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 Respondent committed an unlawful employment practice by discriminating against Petitioner based on sex/gender, race, religion or disability.
Findings Of Fact Respondent operates a chain of retail stores/service stations, some of which include a deli. Respondent is an employer within the meaning of Section 760.02(7), Florida Statutes (2008). Petitioner is an African-American female. She began working for Respondent sometime in 2006. In January 2008, Petitioner's job responsibilities included cleaning and stocking shelves during the night shift at Respondent's store located on Cervantes Street, Pensacola, Florida. The Cervantes store did not have a deli. Alvin Philyaw, a white male, was the manager at the Cervantes store. Bill Fuller, a white male, was the store's assistant manager. Robert Wensel, another white employee at the Cervantes store, took care of the trash. On or about January 2, 2008, Petitioner and Mr. Wensel were in the store’s cooler. Petitioner was unloading a shopping cart when Mr. Wensel, who was subject to panic attacks, fell towards Petitioner. Petitioner reached with one arm to catch Mr. Wensel. After the incident, Petitioner returned to work. On or about January 15, 2008, Petitioner told Mr. Fuller that she had injured her shoulder when Mr. Wensel fell on her. Mr. Fuller told Petitioner to discuss it with Mr. Philyaw. Petitioner then talked to Mr. Philyaw. He told Petitioner that, pursuant to store policy, she should have immediately reported the accident. After finding nothing on the video tape about the fall, Mr. Philyaw told Petitioner and Mr. Wensel to file written reports about the accident. The injury was eventually treated pursuant to Florida’s workers’ compensation law. Petitioner subsequently filed a formal workers' compensation grievance about her dissatisfaction with the medical care she received for her alleged shoulder injury. Petitioner claimed that the accident involving Mr. Wensel occurred as a result of a satanic spell cast on Petitioner by one of her co-workers. This claim was not established by the evidence in this case and was found not credible in Petitioner’s earlier action against Circle K. Petitioner did testify about her doctor’s evaluation and treatment of her arm/shoulder. However, even with this testimony, the evidence in this case did not establish that Petitioner suffered any significant impairment that would constitute a disability/handicap under Chapter 760, Florida Statute. Around January 18, 2008, Mr. Philyaw learned that the Cervantes store was losing employee hours. Mr. Philyaw asked Petitioner if she would like to transfer to the store on Bayfront Street, Pensacola, Florida, where she could get more hours, work in the deli, and keep her benefits. Petitioner agreed. Petitioner went to Respondent's main office to speak with Jackie Ridgeway. Petitioner requested the transfer to the full-time position in the Bayfront store's deli. At the Bayfront store, Petitioner worked in the deli with Amy Williams, a white female, and Channel Pritchett, a black female. Ms. Williams was the deli supervisor. Ms. Pritchett was the deli cook. Petitioner’s duties included cleaning and waiting on customers. Ms. Williams did not know about Petitioner's alleged shoulder injury. One day at the Bayfront store, a cooking pan fell and hit Petitioner in the face. Petitioner's glasses were broken when the pan fell. The incident was an accident and not the result of witchcraft or any malicious intent. Again, there was no evidence of any discrimination based on race, religion or disability. Petitioner and Ms. Pritchett also worked together in the deli at the store in Cantonment, Florida. Felicia Williamson, who is also African-American, was Petitioner's manager/supervisor. While at the Cantonment store, a black customer asked Petitioner if she was Muslim and would she marry a Muslim man. There was nothing in this conversation or the evidence that indicated Circle K was involved in this man’s inquiries. Likewise, there was nothing in this conversation or the evidence that demonstrated any discrimination by Circle K based on Petitioner’s race, religion or disability. After working at the Cantonment store, Petitioner was transferred to the deli at the store on Barrancas Street, Pensacola, Florida. One day around October 30, 2008, a piece of sandwich paper caught fire under the steam box. Petitioner reached in with tongs, picked up the paper, and put the fire out in the deli sink. Petitioner was slightly burned by the fire, but continued to work her shift. Petitioner’s burns eventually healed. Again, the evidence demonstrated that this incident was an accident. However, the evidence did not demonstrate that this incident resulted in any significant injury to Petitioner or that her injury constituted a disability/handicap under Chapter 760, Florida Statutes. At some point, Petitioner returned to the Cantonment store. Petitioner alleged that around November 6, 2008, Ms. Williamson fired Petitioner for moving too slowly. Ms. Williamson claims she did not terminate Petitioner, but that Petitioner walked out of the store and did not return. Petitioner admitted that Ms. Williamson was dissatisfied with Petitioner's work performance. However, there was no substantial evidence to determine whether Petitioner was terminated or whether she quit. Likewise, there was no substantial evidence to determine the reason for Petitioner separating from her employment. Petitioner attributed her termination to the fact that Ms. Williamson was mean and abusive. However, Petitioner also testified that Ms. Williamson was “mean and abusive” to everyone. This evidence is insufficient to demonstrate any discrimination on the part of Ms. Williamson or Circle K. Given these facts, the evidence did not demonstrate that Petitioner was physically handicapped/disabled or suffered an adverse employment action because of her race, religion or disability. For the same reasons, the evidence did not demonstrate that Petitioner was retaliated against based on her earlier action against Circle K. Therefore, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 2nd day of September, 2010, in Tallahassee, Leon County, Florida. S S. Diane Cleavinger Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September 2010. COPIES FURNISHED: Carolyn Johnson Post Office Box 4671 Pensacola, Florida 32507 Joyce Clemmons Circle K 25 West Cedar Street, Suite 100 Pensacola, Florida 32502 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent subjected Petitioner to an unlawful employment practice based on Petitioner’s race, in violation of section 760.10, Florida Statutes (2016)1/; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Aaron Pittman, a black male, was at all times relevant hereto employed at Sunland Center (Sunland) by the Agency for Persons with Disabilities (APD). Sunland Center is an assisted-living facility operated by APD in Marianna, Florida, serving clients with intellectual and developmental disabilities. Petitioner was first employed at Sunland on August 7, 1987, as a Maintenance Mechanic. Petitioner’s full-time job was to maintain wheelchairs for use by residents. According to Petitioner, the work was very steady, with continuous repairs to footrests, wheels, seats, and many other parts of well-used wheelchairs throughout the facility. Petitioner remained in that position for 17 years. In 2007, Petitioner was promoted from Maintenance Mechanic to Electronics Tech II. The duties of the Electronics Tech II include installation of televisions, cleaning fire detection and other safety equipment, conducting fire drills, and repairing all manner of electronics. After Petitioner was promoted to Electronics Tech II, an employee with the last name of Moss was assigned to wheelchair maintenance. Apparently Mr. Moss was not capable of performing the duties of wheelchair maintenance and requested Petitioner’s assistance with those duties. Mr. Moss left Sunland sometime in 2010. When Mr. Moss left, John Kramer, Maintenance Supervisor, asked Petitioner to help out “temporarily” with the wheelchair maintenance. Petitioner testified that he agreed to resume wheelchair maintenance “temporarily” because Mr. Kramer was “a nice man and [Petitioner] wanted to help him out.” Petitioner first worked overtime on a night shift to complete the wheelchair maintenance work. However, Petitioner did not request prior approval for the overtime and was instructed to take time off to compensate for the overtime. Clarence Holden, Sr., a black male, was employed at Sunland for 40 years. Mr. Holden began in an entry-level position, but was promoted to a supervisory position. Mr. Holden supervised Petitioner during Mr. Holden’s last five years of employment in the position of Telecommunication Specialist. Mr. Holden also supervised Keith Hatcher, the only employee other than Petitioner in the Maintenance Department. Mr. Hatcher retired sometime before Mr. Holden. Mr. Holden retired in 2014, leaving Petitioner as the only employee in the Maintenance Department. Petitioner testified that he “took over [Mr. Holden’s] duties” when Mr. Holden retired, but was never compensated for essentially working two jobs. Petitioner never supervised any employees at Sunland. Petitioner did not have any authority to hire or fire other employees or perform evaluations of other employees. After Mr. Holden’s retirement, Petitioner asked Allen Ward (whose position in the chain of command was not identified) about applying for the Telecommunication Specialist position. Petitioner was told management was “holding” that position. Petitioner testified that Mr. Ward advertised and filled the position of Telecommunication Specialist “while [Petitioner] was out.” Petitioner admitted that the position of Safety Specialist3/ was eventually advertised, and that Petitioner did not apply for the position. Amanda Johnson, former Employee Relations Specialist at Sunland, met with Petitioner sometime in 2012 regarding his complaint about working two positions without additional compensation. In June 2013, Petitioner received a ten-percent salary increase “for additional duties and responsibilities for maintaining resident wheelchairs and electric/mechanical hospital beds.” Petitioner seeks back pay for performing duties of two positions beginning in 2010. Petitioner separately complains that he was subject to harassment based on his race and Respondent failed to do anything about it. Petitioner testified that there used to be an employee who used the “N word,” and under a previous administration the supervisor would “take care of it,” but that under the current administration “nothing happens.” Petitioner indicated that other employees used to “make postings about lynching.” Petitioner did not identify any specifics of those incidents--when they occurred, who made the posting, or whether there were consequences to those employees. Petitioner complained that a fellow employee once wrote “Trump” on a dirty work truck. However, when the incident was reported, the manager washed the truck. Petitioner complained that white employees sit around and talk with each other for extended periods without any consequence, but that if he sits to talk with a fellow employee for 15 minutes “people complain.” Petitioner has never been disciplined by Respondent. Respondent is managed by a black Superintendent and black Deputy Superintendent. Sunland employs a number of black mid-level managers and supervisors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief from an Unlawful Employment Practice filed by Petitioner against Respondent in Case No. 201700575. DONE AND ENTERED this 30th day of March, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2018.
The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race, age, sex, or as retaliation in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, a 56-year-old African- American female, as a Food Support Worker at Florida State Hospital in Chattahoochee, Florida, at all times relevant to these proceedings. Petitioner was promoted to the position of Food Service Worker on May 10, 2002, with probationary status until May 10, 2003. On February 12, 2003, Petitioner was terminated from her employment for failure to satisfactorily complete her probationary period in the career service. In the course of her employment with Florida State Hospital, Petitioner was aware of the strict safety guidelines implemented by Respondent to protect employees from injury. Petitioner also knew that violation of the safety rules could result in dismissal of an erring employee. Violations of these policies had resulted in dismissal of both non-minority and minority employees in the past. On February 9, 2003, due to an unsafe act and violation of Respondent’s safety rules, Petitioner proceeded to cut the tip of her left thumb in the process of slicing cabbage. Petitioner was not using a cutting glove, a mandatory requirement of the safety rules. As a result of this rule violation, Respondent terminated Petitioner’s employment on February 12, 2003. At final hearing, Petitioner admitted the cutting injury to her finger, but contended that termination of employment had not been effected for other younger white employees for similar offenses in the past. These allegations of Petitioner were non-specific and uncorroborated; they are not credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 3rd day of November, 2004, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 2004. COPIES FURNISHED: Annette Carroll 10202 Northwest Third Street Bristol, Florida 32321 Kathi Lee Kilpatrick, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000 Jacqueline H. Smith, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent, Porky's Barbeque Restaurant, engaged in an unlawful employment practice by terminating Petitioner, Susan Coffy, from her position.
Findings Of Fact Petitioner is a female and, at all times relevant to this proceeding, was over the age of 40. From March 1, 2003, until October 28, 2003, Petitioner was employed as a waitress at Porky's, a barbecue restaurant. On October 28, 2003, Petitioner was terminated from her job as a waitress. Prior to March 1, 2003, Petitioner had worked as a waitress at another restaurant, Fat Boy's Restaurant (Fat Boy's), that had been operating at the same location as Porky's. Fat Boy's closed after the building in which that restaurant was located was purchased by Walter Milton. After Mr. Milton purchased the building, he opened his own business, Porky's, at that location. After Mr. Milton opened his restaurant, he employed many of the individuals who had been employed by Fat Boy's, but told them that their employment with Porky's was for a "trial period." Immediately after Porky's opened for business, Mr. Milton initiated operational directives that he believed were essential business needs for operating a barbecue business. He introduced these new directives to the employees of Porky's, many of whom had previously worked for Fat Boy's. While some of these employees were successful in making the transition to the new operation, there were employees, including Petitioner, who were resistant to the operational directives initiated by Mr. Milton. Even though Petitioner was resistant to the new operational directives that were implemented at Porky's, Mr. Milton continued to try to work with Petitioner. In fact, Petitioner worked as a waitress at Porky's the first eight months the restaurant was open. During the course of her employment, Mr. Milton found that Petitioner was an employee who failed to follow simple instructions. For example, Mr. Milton directed employees to knock on his office door when the door was closed. Notwithstanding this very simple directive, Petitioner refused to comply. One day Petitioner went to Mr. Milton's office and found the door to the office was closed. Instead of knocking as she had been previously directed, Petitioner simply barged into the office and stated that she needed a band-aid. After Petitioner barged into the office without knocking, Mr. Milton reminded her that she should knock on the door and wait for a response before coming into his office. About three minutes after this admonition, Petitioner returned to Mr. Milton's office. Although the office door was closed, Petitioner, again, did not knock on the door, but simply opened the door and went into the office. Mr. Milton was not pleased with Petitioner's failure to embrace the directives he initiated and implemented for Porky's. However, the "final straw" that resulted in Mr. Milton's terminating Petitioner's employment was an incident about a menu item. On October 28, 2003, Petitioner was very upset that Mr. Milton had included an item on the Porky's menu that also had been on the Fat Boy's menu. That menu item was referred to as "Jim's Special Burger." Mr. Milton included that item on Respondent's menu to honor Jim Kenaston, who had been the owner of Fat Boy's. On October 28, 2003, Petitioner "flew off the handle" and confronted Mr. Milton about his decision to include the item, "Jim's Special Burger," on the Porky's menu. Petitioner, who admits she was upset about this matter, confronted Mr. Milton and argued to him that he had no right to put the "Jim's Special Burger" on Respondent's menu. The confrontation started in the kitchen of the restaurant, but continued after Petitioner left the kitchen and proceeded into the restaurant's dining room. Although there were customers in the dining room, Petitioner continued to argue with Mr. Milton about the menu item. Petitioner's verbal criticism and objection to Mr. Milton's decision to include "Jim's Special Burger" on Respondent's menu created such a commotion in the restaurant that Respondent's bookkeeper heard Petitioner's outbursts from her office located behind the cashier's counter. After the bookkeeper heard Petitioner arguing with Mr. Milton, the bookkeeper left her office and in an effort to de-escalate the situation, escorted Petitioner out of the dining room to a back hall of the restaurant where there were no customers. On October 28, 2003, as a result of Petitioner's inappropriate and unprofessional conduct described in paragraphs 10 through 13, Mr. Milton terminated Petitioner's employment at Porky's. The same day that he terminated Petitioner's employment, Mr. Milton completed a "Separation Notice" on which he indicated that Petitioner was laid off due to lack of work. The reason Mr. Milton wrote this on the form was so that Petitioner could receive unemployment compensation. Petitioner presented no competent and substantial evidence that she was terminated from employment because of her age. Likewise, Petitioner presented no evidence that after she was terminated, she was replaced by a younger worker. At all times relevant to this proceeding, Respondent had four or five employees who were over 40 years of age. Petitioner presented several witnesses who testified that she was an excellent waitress when she was employed at Fat Boy's. However, Petitioner's job performance while working for her previous employer is not at issue or relevant in this proceeding. Even if that testimony is accepted as true, no inference can be drawn that Petitioner's performance remained the same or was viewed as such by her new employer. Notwithstanding the opinions expressed by her previous employers and co-workers, Petitioner was terminated from her employment at Porky's as a result of her unacceptable and unprofessional conduct on October 28, 2003.
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 Respondent, Porky's Barbeque Restaurant, did not commit any unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 18th day of March, 2005, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 18th day of March, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Walter Milton Porky's Barbeque Restaurant 4280 South Washington Avenue Titusville, Florida 32780 Susan Coffy 2966 Temple Lane Mims, Florida 32754 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this proceeding is whether the Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Respondent Great Southern Café is a restaurant located in Seaside, Florida. The restaurant is owned by James Shirley. As owner, Mr. Shirley did not generally involve himself in personnel decisions at the Café. Such decisions and the day-to- day management of the restaurant were the responsibility of the general manager, who at the time period relevant to this case was William “Billy” McConnell. Petitioner Janet D. Mayes is female. Petitioner has ADD, ADHD, OCD, and general anxiety disorder. She has been diagnosed with these conditions for 20 years and they are all controlled through medication. More importantly, the evidence did not demonstrate that Petitioner’s disorders interfered with her ability to work or significantly impacted any other major life activity. Indeed, Petitioner has worked in the restaurant business for about 30 years and has held a variety of different positions during that time, often working long hours. Since her disorders did not interfere with any of Petitioner’s major life activities, the evidence did not demonstrate that such disorders were disabilities or handicaps for purposes of employment discrimination. Sometime around March 2012, Petitioner interviewed for employment with Respondent. She was initially hired as a hostess for the restaurant by the then general manager, Jim Ruby. Shortly thereafter, Mr. McConnell, who was then assistant manager, replaced Mr. Ruby as general manager. At the time, Mr. McConnell had 35-40 years of experience as a restaurant manager in Alabama and Florida and had managed the predecessor restaurant to Great Southern Café known as “Shades.” Mr. McConnell’s management philosophy was to be patient with employees, to train them in the right way, and to ask employees to do their best. He would give employees the benefit of the doubt, and when disciplinary action was necessary, would sit down and talk with the employee to build confidence in them. Mr. McConnell’s disciplinary style was informal and it was not his general practice to issue formal written discipline to employees. Mr. McConnell liked Petitioner’s work ethic and thought she did a good job as hostess. Under Mr. McConnell’s management, Petitioner was promoted by Mr. McConnell to relief manager in May of 2012. In August 2012, she was again promoted by Mr. McConnell to full manager. Mr. McConnell did not know about, nor was he provided with any documentation regarding, Petitioner’s disorders. Indeed, the evidence showed that Petitioner’s disorders were not so obvious that anyone who encountered her necessarily would have known about those disorders. There was no evidence that Petitioner ever sought any kind of accommodation from Respondent for her disorders. Since Mr. McConnell worked only the day shift and Petitioner usually worked nights, their paths did not often cross at work. However, the evidence demonstrated that Mr. McConnell occasionally used the term “bitch” to refer to Petitioner. The evidence also demonstrated that he did so not in a malicious or discriminatory way, but in a joking manner because of Petitioner’s actions that he witnessed or that were described to him. Petitioner conceded that it was “like it was a joke” when Mr. McConnell referred to her as a “bitch.” There was no testimony that Mr. McConnell used this term on repeated occasions so that its use rose to the level of harassment or that he used it to belittle or demean Petitioner. Sometime in April 2013, the Café catered a very large event known as “JazzFest.” Petitioner assisted Mr. McConnell in the planning and execution of this event for the Café. Her husband, William, who had been unemployed, was hired to help in food preparation at the event. In general, JazzFest was stressful for all those who worked the event. Both Mr. McConnell and Petitioner worked many extra hours at the festival. During the course of JazzFest, Mr. McConnell, as manager, permitted the employees to get food from the banquet line since they had been working all day without breaks for nutrition. Petitioner and her husband loudly and inappropriately berated Mr. McConnell in public and in front of other employees about allowing employees to get food from the banquet line. Mr. Shirley witnessed the confrontation and considered the display to be an inappropriate method by Petitioner to communicate her disagreement regarding Mr. McConnell’s management decision. Mr. McConnell also observed that during JazzFest, Petitioner was “too pushy” and “too bossy” with the staff without having any good reason for such treatment of employees. Additionally, Mr. McConnell observed that Petitioner was “not herself” and “wound up a little too tight” during JazzFest. Further, Mr. McConnell was aware that Petitioner had some recent personal stressors, such as her husband having issues with unemployment and one of her sons being arrested and incarcerated. He believed Petitioner’s behavior was due to the pressures in her family life combined with the pressure from working Jazzfest. Therefore, Mr. McConnell decided to give Petitioner a week off, with pay, for rest and relaxation. He hoped that Petitioner would come back refreshed and ready for the busy beach season after her break. Mr. Shirley knew of and supported the time off for Petitioner and hoped that Petitioner’s time away from work would ease some of the undercurrent of negative feelings that had built up between Petitioner and some of the employees. After Petitioner returned from her week off, Mr. McConnell received reports from some of his employees that Petitioner was being unreasonable, raising her voice and losing her temper “numerous” times. He also received reports that Petitioner was “hard to work for,” and “a bully.” In addition, owner James Shirley received some complaints from employees that Petitioner was “going off on people.” Indeed, her treatment of the employees had gotten to the point that several employees no longer wished to work with her. These employees were considered good employees and were part of the restaurant team. The evidence showed that it is very important for restaurant staff to function as a team and that maintaining good working relationships among team members is one important component of a good functioning restaurant. Mr. McConnell spoke to Petitioner about the subject of the complaints and asked why she was pushing the staff so hard and creating a bad environment. Petitioner said she would try to do better. During this conversation, Mr. McConnell did not remember asking Petitioner whether her meds were “out of whack,” but he has stated this to other people as a figure of speech in the manner of “get your act together.” The evidence did not show that Mr. McConnell’s use of the phrase was discriminatory, harassing or demonstrative of any knowledge of Petitioner’s alleged disability or perception of the same. After his talk with Petitioner, things improved for a couple of days. However, Mr. McConnell received more and similar complaints about Petitioner from the same employees who previously complained about her, with some indicating they would quit if Petitioner continued to work at the restaurant. Mr. McConnell feared that if something was not done about Petitioner some of his good team employees would leave and he would not be able to run the restaurant. The better evidence demonstrated that Mr. McConnell met with Petitioner and offered her two weeks’ severance pay. He spoke with her about her inability to get along with the employees and function as a team member at the restaurant. The meeting lasted about 20-30 minutes. Ultimately, Petitioner refused the severance pay, handed over her keys, and left. There was no credible or substantial evidence that Petitioner’s termination was based on disability, perceived or otherwise. Similarly, there was no credible or substantial evidence that Petitioner’s termination was based on her sex. Although Petitioner asserted harassment from Mr. McConnell, no evidence to support this claim was adduced at the hearing. Respondent hired and promoted Petitioner to a manager position, allowed Petitioner to hire her husband and son (and at least one of her son’s friends), and gave her a paid week off after JazzFest to refresh and relax from a stressful event. The evidence showed that Mr. McConnell gave Petitioner the benefit of the doubt, as he did with all his employees, and only decided to terminate her after talking with Petitioner and determining that giving her time off did nothing to eliminate the negative energy Petitioner was bringing to the job. Based on these facts, Petitioner failed to establish that Respondent discriminated against her based on sex or disability when it terminated her from employment. As such, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter an Order dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of June, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2015. COPIES FURNISHED: Robert L. Thirston, II, Esquire Thirston Law Firm Post Office Box 19617 Panama City Beach, Florida 32417 (eServed) Timothy Nathan Tack, Esquire Kunkel Miller and Hament 3550 Buschwood Park Drive, Suite 135 Tampa, Florida 33618 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue Whether Respondent committed the unlawful employment practices alleged in the employment discrimination complaint Petitioner filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a very well-credentialed, internationally-recognized cancer researcher who is black and a native of Cameroon. He has been granted lawful permanent residence status in the United States (with an EB-1 classification, signifying that he is an alien with "extraordinary ability"). Petitioner received his Doctor of Medicine degree in 1999 from the University of Yaounde I in Cameroon. He spent the next five years as a post-doctoral fellow at the University of Rochester Medical Center in Rochester, New York.3 He worked in the Department of Orthopaedics (under the supervision of Randy N. Rosier, M.D., Ph.D.) for the first two of these five years and the James P. Wilmont Cancer Center (under the supervision of Dr. Rosier and Joseph D. Rosenblatt, M.D.) for the remaining three years. Petitioner enjoyed a considerable amount of independence, and was "very productive," during his time at the University of Rochester Medical Center. In June 2005, Petitioner began working as a post- doctoral associate assigned to the Viral Oncology (VO) program at UM's Sylvester Comprehensive Cancer Center (Sylvester) in Miami, Florida. He remained in this position until his termination (which he claims was discriminatorily motivated) in September 2006. Sylvester "serves as the hub for cancer-related research, diagnosis, and treatment at [UM's] Miller School of Medicine" (Miller). The VO program is administratively housed in the Division of Hematology/Oncology of Miller's Department of Medicine. Dr. Rosenblatt, Petitioner's former supervisor at the University of Rochester Medical Center, is now, and has been at all times material to the instant case, the Chief of the Division of Hematology/Oncology. According to the Sylvester website, the goals of the VO program include: Investigating the mechanisms of oncogenesis and innate immune subversion in viral associated cancers including those that arise in immunocompromised patients. Devising novel and targeted therapeutic and preventive strategies for viral associated malignancies. Implementing basic and clinical international collaborative studies in developing nations that have a high incidence of these tumors. William Harrington, Jr., M.D., is now, and has been at all times material to the instant case, "in charge" of the VO program. Dr. Harrington, who is white, is a 1984 Miller graduate. He has been working for UM since his graduation 24 years ago. For the past 17 or 18 of these years, he has held positions having supervisory authority over other UM employees. As the head of the VO program, Dr. Harrington runs a "small" laboratory (Dr. Harrington's lab) staffed by a post- doctoral associate, lab technicians, and a research nurse (all of whom he directly supervises). Dr. Harrington's lab is a "hundred percent funded by [competitive] peer review grants": four from the National Institutes of Health (NIH); one from the Leukemia Society; and one from the State of Florida. It is "one of the best-funded labs" at UM. In addition to running his lab, Dr. Harrington also sees and treats patients at UM's Jackson Memorial Medical Center (Jackson Memorial). Approximately 95% of his patients are indigent, with a large number of them being of African descent (black). Dr. Harrington "specializes" in viral lymphomas, with a strong emphasis on diseases that occur predominantly in persons of African descent (certain AIDS-related lymphomas, HTLV-related lymphomas, and Burkitt lymphoma). Over the years, Dr. Harrington has had occasion to do work outside the United States, in areas where these diseases are prevalent, including the Afro-Brazilian state of Bahia, where, approximately 12 years ago, he met his wife Tanya, who is of African descent. Dr. Harrington has also "worked with colleagues in Zambia . . . on AIDS-related lymphomas and pediatric Burkitt lymphomas." Approximately seven or eight years ago, Dr. Harrington "sponsored post-doc[toral] trainees from Zambia in his lab." Dr. Harrington was introduced to Petitioner by Dr. Rosenthal. After reviewing Petitioner's "bio-sketch," Dr Harrington interviewed Petitioner and was sufficiently impressed to offer Petitioner an unadvertised post-doctoral position in his lab. Dr. Harrington hired Petitioner because Petitioner had the "skillset" Dr. Harrington was looking for. Dr. Harrington was particularly influenced by Petitioner's background, including publications, in NF-kappaB signaling, which was an "area[] of [Dr. Harrington's] interest." Moreover, Dr. Harrington thought Petitioner was a "smart capable man." At the time he hired Petitioner, Dr. Harrington was aware Petitioner was black and from Cameroon. Neither Petitioner's race, nor his national origin, played any role in Dr. Harrington's hiring decision. As a post-doctoral associate, Petitioner was the "senior lab person" working under Dr. Harrington's supervision. He was expected to assume a "higher level [of responsibility] than other staff personnel in [the] lab . . . in terms of doing a given set of experiments or [other] work." Dr. Harrington and Petitioner initially enjoyed a cordial working relationship. They had "excellent rapport" and even socialized after work hours. At Dr. Harrington's invitation, Petitioner came over to Dr. Harrington's house approximately "every other Friday" and for the Thanksgiving holiday. Although Dr. Harrington did not hire Petitioner specifically to "build[] international research programs," once Petitioner was hired, Dr. Harrington did discuss the matter with Petitioner, and he authorized Petitioner to initiate contact with cancer investigators in Cameroon to explore the possibility of their collaborating with Dr. Harrington on a project involving NF-kappaB signaling and Burkitt lymphoma. After having received Dr. Harrington's authorization, Petitioner "made contact with some of [his] mentors back in Cameroon, all [of whom were] involved in [Cameroon's] national cancer control program." On July 13, 2005, Dr. Harrington himself sent an e- mail to these Cameroonian investigators, which read as follows: Thank you Dr. Mouelsone for your response. I was considering putting together a project on Burkitt lymphomas that would principally be a study on the biology of the tumor in endemic and HIV associated cases. We would collaborate with investigators in Brazil and Africa. The study would be focused on targets that could be exploited in novel therapies as well the role of ebv [Epstein Barr virus] in different types of tumors. We already have IRB approval for collection of residual lymphoma specimens as well as protocols for the processing that would be required. A challenge in any grant is keeping the project focused and attractive scientifically for the reviewers. The participating center would have to have the capability to identify and consent patients as well as processing and storage . . . . Therefore one would need reagents, a research nurse (maybe 50%) salary and liquid nitrogen dewar as well as some support for a PI. Maybe I could send everyone the aims of a recently submitted grant to see if it would be possible. I could send our informed consent document since it broadly covers all viral associated tumors. I am attaching a recent article and I sincerely appreciate your help. I also am a fan of the Cameroon's football team the "indomitable lions." Dr. Harrington ultimately determined to collaborate exclusively with the Brazilian investigators, with whom he had a longstanding professional relationship, and not with the Cameroonian investigators, on this particular project. During the first several months of Petitioner's employment, he engaged in research involving NF-kappaB signaling. He also helped write an article (entitled, "Zidovudine: A Potential Targeted Therapy for Endemic Burkitt Lymphoma") that was published in the East African Medical Journal. When presented with the draft of the article that Petitioner had prepared, Dr. Harrington commented to Petitioner (by e-mail dated July 28, 2005), "[T]his is better than the one I wrote." Petitioner also contributed to the preparation of a successful NIH grant application submitted on September 1, 2005, by Dr. Harrington (as Principal Investigator/Program Director) seeking funding for his lab, as well as for collaborators in Brazil and at the University of North Carolina at Chapel Hill, to "investigate in primary BLs [Burkitt lymphomas] the form of EBV [Epstein Barr virus] latency and its relationship to NF- k[appa]B"; to "determine the susceptibility of primary tumor cell lines to antiviral apoptosis"; and to "investigate commonly available, inexpensive agents that are known to induce the EBV lytic cycle and potentiate phosphorylation of AZT [azidothymidine, also known as Zidovudine]." The grant application was "based on . . . work that had been done [prior] to [Petitioner's coming to work in Dr. Harrington's lab]." The following individuals were listed as the "key personnel" on the grant application: Dr. Harrington; Iguaracyra Araujo, M.D., of Brazil; Jose Barreto, M.D., of Brazil; Carlos Brites, M.D., Ph.D., of Brazil; Dirk Dittmer, Ph.D., of the University of North Carolina at Chapel Hill; and Isildinha Reis, Ph.D., of UM. The following statements were made on the grant application concerning Dr. Reis' and Petitioner's anticipated roles in the proposed project: Isidinha Reis, Ph.D. (Biostatistician) will be in charge of the statistical component of this project including periodic analysis of data pertaining to this grant. She will participate in phone conferences with Ms. Shank and Luz. She will be particularly important for the conduct of this study since she is Brazilian by birth and fluent in Portuguese. 7.5% support is requested. Valentine Andela (Post Doctoral Fellow) will be in charge of all the day-to-day laboratory aspects of Dr. Harrington's component of the project. This includes receipt of isolates shipped from Brazil and then forwarding them to Dr. Dittmer, cell culture, DNA and RNA preparation and hybridization, EMSA and immunoblot analysis, cryopreservation of samples, etc. 50% support is requested. In the fall of 2005, Dr. Harrington discussed with Petitioner an article published in a "science magazine" that reported on Epstein-Barr virus (EBV) microRNAs, which, at the time, was a relatively unexplored area of research and one in which Dr. Harrington "definitely [did] not" have any "expertise." During the discussion, Petitioner expressed an interest in studying EBV microRNAs. Dr. Harrington "agreed [this] would be an interesting project to pursue," and he "thought [Petitioner] could do a good job" on it. With Dr. Harrington's approval, Petitioner thereafter started his research of EBV microRNAs, a project that consumed most of his work time during the remainder of his employment with UM. The project included helping draft a manuscript detailing the findings of the research. The experiments that Petitioner did as part of the project were on tumor samples that had been "collect[ed]" and "intial[ly] analy[zed]" by Brazilian investigators with whom Dr. Harrington had collaborated with in the past. In November 2005, Petitioner advised Dr. Harrington that he was considering participating in a clinical residency program, and Dr. Harrington "agreed to help [Petitioner] out" in any efforts he might make to seek a residency position. At Petitioner's request, Dr. Harrington wrote a letter of reference (dated November 16, 2005), "highly recommending" Petitioner for such a position. Dr. Harrington indicated in his letter, among other things, that in the "relatively brief time" that Petitioner had worked for him, Petitioner had "exceeded [Dr. Harrington's] expectations and made novel findings in the area of lymphoma and Epstein Barr virus." In addition to writing this letter of reference, Dr. Harrington, on Petitioner's behalf, contacted Stephen Symes, M.D., who at the time was the "head of the [Jackson Memorial medical] house staff program." Dr. Symes told Dr. Harrington that the "logical thing for [Petitioner] to [first] do [was] . . . a clinical rotation" at a teaching hospital, such as Jackson Memorial (during which he would act as either an observer or as an actual member of a medical team). Petitioner had planned to participate in a two-week clinical rotation at Jackson Memorial in December 2005, but had to change his plans because, when December came, he was still immersed in the EBV microRNA research project he had undertaken and had no time to do the rotation. Dr. Harrington was pleased with the quality of the work that Petitioner was doing on the project. In an e-mail he sent Petitioner on March 6, 2006, Dr. Harrington stated that he was "really excited about [Petitioner's] work," which he described as "novel and probably the best thing to come out of [his] little lab." On or about March 20, 2006, Dr. Harrington provided Petitioner with his written annual performance evaluation. He gave Petitioner an overall rating of "exceeds standards," with Petitioner receiving an "exceeds" rating in the categories of "Job Knowledge," "Supervision Required," "Quality of Work," "Adaptability," "Customer Service," and "Safety," and a "meets" rating in the category of "Time Management." Dr. Harrington made the following handwritten comment on the evaluation with respect to the latter category: I would like him to maintain more regular hours but his work is outstanding. Dr. Harrington felt compelled to make this comment because, although he "liked the work [Petitioner] was doing," "there were issues [regarding Petitioner's] disappearing for long periods of time [from Dr. Harrington's lab without telling Dr. Harrington where he was] and [Dr. Harrington] thought that this was becoming problematic." These "unexplained absences" from the lab were becoming more frequent and Dr. Harrington felt like Petitioner was "pushing the envelope." The improvements that Dr. Harrington had hoped to see in Petitioner's attendance did not materialize, and the relationship between the two deteriorated precipitously. On March 29, 2006, following a confrontation he had with Dr. Harrington, Petitioner sent an e-mail to Dr. Harrington, in which he advised: I did not mean to be rude this afternoon and you are absolutely right in pointing out that I am tense and consequently reactive. All things considered, I am putting undue pressure on myself. I am pretty much accepted in the Master of Arts in International Administration (MAIA) program at the UM. It is a professional degree program that puts a lot of weight on a practicum of the degree candidate[']s choice. I had proposed to implement the strategy articulated in the attached manuscript, which was previously funded in 2003 by an NCI-UICC grant for international cancer research and technology transfer. I am going to commit[] to the MAIA program, get it done in a year, and then reassess. I can go on to work in international developmental aid or go on to do a residency. If I was pushing for a tenure track faculty position, it is in part because I wanted to pursue the first option, but do it gradually over 3 years under your wing. Of course, I was counting on that plan being in line with your grand scheme, i.e. developing international programs. Dr. Harrington responded that same day by sending Petitioner the following e-mail: Ok I can help you with letters etc. I understand and that sounds like a good program. I want to expand these studies to Africa and hopefully in the future we can work together. I need your help on this paper. I think you have done very nice work. Things are pretty tough in the academic arena these days. A few days later, on April 1, 2006, Dr. Harrington, upset with what he felt was Petitioner's continuing lack of respect for his supervisory authority over the operation of the lab, sent Petitioner an e-mail, in which he stated the following: I have given this some thought and I don't think that this is working out with you. I am tired to see that you have simply disappeared without even a word to me and although you do very nice work it isn't worth it to me at this point. I also did not like the way you simply dismissed the fact that I had to do the work as outlined in the grant. I have tried very hard to go out of my way to accommodate you but at this point I feel that I have no authority at all. I want you to sit down on Monday and give me all the data for this paper, raw and otherwise. I also received all the pictures from Iguarcyra and the tumors are on the way. If you don't want to finish this then I will send everything to [D]irk. It is too bad because there is a lot we could have accomplished. Later that month, on April 28, 2006, reacting to another instance of Petitioner's being away from the lab when he was expecting Petitioner to be there, Dr. Harrington sent the following e-mail to Petitioner: I have been waiting around here to look at the figures. If you don't come in you should call, or if you leave for the majority of the day, you should call. I have spoken to you about this to no avail. You are a smart guy but am sick of this. Finish your paper and find another job. You will have to leave the computer here too. I will not ask for a raise for you nor a faculty position. Dr. Harrington sent Petitioner a follow-up e-mail the next day, which read as follows: I really am disgusted. You have thrown away everything this year, both for you and me. Your unstable behavior makes me question everything you have done also and so I will have to cancel submitting this paper until Lan[4] or JC can repeat some of the work. You are throwing away your tuition benefits also and have adversely affected everyone, most of all yourself. I have contacted the appropriate ones about this. I strongly urge you to do all I have outlined below.[5] I will not consider anything else. In an April 30, 2006, e-mail to Dr. Harrington, Petitioner responded: I will let the facts speak for themselves. Prior to joining your lab, I spent over five years working in a highly interactive and competitive environment. My record is infallible. You have in fact benefited tremendously from my intellect, my experience and especially my poise. I trust you would assemble an ethics committee to probe my work. I expect a letter of termination in due form and I would transfer all of the research material accordingly. This e-mail generated the following response from Dr. Harrington, which was communicated to Petitioner later that day by e-mail: Poise, what a joke. If you walk off with the data and th[]e computer I will call security. The morning of May 2, 2006, Petitioner sent the following e-mail to Dr. Harrington: Dear Dr. Harrington: Per your request, I will transfer everything to Lan no later than next week, Monday the 8th. This was all a set up anyway, to bog me down in the lab. So I would not make a fuss about any of this. I will put this all behind me. Nonetheless, I have backed up every relevant document that exonerates me from any denigration. In a way, I should thank you for throwing me out to the world and bringing me to face my fears. So thank you. Valentine Dr. Harrington replied a little more than a hour later, stating in an e-mail to Petitioner: I have always t[h]ought that you were the smartest person that has worked for me. Your work is really beautiful and I certainly could not have done it. I am very disturbed over this and I don't see why you could not level with me. Your behavior at times was just too much, not your demeanor but the fact that you simply went on mental walkabouts and disappeared. You have to get a grip on your ego and not wear it on your sleeve. I had really thought we could have basically kicked ass in this area but I don't think that you realize the precarious nature of this business and that you have to be careful about straying into something or somebody that will leave you []no[] grant money. Valentine you can ask Joe. I spent most of my time bragging about your work to everyone. If you are smart, which you obviously are, then you don't have to go around telling that to people, they know. The most important thing is that you get along with people and when you would just not show up without even calling it really pissed me off. It was telling me that I am not even worth a phone call. I can be a real asshole, again ask Joe, and I have done myself harm from being so. But like it or not I am a lot older and more senior than you. You will far surpass me in research if you get a grip on your ego. If not there will be an ever shrinking number of people that care. I would like for you to call me on my beeper or cell. Petitioner defended himself in the following manner in an e-mail he sent to Harrington later that morning: You cannot say that I [am] an egomaniac. I give of myself and I give very generously. That is the record I left in Rochester and that is the record I have left in your lab. To say people there will be an ever shrinking number of people who care is again not true. You should know that whenever I call[ed] on a favor from Rochester, for example getting into the . . . MA in Intl Admin [program], the response was immediate and overwhelmingly positive. I never thought I was smart and never said it. This much I know, I work very hard and I have a generous heart and I will not l[]ose my way. Those are all the values I ever had and I will stick to it. God promised the path would be rough, but the landing would be safe. Again, thank you. Valentine. The final e-mail of the morning was sent by Dr. Harrington to Petitioner. In it, Dr. Harrington informed Petitioner: I am trying to get in contact with the [B]razilians and check on the id of the sa[m]ples one final time and I will try to submit the paper this week. The "paper" to which Dr. Harrington was referring in his e-mail was the manuscript (written by both Petitioner and Dr. Harrington) of the EBV microRNA research project Petitioner was spearheading (EBV microRNA Manuscript). On or about May 12, 2006, following an instance of Petitioner's not "com[ing] in [to the lab] nor call[ing] to advise [Dr. Harrington] of [his absence]," Dr. Harrington spoke with Petitioner about his "unexcused absences" and provided him with specific verbal instructions regarding his attendance and use of his work time. In a May 12, 2006, e-mail, Dr. Harrington informed Desiree Uptgrow of Sylvester's human resources office of the talk he had had with Petitioner and the directives he had given him. The e-mail read as follows: I spoke to Mr. Andela regarding his unexcused absences from work. I referred to the recent time on Friday, when he did not come in nor call to advise me of this. I also spoke to him about concentrating on work and not other activities while in the lab. I will not excuse this or any further incidents. He is expected to comply with the following: 1) arrival at work at a reasonable hour, by this I mean between the hours of 9 to 10 am and cessation of work at a reasonable hour by this I mean 5-6 pm. 2) Weekly goals will be outlined by me in terms of expected experiments to be performed (of course results may vary since the nature of research may not be predictable). 3) an attitude of collegiality in that if there is down time for whatever reason help would be offered by him to other lab personnel. 4) no unexplained long absences from the lab during the day. An expected lunch break of an hour is acceptable. Further deviations from the above will result in a second and third entry into his file whereupon he will be subject to dismissal. William Harrington MD As he put it in his testimony at the final hearing, Dr. Harrington "had no problem with [Petitioner's] going somewhere for an hour or going somewhere for a couple of hours and doing something, but [he] had problems with [Petitioner's] simply disappearing and not giving [him] . . . the courtesy of letting [him] know what was going on." On June 1, 2006, Dr. Harrington (as the corresponding author) submitted the EBV microRNA Manuscript (which was entitled, "Targeted Suppression of CXCL11/I-TAC by EBV encoded BHRF1-3 microRNA in EBV related B-Cell Lymphomas" and is hereinafter referred to as the "First Manuscript") to Blood, a medical journal published by the American Society of Hematology. Petitioner was listed as the first author in the manuscript. Among the other individuals given authorship credit were the Brazilian investigators. It was Dr. Harrington's decision to include them. He felt that "they clearly deserved to be co- authors" and that "it would have been unethical to not have included them." Petitioner disagreed with Dr. Harrington's assessment of the Brazilian investigators' entitlement to authorship credit. In a July 17, 2006, decision letter, Blood's associate editor advised Dr. Harrington that the First Manuscript had been evaluated and deemed "not acceptable for publication in Blood." On July 20, 2006, after what he considered to be further instances of insubordinate conduct on Petitioner's part, Dr. Harrington sent an e-mail to Ms. Uptgrow (as a follow-up to the May 12, 2006, e-mail he had previously sent her), in which he stated the following: There have been a couple of recent incidents which I want to submit in writing. Last week Mr. Andela called me and said that his flight from DC was cancelled or overbooked and he would be late. I replied that this was OK but he never called, emailed or showed up to work. Yesterday he came in past 11 am and also did not call. More concerning is that I had asked him to set up an experiment and later asked my lab tech to assist. When I spoke to my tech this morning he told me that Mr. Andela was not doing the experiment because he saw no reason to. I consider this to be insubordination. Later that same day (July 20, 2006), Ms. Uptgrow sent an e-mail to Nicole Lergier and Lynetta Jackson of Miller's human resources office advising of Dr. Harrington's desire for "assist[ance] in the termination of [Petitioner] based on [Petitioner's] continue[d] lack of following instructions " The afternoon of July 24, 2006, Dr. Harrington and Petitioner engaged in the following argumentative e-mail exchange, evidencing the further decline of their relationship: 1:51 p.m. e-mail from Dr. Harrington to Petitioner I asked you to do the bl-8 line and Peterson line. I don't care to hear that you chose not to do them. 2:05 p.m. e-mail from Petitioner to Dr. Harrington Sorry but I don't know what you are talking about - and it is very disconcerting. I told you we had done the BL8 line and you told Lan to send the Peterson line to Dittmer for profiling. That's where we left off on that - this was reiterated at the meeting you convened with Lisa, Lan, Julio and I. 2:10 p.m. e-mail from Dr. Harrington to Petitioner No that is not true. Lan said that you did not want to do another primary and I said repeatedly that I wanted it done. Your problem [V]alentine is that you think that you are in charge, ie I want a tenured position, I don't want to do old things etc. while I have to keep the grant money coming in. I respect your ability to do certain things and you are a s[m]art guy but clearly you would prefer to be autonomous. The question is how do you attain that. 2:44 p.m. e-mail from Petitioner to Dr. Harrington Dr. Harrington- that is hearsay - you and I had this conversation over the BL8 and the P[e]terson and I said the BL8 had been done and I would run the P[e]terson line in parallel with the dicer exp[erimen]t, once I had gotten the conditions right. I don't think I am in charge - and just how could I, when day in and day out you seek to undermine every "independent" effort I make, that's what[']s expected of a post-doctoral fellow... Every independent effort I have led has panned out - not because I am smart but because I put the time and effort to think it through. When I joined your lab, it was on a 1 year stint - and now I am starting on my second year because you[] wanted it that way. I joined your lab to work on NFkappB, which is what you are funded for and what I had some expertise in, but then you had me work on something totally novel - miRNAs - and the work is done. If I asked for a tenure track position - it is because I recognized (or I thought I did) that you needed someone permanent in the lab - furthermore I was investing too much time and effort on the miRNA work... despite my best efforts (which you do not acknowledge) this is not working out. So I am going right back to the drawing board by doing a residency - we had agreed on this back in May that I was taking a month off in August to do a rotation. I am taking off to Europe for a short vacation on the 6th of August to prepare for my 2 week clinical rotation. So to answer your question - I am giving up on any autonomy and I am going right back to doing a residency. 3:02 p.m. e-mail from Dr. Harrington to Petitioner You never told me about vacation time but ok... you said you would be out for aug (without pay) so am I to presume that aug 6th will be your last day? We don't seem to get along and that's that, no hard feelings. 3:09 p.m. e-mail from Petitioner to Dr. Harrington August 5th would be my last day. 3:17 p.m. e-mail from Dr. Harrington to Petitioner And I will try my best to make sure that happens[.] [Up] until the 5th I would appreciate it if you did run Peterson and bl-8 since they will be cleaner than the primaries. Although not obligated to do so, Dr. Harrington agreed to make sure that Petitioner was paid for the two weeks that, according to his July 24, 2006, 2:44 p.m. e-mail to Dr. Harrington, he was going to be spending doing his clinical rotation (after his trip to Europe). Petitioner left Miami on August 5, 2006, and went to Russia to participate in a two-week "short course" for which he received three credits towards his MAIA degree at UM. (He had enrolled in the MAIA degree program earlier that year.) On August 10, 2006, while he was still in Russia, Petitioner sent the following reply to an e-mail he had received from Dr. Harrington "regarding when [his] return date from the 2 week clinical rotation would be": Sorry I missed that - the 8th of September. Thanks. Petitioner returned to Miami from Russia on August 18 or 19, 2006, "exhausted" and "burned out." He stayed home to rest until returning to work on September 8, 2006. He never did the clinical rotation he told Dr. Harrington he was going to do, but he nonetheless was paid by UM (as Dr. Harrington said he would be) for the two weeks he represented he was going to be engaged in this activity. At no time during his absence from work did Petitioner tell Dr. Harrington he was, in fact, not doing a clinical rotation. He concealed this information because he "wanted to avoid a confrontation" with Dr. Harrington. Dr. Harrington, however, was not entirely in the dark about the matter. On August 22, 2006, through e-mail correspondence, he had checked with Dr. Symes to see if Petitioner had "ever showed up for a clinical rotation" at Jackson Memorial and had been told by Dr. Symes that he had "not heard from [Petitioner] at all." When Petitioner returned to work on September 8, 2006, Dr. Harrington asked him for documentation showing that he had done a clinical rotation at Jackson Memorial during the time he had been away. Petitioner told Dr. Harrington that he did not have any such documentation. Dr. Harrington understood Petitioner to "follow[] that up by saying he had done a clinical rotation in Rochester." Dr. Harrington then "asked [Petitioner] for documentation of that clinical rotation," which Petitioner was unable to produce. The conversation ended with Dr. Harrington telling Petitioner to leave the lab and go home, explaining that he would be bringing the matter to the attention of the human resources office. At this point, Dr. Harrington had decided that it was "just impossible to continue the working relationship" he had with Petitioner and that Petitioner had to be terminated. He was convinced that Petitioner had lied to him about doing a clinical rotation and that, by having been absent from work for the two weeks he was supposed to have been doing such a rotation, Petitioner had effectively abandoned his job. Moreover, Dr. Harrington felt that Petitioner had "exploited" him and was continuing to disregard his supervisory authority. Later in the morning on September 8, 2006, Petitioner sent Dr. Harrington the following e-mail: Hi Dr. Harrington This is just written confirmation that you asked me not to resume work today and to stay away until you had convened a meeting with human resources. Thanks Valentine Petitioner never returned to Dr. Harrington's lab. September 8, 2006, was his last day in the "work environment" of the lab. As he had promised he would, Dr. Harrington made contact (by e-mail) with the human resources office. He concluded the e-mail by stating: At this point, under no circumstances will I allow Mr. Andela back into my lab and he is dismissed. Lynetta Jackson of the human resources office responded to Dr. Harrington by sending him, on September 11, 2006, the following e-mail: Dr. Harrington, We're required to follow a process when terminating employees. As we discussed a few weeks ago, all terminations must be approved by Paul Hudgins.[6] I'm still out of the office for medical reasons. This matter is being referred to Nicole Lergier/Karen Stimmel for follow-up. Nicole Lergier was the human resources employee who handled the matter. Ms. Lergier met with just Petitioner on September 14, 2006. At the outset of the meeting, she informed Petitioner that there was a "request for [his] termination" made by Dr. Harrington. She explained that Dr. Harrington "was concerned that [Petitioner] had taken several weeks off to complete a clinical rotation for which [Petitioner] had been paid but [for] which [he] had never registered," and that Dr. Harrington considered Petitioner's conduct to be "job abandonment and . . . grounds for immediate termination." She then went on to tell Petitioner that the purpose of the meeting was to give Petitioner the opportunity, without Dr. Harrington's being present, to give his side of the story and "to bring forward any issues." Petitioner took advantage of this opportunity. He defended himself against the charges Dr. Harrington had made against him and countercharged that Dr. Harrington had been abusive, "manipulative[,] and unprofessional." At no time did Petitioner complain to Ms. Lergier that Dr. Harrington was "prejudiced against [him] because [he was] black or because [he was] from Cameroon." Petitioner indicated to Ms. Lergier that he "had no interest in going back to Dr. Harrington's lab," but that, among other things, he wanted the EBV microRNA Manuscript to be published. On the same day that the meeting took place, Petitioner sent the following e-mail to Ms. Lergier: This is in response to Dr. William J. Harrington's complaint that I abandoned my job functions. The attached e-mails dated Monday 7/24/2006 indicate that I was gone on leave, without pay. What[']s more, there [is] evidence of professional misconduct, manipulation and negative inputs on Dr. Harrington's part. This is not the first instance. The e-mails dated Tuesday 5/2/2006 to 4/28/2006 document another one of many such instances. The time I took off in August was not nearly enough to recover from a tremendously negative work environment where I nonetheless made many positive contributions, in ideas, manuscripts and grants. The facts speak for themselves. At this point, I do not intend to return to work with Dr. Harrington and I trust Human Resources would find a constructive solution to this problem. Approximately an hour later, Petitioner received an e- mail from Dr. Harrington, which read as follows: Your paper will be submitted with you as first author. I have 9 tumor blocks corresponding to the patients in [B]razil and a couple of new ones here that we will assay for eber, cxcl-11 (we got a new ab.) and LMP-1. Lan has repeated the rpa's on the lines (BL-5, R) and several new primaries and they look very good, cleaner than the previous ones. Once I get this done I will send you a draft prior to submission. Dr. Harrington subsequently submitted a revised version of the First Manuscript (Revised Manuscript) to Blood. The Revised Manuscript was "shorter," but not "substantially different from the [First] [M]anuscript." Petitioner was still listed as the first author, which Dr. Harrington "thought was [only] fair since . . . [Petitioner] had done most of the lab work on that article." Dr. Harrington did not believe that, in submitting an "abbreviated" manuscript with Petitioner's name on it as first author, he was doing anything that was contrary to Petitioner's interests or desires. Notwithstanding Dr. Harrington's best efforts, the Revised Manuscript, like the First Manuscript, was rejected for publication in Blood. Although listed as the first author, Petitioner had not "sign[ed] off" on, or even seen, the Revised Manuscript before its submission to Blood. He ultimately received an e- mailed copy from Dr. Harrington. The next day, upon running into Dr. Harrington on the UM campus, Petitioner told him: [Y]ou cannot put my name on a paper that I didn't write. You can't have me as a first author on a manuscript that I didn't sign off on. Take my name off that paper. I have moved on. Dr. Harrington complied with Petitioner's request. Petitioner's name was not on the version of the EBV microRNA Manuscript Dr. Harrington submitted to another medical journal, Cancer Research, "sometime in late 2007," which was accepted for publication and published in March 2008. On or about September 20, 2006, Petitioner was contacted by Ms. Uptgrow and given the option of resigning his position or being terminated. Petitioner told Ms. Uptgrow that he "wasn't going to resign." On September 25, 2006, Dr. Harrington sent Petitioner the following letter, advising Petitioner that his employment was being terminated "effective immediately": As you know, you have been counseled many times regarding your unsatisfactory performance and attendance issues. Unfortunately, these problems persist despite our counseling efforts. There have been several emails and conversations that have taken place, which you were advised that any further incidents would result in additional disciplinary action. Specifically, we had agreed you would take the weeks of August 5, 2006 - August 18, 2006- off for vacation and this would [be] followed by a 2 week clinical rotation[.] [Y]ou notified your supervisor that you would return on September 8, 2006, 3 weeks after completing your vacation. Despite all of the previous warning and effort to work with you on the problems that concerned your supervisor, it has continued. Due to your failure to adhere to University policies and procedures and ongoing problems, you have left us no alternative but to terminate you effective immediately. Any accrued vacation will be paid to you in your final paycheck. You are to return all University property issued to you upon employment to Desiree Uptgrow to expedite the processing of your final check. Please contact Benefit Administration, (305)284-6837, regarding continuation of benefits you may be entitled to. You should receive information regarding COBRA benefits from the Office of Benefits Administration in a separate letter. If you do not receive this letter, please contact the Office of Benefits Administration at (305)243-6835. Dr. Harrington's termination of Petitioner's employment was based solely on what Dr. Harrington perceived to be Petitioner's deficiencies as an employee. Neither Petitioner's race, nor his national origin, played any role in this or any other action Dr. Harrington took affecting Petitioner. On September 29, 2006, four days after his termination, Petitioner sent the following e-mail to Dr. Harrington: Hi Dr. Harrington: Dr. Symes urged me to do a 2 week clinical rotation/observership with Hem/Onc as the department of internal medicine no longer offers this. Would it be possible to do it with you, starting next week, Wednesday the 3rd of October. Thanks for your consideration. On the advice of UM legal counsel, Dr. Harrington did not respond to this e-mail. Instead of seeking other employment following his termination, Petitioner "focused" on completing the requirements to obtain his MAIA degree at UM. In accordance with UM policy, he continued to receive tuition remission benefits for the 2006 fall semester (the semester in which he was terminated), but after that semester, the benefits ceased. Petitioner believes that he has completed the requirements for his MAIA degree and is entitled to receive his diploma and final transcript, which UM has withheld. UM's records, however, reflect otherwise. They reveal that he has not yet received any credit for the Practicum in International Administration (INS 517) course that he needs to obtain his degree. This course involved Petitioner's writing and defending a thesis. In the spring of 2007, while Petitioner was working on his thesis, his car, which was parked on the UM campus, was ticketed by the City of Coral Gables police and subsequently towed by Downtown Towing Company for "safekeeping." After unsuccessfully attempting to retrieve his vehicle, he demanded that UM compensate him for his loss. UM (acting through its Assistant General Counsel, Judd Goldberg, Esquire) and Petitioner engaged in settlement negotiations. At least as early as August 8, 2007, UM insisted, as a condition of its agreement to any settlement, that Petitioner sign a full and general release reading, in pertinent part, as follows: In exchange for the promises which the University makes in this Agreement, Andela agrees to waive voluntarily and knowingly certain rights and claims against the University. . . . . The rights and claims which Andela waives and releases in this Agreement include, to every extent allowed by law, those arising under . . . the Civil Rights Acts of 1866, 1871, and 1964, . . . the Florida Civil Rights Act of 1992 . . . and any amendments to said laws. This is not a complete list, and Andela waives and releases all similar rights and claims under all other federal, state and local discrimination provisions and all other statutory and common law causes of action relating in any way to: (a) Andela's employment or separation from employment with the University which accrued or may have accrued up to the date of execution of this Agreement; and/or (b) Andela's status as a student at the University which accrued or may have accrued up to the date of execution of this Agreement. . . . On September 13, 2007, Petitioner filed his employment discrimination complaint with the FCHR (complaining, for the first time to anyone, that he had been a victim of race and national origin-based discrimination by UM, acting through Dr. Harrington). On September 22, 2007, Petitioner sent the following letter to Mr. Goldberg: I will not surrender my civil rights by signing the full and general release agreement, in order to receive a settlement for my above referenced car that was swindled. Compelling me to surrender my civil rights is an act of retaliation, based on your knowledge of an employment discrimination complaint filed against the University of Miami. As specified on page two-paragraph two- of the attached letter from the Florida Commission on Human Relations (FCHR), "the law prohibits retaliation against any person making a complaint, testifying or participating in an investigation, proceeding, or hearing on an alleged unlawful employment practice." Unless you correct this unlawful act by the end of business day - Monday 24th of October - I will notify the FCHR. Mr. Goldberg responded by sending Petitioner the following letter, dated September 24, 2007: This letter acknowledges receipt of your correspondence of September 22, 2007 addressed to myself and President Shalala. The University does not believe that the settlement and general release agreement is retaliatory. Indeed, the settlement and general release agreement was provided to you before you filed a Charge of Discrimination with the Florida Commission on Human Relations. At this juncture, the University will respond to the Charge of Discrimination filed with the Florida Commission on Human Relations when it is formally advised of the charge by the Commission.[7] If you have any further questions regarding this matter, please call my office directly as it is my office that handles all legal matters for the University. Thank you for your attention to this matter. This letter constitutes communication regarding settlement and cannot be used for any other purpose. At no time has Petitioner filed any employment discrimination complaint with the FCHR alleging that he was retaliated against for having engaged in activity protected by the Florida Civil Rights Act of 1992 (although he did make such allegations in the Petition for Relief he filed in the instant case).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding UM not guilty of the unlawful employment practices alleged by Petitioner and dismissing his employment discrimination complaint. DONE AND ENTERED this 24th day of July, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2008.
The Issue Whether Respondent Florida Department of Economic Opportunity (the Department or DEO) engaged in discriminatory practices, concerning Petitioner’s disability, 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. Wright was an Employment Program Specialist with the Department’s Reemployment Assistance Division. Although she primarily worked in the Special Programs Child Support unit, she was also assigned to the Benefit Records unit during her employment with the Department. Ms. Wright testified that her issues with the Department started in 2014, and continued until her resignation on August 15, 2018. In 2014, Ms. Wright began experiencing serious medical issues, including bowel and bladder trouble, fatigue, and fibromyalgia. In September 2014, she took a month of leave from her employment because of these medical issues. Upon her return, Ms. Lampkin, who worked in DEO’s human resources department (HR), primarily focused on payroll, and Ms. Wright’s then-supervisor, Ayman Youseff, instructed her to use “leave without pay” for additional absences. Ms. Wright testified that after her return in 2014, Mr. Youseff began harassing her after she took another leave from employment, in the form of requiring her to provide additional supporting medical documentation for the leave. When Ms. Wright informed Mr. Youseff that his request was incorrect, he apologized and advised his supervisors of the mistake. Ms. Wright and her former co-worker, Ms. Milton, both testified that Mr. Youseff was rude and unprofessional. Ms. Milton testified that Mr. Youseff also had issues with Ms. Wright concerning her absences due to illnesses, and with other employees donating leave to Ms. Wright. Ms. Wright also testified that Mr. Youseff made her turn in her timesheets to him directly, as opposed to HR. Ms. Wright testified that she viewed this request, as well as requests from HR to use donated sick leave after she had exhausted all other remaining leave, and ultimately to use leave without pay—which she acknowledged were prompted by her absences from work during this time period—as harassment. In February 2015, Ms. Wright requested a transfer back to a previous unit within DEO, under a supervisor she liked, because she felt she was being harassed. DEO granted her transfer request in less than two weeks. Ms. Wright’s new supervisor was Mr. Leonard. However, after her transfer, Ms. Wright’s medical conditions did not go away. In September 2016, she submitted a request for a modified schedule accommodation to Mr. Huddleston, in DEO’s Office for Civil Rights, which noted that she had issues in the mornings because of her medical condition. DEO granted this request, and changed Ms. Wright’s work schedule to 10:30 a.m. through 6:30 p.m. Beginning in early 2017, DEO overpaid Ms. Wright several times because she failed to complete her timesheet and failed to timely document her use of leave without pay. In August 2017, Ms. Wright took a one-month absence from employment because of her medical issues, and was frequently absent from work during the following few months. During this time period, an HR employee accepted Ms. Wright’s incorrect timesheets for those time periods, and recouped each month’s overpayment from the following month’s pay. This became an issue for DEO because Ms. Wright utilized leave without pay for most of the month of August; however, the resulting lack of funds owed to her precluded DEO from immediate recoupment. Ms. Lampkin, who had left her employment with DEO but returned to her position in August 2017, recognized the payment issue with Ms. Wright. Ms. Lampkin testified that, because of Ms. Wright’s submittal of timesheets that utilize leave without pay after the payroll deadline for correcting timesheets, DEO’s HR department began paying Ms. Wright “on-demand,” i.e., payment for hours that she actually worked, to avoid overpaying Ms. Wright month after month. DEO introduced into evidence the Bureau of State Payroll Manual (Manual), which governs DEO’s handling of payroll issues. With respect to salary overpayment, the Manual states that “Agencies are responsible for identifying and preventing salary overpayments ” Although Ms. Wright contends that this switch from recoupment (which resulted in salary overpayment) to payment on-demand was evidence of harassment based on her disability, she also testified, on cross-examination, that “it’s verified in [the Manual] that it could be done that way.” Ms. Lampkin also credibly explained an issue that arose with Ms. Wright’s allegation that DEO canceled her insurance benefits, which Ms. Wright considered additional harassment. Ms. Lampkin testified: The term canceled is kind of an overstatement. There is a glitch in their insurance if I have to cancel their check and pay them on demand, because that means that the payment doesn’t go over when the regular payroll runs, and it gets paid on supplemental, and it’s usually on the same date that their payday is, but then it’s—the payment to the insurance companies would be sent at a later date than the other ones. It would be a lag time there. * * * If I canceled their monthly paycheck, that stops payment going to any pretax deductions; it would stop them. And then by paying them on demand, that would create the payment and send it over, but the difference in an on-demand and the regular payroll is processed approximately one week before payday. And on-demand is processed three days before payday. Technically two days, because the third day is when they get paid so—so it’s that lag time from a week to down to three days. Ms. Wright also testified that DEO engaged in harassment in discouraging other employees from donating sick leave to her. For example, in 2018, Ms. Wright testified that DEO hindered Charlie Davis, a DEO management level employee, from donating hours to her. DEO presented evidence that Ms. Wright was the recipient of many sick leave donations during her employment; all told, she received and used over 1,000 hours between 2014 and her resignation. Although Mr. Davis had donated sick leave hours to Ms. Wright previously, Ms. Pottle, who was Ms. Lampkin’s supervisor in DEO’s HR Department, explained that DEO employees in a supervisory or management position “are highly discouraged from donating to employees because it – it could be construed as favoritism.” Ms. Wright testified that she discussed Mr. Davis’s intention to donate additional sick leave hours with another DEO employee, and Mr. Davis was ultimately permitted to donate sick leave to Ms. Wright. On February 6, 2018, in response to Ms. Wright’s expressed concerns, individuals in Ms. Wright’s supervisory chain and Ms. Lampkin, met with Ms. Wright to discuss two options she could use in an attempt to resolve her leave and payroll issues: (a) be paid on-demand early, with the balance paid after she finalized her timesheet at the end of the month; or (b) remain on automatic pay, but provide donated leave hours and any necessary medical certification supporting their use by the 15th of each month. Following the February 6, 2018, meeting, Ms. Wright began providing medical certifications, which stated that she needed time off from work intermittently to attend medical appointments. Ms. Wright testified that she believed that these medical certifications allowed her to arrive for work as late as she felt necessary due to her medical condition. Ms. Wright, during a June 5, 2018 meeting with Mr. Leonard, expressed this belief; Mr. Leonard, in an email to Ms. Wright that same day, asked her “to provide supporting documentation regarding the need to arrive at work after 10:30 a.m. since the most recent documentation reflects a schedule of 10:30 a.m. to 6:30 p.m.” Mr. Leonard also testified about his team’s experience covering for Ms. Wright when she was absent. He stated that Ms. Wright cross-trained other members of this team to complete her work in her absence. However, when covering for Ms. Wright, these team members would then have work duties above and beyond their regular work duties. On June 8, 2018, Ms. Wright submitted a request to Mr. Huddleston in DEO’s Office for Civil Rights requesting a flexible, part-time schedule that would allow her to arrive for work between 10:30 a.m. and noon, and end her workday at 6:30 p.m. (Second Accommodation Request). With this Second Accommodation Request, Ms. Wright also submitted a letter from her physician stating that she was unable to arrive to work and do her job before 10:30 a.m., and would benefit from the flexible schedule she requested. At the time of Ms. Wright’s Second Accommodation Request, DEO’s Reemployment Assistance program was undergoing a significant reorganization. Ms. Wright worked in the Special Programs unit of DEO’s Reemployment Assistance program at that time. Mr. Huddleston testified that, after receiving Ms. Wright’s Second Accommodation Request, DEO decided to deny it. In an email dated July 11, 2018, Mr. Huddleston wrote: After reviewing your request, at this time, your request, to modify your accommodation of a flexible part-time work schedule is denied. Currently your accommodation allows you to work at 10:30 AM instead of your regularly scheduled start time of 8:00 AM. Your new accommodation request asks that you be allowed to arrive at work after 10:30 AM but before 12:00 PM. In making this decision our office has spoken with your management team and has determined that this modification would cause an undue hardship. This modification to your existing accommodation would also require a lowering of performance or production standards. Based on these two factors, we have determined that you would not be able to perform the essential functions of your position if this modification were to be put into place. The Equal Employment Opportunity Commission states that essential functions are basic job duties that an employee must be able to perform, with or without a reasonable accommodation. These duties must be performed to achieve the objectives of the job. As part of this, and all accommodation request reviews, our office analyzed your position to determine its purpose and essential functions, consulted with your management team, and researched and explored accommodation options to assess the effectiveness of the accommodation. During this interactive process we explored the possibility of reassigning you to another position that was as close as possible to your current position in status and pay; however, we were unable to find a suitable position. There are no part-time positions currently available and the essential functions of your position can not be completed working the hours you requested. Our office would be more than happy to meet with you to discuss this further and to explore other accommodation options that you and/or your medical professional come up with. However, on July 10, 2018—the day before Mr. Huddleston sent the email denying the Second Accommodation Request—Ms. Wright went on another month-long leave of absence from her employment because of her worsening medical condition. Ms. Wright testified that she believed that DEO would approve of her Second Accommodation Request and that, after returning to work, she would start the new schedule. Ms. Wright testified that she did not know the status of her Second Accommodation Request until she returned to work (after her month-long leave of absence) on August 13, 2018, and read Mr. Huddleston’s email. She sent him the following email response later that afternoon: Thanks for reviewing my request to modify my work schedule. I understand that there is no part- time positions available; but I was referring to me working at least 30 hours per week. When I met with my supervisor Marche and Joel in June concerning me arriving later than my scheduled time 10:30 AM, I advised them that I needed to request a modification to my previous work schedule because I moved back home with my mom which is outside of Quincy due to my health. I also advised them that it was impossible for me to arrive to work at 10:30 AM due to the distance I had to travel and the medications I take. I informed them that 11:15 or 11:30 would work better for me because I understand that my job consists of duties that must be performed in order to achieve the objectives outlined for the job. Please let me know when there’s a good time for us to meet. Thanks again for your help concerning this matter. Rather than wait for Mr. Huddleston’s response, Ms. Wright resigned on August 15, 2018, by a letter that she left in a co-worker’s chair. This resignation letter does not identify any reason for her resignation. On August 20, 2018, Mr. Huddleston—unaware of Ms. Wright’s resignation—actually responded to Ms. Wright’s August 13, 2018, email, inviting her to meet with him about her concerns. Ms. Wright testified that she has not sought out employment after her resignation from DEO because of her medical condition. Ms. Wright presented no persuasive evidence that DEO’s actions subjected her to harassment based on her disability, or that such actions were sufficiently severe or pervasive to alter the terms and conditions of her employment to create a hostile work environment. There is no competent, substantial evidence in the record upon which the undersigned could make a finding of unlawful disability harassment or hostile work environment. Ms. Wright presented no persuasive evidence that, at the time of her resignation, her working conditions were so intolerable that a reasonable person in her position would have felt compelled to resign.
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 Angela Wright’s Petition for Relief. DONE AND ENTERED this 19th day of January, 2021, 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 19th day of January, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Angela Michelle Wright 4102 Greensboro Highway Quincy, Florida 32351 (eServed) Dominique Gabrielle Young, Assistant General Counsel Department of Economic Opportunity 107 East Madison Street Tallahassee, Florida 32399 (eServed) Brandon W. White, Esquire Department of Economic Opportunity 107 East Madison Street, MSC 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent is guilty of unlawful employment practices; to wit: disparate treatment due to Petitioner's race (Hispanic) and/or retaliation.
Findings Of Fact Petitioner is an Hispanic female. At all times material, Petitioner was employed as a Registered Nurse, Nursing Supervisor, by Respondent. Respondent is a rehabilitative nursing facility in Gainesville, Florida, which qualifies as an "employer" under Chapter 760, Florida Statutes. Since the situations complained-of by Petitioner occurred, Petitioner has continued to be employed by Respondent with no breaks in service, no decreases in pay, no change in benefits, and no demotions in rank. At all times material, Respondent has employed Caucasians, Hispanics, African-Americans, and persons of Indian sub-continent descent. Petitioner signed on March 23, 2007, and on April 5, 2007, filed a Charge of Discrimination with FCHR. The Charge alleged that the Employer Respondent had perpetrated an unlawful employment practice upon Petitioner due to her race (Hispanic) and in retaliation. On July 25, 2007, FCHR entered and served a Determination: No Cause. On August 27, 2007, Petitioner timely filed a Petition for Relief. However, her Petition for Relief only alleged discrimination on the basis of retaliation. The retaliation named was that "my evaluation would be done in a group because of a meeting with Mr. Hamilton and Mr. Hawkins." There are no references whatsoever to race or national origin within the Petition for Relief. The Petition does not specifically allege pattern, or on-going discrimination. It does not specifically allege harassment or hostile work place. It suggests only that Petitioner feels that she does not get respect and is "attacked without evidence." Via her Petition, Petitioner seeks the remedy of ". . . that they [the employer] pay for all my therapies and medication and pay for the meetings I attended.” Early on September 5, 2006, Petitioner was standing in line to punch-in on her timecard at Respondent’s facility. Barbara Washington, an African-American CNA, was standing directly behind her. Petitioner shielded her social security number from Ms. Washington’s gaze. Later the same day, Petitioner was rolling a medicine cart down the hallway in Unit Two of Respondent's facility. Ms. Washington was taking a dinner break, seated in a position near the nursing station, which permitted her to view the patients assigned to her. Unfortunately, Ms. Washington's position did not permit Petitioner and the medicine cart to pass. Petitioner requested that Ms. Washington move, so as to let Petitioner and the medicine cart pass. Ms. Washington spoke sharply to Petitioner, either because Petitioner asked her to get out of the way of the medicine cart or for reasons of Ms. Washington's own related to the morning punch-in. During a later investigation by Director of Nursing (DON) Lisa Woods Streer, several versions of what Ms. Washington actually said were elicited. However, the best and most credible evidence on this particular point is Petitioner’s testimony that Ms. Washington loudly used profanity (“the F word”) directly to Petitioner. There is, however, no evidence that, whatever the exchange entailed, any patient was disturbed, upset, or even aware of the exchange, and there is no evidence that the statements from Ms. Washington had anything to do with Petitioner’s Hispanic origin or any type of employer “retaliation.” At least three hours later on September 5, 2006, after Ms. Washington had gone off-shift and was standing outside the facility waiting for a ride home, Petitioner handed Ms. Washington a disciplinary form, known as “a counseling slip.” At that point, Ms. Washington refused to sign the counseling slip and, screaming loudly, denunciated Petitioner with additional profanity similar to her earlier verbal abuse. This language was overheard by Yadira Chavala, who was inside the building making out reports. Ms. Chavala stood up and looked out the window so as to determine who was yelling the profanity. Ms. Chavala considered the volume and content of Ms. Washington's comments to be unprofessional and unacceptable, but she did not take it upon herself to report the incident to the DON, who was not present in the facility at that time of the evening. Again, there is no evidence that Ms. Washington was attacking Petitioner’s ethnicity or acting on behalf of the employer in her screams at Petitioner. Petitioner, however, reported to the DON both incidents of loud profanity and insubordination from Ms. Washington towards Petitioner, via a copy of the counseling slip she had given to Ms. Washington and a note slipped under the DON’s door. DON Lisa Woods Streer, found these items when she came on duty the next morning, September 6, 2006. Pursuant to Respondent’s protocol, Ms. Streer asked Unit Director Karen Derrico to take written statements from staff, concerning the med-cart incident which had occasioned the counseling slip from Petitioner. The general tone of the feedback that Ms. Derrico got was that everyone in the facility had heard about the medicine cart incident, but there were no clear and reliable eye witnesses. Ms. Washington did not immediately own-up to her conduct and told DON Streer that Petitioner had made Ms. Washington feel like a thief by covering Petitioner’s social security number when they punched-in together the morning of September 5, 2006. The DON viewed this comment by Ms. Washington as a counter-accusation of some kind (possibly a complaint of discrimination) against Petitioner, and so the investigation continued. At some point, Ms. Chavala came forward to describe what she had heard from inside the building when Ms. Washington was cursing in the patio/parking area. Petitioner did not like the taking of statements and considered the process to be an attack on herself. She also did not like the fact that she was called in for a meeting on September 13, 2006, but was informed after she had arrived that the meeting had been put off to the next day. By September 13, 2006, the decision to discipline Ms. Washington had been made, because by that time Ms. Chavala had come forward concerning the second incident, but because the DON felt that Petitioner “had backed Ms. Washington into a corner” Petitioner required some counseling. Upset that a meeting was to take place the next day, Petitioner telephoned Mr. McKalvane of Respondent’s Human Resources Department in Pensacola, to complain about how the September 5, 2006, situation was being handled. Petitioner testified, without corroboration, that Mr. McKalvane told her that he could not talk to her before the next day’s meeting, but would attend the meeting by speaker phone. On Thursday, September 14, 2006, a two-hour meeting was held at the facility. DON Streer; Administrator George C. Hamilton; Unit Director Derrico; Ruthie Moore, the facility’s Staff Development Coordinator; and Petitioner were present. Streer, Hamilton, and Derrico are Caucasians. Moore is African- American. Mr. McKalvane's race/national origin is not of record, but he did not appear at the meeting, even by telephone. Petitioner felt betrayed because Mr. McKalvane did not attend the September 14, 2006, meeting by telephone. At the September 14, 2006, meeting, Ms. Moore suggested that if Petitioner had known that Ms. Washington was upset, it might have been wise for Petitioner to wait until the next day to hand Ms. Washington her counseling slip. Petitioner was offended by this comment because she believed her delay of three hours after the medicine cart incident before issuing the counseling slip had been sufficient. At the September 14, 2006, meeting, DON Streer suggested that Petitioner might want to get with Ms. Moore for some in-service instruction on how to be a better supervisor. Petitioner was offended by this suggestion, because Petitioner perceived no fault in her handling of Ms. Washington. At no time has Petitioner ever been required by the employer to take supervisory in-service training as a result of the September 5-14, 2006, events. In fact, Petitioner has not taken such training or any similar one-on-one training or in- servicing with the employer, and she has not been penalized for not doing so. As a result of Petitioner’s counseling slip concerning the September 5, 2006, incidents with Ms. Washington, Ms. Washington was suspended from work for one day without pay, but Petitioner was not disciplined in any way concerning Ms. Washington’s accusations. Petitioner suffered no discipline or loss in pay, position, or benefits as a result of the September 5, 2006, or September 14, 2006, events. Petitioner submitted that the employer’s punishment of Ms. Washington was somehow discriminatory against Petitioner because it took management nine days to come to the one-day suspension of the person that Petitioner wanted to be disciplined. However, the only comparator that Petitioner was able to offer was a situation which occurred a year later, in 2007. On that occasion, an oral confrontation occurred between an African-American female worker and a Caucasian female supervisor. There is no specific evidence concerning how similar the 2007 incident was to any of the September 5, 2007, incidents involving Ms. Washington and Petitioner. However, in the 2007 incident, the African-American female immediately admitted wrong-doing, and the very next day, the employer suspended her for one day without pay, just as the employer had suspended Ms. Washington for one day without pay in 2006, in response to Petitioner's counseling slip. Ms. Streer testified credibly that in 2007, the investigation and counseling period was shortened by the subordinate’s immediate admission of wrong-doing and lack of accusations against her reporting supervisor. Approximately September 20, 2006, Petitioner sent a 19- page, typewritten letter of complaint to Respondent’s corporate headquarters. The scope of this letter is not clear because it is not in evidence. Petitioner was supposed to be evaluated annually each September, but she did not receive her evaluation in September 2006. She reminded the DON in November 2006, that she had not yet been evaluated. Shortly thereafter, Petitioner received her annual evaluation which bears a date of October 5, 2006, signed on October 22, 2006, by Weekend Nursing Supervisor Sneha Rema, R.N. Supervisor, and signed-off on by DON Sterer on October 31, 2006.1/ Ms. Rema received no input for her 2006 evaluation from the DON or Administrator. By observation, Ms. Rema appears to be a member of one of the ethnic groups originating on the Indian sub-continent. She rated Petitioner as "exceptional" in categories "work quality," "work quantity/productivity," and "compliance & adherence to policies," and as "meets expectations" in categories "core values" and "leadership skills." Under the 2006, evaluation's heading, "Areas of Improvement, Developmental and/or Upcoming Objectives," Ms. Rema put this comment about Petitioner: May improve her leadership skills by attending seminars on interpersonal relationship and how to influence others to accomplish goals in constructive way and team building from a constructive point-of- view. Ms. Rema approaches evaluations with the belief that each employee has different levels of education and skills, should be encouraged to constantly improve, and can best improve if supervisors point out to the employee performance areas susceptible of improvement by the employee. This viewpoint was Ms. Rema’s sole motivation in making the foregoing comment. Ms. Rema views these types of comments as a way of pointing out goals, not failures. Contrariwise, Petitioner holds the personal belief that unless every single nurse received identical language on the foregoing part of his or her respective annual evaluation, regardless of that employee’s individual circumstances and regardless of who wrote the evaluation, then Petitioner has suffered a personal attack and discriminatory treatment by the employer. There is no evidence that the 2006, evaluation caused Petitioner any loss of pay, position, benefits, or hours. In fact, she received a raise. If the raise was delayed by one month, that information does not appear in the record. At some point between September 20, 2006, which was the date of Petitioner’s letter, and the end of November 2006, (the exact date is not of record), Mr. Ken Hawkins, a consultant of Respondent’s corporate personnel office in Tampa, journeyed to the facility and met with Petitioner to try to resolve her concerns. Mr. Hawkins race/national origin is not of record. The meeting was more acrimonious than harmonious and ended with Mr. Hawkins advising Petitioner that her concerns “were history” and he was not going to go over everything that had already been addressed. Petitioner was offended by Mr. Hawkins’ description of the events that concerned her as “history”; because she felt he yelled at her; and because she felt he had made her come to the facility for a live meeting when he could have just told her “no” over the phone. The two-hour September 14, 2006, counseling meeting and the brief meeting sometime after September 20, 2006, during which Mr. Hawkins told Petitioner he was not going to go over her concerns again are the meetings for which Petitioner feels Respondent employer should pay her. Sometime after her meeting with Mr. Hawkins, Petitioner filed a discrimination complaint with the City of Gainesville Office of Equal Opportunity. The date of this complaint is uncertain. However, it had to precede March 9, 2007, because on that date, in response to the city action, and in accord with Respondent’s Human Resources Office’s instructions, Administrator Hamilton wrote Petitioner and provided her with the Respondent’s 1-800 telephone number to report discrimination. Respondent has an anti-discrimination policy and also posts the 1-800 number in its facilities. Petitioner also filed an EEOC discrimination complaint, and the underlying discrimination complaint herein was filed with FCHR on April 5, 2007. Because her FCHR complaint was signed on March 23, 2007, the undersigned takes it that the EEOC complaint was filed at approximately that time. Petitioner has complained that, as a result of her September 20, 2006, letter to corporate headquarters, she was told, either by Ms. Streer or by Mr. Hawkins that she must be evaluated “in a group.” Her testimony on this issue as to who told her this vacillated, and the group rating was not confirmed by any other witness nor by the signatures on the 2006 and 2007 evaluations in evidence. Although Ms. Streer signs-off as the next level of management on evaluations, that action hardly constitutes "group rating." The evidence as a whole provides the overall sense that Petitioner has been, in the vernacular, “prickly” about what she perceives as situations of disparate treatment, none of which were supported by credible evidence in the instant case, and that as a result of Petitioner’s heightened sensitivity, none of Petitioner's on-site superiors want to expose themselves to old or new accusations by her, but the greater weight of the credible evidence is that in 2007, Theresa Volk, Unit Manager of Station One, supervised Petitioner for only two days per week, so Ms. Volk believed that Petitioner's supervisor for the remainder of the week should have input to Petitioner's 2007 evaluation. Ms. Volk’s name and that of Ms. Rema appear on the first page of Petitioner’s 2007 evaluation, but only Ms. Volk signed as her “evaluator” on October 9, 2007. In that 2007, evaluation, Ms. Volk rated Petitioner “exceptional” in “work quality” and “work quantity/productivity,” and “meets expectations" in “customer service,” “compliance & adherence to policies,” “core values,” and “leadership skills.” Under “areas for improvement,” she made a comment about wound care documentation intended for Petitioner’s improvement. After receiving her September 2007, evaluation, which had been signed by Ms. Volk on October 9, 2007, Petitioner suffered no loss in pay, position, or benefits, and, once again, received her annual raise. Petitioner testified that she got her 2007 raise “late” but did not quantify how late. Petitioner wrote Ms. Volk a letter treating Ms. Volk’s evaluation comment for improvement as a criticism related to a particular past incident, and was offended when Ms. Volk refused to stop the work she was doing to read Petitioner’s letter. Respondent has a policy which requires employees to request personal paid time-off 30 days in advance. Petitioner testified that under this system, she properly requested time off for October 20, 2007, and November 3, 2007, but that shortly before those dates, Ms. Streer told her she could have only one date or the other, but if Petitioner wanted to take off both days, Petitioner had to get a replacement for one day. While this much of Petitioner’s testimony is unrefuted, Petitioner was not persuasive that she ever got written approval of the dates, and she did not establish any connection between the denial of two days' leave and either her Hispanic heritage or as retaliation for her prior letter to corporate headquarters or as retaliation for any of her discrimination complaints in March or April 2007. Petitioner presented no evidence that she lost pay, position, promotion or benefits at any time, on the basis of retaliation or her Hispanic heritage. Petitioner testified that she had to go into therapy and pay for medications as a result of the stress that the foregoing incidents have caused her. She presented no corroborative medical testimony or evidence of any professional diagnosis and further presented no medical or pharmaceutical bills to establish any damages therefor.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint of Discrimination and the Petition for Relief. DONE AND ENTERED this 30th day of May, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2007.
The Issue Whether Respondent committed an unfair employment practice by discriminating against Petitioner on the basis of race, in violation of chapter 760, Florida Statutes (2012), and Title VII of the Civil Rights Act.
Findings Of Fact Mr. Nepton is a Hispanic man who worked as a collector for CCS from November, 2011, to February, 2012. CCS is a collection agency that employs approximately 80 collectors, who are divided into departments based on the different accounts they service. Mr. Nepton was originally hired to work under the supervision of Julio Castellon, and then was transferred to a unit supervised by Danielle Santilli. All of the work collectors perform is via telephone; persons who have outstanding bills are called in order to attempt collection of the debt. During his training in Ms. Santilli's department, he received most of his training from Ms. Santilli. According to Mr. Nepton, during these training sessions, Ms. Santilli made derogatory comments about Hispanic people. If the person being called was Hispanic, she would mention that Hispanic people were stupid, dumb, and never paid their bills. Mr. Nepton claims that the comments were made throughout his entire training, which lasted approximately one month. He claims that he reported his dislike of the derogatory comments to Ariel Castellon, a supervisor. Ms. Santilli testified, and denied ever making any derogatory or inappropriate remarks about Hispanics. Mr. Castellon also denied any knowledge of Ms. Santilli making any such remarks, and testified that Mr. Nepton never complained of any such comments while he worked at CCS. Lori French testified that in her capacity as the Human Resources Director, she never received any type of complaint regarding Ms. Santilli from any employee. The undersigned credits the testimony of the CCS employees, finding it consistent and credible in light of the scant evidence produced by Mr. Nepton. Mr. Nepton did not produce a single witness who could corroborate his testimony, despite the fact that the collectors worked in an open area, in close proximity to each other. The employee handbook instructed employees to report any workplace harassment of any type with the Human Resources Department. Mr. Nepton never filed such a complaint with the Human Resources Department. On February 1, 2012, Mr. Nepton received a call from a patient of a hospital inquiring as to whether the account was paid in full. Mr. Nepton requested the patient's date of birth, but the patient asked why that information was necessary. Mr. Nepton raised his voice and became argumentative with the patient. When Mr. Nepton was asked about the phone call by his supervisor, he became argumentative in the presence of the other collectors. On February 2, 2012, Mr. Nepton met with management regarding the incident on the previous day. He became agitated, raised his voice, and pointed his finger in the supervisor's face. Mr. Nepton, who was on probationary status, was discharged from his employment on that date.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief. DONE AND ENTERED this 19th day of December, 2012, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 December, 2012.
