Findings Of Fact The Respondent is an employer under the 1992 Florida Civil Rights Act. Petitioner was employed by Respondent as a laundry attendant in the Laundry Department. Petitioner was hired originally as a cashier in one of the restaurants but was transferred shortly thereafter. Petitioner was employed by Respondent from June 1990 through June 14,1994. Petitioner is a female Hispanic American, and a member of a protected class. Petitioner was born and raised in Puerto Rico and her first language is Spanish. Although she has lived and worked in the United States since 1979 and speaks English well, her reading and writing skills in English are not well developed. On June 25, 1990, as part of the application process, Petitioner was given a medical questionnaire to complete. The questionnaire contained 25 questions relating to Petitioner's past and present physical condition. Question 23 reads: "Have you ever had any occupational disease or serious injury resulting in a worker's compensation claim?". Petitioner checked "no". Question 24 reads: "Have you had any other serious accidental injuries?". Petitioner checked "yes" and explained "arm operation". Petitioner misread question no. 23. She thought that the question was asking if she was receiving worker's compensation benefits at that time, which she was not. She did not ask for assistance in completing the questionnaire because she believed that she had read and understood the questions correctly. Petitioner did receive worker's compensation benefits for an elbow injury which occurred in 1984. During her four year employment at the Dolphin Hotel, Petitioner had several supervisors who rated her work performance as average/satisfactory in her annual performance review. During her employment, her pay had been increased for a starting salary of $5.65 per hour to approximately $6.75 per hour, plus overtime. At the time of her termination, Petitioner's job performance was rated as good by her immediate supervisor On June 9, 1994, it came to the attention of the Respondent's Human Resources Department that Petitioner had filed a claim and received worker's compensation benefits in the early 1980's and had not acknowledged it on her application. Following a conference between Petitioner and Human Resources personnel, Respondent made a determination that Petitioner had falsified information on her employment application. She was terminated on June 14, 1994. Respondent's policy is that falsification of records is an offense which requires termination of the employee. There are no exceptions. Over the four year period, 1990-1994, Respondent determined that between 12 and 15 employees had falsified information on their employment application and all had been terminated. Petitioner failed to prove, as she alleged, that the real reason for her termination was due to her speaking Spanish with other co-workers while on the job. Respondent demonstrated that of the 45 people working in Petitioner's department most were minorities, including 20 who were Hispanic including Petitioner's immediate supervisor. Respondent's stated reasons for its decision to terminate Petitioner were not proven to be pretextual.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief. DONE AND ENTERED this 3rd day of November, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1995. COPIES FURNISHED: Armida Ramos 181 La Paz Drive Kissimmee, Florida 34743 Carl Maada Division of Labor Relations Walt Disney World Dolphin Hotel 1500 Epcot Resort Boulevard Lake Buena Vista, Florida 32830 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent.
Findings Of Fact Respondent, St. Andrews Bay, is a licensed nursing home that provides in-patient care to its residents. Its facility is located in Panama City, Florida. In order to provide its service, Respondent employs a variety of racially diverse personnel, consisting of both permanent and contract employees. Towards that end, Respondent maintains a variety of employment discipline and transfer policies that are contained in the Employee Handbook for St. Andrews Bay. The April 2011 Employee Handbook, which was in effect in August 2011, set forth the policy regarding transfers, as follows, in relevant part: Employees who wish to be considered for a transfer or promotion to a vacant position may apply if the employee is of "Good Standing." In addition to being in "Good Standing," the employee must possess the following: The minimum qualifications for the position: Received no progressive disciplinary action within the past six months (emphasis added). * * * The Employees Handbook, also, provided for progressive discipline. Such discipline included, in ascending order, coaching, first/second written warnings, suspensions, and Performance Improvement Plans. Petitioner is a black male. As such, Petitioner is a protected person under chapter 760, Florida Statutes. In January 2006, Petitioner was employed by Respondent as a Dietary Aide. As an employee, Petitioner received a copy of, or had access to, Respondent's discipline and transfer policies. At some point, tardiness for work became a problem for Petitioner. Indeed, his supervisor considered him a competent employee with some tardiness issues and, on April 6, 2011, disciplined Petitioner with a "coaching" for being two hours late for work without notifying anyone that he would be late. Although the dates are unclear, the evidence showed that Mr. Munn, who is a white male, worked as a laborer for ManPower. Through a contract between ManPower and St. Andrews Bay, Mr. Munn was performing painting, maintenance, and any other work the Maintenance Director assigned, for approximately four to five weeks, beginning sometime in July 2011. Around August 3, 2011, a sign-up sheet was posted at St. Andrews Bay for the position of Maintenance Assistant. The sign-up sheet was posted to notify any current employees of the job opening and allow them to apply for the position by signing the posted sheet. Within less than six months of Petitioner being disciplined, Petitioner, along with two other current employees, indicated their interest in the Maintenance Assistant position by signing the sign-up sheet. The other two employees who expressed interest in the maintenance position did not testify at hearing and no findings are made regarding their qualifications or, more importantly, Respondent's knowledge regarding their qualifications. Per Respondent's policy, Petitioner did not have to complete an application for the maintenance position since he had two applications, one dated January 4, 2006, and one dated October 24, 2007, on file with the Respondent. Neither of these applications reflected that Petitioner had prior maintenance experience. One application reflects that Petitioner owned a restaurant known as "Daddy's Place." One application reflects that Petitioner was the cook at Daddy's Place. However, neither ownership nor cooking experience indicates maintenance experience and there was no evidence that Respondent knew that Petitioner worked other than as a cook in his restaurant or had any other maintenance experience from such ownership. Moreover, under Respondent's transfer policy, Petitioner was not qualified to sign up for the maintenance position since he had received disciplinary action within six months of this transfer opportunity. On the other hand, the evidence showed that Mr. Munn applied for the position of floor tech at St. Andrews Bay in December of 2010, but was not hired for that position. Unlike Petitioner, and in addition to Mr. Munn's current maintenance work experience at Respondent's facility, Mr. Munn's application reflected some experience in maintenance, albeit not extensive experience. However, like Petitioner, Mr. Munn's application for employment was already on file. Therefore, it was not necessary for Mr. Munn to fill out a second employment application for the position of Maintenance Assistant. Petitioner's policy regarding on-file applications is reasonable and was applied to both black and white applicants in this case. There was no competent evidence that demonstrated this policy was a pretext for discrimination. Petitioner was not interviewed for the position. However, the evidence did not show that anyone was formally interviewed for the maintenance position. On these facts, lack of formal interviews does not demonstrate discrimination by Respondent against Petitioner since Respondent was already familiar with the two applicants at issue in this case. On August 8, 2011, Wesley Munn was selected for the Maintenance Assistant position by the maintenance supervisor, Mr. Emmanuel. Although somewhat unclear, the evidence demonstrated that Mr. Munn's selection was approved by the then Administrator of St. Andrews Bay, Tunecia Sheffield, who is black. Neither of these two individuals testified at hearing. However, the evidence at the hearing did not demonstrate that Respondent discriminated against Petitioner when it hired Mr. Munn for the maintenance position. Conversely, the evidence at hearing demonstrated that Mr. Munn's hiring had a reasonable basis since Mr. Munn had some maintenance experience and was already performing the duties for which he was hired. There was no competent evidence that demonstrated Respondent's reasons for hiring Mr. Munn to be a pretext for discrimination. Therefore, given these facts, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the Petition for Relief. DONE AND ENTERED this 31st day of August, 2012, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2012. COPIES FURNISHED: Tiffany A. Minton, Esquire Preferred Care, Inc. 5500 West Plano Parkway Plano, Texas 75093 Jimmy L. McClain 1527 Grace Avenue, Apartment C Panama City, Florida 32405 Lacey Corona, Esquire Broad and Cassel Suite 205A 200 Grand Boulevard Destin, Florida 32550 Maureen McCarthy Daughton, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 mdaughton@broadandcassel.com Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 violet.crawford@fchr.myflorida.com Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues are (1) whether the Petition for Relief filed by Petitioner was timely under Section 760.11(7), Florida Statutes, and (2) whether Respondent engaged in an unlawful employment practice in violation of the Florida Civil Rights Act of 1992 when it terminated Petitioner's employment as a retail sales associate in May 1998.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties Petitioner is an African American female. During the period of time at issue in this proceeding (i.e., January through May 1998), Petitioner was 49 years old. Respondent is a retail department store chain with stores located throughout Florida, including a store in Oviedo, Florida. Respondent is an employer subject to the Florida Civil Rights Act of 1992. Petitioner's Employment With Respondent On or about January 30, 1998, Petitioner was hired by Respondent to work as a retail sales associate in Respondent's Oviedo store. She was originally assigned to work in the women's clothing department. Petitioner was interviewed and hired by Heidi Jensen, a white female. Ms. Jensen was the assistant sales manager responsible for the women's clothing department, and was Petitioner's direct supervisor throughout the course of Petitioner's employment. Petitioner was hired as a part-time employee at a rate of $9.00 per hour. As a part-time employee, she worked approximately 20 hours per week. Petitioner's schedule was flexible; she worked eight hours on some days and four hours or less on others. She was typically scheduled on the closing shift (i.e., nights), rather than the opening shift. On February 7, 1998, Petitioner signed a certification indicating that she had read and agreed to abide by Respondent's work rules and policies. Those rules include the following directive, hereafter referred to as "Work Rule 10": Associates must exhibit positive behavior toward their job, Management, supervisors, and co-associates in all of their actions and speech. Customers must always be treated courteously. Anything to the contrary will not be tolerated. On February 8, 1998, Petitioner attended a general orientation at which the work rules and policies were discussed. That orientation was also attended by other recently-hired employees, including non-African American employees. Petitioner received additional training from Respondent throughout her employment, including customer service and sales training and direction for handling merchandise returns. That training was also provided to other employees, including non- African American employees. Petitioner never received formal training on how to "open" the store. However, as noted above, Petitioner typically worked during the closing shift rather than the opening shift. Slightly more than a month into her employment, Petitioner's co-workers began complaining about her unprofessional behavior. The complaints alleged that Petitioner yelled at co-workers; that she initiated arguments with co- workers in front of customers regarding who should get credit for the customer's purchases; that she referred to the customers in the woman's department (which caters to larger women) as "fat pigs"; that she stole customers from her co-workers; that she referred to some of her co-workers as "vultures" and others as "bitches" or "wolves," often in front of or within "earshot" of customers; and that she generally upset or harassed co-workers through her attitude and derogatory comments. The complaints came from eight different co-workers, at least one of whom was an African American female. The complaints were made in writing by the co-workers, typically through signed, hand-written statements given to Ms. Jensen or the store manager. Petitioner denied making any of the statements or engaging in any of the conduct alleged in the complaints. In response to the complaints, she took the position that she was being "singled out" by her co-workers because her aggressive tactics made her a more successful salesperson than most of her co-workers. Despite Petitioner's denials, Ms. Jensen determined that disciplinary action was appropriate based upon her investigation of the complaints. Ms. Jensen gave Petitioner a verbal warning "concerning using a positive attitude towards merchandise and customers" on March 7, 1998, and she gave Petitioner a formal written warning for her lack of positive attitude towards customers and co-workers on March 19, 1998. Both warnings cited Work Rule 10 as having been violated. Despite the warnings, Petitioner's conduct continued to generate complaints from her co-workers. She received another verbal warning from Ms. Jensen on April 17, 1998, and she received a formal written warning from the store manager on April 22, 1998. Again, the warnings cited Work Rule 10 as having been violated. Petitioner continued to deny any wrongdoing. She again claimed that she was being "targeted" by her co-workers because of their "jealousy and envy" over her success as a salesperson. The April 22, 1998, written warning stated that "[i]f there is one more report of negativity or verbal abuse of customers or associates, [Petitioner] will be terminated." It also enumerated Respondent's "expectations" with respect to Petitioner's conduct, including a requirement that Petitioner "never confront an associate in front of a customer" (emphasis in original). At some point after the April 22, 1998, written warning, Petitioner was transferred from the women's department to the casual department to give her a "clean slate" with her co-workers. Despite the transfer, Petitioner's co-workers continued to complain about her behavior. The complaints were of the same nature as the complaints discussed above, e.g., stealing sales from other co-workers and initiating confrontations with co-workers over customers in the customer's presence. On May 22, 1998, Petitioner and a co-worker, Brenda Ross, "had words" over a customer. When confronted about the incident by Ms. Jensen, Petitioner "was loud and aggressive" towards her. As a result of this incident and the prior warnings, Ms. Jensen recommended that Petitioner's employment be terminated. The store manager accepted Ms. Jensen's recommendation, and, Petitioner was terminated on May 22, 1998. Thus, the term of Petitioner's employment with Respondent was less than four months. After she was fired, Petitioner returned to her work station to retrieve her belongings. While doing so, she confronted Ms. Ross and called her a "lying bitch" (according to Petitioner's own testimony at the hearing) or something similarly derogatory.1 There are no videotapes of the incidents described above. None of the co-workers who reported the incidents testified at the hearing. Nevertheless, the co-worker's contemporaneous hand-written reports of the incidents which were received into evidence (Respondent's Exhibits 21-30) are found to be credible based upon their general consistency and the corroborating testimony of Ms. Jensen at the hearing. By contrast, Petitioner's testimony regarding the incidents was not credible. There is no credible evidence to support Petitioner's allegations that she was denied the opportunity to file complaints against her co-workers. Nor is there any credible evidence that Petitioner did file complaints (alleging discrimination or anything else) which were ignored by Respondent's management. By all accounts, Petitioner was a good salesperson; her sales per hour were high and, on several occasions, they were the highest in the department where she was working. Ms. Jensen complemented Petitioner on at least one occasion for her high level of sales. Petitioner was also punctual and had a good attendance record. She was on track to receive a pay increase at her next review. However, as a result of the unprofessional behavior detailed above, she was fired prior that review. Petitioner is currently unemployed. She has not held a job since she was fired by Respondent in May 1998. However, she has only applied for four or five other jobs since that time. Petitioner's Discrimination Claim Petitioner first contacted the Commission regarding her allegation that Respondent discriminated against her on or about June 29, 1998. On that date, she filled out the Commission's "intake questionnaire." On the questionnaire, she indicated that she had sought assistance from attorney Anthony Gonzales, Jr. (Attorney Gonzales) regarding the alleged discrimination by Respondent. Petitioner also listed Attorney Gonzales as her representative on the "intake inquiry form and complaint log" completed on or about July 10, 1998. Petitioner consulted with Attorney Gonzales in April 1998, prior to her termination. Although Petitioner claimed at the hearing that Attorney Gonzales did not agree to represent her beyond the initial consultation, Petitioner provided the Commission a copy of Attorney Gonzales' business card and a copy of the check by which Petitioner paid Attorney Gonzales' consultation fee with the Commission's intake documents. Based upon those documents, the Commission apparently (and reasonably) assumed that Attorney Gonzales was Petitioner's attorney because it subsequently directed various letters to Petitioner "c/o Anthony Gonzales, Jr., Esq." at Attorney Gonzales' address. Petitioner filed her formal charge of discrimination on November 9, 1998. The charge did not reference Attorney Gonzales. Nevertheless, on December 7, 1998, the Commission sent a letter to Petitioner "c/o Anthony Gonzales, Jr., Esq." at Attorney Gonzales' address confirming receipt of the charge of discrimination. The record does not include any correspondence from Attorney Gonzales to the Commission in response to the December 7, 1998, confirmation letter. However, Attorney Gonzales continued to receive correspondence from the Commission regarding Petitioner's charge of discrimination after that date. On February 2, 1999, the Commission sent a letter to Petitioner "c/o Anthony Gonzales, Esq." at Attorney Gonzales' address indicating that Petitioner's charge of discrimination had been pending for over 180 days and identifying the options available to Petitioner. The letter was accompanied by an "election of rights" form which was to be completed and returned to the Commission. Attorney Gonzales apparently forwarded the form to Petitioner because Petitioner completed and signed the form and returned it to the Commission on June 17, 1999. This strongly suggests that there was an attorney-client relationship between Attorney Gonzales and Petitioner at the time. Indeed, if there was no attorney-client relationship, either Petitioner or Attorney Gonzales would have informed the Commission in connection with the return of the form that Attorney Gonzales was not representing here. However, neither did. The record does not include any additional communications between the Commission and Petitioner and/or Attorney Gonzales between June 1999 and August 2001. Notably absent from the record is any notice to the Commission that Attorney Gonzales was no longer representing Petitioner. On August 31, 2001, the Executive Director of the Commission issued a "no cause" determination on Petitioner's charge of discrimination. On that same date, the Clerk of the Commission sent notice of the determination to Petitioner "c/o Anthony Gonzales, Jr., Esq." at Attorney Gonzales' address. The notice stated that "[c]omplainant may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE" (emphasis supplied and capitalization in original), and further stated that the claim "will be dismissed" if not filed within that time. Attorney Gonzales contacted Petitioner by telephone after he received the notice of determination. The record does not reflect the date of that contact. However, Petitioner testified at the hearing that Attorney Gonzales informed her during the telephone call that the deadline for requesting a hearing had not yet expired. Accordingly, the contact must have occurred prior to October 5, 2001, which is 35 days after August 31, 2001. Despite the notice from Attorney Gonzales, Petitioner did not immediately file a Petition or contact the Commission. She did not contact the Commission until October 16, 2001. On that date, she spoke with Commission employee Gerardo Rivera and advised Mr. Rivera that Attorney Gonzales was not representing her. Mr. Rivera indicated that the Commission would send an "amended" notice directly to her. An "amended" determination of no cause was issued by the Executive Director of the Commission on October 26, 2001. On that same date, an "amended" notice of determination was mailed to Petitioner. Included with the "amended" notice was a blank petition for relief form. Petitioner completed the form and mailed it to the Commission. The Petition was received by the Commission on November 28, 2001,2 which is 33 days after the date of the "amended" determination, but 89 days after the date of the original August 31, 2001 determination. Mr. Rivera's affidavit (Exhibit P1) characterized the mailing of the original determination to Attorney Gonzales as "our [the Commission's] error" and a "mistake." The preponderance of the evidence does not support that characterization. Specifically, the record reflects that it was Petitioner who gave the Commission the impression that Attorney Gonzales was representing her, and neither Petitioner nor Attorney Gonzales did anything to advise the Commission otherwise during the two and one-half years that the Commission investigated Petitioner's charge of discrimination and sent letters to Attorney Gonzales on Petitioner's behalf. Indeed, Petitioner testified at the hearing that the October 16, 2001, conversation with Mr. Rivera was the first (and only) time that she informed the Commission that Attorney Gonzales was not representing her.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief. DONE AND ENTERED this 31st day of December, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 31st day of December, 2002.
The Issue Whether Respondent committed the unlawful employment practice 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: Petitioner is a software engineer with almost 30 years of experience in the industry. From 2001 until August of 2006, Petitioner was employed by ITT Industries (ITT). Petitioner's employment with ITT came to an end when he was involuntarily terminated. Following his termination, Petitioner filed an employment discrimination complaint with the federal Equal Employment Opportunity Commission (EEOC) alleging that ITT had discriminated against him because he suffered from Tourette's syndrome (which caused him to have vocal tics and to stutter). Petitioner did not take any action to pursue these allegations of employment discrimination beyond filing this complaint against ITT with the EEOC. Petitioner has been unable to obtain a "permanent job" as a software engineer since his termination by ITT. Respondent is a defense contractor that "make[s] [military] simulation and training equipment." In early 2008, Respondent was looking to fill a temporary software engineer position. Edge Dynamics was one of the outside employment agencies that Respondent used to assist it in the hiring process. On January 9, 2008, Edge Dynamics provided Petitioner's resume to Edward Kaprocki, a senior principal software engineer with Respondent. Mr. Kaprocki was responsible for interviewing applicants for the position and making hiring/rejection recommendations. After reviewing Petitioner's resume, Mr. Kaprocki "thought [it] looked interesting enough where it would worth talking to [Petitioner]," and he so advised Sandra Asavedo, his "point of contact" at Edge Dynamics. Ms. Asavedo made the necessary arrangements to set up a face-to-face interview between Mr. Kaprocki and Petitioner. The interview took place in Mr. Kaprocki's office on January 14, 2008. It lasted about 45 minutes to an hour. Petitioner seemed to Mr. Kaprocki to be "a little bit nervous," but Petitioner did not do or say anything to cause Mr. Kaprocki to believe that Petitioner suffered from any disability. During the course of the interview, Petitioner showed Mr. Kaprocki his personal website, which contained information about and pictures of "some of the projects that [Petitioner] had worked on." Based on the interview, Mr. Kaprocki determined that Petitioner did not have the skill-set that was needed for the position Respondent was seeking to fill. Immediately following the interview, Mr. Kaprocki went to his supervisor, Steve Preston, whose office was "right down the hall," and recommended that Petitioner not be hired to fill the position. Mr. Kaprocki then telephoned Ms. Asavedo to let her know that Petitioner was not going to be hired so that she could inform Petitioner. Mr. Kaprocki's decision to recommend against hiring Petitioner had nothing to do with Petitioner's suffering from Tourette's syndrome or his having filed an EEOC complaint against ITT. Indeed, at the time he made his decision, Mr. Kaprocki did not even know that Petitioner had Tourette's syndrome or had filed an EEOC complaint against ITT. Mr. Kaprocki first learned of these matters only after Petitioner had filed his Complaint in the instant case. After being told that he would not be hired for the position, Petitioner telephoned Mr. Kaprocki several times, pleading with Mr. Kaprocki to "reconsider hiring him." Mr. Kaprocki told Petitioner "that the decision had been made" and would not be reconsidered. Mr. Kaprocki felt that Petitioner, by making these telephone calls, was "badgering and harassing him." To satisfy his own personal curiosity (and for no other reason), Mr. Kaprocki looked online to find out more about the person who was subjecting him to this "badgering and harass[ment]."2 Mr. Kaprocki did not discover, as a result of his online search, that Petitioner had Tourette's syndrome or that Petitioner had filed an EEOC complaint against ITT. His search, however, did reveal certain comments Petitioner had made in an online forum that Mr. Kaprocki considered to be "extremely unprofessional." After reading these comments, Mr. Kaprocki was even more confident than he had been before he began his search that he had made the right decision in not recommending Petitioner for employment. Petitioner was never offered a position with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding Respondent not guilty of any unlawful employment practice alleged by Petitioner and dismissing Petitioner's employment discrimination complaint. DONE AND ENTERED this 14th 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 14th day of May, 2009.
The Issue Whether Respondent Al Packer Ford, Inc. terminated the employment of Petitioner Woodrow Samuel on the basis of race, which is an unlawful employment practice pursuant to Section 23.167 (1)(a), Florida Statutes.
Findings Of Fact Petitioner was discharged from his employment on August 8, 1978 and believes that his discharge was because he is black. Petitioner was hired on April 4, 1978 by the Service Manager for Respondent corporation who had been his supervisor at Dominion Chevrolet in Richmond, Virginia. Petitioner was employed as a quick service mechanic and worked for approximately three (3) monthe. During that time Petitioner's Production was low and at least on two (2) occasions made serious errors in servicing customers automobiles. Once he failed to put in oil, and once he failed to replace brake slices. He received a warning from his employer but was not discharged. Thereafter he was transferred to the Okeechobee Road Used Car Lot as a Lot Man. There he had the opportunity to make more money under a pay plan which did not depend on mechanical work by the job. After two (2) weeks he was transferred to the Respondent's main used car lot on Military Trail under the supervision of George Mills, and his salary was increased by forty (40) dollars per week. Prior to Petitioner's discharge Petitioner's immediate supervisor, George Mills, was on vacation. During this period Petitioner took a used Cadillac for his personal use from the lot in West Palm Beach and drove it to Miami for the weekend. Petitioner had not been authorized by Mills or by anyone else to use the Cadillac, according to the testimony of Mills which is more credible then the testimony of Petitioner. Mills learned of the use of the car by Petitioner after his return from vacation and after it had been scheduled for repairs. Mills stated that Petitioner had been warned not to use vehicles for his private use and, when he learned of the use of the Cadillac, terminated his employment and told him why. Petitioner appealed to his original employer, George Hollifield, who then was the supervisor of Petitioner's direct supervisor, for reemployment but was refused. Use of vehicles from the used car lot by employees of Respondent is allowed as a general company policy only upon specific authorization. A witness, another black man, had seen Petitioner use vehicles on occasion from the lot but did not know whether the use was authorized. About 10 percent of the employees of Respondent are Hispanic or Black, and the stated policy of the business is to employ competent people to make money for the corporation, and race is not a factor or consideration. Petitioner Samuel and Respondent submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the complaint and petition he dismissed by the Florida Commission on Human Relations. DONE and ORDERED this 1st day of October, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Franklin G. Callas, Esquire 125 Worth Avenue, Suite 308 Palm Beach, Florida 33480 Norman A. Jackson, Executive Director Florida Commission on Human Relations Suite 100, Montgomery Building 2652 Executive Center Circle, East Tallahassee, Florida 32301 Thomas E. Kingcade, Esquire Post Office Box 2755 Palm Beach, Florida 33480 Mr. Al Packer Al Packer Ford, Inc. 1530 North Military Trail West Palm Beach, Florida 33403
The Issue The issue is whether the claim of employment discrimination contained in the Petition for Relief must be dismissed due to Petitioner's execution of a release of all claims.
Findings Of Fact On June 29, 2012, Petitioner's employment with Respondent was terminated. On July 24, 2012, Petitioner filed a Charge of Discrimination alleging that he was subjected to discrimination. On August 18, 2012, Petitioner signed an agreement. Under the agreement, Respondent agreed to pay Petitioner $5,000.00, net several items, provided Petitioner did not exercise his right to revoke the agreement within the seven days following execution, as provided in the agreement. Petitioner did not revoke the agreement, and Respondent discharged all obligations under the agreement. In exchange, Petitioner agreed to release Respondent from all claims, damages, suits, complaints, damages, losses and expenses, of every nature, legal or equitable, whether known or unknown, which Olascoaga ever had, now has, or may claim to have, upon or by reason of the occurrence of any matter, cause or thing whatsoever . . . . This release specifically includes, but is not limited to, a release of any and all claims under the Florida Civil Rights Act . . . . There is no contention that Petitioner was not acting knowingly or voluntarily when he executed a release of claims.
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 Carlos Olascoaga's Petition for Relief from employment discrimination for lack of jurisdiction. DONE AND ENTERED this 11th day of April, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 11th day of April 2014.
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 Whether Respondent Employer is guilty of an unlawful employment practice by discrimination against Respondent on the basis of her age and gender (female).
Findings Of Fact Petitioner is female. Petitioner initiated her retirement from Respondent employer in February 2005 at age 65. No evidence was presented at the disputed-fact hearing to establish the number of persons employed by Respondent at any material period of time. However, because Respondent has acknowledged in its Proposed Findings of Fact that Petitioner is an "aggrieved person," as that term is defined in Section 760.02(10), Florida Statutes, and has further acknowledged that at all times material to this cause, Respondent was an "employer" as that term is defined in Section 760.02(7), Florida Statutes, and Respondent is hereby found to be a statutory employer under Chapter 760, Florida Statutes. Petitioner began part-time employment as an Order Entry/Mail Clerk with Respondent in July 1983. At the same time, and dating from May 30, 1983, Petitioner was also employed part-time with Sears, Roebuck and Company (Sears). In 1984, Petitioner accepted full-time commission sales employment with Sears and continued to work part-time for Respondent Employer. She worked full-time for Sears and part- time for Respondent until July 1996. Between 1983 and 1996, Jack Barber, president and CEO of Respondent Employer, repeatedly asked Petitioner to come to work full-time for Respondent. In July of 1996, Petitioner accepted full-time employment as Chief Finance Officer/Human Relations Director of Respondent Employer. At the time of her transition to her new, full-time position with Respondent, Petitioner was doing accounts receivable, accounts payable, payroll, and general ledger bookkeeping. Petitioner was qualified for all positions she held while employed by Respondent. At all times material, Petitioner was an exemplary employee. Petitioner testified that, as an inducement to give up her full-time Sears employment with its vested pension and excellent pay and benefits, Mr. Barber "guaranteed [her] in writing a five percent yearly increase in salary with no end date." It was Petitioner's position that between July 1996 and February 2005, when she retired, Respondent had a written employment contract with her, which contract had been negotiated in July of 1996, and that this contract provided for Petitioner to receive a raise equivalent to five percent of her base pay; one week of vacation in 1996; three weeks of vacation in 1997 and 1998; three days compensatory time (personal holidays) in 1996; six days of compensatory time (personal holidays) in 1997 and 100 percent medical insurance. The document she represented as her contract of employment was admitted in evidence as Petitioner's Exhibit One. Petitioner's Exhibit One is not dated. It also states no ending date and does not contain the signature of either Petitioner or Mr. Barber. It resembles arithmetic computations without setting out in sentences either Petitioner's or Respondent's obligations one to the other. It only lists the years 1996, 1997, 1998, and 1999, with regard to salary; only 1996, 1997 and 1998, as to vacation; and only 1996 and 1997 as to "comp. time." It bears the expression: "$150,000.00 + - 5 yrs." Furthermore, Petitioner testified that the exhibit does not encompass the whole of the parties' oral understanding at that point-in-time, because she believes that Mr. Barber also orally assured her that the five percent annual salary increases would continue as long as she was employed by Respondent, that vacation time and personal holiday time would accrue annually based upon Petitioner's original date of hire in 1983; and that Respondent company would institute a retirement plan in the near future. Mr. Barber testified that he had intended his notes and computations in 1996 on Petitioner's Exhibit One to only show that he anticipated if Petitioner came to work for Respondent in 1996: that he would guarantee Petitioner a term of employment up to at least five years; that there would be at least three years (1997, 1998, and 1999) with a five percent increase for her each year; and that, based on the foregoing prognosis, Petitioner could expect to earn at least $150,000.00 over a five-year period. Mr. Barber never intended Petitioner's Exhibit One to be a contract of employment. Petitioner candidly admitted that Respondent granted her five percent pay increases in January 1997, 1998, and 1999. Petitioner calculated that, without bonuses, she was paid half of $27,300.00 in 1996 because she started in July; $28,665.00 in 1997; $30,097.60 in 1998; and $31,720.00 in 1999. Petitioner accepted Respondent's figures that her annual W-2 compensation 1999 (including bonuses) was as follows: $33,635 2000 $31,720 2001 $32,830 2002 $33,015 2003 $32,330 2004 $31,720 Therefore, Petitioner's income without bonuses from Respondent for her first five years of employment (1996-2000) may have been less than $150,000.00. It was Petitioner's further position that the Respondent Employer had "contracts" similar to Petitioner's Exhibit One with other employees, specifically Greg Barber and Rob Humphrey (both younger male employees), which were honored by Respondent and that Petitioner's "contract" was not honored by Respondent. Petitioner claimed that Jack Barber's honoring the younger men's contracts, and not hers, constituted the acts of age and gender discrimination she complains of here. No contract between Respondent Employer and Greg Barber was presented for comparison with Petitioner's Exhibit One. No contract between Respondent employer and Rob Humphrey was presented for comparison with Petitioner's Exhibit One. Petitioner maintained that she "performed many of the same duties as Barber and Humphrey who were younger than she was at all times material and that she received less compensation." Greg Barber is the son of President/CEO Jack Barber. Since March 1985, Greg Barber has been the company's general manager and sales manager. Greg Barber also acts as co-CEO with his father. At all times material, he received a base salary plus commission based on total company sales. Greg Barber's responsibilities also included overseeing order entry personnel, accounts receivable/payable personnel, purchasing/inventory control personnel, mailroom personnel, shipping/warehouse personnel, service department personnel, and the receptionist. He also answered customer service calls and took phone orders. Rob Humphrey is the salesman responsible for Respondent's United States and Canadian sales. At all times material, he was paid a base salary plus commission based on Respondent's sales in the United States and Canada. Mr. Humphrey's responsibilities included training and overseeing a staff of two or three phone order entry/customer service personnel while also taking phone orders himself. At all times material, Petitioner was a salaried, non- commission employee. Petitioner claims that she performed many duties outside her job description. Specifically, she contends that she assisted both Rob Humphrey and Greg Barber in doing their jobs. Specifically, she described sharing responsibility with Greg Barber for making decisions regarding copy writing, marketing, in-putting of advertising materials, and direct marketing mailings. No witness corroborated Petitioner's assessment of her assistance to Greg Barber or Rob Humphrey, but at most, Petitioner only irregularly assisted these commissioned salesmen with their clerical or office tasks. She did not sell product. Despite Petitioner's contention that she performed some of the same services that Greg Barber and Ron Humphrey performed, it appears that the majority of the services she performed for Respondent were very different from theirs. It further appears that Humphrey and Barber performed services that were different from each other. Greg Barber had far more authority and responsibility than either Mr. Humphrey or Petitioner, and because of his position, Greg Barber received a commission out of Rob Humphrey's commission. In other words, as Mr. Humphrey's sales manager, Greg Barber received a percentage commission of all sales by whomever the sale was made and this increased Greg Barber's overall income. Likewise, Mr. Humphrey's responsibilities, particularly the necessity for him to deal with Canadian sales and marketing problems, varied greatly from Petitioner's responsibilities, which were primarily clerical or financial and home office based, and differed from Greg Barber's responsibilities, which were concentrated on home office management and sales in the United States. Petitioner maintained that other employees received raises when she did not. However, Respondent demonstrated that the annual base wage for Petitioner from 1999 through and including 2004, was $31,720.00; for Mr. Humphrey was $13,000.00; and for Mr. Barber was $47,840.00. Respondent further demonstrated that the base wages for all three employees remained constant from 1999 through 2004, and that Messrs. Barber and Humphrey, the commissioned employees, had fluctuations in their total gross wages during the five years from 1999 through 2004, due to fluctuations in the company sales and their resultant commissions. Rob Humphrey's W-2 compensation was below Petitioner's W-2 compensation from 1999 to 2001 and slightly exceeded hers from 2002 through 2004. Greg Barber's W-2 compensation exceeded Petitioner's W-2 compensation consistently from 1999 through 2004. Respondent demonstrated that in the year 2003, Respondent company suffered substantial losses, which affected the salesmen's commissions, and thus their overall income, but Petitioner's and everyone else's base wages remained the same, regardless of business conditions. How bonuses were calculated is unclear from the evidence, but in 1999, Petitioner's bonus was higher than either Mr. Humphrey's or Greg Barber's bonus. In 2000, no one got a bonus. In 2001, Greg Barber's bonus was $2,360.00; Mr. Humphrey's bonus was $540.00; and Petitioner's bonus was $1,110.00. In 2002, Greg Barber's bonus was $2,500.00; Mr. Humphrey's bonus was $665.00; and Petitioner's bonus was $1,295.00. No one received a bonus from 2003-2004. One of Petitioner's responsibilities while employed by Respondent was to assist Greg and Jack Barber in writing an employee handbook. This handbook clearly states that all of Respondent's employees are "at will" employees. That means that no guarantee of continued employment existed for any employee. Petitioner acknowledged that she had read that part of the handbook. The handbook also provides a reasonable procedure for someone, who believes that he or she is being discriminated against, to report that allegedly discriminatory treatment. Petitioner acknowledged that she never complained of sex discrimination or age discrimination while employed by Respondent. Petitioner also was aware she could file an Equal Employment Opportunity Commission complaint. She never did this either. Petitioner did complain to Jack Barber that her job was of greater importance than that of Greg Barber or Rob Humphrey, and she did repeatedly lodge her concerns with Jack Barber that her pay in comparison to theirs was inappropriate. Although denied by Mr. Barber, Petitioner is more credible that she asked for a five percent increase each year. In response to one of her complaints, Jack Barber "evened out" a bonus for her. In early 2005, Petitioner again approached Jack Barber regarding what she considered to be her "promised five percent annual increases." Petitioner and Jack Barber met several times during the months of April and May 2005. When their negotiations were not fruitful, Petitioner gave notice of retirement and left Respondent's employ on June 3, 2005, at age It had been her prior intent to continue working full-time for Respondent through the end of the year 2005. She hoped to continue working for Respondent part-time for several years beyond 2005. Petitioner testified that all employees received a retirement plan in 2001, but that she was not granted the promised yearly five percent increase in January 2000 and was not provided any reason or explanation for the decline in her base pay after that. She calculated that if the five percent per year increase had been given her, she would have received an additional $63,798.47, provided she had worked to the end of 2005, as she had intended.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 2nd day of August, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2006. COPIES FURNISHED: Kay F. Kelley Post Office Box 559 Center Hill, Florida 33514 Timothy Shea, Esquire 800 North Ferncreek Avenue, Suite 9 Orlando, Florida 32803 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, American Pioneer Title Insurance Company, discriminated against Petitioner, Dennise Raines, in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (2002).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is an African-American female who worked for Respondent from 1999 until October 11, 2002, when her employment was terminated. Respondent owns and operates a title insurance company and is subject to Chapter 760, Florida Statutes (2002). Petitioner was first employed as a data entry operator. In January 2001, she was promoted to a research position and received a pay increase. After an initial period of positive work performance and interaction with co-employees, Petitioner's attitude changed. Her work and relationships with co-workers deteriorated. As a result, in July 2002, Ms. Kathy Bowles, who had hired and supervised Petitioner and who had recommended Petitioner's advancement, demoted Petitioner due to Petitioner's negative behavior toward co-employees which included addressing them with profanity and demonstrated disrespect toward her supervisors. Although Petitioner was demoted, her pay remained the same. The July 2002 demotion is memorialized by an Employee Performance Enhancement Plan (Respondent's Exhibit 6). Subsequent to her demotion, Petitioner requested that her work hours be adjusted to allow her to attend classes. This request was approved, and Petitioner's work hours were changed. Thereafter, Petitioner's attendance and punctuality suffered. In September 2002, Petitioner was absent or late more than one-half of the work days; of these days, there were seven instances of tardiness. Petitioner was counseled regarding tardiness on September 27, 2002. Similarly-situated Caucasian employees, Mss. Beverly Dease and Linda Shapiro, had only been late for work one time between them for the entire year. Petitioner was late for work twice during the first five work days of October. Following the second tardiness, on October 7, 2002, Ms. Bowles counseled Petitioner that an additional tardiness would result in her being discharged. On the third work day following counseling, Petitioner was absent from work. Following this absence, Petitioner was discharged for her attitude, tardiness, and absenteeism. She was replaced by a Hispanic female. Respondent has an extensive, well-conceived, Equal Employment Opportunity policy which prohibits unlawful discrimination. This policy is posted in the workplace and is distributed to every employee as a part of the Employee Handbook at the time he or she is employed. There are published procedures which can be easily followed by an employee who believes that he or she has been the victim of unlawful discrimination. Although she acknowledged awareness of the policy, Petitioner did not avail herself of it. Ms. Bowles, Petitioner's supervisor, hired, promoted and then, demoted Petitioner. No evidence received supports Petitioner's contention that Ms. Bowles or any other employee of Respondent unlawfully discriminated against Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that Petitioner's Petition for Relief be dismissed. DONE AND ENTERED this 15th day of September, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Dennise Raines 1165 West 16th Street, Apartment B Sanford, Florida 32771 Andrew G. Wedmore, Esquire Jill Schwartz & Associates 180 North Park Avenue, Suite 200 Winter Park, Florida 32789-7401 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
