The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on January 16, 2001.
Findings Of Fact Petitioner was employed by Respondent, Toucan's Restaurant, as a cocktail waitress. The record is unclear as to when she began her employment there. Her last day on the job was March 18, 2000. The record is not entirely clear as to the exact legal entity that owned Toucan's Restaurant (the restaurant). However, Mary Ann Pistilli was an apparent officer of the corporation which owned the restaurant and acted in the capacity of manager. There is no evidence in the record showing that Mary Ann Pistilli's husband, Craig Pistilli, was an owner or manager of the restaurant. However, he was sometimes at the restaurant. The extent or frequency of his presence at the restaurant is also unclear. According to Rene Brewer, a bartender at the restaurant, Mr. Pistilli "wasn't there a lot." While present at the restaurant, Mr. Pistilli would sometimes give direction to employees on certain issues. For example, he directed Ms. Brewer as to the amount of liquor she put in a customer's drink. It was Ms. Brewer's understanding that Mrs. Pistilli knew that Mr. Pistilli would sometimes direct employees regarding such employment tasks. However, Mrs. Pistilli did not testify as to her knowledge of Mr. Pistilli's actions of giving any direction to employees, and, therefore, the extent of her actual knowledge of Mr. Pistilli's actions regarding directing employees on employment matters was not established. On Friday nights, Karaoke entertainment was offered at the restaurant. During a certain song, Petitioner would perform a dance. Petitioner was not asked to perform this dance by her employer and did so voluntarily. Mrs. Pistilli was opposed to Petitioner dancing in this manner. Petitioner would stand on a chair near the Karaoke machine with her back to the patrons, let down her hair, and unbutton her shirt giving the appearance she was undressing. However, she wore a t-shirt under the shirt she unbuttoned. When she turned to face the patrons, it became clear that she wore the t-shirt underneath the shirt she unbuttoned. Then she would dance around the restaurant and its bar area and patrons would give her money for dancing. The money was given to her by both male and female patrons in various ways. For example, when a male patron would put money in the side of his mouth, she would take it with her teeth. Petitioner's dancing was not sexual in nature but was more in the nature of a fun part of the Karaoke. On March 18, 2000, Petitioner was in the bar area of the restaurant. Petitioner's description of what happened is as follows: I was at work, and Craig had come in with one of his friends. It was his friend's birthday. And the bar wasn't very busy at all. I had two customers that just came in. And he was just being loud, and he came over and asked me if I'd get up on the bar and dance, and I told him no. He set me up--at the end of the bar is like a long, and then there's a little like an L, and that part lifts up. The lift-up part was down, and he set me up on top of that. And I told him, you know, to leave me alone. And when I got down, he slapped me on the rear. And then he backed up, he unbuttoned his shirt, he unzipped his pants and said I ought to go in the dining room and dance around like this….Craig's friend was sitting at the bar, and Craig came over and said I got twenty dollars in my pocket, I want you to dance, it's Chris' birthday, and I told him no. And so a few minutes later he came over, he grabbed my arms, he shoved me against-- lifted my arms over my head, shoved me in the corner of the bar. I told him he was hurting me . . . . After the third time of me telling him that he was hurting me, he finally let go and he backed up and he went 00-00-00. And I was very upset. I went into the kitchen, I was crying very hard . . . . While Petitioner's description of what happened contains hearsay statements purportedly made by Mr. Pistilli, Petitioner's testimony describing Mr. Pistilli's actions and her reaction to the incident is deemed to be credible. Petitioner sustained physical injuries as a result of this incident with Mr. Pistilli.2/ Ms. Brewer was behind the bar on Petitioner's last day of employment. She saw Mr. Pistilli come into the restaurant with a friend. Mr. Pistilli appeared to her to be intoxicated. She saw Mr. Pistilli hug Petitioner in front of the bar. She did not see any other contact between Mr. Pistilli and Petitioner on that day. However, she had seen Petitioner hug Mr. Pistilli on other occasions. She also saw Petitioner hug restaurant patrons on other occasions. Teresa Woods was another bartender who worked at the restaurant. On Petitioner's last day of employment, Ms. Woods briefly saw and spoke to Petitioner in the kitchen of the restaurant. Petitioner was upset and told Ms. Woods that her neck and back were hurt. Petitioner then left the building and did not say anything further to Ms. Woods. Petitioner did not return to work. Mrs. Pistilli was not at the restaurant on March 18, 2000. She did not see any of the events that occurred between Petitioner and her husband. She had heard about the allegation that her husband hugged Petitioner but was unaware of the other allegations: Q: When did you first become aware that Mrs. Youngs had filed a workers' compensation claim? A: I can't recall exactly when it was. They did call me. I can't tell you exactly how long a period of time-- Q: Can you give us your best approximation of how close it was in time to--if you assume that the date-- A: A month. A month maybe. I don't know. It was well after. * * * Q: And did the comp carrier tell you the nature of the injury or how Mrs. Youngs contends that it happened? A: Yes, And he came in and I spoke with him, and they said that they'd be back in touch, and never heard from them. Q: And what did they tell you or what was their understanding of what Mrs. Youngs was contending happened after that conversation? A: All I know is my husband hugging her. This stuff I heard today is all new stuff about zippering pants. I never heard of any of that. I never heard any of that. While Mrs. Pistilli was generally aware of an ongoing workers' compensation claim by Petitioner against the restaurant, she was unaware of the most egregious allegations made regarding her husband until well after the fact. While she understood that her husband hugged Petitioner on March 18, 2000, her knowledge of that was gained approximately one month after the fact when finding out about a workers' compensation claim. Moreover, she had knowledge that during Petitioner's period of employment at the restaurant, Petitioner occasionally hugged her husband and some restaurant patrons. No competent evidence was presented that Mrs. Pistilli knew or should have known that Mr. Pistilli engaged in the behavior described by Petitioner that took place on March 18, 2000. Petitioner acknowledged that other than the incident on March 18, 2000, Mr. Pistilli did not make any references to Petitioner about her body during her employment at the restaurant.
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 Petition for Relief. DONE AND ENTERED this 4th day of December, 2003, in Tallahassee, Leon County, Florida. S __ BARBARA J. STAROS 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 4th day of December, 2003.
The Issue The issue in the case is whether the Petitioner was harassed on the basis of national origin or discriminated against on the basis of a disability.
Findings Of Fact The Petitioner began employment with the Respondent in the summer of 1994 and was terminated from his employment on July 28, 1999. The Respondent operates a machine shop where different types of large metal parts are fabricated according to customer order. The Petitioner was employed as a "mill operator" in the "caterpillar" department. As a mill operator, the Petitioner was required to load metal parts into machines for further processing, check the quality of his work, and return the parts to a container of finished parts. At all times material to this case, the Respondent had a policy prohibiting employee harassment on the basis of numerous grounds including "national origin." The policy provided that any employee who believed that such harassment was occurring should report it immediately to a supervisor or to another company official. The non-harassment policy was included in the employee handbook. The Petitioner received the handbook when the Respondent employed him and was aware of the policy. The Petitioner, of Polish origin, asserted that at various times he was harassed on the basis of national origin; specifically, he was sometimes addressed as "pollock" by some co-workers. Although the evidence establishes that employees, perhaps including the Petitioner, occasionally referred to each other by ethnic slurs (i.e., "pollock," "speedy Gonzalez," and "buddha") the testimony regarding such incidents was anecdotal, and the times and dates of such references are uncertain. The evidence fails to establish that the Petitioner was subjected to a hostile work environment or was harassed on the basis of national origin. Other than as set forth herein, the evidence fails to establish that the Petitioner or any other employee ever advised a supervisor or a manager that co-workers were making ethnic references or that any employee felt harassed by the behavior. In March 1998, a note was taped to the men's restroom door reading "Polish Department – Jerry's [sic] Office." The Petitioner reported the note to his supervisor. A meeting was held with the Petitioner's co-workers on March 16, 1998, where the Respondent's managers advised the employees that such behavior was not acceptable and that similar events in the future would result in disciplinary action against the perpetrators. The Petitioner also asserts that he was discriminated against on the basis of an alleged disability. In December 1998, the Petitioner had a total replacement of his right hip. He was medically cleared to return to work on March 1, 1999, with restrictions of not working more than 10 hours per day for two weeks and not lifting more than 20 pounds. The Petitioner reported for work on March 4, 1999, but was sent home by his supervisor because there was no work that met his restrictions, particularly the weight restriction. Generally the metal parts involved in the Respondent's manufacturing process weighed in excess of 20 pounds. By March 18, 1999, the restrictions were lifted and the Petitioner returned to work without incident until July 1999. On July 6, 1999, the Petitioner received a written warning from a plant supervisor who determined that the Petitioner was not properly inspecting parts being produced in the Petitioner's machine. An excessive number of parts were not within acceptable fabrication tolerances and had to be "re- worked." The warning specifically provided that failure to improve the quality and inspection of parts would result in termination of employment. On July 27, 1999, the Petitioner reported hip pain to his physician and was again placed on a restricted workload that included no lifting of weight in excess of 20 pounds and no "twisting" until the physician determined that the pain had been resolved. Based on the medical restrictions and his experience, the Respondent was unable to locate work suitable for the Petitioner. The Petitioner's employment was terminated because there were no jobs available that complied with the Petitioner's medical restrictions. Review of the Petitioner's performance evaluations establishes that he was generally an average worker who was sometimes warned about becoming too involved in other employees' activities. His evaluations of August 1996 and September 1998 contained references to such involvement and indicated that he should "spend less time worrying" about other employees. The 1996, 1997, and 1998 performance evaluations suggested that the Petitioner obtain additional training in order to advance his career. The Respondent offered a program to fund such training, and notices regarding the training were posted on a bulletin board accessible to employees, but the Petitioner did not take advantage of the program. At the time of the July 1999 medical restrictions, the Petitioner's skill set did not qualify him to perform tasks other than as a mill operator using the machine for which he was originally employed.
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 Jerzy Josefik in this case. DONE AND ENTERED this 30th day of May, 2003, 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 30th day of May, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jerzy Jozefik 9605 Southwest 27th Avenue Ocala, Florida 34476 Grant D. Petersen, Esquire Ignacio J. Garcia, Esquire Haynsworth Baldwin Johnson & Greaves LLC 600 North Westshore Boulevard, Suite 200 Tampa, Florida 33609-1117 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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 The issues are whether Respondent, City of Edgewater (the City), committed unlawful employment practices contrary to section 760.10, Florida Statutes (2013),1/ by discriminating against Petitioner based on her age, gender, and/or disability by the manner in which the City terminated Petitioner’s employment. Also at issue is whether Petitioner’s termination was in retaliation for Petitioner’s complaints regarding discriminatory conduct by her immediate superior.
Findings Of Fact The City is an employer as that term is defined in section 760.02(7), Florida Statutes. Petitioner is a white female who was over the age of 40 during the events relevant to this proceeding. Petitioner was hired by the City as a part-time animal control officer on June 9, 1993. At the time Petitioner was hired, animal control was part of the City’s police department. On October 15, 1993, Petitioner was transferred to a full-time position as records clerk/telecommunicator in the police department. Petitioner maintained the department’s records and answered all police calls, including 911 calls. She dispatched officers and emergency personnel. Petitioner testified that this was a desk job with no real physical requirements beyond walking to a window to deal with members of the public. She received excellent evaluations and stayed in this position until early 1999. While working this job, Petitioner obtained police training at Daytona State College. Upon graduation, Petitioner applied for a job as a police officer with the City. On February 19, 1999, the City hired Petitioner as a police officer. Petitioner was promoted to sergeant on May 7, 2006, and served in that position until her demotion following an altercation with a female detainee in the City’s holding facility on June 16, 2011. Petitioner was continuously employed by the City for 18 years and eight months. During her employment, she received regular pay increases and numerous commendations. Over the years, she received three written warnings and one demotion, from sergeant to officer after the incident on June 16, 2011. Chief of Police David Arcieri characterized her disciplinary record as good in light of Petitioner’s length of service. During the course of her employment, Petitioner had multiple health problems. In 2001, during work-related mountain bike training, Petitioner suffered a fall that badly injured her shoulder.3/ Petitioner had surgery and recalled that she missed at least four months of work. When she came back to work, Petitioner was unable to perform the normal duties of a police officer. She was allowed to return in a light-duty desk position, working with the City’s chief of grants. She worked in this position for approximately six months before returning to regular duty as a police officer. In 2004, Petitioner was diagnosed with lupus and rheumatoid arthritis (“RA”). Petitioner testified that she freely discussed her condition with her co-workers because of the problems she had establishing a medication regime that did not cause allergic reactions. Until late 2011, she was forced to give herself painful injections in the stomach. She now has a port implanted that allows her to take the medications via infusion. Chief Arcieri confirmed that it was common knowledge in the City’s police force that Petitioner had lupus. Petitioner testified that she missed very little work because of the lupus and RA. She requested no accommodations in the workplace for these conditions. Sometime in 2009, Petitioner underwent neck surgery to repair a disc “that was almost gone.” Petitioner recalled discussing her condition with then-Sergeant Arcieri4/ prior to the surgery. They talked about the fact that her doctors were unsure whether the neck condition had been brought on by her RA. Petitioner testified that she was out of work for two or three months due to this surgery, but did not require a light-duty assignment when she reported back to her position. On September 22, 2009, Petitioner was at work conducting a witness interview when her nose began bleeding uncontrollably. A fellow officer drove her to the emergency room. Another city employee came to the emergency room to make sure Petitioner got home safely. At the hospital, Petitioner was diagnosed with hypertension. She missed several days of work and was placed on medications to control her blood pressure. City Manager Tracey Barlow testified that he was contemporaneously aware of Petitioner’s hypertension. Petitioner requested no workplace accommodations for her hypertension. In early 2010, Petitioner was out of work for a time with uncontrolled vomiting and diarrhea. Petitioner’s physician, Dr. Beatrice Bratu, diagnosed her condition as stress-induced colitis. Petitioner testified that her treatments for the colitis lasted about three months but that she was back at work within a few weeks. On March 15, 2010, Personnel Director Donna Looney addressed the following email to Petitioner: We are very pleased to see you back and doing well! I am in receipt of a note from Dr. Bratu which indicated you may return to work. I want to stress that we understand the necessity for you to follow your doctor’s instructions. No restrictions are noted; therefore you are allowed to continue your regular duties. Please be advised that you have a continuing obligation not to work when you are feeling impaired (fatigue, weakness, pain, etc.). It is City policy that if you expect to have any adverse side effect while taking medication, you must inform your supervisor, and you are never to drive a City vehicle when you are feeling impaired. If I can be of any further assistance, please feel free to contact me. Petitioner requested no workplace accommodation related to her colitis. On June 16, 2011, Petitioner was involved in an altercation with a 28-year-old female detainee at the City police station. Several officers submitted witness statements about the incident and police station video cameras captured the essentials of the acts that occurred. The video recording did not include sound. The detainee, J.G., had been arrested for battery and was by all accounts heavily intoxicated and belligerent. J.G. asked to go to the bathroom. Petitioner let her out of the cell and escorted her to the bathroom. The video shows Petitioner standing in the open doorway of the bathroom, waiting for J.G. to finish. Petitioner told the police department’s internal affairs investigator that J.G. asked for tampons. Petitioner responded that the police department did not keep such items and that she would have to clean up as best she could with the materials available in the bathroom. J.G. replied that she could not put back on the shorts she had been wearing. She stated they were not her shorts and they were bloody. Petitioner told her that she had to put the shorts back on. At this point, the video shows the shorts flying out of the bathroom and landing behind Petitioner, who kicked them back into the bathroom and stepped into the doorway. J.G., stepping into camera range, picked up the shorts and threw them at Petitioner. The shorts hit Petitioner along her beltline. Petitioner took a step forward and struck J.G. in the face with her open right hand. J.G. pushed forward momentarily, but retreated into the bathroom as Petitioner continued to advance. At this point, Officer Eric Selvaggio entered the picture to assist. For a period of roughly forty seconds, all three people were inside the bathroom, invisible to the camera. The doors then opened, and the three emerged. The two police officers guided the handcuffed J.G. toward a point outside the range of the camera. J.G. wore only a shirt and underwear. The video next cut to an empty holding cell. Petitioner and Officer Selvaggio entered the picture, guiding the handcuffed J.G. toward the cell. J.G. continued to struggle with the officers. She dropped to the ground. The officers pulled her to her feet and pushed her into the cell. J.G. kicked at Petitioner. The camera angle made it impossible to see whether there was contact, but Petitioner stated at the time, and has consistently maintained since the incident, that J.G. kicked her in the stomach. Immediately after the kick, Petitioner attempted to push her way past Officer Selvaggio toward J.G. Petitioner drew back her right fist but Officer Selvaggio’s left arm blocked her from throwing a punch. He pushed Petitioner away and then secured J.G. in the holding cell. Though there is no sound on the video, it is clear that Petitioner and J.G. continued an animated conversation after J.G. was locked in the cell. Multiple police witnesses recalled Petitioner calling J.G. a “fucking bitch.” Petitioner and the other officers on duty went out the back door to discuss the situation. The video appears to show Petitioner performing a joking reenactment of her attempted punch at J.G. Officer Selvaggio stated to the investigator that Petitioner told him she might not charge J.G. for the incident, but he replied that under the circumstances it would be best if she did follow through with charges. Petitioner filled out a charging affidavit against J.G., charging her with battery on a law enforcement officer, in violation of section 784.07(2)(b), Florida Statutes. In her charging affidavit, Petitioner wrote as follows, in relevant part, verbatim: On June 16, 2011 at approximately 12:45 a.m., the defendant, [J.G.] was in police custody at the Edgewater Police Department on a battery charge from a previous police call. The defendant requested to use the bathroom and was escorted to the bathroom by me. The defendant was upset over being arrested, while sitting on the toilet, she kicked off her shorts and threw them out of the restroom stating that she was not putting them back on as they were not hers and were soiled from her menstrual cycle. I pushed the shorts back into the restroom with my foot and advised her she needed to put them back on, she screamed she was not going to. When the defendant rose from the toilet, she picked up the shorts and threw them directly into my face, striking me with the shorts. The defendant then pushed herself up against the sink and began calling me a bitch and telling me again she was not putting the shorts back on and she was leaving. I entered and attempted to get her out of the bathroom, she began to punch at me. Myself and Officer Selvaggio, who was standing nearby, grabbed hold of the defendant in an effort to get her out of the bathroom. The defendant struggled against us, before we got her to the floor and secured her. As we were getting her back into the cell, the defendant threw herself onto the bench and kicked out striking me in the stomach with her right foot. The defendant was left in the cell with no shorts on and in handcuffs . . . . It should be noted that Petitioner’s charging affidavit states that J.G. hit her in the face with the bloody shorts, when in fact the shorts hit Petitioner in the waist area. Petitioner failed to mention that she slapped J.G. in the bathroom or that Petitioner attempted to punch J.G. in the holding cell. Chief Arcieri testified that when he came in later that morning, he reviewed all of the reports filed since the previous day. Petitioner’s report caught his eye because it involved battery on a law enforcement officer inside the station house. He instructed his assistant to pull the video of the incident and make one copy for him and one for Petitioner. When he saw the video, Chief Arcieri notified the Florida Department of Law Enforcement (“FDLE”) and requested an investigation. Chief Arcieri testified that he went to FDLE because he thought criminal charges could ensue in the case and that he does not like to investigate criminal matters internally. He also ordered an internal affairs investigation, but placed it on hold pending the outcome of the FDLE investigation. On June 21, 2011, Petitioner was placed on paid administrative leave for the duration of the investigations. J.G. refused to cooperate with the FDLE investigators. Without a victim willing to go forward, no criminal charges could be brought against Petitioner. The FDLE investigation was dropped. The internal affairs investigation was completed on August 15, 2011. The investigator’s written report concluded as follows: Sgt. Winston did commit the act of perjury on an official felony charging affidavit. Sgt. Winston did in fact using her hand strike a prisoner in the face which caused her to fall back onto the sink. Sgt. Winston did reach her right arm over the shoulder of Officer Selvaggio in an attempt to strike a handcuffed prisoner which Officer Selvaggio was attempting to secure inside the holding cell. Sgt. Winston did violate Edgewater Police [sic] & Procedure by removing a prisoner, removing the prisoner’s handcuffs without another officer present and allowed the prisoner to use the restroom. Sgt. Winston violated Edgewater Policy & Procedure by entering the cell/booking area wearing both her issued side arm as well as her issued taser. Sgt. Winston violated Edgewater Police [sic] & Procedure by openly criticizing the policy of securing any and all weapons prior to entering the booking/cell area when prisoners are present. This was done openly in the presence of fellow officers. Sgt. Winston violated City Policy and Procedure 12.02 Inappropriate/Unacceptable Behavior. Sgt. Winston did violate Edgewater Police Department Policy & Procedure Excessive force not resulting in injury. Petitioner was represented by counsel for the Fraternal Order of Police (“FOP”) in defending herself against the allegations that resulted from the internal affairs investigation. Negotiations ensued between the City and Petitioner to resolve the matter short of litigation. A settlement agreement was reached and executed on August 24, 2011. Petitioner agreed to findings that some of the allegations were sustained.5/ Petitioner agreed to a demotion from sergeant to officer, effective August 19, 2011, with a resulting salary cut, and she agreed to attend anger management courses. On August 24, 2011, Chief Arcieri ordered Petitioner to report for duty at 6:00 a.m. the following morning. Petitioner called in sick and did not report for work on August 25, 2011. Ms. Looney, the personnel director, contacted Petitioner to find out why she was not reporting for work. Petitioner told Ms. Looney that she had sustained a back injury during the altercation with J.G. on June 16, 2011. Ms. Looney testified that this was the first she knew of Petitioner’s back injury. In a letter dated August 24, 2011, and received by Chief Arcieri on August 25, 2011, Petitioner’s personal workers’ compensation attorney wrote as follows, in relevant part: As you know, Ms. Winston is an 18 year employee with our [sic] agency who was recently in an altercation with a belligerent, drunken female on June 16, 2011. Ms. Winston was injured during the arrest but was placed on Administrative leave pending an internal investigation and the matter has not been reported as an injury as of yet. Ms. Winston was not aware that she had injured her low back immediately due to circumstances surrounding the altercation and the typical adrenaline response resulting from such an altercation. She thought she was just sore from being beat up a bit but as the weeks went by her condition worsened. A recent MRI has revealed two herniated discs in the lower back and Ms. Winston does require medical treatment for this work related injury. I am requesting at this time that the Agency immediately file a First Report of injury on behalf of Ms. Winston. This should be considered notice under Chapter 440 of the work related injury. In addition to the back injury, Ms. Winston now suffers from uncontrolled high blood pressure which is also disabling. Ms. Winston will be receiving a letter from her doctor indicating that she is unable to work due to her uncontrolled blood pressure at this juncture. That is also a work related claim under F.S. 112.18, more popularly known as the “Heart/Lung Bill.” This claim should also be processed and medical care should be provided as soon as possible. Please see that a First Report of Injury is completed with regard to this claim . . . . In a related claim, Ms. Winston also has a September 22, 2009 uncontrolled hypertension incident which resulted in hospitalization. As you know, the 2009 accident occurred while Ms. Winston was interviewing a sex crime victim. She was experiencing a severe headache and then had an uncontrollable nose bleed during the interview. The blood pressure reading at the time revealed her blood pressure was severely elevated and she was taken to the hospital. This incident should have triggered the immediate filing of a First Report of Injury under F.S. 112.18 as referenced above. For whatever reason, no First Report of Injury was filed but I am requesting that you file such a First Report of Injury immediately on Ms. Winston’s behalf and that you provide appropriate medical care for this condition . . . . Finally, Ms. Winston advises me that she has been under an internal investigation since the June, 2011 incident. This internal investigation appears to be entirely inappropriate given the circumstances surrounding this event and would appear to be part of an intimidation practice on the part of your Agency, which is in clear violation of F.S. 440.205. As I am sure you know, 440.205 prohibits the harassment, intimidation, retaliation, or termination of an employee by virtue of a workers’ compensation claim. Needless to say, Ms. Winston has numerous ongoing workers’ compensation claims and it appears that all of the harassment which she has been subjected to since the time the internal investigation was opened in this matter appears to be directly attributable to her ongoing workers’ compensation issues. It should also be noted that Ms. Winston is suffering from post traumatic stress disorder as a result of this recent altercation and all of the fallout related to same. As I am sure you are well aware, post traumatic stress disorder of this nature is also covered for First Responders under the auspices of F.S. 112.1815. I am requesting again that a First Report of Injury be filed relative to this issue and that appropriate medical care be provided. Ms. Winston is entitled to full pay as she was injured during an altercation with a violent individual. Full pay is appropriate pursuant to the provisions of F.S. 440.15(11). This means that she should be receiving a regular paycheck without deduction of sick or vacation bank time. Please see that the appropriate adjustment is made relative to payment of benefits and feel free to contact me with any question . . . . On August 30, 2011, Petitioner submitted three “Incident/Accident Information Forms” to the City in regard to her workers’ compensation claims. The first states that Petitioner suffered an injury to her lower back on June 16, 2011, when “an intoxicated combative prisoner . . . kicked me in my stomach just above my gun belt.” The second describes “stress” as the injury, dated June 28, 2011, caused by “constant harassment & belittled by Dave Arcieri.” The third form states that the date of injury was September 22, 2009, the injury was “blood pressure caused bleeding of the nose,” and describes the incident in terms similar to those used in the attorney’s letter of June 24, 2011. Petitioner testified that she still sees a psychiatrist once a month and goes to counseling every two weeks, but that she first sought mental health counseling in June 2011 because of problems with Chief Arcieri that dated from long before he became chief. She testified that “he would cuss me out, call me names, have people that were subordinates watching me and reporting back to him to make sure I didn’t breathe the wrong way.” Petitioner testified that Chief Arcieri’s animus toward her dated from her handling of a situation as a sergeant that led to the firing of an officer. A member of Petitioner’s squad reported to her that an officer in another squad stole property from a civilian during a traffic stop and then gave him the stolen item. Petitioner told the officer to file a report and drop the item into evidence and that she would meet with the other officer’s sergeant. The other officer’s sergeant required him to write a report. The officer lied in the report. Petitioner and the other sergeant brought the matter to the attention of their superiors. After an investigation, the department had no choice but to fire the officer. At a sergeants’ meeting a little while later, then- Administrative Sergeant Arcieri said that Petitioner was incompetent. If she had handled the situation differently, Sergeant Arcieri would not have had to fire a good officer. Petitioner asked how the department could tolerate a lying thief in its midst. Sergeant Arcieri told her that the officer could have been reprimanded in some other way. Petitioner testified that she was afraid of Chief Arcieri because of threats he made to her. He made it clear to her and to any other officer who thought about reporting something to Ms. Looney or Mr. Barlow that these officials would let him know and the snitch would pay a price. On September 27, 2011, Petitioner sent an email to Michelle Grenham, Chief Arcieri’s secretary, stating that she would be unable to attend the anger management class required by the settlement agreement because she was undergoing major surgery on September 28 at Halifax Hospital in Daytona Beach. Ms. Grenham forwarded the email to Chief Arcieri and Ms. Looney. Petitioner underwent surgery on September 28, 2011, to repair the herniated discs in her back. Petitioner testified that prior to the surgery, she had difficulty walking, standing, bending at the waist, reaching, and climbing stairs due to the pain in her back. She was able to drive a car but only for short distances. She did not have full control of her bladder and bowels. She could only sleep by putting herself in a fetal position then bracing herself with pillows to keep her in that position. Petitioner described the surgery as less than a complete success. She had numbness in her right leg, was unable to bend, squat, kneel or stretch, and could not sit for very long. She eventually required spinal injections and the surgical insertion of a morphine pump in her stomach for pain in her spine. The morphine pump was still in place at the time of the hearing. Physicians also implanted a spinal cord stimulator in her back. She regained control of her excretory functions but was unable to walk without the use of a walker for several months and a cane thereafter. She wore a back brace most of the time. On November 29, 2011, Petitioner and her husband met with Mr. Barlow and Ms. Looney to discuss Petitioner’s medical situation and when she might return to work. The meeting was held at Petitioner’s request. Petitioner testified that she came into the meeting wearing a back brace and using a walker. Her husband had to drive her to the meeting. Petitioner testified that she asked for the meeting to find out if she could get an extended leave until her physician cleared her to go back to work. She also wanted to discuss Chief Arcieri’s harassment and belittling of her. At the meeting, Petitioner told Mr. Barlow that she didn’t know how long the healing process would take or whether she would need additional surgeries. Petitioner testified that Mr. Barlow told her it might be in her best interest to retire, in light of her age and her many health problems, including RA, lupus, hypertension, and now the back injury. Mr. Barlow stated that it seemed to him that Petitioner didn’t have anything that was going to go away, and that anyone with a back injury would have issues with it for life. Mr. Barlow asked whether Petitioner really thought she could ever come back as a police officer. Petitioner could only say that she didn’t know. Petitioner testified that she told Mr. Barlow that she hoped to reach retirement as a police officer but that she was willing to take another position with the City if her physical limitations kept her from returning to her former position. Petitioner testified that she told Mr. Barlow that she had a doctor’s appointment on May 3, 2012, and that Mr. Barlow promised to give her a leave of absence until that appointment. Petitioner’s husband, Ricky Winston, testified that at the meeting, his wife explained her injuries to Mr. Barlow and complained about Chief Arcieri’s constant ridicule and badgering. Mr. Winston stated that Mr. Barlow had a calendar and some paper and a calculator that he was using to diligently figure out something. It turned out that Mr. Barlow was calculating the date of Petitioner’s full retirement, with the idea of carrying her on the City’s employment roster until then. Mr. Winston testified that he left the meeting with the understanding that Mr. Barlow had agreed to grant Petitioner unpaid leave until she reached retirement. Mr. Winston recalled that Mr. Barlow listed all of Petitioner’s physical problems and asked why she didn’t just quit. Mr. Winston testified that this question was devastating to his wife because she never had any intention of leaving the job she loved. Ms. Looney testified that she did not recall Mr. Barlow mentioning any of Petitioner’s physical infirmities aside from her back injury. She did not recall Mr. Barlow using a calculator or calendar during the meeting or stating a date for Petitioner’s retirement. Ms. Looney stated that the goal was for Petitioner to return from her next doctor’s appointment with a physician’s statement as to when she could return to work, whether at full or light duty. Ms. Looney’s assumption, based on Petitioner’s condition, was that Petitioner would return to light duty at first. Mr. Barlow explicitly stated that the City wanted Petitioner to return to work, either full or light duty. Ms. Looney testified that she believed everyone at the meeting understood that Petitioner wanted to return to light duty and that the police department would try to find light duty restricted work for Petitioner when her doctor cleared her to return. Petitioner would remain on unpaid leave until her next doctor’s appointment in January 2012, at which time the City would need to know whether she could return to work. Petitioner had given Ms. Looney light duty notes from physicians in the past, which led Ms. Looney to assume that Petitioner understood what she needed to provide to the City. Ms. Looney stated that Mr. Barlow did not promise to keep Petitioner’s job open until May 2012. Mr. Barlow recalled almost nothing about the November 29, 2011, meeting with Petitioner. The only relevant specific testimony he provided on the subject was a denial that he told Petitioner that she could have a leave of absence until May 2012. However, given his lack of recall as to anything else that transpired in the meeting, Mr. Barlow’s testimony on this single point is not credited. The testimony of Petitioner and her husband regarding the statements made at the November 29, 2011, meeting is credited as to Mr. Barlow’s discussing Petitioner’s retirement and as to the fact that a discussion of Chief Arcieri’s behavior toward Petitioner occurred. On these points, Petitioner and Mr. Winston were credible, consistent witnesses. Ms. Looney’s testimony on these points was confused and equivocal. Mr. Barlow’s testimony was of little use at all as he claimed to remember virtually nothing about the meeting. However, the testimony of Petitioner and her husband cannot be credited as to the matter of Mr. Barlow’s promise to give Petitioner a leave of absence until May 3, 2012. Even disregarding Mr. Barlow’s convenient memory on this point, Petitioner’s testimony and that of her husband diverged on the ground for the leave of absence. Petitioner testified that Mr. Barlow gave her until May 3, 2012, because that was the date of her next doctor’s appointment. Mr. Winston vaguely recalled that a date was mentioned, either March or May, and that this date was based on Mr. Barlow’s calculation of Petitioner’s retirement date. Petitioner’s claim that Mr. Barlow gave her until May 2012 is further undercut by documentary evidence. On January 26, 2012, Petitioner sent Ms. Looney an email that stated as follows, in relevant part: Call me when you get the chance, I have prescriptions to pick up and get fitted for another brace, but I am going to need to take a leave of absence for a bit. Dr. Vinas [Petitioner’s surgeon] is not releasing me for duty at this time . . ., I will be going into a new brace and will be going to pain management for epidural injections in my spine. I have attached the letter from Dr. Vinas, as well as a copy of the medications I will be taking. My next appointment with him will be May 03/2012 unless the Dr. at the pain management center feels I need further surgery. I have no idea what to do about taking a leave, is there paperwork I need to file or just send you a letter? I would rather speak to you so if you are not busy please call me . . . . If the November 29, 2011, meeting had settled the question regarding Petitioner’s leave of absence until her doctor’s appointment on May 3, 2012, there would have been no need for Petitioner to write to Ms. Looney on January 26, 2012, to request a leave of absence and to inform Ms. Looney that her next doctor’s appointment would be on May 3. This email is consistent with the assertion made in the City’s February 21, 2012, letter terminating Petitioner’s employment that Mr. Barlow agreed to maintain the status quo until January 23, 2012, the date of Petitioner’s next scheduled doctor’s appointment.6/ In an email to Ms. Looney dated February 9, 2012, Petitioner stated, “[A]t this stage nothing surprises me anymore, I mean after all, I was supposed to be back on my feet and rarin to go by January, well that, as you know did not happen.” Petitioner closed a separate February 9, 2012, email to Ms. Looney with the following: “I forwarded this to [Mr. Barlow] also, but if he does not get it please let him know and tell him I said to keep his chin up as he always does and thank him for allowing me to take a leave of absence. Hopefully it won’t be much longer.” These emails cast further doubt on Petitioner’s claim that she had obtained a leave of absence until May 3, 2012, from Mr. Barlow at the November 29, 2011, meeting. The greater weight of the evidence indicates that Petitioner was granted an unpaid leave of absence at the November 29 meeting, but only until her physician cleared her to return to work in some capacity, which Petitioner at the time anticipated would occur in January 2012. The evidence presented at the hearing showed that Petitioner had used her twelve weeks of leave under the Family Medical Leave Act (“FMLA”) as of November 16, 2011. She had exhausted all of her accrued leave as of December 9, 2011, when she formally began the unpaid leave of absence. On January 1, 2012, Petitioner began receiving the City’s long-term disability benefits. Ms. Looney signed a letter to Dr. Federico Vinas, dated January 25, 2012, that stated as follows: Ms. Winston has informed us she is a patient of yours. She has a follow-up appointment January 26, 2012 in association with surgery perform [sic] by you. First, and foremost, enclosed you will find the Authorization to Disclose Medical Information form executed by Ms. Winston along with her job description (Police Officer) setting out the physical requirement. JoAnne is a valued City employee and it would be greatly appreciated if you verify her ability to perform any or all of these duties. Please provide us with specific restrictions or requirements necessary not to aggravate her condition and advise as to exactly when she can be cleared for full police officer’s duties. Your expertise is [sic] this matter is greatly appreciated. Please contact me for any further information you may need. The City’s job description for “Police Officer” reads as follows, in relevant part: PRIMARY DUTIES AND RESPONSIBILITIES: (all duties may not be performed by all incumbents) Patrols designated area of the City to preserve the peace, to prevent and discover criminal acts, and to enforce traffic regulations. Answers calls and complaints involving drunkenness, domestic disputes, assaults and batteries, missing persons, fires, thefts, accidents and other felonies and misdemeanors. Is responsible for being knowledgeable of the crime problem in assigned work area and developing strategies to combat the problem. Develop contacts and provide intelligence reports to detectives and administration. Makes preliminary investigations at crime scenes or incidents, protects and collects physical evidence, locates witnesses, interviews witnesses, makes arrests, assists paramedics with basic and advance [sic] life support. Interviews complaints [sic] and witnesses to obtain information about crimes; assists in investigative work. Prepares evidence for issuance of complaints and testifies as a witness in both civil and criminal court, transports prisoners. Patrols school zones and high activity areas when assigned. Assists motorists, directs traffic, investigates accidents, recovers stolen automobiles, prepares detailed reports, advise of and interpret laws and ordinances and provides general information to the public. Cooperates and coordinates with other law enforcement agencies and other components of the Criminal Justice System. * * * Environmental Conditions: Outdoor environment with exposure to discomforting and dangerous working conditions Office environment with exposure to computer operations Physical exertion in lifting/moving items weighing up to 50 pounds Routine travel is required along daily assigned routes Occasional overnight travel is required Other physical/mental requirements may apply * * * DISCLAIMER STATEMENT This job description is not intended as complete listing of job duties. The incumbent is responsible for the performance of other related duties as assigned/required. The physical demands described herein are representative of those that must be met to successfully perform the essential functions of this job. Reasonable accommodations may be made to enable qualified individuals with disabilities to perform the essential functions. On January 26, 2012, Dr. Vinas forwarded to Ms. Looney a “Work Status” form regarding Petitioner that provided as follows: The above captioned patient is being treated in this office. The patient’s current work status is as follows: ( ) This patient was seen for treatment in our office today, please excuse any absence from work or school. (X) Based on the job description provided by the patient, it is in this patient’s best interest to be excused from all work duties at this time. Restrictions The patient may return to or continue to work with the following restrictions: ( ) No lifting over pounds. ( ) No excessive/repetitive bending or twisting. ( ) No prolonged sitting/standing or stooping. ( ) No excessive/repetitive pulling or pushing. ( ) No excessive activity with arms above shoulder level/overhead activity. ( ) ALL OF THE ABOVE ( ) Specific instructions ( ) This patient does not work at this time, but has been instructed to limit household/daily activities so as to remain within the above noted restrictions. ( ) This patient’s most recent evaluation supports a return to normal, routine work activities. The effective date of this Work Status is from the date noted above until further notice. If the patient’s current position of employment can be modified or other position found that conforms to the above restrictions, then the patient may return to work. If these restrictions cannot be maintained, I would recommend that the patient be excused from work until further notice. The patient’s work status will be evaluated on a visit-to-visit basis. Ms. Looney testified that based on Dr. Vinas’ Work Status form and her own conversations with Petitioner, she concluded that Petitioner was unable to return to work in any capacity, full or light duty, as of January 26, 2012. At the hearing, Petitioner conceded that she could not have returned to work as a police officer on January 26, 2012. As set forth in Finding of Fact 54, supra, Petitioner notified Ms. Looney via email on January 26 that her next appointment with Dr. Vinas would be on May 3, 2012. In the same email, Petitioner asked for guidance on how to request a further leave of absence. The record of this proceeding includes a “Request for Leave of Absence” form in which Petitioner asked for a leave of absence commencing on January 26, 2012, with an “anticipated return date” of May 3, 2012. At the hearing, Petitioner could not recall filling out this form. In her testimony, Ms. Looney indicated that she filled out the form for Petitioner. In the space in which the applicant is to set forth reasons for the leave of absence, Ms. Looney wrote, “See attached e-mail,” which was Petitioner’s January 26 email to Ms. Looney. Mr. Barlow denied the request for a further leave of absence by signature on the request form. The form does not indicate when Ms. Looney filled it out or when Mr. Barlow denied the request. The record is also unclear as to when Petitioner was notified that the City was denying her a further leave of absence. As late as February 9, 2012, Petitioner was still sending chatty emails to Ms. Looney regarding her medical condition and treatment, even asking Ms. Looney and Mr. Barlow to stop by her house for a visit if they are ever in the neighborhood. The first clear notice of the denial was in the termination letter set forth in the next paragraph. On February 21, 2012, Ms. Looney wrote the following letter to Petitioner: On November 29, 2011 Tracey Barlow, City Manager, and myself met with you to discuss your medical situation. You informed us your next doctor’s appointment was January 23, 2012, at which time you were hoping to be taken out of your brace. We agreed your continued employment with the City would depend on your returning to full duty and I would send Dr. Vinas a letter requesting exactly when you would be cleared to return to full duty as a police officer. Following your exam on January 26, 2012, you emailed me Dr. Vinas’ work status form which states “based on the job description provided by the patient, it is in this patient’s best interest to be excused from all work duties at this time.” You also stated your next appointment is May 3, 2012 and asked about taking a leave of absence. JoAnne, as you are aware your FMLA was met as of November 16, 2011; all your workers compensation claims have been denied;7/ you exhausted all of your accruals as of December 9, 2011 and have been granted unpaid leave of absence for the previous 74 days, and as of January 1, 2012 you began receiving the city’s long term disability benefit. Therefore, due to all the facts stated too [sic] include uncertain ability to return to work date, the City Manager has denied your request for leave of absence exceeding 30 days. As a result, consider this formal notification that your employment with the City of Edgewater ends effective February 24, 2012. It is very important that you contact the Personnel Department to make the necessary arrangements for your continued insurance coverage and any outstanding benefits/obligations you have with the City. Petitioner testified that at the time the City terminated her employment, she was still using a cane at home and a walker when she went out. There is no question that Petitioner was unable to return to full duty as a police officer on February 24, 2012. It was Petitioner’s contention that she could have come back to work for the police department in some form of light duty, as she had been allowed to do in the past, or in one of several jobs that the City advertised as open during her convalescence. Petitioner further contended that Ms. Looney should have sent Dr. Vinas the job descriptions of all open City jobs rather than just the job description of a police officer. As to the last point, Ms. Looney testified that it was standard practice for the City to send the physician an employee’s current job description for an assessment of the employee’s ability to return to work. Petitioner was treated no differently than any other City employee in this regard. Petitioner testified that she asked the City to bring her back in another position, but could offer no documentary evidence to support that testimony. She claimed that part of the discussion at the November 29 meeting with Mr. Barlow and Ms. Looney was her hope to retire as a police officer, but her desire to remain a city employee in whatever capacity she could. Ms. Looney testified that Petitioner never asked to work in any position other than that of police officer. Petitioner sent an email to Ms. Looney on December 26, 2011, asking whether Ms. Looney had “heard from my Dr. as to when I might be able to come back light duty or anything else?” Petitioner claims that the “anything else” portion of the email indicated her desire to be placed in any available job. Ms. Looney read the email as merely asking whether she had heard from Petitioner’s doctor, not as a job request. Ms. Looney’s reading is not unreasonable given that this was the only document Petitioner produced that even arguably contained a statement asking to be placed in a position other than police officer. In any event, whether Petitioner asked to be placed in another position is not decisive because of the blanket statement in Dr. Vinas’ work status form. Ms. Looney testified that she was unable to place Petitioner in any position because Petitioner’s physician had clearly stated that it was in her best interest to be excused from all work duties. It was always the City’s understanding that Petitioner would return to work in a light duty function at first, but in fact Petitioner was not cleared to work at all. Ms. Looney might have followed up with Dr. Vinas and inquired whether Petitioner was capable of doing clerical work or some other form of indoor, deskbound job, but Petitioner has pointed to nothing that required Ms. Looney to do so in light of Petitioner’s failure to request that accommodation. Ms. Looney testified that it was the City’s practice to hold off on discussing positions outside of an employee’s department until the employee has actually been cleared for light duty. No evidence was presented that the City treated Petitioner any differently than it treated other employees in a similar position. Similarly, Mr. Barlow might have agreed to extend Petitioner’s unpaid leave of absence to May 3, 2012, but he was not required to do so. At the time of her termination, Petitioner had used twelve weeks of FMLA leave and had been granted an additional 74 days of unpaid leave at Mr. Barlow’s discretion. Petitioner had been out on some form of medical leave for approximately six months. The City did not seize on some early opportunity to dismiss Petitioner; rather, the City had anticipated that Petitioner would return to work as a police officer and waited until Petitioner had exhausted all avenues of leave except a second discretionary unpaid leave of absence before deciding to terminate her employment. Petitioner offered no credible evidence that her termination was based on her age, gender, disability or perceived disability or that she was treated differently than other employees due to her age, gender, or disability. The lone indication of possible bias was Mr. Barlow’s statement at the November 29, 2011, meeting that Petitioner should consider retirement in light of her age and poor health. This statement may be easily read as a kindly (if poorly phrased) expression of concern for Petitioner. By her own testimony, Petitioner was on good terms with Mr. Barlow and Ms. Looney right up to the time of her termination. Petitioner sent solicitous emails to them as late as February 9, 2012. Petitioner’s feelings were hurt by the statement, but no other ill effect followed. She was granted the requested unpaid leave of absence and remained employed by the City for three more months. Petitioner testified that she never considered herself disabled and prided herself on not calling in sick or requesting accommodations for her conditions. Ms. Looney, Mr. Barlow, and Chief Arcieri all testified that they did not perceive Petitioner as having a disability that required accommodation in the workplace, though they were all aware of at least some of her chronic conditions such as lupus, RA, and hypertension. Petitioner claimed that Chief Arcieri carried on something of a vendetta against her. Chief Arcieri testified that prior to the demotion his relationship with Petitioner was friendly. When Petitioner’s house was flooded, Chief Arcieri took off work to help Mr. Winston solder a broken shower valve. After Petitioner was demoted, the relationship was less friendly but always professional. Chief Arcieri testified that he has never yelled at Petitioner or any other employee. He never called her names. The harassment and belittling that Petitioner alleged never happened. Chief Arcieri denied any sort of gender bias, pointing to the successful efforts his department has made to recruit and hire female officers. He denied ever making a comment about Petitioner’s age. He testified that he never considered Petitioner disabled while she was on active duty, despite her lupus. Petitioner never requested an accommodation and Chief Arcieri never saw the need for an accommodation. Chief Arcieri testified that at the close of the internal affairs investigation of the June 16, 2011, incident, he declined to sustain some of the allegations in order to protect Petitioner from a referral to the Criminal Justice Standards and Training Commission (“Commission”) for further discipline. Chief Arcieri assented to a request by the FOP that he submit a letter to the Commission stating that he believed the demotion was sufficient and asking the Commission not to take further action against Petitioner. Petitioner’s testimony against Chief Arcieri consisted of general statements that he harassed and belittled her. The only specific incident Petitioner recounted as to the source of any possible animus the chief bore toward her involved the firing of the officer who stole something during a traffic stop. Even if Petitioner’s version of events is accepted, Chief Arcieri’s anger toward Petitioner had nothing to do with her age, gender, or disability. He called her “incompetent.” He was upset about the manner in which Petitioner performed her job, which he believed led to the needless dismissal of a good officer. Whether Chief Arcieri was right or wrong to be angry at Petitioner, he did not engage in an act of discrimination. Even if the factfinder were to accept Petitioner’s description of Chief Arcieri as a bully on the job, there is no evidence aside from Petitioner’s general comments to indicate that she was singled out due to her age, gender or disability. It is telling that in testifying about her fear of reporting the bullying, Petitioner stated, “I was afraid. I was very afraid. David Arcieri made it not only clear to me, but to any other officer who even thought about going to report to Donna Looney or to Tracey Barlow, ‘Don’t worry, they’ll let me know and you will pay the price.’” This statement might be evidence that Chief Arcieri is a bully, a poor leader of his department, or a bad administrator. However, the statement does not establish that Chief Arcieri discriminated against Petitioner in a manner prohibited by section 760.10, Florida Statutes. If anything, the statement indicates that Petitioner found herself in the same boat as the other officers in her department.8/ Petitioner was aware of and understood the City’s nondiscrimination and no-harassment policy, the operative language of which states: The nature of some discrimination and harassment makes it virtually impossible to detect unless someone reports the discrimination or harassment. THUS, IF ANY EMPLOYEE BELIEVES THAT HE OR SHE OR ANY OTHER EMPLOYEE IS BEING SUBJECTED TO ANY OF THESE FORMS OF DISCRIMINATION OR HARRASSMENT, HE OR SHE MUST REPORT THIS TO THE PERSONNEL DIRECTOR (386-424-2408) AND/OR CITY MANAGER (386-424-2404). If you are encountering a problem, please do not assume that the City is aware of it. The City is committed to ensuring that you have a pleasant working environment, and your assistance in bringing your complaints and concerns to our attention is a necessary first step. (Emphasis in original). The policy was included in the City’s personnel manual. Petitioner was provided with copies of the policy and amendments thereto several times during her tenure with the City. Petitioner conceded that, notwithstanding the policy, she did not report any incidents of harassment or discrimination to either Ms. Looney or Mr. Barlow while she was actively working for the City. The allegations of intimidation and harassment made by Petitioner’s attorney in his August 24, 2011, letter and Petitioner’s allegation of “constant harassment and belittlement by Dave Arcieri” in her workers’ compensation incident report were made only after Petitioner had been off the job for eight weeks. Further, the specific allegations made by Petitioner’s attorney claimed that the City was in violation of section 440.205, Florida Statutes, not that Chief Arcieri or any other City employee was discriminating against or harassing Petitioner because of her age, gender, disability, or perceived disability. The evidence produced at the hearing established that Petitioner sustained an injury to her back, most likely due to an altercation with a detainee on June 16, 2011, that necessitated surgery and a rehabilitation process that was not complete even at the time of the hearing in May 2014. The City carried Petitioner as an employee until all of her available leave had been used and then for another 74 days on an unpaid leave of absence. The City had no legal obligation to grant Petitioner an unpaid leave of absence but did so in the hope that Petitioner would be able to return to work in January 2012. As of the termination date of February 24, 2012, Petitioner had been away from her job for more than six months, had not been cleared by a physician to do work of any kind, and would not receive a physician’s clearance to work any sooner than May 3, 2012. The City could have consented to carry Petitioner even longer on an unpaid leave of absence, but it was not discriminatory for the City to make the business decision to terminate Petitioner’s employment. Petitioner offered insufficient credible evidence to refute the legitimate, non-discriminatory reason given by the City for the termination of her employment. Petitioner offered insufficient credible evidence that the City's stated reason for the termination of her employment was a pretext for discrimination based on her age, gender, disability, or perceived disability. Petitioner offered insufficient credible evidence that the City discriminated against her because of her age, gender, disability, or perceived disability in violation of section 760.10, Florida Statutes. Petitioner offered insufficient credible evidence that her dismissal from employment was in retaliation for any complaint of discriminatory employment practices that she made while an employee of the City.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the City of Edgewater did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 30th day of January, 2015, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 January, 2015.
The Issue Whether Petitioner was subjected to sexual harassment and/or retaliation while employed with Respondent in violation of Subsections 760.10(1)(a) and/or (7), Florida Statutes (2008).1
Findings Of Fact Respondent is an employer within the definition found in Section 760.02, Florida Statutes. Petitioner was hired as an employee of Respondent in July 1993, as an X-ray technologist ("tech") in the Radiology Department. She is an adult female and, as such, is a member of a protected class. During her employee orientation, Petitioner received and read a copy of Respondent's Employee Handbook. Among other things, Respondent's Employee Handbook addresses the issue of sexual harassment in the workplace. Respondent's policy strictly prohibits sexual harassment and states that Respondent "will not tolerate such action by employees." Respondent's policy also encourages any employee who feels that he/she is being subject to sexual harassment to discuss and/or make a complaint with the Human Resources Department. Any such complaint is handled according to Respondent's Policy No. 9510-17, in order to ensure appropriate investigation and action. Respondent's employees also receive computer-based training regarding sexual harassment and Respondent's policy prohibiting the same, every year. Petitioner received this computer-based training regarding sexual harassment. In October 2006, Petitioner started training to be a magnetic resonance imaging ("MRI") tech. Petitioner was chosen to be cross-trained from an X-ray tech to a MRI tech by Greg Phillips, who was then the manager of Diagnostic Imaging. Phillips became her unofficial "mentor" at Respondent's facility. Petitioner received on-the-job training for an MRI tech from Chris Depelteau, Amy Brantly, and Lucinda Swales, all of whom were MRI techs at the time. In December 2006, Petitioner received a secondary job code which allowed her to work independently as an MRI tech part-time. Essentially this meant that she could "take call." That same month, Paul Licker was hired by Respondent as lead MRI tech. Depelteau had also applied for this job, but had not been chosen. Upon being hired by Respondent, Licker was also made aware of its policy regarding sexual harassment. As lead MRI tech, Licker was responsible for scheduling the MRI techs, ordering supplies, working on protocols, ensuring that patients were being properly scanned and treated, and following up with the MRI techs as they cared for patients. Therefore, Licker became Petitioner's immediate supervisor. Like all the other MRI techs, Licker also trained Petitioner in MRI. In training Petitioner, Licker often taught her different techniques or ways of doing things than the way she had been taught by the other MRI techs. Licker, on several occasions, sought to teach Petitioner his way of doing things on the computer, which was different from the others. In doing so, Licker invaded Petitioner's workspace and engaged in inappropriate touching, particularly by covering her hand with his while manipulating the mouse, to the point that she became uncomfortable. Licker also started implementing changes and different ways of doing things throughout the MRI department. As lead MRI tech, Licker had the authority to implement such changes. Also, during this same period, if Licker added patients or made other changes to her schedule, Petitioner would argue with or complain to him. In fact, Petitioner did not like Licker and also told Depelteau and other employees that Licker was a "bad supervisor." Licker himself recognized that Petitioner did not like the way he was supervising the department. A few weeks after Licker started working for Respondent, Petitioner approached Phillips complaining that Licker was calling her, other female employees, and patients, "Babe." For instance, Licker would say, "Babe, I need you to do this for me," when asking Petitioner to complete a task. Petitioner indicated that she thought that the use of this term was inappropriate and demeaning and that it made her uncomfortable. In fact, other employees who were friendly with Petitioner understood that Licker was using the term "Babe" the way another person might use the terms "Sweetie," or "Honey," i.e., in a non-sexual or non-derogatory way. However, understanding that Licker was a new supervisor who may not have understood that the term suggested something sexual in using the term "Babe," Phillips suggested to Petitioner that she speak directly with Licker to resolve this issue. Phillips also spoke to Licker directly regarding his use of the term "Babe." Specifically, Phillips advised Licker that he "needed to carefully choose his words around patients and employees." Phillips also advised Licker that some people did not like being addressed by "Sweetie or Hun or Babe," and that he should refrain from using these terms in the workplace. Licker understood Phillips' suggestion and tried to refrain from calling Petitioner, or anybody else, "Babe" or any word similar to the term. Petitioner did not complain about any other alleged inappropriate conduct by Licker to Phillips, or any other manager, until February 1, 2007. However, shortly after he started working for Respondent, Licker made an inappropriate comment in the cafeteria to Petitioner. Licker stated to other employees that he could not sit next to Petitioner because they were sleeping together. Licker made a similar inappropriate comment to Dana Keach when he first started employment at Parrish. He suggested that there was a lesbian relationship between Keach and another woman. This conduct was not reported until much later. Prior to February 1, 2007, it became readily apparent that the MRI department was suffering serious setbacks because the department employees were not working cooperatively together. The biggest problem in the MRI department appeared to be a lack of teamwork resulting from the staff's inability to communicate effectively with one another. Licker advised Gallacher that he was struggling in his "daily interactions" with Depelteau and Petitioner and that he simply "could not make the group happy, whether it was scheduling or time off or just getting through the day." MRI's problems grew to the point that Phillips and Gallacher both stepped in to try to improve communications and teamwork among Licker, Petitioner, Depelteau, and Shelly Hugoboom, the MRI CT assistant. The entire MRI department engaged in team-building meetings and even worked with the medical center's chaplain in an attempt to learn to work together. These department meetings were intense and discussion often became heated among the MRI staff members. In addition to these team-building meetings, Gallacher met with staff members individually to discuss their concerns. Gallacher also addressed the interpersonal skills issues between Petitioner and Hugoboom. Specifically, Gallacher met with the two employees together "to see if they could put [their issues] to rest and move on." In the midst of these efforts to improve the department, Petitioner came to Phillips on February 1, 2007, complaining that Licker was continuing to call her "Babe," and that he had also offered her some concert tickets. Phillips observed that Petitioner was extremely upset and immediately contacted Human Resources Manager Roberta Chaildin to start an investigation in regard to Licker's alleged behavior. Phillips and Chaildin spoke with Petitioner and Licker, individually, regarding Petitioner's claims. When questioned regarding the concert ticket, Licker explained that he had been looking to sell an extra ticket that he had. Licker advised Phillips and Chaildin that Petitioner had taken his offer to sell her the extra ticket "out of context," when she assumed that he was asking her to the concert on a date. Licker specified that he had asked Petitioner if she wanted to buy his extra ticket and "tag along" with him and his friends to the concert. Licker also offered his extra ticket to other people besides Petitioner. After speaking with Petitioner and Licker, Phillips and Chaildin determined that they were dealing with a "he-said- she-said situation and a misunderstanding." "He said, I was trying to sell the ticket or give it away. She said, he had asked me out on a date to a concert." Phillips and Chaildin determined that this was not a case of "sexual harassment" by Licker. They did, however, warn Licker that as a supervisor, he had to be "extremely careful" in how he spoke to his subordinate employees. Phillips and Chaildin advised Petitioner that they had investigated her claim and concluded that there was no evidence of sexual harassment. They encouraged her, however, to file a report if she continued to have issues with Licker. Over five months passed without a complaint or incident. Then on July 11, 2007, Licker verbally counseled Petitioner regarding her having accumulated nine tardy appearances ("tardies") at work since January 1, 2007. In speaking with Petitioner, Licker wanted to ensure that Petitioner understood that she needed to be on time in the future, as she had exceeded the number of tardies deemed acceptable by Respondent. To ensure that nothing said during the verbal counseling session was misconstrued by Petitioner, Licker had another supervisor, Boyd Wallace, serve as a witness. The tardies cited in Licker's verbal counseling to Petitioner were unrelated to instances when he would excuse her from work due to slower volume in the MRI department. On August 21, 2007, Licker observed Petitioner on the telephone being advised by security that she had parked in a "no parking" zone. During the conversation, Petitioner became agitated. Licker documented and filed the incident. Phillips personally addressed this incident with Petitioner. On October 10, 2007, the MRI department was working an already full schedule when Licker had to add a patient to the schedule due to an emergency situation. Petitioner objected to Licker adding another patient to the day and became withdrawn and resentful. Licker instructed Petitioner that she needed to change her attitude and become more cooperative. The evidence is not persuasive that Licker assigned Petitioner "menial tasks" after she complained about his having offered her the concert tickets in February 2007. In October 2007, Gallacher, Phillips and Chaildin met Petitioner and issued her a Decision Day disciplinary letter. A "Decision Day" meeting and letter is a management tool in which the employee is given a paid day off to contemplate whether they wish to remain an employee of Respondent. This resulted from Respondent's concerns regarding her "interpersonal skills." This was an issue that had been continuously addressed by Licker and other supervisors or managers at Respondent. The incident which prompted the progressive disciplinary action involved Debbie York, a relatively new employee who resigned from the MRI department, claiming that Petitioner and her interactions with other employees and with Licker was the reason for her leaving. During the Decision Day meeting, Petitioner stated that she was the "victim" and brought up the previous incidents of allegedly being sexually harassed. Petitioner was reminded that she had not complained of any other instances of alleged sexual harassment since she complained of Licker's offering her concert tickets in February 2007 and that the matter was investigated and resolved. From the point of view of management, the Decision Day meeting was intended to address Petitioner's on-going issues with her co-workers and her supervisor. However, Petitioner did not bring up any new incidents of alleged sexual harassment by Licker during the Decision Day meeting. Following the meeting, Petitioner took her Decision Day letter and returned to work. The Decision Day letter called for the creation of an Action Plan, which Respondent uses to help a struggling employee "become invested with the organization and with [his or her] team." Thereafter, Petitioner met with Gallacher to discuss what should be included in her Action Plan. On November 7, 2007, an Action Plan was drafted and signed. It included a number of initiatives designed to assist Petitioner in being "re[-]engaged" with the MRI department. Despite being placed on an Action Plan, Petitioner continued to have issues with Licker being her supervisor. On November 20, 2007, Licker verbally counseled Petitioner for her failure to discuss changes in her weekly schedule with him. Licker specifically identified Petitioner's "communication skills" as a continuing issue. On December 19, 2007, Petitioner was suspended without pay for two days for stating that Licker was being an "asshole," or something to that effect, in front of a co-worker. Petitioner accepted responsibility for her comment. Along with her suspension, Petitioner was also issued a written warning stated in pertinent part, "Upon your return [from suspension], you will be expected to demonstrate a high level of interpersonal skills towards your co-workers, management and this organization and work on completion of your Action Plan items. Any reports of less than acceptable behavior or performance or deviation from a Diagnostic Imaging or PMC policy or procedure will result in immediate termination." As a result of the written warning, Petitioner also lost 50 percent of her annual merit increase. In January 2008, management considered that the MRI department was still very "dysfunctional." Scott Hazelbaker, the new executive director of Diagnostics/Cardiovascular, met with all of the MRI employees as a group to discuss his "expectations of working together as a team." Hazelbaker also discerned that Licker lacked leadership skills to be an effective supervisor. In fact, none of the MRI employees had much respect for Licker's management style. On April 10, 2008, Hazelbaker, Gallacher, and Chaildin met with Petitioner to discuss her progress under the Action Plan. During the meeting, Hazelbaker reviewed Petitioner's history toward Respondent, explaining that her negative attitude could not be tolerated. Specifically, her negativity, failure to be a team player, and refusal to embrace or become engaged in Respondent's culture were detrimentally affecting the work of MRI as a whole. Hazelbaker continued by advising Respondent that as a result of her "track record," she could either resign from her employment or be terminated. Petitioner was advised that if she resigned, Respondent would pay her for two weeks in lieu of having her work through her notice period, pay her the balance of her personal leave bank, extend her health benefits for two weeks so that she could fill her prescriptions, and even designate her eligible for rehire in its system. At the end of the meeting, Petitioner tendered her resignation notice to Respondent. At no time during the meeting did Petitioner ask to leave the room or make a call in order to seek advice or legal counsel. Further, at no time during the meeting did Petitioner raise her past issues regarding Licker and the alleged sexual harassment she suffered. The evidence is persuasive that Licker did not influence the decision to terminate Petitioner. He had not asked for her to be terminated. In August 2009, more than one year after Petitioner resigned, Respondent received a complaint regarding Licker from then-X-Ray Tech Dana Keach, who claimed that Licker made sexually suggestive comments to her. Following an investigation, Licker was terminated, effective September 24, 2009, for "communication unsuitability between care partners." It does not appear that Licker was terminated for engaging in sexual harassment. The evidence is not persuasive that during the time he was employed by Respondent that Licker had inappropriate discussions in the workplace on numerous occasions in front of both male and female employees; nor that Licker would also discuss pornography in the workplace.
Recommendation Based upon the above Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner, Lesa Burkavage's, claims of unlawful sexual harassment and retaliation against Respondent, Parrish Medical Center. DONE AND ENTERED this 19th day of July, 2010, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 2010.
The Issue Whether Respondent Eastern Florida State College (EFSC) engaged in discriminatory employment practices and retaliation, in violation of the Florida Civil Rights Act (FCRA), as alleged in the Petition for Relief; and, if so, the appropriate penalty.
Findings Of Fact Ms. Garrett is a 53-year-old African American woman. EFSC is a public college in Brevard County, Florida. For the time period relevant to this matter, EFSC is, and has been, her employer. On July 9, 2018, Darla Ferguson informed Ms. Garrett that EFSC eliminated her position as e-Learning Coordinator. EFSC did not fill Ms. Garrett’s position in the e-Learning department; rather, the prior job duties were assigned to other members in the e-Learning department. After eliminating the position of e-Learning Coordinator, EFSC offered Ms. Garrett the position of Coordinator of the Office of Undergraduate Research (OUR). The OUR department supports and promotes research opportunities among undergraduate research students through EFSC’s four campuses. Ms. Garrett accepted EFSC’s offer, and Ms. Garrett became EFSC’s first employee to hold the position as Coordinator of OUR. In lieu of offering Ms. Garrett the position of Coordinator of OUR, EFSC could have laid off Ms. Garrett following the elimination of her position as e-Learning Coordinator. However, rather than laying her off, EFSC found a new position for Ms. Garrett. Following her transfer to the position as Coordinator of OUR, Ms. Garrett’s salary and benefits remained unchanged from her prior position as e-Learning Coordinator. On July 10, 2018, Ms. Garrett met with Dr. Sandra Handfield, Scott Herber, and Dr. Ashley Spring to discuss Ms. Garrett’s new position as Coordinator of OUR. At that meeting, Dr. Handfield—who was Ms. Garrett’s new supervisor—informed Ms. Garrett that Dr. Spring and Mr. Herber were the founders of OUR. Prior to Ms. Garrett’s arrival as Coordinator of OUR, Dr. Spring and Mr. Herber, who were full-time faculty members, oversaw the OUR program. Dr. Handfield also informed Ms. Garrett that should she have any questions regarding her position as Coordinator of OUR, she should consult with Dr. Spring and Mr. Herber. As of the date of the final hearing, Ms. Garrett remained employed by EFSC as the Coordinator of OUR, and continues to receive the same salary and benefits that she received when she was the e-Learning Coordinator. Allegations of Adverse Employment Action EFSC originally intended for the Coordinator of OUR to be a Director, and possess a doctorate degree. However, EFSC later changed this position to Coordinator, which did not require a doctorate degree, and which had a lower salary. Ms. Garrett never applied for the Director of OUR position, and she does not have a doctorate degree. Ms. Garrett testified concerning her belief for the reason that EFSC transferred her to the Coordinator of OUR position, stating: I believe they did that because the intent was to put me in a position that was beyond my reach so that when I had issues and problems, they could use that and tie it with this position in order to say that I could not do the job. On April 12, 2019, Ms. Garrett received a six-month performance evaluation covering her first six months in her position as Coordinator of OUR. Dr. Handfield provided the performance evaluation approximately four months after the performance period ended. The performance evaluation indicated that Ms. Garrett was deficient in the areas of teamwork, valuing differences, and communication. Following the performance evaluation, Ms. Garrett did not lose any pay or benefits, and nothing adverse happened to Ms. Garrett as a result of the performance evaluation. Ms. Garrett testified that she believed Dr. Handfield gave her that evaluation “as a form of retaliation[,]” but not on the basis of her race, age, or gender. She further testified as follows: Q. Okay. But just to be clear, not gender, age, or race. You think it’s retaliation, what she did, correct? A. Correct. Q. Okay. And what was she retaliating against you for in your view or what facts do you have that it was for retaliation? A. I believe it was retaliation based on the input from the faculty members, based on the interactions we had during the actual performance review period, which would have been July 9th, 2018, until January 9th, 2019. Q. So based on the interaction you had with Dr. Handfield, Dr. Spring and Mr. Herber for the six months before that; is that what you’re saying? A. Yes In January 2019, Ms. Garrett requested that she use Canvas shell computer software to enable her to build an orientation outline. EFSC denied this request, because it would not generate money. Allegations of Comparator Ms. Garrett identified Justin Looney, a 38-year-old white male, as a comparator in support of her discrimination claim.1 Ms. Garrett’s testimony was that Mr. Looney was an EFSC employee working as an Academic Services Coordinator at EFSC’s Patrick Air Force Base campus; upon the closing of that campus, EFSC eliminated Mr. Looney’s position and, similarly to Ms. Garrett, transferred him to a newly-created position in which he received the same salary and benefits. 1 At the final hearing, Ms. Garrett also mentioned Marian Sheltman as a possible comparator, stating that she was a white female. However, Ms. Garrett failed to introduce any additional facts or evidence concerning Ms. Sheltman’s status or to explain how the undersigned could consider Ms. Sheltman as a valid comparator. The undersigned finds that Ms. Garrett failed to establish Ms. Sheltman as a comparator in this matter. Ms. Garrett contends that EFSC treated Mr. Looney differently, during his transfer, in that EFSC provided Mr. Looney more notice time between the elimination of his prior position and the transfer to his new position. Ms. Garrett also contends that EFSC treated Mr. Looney differently than her because Mr. Looney was Dr. Handfield’s son-in-law. Allegations of Hostile Work Environment Ms. Garrett testified that at the July 10, 2018, meeting, Dr. Spring commented about the uncleanliness of the OUR office, and recommended that Ms. Garrett obtain a broom and dustpan to keep the office clean. Ms. Garrett also testified that she declined to assist Dr. Spring in hanging posters on the wall of the OUR office. Ms. Garrett also testified that Dr. Spring noticed that the OUR signage was covered up on the outside of the building, and asked Ms. Garrett to correct this. Ms. Garrett testified that in subsequent meetings with Dr. Handfield, she “shared [her] concerns regarding the work environment[,]” and stated that she did not feel comfortable with the things Dr. Spring and Mr. Herber asked of her because these things “were in violation of college policy.” Ms. Garrett testified that Dr. Spring micromanaged her role as the Coordinator of OUR; for example, Dr. Spring continued to process online student research forms, and coordinated the Fall 2018 OUR board meeting. Ms. Garrett also testified that Dr. Spring opened the OUR online student forms too early, which prevented Ms. Garrett from matching faculty mentors with student applicants.2 Ms. Garrett also testified that Dr. Spring made decisions concerning the OUR without consulting with her. Ms. Garrett testified that Dr. Spring would send her e-mails asking if Ms. Garrett had completed the work requested of her. 2 Ms. Garrett also testified that Mr. Herber was not involved in micromanaging her role as the Coordinator of OUR. Ms. Garrett testified that Dr. Spring told Ms. Garrett what she should be doing, and would become vocal with her dissatisfaction of Ms. Garrett’s job performance. Ms. Garrett testified that she did not know why Dr. Spring engaged in any of these actions. After a November 2018 meeting with Dr. Spring, Ms. Garrett testified that her work atmosphere became “more tense … in terms of Dr. Spring and Mr. Herber starting to make comments about allegations about my work.” She further testified that after this meeting, Dr. Handfield “started issuing directives[,]” such as requiring Ms. Garrett to first ask Dr. Spring and Mr. Herber for input prior going to other EFSC campuses to host information tables. Ms. Garrett claimed that she was subjected to a hostile work environment in which “in every meeting that I planned and hosted, Dr. Spring and Mr. Herber would say disparaging comments during the meeting.” For example, “[t]hey would talk across me and I did not reply.” Although Dr. Handfield was Ms. Garrett’s supervisor, Ms. Garrett testified that Dr. Handfield openly discussed supervision of the OUR with Dr. Spring and Mr. Herber. Findings of Ultimate Fact Ms. Garrett presented no persuasive action that EFSC’s decisions concerning, or actions affecting, her, directly or indirectly, were motivated in any way by race-based, sex-based, or age-based discriminatory animus. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race, sex, or age discrimination. Ms. Garrett presented no persuasive evidence that EFSC’s actions subjected her to harassment based on race, sex, or age. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race, sex, or age harassment. Ms. Garrett presented no persuasive evidence that EFSC discriminated against her because she opposed an unlawful employment practice, or because she made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the FCRA. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful retaliation. Ms. Garrett presented no persuasive evidence that EFSC’s actions were sufficiently severe or persuasive to alter the terms and conditions of her employment to create a hostile work environment. There is no competent, persuasive evidence in the record upon which the undersigned could make a finding of hostile work environment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Mary F. Garrett’s Petition for Relief. DONE AND ENTERED this 12th day of November, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER 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 12th day of November, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Mary F. Garrett Apartment 2508 2741 Caribbean Isle Boulevard Melbourne, Florida 32935 (eServed) Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether Respondent Department of Corrections (Respondent or the Department) constructively discharged Petitioner Lou Armentrout (Petitioner) in violation of the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by subjecting Petitioner to a hostile work environment because of Petitioner’s race, age, or gender.
Findings Of Fact Petitioner is an Asian female born February 25, 1970. Petitioner speaks Chinese and English. Petitioner speaks with a Chinese accent. She does not speak or understand Spanish. Respondent is a state agency responsible for “the incarceration and supervision of offenders through the application of work, programs, and services." See § 20.315(1), Fla. Stat. At all material times, Respondent employed more than 15 persons. Petitioner was employed by Respondent at its Lake Correctional Institution (Institution) from September 16, 2011, until October 12, 2012, as a Senior Registered Nursing Supervisor. Petitioner's duties as a Senior Registered Nursing Supervisor included the supervision of approximately 80 nurses at the Institution. While employed at the Institution, Petitioner worked directly under the supervision of the Institution's Chief Health Officer. When Petitioner was hired, the Chief Health Officer was Dr. Moreno. Dr. Moreno’s annual performance evaluation of Petitioner for the period ending February 29, 2012, gave Petitioner an overall 3.51 performance rating score, indicating that Petitioner “consistently meets and may occasionally exceed the performance expectation of the position.” Petitioner never received an evaluation score below a 3, indicating that the employee at least “meets expectation,” on any written evaluation of her performance while she was employed by the Institution. After Dr. Moreno resigned in April or May 2012, Dr. Virginia Mesa was hired as Chief Health Officer of the Institution in May of 2012. Dr. Mesa is Hispanic. Dr. Mesa’s supervision was often harsh. Dr. Mesa had a bad temper and would raise her voice and reprimand employees in the presence of others, including inmates. Dr. Mesa described her supervisory style as the “team approach.” She advised that, instead of meeting with employees individually, she would meet them as a “team.” She would meet every morning with the nurses in the medical unit and once a week in the psych unit. Petitioner attended these meetings. During the meetings, Dr. Mesa would often address the group, many of whom were Hispanic, in Spanish instead of English. Many of the discussions were regarding Dr. Mesa’s medical direction and discussion about patients’ cases. Dr. Mesa knew that Petitioner did not speak Spanish. On more than one occasion, Petitioner asked Dr. Mesa what was being said, and Dr. Mesa would reply, “Ask one of the nurses.” Although Dr. Mesa never specifically mentioned Petitioner’s race, age, or gender, she treated Petitioner harshly and made fun of Petitioner’s Asian accent behind her back. On one occasion, while Petitioner was not present, Dr. Mesa made a joke of Petitioner’s pronunciation of a word by substituting Petitioner’s mispronunciation with a vulgar term, repeating the word a number of times in the presence of other employees and laughing with those employees while poking fun at Petitioner. While not mentioning Petitioner’s race, it is evident that the joke was designed to ridicule Petitioner on account of Petitioner’s race.2/ Petitioner was made aware by others that Dr. Mesa belittled her behind her back. Dr. Mesa’s contempt for Petitioner was overt. Dr. Mesa would raise her voice and glare at her, and challenge Petitioner’s competence as a supervisor and medical professional in front of others in a bullying way. Dr. Mesa would humiliate Petitioner by testing Petitioner’s bedside nursing skills in front of other nurses and inmates, knowing that Petitioner had not been working as a nurse for a number of years, primarily because Petitioner had been working in an administrative position. Feeling as though her authority was being undermined by Dr. Mesa, and wanting to improve her business relationship and obtain some direction from Dr. Mesa, Petitioner asked for private meetings with Dr. Mesa on numerous occasions. Dr. Mesa refused. In addition, despite Petitioner’s continued requests that she use English, Dr. Mesa continued to address Hispanic staff in Spanish during morning staff meetings. Dr. Mesa did, however, meet privately with Gary Assante, a white male, who, although not licensed in a medical profession, was an administrator with the Institution with lateral authority to that of Petitioner. Instead of giving directions directly to Petitioner, Dr. Mesa would give directions through Mr. Assante to Petitioner. Some of the directions were of a medical nature. Dr. Mesa would also use nurses supervised by Petitioner to deliver directions to Petitioner. Dr. Mesa’s tactics undermined Petitioner’s supervisory authority. Petitioner became frustrated because Dr. Mesa’s tactics were interfering with Petitioner’s ability to do her job. Petitioner complained to the assistant warden of the Institution, Assistant Warden Young, of Dr. Mesa’s intimidation and behavior. In particular, Petitioner complained that, in addition to her intimidation of Petitioner, Dr. Mesa threatened nursing staff members with termination on several occasions. Assistant Warden Young set up a meeting between Petitioner, Mr. Assante, and Dr. Mesa to discuss the issues in July 2012. During the meeting, Dr. Mesa stated that she is paid too much to listen to the allegations. Despite Petitioner’s complaints, Dr. Mesa’s intimidating behavior continued. On August 22, 2012, without any prior warning of disciplinary action, Dr. Mesa brought Michelle Hanson to Petitioner’s office. Michelle Hanson was the Regional Nursing Director of the Department’s Region 3 Office, which included the Institution. During the meeting, Dr. Mesa questioned Petitioner’s competency as a nurse and told Petitioner that she wanted to demote her. Petitioner told Dr. Mesa that she did not want a demotion and asked Dr. Mesa to specify the problems with Petitioner’s performance. Dr. Mesa never did. In fact, there is no evidence of verbal counseling or reprimands from Dr. Mesa in Petitioner’s personnel file. Dr. Mesa never provided a written evaluation of Petitioner’s performance while Petitioner was employed by the Institution. Near the end of August or early September, Petitioner verbally complained to the Institution’s warden, Warden Jennifer Folsom, about Dr. Mesa’s behavior. Dr. Mesa’s intimidation continued. On September 16, 2012, Petitioner provided Warden Folsom with a letter explaining how Dr. Mesa’s “workplace bullying” was adversely affecting Petitioner and the workplace environment, asking “higher level management for assistance and to make a reasonable working environment,” and advising that Dr. Mesa had asked Petitioner to take a demotion. Petitioner’s letter explained, in part: I strongly feel workplace bullying is linked to a host of physical, psychological, organizational and social costs. Stress is the most predominant health effect associated with bullying in the workplace. My experience with workplace bullying is developed poor mental health and poor physical health, inability to be productive and loss of memory and fear of making key decisions. Recently, I also turn to other organizations for job opportunities and I have been asked by Dr. Mesa and Mr. Assante where do I go for interview and how long will this last by asking for days and hours for interviewing. My fearful of retaliation even made me so scared to ask for job interviewing. Petitioner met with Warden Folsom the next day, September 17, 2012. During the meeting, Warden Folsom assured Petitioner that Dr. Mesa did not have the authority to demote her, and gave Petitioner someone to contact in Employee Relations regarding her concerns. Warden Folsom followed up the meeting with a letter dated September 17, 2012, stating: It has come to my attention that you have alleged harassment by your supervisor. You are being provided the name and contact number for the Intake Officer at the Regional Service Center. Norma Johnson (407)521-2526 ext. 150 Please be aware the Department does not tolerate inappropriate behavior in the workplace. Your allegations will be looked into and any appropriate action taken. The letter was signed by Warden Folsom and a witness, as well as by Petitioner, acknowledging receipt. It was copied to Norma Johnson, Employee Relations. After that, Petitioner spoke a couple of times by telephone with Norma Johnson. She told her that Dr. Mesa was continuing to harass and bully her in the workplace, and that Dr. Mesa was causing a hostile work environment. Despite Petitioner’s complaints, nothing changed. It is apparent that Petitioner’s complaints were ignored. In fact, Dr. Mesa claimed that she never heard about complaints that she treated individuals that are Hispanic differently than she treated Petitioner, and could not recall if the Warden ever approached her regarding Petitioner’s complaints. Incredibly, Dr. Mesa testified that she was not made aware of Petitioner’s complaint that she was speaking Spanish and Petitioner could not understand until after Petitioner left her employment with the Institution. After Petitioner’s meeting with the Warden and conversations with Norma Johnson, Dr. Mesa continued to speak Spanish at meetings with staff and Petitioner could not understand. Dr. Mesa continued to direct Petitioner through other employees. And Dr. Mesa continued to raise her voice and challenge Petitioner’s competence in front of other employees. The evidence supports Petitioner’s claim that the way she was treated was discrimination, based upon Petitioner’s race. The evidence does not, however, support Petitioner’s claims that she was discriminated against based upon Petitioner’s age or gender. The harsh treatment Petitioner received, based upon her race, undermined Petitioner’s supervisory authority and interfered with Petitioner’s ability to do her job. The discrimination was overt, continuous, and created a hostile work environment that was intolerable. Petitioner, in essence, was forced to leave the employ of the Institution. Approximately two weeks later, on September 28th or 29th, 2012, after deciding that she could no longer endure the situation, Petitioner sent the following letter to Dr. Mesa and Warden Folsom: Dear DOC: Please accept this letter as my formal notice of resignation from Senior Registered Nurse Supervisor effective 10/12/12. This is the most difficult decision I have ever made throughout my career; however, my time here at Lake Correctional Institution has been some of the most rewarding and memorable years of my professional life. I sincerely appreciate the opportunities that I have been given to contribute to the organization’s success, while growing professionally and personally. Sincerely, Lou Armentrout Cc Human Resource: Please leave all my leave times (annual and sick leaves) in people first until receiving notification from me. Thank you for your assistance. In the year following Petitioner’s resignation, the health care services were privatized and provided by Corizon Health, Inc. Most employees kept their jobs that they held prior to privatization. Had Petitioner remained with the Institution, it is likely that she would have transitioned over to an equivalent position with Corizon Health, Inc. After leaving the Institution on October 12, 2012, Petitioner obtained a job with the Department of Health on October 26, 2012. Petitioner suffered a loss of pay in the amount of $2,222.40 during the period of her unemployment between October 12, 2012, and October 26, 2012. Petitioner’s pay at her new job with the Department of Health is $299.32 less per two-week pay period than her job at the Institution. $299.32 per two-week pay period equals $648.53 less each month ($299.32 X 26 weeks = $7,782.32/year ÷ 12 months = $648.53/month ÷ 30 = approximately $21.62/day). The time period between the date Petitioner began her new job with the Department of Health on October 26, 2012, and the final hearing held January 16, 2015, equals 26 months and 21 days. The loss in pay that Petitioner experienced in that time period totals $17,315.80 ((26 month x $648.53/month) + ($21.62/day x 21 days) = $17,315.80). The total loss in pay ($2,222.40 + $17,315.80) that Petitioner experienced from her resignation until the final hearing is $19,538.20. Petitioner also drives 92 miles further each work day to her new position with the Department of Health. The extra cost that Petitioner incurs to get to her new job, calculated at the State rate of $0.445 per mile, equals $40.94 per day. Taking into account 260 work days per year (5 work days per week), from beginning of Petitioner’s new job through the date of the hearing equals a total of $23,663.32 (578 days x $40.94/day), without subtracting State holidays or vacation days. Subtracting nine State holidays and two weeks for vacation each year results in a total of $21,943.84 to reimburse Petitioner for the extra miles driven each work day through the day of the final hearing (536 days x $40.94/day).
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 the Department constructively discharged Petitioner Lou Armentrout by subjecting her to a hostile work environment on account of Petitioner’s race in violation of the Act; Ordering the Department to pay Petitioner $19,538.20 in back pay through the date of the final hearing, January 16, 2015, plus $21.62 per diem thereafter through the date of the Commission's final order, with interest accruing on the total amount at the applicable statutory rate from the date of the Commission's final order; Ordering the Department to pay Petitioner $23,663.32, as an additional aspect of back pay, for extra daily travel expenses incurred to get to and from her new job through the date of the final hearing, plus $40.94 for each work day thereafter that Petitioner drives to her new job through the date of the Commission's final order, with interest accruing on the total amount at the applicable statutory rate from the date of the Commission's final order; Ordering the Department to make arrangements to reinstate Petitioner to an equivalent position with Corizon Health, Inc., for service at the Institution; Prohibiting any future acts of discrimination by the Department; and Awarding Petitioner her costs incurred in this case. DONE AND ENTERED this 29th day of April, 2015, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2015.
The Issue The issue is whether Petitioner has been the subject of an unlawful employment practice pursuant to Chapter 760, Florida Statutes.
Findings Of Fact Respondent is a municipal corporation under the laws of the State of Florida. It provides many public services to its citizens, including the provision of beautification on city rights-of-way and parks. The City's Public Works Department operates the Crestview Beautification Crew (CBC) that provides maintenance for public areas. Mr. McLaughlin is an African-American. He applied for a position as an equipment operator with the CBC in May 2007. The Assistant Director of Public Works, Wayne Steele, a Caucasian man, interviewed Mr. McLaughlin. Mr. Steele also made inquiry and learned that Mr. McLaughlin had some negative experiences with his driver's license. Mr. Steele also learned that Mr. McLaughlin had attendance and attitude problems at his previous place of employment. Mr. Steele believed that Mr. McLaughlin would not be a good hire and recommended that he not be employed. Despite the recommendation, General Cox, a Caucasian man and the City of Crestview Director of Public Works, decided to hire Mr. McLaughlin. Mr. Cox believed Mr. McLaughlin should be given a second chance. Mr. McLaughlin commenced employment with the City's CBC on June 20, 2007. He was initially hired on a probationary basis for 90 days just like all City employees. During the probationary period an employee's supervisor is given the opportunity to observe his or her performance. If the performance is deficient, the supervisor may terminate the employee. An employee terminated during a probationary period has no right to contest the action at a hearing. Mr. McLaughlin was provided a copy of the City's personnel manual and signed a statement affirming that he understood the conditions of his probationary employment. Because of his history of attendance problems at his previous job, Mr. McLaughlin was expressly advised by Mr. Vance, his supervisor, that tardiness would not be tolerated. Mr. McLaughlin was hired as an equipment operator and as such mowed grass, operated a weed eater, and engaged in basic landscaping tasks. At daily meetings held at 7:00 a.m., crew assignments in the CBC are made. It is important for all CBC members to be present at these meetings so that everyone is aware of their daily mission. Attendance is critical during these meetings. If employees are absent the daily routine is disrupted and substitutions must be made. Mr. McLaughlin was tardy on a number of occasions. This tardiness amounted to simply arriving a few minutes late for the crew meeting. On at least two occasions, he called in saying that he could not attend work as scheduled. Mr. McLaughlin also had problems performing his duties. He was rough on his assigned equipment which resulted in a damaged mower deck, broken belts, and broken wheels. The damage occurred because he mowed over objects and struck objects with his mower that he should have bypassed. Mr. McLaughlin presented no evidence that another similarly situated person of a different race was treated differently from him. The only asserted evidence of discrimination came from his conversations with a co-equal worker and friend, and the language they used with one another indicated that any racial slurs made, if they were in fact made, were made as permissible jests. Mr. McLaughlin never complained of racial bias to his superiors. A crew leader with whom he worked, Kenneth Martin, an African-American, stated that he never heard any racial remarks made in the presence of Mr. McLaughlin and noted that Mr. McLaughlin never complained to him about any real or imagined discrimination. All supervisors in Mr. McLaughlin's chain of command agreed with the decision to terminate him on August 8, 2008. The decision was made because of Mr. McLaughlin's pattern of tardiness and because of his poor performance while operating the equipment. The record is void of any evidence of racial discrimination against Mr. McLaughlin by any employee of the City.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief filed by Patrick McLaughlin. DONE AND ENTERED this 4th day of March, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 4th day of March, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jason Eric Vail, Esquire Allen, Norton & Blue 906 North Monroe Street, Suite 100 Tallahassee, Florida 32303 Patrick McLaughlin 748 Amos Street Crestview, Florida 32539 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether petitioner suffered sexual harassment for which respondent is answerable, or whether, on account of her sex, respondent discriminated against her by paying her unequal wages, or whether, in terminating her employment, respondent retaliated against her on account of statutorily protected activity?
Findings Of Fact In April, of 1982, the year after her 19-year marriage to a Mr. Powell, whose surname she originally kept, came to an end, petitioner Gloria Patricia Hord, as she has been known since her remarriage in August of 1984, began work for respondent Bell Aerospace Textron, which has since become the Textron Marine Systems Division of Textron, Inc. (Textron). A defense contractor that builds landing craft air cushion vehicles and trains Navy personnel to operate them, Textron employs perhaps 130 persons in Panama City alone. Textron has a written policy against sexual harassment by or of its employees. As Textron's director of logistics at its Panama City facility, George Gust Alepakos, told the petitioner she was hired on April 3, 1982. Robert L. Ormsby and Albert Eugene "Bud" Small, the supervisor of inventory control who, as her immediate supervisor, shared an office with her when she began, had already interviewed her. Bell hired her as a clerk, general class III in labor grade N-6. The duties of general class III clerks are: Under general supervision, performs a variety of clerical work, where there is individual responsibility for the accuracy and completeness of important records and where decisions within the limits of policies or rules are required. Performs duties such as or similar to the following: supervises and works with a small group of clerks; sets up and maintains record systems of a widely varying nature, including secret or confidential material or information; prepares and issues reports as required; contacts other personnel as necessary in maintaining accurate records; reads reports, correspondence, publications, etc., and abstracts therefrom information pertaining to a particular subject; may perform miscellaneous duties relate dot office work, such as filing, operating various machines, etc. (sic). Respondent's Exhibit No. 23. According to Bell's job description, "demonstrated supervisory ability", is a desirable qualification for general class III clerks. In addition to processing receipts and keeping inventory logs, Patty Powell, as her co-workers then called her, typed and did other secretarial chores for Textron. She worked in a trailer which housed other offices and other workers, including Carol Bjorgan, Robert L. Ormsby, Monica Mitchell, Mike Pate, Mike Smith, Betty Brandon, and George Alepakos, to whom Mr. Small reported. Mr. Alepakos was in the adjoining office. Witnesses described Mr. Alepakos as personable, fun loving, happy go lucky, warm, friendly, outgoing, talkative, loud, sometimes grouchy, displaying a temper at times without being a screamer, dedicated, conscientious, a hard worker and a firm manager. He looked at the hearing to be in his sixties. The time Ms. Powell told him he reminded her of her grandfather, he said she had hurt his feelings. One day as Ms. Powell, then 36 years old, was typing, Mr. Alepakos stood behind her and placed his hands on her shoulders, watching her finish a memorandum. Mr. Alepakos invited Ms. Powell to lunch on several occasions. He regularly took employees in his group to lunch, both male and female, individually and in groups. Conversations at lunch were "business-related" and "very professional" at first. The third or fourth time they ate lunch together, however, Mr. Alepakos professed his love for Ms. Powell. Thereafter, when Mr. Small left the office, Mr. Alepakos would stop in. Within a week of declaring himself at lunch, he said, "I really mean it." He told her she would grow to love him, would learn to, and began leaving notes for her, typically like the one that said, "I love you," signed "George ." She "tried to laugh it off," questioning his sincerity. He was married, and she had a boyfriend. Beginning in the summer of 1982, he asked her almost daily for lunch. He telephoned to inquire, "Have I told you today that I love you?" Sometimes she went to lunch with him during this period, but more often she declined. He promised to behave if she accepted his invitations for lunch, but, in Ms. Powell's view, he welshed on these promises. She had mixed feelings about George Alepakos. She discussed with Carol Bjorgan the possibility of a relationship with him. By this time, her boyfriend Chip McDill had left her in the lurch. It would be nice to have someone older to take care of her, she mused aloud; and she felt she would be better off materially. Never once did she complain to Carol Bjorgan about Mr. Alepakos' romantic interest in her. She left him notes. One note, signed "Patty" and written on notepaper depicting two smiling bees among azalea blossoms, read, "Have a wonderful vacation, then hurry back." Respondent's Exhibit No. 2. One night she and Carol were drinking during "happy hour." Saying she wanted to talk to George, she telephoned his home, but hung up when his wife answered. She sometimes seemed to boast about Mr. Alepakos' taking her to lunch, asking, "Guess who I'm going to lunch with?" At Peddlers Alley one night, Mlles. Hord and Bjorgan met Mr. Alepakos for drinks. When they arrived, Ms. Hord playfully pretended to sit in Mr. Alepakos' lap, and said to Ms. Bjorgan, "We can handle it from here." In December of 1982, both Mr. Alepakos and Ms. Powell attended a party at a bar or restaurant. Mr. Alepakos "didn't think much" of her going out with the 23-year old man who escorted her to the party, danced with her, kissed her while they were on the dance floor, and, later in the evening, wrestled with her in the back seat of an automobile parked outside the establishment. He felt that "it looked bad for the company." The next morning, he called her into his office, told her she had "fallen off [her] pedestal," and that somebody had said she had behaved like a slut. Over the Christmas holidays she was in the hospital, and afterwards visited her mother in Atlanta. Mr. Alepakos called her there at the number she had given him, to ask about her health and to learn when she was coming back to work. On her return she talked things over with Mr. Small, her immediate supervisor, although she never told him about Mr. Alepakos' touching her. He advised her to decline the luncheon invitations and avoid Mr. Alepakos as much as possible. He spoke to Mr. Ormsby about the matter, at her request. In deference to Ms. Powell, who asked that nobody say anything to Mr. Alepakos, Mr. Small spoke to Mr. Ormsby "off the record." At some point, Mr. Alepakos called on Ms. Powell at the apartment she had recently moved into at Panama City Beach. She had invited him. When he arrived he found her with her daughter and stayed only about 20 minutes. Eventually Patty Powell went herself to Mr. Ormsby, and Mr. Ormsby took the matter up with Clarence L. Forrest, then the vice-president in charge of Textron's Panama City operations. Messrs. Ormsby and Forrest decided to transfer Ms. Powell to a general secretarial and word processing assignment in "the training trailer." The transfer was "lateral" in the sense that neither Ms. Powell's official job description nor her labor grade changed. In her new situation, she was involved in the production of training manuals. Bell hired two other word processing clerks to assist in this effort, Diane Ansell and April Dawn Day. Ms. Powell had recommended both Ms. Ansell and Ms. Day. She helped train them when they began. Even after they had learned the ropes, she gave them work to do which she proofread afterwards. If she was out, Ms. Ansell would assume these duties. Ms. Powell wrote out evaluations for Ms. Ansell and Ms. Day, although she never signed them. She did once sign an overtime authorization form, but Mr. Forrest sent it back for Mr. Higgins' signature and resubmission. She assumed her new duties in February of 1983, but invitations to lunch and expressions of affection continued after the transfer. One afternoon, just after Ms. Powell left the office, Mr. Alepakos said to Diane Ansell, "I love that girl," referring to Ms. Powell. After she told Mr. Ormsby that Mr. Alepakos would not leave her be, Mr. Forrest instructed Mr. Alepakos to cease and desist from any activity involving Ms. Powell unrelated to professional requirements, and directed him to communicate with her, if at all, through third parties. During the ensuing eight or nine months, Mr. Alepakos avoided Ms. Powell entirely. He "went the other way around when he saw her coming." In the fall of 1983, however, they were both at an office party at the Long Glass. She grabbed his shirt and led him into another room, where she asked him why he had been avoiding her. According to a friend and co-worker, petitioner was not "an outward flirt," except when she drank. Encouraged by the evening's events, Mr. Alepakos resumed his attentions. He telephoned several times a day, unless he was angry, and they began lunching together again. At various times, she told him she was at the point of reconciliation with her ex-husband, that she was seeing a boyfriend, and that she was gay. But she accepted a good many of his luncheon invitations, which was enough to inspire him to several proposals of marriage. In November of 1983, Ms. Powell came to work early one morning and made her way in the still dark trailer to the word processing room. Suddenly Mr. Alepakos, whom she had not seen nor expected to be there, embraced her and tried to kiss her. When the lights came on, he said, "I'm sorry", and left. During this period, Ms. Powell worked under the immediate supervision of Frank Higgins, who left civilian employment with the Navy and began with Textron in August of 1983. In early December of that year, Ms. Powell spoke to Mr. Higgins about Mr. Alepakos. After a second conversation on the subject, on February 9, 1984, Mr. Higgins stated, in a "Memo For the Record": FOR BACKGROUND, PATTY IS AN EXTREMELY QUIET, SHY PERSON WITH A RATHER "FRAGILE" QUALITY. SHE IS A DEDICATED PROFESSIONAL IN HER APPROACH TO HER JOB. SHE HAS NEVER APPEARED TO PROJECT (AVERT OR OTHERWISE) HER SEXUALITY AT WORK, DRESSES CONSERVATIVELY - AN IDEAL FEMALE WORKER IN TERMS OF NOT BEING INVOLVED TO ANY EXTENT WITH HER MALE CO- WORKERS OTHER THEN PROFESSIONALLY. SHE HAS NOT AND PROFESSES NO[T] TO WANT TO DATE ANYONE FROM WORK. GEORGE IS APPARENTLY "LEANING" ON HER AT WORK TO THE POINT SHE'S BECOMING EMOTIONALLY FRAZZLED OVER IT. HE PROFESSES TO BE IN LOVE AND "WANTS HER." GEORGE IS INSANELY JEALOUS OF HER BEING SURROUNDED BY ALL THESE MEN AND TOLD HER THAT DAVE STULTS, BOB NISSLEY AND MYSELF ARE OR MAY WANT TO BE ROMANTICALLY INVOLVED. HE CALLS HER SEVERAL TIMES SOME DAYS, SOMETIMES ASKING HER TO COME TO HIS OFFICE WHERE "COMMENTS ARE MADE" TO HER. SHE IS AFRAID NOT TO GO OVER TO HIS OFFICE - APPARENTLY FEELS GEORGE IS A POWER BROKER AND IF SHE GETS HIM MAD, HE'LL TAKE IT OUT ON TRAINING BY NOT SUPPORTING OUR NEEDS. PATTY SAYS SHE HAS TRIED EVERY CONCEIVABLE APPROACH TO TELL GEORGE SHE IS NOT INTERESTED IN HIM AND HE'S ANNOYING HER & SHE WANTS IT STOPPED. YET HE REFUSES TO LEAVE HER ALONE. I TOLD HER THAT SHE NEEDS TO THREATEN HIM WITH HARASSMENT CHARGES & BE WILLING TO FOLLOW UP ON THEM TO THE BITTER END - IF GEO. KNEW SHE WAS SERIOUS AND HIS JOB WAS IN DANGER, I HOPE HE WOULD BE PRUDENT ENOUGH TO BACK AWAY. PATTY SEEMS RELUCTANT TO PRESS CHARGES FOR FEAR THAT SHE WILL END UP BEING FIRED AND PERCEIVED AS THE CAUSE OF THE PROBLEM. SHE FEELS CASEY WILL PROTECT GEORGE AND WOULD CONSIDER GEO. MORE IMPORTANT TO BELL THAN PATTY. IN PREVIOUS DISCUSSIONS WITH CASEY DATING BACK TO DECEMBER, I TOO SENSED THAT EITHER CASEY WASN'T BE[ING] OBJECTIVE OR FAIR IN HIS ASSESSMENT OF PATTY OR THAT POSSIBLY GEORGE HAD BEEN FEEDING CASEY LIES AND INNUENDO ABOUT PATTY'S POTENTIAL INVOLVEMENT WITH PERSONNEL IN TRAINING. THE APPARENT STRATEGY IS TO CAST DOUBTS ABOUT PATTY'S CHARACTER SUCH THAT IF HIS SITUATION EVER BOILED TO THE SURFACE HE COULD BLAME IT ON HER TO SAVE HIS JOB. I BELIEVE THERE IS ENOUGH INFO AVAILABLE TO HAVE GEO. REPRIMANDED OR FIRED OVER THIS. THERE ARE SEVERAL PEOPLE WHO HAVE SEEN OR HEARD GEO. MAKE APPROACHES TO HER WHO I'M SURE WOULD COME FORWARD TO SUPPORT PATTY'S POSITION. SINCE THE DISCUSSION WAS OFF THE RECORD I AGREED NOT TO APPROACH CASEY YET. I OFFERED TO SPEAK WITH GEO. BUT IF HE PERCEIVES ME AS A COMPETITOR FOR PATTY, HE OBVIOUSLY WOULD MISCONSTRUE MY INTENTIONS. I DO INTEND TO SPEAK TO LENNY MORGAN "OFF THE RECORD" NEXT WEEK IN NEW ORLEANS TO GAIN SOME ADDITIONAL INSIGHT IN HANDLING THIS ISSUE. Petitioner's Exhibit No. 1. In a second "Memo For The Record," Mr. Higgins reported discussing the situation with Mr. Morgan, and summarized the latter's advice. * * * LENNY'S BOTTOM LINE WAS AS I SUSPECTED - DON'T LEAVE IT SIMMERING TAKE FIRM ACTION. BRING IT TO CASEY'S ATTENTION. LENNY INDICATED HE WOULD BE GLAD TO COME OVER AND BECOME DIRECTLY INVOLVED IN SOLVING THIS. * * * Petitioner's Exhibit No. 2. Although Mr. Higgins never showed these memoranda to "Casey" Forrest, who only learned of them after the present proceedings began, he did mention the situation to Mr. Forrest, who indicated that he wondered whether there was a "problem on both sides," but agreed to speak to Mr. Alepakos. By the time Mr. Higgins left Panama City, in July of 1984, he thought the situation had been resolved. About this time, Ms. Powell told Mr. Alepakos she planned to remarry. He responded that he would be there, if it did not work out. He said he still loved her, and he did not stop asking her out, although, after she became Mrs. Hord, she consistently declined. He continued to declare his love. Mrs. Hord again complained, this time to B. L. Nissley, Textron's director of training documentation, on or about December 15, 1985. Her complaint notwithstanding, she sent Mr. Alepakos a poinsettia for Christmas. At some point, she left a note on his desk, saying "Missing you, P.H." By a memorandum dated January 29, 1985, Mr. Nissley asked Mr. Forrest for a formal investigation "to assure that this problem be resolved once and for all." Respondent's Exhibit No. 6. On January 31, 1985, Mr. Forrest interviewed Mrs. Hord in Mr. Ormsby's presence. She reported the frequent invitations to lunch and a suggestion by Mr. Alepakos that they take a vacation together, but said nothing about his touching her. Messrs. Forrest and Ormsby also interviewed Mr. Alepakos. They decided it might be well for a disinterested third party to investigate, and asked Textron's Mr. Morgan to come over from New Orleans for the purpose. Mr. Morgan interviewed Mrs. Hord for two and a half hours on February 10 or 11, 1985. In answer to his questions, Mrs. Hord said that Mr. Alepakos had not asked her for sexual favors, and had not behaved vulgarly, lewdly or indecently. Nor did she advert to the early morning incident in the trailer, which Mr. Alepakos admitted at hearing, while denying any attempt to kiss her. When Mr. Morgan asked her if Mr. Alepakos had ever touched her, or tried to kiss her or to force himself on her, she answered no. Mr. Morgan asked Mrs. Hord to name others who could support her claim of harassment. She gave him only one name, Ms. Ansell's. Mr. Morgan also interviewed George Alepakos at length, and asked him to name others who could support his assertions. Mr. Alepakos gave him some five names. After interviewing these people and Ms. Ansell, Mr. Morgan returned to New Orleans and stated his conclusions in a memorandum dated February 15, 1985. Mr. Forrest wrote Mr. Alepakos a memorandum advising him that his "conduct in the matter lacked professionalism and good judgement." Petitioner's Exhibit No. 6. He was "warned to confine ... communications and relationships with Mrs. G. Hord to a professional/business environment." Id. This February 25, 1985, memorandum raised "the possibility of termination of [Alepakos'] employment," id. in the event "the cited harassments reoccur[ed]." Id. But the phrase "cited harassments" was a reference to the February 15, 1985, memorandum, Respondent's Exhibit No. 6, in which Mr. Morgan stated: Since the evidence indicates that the relationship was two sided, I find it difficult to describe the activity of Mr. Alepakos as one of harassment. Respondent's Exhibit No. 6, p. 2. Mr. Forrest did not warn or reprimand Mrs. Hord because he felt a supervisor or manager had a different responsibility in matters of this kind than an employee under supervision. At no time, did Mr. Alepakos tell her off color stories, show her pornographic photographs, explicitly solicit sexual favors, or make obscene gestures to or from Mrs. Hord. It fell to Messrs. Ormsby and Nissley to relay the results of Mr. Morgan's investigation to Mrs. Hord. The three of them gathered in Mr. Nissley's office, and he furnished her a copy to read. She had gotten part way through when she exclaimed, "That's a lie. I never sent him flowers. I never left notes on his desk." She threw down the report, and left the office, despite Mr. Nissley's telling her to stay. She dismissed the February 15, 1985, memorandum as a "bunch of bullshit." Mr. Nissley spoke to her afterwards and told her that he would not tolerate vulgar outbursts in the future. She telephoned Mr. Morgan and complained to him about the result of the investigation. She told him she did not think the report was fair or that it reflected what had happened. She became upset and characterized the report as "bullshit." To this he replied, "Wait a minute. I'll answer any question you want to ask." But she hung up the telephone. On January 30, 1985, Mrs. Hord had asked to take a leave of absence. Her request approved, she began thirty days' leave soon after she learned the results of Mr. Morgan's investigation. Upon her return, Mr. Nissley told her about the results of her annual evaluation, and informed her she had been given a raise of $.20 per hour. The $.20 raise took effect March 16, 1985. With the raise, Mrs. Hord was paid $7.90 per hour, a dollar an hour more than Diane "Dee" Ansell was paid. And Ms. Ansell was paid more than April Dawn Day, the third word processing clerk who helped produce training materials for Navy personnel. Mrs. Hord requested a meeting with Mr. Forrest to discuss the raise, which brought her salary to the highest authorized for her position; it was the same amount as the raise the other two word processing clerks in the training program received. But, since she was paid more than they were, the raise represented a smaller percentage of increase, and she objected. On the morning of March 27, 1985, when Mrs. Hord met with Mr. Forrest, Messrs. Ormsby and Nissley were also present. She told them Bell could keep the raise. Mr. Forrest began to explain the mechanics of Bell's merit raise system, when Mrs. Hord interrupted, "It's a bunch of bullshit. You can do anything you want." As she started to leave, Mr. Forrest told her to stay, but she refused. At one point, she called her bosses "jackasses." According to Mr. Forrest's secretary, who was outside, she "had a wild look" as she slammed the door on her way out. Before they dispersed, Mr. Forrest and the others decided to terminate her employment, unless Mr. Morgan advised against it. Mr. Forrest thought her language "unbecoming a lady." He certainly would not have expected a woman to use such language, and it did not affect him in the same way as it would have, if a man had used the same language. On the other hand, he would not have expected any of Bell's Panama City employees to use language of this kind in such a setting. Mr. Forrest testified under oath that Mrs. Hord was not fired because he found her language the more offensive on account of her femininity. Apprised of the situation, Mr. Morgan consulted a New York lawyer, then told management in Panama City he had no objection to firing Mrs. Hord. Mr. Ormsby then caused a memorandum to be addressed to Mrs. Hord, notifying her that her employment was "terminated as of this date (27 March 1985), for gross disrespect, incertituded (sic), premeditated and continued disregard for all levels of Management ... so as to challenge the management of this company and to incite disrespect of other employees ...." Respondent's Exhibit No. 10.
Recommendation It is, accordingly, RECOMMENDED: That the Florida Commission on Human Relations dismiss Gloria Hord's petition for relief. DONE AND ENTERED this 22nd day of September, 1987, in Tallahassee, Florida. ROBERT T. BENTON, II 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 22nd day of September, 1987. APPENDIX Petitioner's proposed findings of fact Nos. 1, 5, 6, 7, 8, 15, 17, 18, 19, 20, 23, 24, 25, 26, 29, 30, 32, 33, 36, 37, 38, 39 and 40 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 2, the evidence showed that she worked as an acting supervisor for Columbia Research but not, as far as the hearing officer's notes reflect, for CSC. With respect to petitioner's proposed finding of fact No. 3, the evidence showed that Mr. Small interviewed her first. Mr. Alepakos, as his supervisor, could presumably have overruled Mr. Small's choice even if Mr. Small made the "basic decision" to hire. Petitioner's proposed finding of fact No. 4 has been adopted, in substance, except that the evidence did not establish that he placed his hands on her shoulders more than once. With respect to petitioner's proposed findings of fact Nos. 9 and 10, the evidence did not reveal any sexual advances at this point, aside from declarations of love, which were not entirely unwelcome. Except for the last sentence, petitioner's proposed finding of fact No. 11 has been adopted, in substance, insofar as material. With respect to the final sentence of No. 11 and the word "Again" in No. 13, it was not clear from the evidence that she went to Mr. Ormsby before Christmas. With respect to petitioner's proposed finding of fact No. 12, Mrs. Hord did not always go "to great lengths to avoid contact with Mr. Alepakos during this time period." She not infrequently accepted his invitations to lunch. Petitioner's proposed finding of fact No. 14 has been rejected as against the weight of the evidence. Petitioner's proposed finding of fact No. 16 has been adopted, in substance, insofar as material, except that Mr. Alepakos was not put on any formal probation. With respect to petitioner's proposed finding of fact Nos. 21 and 22, the evidence showed that he resumed his attentions because of her advances. With respect to petitioner's proposed finding of fact No. 27, the evidence showed that he called, but not that he called frequently. With respect to petitioner's proposed finding of fact No. 28, he did not come by uninvited. With respect to petitioner's proposed finding of fact No. 31, he said she needed to see a doctor but not, in so many words, that the marriage would fail. With respect to petitioner's proposed finding of fact No. 34, nobody placed limits on Mr. Morgan's investigation. Petitioner's proposed finding of fact No. 35 has been rejected as contrary to the evidence. She was not told she would be reprimanded for making good faith complaints. Respondent's proposed findings of fact Nos. 1, 2, 3, 5, 6, 7, 8, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 29, 31, 32, 33, 34, 35, 36, 37, the first two sentences of No. 38, Nos. 40, 41, 42, 43, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 58, 60, 61, 62, 65, 66, 70 and 72 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 4, she lived at Panama City Beach at one point. Respondent's proposed findings of fact Nos. 9 and 10 are immaterial or subordinate. Respondent's proposed finding of fact No. 11 is rejected. With respect to respondent's proposed finding of fact No. 12, Ms. Bjorgan's testimony was that she was not sure Mrs. Hord wanted to see him that night. Respondent's proposed finding of fact No. 14 has been accepted, in substance, insofar as material, except for Small's suggested advice to change her manner of dress. With respect to respondent's proposed finding of fact No. 25, Mrs. Hord was ambivalent about Mr. Alepakos before as after the incident. Respondent's proposed finding of fact No. 27 is rejected. Respondent's proposed finding of fact No. 28 blows a single incident out of proportion. Respondent's proposed finding of fact No. 30 is rejected. The final sentence of respondent's proposed finding of fact No. 38 is rejected, as is No. 39 to the extent it proceeds on the assumption there was any hiatus. Respondent's proposed finding of fact No. 44 has been adopted, in substance, except that the evidence did not establish that the poinsettia was flowering. With respect to respondent's proposed finding of fact No. 57, the epithet was "jackasses." With respect to respondent's proposed findings of fact Nos. 59 and 64, Alepakos had no input, but the fact of her complaints was considered and inspired the call to Morgan. Respondent's proposed finding of fact No. 63 is immaterial, except that Alepakos' attentions did not cause great mental stress. With respect to respondent's proposed finding of fact No. 67, his overtures were romantic. With respect to respondent's proposed finding of fact No. 68, he did propose marriage. Respondent's proposed finding of fact No. 69 has been adopted, in substance, insofar as material, except for the final clause of the final sentence which is rejected. Respondent's proposed finding of fact No. 71 is immaterial or subordinate. COPIES FURNISHED: Alvin L. Peters, Esquire 36 Oak Avenue Panama City, Florida 32401 William B. deMeza, Jr., Esquire Holland and Knight Post Office Box 241 Bradenton, Florida 33506 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner.
Findings Of Fact Petitioner is a white female. Petitioner worked as a salesperson at Respondent’s Melbourne store from April 2006 to September 2006. Petitioner’s primary job duty was selling appliances to retail customers. She also performed ancillary duties, such as tagging merchandise, cleaning and organizing the showroom floor, scheduling deliveries, and making follow-up calls to customers. Petitioner was not paid a salary. Her income was solely commission-based. She earned a total of $11,826.14 while working for Respondent, which equates to an average weekly gross pay of $537.55. Petitioner had several managers during the term of her employment. She did not have a problem with any of her managers, except for Jeffrey Rock. Mr. Rock is a black male, and by all accounts, he was a difficult manager to work for. He was “strict”; he often yelled at the salespersons to “get in the box”2 and “answer the phones”; and, unlike several of the prior managers at the Melbourne store, Mr. Rock held the salespersons accountable for doing their job. Petitioner testified that Mr. Rock "constantly" made sexual comments in the store, including comments about the size of his penis and his sexual prowess; comments about sex acts that he wanted to perform on a female employee in Respondent’s accounting office, Ms. Miho; “stallion” noises directed at Ms. Miho; and a question to Petitioner about the type of underwear that she was wearing. Petitioner’s testimony regarding the sexual comments and noises made by Mr. Rock was corroborated by Neina Blizzard, who worked with Petitioner as a salesperson for Respondent and who has also filed a sexual harassment claim against Respondent. Mr. Rock denied making any sexually inappropriate comments or noises in the store. His testimony was corroborated by Guy Ruscillo and Carissa Howard, who worked as salespersons with Petitioner and Ms. Blizzard and who are still employed by Respondent. Petitioner and Ms. Blizzard testified that Mr. Rock gave favorable treatment to Ms. Howard and two other female salespersons with whom he had sexual relationships and/or who found his sexual comments funny. Mr. Rock denied giving favorable treatment to any salesperson, except for one time when he gave a “house ticket”3 to Ms. Howard because she took herself off the sales floor for six hours one day to help him get organized during his first week as manager at the Melbourne store. Ms. Howard is white. The record does not reflect the race of the other two female salespersons -- Rebecca and Shanna -- who Petitioner and Ms. Blizzard testified received favorable treatment by Mr. Rock, and the anecdotal evidence of the favorable treatment that they allegedly received was not persuasive. Petitioner did not have any complaints regarding her schedule. Indeed, she testified that Mr. Rock changed her schedule at one point during her employment to give her more favorable hours. Petitioner’s testimony about other salespersons having sexual relationships with Mr. Rock and/or receiving favorable treatment from Mr. Rock was based solely upon speculation and rumor. Indeed, Rebecca, one of the salespersons with whom Mr. Rock allegedly had a sexual relationship, was “let go” by Mr. Rock because of the problems with her job performance observed by Petitioner and Ms. Blizzard. Petitioner’s last day of work was Saturday, September 30, 2006. On that day, Petitioner came into the store with Ms. Blizzard at approximately 8:00 a.m. because, according to Petitioner, another manager had changed her schedule for that day from the closing shift to the opening shift. Mr. Rock confronted Petitioner when she arrived, asking her why she came in at 8:00 a.m. since he had put her on the schedule for the closing shift. An argument ensued and Petitioner went into the warehouse in the back of the store to compose herself. When Petitioner returned to the showroom several minutes later, Mr. Rock was engaged in an argument with Ms. Blizzard. During the argument, Ms. Blizzard demanded a transfer to another store, which Mr. Rock agreed to give her. Then, as a “parting shot,” Ms. Blizzard told Mr. Rock that he was a “racist” who was “prejudiced against white women.” Ms. Blizzard testified that Mr. Rock told her that she was fired immediately after she called him a racist. Petitioner testified that after Mr. Rock fired Ms. Blizzard, he asked her whether she wanted to be fired too. Petitioner testified that even though she did not respond, Mr. Rock told her that “you are fired too.” Then, according to Ms. Blizzard and Petitioner, Mr. Rock escorted them both out of the store. Mr. Rock denies telling Ms. Blizzard or Petitioner that they were fired. He testified that they both walked out of the store on their own accord after the argument. Mr. Rock’s version of the events was corroborated by Mr. Ruscillo, who witnessed the argument. Mr. Ruscillo testified that he heard a lot of yelling, but that he did not hear Mr. Rock tell Ms. Blizzard or Petitioner at any point that they were fired. Petitioner and Ms. Blizzard met with an attorney the Monday after the incident. The following day, Petitioner gave Ms. Blizzard a letter to deliver on her behalf to Respondent’s human resources (HR) Department. The letter, which Petitioner testified that she wrote on the day that she was fired by Mr. Rock, stated that Petitioner “was sexually harassed and discriminated against based on being a white female by my manager, Jeff Rock”; that Petitioner “previously reported numerous incidents of this discrimination and sexual harassment to upper management”; and that she was fired “as a result of this discrimination and the refusal to put up with Mr. Rock’s sexual advancement.” This letter was the first notice that Respondent had of Petitioner’s claims of sexual harassment or discrimination by Mr. Rock. Petitioner considers herself to be a very good salesperson, but Mr. Rock described her as an “average” salesperson. Mr. Rock’s characterization of Petitioner’s job performance is corroborated by Petitioner’s acknowledgement that her sales figures were lower than those of at least Mr. Ruscillo, Ms. Blizzard, and Ms. Howard. Petitioner complained to another manager, Al Sierra, about Mr. Rock’s management style at some point in mid-September 2006. She did not complain to Mr. Sierra or anyone else in Respondent’s upper management about the sexual comments allegedly made by Mr. Rock. Indeed, as noted above, the first time that Petitioner complained about the sexual comments allegedly made by Mr. Rock was in a letter that she provided to Respondent’s HR Department several days after she was fired and after she met with a lawyer. Petitioner testified that she did not complain about the sexual harassment by Mr. Rock because he threatened to fire any salesperson who complained to upper management about the way that he ran the store and because she did not know who to complain to because she never received an employee handbook. There is no evidence that Mr. Rock fired any salesperson for complaining about how he ran the store, and he denied making any such threats. He did, however, acknowledge that he told the salespersons that they were all replaceable. Mr. Rock’s testimony was corroborated by Mr. Ruscillo and Ms. Howard, who were at the sales meetings where Petitioner and Ms. Blizzard claim that the threats were made. The training that Petitioner received when she started with Respondent was supposed to include a discussion of Respondent’s policies and procedures, including its policy against sexual harassment. The trainer, Kit Royal, testified that he remembered Petitioner attending the week-long training program and that the program did include a discussion of the sexual harassment policy and other policies and procedures. Petitioner, however, testified that no policies and procedures were discussed during the training program. Petitioner was supposed to have received and signed for an employee handbook during the training program. No signed acknowledgement form could be located for Petitioner, which is consistent with her testimony that she never received the handbook. The fact that Petitioner did not receive the employee handbook does not mean that the training program did not include discussion of Respondent’s sexual harassment policies. Indeed, Petitioner’s testimony that the training program did not include any discussion regarding salary and benefit policies (as Mr. Royal testified that it did) and that she was never told what she would be paid by Respondent despite having given up another job to take the job with Respondent calls into question her testimony that the sexual harassment policy was not discussed at the training program. Petitioner was aware that Respondent had an HR Department because she met with a woman in the HR Department named Helen on several occasions regarding an issue that she had with her health insurance. She did not complain to Helen about the alleged sexual harassment by Mr. Rock, but she did tell Helen at some point that Mr. Rock “was being an ass” and “riding her,” which she testified were references to Mr. Rock’s management style not the alleged sexual harassment. Petitioner collected employment compensation of $272 per week after she left employment with Respondent. Petitioner testified that she looked for jobs in furniture sales and car sales while she was collecting unemployment, but that she was unable to find another job for approximately three months because of the slow economy at the time. She provided no documentation of those job-search efforts at the final hearing. Petitioner is currently employed by Art’s Shuttle. She has held that job for approximately nine months. Petitioner drives a van that takes cruise ship passengers to and from the airport. The record does not reflect how many hours per week Petitioner works at Art’s Shuttle, but she testified that she works seven days a week and earns approximately $500 per week. No written documentation of Petitioner’s current income was provided at the final hearing. Respondent has a “zero tolerance” policy against sexual harassment according to its president, Sam Pak. He credibly testified that had he been aware of the allegations of sexual harassment by Mr. Rock that he would have conducted an investigation and, if warranted, done something to fix the problem. The policy, which is contained in the employee handbook, states that Respondent “will not, under any circumstances, condone or tolerate conduct that may constitute sexual harassment on the part of its management, supervisors, or non-management personnel.” The policy defines sexual harassment to include “[c]reating an intimidating, hostile, or offensive working environment or atmosphere by . . . [v]erbal actions, including . . . using vulgar, kidding, or demeaning language . . . .” Mr. Pak agreed that the allegations against Mr. Rock, if true, would violate Respondent’s sexual harassment policy. The employee handbook includes a “grievance procedure” for reporting problems, including claims of sexual harassment. The first step is to bring the problem to the attention of the store manager, but the handbook states that the employee is “encouraged and invited to discuss the problem in confidence directly with Human Resources” if the problem involves the manager. Additionally, the handbook states in bold, underlined type that “[a]nyone who feels that he or she . . . is the victim of sexual or other harassment, must immediately report . . . . all incidents of harassment in writing to your manager or the store manager, or if either person is the subject of the complaint, to the president.” Mr. Pak had an office at the Melbourne store. He testified that he had an “open door policy” whereby employees could bring complaints directly to him. The only complaint that Mr. Pak ever received about Mr. Rock was from another salesperson, Rod Sherman, who complained that Mr. Rock was a “tough manager.” Mr. Pak did nothing in response to the complaint and simply told Mr. Sherman that different managers have different management styles.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 26th day of November, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 2007.
