The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has been the victim of employment discrimination by reason of his being terminated, allegedly on account of his physical disability.
Findings Of Fact The Petitioner is an "employee" as defined in Chapter 760, Florida Statutes, and the Respondent meets the statutory definition of "employer" appearing in that Chapter. The Petitioner is a truck driver by occupation and was employed by the Respondent, Gurley Refining Company, in that capacity from February, 1982 until February 11, 1988, with the exception of a very brief period of time when he performed some other duties for that firm. This cause arose under the auspices of the Florida Human Relations Commission, an agency of the State of Florida constituted in Chapter 760, Florida Statutes. It is charged by that Chapter with oversight of working conditions and circumstances between employers and employees in Florida to the extent that the agency, under the mandate of Chapter 760, provides a procedure whereby employee claims of employment discrimination on account of race, age, sex, religion, national origin or disability can be adjudicated in a due process hearing environment, including hearings before the Division of Administrative Hearings in the event such claims culminate in formal disputes. During the course of the Petitioner's employment with Gurley Refining Company, in addition to being employed as a truck driver (the vast majority of his duties with that company), the Petitioner also had significant experience as a warehouse employee, handling the company's inventory and freight. The Petitioner had an unblemished record as a truck driver for the Respondent company. He had no disciplinary altercations with his supervisors and his attendance record was characterized by very few absences, sick leave and little tardiness. In approximately early January of 1988, the Petitioner suffered an acute myocardial infarction (heart attack), which necessitated his absence from work for a period of approximately thirty days. His treating physician, a cardiologist, Dr. Story, of Orlando, released him approximately a month after his heart attack, but admonished him to engage in light duties, and restricting him against lifting weight in excess of seventy pounds. During the course of his illness, the operations manager of the Respondent's Lake County facility and Petitioner's supervisor, Mr. Kenny Hart, had assured the Petitioner that his job would be waiting for him as soon as he recovered from his illness. In fact, however, in early February, when the Petitioner was released by his doctor to return to his job, with the restrictions mentioned above, the Petitioner requested his former job back and was refused. Mr. Hart indicated to the Petitioner that he would not hire him back, and in fact terminated him due to his medical condition, as Mr. Hart explained it. The Petitioner's doctor had not restricted him from doing his same job or from working an eight hour day, but merely had restricted him against lifting more than seventy pounds at any one time. When Mr. Hart refused to put him back to work in his old job, the Petitioner requested to be assigned to duties in the company's warehouse or bottling plant. The company had an operation involving bottling of windshield washer detergent fluid. The Petitioner had had substantial experience in those operations, especially as a checker of merchandise and as a forklift operator in the company warehouse. His physical disability would not preclude him from performing those functions. Mr. Hart, and his superior, Mr. Helton of the company's office in Memphis, Tennessee, declined to place the Petitioner in such an employment position with the company. There have been a number of instances in which the company accommodated employees by placing them at work at various positions in the company operations during the period of time they were on medical restrictions by their doctors due to some disability or illness. The Petitioner described one case in particular involving an employee who had surgery for amputation of his leg and who was allowed to come back to work performing various minor jobs during his convalescence in order to allow him some gainful employment, later being restored to more meaningful permanent duties. The Petitioner was not thus accommodated, however. The Petitioner could have performed any of the types of duties mentioned above, involving the warehouse or the bottling plant or driving a truck once again, because all were within the scope of his years of experience with the company and his physical abilities, even as restricted by his doctor. The Petitioner was making $7.80 an hour when he was terminated and during the year after his termination from February 11, 1988 to approximately February 1, 1989, the Petitioner was not able to get regular employment. For a time after termination, he was receiving unemployment compensation and thereafter worked at casual labor jobs involving loading and unloading trucks for a trucking company. He also worked at laying sewer lines, doing manual labor. During the year after his termination, the Petitioner and his wife earned approximately $18,000. Four thousand dollars of that sum was from the wife's part-time employment. The Petitioner had grossed approximately $30,000 in the past full year he worked for the Respondent company, that is, 1987. In February, 1989, the Petitioner again obtained full-time employment in a truck driving position with another firm. He is again making approximately $30,000 gross salary per year. At the time Petitioner was off work from his job with the Respondent due to his heart condition, and at the time of his termination, no mention was made or information given him about any right to medical disability to leave. The Petitioner apparently missed approximately thirty days of work, and then was terminated under the above conditions and circumstances.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, and the candor and the demeanor of the witnesses, it is therefore, RECOMMENDED that a Final Order be entered by the Human Relations Commission finding that an unlawful employment practice occurred by Respondent's discrimination against the Petitioner on account of his handicap, and that he be accorded all relief allowed under the above-cited authority, including back pay of $16,000 and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ENTERED this 16th of October, 1989, at Tallahassee, Florida. P MICHAEL RUFF 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 16th day of October, 1989. COPIES FURNISHED: Mr. Allen Reynolds 2356 Oliver Avenue Leesburg, FL 32748 Mr. R. D. Helton Director of Operations Gurley Refining Company Post Office Box 626 Memphis, Tennessee 38101 Dana Baird, General Counsel Florida Commission on Human Relations Suite 240, Building F 325 John Knox Road Tallahassee, FL 32399-1570 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 =================================================================
The Issue The issue is whether Respondent committed an unlawful employment act against Petitioner pursuant to Chapter 70 of the Pinellas County Code, as amended, and Title VII of the U.S. Civil Rights Act of 1964, as amended.
Findings Of Fact Petitioner, a black female, is a member of a protected group. Respondent is an employer as defined in the Pinellas County Code, as amended, and Title VII of the Civil Rights Act of 1964, as amended. Respondent hired Petitioner as a telemarketer on December 8, 1997. Petitioner's job required her to call the telephone numbers on a list furnished by Respondent. After making the call, Petitioner was supposed to solicit the booking of vacations in time-share rental units by reading from a script prepared by Respondent. The script included an offer to sell potential customers three vacations in three locations for $69. When Respondent hired Petitioner, she signed a copy of Respondent's "New Employee Policy and Procedures" manual. Petitioner admits that this manual required her to book 25 vacations each pay period after a two-week training period. She also admits that the manual required her to only use the prepared script, including preplanned rebuttals to customer questions when talking over the telephone. Petitioner understood that during the two-week training period, she would be required to book 14 vacations or be terminated. She knew that Respondent's supervisors would monitor her sales calls. Petitioner sold four vacation packages in her first week at work with no complaints from her supervisors. In fact, one of Respondent's supervisors known as Mike told Petitioner, "You got the juice." On December 15, 1997, Mike monitored one of Petitioner's calls. Petitioner admits that she did not use the scripted rebuttals in answering the customer's questions during the monitored call. Instead, she attempted to answer the customer's questions using her own words. According to Petitioner, she used "baby English" to explain the sales offer in simple terms that the customer could understand. After completing the monitored call on December 15, 1997, Mike told Petitioner to "stick to the shit on the script." Mike admonished Petitioner not to "candy coat it." Petitioner never heard Mike use profanity or curse words with any other employee. Before Petitioner went to work on December 16, 1997, she called a second supervisor known as Kelly. Kelly was the supervisor that originally hired Petitioner. During this call, Petitioner complained about Mike's use of profanity. When Kelly agreed to discuss Petitioner's complaint with Mike, Petitioner said she would talk to Mike herself. Petitioner went to work later on December 16, 1997. When she arrived, Mike confronted Petitioner about her complaint to Kelly. Petitioner advised Mike that she only objected to his language and hoped he was not mad at her. Mike responded, "I don't get mad, I get even." When Petitioner stood to stretch for the first time on December 16, 1997, Mike instructed her to sit down. Mike told Petitioner that he would get her some more leads. Mike also told Petitioner that she was "not the only telemarketer that had not sold a vacation package but that the other person had sixty years on her." Petitioner was aware that Respondent had fired an older native-American male known as Ray. Respondent hired Ray as a telemarketer after hiring Petitioner. When Petitioner was ready to leave work on December 17, 1997, a third supervisor known as Tom asked to speak to Petitioner. During this conversation, Tom told Petitioner that she was good on the telephone but that Respondent could not afford to keep her employed and had to let her go. Tom referred Petitioner to another company that trained telemarketers to take in-coming calls. Tom gave Petitioner her paycheck, telling her that he was doing her a favor. During Petitioner's employment with Respondent, she was the only black employee. However, apart from describing the older native American as a trainee telemarketer, Petitioner did not present any evidence as to the following: (a) whether there were other telemarketers who were members of an unprotected class; (b) whether Petitioner was replaced by a person outside the protected class; (c) whether Petitioner was discharged while other telemarketers from an unprotected class were not discharged for failing to follow the script or failing to book more than four vacations during the first ten days of employment; and (d) whether Petitioner was discharged while other telemarketers from an unprotected class with equal or less competence were retained. Petitioner was never late to work and never called in sick.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the City's Human Relations Review Board enter a final order dismissing Petitioner's Complaint. DONE AND ENTERED this 16th day of November, 2001, in Tallahassee, Leon County, Florida. 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 16th day of November, 2001. COPIES FURNISHED: Bruce Boudreau Vacation Break 14020 Roosevelt Boulevard Suite 805 Clearwater, Florida 33762 Donna Conway 3156 Mount Zion Road No. 606 Stockbridge, Georgia 30281 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Stephanie Rugg, Hearing Clerk City of St. Petersburg Community Affairs Department Post Office Box 2842 St. Petersburg, Florida 33731
The Issue Whether the Respondent discriminated against Ruby D. Johnson on the basis of a handicap in violation of the Human Rights Act of 1977, as amended?
Findings Of Fact The Petitioner began employment with the Respondent at its Lake City, Florida, plant during 1977 or 1978. The Respondent manufactures metal parts for automobiles. The Petitioner was employed by the Respondent as a parts assembly worker. At the time the Petitioner began employment with the Respondent, she informed the Respondent that she did not have any handicap. On June 28, 1984, the Petitioner was accidently struck on the head with a broom by another employee while at work. She was struck with the straw end of the broom. The Petitioner did not return to her job for approximately two months after being struck on the head. The Petitioner was treated by George G. Feussner, M.D. When Dr. Feussner authorized the Petitioner's return to work, he recommended that she not be required to perform any work requiring standing or leaning, climbing or operation of dangerous equipment for approximately three to four weeks. In September, 1985, the Petitioner experienced dizziness and fell while at work. In a letter dated October 2, 1985, Dr. Feussner informed the Respondent of the following: Despite and [sic] extensive evaluation of this lady, I cannot find objective findings to go along with her symptoms. I believe that she should be able to return to work at her regular job, but I still think that it would be dangerous considering her emotional dedication to her symptoms she is likely to injure herself if she works around dangerous equipment or at heights. She should therefore find a job that does not involve these activities... The Petitioner, when she tried to return to work, was not allowed to work because she had filed a workmen's compensation claim as a result of her alleged condition. This claim was being disputed by the Respondent's workmen compensation insurance carrier. On October 31, 1985, the Respondent laid off several employees with seniority equal to or greater than the Petitioner's seniority. Employees were laid off because of a lack of work. The Petitioner would have been laid off also, but was not because of the disputed claim over workmen's compensation. In November, 1985, the Petitioner's workmen compensation claim was denied. At that time the Petitioner was informed that she was also being laid off. In October, 1986, the Respondent began recalling the employees it had laid off in November, 1985. The Petitioner was not recalled, however, because of the restrictions on the Petitioner's ability to work. The Petitioner filed a Petition for Relief from an Unlawful Employment Practice with the Commission in October, 1986. On November 13, 1987, the Commission issued a Notice of Determination: No Cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Human Relations enter a final order denying the Petitioner's Petition for Relief. DONE and ENTERED this 7th day of September, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1988. COPIES FURNISHED: Ruby D. Johnson 1802 North Georgia Street Lake City, Florida 32055 William B. Hatfield Supervisor of Human Relations ITT Thompson Industries - Metal Division Post Office Box 928 Valdosta, Georgia 31603-0928 Donald A. Griffin Executive Director Commission On Human Relations, Florida 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Commission On Human Relations, Florida 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1025 =================================================================
The Issue The issue in the case is whether Clifford McCullough (Petitioner) was the subject of unlawful discrimination by Nesco Resources (Respondent) in violation of chapter 760, Florida Statutes (2015)1/.
Findings Of Fact The Respondent is a company that refers pre-screened job candidates to employers upon request by an employer seeking to fill a specific position. The Petitioner is an African-American male, born in 1959, who sought employment through the Respondent. The Respondent does not make the hiring decision. The actual decision is made by the employer requesting referrals from the Respondent. The Respondent is compensated by the employer if and when the employer hires an applicant referred by the Respondent. On occasion, the Respondent publishes advertisements seeking applications to fill specific positions, such as “forklift drivers.” The fact that the Respondent seeks applications for specific positions does not mean that an employer has contacted the Respondent seeking referrals for such positions. The advertisements are used by the Respondent to create an inventory of applicants who can be referred to employers. On December 20, 2013, the Petitioner submitted a job application to the Respondent seeking a “forklift driver” position. At that time, the Petitioner indicated to the Respondent that he was available to perform “warehouse, packing, production, shipping and receiving tasks.” Several weeks prior to the Petitioner’s application, the Respondent had referred job candidates to an employer seeking to fill an available forklift driver position. The employer filled the position by hiring an African-American male born in 1961 who was referred to the employer by the Respondent. As of December 20, 2013, the Respondent had no pending employer requests seeking referrals to fill forklift driver positions. The evidence fails to establish that the Respondent had any employer requests at that time which were consistent with the Petitioner’s skills. The Respondent’s general practice when contacted by a prospective employer is to recommend applicants who have maintained ongoing contact with the Respondent’s staff after the submission of an application. There was minimal contact between the Petitioner and the Respondent after the Petitioner submitted his application in December 2013. The Respondent presumes that some people who submit applications subsequently relocate or obtain employment elsewhere. Accordingly, the Respondent requires that previous applicants periodically submit new employment applications so that the Respondent’s inventory includes only active job seekers. On April 8, 2014, the Petitioner submitted another application to the Respondent. Also in April 2014, an employer contacted the Respondent to obtain referrals to fill another forklift driving position. The employer filled the position by hiring an African- American male born in 1964, who was referred to the employer by the Respondent. Prior to his referral for the forklift driver position, the successful applicant routinely contacted the Respondent’s staff, in person and by telephone, regarding available employment opportunities. The evidence fails to establish whether the Respondent was included within the applicants who were referred to the requesting employer. There is no evidence that the Respondent’s referral process reflected factors related to any applicant’s race, color, sex, or age. The Petitioner has also asserted that his application should have been referred to an employer who, on one occasion, was seeking to fill an available cleaning position. The position was a part-time job paying an hourly wage of $10. The Petitioner had not submitted an application for such a position. Nothing in the information provided by the Petitioner to the Respondent indicated that the Petitioner was interested in such employment. Through the Respondent’s referrals, the employer filled the cleaning position by hiring an African-American male.
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 the Petitioner's complaint of discrimination. DONE AND ENTERED this 21st day of June, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 21st day of June, 2016.
The Issue Whether Petitioner was discriminated against in employment by the Respondent.
Findings Of Fact In 1989 Dennis Presson filed a complaint of discrimination against Walt Disney World Co., Respondent, alleging he was denied employment with Disney by reason of his handicap (epilepsy). This complaint was settled between the parties by a Settlement Agreement (Exhibit 1) on June 23, 1989 at which time Respondent agreed to employ Petitioner as a Property Craftsworker Assistant and Petitioner was so employed on June 28, 1989. On October 6, 1989 Petitioner was given a written reprimand for refusing to follow a directive given by his shop foreman. (Exhibit 20.) On November 11, 1989 Petitioner was given an oral reprimand for disruptive behavior in the shop. (Exhibit 24.) On November 29, 1989 Petitioner was given an oral reprimand for excessive absences and tardiness. (Exhibit 26.) Over a period of four months Petitioner had been absent (or tardy) a total of 25.5 hours. On February 6, 1990 Petitioner was given a written reprimand for disrupting the harmonious and productive working atmosphere of the shop. (Exhibit 25.) On May 16, 1990 Petitioner was given a written reprimand for unprofessional craftsmanship for using chewing gum as a woodfiller to repair a chair. (Exhibit 22.) On July 23, 1990 Petitioner was given a written reprimand for using shop machinery in a unsafe manner. (Exhibit 23.) In August 1990 while Petitioner was working in the Furnishings Department to which he was originally assigned, the work in that department declined and, in lieu of laying off some of the workers in the Furnishings Department, three of these property craftsman assistants, including Petitioner, were temporarily assigned to the Resorts Decorating Department to work there through the first week of October 1990. (Exhibit 27.) On or about October 10, 1990 Petitioner was returned to the Furnishings Department and on October 11, 1990 was laid off due to lack of work. On November 2, 1990 the remaining six property craftworker assistants employed by Respondent in the Furnishings Department were laid off. All craftworker assistants who had been employed by Respondent for one year or more were given a right to return within 12 months if jobs became available. This is pursuant to a contract between Respondent and the employees' union. None of those property craftsworker assistants laid off at or about the time Petitioner was laid off were rehired as property craftsworker assistants during the ensuing 12 months. Petitioner contends that after he was laid off four new people were hired as property craftsworkers, a position for which he deemed himself qualified. However, the position of property craftsworker required carpentry experience which the four new hires had and Petitioner did not. Property craftsworker's assistant does not require carpentry experience to qualify for hiring in that position. During the time Petitioner was employed by Respondent no craftsworker assistant was promoted to craftsworker. Credible evidence was presented that while Petitioner was employed as a property craftsworker assistant the quality of his work was satisfactory so long as he was closely supervised by his foreman; however, when not closely supervised both the quality and quantity of his work output declined. Petitioner's testimony that he worked best when someone was not looking over his shoulder is not credible. Petitioner's testimony that he was transferred to Resorts Decorating and then transferred back to Furnishings to be laid off was totally discredited by competent evidence that, when faced with lack of work in Furnishings for property craftsworkers assistants, Disney attempted to have these employees temporarily moved other departments where their skills could be used for a short period in lieu of laying them off. When their function could no longer be justified at their temporary employment position, they were returned to the Department from which they were loaned. In the instance of Petitioner's transfer, he and two other craftsworker assistants were transferred to the Resorts Decorating Department from August 20, 1990 until the first week of October 1990. (Exhibit 27.)
Recommendation It is RECOMMENDED that the Petition for Relief from an Unlawful Employment Practice filed by Dennis M. Presson against Walt Disney World be dismissed. DONE and ORDERED this 6th day of April, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS 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 6th day of April, 1993. COPIES FURNISHED: Dennis M. Presson 2816 4th Street Orlando, Florida 32820 Susan K. McKenna, Esquire 322 East Pine Street Orlando, Florida 32801 Margaret A. Jones/Clerk Florida Commission on Human Relations Building F, Room 240 325 John Knox Road Tallahassee, Florida 32302 4149 Dana Baird, Esquire General Counsel Building F, Room 240 325 John Knox Road Tallahassee, Florida 32302 4149
The Issue The issue to be resolved in this proceeding concerns whether the Respondent is guilty of discrimination against the Petitioner on account of his sex (male). Embodied within that general issue are questions concerning whether the termination of the Petitioner from his job with the Respondent is an example of disparate discipline versus that meted out to female employees similarly situated; whether he was replaced by a person outside his protected class; and whether the Respondent's reasons for the termination were a pretext for intentional discrimination.
Findings Of Fact The Petitioner, at times pertinent hereto, was a male employee of the Respondent and was a "lead line operator" on a plywood manufacturing production line at the Respondent's plywood mill located in Hinson, Florida. The Petitioner claimed that he was subjected to a discriminatory employment practice on account of his sex (male), by being terminated based upon an altercation he got into with a female employee, who was not disciplined. The Respondent is a forest-products company producing lumber and plywood at its mill in Hinson, Gadsden County, Florida. The Respondent is an employer, an envisioned by Section 760.10, Florida Statutes, and the Petitioner at times pertinent hereto was its employee. On November 16, 1993, the Petitioner engaged in an altercation with another employee, Angela Brown, a female, the ultimate result of which was that he was terminated by the Respondent for threatening another employee. The Respondent has a "zero tolerance policy" for instances where employees threaten other employees. Pursuant to its written employee disciplinary policy, it can, in its discretion, immediately terminate such an employee, rather than engage in its four-step, gradual disciplinary procedure. No management personnel with employment disciplinary authority of the Respondent company witnessed the incident. The management with such decision-making authority gained its knowledge of the incident and made its decision based upon the results of the company's investigation of the matter, including conducting interviews with, and taking statements from, witnesses to the incident. The incident occurred approximately 6:15 a.m. on the "graveyard shift", which ran from 11:00 p.m. at night to 7:00 a.m. in the morning. The incident occurred when the Petitioner observed that the production line had stopped, with the stoppage appearing to occur at or near Angela Brown's work station. The Petitioner went to her work station to see what the problem was, suspecting that she was "sleeping on the job". After straightening the veneer sheets lying on the production line conveyor, the Petitioner set the production line in motion, at which point he was standing behind Ms. Brown, out of her eyesight. While helping her straighten the veneer on the production line, he had been standing directly to her right. When he re-activated the line, he had gone back to the area of the control box and was standing behind her where she was unable to see him. He did not tell her that he had moved to the position to her right rear, after straightening the veneer. During questioning by his counsel, the Petitioner stated that he was standing back by the control box after he turned the production line back on and immediately before Ms. Brown hit him with a piece of veneer. Later in his testimony, the Petitioner claimed that he was standing beside her at the point when she discarded the veneer. The preponderant evidence establishes that the Petitioner was standing to the right rear of Ms. Brown at the time she discarded the veneer in question. She believed that he had left her area and did not know that he was still standing behind her because her back was to him. She did not have time to check behind her to see if anyone was there before discarding the piece of plywood veneer because the production line moves at a rapid rate. She therefore had to concentrate and watch the plywood as it came by, in order to timely remove defective pieces of veneer. It is common practice for employees or managers to notify an employee at a work station that they are behind them, so that the employee will know not to throw defective sheets of plywood off the production line, thus, potentially hitting someone standing behind them. The Petitioner did not notify Ms. Brown that he was still behind her, and she did not know that he was there, thinking he had left her area. After he re-started the conveyor, and Ms. Brown believed that he had left her area, another defective sheet of veneer came down the production line. The trailing edge of the veneer was defective. When a trailing edge of a piece of veneer is defective, it is common practice for an employee to discard it to his or her right rear and throw it off the production line. If the leading edge of the veneer had been defective, it would have been discarded to the left rear of the employee removing it from the production line. When the sheet of veneer came down from the "sheet drop", and Ms. Brown noticed the trailing edge as defective, she started removing the wood from the production line. She pulled the sheet off to the right in the normal procedure for this sort of defect. The Petitioner maintained that she threw the wood at him intentionally, as evidenced by his view that she was not throwing the wood off on the correct side. However, Ms. Brown, as corroborated by witnesses Strickland and Jenkins' testimony, stated that it is common practice for employees to pull veneer off to the right when it is defective on its trailing edge. There was only one piece of veneer to be discarded by Ms. Brown. She picked the veneer up and had to fold it in order to handle it and get it out of her way. She folded the veneer and threw it to her right rear, striking the Petitioner on or about the nose. After she discarded the piece of veneer and struck the Petitioner with it, he immediately pushed her with his hands and raised a fist up as if to strike her. In his testimony, he stated his position that Ms. Brown remained stationary at the point when she allegedly hit him with a second piece of veneer. He denied that she had taken steps backward from her position towards the production line and away from the Petitioner. He maintained, instead, that she had taken aggressive steps toward him. Witness Chadwick Jenkins, however, who was located three to ten feet away during the incident, saw Ms. Brown take two steps backward towards the production line, retreating from the Petitioner. This was consistent with Ms. Brown's testimony that the Petitioner had pushed her backwards. The Petitioner testified that Ms. Brown hit him with two pieces of wood veneer. His testimony indicates that he claims that she folded the piece of veneer and started to throw it or "yank it around", but that, in effect, it broke into two pieces, and he was hit with the top piece which she had in her hands, the bottom half having fallen on the floor. Then, according to the Petitioner, she reached down, picked that other piece up, threw it, and hit him with it. Ms. Brown denies his claim that he was hit with two pieces of veneer. On direct examination, she was emphatic in saying that she did not throw two pieces of veneer, that the sheet was too big and that she had to fold it to remove it from the production line, and that only one sheet was involved. She had to act quickly in throwing it off the production line to keep the line clear and moving. The sheet did not split in half. The Petitioner also testified that Ms. Brown looked him "dead in the eye" when she allegedly threw two sheets of veneer at him. Ms. Brown denies this, stating that she did know that the Petitioner was even behind her, because she was looking at the production line and that it was necessary to look at the line in order to see the defective sheet of veneer and to be able to reach down and discard it before the line moved past her position. This testimony is corroborated by that of Mike Strickland, the "lay-up line superintendent", who testified to the effect that, in order to discard wood from the production line, one has to be looking at the line and facing the line with one's body so that one's hands and eyes coordinate, in effect, to remove the sheet of veneer from the production line. When this is done, because of time constraints, one must simply pick up the sheet, pull it around and discard it behind you in one quick motion, keeping eyes and body facing the production line. This testimony corroborates that of Ms. Brown to the effect that she was looking at the production line and did not realize that the Petitioner was behind her or realize that she had hit him with the wood until he forcibly pushed her. Additionally, the testimony of Chadwick Jenkins and Donald Cooper corroborates Ms. Brown's version of events. Mr. Jenkins testified that Ms. Brown folded the sheet up and grabbed it by the end to remove it, and he knew that this was the only sheet removed because he only had to replace one sheet of veneer to the production line. Mr. Cooper saw only one piece of veneer thrown or discarded. He had an unobstructed view of those events, and the Petitioner himself corroborated the fact that the view was clear from where Mr. Cooper was located at the far end of the line to the place where the incident occurred. The Petitioner testified that one can see all the way down the line while walking up and down the line. Mr. Cooper was in a position to see the incident because he was on a raised platform. Thus, the totality of credible, preponderant evidence establishes that Ms. Brown hit the Petitioner with only one piece of veneer. The evidence also establishes that Ms. Brown's striking of the Petitioner with the single piece of veneer was not intentional. After the piece of veneer inadvertently struck the Petitioner, he immediately shoved Ms. Brown and raised his fist as if to hit her. He testified that he was merely acting in self defense because he "just wanted her to quit coming up on me". The Petitioner's version of the events is that Ms. Brown walked into his outstretched hand. In fact, witness Jenkins stated that he saw the Petitioner with his fist up in the air and his other arm out straight. Mr. Jenkins further testified that when the Petitioner raised his fist in anger, he appeared to be in control of himself and to be aware of exactly what he was doing. Mr. Jenkins' observation of those events led him to interpret the situation to the effect that "it looked like he was fixing to hit her". Mr. Cooper saw the Petitioner as "Howard pushed her and he took his hand back and drew back to punch her". Mr. Cooper testified that when the Petitioner drew back as if to punch Ms. Brown, she looked as if she was in shock. Mr. Cooper saw no indication that Ms. Brown had advanced on the Petitioner and walked into his outstretched arm. Ms. Brown testified in a similar manner stating that when she inadvertently hit the Petitioner with the sheet of veneer, "He pushed me hard like this (indicating) and he told me that he would knock my 'm-f' off, and I told him he was 'f'ing' crazy. . . . Q: OK. Did you feel threatened at that point? A: Of course. As big as he is. Of course, I felt threatened. I thought he was going to knock me out. Q: What was your natural response at that point? A: I told him he was crazy. I got away from him. " The Petitioner claimed for the first time, during his closing statement made at the unemployment appeals hearing, that he felt threatened about falling into the production line conveyor chain. The testimony of both Mr. Jenkins and Mr. Cooper, however, belies the Petitioner's position in this regard. They established that the Petitioner was not pushed toward the chain and that Ms. Brown did not move toward him in an aggressive manner or move toward him at all. The Petitioner remained stationary during the incident and was never in a position so that he could have been in danger of falling on the production line chain. The specific opening which the Petitioner claimed he could have fallen into was protected by guardrails, as shown by witness Jenkins. Ms. Brown told the Petitioner that she was going to tell Earl Lee, their supervisor, about the incident. She walked to the end of the production line looking for her supervisor and saw Mr. Cooper, who directed her to Mr. Lee's location. Ms. Brown then went upstairs and found Mr. Strickland, the lay- up line supervisor, and Earl Lee to tell them about the incident. Although the Petitioner maintains that Ms. Brown was the aggressor in the incident and that he was only defending himself, the Petitioner never made an effort to notify anyone of the incident. Upon Ms. Brown's report of the incident, an investigation was commenced by the company to determine what had happened and who was at fault. The investigation began with Mr. Lee questioning Ms. Brown and the Petitioner about the incident. During the questioning, the Petitioner told Mr. Lee, Jim Stelbasky, and Mike Strickland, all supervisory personnel, that he would have hit Ms. Brown if she had been a male. Ms. Brown gave details of the incident to Mr. Lee, as well. She told Mr. Lee that she hit the Petitioner with some veneer but that it was accidental. Witnesses Jenkins and Cooper gave statements to Mr. Lee about the incident. Each claimed that they were witnesses to the incident in whole or in part. They gave statements concerning their observations regarding the incident to Mr. Lee, which are contained in Respondent's Exhibits 11 and 12, in evidence. Mr. Lee and other management personnel with decision-making authority in employment discipline matters did not observe the incident. Therefore, Mr. Lee, in making his investigation, relied upon the statements of Mr. Jenkins, Mr. Cooper, the Petitioner, and Ms. Brown and considered all of them in making a decision. The statements of Mr. Jenkins, Mr. Cooper, and Ms. Brown, along with Mr. Lee's belief that in this circumstance, the victim, not the aggressor, would be the one likely to report such an incident, were consistent and persuasive to the effect that the Petitioner was the instigator or aggressor in the incident. Therefore, in accordance with the results of Mr. Lee's investigation and pursuant to consistent company policy of terminating employees for threatening other employees, even for the first offense, the Respondent elected to terminate the Petitioner from employment. Mr. Lee, the decision-maker herein, believed Ms. Brown and the witnesses who corroborated her version of events. He determined that, in his mind, they were telling the truth. Mr. Lee thus believed that the Petitioner was threatening another employee and under the company policy, that was cause for termination. Consequently, he did so, although he testified that he did not terminate the Petitioner because he was a male and that his sex had nothing to do with his decision. It also had nothing to do with the decision that Ms. Brown should not be reprimanded. He did not reprimand Ms. Brown because he did not feel that she was at fault in the incident. He felt that the Petitioner was the aggressor, which is why the Petitioner was disciplined and Ms. Brown was not. The Respondent has a policy providing that when any employee makes any type of threat against another employee, the graduated disciplinary procedures are not applicable, rather, termination can be immediately meted out. It is noteworthy, in terms of establishing that this is a regularly-followed practice, and in refuting the Petitioner's claim that he was discriminated against because he is a male, that approximately two weeks prior to the Petitioner's termination, the Respondent terminated a female employee for fighting on the job. This substantiates that the Respondent has a consistent policy of not tolerating threats made against any other employees by an employee, regardless of that employee's gender. The testimony of Steve Hoffman, the Respondent's Human Resources Officer, shows that in his two and one-half years in that capacity or a related capacity with the company, in any case where an employee has been determined to have made threats against another employee, the company consistently terminates such an employee. The Petitioner has simply not established that he has been the victim of disparate treatment because he is a male. It was not demonstrated that upon his termination, the Petitioner was replaced by an employee of another class, i.e., a female, nor did the Petitioner demonstrate that the Respondent has meted out less severe discipline to such offending employees who are non-male. In fact, the Petitioner himself was replaced with a male employee. There has simply been no proof to establish that the employment decision herein, however harsh it may seem, was motivated by discriminatory intent to single out the Petitioner for disparate treatment because he is a male.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Commission on Human Relations which dismisses the Petition in its entirety. DONE AND ENTERED this 24th day of April, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, 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 24th day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4718 Petitioner's Proposed Findings of Fact 1-5. Accepted. 6-18. Rejected, as not entirely in accord with the preponderant weight of the credible evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. 19-21. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as irrelevant and immaterial. Rejected, as contrary to the preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter based thereon. 24-25. Accepted, but not dispositive of the material issues presented. Accepted, only in the sense that there is not a written formal reprimand in the Petitioner's personnel file. The evidence reflects that he had been informally admonished or disciplined concerning acts related to his temper. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and for the reason that it was not necessarily a first offense since the Petitioner had been informally disciplined concerning his past inability to control his temper at times. Respondent's Proposed Findings of Fact The Respondent's proposed findings of fact, to the extent they are not inconsistent with the Hearing Officer's findings of fact, are accepted. To the extent that they are so inconsistent, they are rejected as not being supported by preponderant, credible evidence of record, as being immaterial, irrelevant, or unnecessary. COPIES FURNISHED: Linda G. Miklowitz, Esquire Post Office Box 14922 Tallahassee, Florida 32317-4922 Ms. Marilyn Strange Coastal Lumber Company Post Office Box 1128 Havana, Florida 32333 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esq. General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue in the case is whether the Respondent unlawfully discriminated against the Petitioner on the basis of age.
Findings Of Fact The Respondent initially employed the Petitioner in the maintenance department in January 1996. There is no evidence that the Petitioner’s employment in the maintenance department was unsatisfactory. In May 1996, the Petitioner transferred into the production department. The Petitioner’s supervisor in the production department described his performance as somewhat unsatisfactory but made no written report of any problems. On September 17, 1996, the Petitioner transferred into the laboratory and began work as a lab technician. The transfer in the lab technician position was at the Petitioner’s request. On October 21, 1996, Richard Barnes, an employee of the Respondent, assumed supervisory responsibility for the laboratory operation. On November 8, 1996, Mr. Barnes met with the Petitioner to discuss the job. At the time of the November 8 discussion, the Petitioner had been working in the lab for almost eight weeks. The Respondent’s lab employees are responsible for assuring that the materials produced by the plant comply with the "release specifications" set by the buyers of the materials. During the discussion, the Petitioner was asked about specific tasks assigned to lab employees. His response was incorrect and indicated a lack of familiarity with lab procedures. The Petitioner was informed that his job performance was unsatisfactory. Over the next week, Mr. Barnes continued to monitor the situation, and subsequently decided to terminate the Petitioner’s employment for unsatisfactory performance. On November 18, 1996, the Respondent terminated the Petitioner’s employment on the grounds of unsatisfactory work performance. At the time of the termination, the Petitioner was 56 years old. During the time of the Petitioner’s transfer into, and termination from, the lab, the Respondent was in the process of expanding the number of lab employees from six to ten employees. Shortly before terminating the Petitioner’s employment, the Respondent transferred another employee, of similar age as the Petitioner, into the lab. Shortly after the Petitioner’s termination, Respondent transferred another employee, younger than the Respondent, to the lab. The transfer of the younger employee was being processed prior to the termination of the Petitioner’s employment. There is no evidence that a transfer of the younger employee was related to the termination of the Petitioner’s employment. The evidence fails to establish that termination of the Petitioner’s employment was based on his age. There is no evidence that the Respondent discriminated against the Petitioner on the basis of age. There is no evidence that the Petitioner suffered any economic injury based on the termination. He became employed shortly after the termination at a salary higher than the Respondent was paying him. Subsequent employment has included additional increases in compensation. The Petitioner asserts that had he remained employed by the Respondent, his compensation would have included promotions and increased compensation. The evidence fails to establish that the Petitioner would have received further promotions from the Respondent.
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 the Petition for Relief filed by Terry B. Hillman. DONE AND ENTERED this 28th day of November, 2001, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 28th day of November, 2001. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Terry B. Hillman 2048 Laurel Lane North Fort Myers, Florida 33917 Robert E. Tardif, Jr., Esquire Duncan & Tardif, P.A. 1601 Jackson Street, Suite 101 Post Office Box 249 Fort Myers, Florida 33902-0249 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent committed an unlawful employment practice against Petitioner in violation of Section 760.10 et. seq., Florida Statutes, as set forth in Petitioner's Charge of Discrimination filed with the Florida Commission on Human Relations (FCHR) on October 29, 2001, and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner presented no evidence in support of his allegation that Respondent discriminated against him.
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 the Petition for Relief filed in this case. DONE AND ENTERED this 16th day of October, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 2002. COPIES FURNISHED: John C. Seipp, Jr., Esquire Bonnie S. Crouch, Esquire Seipp, Flick and Kissane, P.A. 2450 Sun Trust International Center 1 Southeast 3rd Avenue Miami, Florida 33131 Brian D. Albert, Esquire 2450 Northeast Miami Gardens Drive Miami, Florida 33180 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Com-Jet Corporation (Respondent) violated the Florida Civil Rights Act by unlawfully discriminating against Gladys V. Fleites (Petitioner or Ms. Fleites) on the basis of her alleged disability.
Findings Of Fact Com-Jet Corporation repairs airplanes through its division Aircraft Systems (Respondent). Petitioner was employed as an aircraft mechanic by Respondent between June 30, 2008, and April 8, 2011. At the times relevant to this proceeding, Osvaldo Guillam was also employed by Respondent and was described as Petitioner's common law husband or significant other. Mr. Guillam and Petitioner were hourly employees. At all times relevant to this proceeding, Respondent's policy was to require each hourly employee to punch-in his or her time card when the employee arrived at work and to punch-out his or her time card when the employee left work. If an employee could not punch his or her time card because of a physical limitation, the employee was to have a supervisor punch the card for him or her. In February 2011, Melanie Alonso, Respondent's director of human relations, discovered that Mr. Guillam was punching-in and punching-out Petitioner's time card. On February 9, 2011, Ms. Alonso met with Mr. Guillam and Petitioner and told them that each employee was required to punch-in and punch-out his or her own time card. Ms. Alonso told them that one employee could not punch another employee's time card. Petitioner admitted to violating the time card policy and apologized for having done so. At no time did Petitioner indicate that she could not punch her time card due to a physical limitation. Later that day, Ms. Alonso met with all of Respondent's hourly employees and reiterated the company policy pertaining to time cards. Petitioner has had a problem with her left ankle since a fall in 2001. At the times relevant to this proceeding, Petitioner experienced pain while walking and had difficulty standing or bending. Petitioner worked at a table in a seated position. Petitioner did not have a noticeable limp. While Petitioner wore an elastic band on her ankle, that band was covered because Petitioner wore pants to work with a sock over the band. Respondent's management did not know that Petitioner had difficulty with her ankle. Petitioner was scheduled to undergo arthroscopic surgery on her left ankle on March 31, 2011. In conjunction with that surgery, Petitioner requested eight days of leave, which was all the annual leave she had. There was a conflict in the evidence as to what Petitioner told Respondent's management about the leave. The greater weight of the credible evidence established that Petitioner did not tell Respondent's management that she was scheduled to have surgery on her left ankle. The ankle surgery was postponed due to an insurance coverage issue. After finding another surgeon, Petitioner rescheduled the surgery. Respondent's work area has security cameras that monitor activities in the work area. Ms. Alonso reviewed the videos from those cameras after a vacuum cleaner was stolen from the work area in April 2011. During the course of that review, Ms. Alonso observed that Mr. Guillam was punching-in and punching-out two time cards. On April 8, 2011, Ms. Alonso confronted Petitioner and Mr. Guillam. Both admitted that Mr. Guillam had been punching Petitioner's time card. Ms. Alonso terminated the employment of Mr. Guillam and Petitioner on April 8, 2011, for violating the company's time card policy. There was no evidence that Ms. Alonso knew of Petitioner's ankle problems when she terminated her employment.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order dismiss with prejudice the Petition for Relief filed against Com-Jet Corporation by Gladys V. Fleites. DONE AND ENTERED this 3rd day of September, 2013, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 3rd day of September, 2013. COPIES FURNISHED: Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Anthony Joseph Perez, Esquire Law Office of Alfredo Garcia-Menocal, PA Suite 214 730 Northwest 107th Avenue Miami, Florida 33172 Paul F. Penichet, Esquire Paul F. Penichet, P.A. Suite 907, Biscayne Building 19 West Flagler Street Coral Gables, Florida 33130-4400 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Respondent imposed an unlawful employment practice upon the Petitioner, whether the Petitioner has a disability and was subjected to disability discrimination in the course of the purported unlawful employment practice or event.
Findings Of Fact The Respondent Willstaff Crystal, Inc., (Willstaff) is engaged in the business of employee staffing for client companies who need employees. The process essentially concerts of prospective employees submitting employment applications for job placement to Willstaff. Willstaff then seeks to place that person as a hired employee with a firm or company which is one of its clients, (i.e., has requested that Willstaff assist it in finding employees for its business). On or about August 18, 2003, the Petitioner, Janet Shaffer, made application with Willstaff for employment placement. The application was not for employment as an employee of Willstaff, but rather for placement in a job with a company which might be a client of Willstaff. After placing Ms. Shaffer in two temporary job assignments with two different employers, she was assigned a job placement with Moldex Inc., on about October 27, 2003. Her duties at Moldex consisted of performing assembly line-type duties including cutting rubber hoses using an "air Knife." The placement and job assignments that Willstaff had secured for Ms. Shaffer during 2003 were designed to be temporary employment assignments. At some point during her shift, while employed with Moldex, Ms. Shaffer was required to place a box on a shelf above her head. She had some difficulty doing so, she says, because of her arm or shoulder injury, and requested assistance from a co-worker. Ms. Shaffer testified at hearing that due to a previous shoulder injury she is unable to lift her right arm above shoulder level. Her shoulder causes her pain, but she was not currently under a doctors care and her injury did not limit any major life activities. In any event after working only two days with Moldex, Inc., she was released from employment at Moldex, Inc.'s request due to low job productivity. Ms. Shaffer believes according to her testimony, that Moldex, Inc., terminated her as a proximate result of her requesting assistance from a co-worker due to her inability to reach above shoulder level because of her pre- existing shoulder injury. Her testimony establishes that if she an unlawful employment practice it was at the hands of Moldex, Inc.; not Willstaff. She indicated quite clearly in her testimony that she had no intent to pursue a claim against Willstaff, but only against Moldex, Inc.; because she believed that Moldex, Inc.; had terminated her, due to her limitation because of her shoulder injury. She stated that she named Willstaff as the Respondent in this case by her Petition for Relief because she was instructed to do so by some unknown individual who helped her prepare the Petition for Relief. Ursula Maurice testified as a representative of Willstaff. Her testimony establishes that Willstaff had no knowledge that Ms. Shaffer suffered from a disability. No adverse employment action was ever taken by Willstaff against the Petitioner. In fact, the Petitioner was never an employee of Willstaff. Moreover, Willstaff has an "EEO policy" in place and properly noticed its employees and Ms. Shaffer had never availed herself of it or made any formal complaint to anyone at Willstaff regarding discrimination, whether by Moldex, Inc. or any other entity. In any event, the Petitioner's own testimony establishes that she has no physical or mental impairment that substantially limits one or more of her major life activities. She also failed to established that she was qualified for the job in question with or without reasonable accommodations, that is, the job she briefly occupied at Moldex, Inc. She did establish that she suffered an adverse employment action or decision because she was "let go" from her employment at Moldex, Inc. She did not establish clearly that Moldex, Inc., had any knowledge of her disability. Finally, and most to the point, the Petitioner has not established, and freely admits, that she was not an employee of Willstaff. Therefore, she did not suffer an adverse employment action or decision made by Willstaff. She clearly stated in her testimony that her complaint is properly against Moldex, Inc. Nonetheless, Moldex, Inc., has not been served with a petition, has not been made a party respondent, and has not been noticed of this proceeding, including the hearing. Therefore it is not legally charged with having to defend itself at this juncture, as to any employment decision it may have made regarding the Petitioner in this proceeding.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations denying the Petition its entirety. DONE AND ENTERED this 17th day of June, 2005, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2005. COPIES FURNISHED: Janet Shaffer 6401 Da Lisa Road Milton, Florida 32583 John T. Bender, Esquire McFadden, Lyon & Rouse, L.L.C. 718 Downtowner Boulevard Mobile, Alabama 36609 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
