The Issue Whether respondent discriminated against petitioner on account of his race in terminating his employment?
Findings Of Fact Larry Drake, who is black, began his employment at Whataburger, Inc., on May 2, 1983, as a management trainee in Pensacola. He trained first under June Bell at Unit No. 168, then under Kin Pearson at Unit No. 42. New Warrington Road On July 17, 1983, he became assistant manager at Unit No. 25, Whataburger's restaurant on New Warrington Road, where he was put in charge of the "early bird" or late night shift, from eleven at night to seven in the morning. Randall Potts occasionally worked the late night shift, and, during his tenure as assistant manager in charge of the shift, Mr. Drake supervised Elijah Johnson and Randy Cotton, as well. He initially supervised only one employee, but when Linda Blevins began on the late night shift, he also supervised her. As manager of Unit No. 25, Byron Reno was Mr. Drake's supervisor while Mr. Drake worked there. Mr. Reno came in at six or seven in the morning and left before the late night shift began, but he saw petitioner when the night shift started on numerous occasions, in addition to occasionally overlapping petitioner's shift in the morning. He worked with Mr. Drake when, as sometimes happened after Mr. Drake's initial three months at Unit No. 25, Mr. Drake worked the day shift. On October 30, 1983, Mr. Reno prepared a written evaluation of petitioner's job performance on a form calling for a "CLASSIFICATION EVALUATION" and for a separate "PERFORMANCE EVALUATION." Respondent's Exhibit B-2. On the "CLASSIFICATION EVALUATION" section, he gave hid a total score in the "needs improvement" range, although written comments indicated he was "FULLY ADEQUATE IN MOST AREAS." On the "PERFORMANCE EVALUATION, he gave him a score of 41.4, half a point from the "needs improvement" cut-off. These ratings may be lower than those for "the bulk of the" (T.i27) assistant managers. By May 5, 1904, when Mr. Reno prepared a second evaluation using the same format, he rated petitioner fully adequate overall, and gave him a score in the outstanding range for "CLASSIFICATION EVALUATION." Respondent's Exhibit A-2. Sometimes petitioner complained he was tired when he reported for work at Unit No. 25, and Mr. Reno felt his energy level was low in general. Mr. Reno also felt that inaccuracies in the daily reports and in inventory reports should be eliminated. During the time Mr. Drake worked at Unit No. 25, Sonya Jarman worked, at various times, on both day shifts. On the later shift, she was sometimes unable to leave at eleven, because petitioner had not yet arrived at work. Sometimes she telephoned petitioner to wake him up so he would relieve her. On the other hand, Mr. Drake also "stayed over plenty of times" (T.75, 76) for late replacements. On the earlier day shift, Ms. Jarman sometimes arrived to find that the night shift's paperwork had not been done. Mr. Drake asked her more than once to do the paperwork for the night shift, saying he would help serve customers. Sometimes he sat in his office, reading the paper and smoking cigarettes, while Ms. Jarman completed reports which night shift personnel were charged with filling out. One night Mr. Drake was on duty, Ms. Jarman was summoned "to fix the register because the drawer had jammed." (T.149). When she arrived, she found petitioner had left the premises, leaving the cash register with open drawer in the care of a subordinate. In general, Ms. Jarman characterized her experience working with petitioner as "wild." In her opinion, "Larry ... just wasn't Whataburger material." (T.14i) He did not pitch in when things got busy. He was slow on the grill ... and even on the board he wasn't fast (T. 148). For part of the time petitioner worked as assistant manager at Unit No. 25, Elijah Johnson worked under his supervision as a crew leader. Mr. Johnson once left the premises to buy Krispy Kreme doughnuts. Petitioner once left to buy cigarettes. Gregory Street When Mr. Drake tired of working the graveyard shift, he asked the senior area supervisor, Mr. Turbeville, for a new assignment. Mr. Turbeville obliged and petitioner began work at the Gregory Street Whataburger, Unit No. 42, as assistant manager for the day shift, on August 12, 1984, under the supervision of Bob Echois, a long-time Whataburger manager and a former marine. The third time in eight days that petitioner reported late for work, Mr. Echois, who had come to view petitioner as incompetent after he sent to the bank $100 more in cash than the deposit slip reflected, made a written report of Mr. Drake's tardiness and forwarded it to Mr. Turbeville, the area supervisor, who counselled petitioner, urging him to come to work on time. Mr. Turbeville was present on August 28, 1984, when petitioner arrived or 30 minutes late, his fourth late appearance for work at Unit No. 42. He had had a flat tire on his way to work, abandoned the car, and run the rest of the way. Mr. Turbeville asked for directions to the abandoned car, confirmed that the tire was flat, and asked Mr. Drake to report to his office the following day. At the meeting the following day, Mr. Turbeville placed him on disciplinary leave for four days for "excessive tardiness," Respondent's Exhibit A-30, after first, however, telling him he was going to fire him. To this, petitioner had responded with a claim that another employee, Ronnie Hill, had an even less satisfactory record for prompt arrivals which, he said, the time cards would bear out; and he threatened to retain a lawyer. It was true that Ronnie Hill arrived late some days, but it was because Mr. Echois instructed him to pick up certain supplies on his way to work. (T.157) Ronnie Hill is white. Unit No. 21 Instead of returning to Mr. Echois' supervision, petitioner reported to Unit No. 21 on September 2, 1994. He chose this assignment over returning to Unit No. 25, the alternative Mr. Turbeville offered. Petitioner felt the manager of Unit No. 21, Kim Pearson, did not back him up properly in his dealings with a subordinate, who was also a friend of the manager. In any event, the manager of Unit 21 gave petitioner a written reprimand for "[f]ailure to use proper set out procedure for breakfast items," Respondent's Exhibit A-28, on October 29, 1984, but, on November 3, 1984, rated him fully adequate in his overall classification and performance evaluations, while indicating that improvement was needed in certain categories, including dependability. Jack Riley replaced Don Turbeville as Whataburger's senior area supervisor. In speaking to managers in the area, he asked most of them, including Pearson, how he could help improve day-to-day operations. In reply, Mr. Pearson complained that Mr. Drake would not take directions. Mr. Riley had not received a good report from Mr. Turbeville about Mr. Drake, and, in visiting Whataburger outlets, had not been favorably impressed with petitioner. Once he walked in the unit... "[and] was probably in the unit ten to fifteen minutes before Larry even knew ... [H]e was busy reading the newspaper." (T.163) One Sunday afternoon he found petitioner watching a basketball game on a television set he had brought to work. (T.62). Unit No. 169 In order, he testified, to see how petitioner Drake would do in a "clean environment," Mr. Riley transferred him to Unit No. 169, where Jamie Harrelson was manager, and assigned him to the late night shift. The transfer was effective March 3, 1985. Respondent's Exhibit A-32. Some two weeks later, Mr. Riley terminated petitioner's employment, effective March 16, 1905. In the interim, Messrs. Drake and Riley spoke three times, the first at Mr. Riley's office when petitioner asked why he had been transferred. As reasons for discharge, Mr. Riley cited "poor attitude, failure to follow orders and being late for work on several occasions." Petitioner did not do his job well at Unit No. 169. He ignored instructions the manager left for him in a notebook, refused to look at her when she spoke to him, called the manager at home at 10:30 or 11:00 at night to complain about his schedule, called her at two in the morning to ask her permission to lend another Whataburger unit a CO2 tank which, as assistant manager, he might well have lent without special authorization, and arrived late for work by, at least on one occasion, well over an hour. That night he called to say "he was having his car repaired at almost 9:00 o'clock at night." (T. 203). Assistant managers who were white have been terminated "for being late to work in the same situation. (T.169) Mr. Riley believed that no Whataburger manager in Pensacola was willing to accept petitioner as an assistant manager. Employees' Race On June 2, 1985, Whataburger promoted Elijah Johnson, a black assistant manager, to manager. On January 27, 1985, Whataburger promoted Sandra Mack, another black assistant manager, to manager. Under Mr. Riley, who is white and still works as the senior area supervisor, Whataburger's employment of black persons reached a peak in the Tallahassee-Pensacola area. Of the 174 persons Whataburger employs in the area as "team members," 45, or 26 percent, are black. About 26 percent of the assistant managers in the area are also black and, since the recent promotions, three of eleven (or 33 percent) of the managers are black. Fifty-eight percent of the area's "team leaders" and 67 percent of the "breakfast coordinators" in the area are black. Until Mr. Drake made these accusations, neither Whataburger nor any of the managers with whom he worked had been accused of discriminating on grounds of race. Nor, however, was there a black manager in Pensacola until after petitioner was fired and complained to the FCHR.
The Issue Whether Respondent Employer is guilty of an unlawful employment practice by discrimination due to Petitioner’s national origin.
Findings Of Fact Respondent Employer is a paper packaging plant located in Cantonment, Florida. It fills orders from retailers as specified on purchase order forms (POFs). Respondent manufactures a variety of bags for containing retail goods. Petitioner worked for Respondent for more than eight years. During part of this time, he was a member of a union which had a collective bargaining contract with Respondent. At all times material, he did shift work involving heavy machinery "on the floor." Petitioner was terminated on June 13, 2003, after a series of disciplinary actions, the last of which arose out of events occurring on June 9, 2003. Petitioner contends in his Proposed Recommended Order that Respondent did not follow the guarantees of his union’s collective bargaining contract, the established grievance procedures, and/or Respondent’s policy and procedure manual for tier-disciplining or for counseling him. However, Respondent’s failure to comply with these artificial standards, or Respondent's failure to only partially comply with them, is not determinative of any issue under Chapter 760, Florida Statutes, unless Petitioner also can show that other employees, who were not of Petitioner’s protected class, were treated differently or more favorably than Petitioner in a similar situation. It appears, however, that each time Petitioner requested union representation, he was provided with union representation. When he did not request union representation, he was not provided with union representation. On his Charge of Discrimination, Petitioner checked only the box for “national origin.” He did not check the box for “race.” However, under the portion of the form reserved for “The Particulars Are:”, Petitioner filled in: During my employment, I was constantly harassed by being called racially derogatory names. On June 13, 2003, I was terminated because of national origin (Native American). I was told that I was terminated for negligence. On his Petition for Relief, Petitioner complained, among other things, of “ethnic slurs” such as: Hay [sic.] Indian called Derogatory – names such as two Dog about my color and race. About a year before his termination, Petitioner had a feud with a white male co-employee, Clifford Stuckey. This feud is described below more fully and in sequence with other events. Generally, however, Petitioner was a non-confrontational employee with a good work ethic. With regard to his job performance, Petitioner was a model employee until he was promoted to machine operator more than two years before his termination. Petitioner had done well as an assistant machine operator, but after promotion, Petitioner was disciplined for a rash of quality control errors. The nature of his quality control errors was the same as that of many other similarly-situated employees, but his errors differed from other employees' errors in that he accumulated more quality control errors in a shorter period of time than any of his co- workers; he demonstrated too many such flaws within a single twelve-month period; and he cost the employer a considerable amount of money in wasted goods. For the eight-plus years of his employment, nicknames were the common way Petitioner and his co-employees addressed one another, day-in and day-out on the floor of the plant. Some supervisors picked up these nicknames due to their regular and pervasive use among subordinates. Many employees had nicknames that they did not object- to. One Black male employee purchased a vanity license plate which read "African," so co-employees called him "African," without anyone considering the nickname to be a racial slur or otherwise derogatory. Carl Broadnax (Black male) was proud to be called "Black Stud." Ronald Moran (white male) was known as "Big Ron." A Puerto Rican employee named Tony Crevice (phonetic spelling) was called "Julio." Eric Adkins (Black male) called another employee (race and gender unspecified) "Pooh Bear." Wesley N. Houston (white male) was called "Cowboy." In the course of disciplinary actions against him during the last fifteen months of his employment, (see Findings of Fact 52-53, 65-70, 80 and 81), Petitioner told Nancy Glass, Respondent's white female Human Resources Director, that he was an "Indian." She understood that he perceived himself to be an "Indian." During his eight-plus years in Respondent's employ, Petitioner was perceived by many of his co-employees as an “Indian” or “Native American.” Some of them called him by his first name, "James," but most of them also called him by the nicknames, “Indian,” “Two Dog,” “Two Dogs,” and/or “Two Dogs Fucking.” No clear evidence was presented as to how often any or all of these nicknames were used to address, or in reference to, Petitioner, but their usage must have been as common, continual, and pervasive as any of the other nicknames used day- in and day-out on the floor. The foregoing nicknames for Petitioner were used by co- employees and accepted by Petitioner for more than eight years without rancor or dismay on either side. For more than eight years, the users did not perceive that the nicknames might be racially provocative or demeaning of Petitioner's race or national origin, and they did not sense that he might be hurt by the nicknames, because he did not express hurt feelings or offense to anyone. Only one witness thought Petitioner's nicknames were a bad thing. Ronald Williams (Black male and current union president) knew that "Two Dogs" was a common name given to Petitioner and that it was an abbreviation for "Two Dogs Fucking." He heard the abbreviation "Two Dogs" directed to Petitioner, but he never heard the full phrase even used around Petitioner. He considered both phrases to be racial in origin and racial in context, but even Williams could not say that Petitioner ever reacted oppositionally to any of the nicknames. No other witness acknowledged hearing the nickname "Two Dogs Fucking." All of them thought the other nicknames which were applied to Petitioner were neither racial nor offensive. For instance, on a regular basis, Ricky Mitchell (white male) called Petitioner "Indian," without considering it a racial slur. Petitioner addressed Mitchell as "Paw Paw." Ronald Moran (white male) called Petitioner "Two Dogs," as a nickname, without assuming any racial connotation. Frank Talamo (white male, and sometimes-union shop steward) has used the term "Nigger" in his private life, but stated that he would not use it on the job, because it is, in his opinion, a racial slur. Mr. Talamo heard Petitioner referred-to as "Indian" and "Two Dogs" on a regular basis. Mr. Talamo testified that although he did not, himself, use the nicknames "Indian" and "Two Dogs" with Petitioner, he also did not consider them to be racial slurs, as he would have considered the word "Nigger." Eric Adkins (Black male) heard Petitioner called some "bad" or "harsh" names, but he did not specify what the names were; he also did not characterize the bad or harsh names as "racial." Carl Broadnax (Black male) testified that he called Petitioner "Two Dogs" because Petitioner's Cousin Joey, another Indian who worked in the plant, told Broadnax to call Petitioner by his Indian name, "Two Dogs" or to call Petitioner "James," Petitioner's given name. Because of Joey's instruction, Mr. Broadnax thought everybody called Petitioner "Two Dogs." Mr. Broadnax heard Petitioner called "Indian" by others. Ivory Stallworth (white female) heard Petitioner called "Two Dog." Aaron Hodges' paternal grandmother is "Indian" or "Native American." Mr. Hodges does not make a distinction between the two designations, "Indian" and "Native American," and does not consider either designation to be derogatory language toward his grandmother or toward anyone else. He picked up the nickname, "Two Dogs" from its general usage on the plant floor to, and about, Petitioner. Cynthia Perkins (white female) stated that Petitioner was called "Two Dogs" in "general talking." Wesley N. Houston heard Petitioner called "Indian" and "Two Dogs," but did not consider these nicknames to be racist remarks or derogatory language. Clifford Stuckey (white male), with whom Petitioner feuded for a time, regularly called Petitioner "James" and "Two Dogs," because those names were what Petitioner was being generally called when Mr. Stuckey came to work for Respondent. He only knew Petitioner by his nicknames for two years, while they were "on the job friends" and "house visiting friends." Stuckey never heard anything else added to "Two Dogs." Apparently, Stuckey called Petitioner both "James" and "Two Dogs" before, during, and after the height of their feud, described more fully below. Also, at least two supervisors (Allen Givens and Eddie Jeffres) used some of these nicknames in addressing Petitioner. Jeffres participated in an early disciplinary action against Petitioner, but neither Jeffres or Grimes participated in Petitioner's eventual termination. Allen Givens was a machine operator, and thus a co- employee of Petitioner. Sometimes, he was also an "acting supervisor" over Petitioner. He heard others on the floor call Petitioner "Indian" and "Two Dogs." He personally called Petitioner "Indian" or "James." Givens testified that if Petitioner had ever intimated, while Givens was "acting supervisor," that Petitioner had a problem with any nickname, he, Givens, would have put a stop to it. At some point, Givens, while he was "acting supervisor" over Petitioner's shift, took Petitioner into the office and explained that Petitioner needed to do something about his body odor. The meeting between Givens and Petitioner was one-on-one, with no union representative or other employees present, and it was not written-up. Petitioner did not testify concerning this meeting. Givens was the only other person in the meeting, and he testified that he had initiated the conversation informally when he did, because he personally had noticed Petitioner's unpleasant body odor that day and because other employees had complained to him that day about Petitioner's body odor. Givens, whose grandmother is an American Indian or Native American, did not consider his comments to Petitioner about body odor to be racial in nature, and race or national origin was never mentioned by either himself or Petitioner during their meeting. Givens further testified, without refutation, that such a meeting happened only the one time; that the conversation was in the nature of "counseling," as opposed to the formal disciplinary step of "coaching" Petitioner; that he had felt he was protecting Petitioner's feelings and privacy by not making a record of this counseling session; and that no record was made because it was not part of the employer's three- tiered disciplinary formula. Other witnesses confirmed that general day-to-day supervision, which did not lead to some form of oral or written warning or other standardized disciplinary action against an employee, was not normally written-up for the employee's personnel file. Not making a record of a minor counseling session was to the employee's advantage, because once something was recorded, it could be used against the employee as part of the employer's three-tier progressive discipline formula. Although all witnesses concurred that working in the employer's un-air-conditioned plant, around heavy machinery, was sweaty work and that everyone smelled bad at some time or other, Frank Talamo, Eric Adkins, and Aaron Hodges also testified that at some point, Petitioner had a particularly offensive body odor. On one occasion, Talamo had asked a foreman to speak to Petitioner about it. No witness attributed Petitioner's body odor problem to his national origin or his race. Although Petitioner may have been the only employee counseled about body odor by Givens, other supervisors had counseled other employees. After being told about his body odor problem, Petitioner kept deodorant in his tool box and used it. Respondent never disciplined Petitioner for body odor. Eddie Jeffres, (white male) was Petitioner's team manager/supervisor. Many witnesses heard Jeffres address Petitioner as "Two Dogs." Mr. Jeffres addressed Petitioner as "Two Dogs," without any add-on, because that was the nickname Petitioner's co-workers used. He testified that he did not consider the nickname "professional," but he used it in a spirit of levity and camaraderie. He further testified that he would not have used it if, at any time, Petitioner had objected to it or had acted embarrassed by it. Because Petitioner always replied professionally and without rancor when the nickname was used, Mr. Jeffres did not equate its use with giving offense or hurting feelings. Jackie Hodge was department manager. He considers himself to be "Cherokee-Irish." He never heard "Two Dogs" used with an add-on. He did not hear the abbreviated form used in Petitioner's presence, either, but he heard Petitioner referred- to as "Two Dogs." He, personally, did not refer to Petitioner as "Two Dogs," but he also did not think the term was racially demeaning. If he had thought that the term were racially demeaning, he would have sought out Petitioner's opinion on the matter. If Petitioner had complained to him, he would have prevented use of the nickname by other employees. However, it is his managerial style not to start an inquiry unless an employee complains, and Petitioner never came to him directly. Indeed, none of Respondent's co-employees or supervisors thought Petitioner objected to any of the nicknames used to his face or used about him in general conversation, because Petitioner answered to the nicknames and did not complain or answer back with rancor when the nicknames were used. Additionally, Ms. Stallworth thought "everyone was okay with what was going on," because Petitioner answered to "Two Dog." Robert McCollough was production manager. He considers himself to be "an American with an Indian great-grandmother who was full-blooded Cherokee." McCollough's wife of over 30 years is a Creek Indian, and his children went to college on an Indian grant. He never heard of "Two Dogs" and was not aware it was being used to refer to Petitioner, but he testified that unless Petitioner complained about the nicknames, the employer's management would not root out a problem where none was perceived. Respondent Employer's predecessor in interest had an Anti-Sexual Harassment Policy in its employee's manual as of 1988. This policy was carried over by Respondent Employer. Petitioner received, and signed for, the Anti-Sexual Harassment Policy when he was first employed by Respondent Employer in approximately 1995. In 1999, when Respondent promulgated a similar Anti-Workplace Harassment Policy that specifically prohibited discrimination on the basis of race or national origin, Petitioner received a copy of it.6/ The employer's Anti-Workplace Harassment Policy incorporates a procedure for confidentially addressing employee discrimination complaints, including harassment complaints. Briefly, that policy provides that an employee who feels harassed should directly tell his or her harasser what act or speech is offensive. If that confrontation does not end the problem, the offended employee is encouraged to go to the Human Resources Office, or to any supervisor on the chain of command, to lodge a confidential complaint. Even an "800" telephone number is provided so that a harassed employee may report the problem in complete confidentiality to the employer's legal office. Since 1999, Petitioner has attended annual meetings discussing the Anti-Workplace Harassment Policy.7/ The Anti-Workplace Harassment Policy is posted in the plant where any employee can refer to it, and it is sent out to employees' homes in newsletters. Respondent Employer also has in place, and has posted, an Equal Employment Opportunity Policy. All witnesses agreed that while employed, Petitioner never raised his nicknames as a harassment or racial issue or as an issue of national origin to anybody.8/ Nancy Glass confirmed that, despite her "open door policy," Petitioner never filed a formal written protest with the employer's Human Resources Office because of any nickname. Petitioner took the machine operator certification course, but he did not pass it the first time. The second time he took the course, he passed. He became an operator about 1999. Prior to that time, he was an assistant operator a/k/a "a feeder" or "a helper." Machine operators receive an Operator Skills Training Handbook during their initial 40-hour machine operator certification course. The handbook describes the functions of the machines on which the operators work and the policies and procedures that operators and their assistants are required to follow, including proper preset procedures, proper set-up procedures, proper sleeve types, and how often quality checks should be done by both operators and assistant operators. As an operator, Petitioner received quality assurance training twice-a-year. If an employee's job performance requires correction, he first would be provided additional training. This training would be documented as a coaching session, rather than as discipline. Other than that, the employer has a three-tiered corrective action (discipline) program in place, as set out in the employees' handbook. All levels of discipline are documented in writing, even oral warnings. If supervisors do not perceive an error as correctable by retraining an employee, an "oral warning" is issued "in writing" for the employee's first error. The employee's next substandard performance results in a "written warning." The third step is to put the employee on paid Decision Making Leave (DML) for one day, to go home and think about how to correct his flaws and to write out a letter saying how he is going to accomplish that correction. If all three steps occur in a 12 month-period, a fourth error is supposed to result in termination. If the employee passes the 12 months' mark without a third error, the tiers recycle. On average, the employer expects its operators and assistant operators to check their machines for accuracy every half hour. Usually, the operator and assistant operator stagger their respective checks in hourly sequences, so one man checks on the hour and one man checks on the half-hour. This means that the machine/product is checked every half hour by one or the other of them. Some POFs require more frequent quality control checks. At the beginning of each shift, each new operator coming on duty is responsible for comparing the POF to be run, or still running from the last shift, with the product currently coming off the end of his machine. If that operator does a quality check at the very beginning of his shift, and then checks repeatedly at the required intervals throughout his shift, no more than thirty minutes (and thirty minutes' equivalent of non-conforming bags) can go by before an error is noticed. The point of quality control checks is to ensure that the employer avoids running non-conforming bags. Sometimes, non-conforming bags can be sold to a different buyer, often at a lesser profit. More often, they cannot be sold, cannot be recycled, and must be trashed. There was no substantial difference in the discipline the employer applied to employees producing non-conforming bags which could be sold to a different buyer and the discipline it applied to employees who produced non-conforming bags, all of which had to be destroyed for a total loss. The employer has been reasonably consistent in holding responsible everybody associated with a machine's quality control error who was on the shift when the quality control error was discovered, such as that shift's assistant operator, operator, and ending supervisor, for the same machine. Depending upon when respective POFs were started and finished, the employer has also held responsible whichever operator preset the machine on the previous shift and that operator's assistant operator, both of whom should have performed the quality control checks on the previous shift. Sometimes that shift's ending manager was disciplined, too. Usually, the operator coming on shift and his assistant operator also have both been disciplined if non-conforming bags are run. Sometimes that shift ending manager was also disciplined. Basically, if the prior operator and his assistant run bad bags, they are disciplined for their own error, and if the next shift operator comes on shift and does not immediately check to prevent further errors, both operators and their assistants are written-up. Put another way, if there was a bad pre-set by an earlier shift, the operator, assistant, and manager on that shift are disciplined for the bad bags they have actually run, and the next shift operator, his assistant, and his manager are disciplined if bad bags result from the new operator's failure to check the pre-set as soon as the new operator comes on duty. If it is a totally new set-up by the new shift operator, then only that operator, his assistant, and his ending manager, are disciplined. The degree of discipline for quality control flaws imposed upon any of the respective employees from either shift depended upon whether they already had gone through any of the three tiers of progressive discipline within the preceding 12 months. Neither race, national origin, nor union membership affected who was disciplined or the degree of discipline any employee, including Petitioner, received for producing non- conforming bags. On March 19, 2002, a random quality audit was performed by a manager. Petitioner received an oral warning which was written-up, because he had personal items (two packs of cigarettes) on his work bench/machine, and for failing to make on-going quality control checks of the weight of the bags his machine was running. No evidence of other employees also being written up for the offense of personal items in view was offered, but there also was no evidence others had personal items on their work benches in the same time frame without being written-up. Several witnesses testified that at one time having personal possessions in view had been permissible, but then a rule or instruction by the employer had prohibited this "in view" practice. Petitioner did not contest this discipline at the time. On April 3, 2002, Petitioner set the product up to run with the wrong sleeve paper and then went off shift. His feeder had brought him the wrong sleeve paper. The feeder had not been disciplined previously, so she received a write-up of oral coaching. Petitioner did not run non-conforming bags himself, but he failed to follow the preset procedure, so he did not catch the feeder's error. The wrong sleeve paper resulted in 12,500 defective bags being run on the following shift. These bags could not be used and had to be thrown away. Petitioner was orally counseled, by two supervisors, regarding his quality control flaw, and received a written warning for his failure to follow proper preset procedures. Eric Adkins, the operator on the next shift, and Adkins' helper, Larry Calhoun, both of whom actually ran the non-conforming bags using Petitioner's improper preset, and supervisor Eddie Jeffres, also were written-up for this error. The type of write-up each person got depended upon where his particular error ranked in the sequence of his respective number of prior errors, if any. Petitioner did not dispute this discipline at the time. Clifford Stuckey had come to work for Respondent about three years after Petitioner. This was perhaps early 1998. Petitioner and Stuckey were "on-the-job friends" and "house- visiting friends" in their private lives for awhile. Unfortunately, about a year before Petitioner was terminated, perhaps June 2002, they had a falling-out. Because Petitioner did not testify, the only first- hand explanation of what started their feud came from Stuckey. Apparently, Petitioner left his wife's car at Stuckey's home, with the intent of buying a second car for use as parts. The two men had an expectation that Mr. Stuckey, who was a good shade tree mechanic, would use the parts of the second car to fix Petitioner's wife's car. However, Petitioner's wife's car was left at Stuckey's home, without the "parts" car being supplied by Petitioner, for seven months, a period of time that was longer than Stuckey thought appropriate. Stuckey gave Petitioner an ultimatum that if Petitioner's wife's car were not removed, Stuckey would leave it on the road. When Petitioner and his wife arrived at Stuckey's home to get the car, Stuckey was still on the job at the plant. Petitioner and his wife phoned Stuckey from a neighbor's home, but Stuckey refused to leave work and come home with the key to his house so that Petitioner and his wife could get their car key. Harsh words were exchanged over the telephone, and Stuckey addressed Petitioner's wife disrespectfully. It is unclear whether Stuckey also made an oral threat of unexplained consequences against Petitioner over the phone, but it is clear that Stuckey was in no position to physically assault Petitioner or his wife over the telephone line. Later, Petitioner and his wife found their car in a ditch by the side of the road leading to Stuckey's home. Stuckey testified that for awhile after the car incident, Petitioner, while passing Stuckey's work station in Respondent's plant on his way to the restroom, would grab his own crotch or "flip me the finger." These are universal signs of contempt, designed to provoke another into striking the first blow. After one such crude challenge by Petitioner, Stuckey told Petitioner "if he did it again, I would whip his tail." It is presumed that Stuckey's foregoing on-premises oral threat was actually delivered in somewhat cruder and more urgent language than he admitted-to on the witness stand. Nancy Glass testified that shortly after the car incident, and still about a year before Petitioner's termination, Petitioner approached her and Robert McCullough in her office, and told them that he was "not saying he wouldn't or couldn't work with Stuckey," but that there had been an off- premises incident involving Petitioner's car being found on the road; that the dispute between himself and Stuckey had gotten "pretty nasty"; and that Stuckey had "smart-mouthed" him in the plant, as they had passed each other when Stuckey was going off shift and Petitioner was coming on shift. Petitioner acknowledged to them that no one had witnessed the "smart-mouth" incident. Petitioner did not tell Glass or McCullough that he had been threatened by Stuckey or that his feud with Stuckey involved any discrimination against him. He told them he did not want to have a sit-down discussion with Stuckey and that he did not want to make a big deal out of the incident, but he thought they should know about it. Petitioner said nothing about discrimination on the basis of his being Indian or Native American. He said nothing about any nicknames applied to himself. Since Petitioner did not wish to pursue the matter, Glass just told him to let them know if there were any further trouble between himself and Stuckey. Robert McCullough recollected, not that Petitioner had mentioned Stuckey in a meeting in Glass's office, but that Petitioner told McCullough while they were both on the plant's floor, that he and Stuckey had "a cussing" at one another off the plant premises. McCullough also did not recall Petitioner ever saying any incident had occurred on the plant premises or that Petitioner wanted to stay away from Stuckey. Petitioner said nothing to McCullough about discrimination, race, or national origin before his termination a year later. (See Finding of Fact 81.) For an indeterminate period of time, Petitioner and Stuckey avoided each other at the plant, and it was clear to some co-workers that there was "bad blood" between them. During this time, never proven rumors circulated on the floor that Petitioner and/or his wife had been threatened by Stuckey. A never proven rumor reached Stuckey that Petitioner and his wife had "telephoned" Robert McCullough about the car problem. However, Nancy Glass confirmed that Petitioner never filed a formal protest concerning his problems, whatever they might have been, with Stuckey, and he never said anything more about their feud to her for the year leading up to his June 2003 termination. Some co-employees never heard about the feud until after Petitioner's termination, when a never proven rumor started that Stuckey had sabotaged Petitioner's machine after Petitioner went off shift, thereby subjecting Petitioner to the final discipline of termination (see Findings of Fact 83-84) There was another never-proven rumor that Stuckey had rifled Petitioner's tool box while Petitioner was on suspension. Still other co-employees did not hear about the feud between Petitioner and Stuckey until a few days before the merits hearing on this case, when one party or the other contacted them about subpoenas. Most of the co-employees who had heard of Petitioner's and Stuckey's feud before Petitioner's termination thought the feud had blown over by the time Petitioner was terminated in June 2003. On December 3, 2002, Petitioner was given a "written warning" for failing to follow an order approval on a quality checklist which resulted in 1,500 defective bags being run. These bags had to be thrown away because they were created with a crease cut so that they could not be filled with the customer's product. The error should have been detected on the set up or on a later quality check. Petitioner was counseled regarding this error, as was the manager who approved the bag. Because Petitioner already had received an "oral warning" and a "written warning," his December 3, 2002, error should have resulted in Petitioner being placed on DML. However, Jackie Hodge wanted to work with Petitioner, rather than to have to retrain someone new. Hodge also felt that steps in the disciplinary tier system should not be duplicated. Therefore, he reduced Petitioner's December 3, 2002, write-up to a "coaching session" and required Petitioner to retrain on the order approval procedure for the type of bag he created and on its quality checklist procedures. Petitioner's manager was also counseled. On January 13, 2003, Petitioner was placed on DML, with one day's pay, for failing to perform quality check procedures which resulted in approximately 6,000 bags, with cuts on the main score, which had to be scrapped. If Petitioner had made the required quality checks, the error would not have occurred. Petitioner's union representative attended the meeting in which Petitioner was placed on DML. Jackie Hodge also gave Petitioner a card for confidential Employee Assistance counseling, which is an employee benefit. Petitioner's manager was also counseled and written-up, consistent with his own respective number of substandard performances. Petitioner returned to work with his DML letter dated January 24, 2003. The DML letter Petitioner composed and turned in did not set a specific date for formal review of his performance and improvement progress.9/ However, in the letter, Petitioner pledged to follow quality control procedures in the future. The letter was accepted by management, and Petitioner was put back to work. Because the management team had not been physically able to meet with Petitioner within one day to review his DML letter, and because DML is technically a suspension, Jackie Hodge arranged for Petitioner to be paid for a second day without his actually working. This was a deviation from the standard disciplinary policy, but it was a deviation to Petitioner's advantage. On May 16, 2003, although Petitioner's quality checklist accompanying an order indicated that quality checks had been performed every half hour, the sleeve construction and placement on the bags produced were not correct. As a result, nearly 7,000 defective tubes had to be thrown away. Petitioner, his manager, and his helper were all disciplined for this quality control error. One of the concerns of management at this stage was that Petitioner and his helper may have falsified their checklists showing that the quality control checks had been made when the checks were not, in fact, made. If the checks had been made, in reality, and not just the paper work filled-out, the error would have to have been "caught" in less than an hour, and far fewer non-conforming bags would have been created. If the checks had been made and apparent errors corrected at any stage, 7,000 non-conforming bags could not possibly have been created. Petitioner's union representative signed-off on his suspension. Petitioner met with Jackie Hodge, Ron Williams, Nancy Glass, Robert McCullough, and Leo Willoughby on May 22, 2003, while he was on suspension, pending probable termination for too many progressive disciplines within a 12-month period. Petitioner agreed that if they brought him back to work, he would follow all plant procedures, including quality control checks. Management side-stepped a union grievance and brought him back to work, with the understanding that if he again failed to follow instructions, he would be terminated. It was Jackie Hodge's job to schedule available workers' hours and shifts in order to keep Respondent's plant fully operational at all times. On June 9, 2003, he assigned Petitioner, as operator, and Stuckey, as assistant operator, to the same machine on the same shift. Stuckey testified, without refutation, that it was "just luck" he and Petitioner were not scheduled to work together on the same shift or same machine while their feud had been in progress. It was management's mind-set that in the absence of discrimination, "problems were not moved, but solved," and that any disputes arising off-premises were up to employees to work out on their own. The same was essentially true for personal, non-discrimination problems arising within the plant. There is a discrepancy in the testimony as to when, precisely, Jackie Hodge found out that Petitioner and Stuckey had their feud. Nancy Glass testified that she "thought" she told Hodge about the off-premises car incident and on-premises "smart mouth" incidents a year before June 9, 2003. (See Findings of Fact 57-58). Hodge, himself, testified that he knew nothing about the off-premises car incident and on-premises "smart mouth" remark until Petitioner was "on suspension." Because Petitioner was on suspension of some kind on January 13, 2003, May 16, 2003, and after June 9, 2003 (See Findings of Facts 67-70 and 79-81) it is hard to say with any assurance whether or not Hodge knew, when he assigned them to the same machine for June 9, 2003, that Petitioner and Stuckey had feuded a year before. Yet, regardless of when Jackie Hodge knew Petitioner and Stuckey did not get along, there is absolutely no evidence that Petitioner's and Stuckey's personal problems, on or off the employer's premises, were motivated, affected, or prolonged because of discrimination against Petitioner as an Indian or Native American. Moreover, Stuckey testified that although he and Petitioner never sat down and formally discussed their problems or agreed to be friends again, he also testified, without refutation, that he thought that he and Petitioner had resumed their friendship by the time they were scheduled to work together on Petitioner's last night of employment, June 9, 2003. Finally, after Jackie Hodge posted the machine and shift assignments for June 9, 2003, neither Stuckey nor Petitioner approached him to request that he reassign one or the other of them to a different shift or machine. Petitioner and Stuckey worked the same machine on the same shift on June 9, 2003. When Petitioner and Stuckey went off shift on June 9, 2003, their machine was producing bags without a tuck-in sleeve, contrary to the POF. Defective bags were created with the glue under the valve, in the wrong position on the bag. If Petitioner and Stuckey had performed the required quality control checks, the machine should have been producing the correct type of bag when they turned it over to the next shift. Because they had left the incorrect set up, and because the operator coming on shift after them did not immediately catch their error, the machine continued to create unusable, non- conforming bags well into the following shift. Petitioner's June 9, 2003, quality checklist indicated that he had performed all the quality checks. However, the order ran at the rate of 2,000 bags per hour and the order called for quality checks to be performed every 15 minutes. Thus, during the six hours it took to run close to 12,000 bags, a total of 24 quality checks should have been performed by Petitioner, Stuckey, and the next operator and his assistant, each of which checks could have caught the error. Because the error was not caught during the quality check procedure, all 10,850 bags actually produced had to be scrapped. Petitioner and Stuckey were both disciplined for the June 9, 2003, problem. At this point, Petitioner's accumulated disciplinary record clearly required that he be terminated. As before, he was suspended, pending a decision on termination. Stuckey's situation had not reached that stage, and he received a written warning. After a review by McCullough and McCullough's superior, the decision was made to terminate Petitioner and he was notified by telephone. Petitioner filed a union grievance. During the review and grievance process, Petitioner admitted to McCullough that he and Stuckey had been signing off on the quality control checks for each other on June 9, 2003. Only after these reviews and grievance procedures were completed and the grievance was denied, did Respondent consider Petitioner "terminated," as opposed to "suspended." In all, the employer calculated that Petitioner was fully or partially responsible for 39,000 bad bags at approximately 33 cents per bag, or $12,870.00, worth of bad bags. Stuckey testified without refutation that he had not altered the machine in question. After some more operators (race and national origin unspecified) were disciplined for quality control errors on the same machine to which Petitioner and Stuckey had been assigned on June 9, 2003, it was discovered that a part on the machine was gradually slipping a little more each half hour so that the bags became increasingly non-conforming as time progressed. That discovery enabled Respondent to fix the machine, but the discovery did not alter anyone's prior discipline because timely quality control checks still would have prevented the production of so many non-conforming bags. There was no evidence that any of Petitioner's disciplinary problems was due to his race or national origin. There was no evidence that any of Petitioner's disciplinary problems or quality control issues arose from errors he made because of the nicknames he was called.
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 Petitioner's Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 17th day of September, 2004, 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 17th day of September, 2004.
Findings Of Fact Petitioner was employed by VOTRAN from June 6, 1977, until his discharge on January 19, 1982. He started as Serviceman; was promoted to Mechanic B on October 31, 1977; to Night Leadman on August 7, 1978; to Mechanic A on January 13, 1980; and to permanent Night Leadman on November 30, 1981. He was the senior mechanic in the maintenance department and, prior to December, 1981, was Leadman on the day shift. Effective November 30, 1981, the position as Leadman on the day shift was abolished and these duties were absorbed by the Maintenance Superintendent, Owen Davis. Pursuant to the Union contract in effect at VOTRAN, available jobs are bid by seniority and go to the most senior qualified man seeking the position. When the Day Leadman position was abolished, Petitioner bid on the Night Leadman position and, as senior mechanic, was awarded the job. Working days (or nights) for the Night Leadman are Tuesdays through Saturdays, with Sundays and Mondays off. This was known to Petitioner at the time he submitted his bid and was awarded this position. After a short time as Night Leadman, Petitioner requested leave on Saturday to attend an uncle's funeral in Georgia. Davis told Petitioner this would leave them shorthanded. Petitioner then told Davis that he did not like working on Saturday and wouldn't come in. Davis reported this incident to the General Manager, Kenneth Fischer. Late in December Petitioner met with Fischer, at which time Petitioner told Fischer he was unable to handle the job of Night Leadman. Fischer offered Petitioner the option of swapping jobs with a Mechanic A on the day shift but that job paid less and Petitioner turned it down. On another occasion, Fischer learned Petitioner had called in and said he could not come to work on Saturday because he had to move furniture. That resulted in a memo of January 12, 1982 (Exhibit 3) memorializing the December 29, 1981, meeting between Petitioner and Fischer in which Fischer repeated his warning to Petitioner against calling in sick on Saturdays unless his illness could be documented. This memo was delayed getting into Petitioner's box and was not received by him until the following Friday. Fischer was off Saturday, Petitioner was off Sunday and Monday, and on Tuesday, January 19, 1982, Petitioner met with Fischer. After Fischer had entered his car in the parking lot around 6:00 p.m. preparing to go home, Petitioner approached the car and told Fischer he would like to speak to him. Fischer got out of his car, they walked back into the building, Fischer unlocked his office, and they entered. Petitioner tossed the memo of January 12, 1982, on the desk complaining that he thought he was being discriminated against and that if the rules respecting sick leave of less than three days were being changed they should apply to all employees and not just to Petitioner. The meeting quickly escalated into a confrontation with Petitioner telling the younger Fischer that Petitioner was a 40-year-old man with a family, and that Fischer was not man enough to fire him. Whereupon Fischer told Petitioner to "hit the door." Petitioner then told Fischer that he would get VOTRAN's "shit" together and for Fischer to get Petitioner's "shit" together, and Petitioner left. Petitioner's voice immediately prior to his departure was sufficiently loud to be heard by two employees from 200 feet down the hall from Fischer's office. Petitioner's testimony conflicted with the above finding of what went on at the fateful meeting of January 19. Petitioner testified that he remained calm during the meeting, that he never told Fischer that the latter was not man enough to fire him, that he told Fischer they should discuss the matter like grown men, that he used the word "shit" to indicate personal property, and that Fischer is the one who got angry and told Petitioner to "sit down" before he told Petitioner to "hit the door." Petitioner also testified that during the little ever a month he was Leadman on the night shift he missed one or two Saturdays, that the memo of January 12 made him feel he was being treated differently from others, and that he and Fischer had at least three conferences before January 19, 1982, when he was fired. VOTRAN is a publicly owned transportation company subsidized by Volusia County and originally financed by the Federal Government. While funded by the Federal Government VOTRAN was subject to and in compliance with all federal laws proscribing discrimination. Of the 83 employees of VOTRAN, 20 are black. In Volusia County blacks constitute approximately 13 percent of the population. While employed at VOTRAN, Petitioner attended three schools to improve his training and VOTRAN paid the tuition. Although there was a discrepancy between Petitioner's testimony that he was the only black mechanic employed by VOTRAN, and VOTRAN's testimony that there were two blacks employed as mechanics, the evidence was unrebutted that following Petitioner's discharge another black mechanic was hired by VOTRAN. To further support his claim that he was fired because of his race, Petitioner testified that as a Leadman he was never issued a white shirt, that white shirts and blue pants were provided supervisors (including leadmen) by VOTRAN, and that blue shirts were issued to other workmen except in the bodyshop where the workers were issued white pants and shirts. Petitioner mentioned this difference to one of the shop's stewards who told Petitioner that if he felt wronged he should file a grievance. Petitioner never filed a grievance and neither the Superintendent nor the Director of Maintenance was asked by Petitioner to provide him with a white shirt. Other witnesses testified that some leadmen wore white shirts, others wore blue shirts, and it was generally left to the choice of the leadman which color shirt he wore. One witness called by Petitioner testified that he once overheard a Fischer and Davis conversation at which the phrase "dumb niggers" was used. Both categorically denied ever making such a racial slur. No other witness testified to any incident which could lead to a conclusion that Fischer was in any manner prejudiced or racially discriminatory. His reputation among the bus drivers is that he "goes by the book." As another ground to support his charge of racial discrimination, Petitioner testified that while he was Night Leadman he was not provided a key to the Superintendent's desk which other night leadmen had been provided; and that when it was necessary to get into the desk for special tools kept there, it was necessary to call the Superintendent, who would come down and unlock the desk. The Superintendent, Davis, confirmed that Petitioner had not been issued a key because a short time before Petitioner started the night shift too many keys had been issued, all of these keys had been called in, and, when he found his presence was frequently required at night to open the desk, he reissued a key to the Night Leadman. By this time Petitioner had been terminated. The contract between VOTRAN and the Teamsters Union provided for arbitration of grievances. This document also provides that neither employer nor Union will discriminate against any individual with respect to recruitment, hiring, training, promotion, or other employment practice for reasons of race, etc. (Exhibit 1, Article 9). When Petitioner told the shop's steward (also black) that he had been fired, he did not indicate he was fired by reason of race. Petitioner was advised by the shop's steward that he could file a grievance with the Union and his firing could go to arbitration if not settled prior to that step. Petitioner was not a dues-paying member of the Union, and, although covered by the contract, did not feel he would get a sympathetic ear from the Union. The General Manager, William Barrett, who preceded Fischer, was called as a witness by Petitioner. Barrett was General Manager when Petitioner was hired, approved the various training programs taken by Petitioner at VOTRAN's expense, and found Petitioner to be a good and reliable employee. Barrett further testified that it was necessary to maintain discipline in order to operate effectively and that if an employee challenged his authority he would have no choice but to fire the employee immediately.
The Issue The issue for consideration in this case is whether Petitioner was discriminated against in employment by Respondent because of his race or gender.
Findings Of Fact Petitioner, Brian Poole, started work for the Respondent, Manatee Association for Retarded Citizens (MARC) on September 7, 1993. He was employed as a habilitation assistant and earned $5.48 per hour. As a rehabilitation assistant, his job was to help with clients who were retarded workers employed by MARC. These workers needed supervision at all times. A part of his job was to write case notes about the workers, and these notes were reviewed by Laurie Mayberry, the Department of Heath and Rehabilitative Services liaison. Petitioner’s immediate supervisor at the time was James Disbro, with whom he did not get along very well. He claims that in October 1994, after he had been employed at MARC for over a year, and had already received one raise to $6.01 an hour and was expecting another to $6.73 an hour, he was interviewed by Disbro who went over his performance with him to determine if he would get the raise or not. During the interview, Petitioner claims, Disbro said he felt Petitioner did not deserve a raise, but Petitioner took the matter to John Schwartz, the MARC Chief Executive Officer, who reversed Disbro’s decision to deny Petitioner the raise. As they left Schwartz’ office, however, Dosbro reportedly told Petitioner that so long as he, Disbro, was there, Petitioner would not get a promotion. In November 1994, Petitioner received another evaluation to decide how large his raise would be. It ultimately was determined he should be raised by $45.00 per month. In December 1994, just before Christmas, a job opening was announced, for which Petitioner applied. A co-worker, Ms. Bradford, also applied for the job and she was interviewed first. Petitioner was then interviewed as well, but Ms. Bradford was given the position because, Petitioner was told, she was more qualified than he was. What bothers Petitioner about the situation is that while he was being interviewed, Disbro kept interrupting to get Petitioner to do other things. When Petitioner later complained to the CEO about this, he was told Disbro would be counseled about it and that he should overlook Disbro’s conduct. At this particular time, the only black employees at MARC were Petitioner and Mr. Lee. Others were hired later. Petitioner contends that a black female employee quit because of similar working conditions, but there is no identification of the employee or independent evidence of when or why she quit. It also appears other black employees were employed on a routine basis. When Petitioner came to work on January 31, 1995, he was told he did not get the job he had been interviewed for before Christmas. It seemed to Petitioner that everyone but him knew the job had gone to the female employee. He relates that another female employee told him that she could have had the job because of her close relationship with management. Again, however, there is no independent evidence to support this claim. Petitioner contends that the environment within his section was uncomfortable for him. That is why he applied for other jobs within the organization. It was to get out of the situation in which he found himself more than to seek promotion. As an indication of what he considers to be the antipathy toward blacks in evidence at MARC, Petitioner notes that when one black employee was absent from work on January 31, 1995, a white assistant commented that Petitioner and Lee would know where he was because they lived on that side of town. To Petitioner, this was a case of the white employee inferring that because Petitioner and Lee were black, they would automatically know where other black employees lived. The employee who allegedly made this comment was not identified. Later that day, however, another "anti-black" comment was made regarding a white residence manager to the effect that he was not a "preppie" because he went with a black girl. According to Petitioner, comments such as this were not uncommon at Respondent’s facility at the time, but there is no independent evidence to support the claim. At an in-service luncheon one day, Petitioner recounts, a white lady implied that the two black attendees were rude and inconsiderate and did not know how to act in public. She allegedly stated they should be grateful they had been taken out for lunch. There is no evidence to indicate if Petitioner present at the time, or who the speaker was. On February 9, 1995, Petitioner was absent from work. While he was gone, Ms. Carrol, a lab worker, approached Mr. Lee, a black employee, and asked him if he believed Petitioner was sick or out looking for another job. Mr. Lee called Petitioner at home and reported this. While Petitioner considers this a racially motivated comment, absent any independent information surrounding it, it is not found to be so. On February 10, 1995, Disbro told Petitioner and Mr. Lee to move all the furniture out of the work shop and clean the shop. While the two black employees were pulled off their jobs to do this, all the white employees, both male and female, continued to do their regular jobs. Being away from his duties to do the clean-up put Petitioner behind in his regular duties. When Petitioner tried to talk to Disbro about why other employees couldn’t help with the move, Disbro allegedly said he and Lee were to do it and a complaint to Mr. Schwartz would be non- productive. No evidence was presented to support Petitioner’s claim this was racially motivated. The mere fact that two black males were directed to do manual labor does not prove racial discrimination absent a showing there were others capable of doing the work who were not occupied with other, more demanding duties. On February 15, 1995, Petitioner was supervising a female client who needed help to go to the bathroom. Consistent with the rules for that situation, Petitioner called for help but was put off with what he considered to be a lie. When he reported this to Disbro, Disbro said to forget it. Petitioner is sure that if it had been him who was complained about, Disbro would have taken corrective action, but there is no evidence to show this. In late February 1995, a special training program in Orlando was announced. Management asked who wanted to go. It was reported that those who received the training would be certified and would receive more money. Though Petitioner applied, he was not selected to go. When he asked if his failure to get the training would be held against him if he applied for a better job, he was told it would not. However, subsequent to the training, whenever he applied for any jobs in that area, he was rejected because he was not trained. Mr. Schwartz, the CEO, contends that all employees were offered the opportunity for in- house training. Training away from the facility, however, was offered to those who would best benefit from the training due to their responsibilities. Schwartz insists that in making the selection of those to attend the away-training, the employee’s performance and disciplinary records were not considered - just the need for the training. One of those selected was Ms. Sparks, who had a background in special education and a demonstrated ability to deal with retarded clients. The agency’s position seems reasonable, and no evidence was offered to indicate its assertion is not true. In March 1995, a social worker from the Department of Health and Rehabilitative Services, Ms. Peterson, accidentally threw away an assessment of a client Petitioner had done and asked Petitioner to re-do it. Petitioner refused and she complained to Disbro who, in what Petitioner considered to be a harsh manner, directed him to do so. Petitioner felt this was unfair and wrong, aside from Disbro’s use of abusive language. It is a fact, however, that case notes are the responsibility of the habilitation assistant. If no record is made, there is no way to recover information relating to the clients. Though Petitioner claimed he was being treated unequally in that other assistants did not have to do what he was directed to do, this allegation was unexplained. On March 16, 1995, Petitioner complained to Disbro about the way he felt he was being treated. Disbro said that they would work it out - the past was past. However, later that day a statement was made that Petitioner was improperly eating in the workshop. When Petitioner told Disbro he was not eating, Disbro replied that there were chicken bones all over; a comment which Petitioner took as racially-oriented. Petitioner claims to have been humiliated by the comment, and when he got upset at that comment, he claims Disbro wrote him up for his response. Disbro claims the write-up was for eating on duty. He claims he saw chicken bones in the trash in Petitioner’s area, and eating at a work station is not permitted under MARC rules. After that incident, Petitioner requested to see Mr. Schwartz, but his request went unanswered. This led Petitioner to believe that not only was his rapport with his supervisor, Mr. Disbro, poor, but so it was with Mr. Schwartz. Petitioner concluded this also based on his perception that Mr. Schwartz never acted on any of his complaints against Disbro. In early May 1995, Ms. Carrol came into Petitioner’s workshop at least three to five times a day. Petitioner felt she was spying on him, but when he complained about this to Disbro, Disbro contended she was just lonesome for her old work group. He indicated he would follow up on it, but to Petitioner’s knowledge, nothing further was said about that situation. However, at the end of the day, Disbro called Petitioner aside and spoke to him about a reported safety violation. He was told another worker had reported that she thought Petitioner was improperly running a machine which could have resulted in injury to a client. When Petitioner indicated he was not satisfied with Disbro’s attitude toward other employees "spying" on Petitioner, and asked to speak with Mr. Schwartz, Disbro reportedly stated "I really hate you guys." Disbro would not explain what he meant by that comment, but Petitioner considered it a racial slur. Disbro denies having made the comment. Assuming it was made, however, absent other evidence to support Petitioner position, it cannot be concluded that the comment was racially motivated. It could well have been a reference to a myriad of other things. On May 19, 1995, Petitioner noticed a posting for a job which he felt he could do and which would get him out of the environment in which he was having so much trouble. Petitioner applied for the job but heard nothing about it in response. He was the only applicant from within the agency, and the job was not a promotion. He reports that all the associates laughed at him when he applied, and he didn’t know why. A month later, when Petitioner still had not heard about the job, he was told by a co-worker that the job had been filled. When he checked on it and found that report was true, he asked the personnel staffer why he hadn’t been interviewed and, reportedly, she just laughed. This made it clear to Petitioner that he was not going to get any other job at MARC. Mr. Schwartz claims it is normally MARC policy to promote from within if they have personnel in house who possess the needed qualifications. He recalls the incident about which Petitioner complains. This job required an enormous amount of non-supervised performance, and due to Petitioner’s record of absenteeism, tardiness, and other documented problems, it was felt he did not meet the qualifications of the job. Management believed Petitioner needed much more structure and direct supervision than this particular job would provide. On June 21, 1995, he told the personnel people he felt he had been discriminated against in his initial hiring, his salary, in promotions, and in working conditions. He was told to speak with Mr. Schwartz about it, but when he tried to do so, Schwartz suggested he speak with someone else in the agency, Mr. Paul Welsh. Petitioner was not able to reach Mr. Welsh for several days, however, both Mr. Schwartz and the personnel staffer indicated it was MARC policy to hire first from within the agency. In Petitioner’s case, Mr. Schwartz said he didn’t think it was a question of discrimination, but he would look into it. A few days after this conversation, Mr. Schwartz’ secretary told Petitioner that Mr. Schwartz wanted to see him. When the two met, Schwartz asked Petitioner if he felt he was being discriminated against. Petitioner explained how he felt. Schwartz then thanked Petitioner and said he would get back to him. On June 27, 1995, Schwartz told Petitioner he had been too busy to talk to Mr. Welch about Petitioner’s situation but would do so and get back to him. The next day Schwartz called Petitioner to tell him he had met with Welch and would speak with Petitioner the next day. Petitioner did meet with Schwartz the next day and Schwartz told him that HRS had changed the requirements of the job he had applied for and that was the reason he wasn’t selected. Petitioner asked to see the changes but was not shown anything to support Schwartz’ claim. Petitioner claims he asked if the training he had applied for but not received would have helped, but Schwartz was unable to give him a firm answer. When Petitioner asked if there were some form he could fill out to complain about the treatment he had received, he was told to ask the secretary. The secretary advised him she didn’t have the forms. Several days later Petitioner saw an EEOC poster with an 800 number which he called. When he explained his situation, he was told what to do and furnished with the forms he needed. He filled them out and submitted them, which initiated this action. Petitioner resigned from MARC in August 1995, after about a year and a half on the job because he was fed up with what was going on as it related to him. Documentation introduced at the hearing reflects that on most appraisals he received he was rated down because of his attitude, yet he continued to received periodic pay raises. However, though Petitioner and Ms. Sparks, a white employee, were doing the same work, he discovered, when he accidentally received her paycheck instead of his own, that she was making more than he was. Mr. Schwartz indicates, however, that Ms. Sparks dealt with more difficult clients than did Petitioner, which required her to assume a greater responsibility than his, and according to Mr. Schwartz, she had far greater experience in the program than he did. According to a co-worker, Ms. Ball, Ms. Sparks has a background in special education. She had the proper attitude for working with retarded clients and was very conscientious and dedicated. She had an extra ability to work with autistic individuals and those with behavioral disorders. If true, and no evidence was presented to show it was not, this would justify her receiving a higher pay than Petitioner who was only employed at the facility for a total of a year and a half. According to Mr. Schwartz, MARC had several other individuals doing the same work as Petitioner was doing. Three were black males, and the remainder were white females. MARC had an equal employment policy which was enforced. At the time Petitioner was employed there approximately 30 percent of the employees were male and 70 percent were female. There were two Hispanics of whom one was male and one was female. The reason for the predominately female employee census was that most applicants for jobs were female. The racial mix at the facility, 25 percent black and 75 percent white, was approximately equivalent to that in the community. Schwartz categorically denies there was any policy calling for a difference in pay due to race or gender, nor were minority males singled out for the dirty jobs, as Petitioner contends. He admits, however, that because Petitioner and Lee were the only two males on the floor in that shop, they were assigned jobs from time to time which females could not do readily, because of their size or strength. The immediate supervisors, such as Disbro in Petitioner’s case, were responsible for day-to-day supervision and were usually left alone to manage their work load and their employees. If, however, a situation arose which needed next- level intercession, Schwartz would step in. He was the appeal authority in disciplinary matters, and remembers serving as such several times for Petitioner. He cannot recall the details of the incidents, however. Mr. Schwartz also recalls an incident where Petitioner was requested to bring in a doctor’s slip to justify his being absent for several days. The documents Petitioner presented were inconsistent with his story. On follow-up, it was determined that neither was a legitimate report relating to Petitioner’s condition. One was from a gynecologist and one from a pediatrician. Mr. Schwartz also acknowledges that Petitioner came to him to express concern over Disbro’s alleged comments which Petitioner felt were racially motivated. In that same vein, though Petitioner contends that MARC management did not want minority job coaches to represent it in the community, Mr. Schwartz denies that race or gender played any part in promotions or assignments. The sole issue was who could best do the job. Petitioner also objects to being the only employee written up as the result of an incident when a client eloped, even though at least one other employee was present at the time. Habilitation assistants are responsible for the well-being of their clients and cannot afford to lose track of clients whose safety is at risk. Petitioner was the individual responsible for the client who eloped. Disbro, as Petitioner’s immediate supervisor, oversaw the employment of eight employees. Of these, four, including Petitioner, were black and four were white. Most were female. All did the same type of work, except for specific personal care issues where gender was a consideration. Work requiring heavy lifting was done by whoever was there to do it and was capable of doing so. Pay was based on performance without regard to minority status or gender. While Petitioner was supervised by Disbro there were times when Disbro felt it necessary to discipline him. In one case Disbro observed Petitioner sleeping at work. This was also observed by a vocational trainee, and others have seen similar instances. Petitioner claims he was not sleeping and that the observers were mistaken because of his small eyes. Disbro has no doubt that Petitioner was sleeping, and from personal observation of Petitioner at hearing, his eyes did not appear significantly smaller than those of any other person. Petitioner was written up for tardiness numerous times during the course of his employment, as well as for a general lack of attentiveness. As a result, he was placed on probation for a period of time, and at least one pay raise was deferred. On one occasion, he was suspended without pay for three days. Though Petitioner claimed he was discriminated against when not selected to attend away training, he was scheduled for an in- service training which he failed to attend and failed to call in to advise he would not be there. When subsequently asked why he had not been present, Petitioner claimed he didn’t need the training being offered. On August 23, 1995, he was issued a letter of reprimand for this. According to Disbro, at no time did he ever address Petitioner or any minority employee in a racially derogatory manner. He denies ever having used the term, "you guys," to Petitioner. He adamantly rejects any contention that he treated Petitioner any differently than any other employee, and denies he was ever instructed to do so. Disbro contends Petitioner could not take constructive criticism and when corrected, would become very defensive. Petitioner’s progress notes kept on the clients he served were not up to par, according to Ms. Mayberry, the individual responsible for developing client program systems and overseeing documents prepared by Petitioner and other habilitation assistants. Case notes have to be a direct reflection of the program plans, and must show goals, accomplishment, plans, and the like. The goals indicated what information needed to be reported, and case notes were the support documents for funding from HRS, Medicaid, and other fund sources. In the opinion of Ms. Mayberry, Petitioner had an ongoing struggle with the documentation system. He was not the only habilitation assistant who had problem with case notes, and whenever she found a problem, she would send a memo about it to the assistant and to Disbro. Though the other assistants cooperated, Petitioner’s general attitude toward case notes was that he was willing to sit down with her and review them, but he often became frustrated and felt he was being picked on. As a result, she developed fill-in forms to help him provide the proper information. Nonetheless, Petitioner seemed to have both an attitude problem and an ability problem with the case notes. As other assistants improved in the note preparation, Petitioner continued to struggle without much improvement. Ms. Bouse, also an habilitation assistant, as were Petitioner and Mr. Lee, could not recall either ever having been singled out for dirty jobs. She observed Petitioner on the job and noted that he slept a lot during the workday and talked on the phone a lot. In her opinion, he did not do his job very well. He was absent a lot and often tardy, and when he was not there, the other assistants had to do his work as well as their own. Ms. Lawrence worked with Petitioner one day shortly after she was hired during which he showed her the ins and outs of the cable contract on which he and his crew were working. After that day, she took that contract over from him. On one occasion, Ms. Lawrence and Petitioner attended a convention in Sarasota, and during the course of a lecture, she had to wake him twice. Other than that incident, she denies having seen him sleep on the job. Janet Ball has worked at MARC for 19 years as the adult basic education teacher. As a part of her duties, though she did not supervise Petitioner, she could observe him for approximately an hour and a half per day while she was working in the same module as he was. On at least two occasions she observed him asleep. On one of those it appeared his son had been sick all night. She considers this significant because the safety of the clients is an issue. Petitioner supervised ten individuals, all of whom were severe and profoundly retarded, and he had to remain alert at all times with them. Since his resignation from MARC, Petitioner has worked for a construction company at $9.50 per hour for 40 to 50 hours per week. However, on July 28, 1996, he was involved in an automobile accident which kept him out of work for a while, and, in any event, made it impossible for him to do construction work ever again. After his recovery, Petitioner worked at several jobs including temporary services. At one job, with Wellcraft, he earned $7.77 per hour for a 40 hour week, plus overtime, and worked there for about two months until he was fired for leaving the job early. He then went to work for a cleaning service and eventually obtained his own franchise from which he earns approximately $2,000 per month. Except for his period of recuperation after the accident, he has worked full-time since leaving MARC, at a rate higher than he earned there.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing Brian C. Poole’s Petition For Relief alleging employment discrimination based on race and gender. DONE AND ENTERED this 23rd day of March, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1999. COPIES FURNISHED: Brian C. Poole 817 18th Street East Bradenton, Florida 34208 Omer Causey, Esquire Nelson Hesse 2070 Ringling Boulevard Sarasota, Florida 34237 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact The Other Eligibility Criteria The Petitioner is a corporation formed in 1984, whose sole stockholder, only Director, and President is Kathleen Weber, a minority person. Respondent, Department of General Services (DGS) concedes that Petitioner corporation meets all eligibility criteria for certification as a Minority Business Enterprise (MBE) except for the number of permanent, full-time employees, which statutory component is the sole focus of the dispute in this cause. Eligibility in this regard hinges on the employment of "25 or fewer permanent full-time employees." Petitioner engages in the provision and installation of plumbing, HVAC ventilation, fire protection, process piping, and potable and waste water systems in the commercial construction field. Permanent, Full-time Employees Ms. Weber claims no part-time employees and considers all employees to be full-time. That is, all employees work, when they work, for a full forty hours per week. However, Ms. Weber classifies her employees, as of date of formal hearing, into two categories of full-time employees: office employees and field employees. Petitioner asserts that the office employees are permanent, while the field employees are not permanent. At the time of the hearing, petitioner had twelve permanent office employees whose positions included Ms. Weber, six project managers, accounting and estimating personnel, and clerical help. Office employees are paid for holidays, sick leave and vacation, and insurance. They are paid a salary on a monthly basis. They are covered by written corporate employment policies. The number of field employees fluctuates between sixty and ninety. Their number and makeup are determined on an "as needed" basis, depending upon the securing by petitioner of a construction contract upon which they can be employed, the size of the "job" and the stage of completion of each job undertaken by Petitioner at any given time. As individuals, these employees do not work on a guaranteed, regular, or predictable basis. The corporation does not have or display any written employment policies concerning them. Sometimes, field employees are hired through a labor company. Usually, as with most non- union construction companies, they are hired upon word of mouth, reputation, and as they present themselves at the job. Field employees are paid only for the hours that they actually work. They may be moved from job to job to accommodate the schedule on each job and to avoid Petitioner laying off personnel that may be needed again soon. Their pay scale ranges from $6.00 to $14.00 an hour with $8.00 being an average. Field employees' wages are set by Bob Pacitti, the head project manager. When a man in the field feels that he is entitled to a raise and asks for it, then a form is filled out by a superintendent who gives it to Bob Pacitti who approves or disapproves the raise. Final approval of a wage increase is made by Ms. Weber. There is no set beginning wage for field employees. Their hourly rate depends on the experience of the worker, the type of work, how badly an employee is needed, add if there is a labor crunch or not. There is no set review period for deciding whether a field employee is entitled to a raise. Field employees are not paid for sick time, holidays, or vacation time. The company designates a field worker, who is called a "foreman" for each job in progress. The "foreman" telephones on a daily basis to the office personnel to inform them of the time worked for all field workers on his particular job/site. After working for the company for one month, field employees are eligible to join the major medical group health insurance plan. The employee is automatically put on the insurance and the company pays the premium for an individual employee. Once an employee has stopped working for two weeks, he is taken off the insurance, retroactive to the last day he worked, and sent a letter indicating that he can assume the insurance premium payment himself through petitioner. Although there is no direct-testimony to that effect, it can be inferred from Ms. Weber's testimony that the health insurance premium for the company is somehow calculated on a regular basis to anticipate at least some number of continuously, employed field employee positions. Two separate payroll ledgers are generated by petitioner: one for field employees and one for office employees. Superintendents Frank Llama and Don De Silva are included in the field employees' weekly computerized payroll but are nonetheless considered by Ms. Weber as permanent employees. The monthly office employee payroll is done by hand. There were about ninety field employees on the last field employee payroll before the date of formal hearing. As of the date of formal hearing, Petitioner was working on twelve projects. The twelve projects have a contract amount ranging from $123,000 to $6,200,000, which may last from a few months to almost two years. The total contract amount for the twelve contracts is in excess of $14,000,000. Each project is assigned one of the six project managers who oversee the job. Frank Llama is a superintendent who is in charge of field operations. He travels from job to job making sure that things are done the way they are supposed to be done Don De Silva performs the same supervisory function, but his work is generally limited to supervision of the air conditioning aspects of the projects. There were thirty-three individual field employees (not counting superintendents Llama and De Silva) who were listed on the applicant's payroll as of 6/19/86 who were also listed on the last payroll for 1986. These employees were continuously employed throughout that time frame. There were twenty-two individual field employees (not counting Llama and De Silva) who were listed on the Petitioner's first payroll for the year 1987 and who were also listed on the last payroll for 1987. Most of these field employees were continuously employed by Petitioner for all or a significant part of that year. There were forty-seven field employees (not counting Llama and De Silva) who were listed on the first payroll for 1988 and who were also listed on the 9/08/88 payroll. Some non-supervisory field employees were employed continuously from one year to the next, and a few were continuously employed for all or the better part of the two or three years. Each had federal income and FICA taxes deducted from his salary while employed by Petitioner. During 1986, 1987, and the first two quarters of 1988, the Petitioner reported the following number of office and field employees on the initial Florida Employer's Quarterly Wage and Tax Report, for Florida Unemployment Compensation purposes: 1986 1987 1988 Jan. 77 74 97 Feb. 1st 91 79 105 March 93 81 107 April 116 96 96 May 2nd 117 98 96 June 108 105 96 July 127 122 August 3rd 100 122 Sept. 106 112 Oct 91 108 Nov. 4th 74 110 Dec. 68 110 Petitioner's gross receipts in the fiscal year ending March 31, 1986, were $5,702,138. Its gross receipts for 1987, $3,466,926. Its gross receipts for 1988, were $3,917,190. Non-Rule Policy Petitioner's initial application for MBE certification was deemed incomplete by DGS. The application did not respond to the question that says, "state-the number of current, full-time, permanent employees ", on page 3 of the Certification Application Form 1704. It did not give the name, home address, home telephone number and length of service for each current, full-time, permanent employee on an attached sheet of paper, also as required by the application form. It did not attach a copy of one or more of the following items: W-4 Social Security form for each current full-time employee. The most current Florida Quarterly Unemployment Report. The most current Federal Annual Unemployment Report. (R-13) Ms. Weber filled out only the questions relating to minority status. By letter dated December 15, 1988, Ms. Weber was requested to provide this information by Lloyd Ringgold, Minority Business Assistance Labor Employment and Training Field Representative of the Minority Business Enterprise Office. By letter dated December 23, 1986, Ms. Weber replied, "Falcon Mechanical, Inc., has 22 full-time, permanent employees. Ms. Weber also included an employee roster showing a list of twenty- two employees. When that employee roster was submitted to the MBE office, twelve of the employees on that roster were paid on a monthly basis and ten were paid on a weekly basis. At the time of the hearing, the applicant no longer employed eight warehouse employees from that roster, who had been paid on a weekly basis. (See Finding of Fact 11). Without needless elaboration, it is found that Mr. Ringgold and Ms. Weber did not have a meeting of the minds when, during an on-site interview, he requested her to define "full-time employee" and "permanent employee." Her responses then are not inconsistent with her testimony at formal hearing nor with the facts as found supra. Petitioner's President clearly always viewed the field employees as a transient, very flexible, changing labor force who were not office personnel and who did not individually work on both a regular and a predictable basis, whether they worked 40 hours a week in stretches or not. DOS personnel, however, did not understand her responses at the interview this way and applied what Mr. Ringgold thought Ms. Weber meant to both of the Petitioner's payroll ledgers to reach the conclusion that Petitioner employed more than twenty-five permanent full-time employees. DOS does not have a duly promulgated rule defining the term "permanent employee" which is a crucial component of the element, "permanent full-time employee," within the statutory MBE criterion "small business' which is here at issue. DOS also has no written statement of its policy with regard to such a definition but it asserts it has an unpublished, not publicly declared definition or method for determining the number of permanent full-time employees. DOS admittedly did not explicate, announce, or publish this method to Petitioner or anyone else. When an agency makes such an assertion, it must explicate and demonstrate the reasonableness of its non-rule policy on a case- by-case basis. MacDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Florida Medical Center v. Department of Health and Rehabilitative Services, 463 So.2d 380 (Fla. 1st DCA 1985). This is a heavy burden, and the non-rule policy does not have the presumption of validity which is afforded formally promulgated agency rules. Barker v. Board of Medical Examiners, 428 So.2d 720 (Fla. 1st DCA 1983). From the testimony of Lloyd Ringgold, and the testimony of his supervisor, Marsha Nims, DGS Employment and Training Manager, it was established that DGS uses the information provided by the applicant on the application form, the Employer's Quarterly Wage and Tax (Unemployment) Reports, and other employee records to initially consider whether an applicant employs twenty-five or fewer permanent full-time employees. What formula, if any, is applied at that stage of agency review, other than a general discussion between DOS employees, was not fully explicated at formal hearing. However, after the first stage of review, if the reviewer has a question as to whether an applicant has more than twenty- five permanent full-time employees, DOS then conducts an on-site interview as it did in this case and relies on the applicant's definition of "permanent" and "full-time" employee given in that interview. The reasoning behind this approach by the agency is apparently that someone within DOS believed such an approach to be the fairest method for judging MBE applicants who represent diverse types of businesses, not all of which businesses are susceptible of easy analysis. No non-speculative rationale was advanced for this method of defining "permanent, full-time employee." This method has built-in external inconsistency and subjectivity as between applicants and is subject to manipulation and control by every applicant. Moreover, as the foregoing findings of fact demonstrate, ordinary conversational misunderstandings subject the method to internal inconsistencies in actual practice. The method/policy does nothing to apply presumed agency expertise to a program the agency is mandated by statute to administer. The method also was not demonstrated to conform with any generally recognized MBE or employment planning and reporting considerations. Therefore, DOS failed to explicate its non-rule policy and failed to demonstrate its reasonableness.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner's request for certification as a Minority Business Enterprise be DENIED. DONE and ENTERED this 24th day of February, 1989, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 87-1950 The following constitute specific rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF 1-3,5. Accepted in substance but not adopted where subordinate, unnecessary, or cumulative to the facts as found or never at issue. 4,7. Accepted. 6. Rejected as a FOF: covered in conclusions of law (COL). 8-9. Rejected as mere statements of position or argument. To the extent they address the evidence presented and are contrary, they are rejected for that reason. The non-rule policy is addressed within the RO and FOF made therein that conform to the greater weight of the evidence as a whole. 10-16. Accepted in substance but not adopted as cumulative, subordinate, and unnecessary to the facts as found. 17-18. Rejected as cumulative, subordinate, and unnecessary to the facts as found and portions are also mere argument or statement of position. 19. Accepted as Petitioner's classifications only. The second sentence is modified to conform to the relevant and material evidence as a whole. Respondent's PFOF 1-14. Accepted in whole or in substance except where subordinate, unnecessary, or cumulative. A portion of PFOF 3 has been rephrased so as not to constitute an ultimate conclusion of law. Mere recitations of testimony have been rejected as-such. 15-20. Generally accepted; what is rejected is rejected as contrary to the evidence, cumulative in part, and in part as mere recitations of testimony. Further explanation and rulings are contained within the RO itself. 21-23,25. Accepted in substance, modified to clarify or conform more closely to the record evidence as a whole. 24. Accepted in substance but conformed to the greater weight of the evidence as a whole in FOF 15. During year 1987, Respondent does not state that employees Budgett and Ocasio were not employed for a significant number of pay periods and seems to have confused Ruben Ocasio (59415) and Jose Ocasio (59400) throughout the pay periods as well as with regard to the first and last payrolls. In 1988, Figueroa and Zager were not employed for a significant number of pay periods. The Hearing Officer has read composite exhibit 6 with diligence and has conformed the FOF to the evidence, without cumulative verbiage. COPIES FURNISHED: Gerald G. Sternstein, Esquire MacFarlain, Sternstein, Wiley & Cassedy, P.A. Suite 600 First Florida Bank Bldg. Post Office Box 2174 Tallahassee, Florida 32316-2174 Sandra D. Allen, Esquire Office of General Counsel Department of General Services 200 East Gaines Street Room 452 Larson Building Tallahassee, Florida 32399-0955 Ronald W. Thomas Executive Director Department of General Services 133 Larson Building Tallahassee, Florida 32399-0955
The Issue Whether the City of Ocala (the City or Respondent), violated the Florida Civil Rights Act of 1992, sections 760.01- 760.11, Florida Statutes,1/ by discriminating against Nyleah Jackson (Petitioner) because of her race.
Findings Of Fact On May 2, 2016, Petitioner, who is an African-American female, was hired by the City as an Administrative Specialist II in its Electric Utility Department. On October 10, 2016, Petitioner moved to a lateral Administrative Specialist II position with the City’s Public Works Department to perform generally the same type of duties in that department’s sanitation division. An Administrative Specialist II is expected to regularly and competently prepare correspondence, maintain records, provide customer service, compile reports, and prepare schedules and payroll. As an Administrative Specialist II, Petitioner received mostly satisfactory, although never exceptional, ratings in her performance evaluation reviews in both the City’s Electric and Public Works Departments. In each of Petitioner’s performance evaluation reviews, her rater or supervisor was tasked with assigning a 1, 2, or 3 rating for each of 10 different tasks, examples of which include “Quality of Work,” “Efficiency,” “Responsibility,” and “Customer Focus.” A rating of 1 means that the employee performed a task below the standard. A rating of means that the employee meets task requirements. A rating of means the employee exceeds standards. Petitioner received a rating of 2 (Meets Standard) for every task on every review produced by the City, except for her April 19, 2017, evaluation on which Petitioner received a 1 in the category of “Responsibility” due to alleged problems related to tardiness and failure to properly notify her supervisors of absences. During January 2017, an Administrative Specialist III position became available within the City’s sanitation division because the person previously filling that position moved into another position. In accordance with the City’s hiring process governed by its City Employee Handbook, the City’s Human Resources Department (HR) reviewed the vacant Administrative Specialist III position, confirmed that it was budgeted and set to be filled, and evaluated whether it was governed by any collective bargaining agreements. Upon determining that the position was governed by the City’s collective bargaining agreement with the International Brotherhood of Electrical Workers, on January 13, 2017, the City posted the job internally for five days to allow existing City employees to apply for the position before allowing external applications. Similar to the Administrative Specialist II position, the City’s Administrative Specialist III position is required to regularly and competently prepare correspondence, maintain records, provide customer service, compile reports, and prepare schedules and payroll. An Administrative Specialist III, however, has expanded duties and responsibilities. While all administrative specialists throughout the City perform similar tasks, each division in the City may have a different distribution of duties for its employees due to the kind of work required for that division’s services. These differences would not be reflected in the listing for an open Administrative Specialist III position. Such listings were drafted by an outside consultant to generally describe the Administrative Specialist III position for all departments throughout the City. For the sanitation division, the Administrative Specialist III position has a substantial customer service component. Specifically, the Administrative Specialist III position in the sanitation division is required to answer a large volume of phone calls from angry citizens for various sanitation complaints. For that reason, the hiring managers placed importance on the applicants’ people skills, patience, and ability to maintain a calm, customer-friendly demeanor when dealing with angry citizens. Petitioner testified that the director of the City’s Public Works Department, Darren Park, suggested that she apply for the open Administrative Specialist III position due to Mr. Park’s belief that she had performed well in a previous interview. Therefore, Petitioner explained, on January 23, 2017, she applied for the City’s vacant Administrative Specialist III position in the sanitation division. In accordance with City policy, HR reviewed all of the internal applications for the position to preliminarily screen applicants who did not meet the minimal qualifications. Petitioner’s application and three other internal candidates’ applications were found to have met the minimal qualifications and were forwarded to the department’s hiring managers for interviews. Of the four internal applicants forwarded by HR to the hiring managers, the only other minority applicant was a Hispanic male. Shortly after the internal applications were submitted, the two hiring managers, Dwayne Drake and Cloretha McReynolds, reviewed the applications and interviewed the City’s internal applicants. Dwayne Drake, a Caucasian male, was the division head of sanitation. Cloretha McReynolds, an African-American female, was a supervisor in the sanitation division. A few days after the City received Petitioner’s application, Mr. Drake and Ms. McReynolds interviewed Petitioner for the open position. During Petitioner’s interview, as well as in all of the other interviews for the position, the hiring managers used a list of prepared questions, entitled “Sanitation Administrative Specialist III Behavioral Interview Questions.” The questions were designed to allow the hiring managers to evaluate the strengths and weaknesses of an applicant’s personality traits, people skills, and behavioral characteristics. During her interview for the position, Petitioner admitted that one of her weaknesses was that her assertiveness could sometimes be mistaken for aggressiveness. This comment by Petitioner concerned Mr. Drake because the sanitation division has many callers already upset when they call. Mr. Drake felt that Petitioner’s comment was a “big hurdle” that Petitioner would have to overcome in order to be selected for the Administrative Specialist III position. Similarly, Ms. McReynolds testified that Petitioner’s response that her assertiveness could be misinterpreted as aggressiveness concerned her because “we were looking for a specific – we were looking for someone with a great personality.” When further pressed by Petitioner why customer service was valued so highly for the Administrative Specialist III position, Ms. McReynolds testified: Q. Okay. Are there different weights that you hold for one question than the other? For example, someone said they don’t have experience in payroll, but they also said that they are very well with handling customers, is there a system for you that you say: “Hey, well, this is more important than the other one? This one holds more weight than the other one”? A. Anyone can be taught to do payroll. Q. Right. A. Anyone can’t be taught to be respectful on the phone and customer friendly. I can teach someone how to do payroll, I can teach someone to do billing. I can teach someone how to do that position, but I can’t teach someone to be nice to the customers. And I needed a nice person, a person who is going to be able to, when they get yelled at, better keep calm and deal with it, calm the customer down. And that’s what I was looking for. After the internal interviews, and as provided for by the City Employee Handbook and its collective bargaining agreements, the hiring managers decided to list the available Administrative Specialist III position externally. Petitioner testified that, following her interview, Mr. Drake came to her office and told her that the hiring managers were looking for a “better fit” for the vacant Administrative Specialist III position and that the City would advertise the position externally. Petitioner testified that, based on this statement, she inferred that the hiring managers had already determined that the City would not hire any of the internal applicants for the vacant Administrative Specialist III position because they had already determined that none of the internal applicants were qualified. In his testimony, Mr. Drake confirmed that he spoke with Petitioner following her interview, but denied that he told Petitioner, or any other City employee applicant, that they were already disqualified. Instead, Mr. Drake explained that, following the internal applicant interviews, he spoke to Petitioner because she was a Public Works employee and he wanted to tell her in person that they were going to look for external applicants. Mr. Drake’s testimony is credited. After the open Administrative Specialist III position was listed externally, three external applications were forwarded to the hiring managers, who interviewed those candidates consistent with City policy, using the same prepared questions as used in the internal interviews. After completing the external interviews, the managers both decided Jenna Hylkema, a Caucasian female and external applicant, to be the best applicant, and she was hired for the position. Ms. Hylkema had a high school diploma, a bachelor degree in criminal justice and had previously worked for the City as a dispatcher for the Ocala Police Department. At the time she was hired for the Administrative Specialist III position, Ms. Hylkema was working at the Department of Children and Families investigating child abuse cases and related issues. Both of the hiring managers agreed that Ms. Hylkema’s employment history and performance in her interview made her the strongest candidate for the vacant Administrative Specialist III position. Notably, Ms. McReynolds testified that Ms. Hylkema “was a call – a 911 call person [at the police department], and she was able to deal with - I thought she would be better to deal with the stress level, as far as – and also her personality in accepting calls.” Both Mr. Drake and Ms. McReynolds confirmed that their ranking preference was informal and not reduced to writing, but that, after all of the interviews, they discussed each of their orders of preference out of the seven applicants. According to both hiring managers, Petitioner ranked third or fourth of the seven applicants. Although they believed Petitioner was qualified, the hiring managers thought that Jenna Hylkema’s work experience and performance in her interview made her the most qualified applicant for the position. Also notable, Ms. Hylkema performed better on the objective components of the interview process. Petitioner herself confirmed that Ms. Hylkema performed better than she had in the objective portions of the interview, including scoring twice as high in an objective typing speed test. Both hiring managers credibly testified that neither Petitioner’s race, Jenna Hylkema’s race, nor anyone else’s race influenced their decision to hire Ms. Hylkema for the vacant Administrative Specialist III position. A few months after Ms. Hylkema was hired for the vacant Administrative Specialist III position, another Administrative Specialist III position opened in the Public Works Street Division, which was filled by Erica Wilson, an African-American woman who, like Petitioner, was working as an Administrative Specialist II when she applied. Petitioner did not apply for this position. Petitioner confirmed this, but failed to provide any explanation as to why the City’s policies discriminated against her, as an African-American woman, but apparently did not discriminate against Erica Wilson in their decision to hire her for another open Administrative Specialist III only a few months later. When asked why she did not apply for the other Administrative Specialist III position, Petitioner testified that she wanted the Administrative Specialist III position in the sanitation division. Despite evidence indicating that there was no illegal discrimination in the City’s process of filling the position for which Petitioner had applied, Petitioner alleged that there were irregularities in the selection process. For example, Petitioner contends that Ms. Hylkema was not qualified because Ms. Hylkema held a criminal justice degree that did not include advanced business or secretarial classes in college. The evidence, however, demonstrated that the City’s hiring process was flexible enough to allow certain criteria to be waived in favor of other experience, and that all applicants who were interviewed met the minimal qualifications for the position. Petitioner also alleged improprieties in the hiring process on the grounds that the City’s hiring managers did not use a formal numerical scoring in their evaluations and failed to keep complete notes during their interviews to confirm that each question was asked to every candidate. The City’s hiring process for vacant positions, however, does not require any specific numerical scoring system or prescribed notation process. Rather, the evidence demonstrated that the hiring managers appropriately weighed their impressions of the candidates through their interviews and the other materials provided to determine who would be best to respond to angry phone calls that the City’s sanitation department would receive. Throughout that process, and with no evidence of illegal discrimination, the managers appropriately ranked Petitioner as the third or fourth best candidate for the Administrative Specialist III position. The evidence at the hearing did not reasonably suggest that the process used during the selection process was suspicious, vulnerable to arbitrariness, or indicative of illegal discrimination. When asked about the City’s interview procedure, Petitioner said that she had no objection to the City asking questions to discern whether or not, subjectively, the interviewers thought an applicant was a good fit for the job. In sum, the evidence does not support a finding that Petitioner was not hired for the open position for which she applied because of her race, or that the City otherwise engaged in illegal discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 28th day of December, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2018.
The Issue Whether Respondent committed an unlawful employment practice?
Findings Of Fact Petitioner, Mr. Young, is a black male. From May 8, 1980 until September 20, 1985, Petitioner was employed by PCR, Inc., in Gainesville, Florida. PCR, Inc., is a chemical manufacturing company which mixes and manufactures some of the most toxic chemicals that exist at its Gainesville plant. In September, 1985, PCR, Inc. was owned by SCM Organic Chemicals. Petitioner was first employed by PCR, Inc., in May, 1980 as a maintenance helper and was subsequently promoted to maintenance mechanic. The maintenance department at the plant had seven employees, including Petitioner, who was the only black. Respondent followed a practice of documenting meetings between supervisors and employees concerning disciplinary matters and employee reprimands by memorandums written by the supervisors. Also, employees were counselled by supervisors in an informal manner where no memorandums were written. Prior to December, 1984, Petitioner had only been counselled or reprimanded regarding his work performance one time. The reprimand was for a one-day unexcused absence from work following four days of vacation. Sometime in October, 1984, Mr. Singletary became the supervisor of the maintenance department at PCR's plant in Gainesville. As such he was Petitioner's immediate supervisor. Mr. Singletary had worked for Respondent for over 20 years in Respondent's Jacksonville plant, where he had moved up through the ranks to become second in command in the maintenance department. In Jacksonville, Mr. Singletary had a reputation of being a tough, but fair supervisor who was concerned with "getting the job done," and who treated his coworkers and those he supervised equally, regardless of their race. One of Mr. Singletary's first duties upon becoming maintenance supervisor in the Gainesville plant was to review the personnel files and attendance records of the maintenance department employees. From this review, it appeared to Mr. Singletary that Petitioner had been abusing the sick leave privilege. After consulting with Mr. Pitrolo, the plant superintendent at the time, Mr. Singletary and Mr. Pitrolo met with Mr. Young on December 4, 1985. At the meeting, Mr. Singletary showed Mr. Young his attendance record and decided to extend the time for the yearly review of Mr. Young's performance. The substance of the meeting was memorialized in a memorandum dated December 4, 1988, written by Mr. Singletary, as follows: This is to document our meeting and its conclusion we had December 4, 1984. I went over your work record and you have thoroughly abused the time off with pay segment of our working agreement. You are hereby not awarded a yearly review but instead it will be extended until 15 months. You will also be placed on probation for a period of three (3) months starting 12/05/84 and ending 03/05/85. Any further violations as we discussed will end in termination. The problem is definitely not with your work, however, its being at work. In early 1985, Mr. Singletary implemented a four day work week, ten hours per day work schedule for the maintenance department employees. Mr. Singletary received reports that Mr. Young was telling other plant employees that he would receive overtime pay for the extra two hours of work per day. This became a concern to Mr. Singletary, since it was not true, and he did not want other employees to think that the maintenance department employees were receiving preferential treatment. On February 9, 1988, Mr. Singletary met with Petitioner and Petitioner denied he was making comments regarding the overtime pay. Mr. Singletary felt Petitioner was lying and instructed him to stop spreading rumors. Sometime in late February or early March, 1985, Petitioner was arrested for driving under the influence. After his arrest, Petitioner started telling people at the plant, including Mr. Pitrolo, that his intoxication had been caused by the chemicals present at the plant. Mr. Pitrolo told Petitioner that if he had a problem he should talk to his immediate supervisor, Mr. Singletary, and not make comments to other people in the plant. Instead of talking with Mr. Singletary, Petitioner continued to talk with others at the plant. Because Petitioner continued to talk about the intoxication to others, in violation of Mr. Pitrolo's instruction to talk with Mr. Singletary, another meeting was held between Petitioner, Mr. Singletary and Mr. Pitrolo, on March 5, 1988. Petitioner denied he was telling others that his intoxication was caused by the chemicals, but Mr. Singletary did not believe him. Petitioner was told to stop spreading rumors and to follow the chain of command if he had a problem. In early April, 1985, Petitioner was convicted of driving under the influence and sentenced to serve a 6-month jail term. Also, in April, 1985, Mr. Bailey became plant supervisor of the PCR, Inc., plant in Gainesville. He had previously been interim plant manager from May to September, 1984. After Petitioner's conviction, the Department of Corrections asked if Petitioner could return to his job at PCR, Inc., so he could be placed on a work release program instead of serving the 6-month sentence in jail. After consulting with Mr. Singletary, and reviewing Petitioner's personnel file, Mr. Bailey decided to allow Petitioner to work at the plant on the work release program. Petitioner started back at work on April 22, 1985. On that date, Mr. Singletary met with Petitioner to discuss the work release program and to let Petitioner know he was on "thin ice with the company." On April 26, 1985, Mr. Bailey and Mr. Singletary met with Petitioner. Mr. Bailey had reviewed Petitioner's personnel file and had seen all the memorandums in the file which had been written as a result of past counselling sessions. Mr. Bailey showed all the memorandums to Petitioner and asked him if he understood them and Petitioner said yes. Petitioner signed all the memorandums in the file. Mr. Bailey explained to Petitioner that if he had a problem, he should speak to Mr. Singletary. Also, Petitioner was told that being disruptive in the plant was bad and could cause operators to do something wrong. Petitioner was told that any further acts of a disciplinary nature would result in immediate termination. Approximately one month later, Mr. Bailey during his walks through the plant, began receiving reports that Petitioner was disgruntled, was complaining to other employees about the work he had to do, and was slow in completing work assignments. Reportedly, Petitioner would accuse the operators of breaking the machines on purpose. Mr. Bailey spoke with Petitioner informally during walks through the plant and told Petitioner to stop being disruptive. However, the number of people complaining about Petitioner's comments increased and things reached a point where operators told Mr. Bailey and Mr. Singletary that they did not want to turn in work orders because they were concerned about the comments Petitioner would make. Mr. Bailey, concerned with plant safety, consulted with Mr. Singletary and they decided that they had enough and would terminate Petitioner. On September 20, 1985, Mr. Singletary and Mr. Sauer, the personnel officer, met with Petitioner and explained to Petitioner that he was being terminated. The reasons given to Petitioner for his termination were poor performance, attitude and not being a team player.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order dismissing the Petition for Relief filed in this case. DONE and ENTERED this 7th day of July, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5570 The parties submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph 1. Accepted. RO1. 2. Rejected as irrelevant. 3. Generally accepted. RO3. 4. Accepted, except events occurred in October. RO4. 5. Accepted. RO8. 6. Accepted. 7. Accepted. RO17. 8. First sentence accepted. RO19. Second sentence rejected. Mr. Singletary testified that he followed up and determined that the complaints were accurate. 9. Accepted, except for phrase "although no additional acts of a disciplinary nature had occurred", which is rejected as being contrary to the weight of the evidence. RO21. Respondent's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph First sentence accepted. RO2. Second sentence rejected; no evidence was presented about when PCR, Inc. was sold. Generally accepted. RO2. Supported by competent evidence but unnecessary to the decision reached. Accepted. RO1 and 3. First four sentences accepted. RO6. Last two sentences are supported by competent evidence but are unnecessary to the decision reached. Supported by competent evidence but unnecessary to the decision reached. Accepted generally. RO5. 8-12. Accepted generally. RO6. 13-20. Supported by competent evidence but unnecessary to the decision reached. Accepted generally. RO4. Accepted, except last sentence which is rejected. RO5. Accepted, except second sentence. RO7. Second sentence rejected as not supported by competent evidence. 24-25. Accepted. RO9. Accepted. RO10,11. First sentence accepted. RO12. Rest of paragraph is supported by competent evidence but is unnecessary to the decision reached. Accepted generally. RO14,15. Accepted. RO16. Accepted. RO17. Generally accepted. RO18. Generally accepted. RO18. Generally accepted. RO20. Generally accepted. RO18. Generally accepted. RO19. Accepted. RO20. Accepted. RO21. Rejected as irrelevant. Rejected as not a finding of fact, but a recitation of testimony. Not a finding of fact. See conclusions of law portion of the RO. Supported by competent evidence. 42-43. Not a finding of fact. See conclusions of law portion of the RO. COPIES FURNISHED: Reese Marshall, Esquire 210 West Union Street Jacksonville, Florida 32202 T. Geoffrey Heekin, Esquire Commander, Legler, Werber, Dawes, Sadler & Howell Post Office Box 240 Jacksonville, Florida 32201-0240 Donald A. Griffin Executive Director 325 John Knox Road Building F, Suite 240 Tallahasee, Florida 32399-1925 Dana Baird General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Ms. Sherry B. Rice, Clerk Florida Commission on Human Relations Suite 240, Building F 325 John Knox Road Tallahassee, Florida 32399-1570
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Overall organization. The City of Tarpon Springs has a mayor and four commissioners and operates under a city manager form of government. Neither the commissioners nor the mayor play an active role in the day to day operation of the City. The City Manager has the responsibility of operating the day to day affairs for the City. Collective bargaining relationships exist between the City and unions representing the Police and Fire Departments. The City Manager negotiates for the City in these relationships. Other than the Police and Fire Departments, there are approximately fifteen or sixteen departments with over 100 employees within the City. The actual number of employees varies seasonally, with the City employing more in the winter. At this time, the City employs approximately seventeen persons under the CETA program. The Public Works Department consists of ten or eleven separate departments, each of which, is headed by a foreman, and the Public Works Director has overall responsibility for the entire Department. His position is primarily one of assistant city manager. Four or five times a year, the City has supervisory meetings attended by the City Manager, the Public Works Director and the foremen of the various departments. Discussed at such meetings, are problems involving personnel, discipline and scheduling. Uniforms are available to most City employees on a voluntary basis. If, an employee chooses to wear a uniform, the City pays half the price of the uniform for the employee, with the exception of school crossing guards for whom the City furnishes uniforms and CETA employees for whom uniforms are not available. Uniforms worn by foremen have the word "foreman" written on them. Foremen. Each department under the Public Works Department is headed by a single foreman, with the exception of the Parks and Cemeteries Department which has two foremen. These various departments each have between three and eighteen employees, and include the departments of streets, sewer, sanitation, water distribution, building and maintenance, meters, water pollution control, and general maintenance. The City generally does not hire persons for the various departments without the recommendation or approval of the foreman. Under normal conditions, the foremen make the decision as to overtime work and the transfer of employees from one department to another. Written and oral evaluations and recommendations for wage increases are made by the foreman to the Public Works Director, which recommendations are normally approved. If an employee were caught drinking on the job, a foreman may fire the employee and then tell either the City Manager or Public Works Director about it later. The City then conducts an investigation into the matter to avoid possible future problems, but normally the decision of the foreman is approved. With a less offensive problem, such as absenteeism, the foreman issues a warning in writing. After the second warning, the foreman informs the Director or Manager that he is dismissing that employee and the City then terminates employment. Foremen make the decision as to time off for personal problems or emergencies and also grant approvals for vacation times. If there are complaints or grievances within a department, the foreman of that department normally takes care of it, very seldom do grievances come to the Public Works Director. An employee may be transferred from one department to another through the agreement of the two foremen involved. The primary duty of the various foremen is to direct the employees and supervise the activities within their respective departments. During shortages of personnel, foremen participate in the same type of work as their employees. Supervisory authority is one of the basis, along with longevity, for the pay differentials between foremen and other employees. Foremen assist in the formulation of policies and work schedules within their respective departments and are consulted with respect to the preparation of the budget. There are no supervisory-type personnel between the foremen and the Director of Public Works. Foremen handle grievances and would thus have a role in the administration of collective bargaining agreements. CETA employees. CETA employees work along with other City employees and the City is reimbursed for their salaries by the federal government. While they may have the same rate of pay as another person in their classification and do receive overtime pay, they do not receive raises nor do they have the fringe benefits which other employees have, such as hospitalization, uniforms, paid holidays, vacation, and sick leave. The CETA program presently extends through September 30, 1976, and such employees are hired until that time. If the City had a vacancy in a regular, permanent position, it would fill that position with a good CETA employee rather than going out and hiring another employee. Part-time employees. The City employs a number of part-time employees to work as school crossing guards, to police the beach, to do summer work with recreation, to work in the library and to do clerical and custodial work. Certain of these part-time employees are seasonal. In order to receive hospitalization benefits, an employee must work thirty or more hours per week. The three school crossing guards work 25 hours per week and receive uniforms fully paid for by the City. They are supervised by the Chief of Police. Other part-time employees fall under the supervision of the foreman or director for the department for which they work. Vacation and sick leave, as well as holiday pay, are prorated for part-time employees based upon the number of hours that they work. Their rate of pay is based upon the federal minimum wage though some regular part-time employees receive merit pay increases. In accordance with F.S. Section 447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted. Respectfully submitted and entered this 4th day of August, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Curtis Mack Chairman Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, Florida Mr. Edward R. Draper 5400 West Waters Avenue, B-4 Tampa, Florida 33614 Mr. Allen M. Blake, Esquire Marlow, Mitzel, Ortmayer & Shofi 607 South Magnolia Avenue Tampa, Florida 33606
The Issue Mary Harrison's charge of discrimination dated August 4, 1995, alleges that Jodan, Inc., doing business as Manpower (Jodan), discriminated on the basis of her race and for retaliation by constructively discharging her, giving her verbal and written reprimands and a poor performance rating, by denying her training and by intimidating her. The issues for disposition in this proceeding are whether the alleged discrimination occurred, and if so, what relief is appropriate.
Findings Of Fact Jodan, Inc., is a family owned franchise of Manpower Temporary Services. Jodan provides temporary staff to its clients. It has six offices in Central Florida: two in north Orlando; one in south Orlando; and one each in Deland, Daytona, and Melbourne. Dan Gavin, president, is responsible for the day to day operations; John Gavin, his brother, is a co-owner. In March 1994, Margaret Jones was Jodan's district manager for the north Orlando (Maitland) and south Orlando (Sand Lake Road) offices. She recruited and hired Ms. Harrison to work as a service representative in the Maitland office. Shortly before that time John Gavin had asked her to recruit specifically for a minority employee as it would be helpful for the office to have a more diverse staff to serve its clients. Ms. Harrison is an African-American woman. At the time that she was hired by Ms. Jones in March 1994, her substantial work experience was in real estate and property management. Service representatives at Jodan perform the intake process with temporary employees (application, interview and testing); they take orders from clients and place temporary employees with those clients. Jodan provides a detailed training program for its employees, including its service representatives. Upon the commencement of her employment with Jodan, Ms. Harrison began a training program known as Professional Service 1 (PS-1) under the supervision of Margaret Jones. PS-1 is a self study course where the employee learns the policies and procedures of a Manpower franchise through tapes and other training materials. It is the responsibility of the employee to keep track of and complete PS-1. Normally it takes between three and six months for an employee to complete PS-1; however, it can take longer, depending on the employee's office work load at the time. Disgruntled and upset by what she perceived as criticism of her management and hiring decisions, Ms. Jones left the employ of Jodan on or about August 1, 1994. Prior to that time, Ms. Harrison had completed all but three or four minor details in the PS-1 training. Ms. Harrison was satisfied by her training under Ms. Jones and she admits that no one at Jodan attempted to prevent her from completing PS-1. In September 1994, Ms. Harrison reported to Dan Gavin that her PS-1 materials were lost. He was surprised that one of his employees would lose her training materials and he assisted Ms. Harrison in looking for the materials by, among other things, looking in an off-site storage facility for them. Ms. Harrison's materials were never found and she includes the disappearance of her training materials as one of the basis for her charge of discrimination. There is no evidence that anyone took the materials but neither is there any explanation for their disappearance. Normally, when an employee completes PS-1, a checklist is sent to Manpower headquarters in Milwaukee, Wisconsin, indicating the employee has completed the training. On the checklist, the employee is required to record the dates that she completed each aspect of PS-1. Mr. Gavin contacted Manpower headquarters and obtained a new checklist. He also set up a schedule to meet with Ms. Harrison to go over the items on the checklist and verify that all of PS-1 had been completed. At their first meeting, Ms. Harrison assured Mr. Gavin that she had completed all of PS-1. Based on their conversation, he called Manpower headquarters and verbally confirmed that Ms. Harrison had completed PS-1. Manpower records indicate that she officially completed PS-1 as of December 1, 1994. Ms. Harrison's testimony at hearing with regard to whether she actually had an opportunity to finish the training was confused and unclear as she seemed to contend that there were materials that she was supposed to send to the home office, but could not, due to the lapse of time and loss of her training package. After an employee completes PS-1, the next step is to attend PS-2, which is a week-long training seminar at Manpower headquarters in Milwaukee. PS-2 reinforces what is learned in PS-1 and teaches additional marketing skills. Employees are given a list of dates during which PS-2 will be offered and, because the training requires them to be away from home for a week, they can schedule it at their convenience. Employees can schedule PS-2 before actually completing PS-1 but must have completed PS-1 before they actually attend PS-2. Ms. Harrison could have attended PS-2 any time after December 1, 1994. In January 1995, Mr. Gavin directed the area manager, Kathy Stanford, to ensure that all eligible employees, including Ms. Harrison, sign up for and attend PS-2. The PS-2 classes fill up quickly and it was a priority for Mr. Gavin to have his employees enroll. On more than one occasion, Ms. Stanford gave Ms. Harrison a list of available classes and the opportunity to attend PS-2. However, Ms. Harrison failed to sign up for PS-2. Jodan evaluates employees' performance and salaries on an annual basis. On January 30, 1995, Ms. Harrison was given her annual evaluation. Although the "Appraisal Period" on her evaluation is listed as March 21, 1994, to September 1994, the uncontradicted evidence was that this was a scrivener's error and the appraisal period was March 21, 1994, (Harrison's date of hire) through December 31, 1994. Her review was performed by Mr. Gavin, who was familiar with her performance, with input from Ms. Harrison's immediate supervisor, Gloria Michael. Ms. Stanford sat in on all evaluations done at that time, including Ms. Harrison's, because she was the new area manager and sitting in on the reviews was one way for her to become familiar with the staff and their performances. Ms. Harrison's overall score on the evaluation was a 2.66 on a scale of 1 to 5. A score of 2 means "Below Expectations" and a score of 3 means "Consistently Meets Expectations." A service representative learns all performance areas covered by the evaluation through PS-1. Although she claims that she was evaluated in areas in which she was not trained, Ms. Harrison did not raise this issue with Mr. Gavin and she did not write in any comments on the evaluation in the space provided for employee comments. Further, the uncontradicted testimony, including that of Margaret Jones, established that Ms. Harrison did receive training in all areas of her job in which she was evaluated. Ms. Harrison did not suffer any job detriment as the result of this evaluation or the unusual circumstances surrounding her PS-1 training. She received a pay increase following the evaluation and was then the highest paid service representative. On March 29, 1995, Ms. Harrison was presented with a memorandum by Ms. Michael that addressed concerns she had with Ms. Harrison's job performance. Specifically, the memorandum addressed the following areas: Failure to be responsive to customer needs; The high number of personal calls Ms. Harrison was receiving at the office; Failure to properly match an employee's skills with a client's needs; Failure to consistently enter and update employee information in the computer system each time she spoke with an employee; Failure to open the office on time in the morning; Failure to set up computer training for applicants when she opened the office in the morning. Neither Mr. Gavin nor Ms. Stanford played any role in the preparation or presentation of this memorandum. Ms. Harrison did not suffer any adverse employment action as the result of the March 29, 1995, memorandum. Ms. Michael followed up the March 29, 1995, memorandum with a memorandum on May 3, 1995, detailing Ms. Harrison's improvement in all of the areas discussed in the March 29, 1995, memorandum. On May 15-16, 1995, Ms. Harrison and Ms. Michael (who is white) failed to provide an important client with prompt and appropriate service. As a result, Ms. Stanford counseled both women and placed them both on 90 days probation. Ms. Harrison does not contend that this action was discriminatory. On July 17, 1995, Ms. Harrison submitted a letter of resignation. In the letter she stated that she enjoyed her position as service representative. She also stated that she felt she had been subjected to discriminatory treatment. Ms. Harrison's resignation and the allegations of discriminatory treatment came as a surprise to Ms. Stanford and Mr. Gavin as Ms. Harrison had never before told them she was unhappy or felt discriminated against. In her letter of resignation, Ms. Harrison offered to meet with Mr. Gavin and Ms. Stanford to discuss her resignation, but during her exit interview she refused to discuss her allegations. Although many of Jodan's temporary employees were minorities, Ms. Harrison was the only African-American service representative. There were, however, other minorities, including Hispanic-Americans. Ms. Harrison presented her case in an articulate organized professional manner. It is clear that she felt the work environment was stressful and uncomfortable. However, she did not prove that she was discriminated against or was the object of hostile or adverse employment actions. The temporary employment agency business is highly competitive. Jodan had several large corporate clients and it had to work hard to meet the needs of those clients, sometimes on short notice. This created pressure on Jordan's regular staff that was experienced by white or non-minority employees as well as Ms. Harrison.
Recommendation Based on the above, it is RECOMMENDED: that the Florida Commission on Human Relations dismiss Ms. Harrison's charge of discrimination. DONE AND ENTERED this 1st day of December, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1998. COPIES FURNISHED: Mary A. Harrison 2356 Carborn Street Orlando, Florida 32839 Kelly T. Blystone, Esquire Moran & Shams, P.A. Post Office Box 472 Orlando, Florida 32802-0472 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue presented for decision herein is whether or not Petitioner was unlawfully discriminated against, by being separated from her employment with Respondent, because she sustained a back injury which Respondent perceived as a potential problem and whether she was the subject of disparate treatment as relates to the treatment Respondent afforded its other employees.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Petitioner, Joyce A. Dykes, was employed by Respondent, Quincy Telephone Company, for a period of approximately thirteen (13) years where she served as a service representative/cashier and an operator. Petitioner was laid off on May 27, 1983 based upon a company-wide employment reduction mandated by economic factors. Prior to her employment with Respondent, Petitioner was formerly employed as a bookkeeper with Higdon Furniture Company for approximately 17 years. Petitioner's first date of employment with Respondent was September 28, 1970. Approximately 7 years later, i.e., on November 21, 1977, Petitioner, during the course of her duties as an operator, left her work area and, upon return, sat down in a chair which she described as "wobbly." Petitioner fell backwards from the chair and "landed on her buttocks." Ann Kirkland, a fellow employee, was summoned to the scene of the incident and took Petitioner to the hospital for an examination. Petitioner stayed in the hospital approximately 3 days and returned to work. Since she returned to work, Petitioner has not requested any special treatment such as a convenient parking space, less strenuous duties or other more favorable treatment based on her "back problem." Petitioner expressed that she was leery of complaining to Respondent, and/or its agents, based on her back problem and therefore refused to make noises about that problem. During the summer of 1981, Petitioner experienced a traumatic incident involving the drowning of her son at the pool of a local motel. Petitioner's fellow employees, including Bladis Crow, an employee of Respondent during December, 1980 to October, 1981, and who was in overall charge of Petitioner, attempted to console her during her period of mourning by suggesting that she return to work where she would be in the company of fellow employees who could console her during this low period in her life. During the period of 1980-81 when Petitioner was under the supervision of supervisor Crow, she was "cross-trained" such that she could fill in for other employees during periods of other employee absences including vacations and other leaves. Petitioner, like other employees who were "cross-trained" did not like the idea of learning new tasks and being assigned to perform other duties temporarily. Supervisor Crow perceived Petitioner to be a valuable employee and considered that she got along well with other employees. One other employee, Eunice Hancock, a cashier and service representative, recalled Petitioner bringing in a heating pad and, on occasion, voicing complaints about a backache. During her period of employment with Respondent, Petitioner was perceived as a divisive employee in the minds of Respondent's managerial employees. (Testimony of supervisor Geary 1/; Lila D. Corbin, president and general manager; and Ann Kirkland, a former supervisor and business representative). Petitioner was viewed as an employee with a morale problem and often appeared unhappy and was a source of constant bickering between other employees. Petitioner was reprimanded by Bill Geary, who served as Respondent's supervisor for approximately one year from mid-1982 to the time of her layoff on May 26, 1983. Supervisor Geary interviewed Petitioner respecting a written reprimand he issued her on January 21, 1983. All of the items listed on that reprimand were discussed with Petitioner. Among the items discussed were Petitioner's fellow employees' complaints about her activities including moodiness, low morale and other problems dealing with the quantity and quality of Petitioner's work. Throughout the discussions with supervisor Geary, Petitioner repeatedly attempted to digress from the purpose of her interview and attempted to compare her work with that of other employees. From the time that Petitioner was employed by Respondent, Respondent has undergone three changes of ownership and is presently owned by Teledata Systems (TDS). With the change in ownership by TDS, a number of changes were instituted, some of which stem from the deregulation of the telephone industry. Upon becoming the owner, TDS immediately commissioned an overall forecast study of the operations in Quincy. Following that study, TDS determined that cutbacks in operating costs were necessary to insure profitability. The decision was therefore made to reduce employees and, in some instances, to reclassify positions or redefine the duties of its employees. In keeping with that goal, TDS, through its management, issued a directive to implement a work force reduction during May of 1983. Ms. Corbin, then the president and general manager, first learned of TDS' plans to institute the work force reduction during March of 1983. The plan was divulged to other supervisory and management employees during the week of approximately May 22, 1983. Pursuant to the company-wide reduction plan, TDS determined that of its complement of 83 employees when it took over during January of 1983, the work force needed to be reduced by approximately 11 employees. When the policy directive was issued to managers and supervisors, they were told to rid themselves of employees who did not meet certain criteria deemed critical by management such as the skills of each employee; the difficulty in replacing certain skilled employees and in training replacements; customer relationship; productivity level; ability to learn new skills; ability for overtime work, if and when needed; attendance; salary level; ability to work as a member of a new organizational structure and to be a team player; and the overall attitude toward company, customer and fellow employees. (Respondent's Exhibit 1) Those employees considered as fitting within the category of employees needing to be laid off were employees who came in late and left early; were repeatedly absent; performed sloppy work; wasted time and material; engaged in personal telephoning; stretched breaks and lunch hours; spent too much time in the washrooms and talked to other employees about personal activities; rudeness that causes customer irritation and costly work errors. (Respondent's Exhibit 1) During the time when the work force reduction was implemented, Petitioner was on vacation. Prior to that time, she had been afforded training as a keypunch operator. Of the 3 employees who were given keypunch training with Petitioner, Petitioner was tested as having the least leadership skills of the three. When the work force reduction was implemented, 11 employees were laid off. Presently that number has increased from 11 to 19. The only area where there has been one (1) employee hired is an employee trained to operate the Respondent's "complex" PBX and PABX systems. It is true that there were employees with less seniority than Petitioner who were retained, however seniority (length of service) was considered to be only a factor if it is also indicative of the experience gained and versatility (of the employee). Respondent considered that there were other factors more paramount which would influence the retention decision. (Respondent's Exhibit 1, paragraph 2) Respecting Respondent's claim that the Respondent perceived her back injury as a handicap or a potential problem, the evidence fails to sustain her claim in that regard. What the facts show is that while Petitioner did sustain an on-the-job injury during 1977, evidence fails to support Petitioner's claim that the injury was perceived the Respondent as a problem it needed to rid itself of or that it was a physical handicap which could or would be the source of a problem for Respondent. Noteworthy is the fact that Petitioner never requested any preferential treatment in her job assignments based on this claimed handicap other than one isolated incident wherein she spoke to her then- supervisor Geary at the time that she was asked if she desired training as a keypunch operator. For all of these reasons and the wide range of layoffs implemented by this Respondent during May of 1983, Petitioner's claim does not appear meritorious but was rather necessitated by changes in the telephone industry which continues today to have an economic impact on the Respondent. Respondent developed nondiscriminatory criteria which were given to all management types to use in determining what employees should be retained. The criteria was not designed to weed out or eliminate troublesome employees but, rather, to determine those employees to be retained and the criteria which guided that retention decision. That decision appeared to have been based solely on economic and business decisions of the Respondent company as a whole. 2/ Petitioner failed to establish that she was the subject of unlawful disparate treatment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's Petition for Relief from an Unlawful Employment Practice. RECOMMENDED this 25th day of March, 1985, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 25th day of March, 1985.
