assistant position. However, Petitioner never applied for the new Program Assistant position because she believed that Dr. Kirksey had already made up his mind to hire another person for the job. There is no evidence that Dr. Kirksey ever intended to deprive Petitioner of the opportunity to apply for the Program Assistant position or that he would not have considered her application if she had filed one. On October 6, 2003, Petitioner had a meeting with Dr. Lewis about her work assignment. During the meeting, Petitioner and Dr. Lewis discussed another position that was available. The position involved keeping track of student volunteer hours. After the meeting, Petitioner mistakenly believed that Dr. Lewis had offered her the new position, which would not have been under Dr. Odedina's supervision. During the October 6, 2003, meeting, Dr. Lewis asked Petitioner how things were going in her private life, i.e. whether she had anyone special in her life. Petitioner replied that she did not have such a relationship and that with all the drama she was experiencing in her personal life, she did not need to be involved with anyone. There is no indication that Petitioner was offended by Dr. Lewis's personal expressions of concern for Petitioner's well being. On October 8, 2003, Petitioner met with Drs. Lewis and Thomas. During the meeting, Petitioner adamantly refused to return to work for Dr. Odedina. Petitioner made the following statement: "I do not want to see FAMU facing a wrongful death lawsuit for an employee killing a supervisor." Drs. Lewis and Thomas were concerned about the statement, which they understood to be a threat against Dr. Odedina. However, they believed they would be able to handle any problem that might arise when Dr. Odedina joined the prescheduled meeting. Petitioner was agitated during the meeting with Dr. Lewis and Dr. Thomas. She became more agitated when Dr. Odedina joined the meeting. Dr. Odedina went to the meeting expecting to discuss Petitioner's office space and accommodations when she moved into the Dyson Pharmacy Building with the rest of the ESAP faculty and staff. She was not aware that Petitioner had made a threatening comment. Initially, Dr. Odedina was obviously pleased that Petitioner would be returning to work for her. However, as the October 8, 2003, meeting proceeded, Dr. Odedina felt that Petitioner's demeanor was hostile. Dr. Odedina got the impression that Petitioner was resisting the idea of returning to work for Dr. Odedina. At that point, Dr. Odedina insisted that Petitioner return to work for ESAP or, if Petitioner continued to work for Dr. Kirksey, his office should be responsible for paying Petitioner's salary. At one point during the October 8, 2003, meeting Petitioner complained that she suffered from migraine headaches and depression. She showed Drs. Lewis, Thomas, and Odedina prescriptions for Imatrex and Prozac. Before Petitioner left the meeting on October 8 2003, Dr. Lewis told Petitioner that she should write a letter stating that she refused to return to work in the ESAP office under Dr. Odedina's supervision. Petitioner subsequently wrote a letter, describing it as a "notice of transfer," but clearly indicating that she chose not to return to work for Dr. Odedina. After Petitioner and Dr. Odedina left the October 8, 2003, meeting, Drs. Lewis and Thomas discussed Petitioner's threatening statement against Dr. Odedina. They decided to report it as a serious threat of bodily harm to Respondent's Director of Personnel, Vice President for Academic Affairs, and Provost, first by telephone, and later in writing. Dr. Lewis also contacted Dr. Odedina by telephone, advising her of the threat and directing her not to report to work on October 9, 2003. Finally, Dr. Lewis informed Respondent's Police Department about the threatening statement. Respondent's Provost, Larry Robinson, drafted a letter dated October 9, 2003. According to the letter, Petitioner was on administrative leave with pay, effective upon receipt of the notice. The letter advised Petitioner of a pending investigation of an employment matter and directed her to return all university-owned property. The letter advised Petitioner to refrain from reporting to work or visiting the campus, until further notice. The only exception was that Petitioner could continue to transport one of her sons to Respondent's Developmental Research School. On October 10, 2003, Respondent's Police Department initiated a formal investigation about Petitioner's threatening statement based on the written statements of Drs. Lewis and Thomas. On that date, Respondent's investigator, James Rose, filled out an incident report, indicating that he had interviewed Dr. Odedina and that Respondent's Director of Personnel had requested him to deliver the October 9, 2003, letter to Petitioner. Officer Rose was not able to deliver the October 9, 2003, letter to Petitioner until October 11, 2003. After Officer Rose gave Petitioner the letter placing her on administrative leave with pay, Petitioner stated that she only made the comment about Dr. Odedina because the department was about to transfer her back to Dr. Odedina's office. Petitioner told Officer Rose that she never intended to harm Dr. Odedina. On October 13, 2003, Petitioner returned her office key to Respondent. She left the key at Respondent's Police Department's communications office. On October 14, 2003, Petitioner filed her first Employment Charge of Discrimination with FCHR. In that initial complaint, identified hereinafter as DOAH Case No. 04-2003, Petitioner alleged as follows: (a) Respondent discriminated against Petitioner based on her disability by failing to accommodate her back impairment; (b) Respondent discriminated against Petitioner based on her age because Respondent did not give Petitioner an opportunity to apply for a position ultimately given to a younger, less senior employee; and (c) Respondent placed Petitioner on administrative leave with pay. In a letter dated October 31, 2003, Respondent advised Petitioner that Respondent intended to terminate her employment for threatening and/or abusive language and conduct unbecoming to a public employee. In an undated letter, Petitioner requested a conference in order to make an oral or written statement to refute or explain the charges against her. On or about November 3, 2003, Petitioner requested information about the return of her personal property located in Dr. Kirksey's office. Officer Rose approved Petitioner's request to retrieve her property. Sometime after November 3, 2003, Officer Rose concluded that Petitioner had made a threatening statement. However, Officer Rose found no indication that Petitioner intended to carry out the threat against Dr. Odedina. Accordingly, Respondent's Police Department suspended its investigation. In a letter dated November 17, 2003, Respondent advised Petitioner that it had scheduled a predetermination conference on November 24, 2003. By letter dated December 8, 2003, Petitioner informed Respondent that she received the November 17, 2003, letter on December 5, 2003. She asserted that she did not receive timely notice of the predetermination conference. In a letter dated December 11, 2003, Respondent advised Petitioner that it was proceeding with the employment action. According to the letter, Petitioner's dismissal from employment would be effective on December 19, 2003. However, Petitioner had an opportunity to request arbitration. On December 19, 2003, Petitioner reminded Respondent that she did not receive timely notification of the predetermination conference. She requested Respondent to schedule another conference. In a letter dated January 9, 2004, Respondent advised Petitioner that it had scheduled a predetermination conference for January 13, 2004. However, a subsequent letter dated January 13, 2004, rescheduled the conference for February 18, 2004. In a letter dated March 3, 2004, Respondent advised Petitioner that her dismissal from employment was effective March 11, 2004. On February 2, 2005, Petitioner filed a Consented Motion for Abatement or Alternatively, Notice of Voluntary Dismissal without Prejudice in DOAH Case No. 04-2003. On February 8, 2005, Administrative Law Judge Diane Cleavinger entered an Order Closing File in DOAH Case No. 04-2003. Judge Cleavinger's order is silent as to any prejudice that might have resulted from closure of the file in DOAH Case No. 04-2003. However, the parties agreed during the hearing in the instant case that FCHR never entered a final order in the prior case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 30th day of December, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 2005.
The Issue Whether Respondent, First Coast Technical College (Respondent) retaliated against Petitioner, Gregory R. Lulkoski (Petitioner) in violation of the Florida Civil Rights Act of 1992 (FCRA), section 760.01-760.11, Florida Statutes?1/ Secondary issues raised by Respondent are whether the St. Johns County School Board (School Board) is immune from Petitioner’s allegations, and, if not, whether the School Board was Petitioner’s employer during the relevant period.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner worked for FCTC for several years in several different positions, including as a career pathways supervisor, and most recently as a grant writer. FCTC was, for all times relevant to Petitioner’s allegations, a conversion charter technical center in St. Johns County, Florida, operating pursuant to a charter contract with the School Board by a privately organized 501(c)(3) non-profit corporation, the First Coast Technical Institute (FCTI). A charter technical school is a creature of Florida statute, distinct from school boards and districts, including those school districts in which they are located, which act as the sponsor of the school. FCTI and the School Board entered into a charter which governed the operating relationship between them. The last operative charter between FCTI and the School Board became effective July 1, 2013. The School Board was the sponsoring entity of FCTC under the charter. The School Board had no involvement in the day to day operations of FCTC when it was operated by FCTI. FCTI had its own management team and board of directors. FCTI had its own articles of incorporation, employment handbook, organizational structure, management plan, human relations (HR) director and department, and its own legal counsel. FCTC’s president, Sandra Raburn-Fortner, entered into a contract of employment with FCTI. No one from the School District is on FCTI’s organizational chart. FCTI and FCTC management, and not the School Board, were responsible for the daily operations of FCTC and all personnel matters of FCTC employees. FCTI had its own procedure in its employee handbook for reporting discrimination and harassment. FCTC employees were designated as School Board employees solely for wage payments, benefits, and collective bargaining purposes under the charter. For this reason, FCTC employees received checks and tax documents from the School Board and the School Board remitted contributions to the Florida Retirement system on their behalf. FCTI reimbursed the School Board for these pass-through expenditures, and the School Board charged FCTI a fee for this service. The School Board’s only involvement in personnel- related decisions of FCTC was the ministerial act of the School Board superintendent signing off on employment decisions made by FCTI officials, which were then placed on the consent agenda of the School Board to be approved at its next meeting. This process--which was necessary given the fact that FCTC employees were designated as School Board employees under the charter for wage payment, benefits, and collective bargaining purposes-- involved ensuring the statutory requirements to take an employment action were met, but did not involve second-guessing the merits of the personnel decisions made by FCTI. Indeed, the charter expressly provides that the School Board assigns and FCTI assumes and retains all responsibility for FCTC employees, including responsibility for the selection and discipline of employees, and all other aspects of the terms and conditions of employment at FCTC. Petitioner submitted his application for employment to FCTC. Petitioner had an FCTC e-mail address and not a school district e-mail address. The School Board was the signatory to some grant applications for funding to be expended at FCTC, however, FCTI was responsible for fulfilling the obligations relating to the grant awards, and appropriately utilizing those funds at FCTC. The School Board was not involved in the day to day administration of programs funded by those grants at FCTC. During the spring of 2016, district personnel became aware of financial irregularities at FCTC through its monitoring of FCTI’s unaudited financial statements. Under state statute, the School Board was required to take certain actions as the sponsor of FCTC when put on notice that FCTC might be in a deteriorating financial condition. The School Board investigated those irregularities and found significant financial mismanagement and budgetary shortfalls at FCTC under FCTI’s administration. On May 3, 2016, the School Board declared that the school was in a deteriorating financial condition. This declaration triggered statutory obligations on the part of the School Board and FCTC to develop a corrective action plan to address these issues. On May 26, 2016, the School Board served a notice of financial emergency stating that it had reason to believe that there was a financial emergency at FCTC and that there was no way to save FCTC other than to terminate the charter and begin operating the programs at FCTC itself. The School Board Superintendent sent a letter to FCTI’s board on June 8, 2016, detailing the findings of the School Board’s investigation into FCTC and the financial issues plaguing the school. On June 14, 2016, FCTI’s board voted to terminate the charter with the School Board and cease operating the programs at FCTC, effective June 31, 2016. On June 15, 2016, the School Board voted to approve an agreement to terminate the charter with FCTI and to take over the programs at FCTC effective July 1, 2016. As part of this transition of the responsibility for operating FCTC, the School Board and FCTI entered into an agreement specifically stating that any liabilities of FCTC arising prior to July 1, 2016, would not be assumed by the School Board. Just before the School Board began operating the programs at FCTC, and specifically on June 27, 2016, Petitioner filed his Complaint with FCHR. In that Complaint he alleges that he was retaliated against for engaging in protected activity. Petitioner specifically listed two discrete instances of alleged protected activity in his Complaint: I am being discriminated against on the basis of retaliation by my employer. I began employment with Respondent on 11/7/2007, as a Case Manager and most recently as a Grant Writer. On 5/21/2015, I filed a formal grievance due to harassment and nepotism; creating a hostile work environment. This grievance was investigated internally but I never received a response. On 6/30/2015, I filed a second grievance after experiencing retaliation by my Supervisor, Renee Stauffacher. Up to date, both grievances remain unanswered and I continue to experience harassment and retaliation. Petitioner’s claim of discrimination was based solely upon a charge of retaliation. Petitioner did not allege that he was discriminated against based upon race, religion, age, marital status, or any other protected class. Petitioner filed the first grievance referenced in the FCHR Complaint on May 21, 2015, alleging that FCTC’s then- president, Sandra Raburn-Fortner, engaged in nepotism by hiring her friends and family, and that he experienced a hostile work environment because a co-worker, William Waterman, was rude to him in meetings and over e-mail. Petitioner does not allege in this grievance that he was being discriminated against on the basis of a protected class or that he believed anyone else was being discriminated against or adversely affected because of their protected class. Petitioner does not allege in this grievance that he was mistreated by any School Board employee, and he did not direct the grievance to anyone at the School Board. Petitioner filed this grievance with FCTC’s human resources office. In his second grievance, filed June 26, 2015, Petitioner alleges that Renee Stauffacher, his supervisor at the time, retaliated against him for naming her in his May 21, 2015, grievance by giving him an evaluation on June 26, 2015, that contained some information or statements with which he disagreed, even though he thought the evaluation itself was good and that he was given high numbers. No one from the School Board was involved in this evaluation. When Ms. Stauffacher gave Petitioner this evaluation, she was an employee of FCTC and not the School Board. Petitioner alleges that Sandra Raburn-Fortner retaliated against him for his first two grievances by giving him another position. That change, from “Career Pathways Supervisor” to “Grant Writer” occurred on or about August 4, 2015. Petitioner’s salary did not change. At this time, Ms. Raburn-Fortner, who had a contract with FCTI, was an FCTC employee, and not an employee of the School Board. Later, in the Spring of 2016, Petitioner submitted numerous other grievances, a total of nine more, to FCTC officials and FCTI’s board. Petitioner only introduced his ninth and tenth grievances into evidence at the final hearing. Both are similar. Those grievances, both filed on June 13, 2016, allege that Ms. Raburn-Fortner engaged in nepotism by hiring her associates, and that Stephanie Thomas, FCTC’s human resources director, and Ms. Stauffacher, were complicit in that nepotism. Both grievances state that Petitioner believed he was disclosing violations of equal employment opportunity law. During the time that Petitioner submitted these additional grievances, the School Board was in the process of investigating the financial irregularities at FCTC. Petitioner submitted some of these grievances to School Board officials, who told him he needed to take his concerns to the FCTI Board who was still operating FCTC at the time pursuant to the charter. None of Petitioner’s complaints, including those relayed to the School Board and its officials, concerned complaints of discrimination based on a protected class, or retaliation for complaining about discrimination based on a protected class. Petitioner stated he believed he was reporting equal employment opportunity violations in alleging Ms. Raburn-Fortner was hiring or favoring friends and family, because this action prohibited members of many different protected classes from getting a fair shot at positions that would go to family, friends, or associates of Ms. Raburn-Fortner. Petitioner admits all protected classes were treated similarly in this regard and that all protected classes lacked equal access to positions if they were not friends or family of Ms. Raburn-Fortner. While Petitioner does not allege any discrete instances of retaliation that occurred after his title change, Petitioner also contends that he was harassed, including that he felt harassed about how data at the school was handled, the pressure put on him by financial difficulties brought about by the administration of FCTI, and that he was given the cold shoulder by peers. By May 2016, Ms. Raburn-Fortner was no longer working at FCTC.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Gregory R. Lulkoski in this case. DONE AND ENTERED this 5th day of September, 2018, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2018.
The Issue Whether Petitioner has been the subject of an unlawful employment practice.
Findings Of Fact Petitioner, Howard B. Steele, a black male, has been employed with the City of Lynn Haven since October, 1981. At the time he sought employment, Petitioner applied for the position of meter reader "or any available position." A meter reader position was not available, so Petitioner accepted a position in the sanitation department, picking up garbage. Three months after his employment, Mr. Steele was transferred to the street department to work on the trash truck. The trash truck crew picks up yard trash. During the summer of 1984, Mr. Steele was selected to assist with the maintenance and upkeep of the parks during baseball season. Parks and recreation was a part of the street department, and at all relevant times, was a two-man unit. When baseball season was over, Mr. Steele and his coworker would work in the sanitation department. In 1986, Mr. Steele and another coworker were assigned to handle the parks and recreation responsibilities exclusively during the entire year. Mr. Steele was no longer required to work in the sanitation department. The City of Lynn Haven is a municipality chartered pursuant to Laws of Florida, 1951, Ch. 27685, Sec. 5. At all relevant times, Lynn Haven employed approximately 98 persons. Of the 98 employees, fifteen are black and constitute approximately fifteen percent of the City's work force. The general population of non-whites in Lynn Haven and Bay County is approximately 13.8 percent and 14.3 percent, respectively. The general population of blacks in Lynn Haven is 10.1 percent. However, the City's qualified applicant pool is significantly less than ten percent. 1/ When the City's percentage of blacks in the work force is compared to the qualified applicant pool or even to the general population figures, it is apparent the City has no hiring practices or policies that disproportionately impact on blacks. In 1979, Lynn Haven adopted a Position Classification and Pay Plan (the Plan). The Plan has been slightly modified over the past ten years. The Plan includes eight general job classifications, as follows: Administrative, Clerical, Labor, Public Safety, Equipment Operation, Refuse, Utilities, and Supervision. Each job classification has a corresponding pay range that can be adjusted in exceptional circumstances. Salary increases are obtained primarily by two methods: cost-of-living raises and merit raises. 2/ Currently, both raises are given annually to all employees. However, prior to June 1989, merit raises were given biannually. A merit increase is not automatic but is given in conjunction with an annual evaluation on the employee's anniversary date of employment. Merit raises generally range from zero to five percent within the job's pay range. Consequently, while an employee is always eligible for a cost-of-living increase, it is possible for an individual to reach the maximum salary level for his or her position and no longer be eligible for a merit increase. Additionally, under the Plan, if an employee is demoted for just cause, the demotion may be in the form of a reduction in pay or to a lesser job classification. If, however, the demotion is due to an employee's inability to perform his or her work because of health or other reasons, there is no change in the employee's pay unless recommended by the department head. Therefore, it is possible for a person to be demoted into a lower job classification and make more money than a person with more seniority already in the lower job classification. The demotion policy is facially neutral and works to the advantage or disadvantage of blacks and whites equally. In 1981, when Mr. Steele was hired, he was paid $3.35 per hour. At that time, the salary range for unskilled laborers was $2.67 to $3.74 per hour. Currently, Mr. Steele is essentially an unskilled laborer with seniority in the parks and recreation unit. He is primarily responsible for maintaining the cleanliness of the city parks. This includes mowing the grass, cutting the shrubbery, and making minor repairs. Mr. Steele also lines the playing fields before ball games. While Mr. Steele does delegate assignments and duties to his crew member, Tommy Flanders, and is sometimes required to supervise community service workers, he does not function as a department head or have the responsibilities of a foreman such as Mr. Gray or Mr. Marlowe who hold foreman positions. During his employment, Mr. Steele has received a written reprimand for falsifying a time card and has also had a well-documented problem with absenteeism spanning several years. Since his employment in 1981, Mr. Steele has been given a cost-of- living increase each year he has been employed with the City. Mr. Steele has also received the appropriate number of merit raises. None of these raises were inequitable or discriminatory. Mr. Steele received his first merit increase in July, 1982, and his second merit increase in April, 1983. Under the policy existing at the time, merit increases were given every two years. Mr. Steele, however, received an extra merit raise because of his job performance. In 1985, Mr. Steele, along with approximately 20 other white and black employees, were eligible for a merit increase. However, the City inadvertently failed to give these employees their raises. The missed raises were due exclusively to an oversight by the City and were corrected in 1986 when they were discovered. In 1986, Mr. Steele was given a 15% salary increase which included his annual cost-of-living raise and a two-step merit increase. In 1987, Mr. Steele was given a cost-of-living raise but not a merit increase. As noted above, merit increases were given biannually, and because Mr. Steele had received a two-step merit increase in 1986, he was not entitled to a merit increase in 1987. On November 3, 1988, Mr. Steele received a merit increase which raised his salary to $6.91 per hour. The following June (1989) the compensation policy was amended to permit merit raises annually. Under the new policy, Mr. Steele was eligible for a merit increase in October, 1989. Once again, the City inadvertently failed to give Mr. Steele his merit increase in 1989 but corrected the oversight retroactively. 3/ On March 10, 1990, when Mr. Steele filed his Charge of Discrimination, he was being paid $7.44 per hour. On October 29, 1990, Mr. Steele received a merit raise which brought his salary to $7.55 per hour, and on December 28, 1990, Mr. Steele received a cost-of-living raise which brought his rate of pay to $7.78 per hour. 4/ Mr. Steele has received other raises since 1990 and is currently making $8.82 per hour. It is undisputed that Tommy Flanders, Mr. Steele's white co-worker with less seniority in the parks and recreation unit, was at one time paid a higher hourly rate than Mr. Steele. Mr. Flanders was hired in April, 1981, in the fire department as a paid fireman. Mr. Flanders had been a volunteer fireman with the City since 1968. Mr. Flanders was unable to get state certification because of a vision problem, and upon denial of a fireman's certification, he was demoted to the sanitation department. He worked in this job approximately two months and then moved to Pensacola after a work-related injury. Mr. Flanders returned to Lynn Haven in August, 1985, and was hired by the City as a truck driver in the street department at a rate of $4.21 per hour. Mr. Flanders' pay was consistent with the City's pay classification system. He was promoted to Step 1 foreman in February, 1986, at a rate of $5.96 per hour. Mr. Flanders remained in the sanitation department until he was injured in another job-related accident in August, 1988. When he returned from workers' compensation leave to light duty in November, 1988, Mr. Flanders was assigned to the parks and recreation unit as a crew member with Mr. Steele. Although this was essentially a demotion, the City's demotion policy permitted Mr. Flanders to maintain the same hourly rate of pay he received as a foreman with the sanitation department. This created an unfortunate situation for Mr. Steele, who had been in the recreation unit longer and had more experience in the parks and recreation unit than Mr. Flanders. However, the pay disparity was consistent with the then-current pay and classification plan and is one reason the City began to move toward adoption of a new compensation and job classification plan. Mr. Flanders' current hourly rate is $8.45 per hour. John Barnes, a black male, is presently employed with the City as a meter reader at the rate of $9.55 per hour. Mr. Barnes was hired as a sanitation worker in 1980 at the rate of $3.35 per hour. Mr. Barnes was promoted to truck driver and then to backhoe operator. In 1987, he was encouraged by the City to apply for a firefighter's position. Mr. Barnes was hired as a firefighter. When Mr. Barnes was unable to successfully complete the state certification requirements for firefighters, he was transferred to the street department. 5/ Although this was a demotion, Mr. Barnes, like Mr. Flanders, was permitted to keep his higher pay as a fireman pursuant to the City's Compensation and Pay Plan. Mr. Barnes stayed in the street department until Sammy Oliver, a white male, encouraged Mr. Barnes to apply for a meter reader opening. Mr. Barnes filled out an application and was given the job. He has been a meter reader approximately six years during which Mr. Barnes has received job training in computerized meter reading. James Powell, a black male, worked for the City approximately 22 years before he retired in 1991. At the time of his retirement, Mr. Powell was sign foreman making $10.77 per hour. Although Mr. Powell testified he did not know he was the sign foreman, the payroll records of the City showed that Mr. Powell was classified as "sign foreman." In addition, Mr. Powell admitted on cross examination that, besides himself, numerous other blacks held position outside of the sanitation department, as follows: a black police officer, a black meter reader, a black school guard, two blacks in the recreation unit, and Charlie Smith, a black member of management working in the administrative department of City Hall. Willie Mallard is a black male working in the sanitation department. Mr. Mallard testified that he has worked for the City for ten years, and no one has ever asked him to be foreman. Mallard admitted on cross examination, however, that he had never expressed any interest in becoming foreman. Mallard further testified that the only promotion he ever sought was given to him when it came open. L. D. Marlowe is the current supervisor of the street department. He has worked for the City approximately seven years and is making approximately $11.00 per hour. His position carries greater responsibility than Howard Steele's, and he supervises a greater number of employees than Mr. Steele. Bob Gray, a white male, is the current foreman in the sanitation department. Mr. Gray has worked for the City on two occasions, the latest tenure being in 1987 when he was hired to work on the back of a garbage truck. After two years he worked his way up to foreman. Mr. Grays quick promotion was due to his work ethic and desire to work. Ralph Hester, the former city manager, approached him about the foreman position when Tommy Flanders was demoted in 1987. Mr. Gray had previously expressed to Mr. Hester interest in advancement and was more qualified than Mr. Steele for such a position. 6/ Mr. Gray testified that he is currently making $22,000 a year. However, at the time Mr. Steele filed his first Charge of Discrimination, Mr. Gray was making $8.00 per hour. In 1986, Ralph Hester, city manager at the time, appointed Tommy Flanders, a white male, to be the new foreman of the sanitation crew. Hester's decision was based upon the recommendation of the administrative assistant to the public works director, Jackie D. Cornette. Cornette's recommendation was based on the fact that Flanders was the "best worker." Although Mr. Steele did not express any interest in the position, he objected to Mr. Flanders' promotion. When the promotion was announced at a group meeting, Mr. Steele questioned why Mr. Flanders was given the job instead of other workers with more seniority. Mr. Steele did not ask that he be given the sanitation foreman's position. In 1987, the position of foreman was again open when Mr. Flanders was injured and was placed on light-duty work assignment. Although Mr. Steele did not express any interest in the sanitation foreman's job he was considered for the job, but was rejected because of his excessive tardiness, abuse of sick leave, and his inability to work unsupervised. In fact, Mr. Steele never sought the position or expressed any interest in advancing outside of the recreation unit. Mr. Steele did complain repeatedly that his current position should be better compensated; however, there was no evidence Mr. Steele ever actively sought any other position available under the City's pay and classification plan. Additionally, there was no higher position in the recreation unit under the City's pay and classification system to which Mr. Steele could be promoted. Finally, the evidence demonstrated that the City's promotion policy was based on merit rather than on seniority. However, the evidence did not demonstrate that the City's promotion policy was discriminatory. In fact, black employees who merited promotion were encouraged to seek such promotions and were promoted. The evidence was clear that Mr. Steele was not personally sought for promotion because of his excessive tardiness, abuse of sick leave and his inability to work unsupervised. Mr. Steele's lack of promotional offers had nothing to do with his race. Given these facts, Mr. Steele has failed to establish that he has been subjected to any unlawful employment practice and the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED: That a Final Order be entered by the Florida Human Relations Commission denying and dismissing the Petition for Relief filed herein. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10 day of September, 1992. DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 10 day of September, 1992.
The Issue Whether Petitioner, Norma J. Nolan, was discriminated against by Respondent, K.D.P., Inc. d/b/a Western Sizzlin Steak House, in violation of the Human Rights Act of 1977, as amended, Section 760.10, Florida Statutes, on the basis of handicap, constituting an unlawful employment practice. Whether Petitioner has established a basis for, or entitlement to, an award of damages if, in fact, the alleged unlawful employment practice occurred.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: K. D. P., Inc., operated a restaurant known as Western Sizzlin Steak House in Bradenton, Florida, which business was established prior to the alleged incident of July 1990. This business has continued in operation to the current time under the same management and with many of the same employees, although the restaurant has subsequently become known as Cattle Company Cafe. The Respondent, K. D. P., Inc., d/b/a Western Sizzlin Steak House, now known as Cattle Company Cafe (KDP), owned by Jack Parrish, has been managed by Kevin Wreford for approximately twelve years. Parrish relies on Wreford for the day-to-day operation of the business, hiring and firing decisions, and supervisory responsibility. The Petitioner was employed from December 1989 through February 1990 by Upjohn Health Care on a part-time basis as a respite worker. While she was physically able to do that job, Petitioner chose to leave that employment as it had little work available for her with that agency and Petitioner wished to work at a location closer to her home. Petitioner applied for employment with KDP by way of written application on August 2, 1990. Petitioner's employment application did not indicate any physical handicap, disability or limitation. Wreford interviewed Petitioner for the position of part-time cashier in early 1991. During the interview, Wreford discussed with the Petitioner the duties of the position for which she had applied. Those duties included taking payment from customers at the cashier's stand, overseeing the salad and sundae bar, checking the women's restroom, cleaning glass in the area of cashier's stand and watching for walkouts (walkouts being customers who walk out without paying for their meals). Petitioner advised Wreford that she was capable of performing these duties but was concerned about her lack of experience in working with cash and making change. Wreford hired Petitioner as a temporary, part-time cashier, and Petitioner began work in that capacity for Respondent on February 3, 1991. Petitioner continued in the employment of the Respondent in the capacity of part-time cashier through July 17, 1991. At the time Petitioner was hired by Respondent on February 3, 1991 there was a large wooden bar stool located behind the counter where the cashier took payments for meals. All cashiers working for the Respondent, including Petitioner, were allowed to sit on this stool at times when they were not waiting on customers (cashiers were required to stand while waiting on customers) or performing other assigned duties as set out in Finding of Fact 6. Sometime around July 1, 1991, Wreford discussed with the cashiers, including Petitioner, his concerns about the cashiers not performing their other assigned duties when they were not waiting on customers. Performing other assigned duties required the cashiers to be away from the cashier's area. At this time, Petitioner made Wreford aware of her knee problem and advised him that she may have difficulty standing for long periods of time. There had been no mention of this problem previously nor had Petitioner experienced any problem with her knee previously. Likewise, Petitioner did not experience any problems with her knee in carrying out her assigned duties during the next two weeks. In fact, both Wreford and Parrish were pleased with Petitioner's performance during this period. On or about July 12, 1991, Parrish's wife who had become involved in the management of the restaurant advised Parrish that the stool needed to be removed from the cashier area because: (a) the stool was showing its wear and tear and was aesthetically unpleasing; (b) the stool was taking up too much room resulting in the cashiers not being able to perform their duties properly, particularly looking for walkouts and; (c) to prevent a certain cashier (not Petitioner) from abusing the privilege of the stool by sitting on the stool for extended periods of time and not performing her other assigned duties. On or about July 12, 1991, Parrish removed the stool from the caahier's area and placed it in his office where it remains today because the stool has a sentimental value in that Parrish used the stool in his first restaurant. On or about July 13, 1991, when Petitioner arrived for work and noticed the stool had been removed she met with Parrish and Wreford and advised them that she could not work without the stool because of her knee. Parrish and Wreford offered to accommodate her problem by allowing Petitioner to sit at a table adjacent to the cashier area when she was not waiting on customers or performing her other assigned duties. Petitioner advised Parrish and Wreford that she could not work under those conditions but that she would stay on until a replacement was found. Parrish and Wreford accepted Petitioner's resignation but encouraged Petitioner to continue her employment until she could determine if the accommodation would be satisfactory. Petitioner continued to work for Respondent until July 17, 1991, and was able to function without any problems with her knee under the accommodations provided by Respondent. However, after Petitioner resigned she never asked to be reinstated even though she was able to function under the accommodations provided by Respondent. Although Petitioner alleged that she had a physical disability/handicap because of problems she had related to an alleged right knee replacement done some years earlier, there was no medical evidence or other documentation establishing any physical handicap or restrictions/limitations in her ability to work. There were other cashiers employed by Respondent who had conditions similar to Petitioner's conditions who were able to function with the same accommodation offered Petitioner. One of those was the person hired by Respondent to take Petitioner's position. Petitioner collected unemployment compensation after leaving Respondent's employment, as well as other forms of assistance, such as food stamps and housing assistance. Additionally, after leaving Respondent's employment Petitioner developed "female problems" and is not seeking employment even though she attended computer school. There was no evidence as to the amount of damages suffered by Petitioner. There is insufficient evidence to establish facts to show that Petitioner was discriminated against on the basis of a handicap by Respondent or that any unlawful employment practice occurred. There is competent substantial evidence in the record to establish facts to show that there were legitimate, nondiscriminatory business reasons for the action taken by Respondent in removing the stool and providing other accommodations for the cashiers, including Petitioner. There was insufficient evidence to establish facts to show that the Respondent's articulated reasons for its action were pretextual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a Final Order finding that the Petitioner, Norma J. Nolan, was not discharged due to her handicap in violation of Section 760.10, Florida Statutes, and that the Petition For Relief be dismissed. RECOMMENDED this 8th day of June, 1993, at Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3903 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. 1. Proposed Findings of Fact 1 through 13 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial or a restatement of testimony rather than presented as a finding of fact. Respondent's Proposed Findings of Fact. 1. Proposed Findings of Fact 1 through 32 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial or a restatement of testimony rather than presented as a finding of fact. COPIES FURNISHED: Norma J. Nolan, Pro Se 1109 Harvard Avenue Bradenton, Florida 34207 Donna L. Derfoot, Esquire Post Office Box 3979 Sarasota, Florida 34230 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahasse, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
