The Issue Whether Respondent committed the unlawful employment practices alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact By Notice dated October 16, 2014, the final hearing was scheduled for December 15, 2014, at 9:30 a.m. Although the undersigned convened the final hearing on the date and time indicated in the Notice, neither Petitioner nor counsel for Respondent was present. As of 10:00 a.m., Petitioner had not appeared or contacted DOAH. At that point, the undersigned announced that, in light of Petitioner's nonappearance, the hearing would be adjourned and that a recommended order of dismissal would issue.
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. DONE AND ENTERED this 16th day of December, 2014, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 16th day of December, 2014. COPIES FURNISHED: Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) James Leroy Padgett, General Counsel Putnam County School Board 200 South 7th Street Palatka, Florida 32177 (eServed) David C. Wade 126 Raintree Woods Palatka, Florida 32177
The Issue The issue is whether Respondent discriminated against Petitioner based on Petitioner’s race.
Findings Of Fact Petitioner, Che Johnson, worked as a helper to full-time installers of hurricane shutters with Respondent. He was training to become a full-fledged installer. Respondent, AABC, d/b/a Roll-A-Guard (“Roll-A-Guard” or “Respondent”), is a company that installs hurricane shutters from its offices and warehouse in Largo, Florida. Petitioner filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations against Respondent, stating, under penalty of perjury, that Respondent had 15+ employees. When asked by Respondent’s president why he believed 15 people were employed by Respondent, he was unable to give an answer. Petitioner admitted he never saw 15 people at the warehouse when he was working there. Roll-A-Guard, between October 21, 2016, and January 20, 2017, which covers the entire time Petitioner was employed with the company, never had more than seven employees on the payroll. This was substantiated by a payroll report from Respondent’s Professional Employer Organization and by testimony of Respondent’s president. This number of employees is substantially below the statutorily required number of employees (15) for Roll-A-Guard to be deemed an “employer” for purposes of the Florida Civil Rights Act of 1992. Petitioner, an African-American male, claimed that he was discriminated against on the job by his boss and president of Roll-A-Guard, Andrew J. Ayers, referring to him in a racially discriminatory way when calling on customers on several occasions. Petitioner claims that Mr. Ayers asked customers on three to four occasions whether they thought Mr. Johnson “was as cute as a puppy dog.” This offended Mr. Johnson, and he believed the statement to be discriminatory against him on the basis of his race. Mr. Johnson offered no additional testimony, nor any additional evidence, other than his own testimony that these remarks were made by Mr. Ayers. Mr. Ayers denied, under oath, that he had ever referred to Mr. Johnson as a “puppy dog,” and was especially offended not only that Mr. Johnson never raised the issue with him, but that Mr. Johnson went to the company’s Facebook page after his employment was terminated, and posted comments about Roll-A-Guard being a racist company that discriminated against African- Americans. The other employees of Roll-A-Guard, who testified at hearing, also never heard the “puppy dog” remarks allegedly made, nor did they believe Mr. Ayers was prejudiced in any way against Mr. Johnson. Although the lack of 15 employees by Respondent fails to invoke the jurisdiction of the Civil Rights Act of 1992, the evidence at hearing demonstrates Mr. Johnson’s termination from employment was unrelated to his claim of having been called a “puppy dog” by Mr. Ayers. On the day Mr. Johnson was terminated from employment, January 20, 2017, Mr. Ayers informed the workers that no one should leave the warehouse for lunch due to a rush job on a substantial order of hurricane shutters. Despite Mr. Ayers’ warning, Mr. Johnson left for lunch in the afternoon and was unreachable by Mr. Ayers, who attempted to text him to order him to return to work. Mr. Johnson did not immediately respond to the texts. Although Mr. Johnson eventually responded to the texts from Mr. Ayers after 45 minutes to an hour, Mr. Ayers was perturbed by that point, and actually hired a new worker to replace Mr. Johnson, and told Mr. Johnson not to return to work since he was fired. Mr. Ayers fired Mr. Johnson, in part, because he believed Mr. Johnson was not only leaving for lunch, but for the weekend. Other witnesses working that day confirmed this by testifying they heard words to the effect of “See you Monday.” Mr. Johnson admitted he left for lunch, but testified that he intended to return that afternoon after he had eaten.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, Roll-A-Guard, is not an “employer” and, therefore, not subject to section 760.10, Florida Statutes, or any of the provisions of the Civil Rights Act of 1992, and dismissing Petitioner’s charge of discrimination against Respondent. DONE AND ENTERED this 3rd day of January, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 January, 2018. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Che Johnson 2428 Fairbanks Drive Clearwater, Florida 33764 (eServed) Andrew J. Ayers Roll-A-Guard Suite 206 12722 62nd Street Largo, Florida 33773 (eServed) Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Did the Respondent engage in a discriminatory employment practice by suspending the Petitioner from work?
Findings Of Fact The Petitioner, Joeann F. Nelson, is a Black female. In 1997, she was employed as an aide working with developmentally disabled persons at Sunrise Community, Inc. The Respondent, Sunrise Community, Inc. (hereafter “Sunrise”) is an employer within the meaning of the Florida Civil Rights Act of 1992. On or about April 24, 1997, the Petitioner was suspended from her employment for a number of days by Sunrise. The Petitioner filed a complaint with the Florida Commission on Human Relations (hereafter “the Commission”) on May 8, 1997, alleging that her suspension was racially motivated, and a violation of Chapter 760, Florida Statutes. The staff of the Commission investigated the complaint, and issued its Determination of No Cause on May 16, 2000. At the same time, the Commission gave the Petitioner notice of her right to an administrative hearing on the Commission’s findings. The Petitioner, while employed by the Respondent, was asked by her immediate supervisor to participate in taking residents of the facility to their group home. The Petitioner refused to take the residents complaining that another co-worker was scheduled to take the residents on the day in question. The supervisor told the Petitioner that the person who was scheduled to take the residents was too old to handle that job, and the Petitioner got into an argument about this matter. As a result of this refusal to take the residents and the argument, the Petitioner was suspended for a number of days. The refusal to follow the directions of her supervisor regarding her work and the confrontational argument with the supervisor over being asked to do a specific task that was within her job duties generally were sufficient cause for discipline. The Petitioner did not show that she was singled out or treated differently because of her race, either in being asked to perform the task or in being suspended for refusing to do the task. Subsequently, the Petitioner filed a second complaint with the Commission on June 30, 1997, and raised additional issues regarding her discharge when she asked for her formal hearing on the Commission’s determination of no cause on the original complaint. However, the only matter properly before the undersigned in these proceedings is her suspension.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the complaint upon a finding that there was no cause. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2000. COPIES FURNISHED: JoeAnne Nelson Post Office Box 76 Crawfordville, Florida 32326 Steven M. Weinger, Esquire Kurzban, Kurzban, Weinger, Tetzeli, P.A. 2650 Southwest 27th Avenue Second Floor Miami, Florida 33133 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Petitioner was wrongfully terminated from her position as a payroll clerk with Respondent because of her race, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Prior to November 1994, Petitioner was employed by Markings and Equipment Corporation, first as a receptionist, later as a payroll clerk for several years. She had a good working relationship with management and staff. In November 1994, Edward T. Quinn and two other investors purchased the assets of Markings and Equipment Co. and established a new corporation named Mill-it Striping, Inc., a Florida corporation. On November 7, 1994, Mill-It Striping began operations. Edward T. Quinn was named Vice-President and Chief Operating Officer. Petitioner and one other person were retained as office staff. Other employees of the former owner were retained as field workers in their same positions. Petitioner and the other employees were retained on a 90-day probationary period. All employees were required to complete application forms for the new company. The organization of the company was revamped and operating policies were changed. Petitioner and Quinn became embroiled in disputes over policy and procedures on a nearly daily basis. Quinn's management style was gruff and unprofessional. Foul language was directed toward Petitioner's work by Quinn on a regular basis. There was insufficient evidence to prove that Quinn's derogatory remarks of a social nature were directed toward Petitioner. On December 5, 1994, Petitioner was terminated from her position as a payroll clerk. Quinn alleged that Petitioner was terminated because of her poor work performance and reporting to work late on more than one occasion while on probation. Petitioner, who is an African-American female, was replaced in her position by a Caucasian female. Respondent's company presently has been administratively dissolved, as of September 24, 1999. There is no evidence that the corporation is active, is a subsidiary to another company, or that it has any remaining assets.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief with prejudice. DONE AND ENTERED this 29th day of December, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2000. COPIES FURNISHED: Azizi M. Coleman, Acting Agency Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149 Edward T. Quinn as former Vice President Mill-It Stripping, Inc. 107 Shore Drive Longwood, Florida 32779 Valerie A. Roberts Post Office Box 543 Maitland, Florida 32751 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149
The Issue The issue is whether the Division of Administrative Hearings has subject matter jurisdiction over the issues raised in Petitioner's Charge of Discrimination.
Findings Of Fact Petitioner's discrimination statement dated February 18, 1997, states as follows: I believe that I was discriminated against when the sheriff's department used illegally obtained information from my employer and a relative of mine working in the department, to give negative references and information to the general public. Petitioner has never applied for employment or been employed by the Suwannee County Sheriff or his office. Petitioner's claim apparently arises out of a family dispute between the Petitioner, her mother, Lotis Musgrove, and her sister, Eyvonne M. Roberson, who works for the Suwannee County Sheriff's Department. The family dispute is not related to the Petitioner's employment with the Suwannee County Sheriff.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That FCHR dismiss Petitioner's Petition for Relief. DONE AND ENTERED this 20th day of May, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1998. COPIES FURNISHED: Linda G. Bond, Esquire Powers, Quaschnick, Tischler and Evans Post Office Box 12186 Tallahassee, Florida 32317-2186 Faye Musgrove Post Office Box 657 Live Oak, Florida 32064 Charmin Christensen, Director Suwannee County Personnel 200 South Ohio Avenue Live Oak, Florida 32060 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent Employer is guilty of an unlawful employment practice against Petitioner Employee.
Findings Of Fact On or about November 17, 2006, Petitioner filed an Employment Complaint of Discrimination (formerly known as a "Charge of Discrimination") on the basis of disability/handicap and national origin with the Florida Commission on Human Relations. On June 15, 2007, the Commission entered a Determination: No Cause. On or about July 2, 2007, Petitioner filed a Petition for Relief with the Commission. On or about July 5, 2007, this case was referred by the Commission to the Division of Administrative Hearings. On July 18, 2007, a telephonic conference was held to schedule a final disputed-fact hearing date. The hearing date agreed upon was October 1, 2007, and a Notice of Hearing and Order of Pre-hearing Instructions issued on July 18, 2007. Neither party complied with the Order of Pre-hearing Instructions. At the time noticed for October 1, 2007, Respondent appeared for hearing. In the Joint Response to Initial Order, filed July 16, 2007, and in a subsequent Motion filed September 26, 2007, Respondent referred to itself as "Wal-Mart Stores, East L.P. (incorrectly referred-to in the caption as Wal-Mart Stores)," but made no motion to correct the style of this cause. Respondent acknowledged in its pleadings, and its counsel acknowledged orally at hearing, that it was the appropriate Respondent in this cause, regardless of the case's style. After waiting 30 minutes, Petitioner still had not appeared for hearing. The undersigned made diligent inquiry to ensure that Respondent had done nothing to discourage Petitioner from appearing, and closed the hearing.
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 Employment Complaint of Discrimination and a Petition for Relief. DONE AND ENTERED this 3rd day of October, 2007, 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 3rd day of October, 2007. COPIES FURNISHED: 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 Amy Harrison, Esquire Lindsay A. Connor, Esquire Ford & Harrison 225 Water Street, Suite 710 Jacksonville, Florida 32202 Catrina Soriano 1826 Nekoma Court Tallahassee, Florida 32304
The Issue Whether Respondent, the Agency for Persons with Disabilities (Respondent or the Agency), violated the Florida Civil Rights Act of 1992, as amended, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Sharon Douse (Petitioner), during her employment with the Agency and then by terminating her employment, based upon her disability, marital status, sex, color, race, age, and the national origin of her spouse, and by illegally retaliating against her.
Findings Of Fact Sunland Center in Mariana, Florida, is operated by the Agency as an intermediate-care facility for developmentally- disabled individuals. Connally Manor is a residential setting within Sunland Center for 16 developmentally-disabled individuals with significant behavioral and medical involvement. Petitioner began her employment with the Agency on July 15, 2011, until her dismissal on January 5, 2012. During her employment, she was classified as career-service employee, Human Services Worker II, assigned to provide direct care for residents in Connally Manor. As a career-service employee, Petitioner was required to serve a one-year probationary period, during which she was subject to termination at will. While employed with the Agency, Petitioner had a number of performance deficiencies and conflicts with her co-workers and supervisors. On July 22, 2011, Petitioner attended training for the treatment and care of residents. Shortly thereafter, however, Petitioner mishandled residents on at least two occasions. As a result, Joe Grimsley, a senior human services support supervisor for the Agency, suspended Petitioner from working independently with residents, and asked Petitioner to work closely with her peers to learn appropriate care procedures. On August 25, 2011, because of excessive absences and failure to perform duties in a timely manner, Petitioner received counseling from Mr. Grimsley and Agency behavior program supervisor Scott Hewett. Petitioner was counseled for excessive absences because, from July 18 through August 22, 2011, Petitioner took a total of 48 hours of leave time, which was greater than the Agency's policy of no more than 32 hours in a 90-day period. Although Petitioner discussed most of those absences with her supervisor prior to taking the time off, as a result of her absences, Petitioner missed some of her initial training, including professional crisis management training. During the August 25, 2011, counseling session, Mr. Grimsley and Mr. Hewett also discussed other issues of concern with Petitioner, including resident care, following chain of command, team work, proper parking, and data collection sheets. As a follow-up, on the same day as the August 25th counseling, Petitioner received some in-service training regarding proper log book documenting, proper use of active treatment sheet, and unauthorized and excessive absences. Mr. Grimsley permitted Petitioner to go back to her duties of working directly with residents after she received additional training on August 27, 2011. On September 8, 2011, Petitioner's supervisors once again found it necessary to counsel Petitioner regarding resident care, chain of command, teamwork, parking, and data collection, as well as to address two incidences of unsafe handling of residents, and Agency policy regarding food in the bedrooms, and class and work schedules. Because of Petitioner's continued performance deficiencies, on October 5, 2011, Mr. Grimsley wrote an interoffice memorandum to his supervisor, Agency residential services supervisor, Julie Jackson, recommending Petitioner's termination. The memorandum stated: Mrs. Jackson: I am writing to you in regard to Mrs. Sharon Douse HSW II Second Shift Connally Manor Unit 3. Mrs. Douse came to us July 15, 2011, since then she has had three employee documented conferences, due to poor work habits, resulting in corrective action, including retraining. These deficiencies include and are not limited to data collection, excessive absences, and unsafe handling of residents. This past week she was insubordinate to her immediate supervisor by refusing to answer the phone after being requested to do so twice, and being directed that it is part of her job. [Mr. Hewett] as well as my self [sic] has made every effort to help Mrs. Douse achieve her performance expectation; however these attempts have been met with resistance as Mrs. Douse openly refuses to take direction from her supervisors and also to seek the assistance of her peers, who have many years of experience working with the Connally Manor population. Mrs. Douse has not met probationary period. Her continual resistance to positive mentoring and her confrontational attitude and demeanor towards her supervisors and coworkers is creating an increasingly difficult work environment, not only on Connally Manor, but also on the other houses within the unit. It is apparent that Mrs. Douse lacks the willingness to improve her overall poor work performance. I am formally requesting Mrs. Douse to be terminated from her employment here in Unit 3. Mr. Grimsley's testimony at the final hearing was consistent with the above-quoted October 5, 2011, interoffice memorandum, and both his testimony and memorandum are credited. Upon receiving Mr. Grimsley's memorandum, Ms. Jackson submitted a memo dated October 26, 2011, to the Agency's program operations administrator, Elizabeth Mitchell, concurring with the request for Petitioner's termination. In turn, Ms. Mitchell agreed and forwarded her recommendation for termination to Sunland's superintendent, Bryan Vaughan. Mr. Vaughan approved the recommendation for termination, and, following implementation of internal termination proceedings, Petitioner was terminated on January 5, 2012, for failure to satisfactorily complete her probationary period. Petitioner made no complaints to Mr. Grimsley or anyone else in the Agency's management until after Mr. Grimsley's October 5, 2011, memorandum recommending Petitioner's termination. Petitioner's Charge of Discrimination filed with the Commission on March 29, 2012, after her termination, charges that she was "discriminated against based on retaliation, disability, marital status, sex, color, race and age." The evidence adduced at the final hearing, however, failed to substantiate Petitioner's allegations. In particular, Petitioner's Charge of Discrimination2/ alleges that Mr. Grimsley discriminated against her because of her age by "not providing [her] with the same training as offered the other employees -- [professional crisis management training] was offered to the younger employees who were hired at or around the same time [as Petitioner]." The evidence at the final hearing, however, showed that Petitioner was scheduled for, but missed professional crisis management training, because of her absences early in her employment. The evidence also showed that professional crisis management training was not necessary for the position for which Petitioner was hired. Nevertheless, the evidence also demonstrated that, if Petitioner had not been terminated, the Agency intended to provide her with that training. Petitioner's Charge of Discrimination also asserts that Mr. Grimsley discriminated against her by "[n]ot allowing [her] to have . . . scheduled time off . . . [and taking away her] scheduled time off August 12th & 13th and [giving it to a] Caucasian female." The evidence did not substantiate this allegation. Rather, the evidence demonstrated that Petitioner had extraordinary time off during her first two months of employment. Next, Petitioner's Charge of Discrimination states that Mr. Grimsley did not follow up on her written concerns and verbal complaints to the "depart[ment] head" regarding the welfare of the disabled residents. Petitioner alleges that she was terminated as a result of her complaint that Mr. Grimsley "sat in the kitchen and baked cookies with the staff who were neglecting disabled residents." Petitioner, however, failed to present any evidence at the final hearing with regard to this allegation. Rather, the evidence showed that, while employed, Petitioner never reported any instances of abuse, neglect, or exploitation to the Florida Abuse Registry, as required by her training. And, there is no evidence that she reported any such concerns to any outside agency prior to her Charge of Discrimination. Petitioner otherwise presented no evidence suggesting that she was terminated in retaliation for engaging in any protected activity. Petitioner's Charge of Discrimination further states that she was discriminated against on the basis of her disability because Mr. Grimsley did not allow her to be properly monitored by her physician, and that when she would bring in her doctor's notes, Mr. Grimsley would refuse to put them in her personnel file. The only support for this claim were two medical reports on Petitioner, one prepared in April 2011, and one prepared in October 2011. According to Petitioner, she gave the reports to someone at the Agency's human resources office. She could not, however, identify the person to whom she gave the reports. Also, according to Petitioner, it was in November 2011, after she was recommended for termination, that she gave her medical reports to the Agency to be filed. Considering the circumstances, the undersigned finds that Petitioner's testimony regarding this allegation is not credible. In addition, the evidence did not show that Petitioner ever asked the Agency for an accommodation for her alleged disability. Rather, based upon the evidence, it is found that Petitioner never advised the Agency, and the Agency was unaware, that Petitioner had a disability. It is also found that Petitioner never asked the Agency for an accommodation for her alleged disability. Petitioner, in her Charge of Discrimination, further contends that part of the employee counseling session documented on employee-documented conference forms dated August 25, 2011, and all of the counseling session documented in a September 8, 2011, employee-documented conference form, were held without her, and that some of the concerns expressed on those documents were fabricated. There were two forms documenting discussions from the August 25th session that were submitted into evidence — - one was signed by Petitioner, the other was not. The employee-documented conference form from the September 8, 2011, session was signed by Petitioner's supervisors, but not Petitioner. Mr. Grimsley, who was present for all of the counseling discussions with Petitioner documented on the forms, testified that the documented discussions occurred, but that he just forgot to get Petitioner's signatures on all of the forms. During the final hearing, Petitioner acknowledged most of the documented discussions, including two incidents of mishandling residents and the resulting prohibition from working with residents imposed on her until she received additional training. Considering the evidence, it is found that all of the counseling discussions with Petitioner documented on the three forms actually took place, and that they accurately reflect those discussions and the fact that Petitioner was having job performance problems. Petitioner's Charge of Discrimination also alleges that a fellow employee discriminated against her because of her age and race based on an incident where, according to Petitioner, a co-worker screamed and yelled at her because Petitioner had not answered the house telephone. At the hearing, Petitioner submitted into evidence affidavits regarding the incident from the co-worker and another worker who observed the incident. Neither of the affidavits supports Petitioner's contention that she was discriminated against. Rather, they both support the finding that Petitioner had trouble getting along with co-workers and accepting directions from Agency staff. Further, according to Petitioner, after she talked to Mr. Grimsley about the incident, he spoke to both Petitioner and the co-worker, and their conflict was resolved. The incident occurred after Mr. Grimsley had already recommended that Petitioner be terminated. Finally, Petitioner alleges in her Charge of Discrimination that Mr. Hewett discriminated against her based upon her marital status, race, and the national origin of her spouse. In support, Petitioner contends that Mr. Hewett "made rude comments about art work on my locker that Scott knew my husband had drawn[,]" asked, "[do] blacks like classical music?" and, upon seeing Petitioner's apron that was embroidered with a Jamaican flag, Mr. Hewett said, "You can't trust things from overseas," when he knew that her husband was Jamaican. Petitioner also stated that Mr. Hewett "bullied her" about answering the telephone. While Petitioner testified that she wrote to Agency management regarding these comments and the alleged bullying by Mr. Hewett, she did not retain a copy. The Agency claims that Petitioner never complained about these alleged comments or Mr. Hewett's alleged bullying while she was an employee. Considering the evidence presented in this case, and Petitioner's demeanor during her testimony, it is found that Petitioner did not raise these allegations against Mr. Hewett until after her termination from the Agency. It is further found that if Mr. Hewett made the alleged comments, as described by Petitioner during her testimony, Mr. Hewett's comments were isolated and not pervasive. Further, Petitioner's testimonial description of Mr. Hewett's comments did not indicate that his comments were overtly intimidating, insulting, or made with ridicule, and the evidence was insufficient to show, or reasonably suggest, that Mr. Hewett's alleged comments made Petitioner's work environment at the Agency hostile or intolerable. In sum, Petitioner failed to show that the Agency discriminated against Petitioner by treating her differently, creating a hostile work environment, or terminating her because of her disability, marital status, sex, color, race, age, or her spouse's national origin. Petitioner also failed to show that the Agency retaliated against her because of any complaint that she raised or based upon Petitioner's engagement in any other protected activity.
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 Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 7th day of February, 2013, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2013.
The Issue Whether Respondent, Superior Optical Shop (Respondent), violated the Florida Civil Rights Act of 1992, Sections 760.01– and 509.092, Florida Statutes, by subjecting Petitioner, Janice Jennings (Petitioner), to discrimination in employment and by discharging Petitioner in retaliation for Petitioner’s opposition to Respondent’s discriminatory employment practices.
Findings Of Fact Petitioner is an African-American female. Respondent is a corporation with its corporate headquarters located in Ocean Springs, Mississippi. Respondent operates an optical shop in a Veteran’s Administration (V.A.) Hospital located in Lake City, Florida. At its Lake City location, Respondent fills prescriptions written by eye physicians at the V.A. Hospital, assists patients with choosing frames, and fits patients with their prescription eye glasses. Respondent’s optical shop in Lake City is fast-paced, with a constant stream of patients, averaging 50-to-60 patients a day. If the optical shop is running behind schedule, it is problematic because often physicians at the V.A. Hospital are waiting to see the patients served by the optical shop. In 2009, Petitioner interviewed for a position at Respondent’s optical shop in Lake City, Florida. During her interview, Petitioner advised Respondent that she had competent computer skills and significant experience working in an office environment and with eye doctors. On May 27, 2009, Respondent hired Petitioner as a part- time clerk at the optical shop. Petitioner was terminated prior to working 90 days for Respondent. When Petitioner was hired, two full-time employees worked at the optical shop: office supervisor, Jean Hartup, and optician, Kathleen Denton. Ms. Hartup has been employed with Respondent for approximately five years. Ms. Denton has been with the optical shop for approximately two and a-half years. As office supervisor, Ms. Hartup can be distant with employees and “hard” at times. She can also be “direct” when speaking to employees. Ms. Hartup demonstrates these traits with all of the employees at the optical shop. Ms. Hartup has written up Ms. Denton in the past and the two have had personality conflicts. Both Ms. Hartup and Ms. Denton assisted with training Petitioner. Evidence indicated that Petitioner received adequate training to perform the tasks she was assigned to perform as a clerk. She often had to be re-trained on the same tasks. Respondent’s optical shop in Lake City is a very small room, approximately ten-feet by ten-feet square inside the V.A. Hospital. There are two small desks in the shop and it is very crowded. Petitioner was aware of the small working environment at the time she accepted employment with Respondent as a part- time clerk. Past and present employees at the optical shop have had to share desk space. Sometimes work has to be performed in the hallway because of the small office space. All new hires for Respondent are subjected to a 90-day probationary period. As explained in Respondent’s “Employee Handbook of Office Policies and Benefits,” of which Petitioner was aware: There will be a 90-day probationary period during which time the employer may terminate the employee at any time for any reason or for no reason regardless of any other provision of these policies. Sick leave and personal days are accrued but cannot be used during this period. Respondent’s Employee Handbook of Office Policies and Benefits also provides: [Respondent] does not and will not tolerate any employee discriminating against their work peers for any reason i.e., race, color, religion, sex, national origin or handicap. Any known verifiable discrimination will be grounds for immediate termination. Once on the job, Petitioner was not proficient on the computer and, despite repeated training, failed to show any improvement and was slow in performing her job duties. Because of this, service to patients at the optical shop slowed down and the optical shop was frequently behind, resulting in physicians having to wait for patients being served by the optical shop. Ms. Hartup became frustrated with Petitioner’s unsatisfactory job performance and the resulting delays. In addition, Petitioner began to show a lack of interest in her job and even stated that she “didn’t really need a job; she just wanted to be out of the house.” Despite repeated training and opportunities to improve her work performance, Petitioner failed to improve. Petitioner was given a notebook with information from the American Board of Opticians for review but she failed to read it or return it to Respondent. Prior to the end of her employment with Respondent, Petitioner called Respondent’s corporate headquarters in Mississippi and spoke to Mary Walker. Petitioner complained to Ms. Walker that Ms. Hartup was being too hard, was impatient, and was expecting too much of her. Petitioner did not raise concerns with Ms. Walker that she was being discriminated against based on her race, or that she had been subjected to a hostile work environment because of her race. In fact, there is no evidence that Petitioner ever complained of race discrimination or a hostile work environment based on race discrimination while she was still employed by Respondent. During that first telephone conversation with Petitioner, Ms. Walker suggested to Petitioner that she should talk to Ms. Hartup about the problems. Petitioner assured Ms. Walker that she would. Two days later, Ms. Walker called Ms. Hartup and inquired whether Petitioner had discussed her concerns with Ms. Hartup. Petitioner, however, had not spoken to Ms. Hartup about her complaint. Ms. Walker gave Ms. Hartup the authority to run the optical shop at Lake City, including making hiring and firing decisions. Ms. Walker did not discipline Ms. Hartup because of Petitioner’s complaints. Rather, Ms. Walker told Ms. Hartup to handle the situation regarding Petitioner’s complaints. Ms. Hartup then met with Petitioner and they spoke about Petitioner’s concerns that Ms. Hartup was being too harsh and about Petitioner’s poor work performance. As a result of that meeting, Ms. Hartup felt the situation had been resolved. Petitioner subsequently advised both Ms. Denton, as well as Ms. Walker at Respondent’s headquarters, that the conversation with Ms. Hartup had gone well and that their issues had been resolved. Petitioner’s work performance, however, did not improve. Prior to the end of her 90-day probationary period of employment, Respondent terminated Petitioner from employment for poor work performance, for failing to reach her capabilities as an employee, and because her poor work performance was a detriment to Respondent’s Lake City optical shop. Petitioner testified that, from her point of view, she truly felt as though she had been discriminated against because of her race. That testimony, however, was without further support and was unpersuasive, especially in view of the fact that there is no evidence that Petitioner ever mentioned to anyone during her employment with Respondent that she believed she was being discriminated against. There was otherwise no evidence presented at the final hearing that would support a finding that Respondent’s decision to terminate Petitioner was in retaliation for Petitioner’s complaint against Ms. Hartup. Further, the evidence produced at final hearing does not support a finding that either the manner in which Petitioner was treated during her employment with Respondent, or her termination from that employment, was based on Petitioner’s race. Respondent filled the position of part-time clerk left vacant after Petitioner’s termination by hiring a Native- 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 Petitioner’s Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 29th day of July, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 29th day of July, 2010.
The Issue Whether Petitioner was wrongfully terminated from her position as a hostess with Respondent because of her handicap, in violation of Subsection 760.10(1)(a), Florida Statutes (2003).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, a 47-year-old female, was hired by Respondent on or about July 15, 2003, as a part-time hostess at Respondent's restaurant in Cocoa Beach, Florida. The understanding at that time was that she would be called in to work three to four hours a day, three to four days a week, as a leased, at-will employee from SkilStaf. SkilStaf would be the employer of record for wage and payroll reporting purposes. Respondent, BB & D of Cocoa Beach, Inc., is a franchisee of Perkins Restaurant and Bakery and is an employer under the provisions of Chapter 760, Florida Statutes (2003). Petitioner first reported for work on July 17, 2003, and received training as a hostess/cashier by Debra Russell, associate manager, and received the same information about the job requirements, duties, and benefits given to all new hires. During her training, Petitioner was advised that in addition to seating guests and operating the cash register, a hostess would be required to bus tables when the restaurant was busy and the other staff was in need of help, although this requirement was not listed on the printed job description. Petitioner did advise Respondent that she had a disability and that she required a reasonable accommodation in order to perform her job. She stated that several years before she had undergone back surgery as a result of an injury that was not job related and could not perform a job that required heavy lifting. Petitioner advised Russell that she could not bus tables because it would require heavy lifting. Russell asked Petitioner to provide Respondent with a doctor's note advising them of the nature of her disability and what accommodations she required. Petitioner continued to work as a hostess at the Perkins Restaurant through July 22, 2003, and performed the job satisfactorily. She was not asked to bus tables during this period. Petitioner was not called back to work as a hostess after July 22, 2003, and did not receive any notification that she was terminated. Petitioner obtained a note from her physician dated July 28, 2003, which indicated that she was capable of working four to five hours a day as a hostess. This evidence is hearsay. In addition, it is not convincing that Petitioner turned in a copy of the note to management anytime after that date. She tried to talk to management about her status, but was unsuccessful. Although Petitioner did not prove that she is a disabled person, she was perceived to be disabled by her employer. Petitioner testified that she talked to Russell some time in early August. Petitioner claimed that Russell said that she had talked to the owner who said that he did not think Petitioner should be working as a hostess, but should get a desk job sitting down. Russell denied making such a statement. No other evidence was offered to support this statement. Therefore, said statement is uncorroborated hearsay and unreliable, and will not be relied upon as a finding of fact. Petitioner presented evidence that since July 2003, she has been unemployed, in spite of her making reasonable efforts to obtain suitable part-time employment. Respondent demonstrated that Petitioner sought to have several days in a row off after working only three days. Petitioner worked six shifts total during her employment with Respondent. Respondent needed two other part-time hostesses for the other shifts because the restaurant was open seven days a week, 24 hours a day, for a total of 21 shifts per week. Respondent demonstrated that the summer business that year was slower than projected and never picked up. The restaurant business is labor-intensive and accounts for 30 to 40 percent of overhead costs. In order for management to control costs, it must cut back on employees. Petitioner was involuntarily terminated because sales were underperforming projections and labor costs were being controlled by a reduction in force. Petitioner was unable to prove that her termination was the result of her disability or perceived disability and that Respondent's proffered reason for her termination was 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 dismissing Petitioner's Petition for Relief from an Unlawful Employment Practice with prejudice. DONE AND ENTERED this 23rd day of December, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Shahrooz Banapoor BB & D of Cocoa Beach, Inc. 5590 North Atlantic Avenue Cocoa Beach, Florida 32931 Anne E. Dorfler 700 North Courtney Parkway Apartment 524 Merritt Island, Florida 32953 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
