Findings Of Fact Respondent, Duval News Management Company, d/b/a Newsouth Distributors, has its main office in Jacksonville, Florida. Respondent has been in the wholesale magazine, book and news distribution business in Jacksonville for the past 80 years. The Ocala, Florida branch where Petitioner was employed has been in operation since approximately 1974. Respondent employed 15 or more employees at all times pertinent to this proceeding. Christine Rios is the Petitioner. She was hired on September 20, 1974 in the book return department of Respondent's Ocala operation. In 1977, Petitioner was promoted from that position to an office job as accounts receivable clerk in the Ocala office. As the result of an automobile accident on October 14, 1992, Petitioner suffered a dislocated shoulder, cracked ribs and a cervical sprain. She returned to work part-time on December 17, 1992. Petitioner resumed full-time work duties on February 18, 1993, subject to the restriction that she not lift over 20 pounds. Her duties as accounts receivable clerk did not require lifting weights greater than 20 pounds. On April 14, 1993, Gil Brechtel, President of Newsouth Distributors, met with all employees of the Ocala branch that worked inside the facility. Excluded from the meeting were route salesmen. At the meeting, Brechtel announced that non-supervisory employee jobs within the facility were to be eliminated. Each employee, inclusive of Petitioner, was given the opportunity to transfer to the Jacksonville office or, in lieu of transfer, accept severance pay and other benefits. Each employee was given a letter confirming this announced reduction in the work force. Subsequently, all employees who worked inside the facility, except the office manager, were laid off at various times between May 1, 1993 and May of 1994. Petitioner was laid off on September 27, 1993, at which time she was given a termination letter with an attached summary of benefits and a severance pay check. Petitioner's check was in the total gross sum of $5,722.34 minus deductions for a net sum of $3,980.93. At the time of her layoff, Petitioner was performing essential functions of her job without any accommodations by Respondent. After the announced reduction in work force, Respondent employed one part-time employee to handle warehouse duties requiring lifting up to 60 pounds plus some clerical duties that were formerly performed by Petitioner. Although she had stated to others that she needed to work full-time, Petitioner asked Ron Nichols, the Ocala branch manager, if she could be considered for the position. Nichols told her that she could be considered if the lifting restrictions imposed by her physician were removed. No further inquiry was made of Nichols by Petitioner and she never attempted to explain at any time to Nichols how she might be able to perform the job with reasonable accommodation. Several different employees at different times filled the part-time receiver/stocker job until the consolidation and reduction in work force had been fully carried out. At that time, the office manager assumed the duties of receiver/stocker and some of the clerical functions formerly performed by the accounts receivable clerks, although the bulk of account receivable clerk tasks were transferred to the Jacksonville office. No one was hired to replace Petitioner following her termination on September 27, 1993. No new accounts receivable clerks were employed in the Ocala branch following Petitioner's termination. As a result of the reduction in work force, 18 employees were laid off. The only person currently performing any warehouse duties or office clerical work at the Ocala branch is the office manager, MaeDean Crabtree. At the time of Petitioner's employment, Respondent had in effect an employee handbook containing a policy prohibiting discrimination in employment on the basis of handicap. The same handbook also provides a complaint resolution procedure. If an employee has a complaint, the employee is directed to contact the supervisor or manager to discuss the matter. At no time prior to her termination or filing of her charge of discrimination did Petitioner contact her supervisor, Crabtree, or the manager, Nichols, with any allegations of job discrimination or failure to provide reasonable accommodation. At the final hearing, Respondent's stated non-discriminatory reason for the elimination of Petitioner's position, consolidation of operations with a resultant reduction in work force, was not disputed or negated by Petitioner. Petitioner's contention was that she should have been allowed to work part-time in the receiver/stocker position and was not given reasonable accommodation by Respondent in that regard. Petitioner provided no evidence demonstrating that she requested the position subject to reasonable accommodation. Petitioner failed to demonstrate at the hearing that she could perform the duties of the part-time position which required the ability to lift up to 60 pounds. Currently, Petitioner is employed with a temporary job agency performing office/clerical work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the Petition For Relief. DONE and ENTERED in Tallahassee, Florida, this 19th day of April, 1995. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-4. Adopted in substance, not verbatim. 5.-6. Subordinate to HO findings. 7. Adopted by reference. 8.-9. Rejected, weight of the evidence. 10. Rejected, relevance. Respondent's Proposed Findings 1.-10. Adopted in substance, not verbatim. COPIES FURNISHED: Michael B. Staley James P. Tarquin Attorneys At Law 2045 Northeast Second St Ocala, FL 33470 Allan P. Clark Attorney At Law 3306 Independent Square Jacksonville, FL 32202 Sharon Moultry Clerk Commission on Human Relations 325 John Knox Rd, Bldg. F, Ste. 240 Tallahassee FL 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, Fl 32303-4149
The Issue The issue in this case is whether the Petition for Relief, charging the Respondent with sex discrimination, should be granted.
Findings Of Fact The Respondent, Bay Area Medical Exchange Serving Hillsborough County, Inc., operates a telephone answering service business for area medical physicians. It employs 15 or more in the business. 1/ The Petitioner, Stotherd Darby, a male, began telephoning the Respondent, in October, 1989, in response to advertisements in the Tampa Tribune for full-time help wanted. Ads generally appeared in the newspaper weekly, and each time the Petitioner would telephone in response. Each time the Respondent would tell the Petitioner that the positions had been filled. In fact, the Respondent told the Petitioner that the positions had been filled because the Respondent did not want to hire a male for the job. 2/ The Respondent conceded that, aside from his gender, the Petitioner was qualified for the job. Based on out-of-court statements, the Respondent claims not to want to hire a male for the job because its clientele of medical doctors allegedly do not want their obstetrical-gynecological patients to have to talk to a male voice when calling the answering service. Allegedly, during the night shift, for which the Petitioner was applying, only two employees worked the switchboard. If one was male, the chances would be good that some ob-gyn patients calling the answering service at night would be connected to a male operator. Allegedly, if the other operator on duty were occupied, it would cause a delay if the patient insisted on talking to a female. The Respondent did not want to hire any male answering service operators because the Respondent would not let a male work the night shift and because letting males work even the day shift would reduce the Respondent's flexibility in covering the night shift in the event of the termination or absence of the regular night shift personnel. The Respondent did not appear at the final hearing, and the evidence did not prove that the Respondent's refusal to hire males as switchboard operators is reasonably necessary for the performance of the job of telephone answering service switchboard operator for the Respondent. In addition, it is clear that males could be hired for the day shift with no repercussions other than inconveniencing the Respondent by impinging on its flexibility in covering for the regular night shift when necessary. Also, there is little reason for a patient to tell an answering service switchboard operator very much more than the patient's name and phone number, and maybe a very general description of the medical condition about which the patient is calling. The Respondent did not prove that imparting this minimal information to a male answering service operator would embarass an ob-gyn patient. After December 15, 1989, the Petitioner sought and obtained other employment on a part-time basis. Meanwhile, the Petitioner took courses necessary to become licensed as a security guard. He obtained full-time employment as a security guard on or about July 1, 1990. Subtracting the time the Petitioner spent in classes required for licensure as a security guard, and subtracting what the Petitioner earned in his part-time employment, and not including the cost of tuition and fees for obtaining his security guard license, the Petitioner's would have earned approximately $2,200 more than he did between December 15, 1989, and July 1, 1990, had he been hired by the Respondent for the position advertised on or about December 15, 1989.
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 granting the Petition for Relief filed in this case, prohibiting the Respondent from the practice of refusing to hire male telephone answering service switchboard operators, and requiring the Respondent to pay the Petitioner $2,200. RECOMMENDED this 11th day of June, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1992.
Findings Of Fact Jody A. Strain was recruited and hired in 1984 by Reflectone, Inc. as a computer systems engineer. At the time of her dismissal Petitioner was a Level 3 engineer. During the 5 1/2 years Petitioner was employed by Respondent her evaluations were above average (Exhibit 2) and she received several letters recognizing her contributions to the projects to which she was assigned. Respondent has never contended that Petitioner was dismissed because of her work performance. Reflectone, Inc. develops flight simulators which it sells primarily to the U.S. military and to commercial airlines. These contracts are generally awarded following a request for proposal submitted by the purchaser to several companies capable of accomplishing the proposed tasks; and these companies, including Reflectone, submit bid proposals which, when accepted, result in an $8-$10 million contract. Each contract will generally run from 24 months to 30 months before completion. Accordingly, the number of employees needed at any one time is largely reflected by the number and scope of on-going projects. Because of this variation in workload Respondent's project managers prepare an evaluation of staffing needs for the future at two month intervals. These are coordinated and as new contracts are accepted they are staffed by people with the necessary qualifications who are working on expiring contracts. On September 12, 1989, Petitioner was placed on emergency maternity leave with an expected duration of nine weeks (Exhibit 3). On November 13, 1989 Petitioner was called by Janis Batt, Engineering Manager, Computer Systems at Reflectone and told that she was selected for lay- off. At the time Petitioner commenced her maternity leave the project on which she was working had not been completed; however, that part of the project on which Petitioner was working had been completed. Finalizing the project, which had been delayed by non-receipt of data from the purchaser, was completed by John O'Reilly, the team leader on the acoustics portion of the project on which Petitioner had participated. At the time Petitioner was laid off there was no new project starting up which required an engineer of her qualifications. The general policy at Reflectone is not to replace an engineer working on a particular project with another engineer except in cases of emergency. Since a large part of the work done by engineers such as Petitioner is writing computer programs for the project, continuity on the project is deemed by Reflectone to be the most important factor. As a result seniority among engineers is given considerably less weight in this business than in most other businesses where one engineer can generally replace another engineer with equivalent qualifications. Petitioner had earlier been granted maternity leave and returned to work at Reflectone. No evidence was presented that other employees had been terminated at Reflectone involuntary while on maternity leave or as a result of their pregnancy. At the time of Petitioner's dismissal there were some six to eight engineers in the computer systems division headed by Janis Batt. One was a Level 5, three were Level 4, two were Level 3 and one position was filled by a USF student working as a co-op one semester and going to school the next semester. This position was arranged by an agreement between Reflectone and USF. The one other Level 3 engineer in the computer systems division was Chet Kwistowski who had been hired much later than Petitioner. However, in October 1989 Kwistowski was working on an on-going project. Due to the lack of work in late 1989 staffing studies showed not enough work at Reflectone for all systems engineers. In July 1989 another group at Reflectone experienced lay-offs. In total some 50 people out of a work force of 500 were laid off in 1989. By reduction in force recommendation dated November 9, 1989 Janis Batt recommended Petitioner be selected for lay-off by reason of lack of work for an engineer of her qualifications. This was approved by the vice-president of Human Resources for a separation date of November 15, 1989 (Exhibit 8). By request for department transfer dated August 25, 1989, Janis Batt proposed that Petitioner be assigned to computer systems as her work on her then present assignment (SH2/SH3) had been completed. Respondent's policy and procedure manual policy number 29 (Exhibit 7) provides that employees furloughed because of lack of work may have a one (1) year recall period afforded them at the concurrence of the employee's supervisor and the vice-president, Human Resources. Petitioner contends that she was not rehired pursuant to this policy as retaliation for having filed her initial complaint of discrimination. During the Petitioner's recall period no new Level 3 engineers were employed in the computer systems division. However, one Level 4 engineer and two Level 1 engineers were hired. The Level 4 engineer hired, John Pfost, had voluntarily left Reflectone some two years earlier as an Engineer 2. Although Petitioner contends that Pfost was hired as a Level 4 to offuscate the failure to rehire her, Respondent presented credible and unrebutted evidence that Pfost had special skills necessary for the project for which he was hired. Another engineer had been denied promotion from Level 3 to Level 4 because she "did not have enough time in Level 3" yet she had more time as a Level 3 than the interval between Pfost leaving as Level 2 and his rehiring as Level 4. However, she did not have the supervisory experience Pfost had gained during the two years he worked for a competitor of Respondent. Petitioner did not apply for the Level 1 positions that were filled during her one year recall period and she was not offered either of those positions because she was deemed to be overqualified for the position. Although Petitioner indicated at the hearing that she would have accepted a Level 1 position she did not specifically testify that she would have accepted that position if offered. In this regard, from all of the evidence presented it is clear that Reflectone staffs various jobs with personnel holding the skills required for that job. Jobs requiring entrance level skills were staffed with Engineers 1 and jobs requiring Engineering Level 2 skills were staffed with Engineers 2, etc. No Engineer 2 or 3 personnel were assigned to jobs requiring Engineer 1 or Engineer 4 skills. Accordingly, the failure of Respondent to offer Petitioner the position of Engineer 1 was due to this general policy and not because Petitioner had filed her discrimination claim.
Recommendation It is recommended that Jody A. Strain's Petition for Relief from an unlawful employment practice be dismissed. DONE and ENTERED this 5th day of November, 1992, at Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 1992. APPENDIX Petitioner's proposed findings are unnumbered. To attempt to rule on these proposed findings I have numbered them 1-23 attempting to keep one fact to each number. Treatment accorded these numbered findings is as follows: Accepted (number of engineers hired). Accepted except that Petitioner would have accepted a level 1 position if offered. No testimony was presented to support this fact. Rejected as argumentative. Accepted (re hiring Kwistowski). 5.-9. Accepted. Accepted as testimony by Petitioner. However, Batt repeated the evidence in Petitioner's finding of fact 9 at the hearing. Accepted. Accepted as the testimony of Batt (performance evaluation). Other sections of this proposed finding are rejected as argumentative. Statement accepted. Questions and balance of this proposed finding are rejected as argumentative. 14.-15. Rejected as argumentative. Accepted. Two questions are rejected as argument. Accepted. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Accepted. Respondent's proposed findings are accepted except as noted below. Those proposed findings not included in the Hearing Officer's findings nor accepted below were deemed unnecessary to the conclusions reached: 2. Date of Petitioner's layoff on November 6, 1989 rejected as inconsistent with Exhibit 8. COPIES FURNISHED: Margaret Jones, Clerk Commission on Human Relations 364 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird, General Counsel Commission on Human Relations 364 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Jody A. Strain 12404 Cardiff Drive Tampa, Florida 33625 John E. Phillips, Esquire 400 N. Ashley Tampa, Florida 33602
The Issue Whether Petitioner, Elias Makere, was subject to an unlawful employment practice by Respondent, Allstate Insurance Company (“Respondent” or “Allstate”), on account of his race or due to retaliation for his opposition to an unlawful employment practice in violation of section 760.10, Florida Statutes.
Findings Of Fact Petitioner, who was at all times relevant to this matter an employee of Respondent, is African-American. There was no direct testimony as to the number of persons employed by Respondent. However, given the testimony describing a large institution with multiple departments, there is sufficient competent, substantial evidence to establish an inference that Respondent employs more than 15 full-time employees at any given time. In the summer of 2013, Petitioner applied and interviewed for a position with Respondent. The interview team included Ms. Henry, Ms. Halim, and Mr. Schaeffer. Petitioner was hired over several other candidates as an Actuarial Technician, starting on November 18, 2013, and was enrolled in Allstate’s Actuarial Career Program (“ACP”). In January 2014, Petitioner took and passed the examination to become an Associate of the Society of Actuaries (“ASA”). He was promoted to the position of Actuarial Associate. Respondent’s actuarial department was divided into the life insurance side and the health insurance side. However, all of the employees of the actuarial department were housed on the seventh floor of Respondent’s building. The “life” side of the actuarial department was managed by Lisa Henry, who supervised Petitioner from the time of his employment to the time of his termination. Petitioner was the only actuary in Ms. Henry’s section. The “health” side of the actuarial department was managed by Louis Posick. There were three or four actuaries in Mr. Posick’s section. Within the “life” and “health” sides of the department are further distinctions between product development work and valuation work. The distinctions are not important. However, Petitioner was on the product development side. Mr. Nagai and Victor Ciurte were on the valuation side. In order to sign an actuarial opinion, one must be an actuary in good standing and a Fellow of the Society of Actuaries (“FSA”). Being an ASA is not enough. The ACP is designed to provide support to qualified “high potential” employees to receive their FSA certification as long as the employee maintains continuous progress. Support includes allowing ASA associates paid study time for their exams, paying for examination fees, paying for preparation courses, and paying travel expenses to examination sites. The ACP Guidelines provide that “[e]xam fees are paid in advance for the first and second tries of the same exam and in arrears upon passing thereafter.” When Petitioner began his employment, he was provided with Respondent’s ACP Guidelines (the “Guidelines”). The Guidelines contain the following provisions that are pertinent to this proceeding: Continued Eligibility of Members: This is based on active study towards FSA, exam progress and job performance. All criteria need to be satisfied for eligibility to continue. * * * 2. Exam Progress: A member must have passed at least one exam in the last three qualifying half-years as well as two exams within the last five qualifying half-years, i.e. “1-in-3 and 2-in-5” rule. . . . * * * 4. Loss of Eligibility: Upon loss of eligibility, an employee may post for another position at Allstate but ongoing employment with Allstate is not guaranteed. A reasonable amount of time as determined by the employee’s manager will be allowed for the employee to endeavor to secure a suitable opportunity within Allstate. Per company policy, employment will not be terminated for unacceptable job performance unless the employee has been advised that his/her performance is unacceptable. In short, the Guidelines provide that failure to pass an examination in three tries is cause for termination from the ACP, without a guarantee of continued employment with Allstate. Upon the loss of eligibility, actuarial department employees are given 30 days to secure employment with Respondent. If no actuarial position is open, or if an employee chooses not to accept a non-actuarial position, employment is terminated. At some point in the latter part of 2015, Petitioner was asked to work on the development of an Enhanced Group Term Life “Snap Quote” rate-quoting tool. The tool was similar to a Group Voluntary Accident Product (“GVAP”) 6 tool that Petitioner had worked on earlier during his period of employment. Petitioner worked on GVAP 6 with Ms. Bradley, an African- American woman who was hired by Ms. Halim as an actuarial product consultant in the “health” side of the actuarial department. Although the Snap Quote tool was to be used by Allstate’s health side, Petitioner was “pulled in” from the life side due to his experience with Excel macros and technical capability to build a tool. Since the tool was a “health” side tool, Ms. Halim was in charge of managing its development. In that regard, although Petitioner did not organizationally report to Ms. Halim, she was responsible for giving directions to the development team, including Petitioner. The Snap Quote tool was designed to be an Excel spreadsheet based rate calculating and quoting tool. Various data regarding the group members would be provided and inputted into the spreadsheet, i.e., date of birth, gender, job title, and salary, to evaluate risk and, based thereon, a rate would be calculated. The Snap Quote tool was considered to be a “rogue IT solution.” Generally, rate tools and other software tools would be developed and deployed by the IT department. However, if the IT department did not have the budget, and the “business side” was able to take on a project using the business side’s budget, that solution was welcomed, since the ultimate goal of both departments is to solve problems. As described by Mr. Dickson, “[t]hey have problems and [IT] couldn't pay for it, so the business wanted to create solutions.” The fact that the business side might be developing a tool would not diminish the IT department’s responsibility to ensure that the software was secure, did not use any copyrighted open source materials, and would not compromise Allstate’s system. As further explained by Mr. Dickson, “[s]o as long as they are secure, they don't have copyright infringements, they meet the other tenets that the architects decide, then so be it. We can deploy the software.” Regardless of the section responsible for budget and development, the IT department was exclusively responsible for decisions regarding deployment. Mr. Schaefer confirmed that Allstate’s business side, including the actuarial department, had no role in the decision as to how the Snap Quote tool, or any software, was to be deployed and distributed within the company. During the development of the Snap Quote tool, a reviewer from the actuarial team and a reviewer from the compliance team would test various versions to ensure that the tool functioned the way the group desired, e.g., that the rates were correct, that the benefits were displaying correctly, and things of that sort. A primary complaint received from the reviewers was that a reviewer from one team would provide comments, and Petitioner would make changes to the tool and upload the revised version before the other team provided comments. That created confusion as to which version was under review. Ms. Halim instructed Petitioner that he was to wait for everyone to review a version before making changes so that everyone would be consistent and on the same page, an instruction that she had to repeat at least three times. Nonetheless, Petitioner continued to revise the tool before comments were received, which created confusion within the team. The problem created internal delays in getting the builds the way that the team wanted. However, the final deadline was met. During the period in which Ms. Halim was directing Petitioner’s work-related activities, he never complained to her that he felt he was being discriminated against for racial reasons. Ms. Halim had no involvement in Petitioner’s termination. In order to remain in good standing in the ACP, Petitioner was required to pass one of the actuarial examinations in May 2016. He had failed the examination on two previous occasions. Petitioner did not pass the examination, and was, therefore, no longer eligible for the ACP. In July 2016, Ms. Henry learned that Petitioner had not passed the examination. The ACP Guidelines are clear that the failure of either the “1-in-3” rule or the “2-in-5” rule, i.e., the repeated failure of the actuarial examination requirements of the position, would result in removal from the program. However, Allstate retained the ability to place an employee in an alternative position if one were available. Ms. Henry had only one actuarial position in her section. She needed an employee who could ultimately succeed her as an FSA actuary. She was battling health issues, and wanted someone that could take her place in her absence in case she was not there. When Petitioner lost eligibility for advancement, the only option for continued employment in Ms. Henry’s “life” side section would be as a “career ASA,” which has no room for advancement. Ms. Henry “did not find it worth my while based on my expectations for that role to try to create a different role because I needed someone that could be my successor and do what I do.” Since Ms. Henry did not have another position in which to place Petitioner, she chose not to fill the only actuarial position in her section with a career ASA. Ms. Henry discussed Petitioner’s employment status with Mr. Schaeffer, and a decision was made that Petitioner would not be offered to fill the sole actuarial position as a “career ASA.” Petitioner’s workplace behavior, performance, and her ability to manage him was a factor, which included instances of failing to meet deadlines, failing to comply with company policies, and failure to take and implement direction. Mr. Schaeffer was blunter in his assessment, testifying that Petitioner was simply not a good employee, being unable to appropriately communicate with other employees, and not following directions regarding work projects. On August 12, 2016, Petitioner was called to the human resource (“HR”) department offices on the first floor. He met with Ms. Henry and Mr. Manucy, and was advised that, as a result of his failure to pass on his third attempt of the FSA actuarial examination, he was no longer eligible to participate in the ACP. As a result, he was being terminated from his position as an actuarial associate in Ms. Henry’s section. He was advised that he had 30 days of paid continuing employment, during which time he could apply for any open positions within Allstate. The evidence suggests that there were no open actuarial positions other than that previously held by Petitioner. For legitimate reasons as explained by Ms. Henry and Mr. Schaeffer, Petitioner was not offered that position as a career ASA. There were no actuarial positions open in the “health” section, with those ASA positions being filled by Mr. Nagai and Mr. Ciurte, who were, at the time of Petitioner’s termination, eligible and participating ACP students. No evidence was presented as to whether there were any open non-actuarial positions available, or whether Petitioner gave any consideration to applying for a non-actuarial position. There was no evidence offered or received as to whether Petitioner actually applied for any vacant position. Petitioner was also given the option “to hit the voluntary termination button in the HR system” to register his leaving the company as a voluntary termination instead of an involuntary termination. Being unable to secure a different position with Allstate, Petitioner was involuntarily terminated, effective September 12, 2016. During the termination meeting, Petitioner made no statements to suggest that he had been the subject of any form of employment discrimination. Since Petitioner’s termination, Ms. Henry has not hired an actuary or actuarial student to fill the position. She did hire two support staff to keep up with higher-level customer service requests that could not be handled outside the department. Both were internal transfers. They perform non- actuarial work, some of which had previously been done by Petitioner, but do not perform actuarial work. Neither of the support employees are qualified as actuaries or actuarial students, nor do they need to be. Allstate has a long-standing formal policy of prohibiting all types of discrimination and retaliation. If an employee is found to engage in discrimination or harassment against another employee, the offender is subject to discipline, including potential termination. Allstate has mandatory annual training, known as inclusive diversity training, which is designed to instruct employees on Allstate’s policy of non-discrimination based on, among other characteristics, race and sex. The training is designed to instruct and remind Allstate employees “that we can be better by -- than the sum of our parts by leveraging the uniqueness of each individual and not making any judgments based on race, gender, or sexual preference.” Each of the Allstate witnesses who were asked confirmed that they participated in the diversity training. Part of the training includes that “if you see someone who does participate in [discrimination], report it.” Most of the Allstate witnesses were asked if they had ever seen employees “marginalizing” other employees based on racial stereotypes, single out employees, or treat employees differently based on racial characteristics. Not one indicated that such would be acceptable, and not one indicated that they had ever seen such to have occurred. When asked if Allstate would want to rid its actuarial section of black actuaries “in order to preserve that esteem held for the actuarial profession,” Ms. Hathorn testified that Allstate would not, “[b]ecause if you're smart and you can do the job, I would not think that the company would allow something like that to occur.” When asked by Petitioner whether she knew of a particularly racist stereotype, i.e. “that black men are akin to monkeys, apes, and gorillas,” Ms. Bradley testified that “I have not met anyone in our department that holds that view because then I would be uncomfortable working there. And I have never been uncomfortable working there since the day I walked in that building.” Petitioner asked virtually all of the witnesses whether they knew of or ascribed to any of his self-described racial stereotypes. None did. On June 30, 2017, Petitioner filed his Complaint of Discrimination with FCHR. It included five pages of allegations that Respondent violated section 760.10, by discriminating against him on the basis of his race or as retaliation. The Complaint of Discrimination contained no allegations of sexual discrimination or harassment, by Lisa Henry or any other person, and contained no allegation of sexual remarks or actions by any person that created a hostile work environment. On August 31, 2017, Petitioner was interviewed by the FCHR investigator. During that interview, he offered to discuss “the five examples of harassment and discrimination” identified in his Complaint of Discrimination. He also indicated that “I have many more allegations that I have not supplied you guys yet.” The interview included no allegations or discussion of sexual discrimination or harassment, by Lisa Henry or any other person, and contained no allegation or discussion of sexual remarks or actions by any person that created a hostile work environment. In November 2017, the FCHR investigator issued a six-page Investigative Memorandum (“IM”). In the IM, the investigator noted that, on September 29, 2017, she requested additional information regarding “the last harassing incident while working for Respondent between June 29, 2016 and August 12, 2016.” She then stated that she received information on October 13, 2017, which she went on to describe. The IM included no allegations or discussion of sexual discrimination or harassment, by Lisa Henry or any other person, and contained no allegation or discussion of sexual remarks or actions by any person that created a hostile work environment. On December 15, 2017, the FCHR issued a Determination: No Cause, and a Notice of Determination: No Cause, by which the FCHR determined that reasonable cause did not exist to believe that an unlawful employment practice occurred. On January 19, 2018, Petitioner filed a 231-page Petition for Relief with the FCHR. The Petition included allegations of racial discrimination for which there is no evidence of their ever having been presented to FCHR or having been part of the FCHR investigation. They include (but are by no means limited to) incidents of profanity-laced screaming, physical assaults, knife threats and rubber-band shooting, and an allegedly racially-motivated move of Allstate’s actuarial department to the eighth floor of Respondent’s building. The Petition also, for the first identifiable time, alleged that Allstate, and in particular Lisa Henry, engaged in sexually provocative and inappropriate actions which Petitioner alleged to be “sexual harassment and discrimination.” He noted that “[t]he FCHR ignored these events.” Almost all of the allegations in the Petition involved incidents that occurred well prior to June 30, 2016, which is 365 days prior to his June 30, 2017, Complaint of Discrimination. During his testimony at the final hearing, Petitioner stated that “I spoke with FCHR on numerous occasions between the June 30th, 2017 date where I filed it and the date that it was closed. So I discussed sexual harassment and many other events before I submitted that in November 2017.” Petitioner alleged that, on November 2, 2017, he amended his complaint with FCHR to add a number of additional allegations. The amendment was not introduced in evidence. Again, nothing was offered in evidence to substantiate the claim. The investigative report, at footnote 9, indicates that Petitioner submitted an “October 13, 2017, response to RFI.” Based on the totality of the competent substantial evidence in the record, the only inference that can be drawn is that additional incidents and allegations would have been provided no earlier that October 13, 2017. The investigator ultimately included numerous allegations beyond those described in the Complaint of Discrimination in her investigative report. The investigative memorandum contains what can only be described as a litany of perceived abuses directed at Petitioner by Allstate employees (and by employees of Petitioner’s prior employer), but makes no analysis or conclusions regarding those alleged events. Except for a very few, all of the incidents referenced in the investigative report occurred well prior to June 30, 2016. In accordance with Judge Stevenson’s June 6, 2018, Order, he allowed evidence to address matters identified in the investigative memorandum. Thus, to ensure as complete a record as possible for consideration by the FCHR, findings as to as many allegations as are identifiable will be made herein. The June 30, 2017, Complaint of Discrimination The Complaint of Discrimination alleged five “Events.” For ease of reference, they will be discussed as Events in the order presented in the Complaint of Discrimination, i.e., Event 1, Event 2, etc. Event 1 - Threat to Employment Petitioner alleged that, at some time from July 1, 2016 to July 11, 2016, Petitioner advised Richard Schaeffer of several instances of sabotage, harassment, threats, and retaliation, to which Mr. Schaeffer allegedly responded, “[y]ou need to figure out if this is the place for you to work.” Petitioner felt that his statement was a threat to his employment for reporting racial discrimination. Mr. Schaeffer recalled a discussion between Mr. Schaeffer and Petitioner within a few days prior to his termination. Mr. Schaeffer recalled suggesting that Petitioner “might consider another profession because you couldn't pass the exams for this one.” Mr. Schaeffer described the statement as “general career advice,” and based on Allstate “need[ing] actuaries who will work with other people, not people who want to work on an island all by themselves and not be bothered with other people.” Mr. Schaeffer testified that Petitioner never made any complaint of sexual or racial discrimination to him. He stated plainly that “[w]hile you worked for me you never complained about your work being sabotaged.” He had no recollection of any discussion regarding racist dolls, complaints of racial harassment, or racial terms. Regardless of the exact timing of the meeting, or exactly what was said, there is no competent, substantial, or persuasive evidence that Mr. Schaeffer’s statement was driven by racial animus or discrimination. With regard to the allegation that any conversation that Petitioner had with Mr. Schaeffer was a “threat” to his employment for reporting racial discrimination, Petitioner failed to meet the burden of proof to demonstrate through competent, substantial, or persuasive evidence, that Mr. Schaeffer’s statement was driven by racial animus or discrimination, that he reported racial or sexual discrimination, or that any statement made by Mr. Schaeffer was a threat to his employment. Event 1 of the Complaint of Discrimination lists four specific topics allegedly discussed with Mr. Schaeffer: “(a) Patricia Boland’s deliberate act of sabotage; (b) Kaz & Phil’s constant racial harassment; (c) David Dickson’s threats, lies, and subterfuge; (d) Lisa Henry’s retaliation.” Despite the fact that all but the “act of sabotage” occurred well before June 30, 2016, 365 days prior to the filing of the Complaint of Discrimination, they will be discussed herein so as to provide a clear record for review by the FCHR. Sabotaged Work by Ms. Boland Petitioner alleged that, on June 30, 2017,2/ Ms. Boland “deliberately deformed her census data, and blamed me for the subsequent mismatched quote in an attempt to compromise my employment.” The data regarding the group for which a term insurance plan was to be provided came to the underwriters in “census records” provided by the agents. The data consists of dates of births, genders, job titles, and salaries for each of the persons identified as being in the group. The underwriters would typically “take that information, plug it into one of the tabs of the generator [which could include the Snap Quote tool], and from there there's some functionality that allows us to manipulate or create the quote that the group is looking for.” Mr. Vlassov, who was a group underwriter, testified that mistakes were made, albeit infrequently, when census records were inputted and group participants were changed from male to female. Those instances were accidental “because we didn't have the sorting program in place. And of course, you had to do manual -- manual sort, A to Z, the usual sorting. And so switching within the columns. And of course, it's possible the other underwriter can forget just to -- misplace male and female.” On June 30, 2016, a quote was developed that appeared to deviate from a prior quote for the same group. It appears that the genders of the group, eight of one gender and five of the other, were switched. Such a switch can affect the risk calculation and, therefore, the rate. Petitioner claims that Ms. Boland deliberately changed the genders in the census data in order to sabotage his work on the Snap Quote tool. As he testified, “I was being framed for a bad calculation, knowing by someone -- by Patricia Boland I was being framed by Patricia Boland in an attempt to get me terminated or at the very least get my job compromised.” The precise cause of the mismatched data was not definitively explained. However, the greater weight of the evidence, and the most plausible inference that can be drawn for that evidence, supports a finding that the switched genders were the result of an error on the part of the underwriters in Ms. Boland’s section in entering the data into the Snap Quote tool. There is not a shred of competent substantial evidence to support the assertion that Ms. Boland manipulated the data in an effort to sabotage the validity of the Snap Quote tool. With regard to Ms. Boland’s job duties, Mr. Schaeffer indicated that she would check the accuracy of the Snap Quote tool, but had no ability to sabotage it. Mr. Schaeffer met with Petitioner in early July 2016 to discuss work-related matters. Mr. Schaeffer testified that Petitioner did not advise him that Ms. Boland “had sabotaged his work,” or express a belief that she had, stating that, “I would remember conversations if you thought people were sabotaging your work.” As will be discussed in the Conclusions of Law, Petitioner bears the burden of proving specific instances of discrimination by a preponderance of the evidence. With regard to the allegation that Ms. Boland sabotaged the data being inputted into the Snap Quote tool or that Ms. Boland otherwise took any action directed at Petitioner for reasons of racial bias or animus, Petitioner failed to meet the burden of proof. Racial Harassment by Mr. Nagai and Mr. Kite The claim of racial harassment is predicated on allegations that Mr. Nagai and Mr. Kite “constantly mocked me, antagonized me, and racially ostracized me,” that Mr. Nagai placed a “racist doll” on Petitioner’s desk. The “racist doll” will be discussed in Event 2. The alleged utterance of “you look like a chimpanzee” will be discussed in Event 4. Early in Petitioner’s period of employment, he and Mr. Nagai appeared to be on relatively good terms. When the in- house gym closed for renovations in February 2014, Petitioner, Mr. Nagai, and a female co-worker went to Planet Fitness over the lunch hour. That apparently did not last long, as he accused them of “mocking” him, and changed his gym schedule to go at night after work. Over a period of at least two years,3/ Petitioner, Mr. Nagai, and Mr. Kite staged a joint Christmas event for their co-workers. They planned it together, bought a small Christmas tree, and made gifts for their co-workers. They jointly gave gifts to their co-workers “by calling each one at a time, and we wished holidays as they came and then got a gift.” As described by Mr. Nagai, “[w]e planned, we executed, and we had a great time.” Petitioner described the holiday festivities as “a good way to build camaraderie and it would be beneficial to the rest of the staff.” He indicated, however, that “the bonding did not happen because there was discrimination harassment that ensued.” At some point, Petitioner participated in planning a “25th year anniversary at Allstate” commemoration for Mr. Kite. As stated by Petitioner, “I wanted that for Mr. Kite. I wanted him to be thanked for his service. I wanted him to be celebrated for the time that he put in there.” Little else was discussed about the time or circumstances of that event. Mr. Nagai believed that he had a good relationship with Petitioner, and was appreciative of Petitioner for having taught him things. His testimony was credible and is accepted. During the period in which Mr. Nagai worked in proximity to Petitioner, he did not see any conduct towards Petitioner that he considered discriminatory, inappropriate, or offensive, nor did Petitioner tell Mr. Nagai that he considered his conduct discriminatory. Contrary to Mr. Nagai’s understanding of the nature of their relationship, Petitioner testified to a number of complaints that he had with Mr. Nagai, from his hours, to his work ethic, to his standing desk, to his office banter. He had similar complaints with regard to Mr. Kite. He never expressed those complaints with either Mr. Nagai or Mr. Kite. Mr. Nagai’s work hours were typically 7:00 to 7:30 a.m. to 5:00 p.m. If he was studying for an examination, he would arrive at work at 6:00 a.m., study for a few hours, and leave at 5:00 p.m. There was no credible evidence offered or received to suggest that Mr. Nagai’s work schedule was in any way influenced by Petitioner, or that he set his hours to advance a racial bias or animus towards Petitioner. Petitioner indicated to Ms. Henry that he found Mr. Nagai to be a distraction. Petitioner objected that, in his opinion, Mr. Nagai did not work as hard as Petitioner did, and complained that Mr. Nagai “danc[ed] around” while working at his standing desk. He also believed that with Mr. Nagai’s standing desk, “if I walk anywhere, he's watching me.” When Ms. Henry asked if she should discuss Mr. Nagai’s behavior with his supervisor, Mr. Posick, Petitioner declined, indicating that he would take care of it himself, and that he did not want to elevate things. Ms. Henry had no recollection of Petitioner complaining of harassment, or of Mr. Nagai or others “mocking” him. With regard to the allegation that Mr. Nagai and Mr. Kite engaged in a campaign of mocking, antagonizing, and ostracizing Petitioner for reasons of racial animus or bias, Petitioner failed to meet the burden of proof. Conflict with David Dickson At all times relevant to this proceeding, Mr. Dickson was an Allstate vice president, whose responsibilities included oversight of the IT department. The Snap Quote tool was a business solution that was being developed outside of the IT department. Nonetheless, the IT department had a mandatory responsibility to ensure that the product was within the “guardrails” that would allow it to be supported securely on Respondent’s system. With regard to anything deployed to any Allstate server or hardware, security is one of the tenets that must be protected. Therefore, if the product could not be supported, the project would have to be terminated. During the development of the Snap Quote tool, Petitioner began to communicate with the Core Technology Services group within Respondent’s IT department. Mr. Dickson testified credibly that Allstate’s IT department was responsible for vetting the software to make sure there were not any security loopholes, open source copyright infringements, or the like. The responsibility as to how the Snap Quote tool would be loaded onto Respondent’s computer system, and made available for use by Respondent’s various home and field offices, rested exclusively with the IT department.4/ Among the persons assigned by Allstate to work with Petitioner was Matt Miller. Although Mr. Miller did not directly report to Mr. Dickson, Mr. Dickson believed that, as an IT leader, members of the IT team had some figurative obligations to him. At some time prior to December 17, 2015, Mr. Miller spoke with Mr. Dickson and expressed that he was “uncomfortable” speaking with Petitioner about the Snap Quote project. It was not a detailed conversation, but it left Mr. Dickson with the impression that there was a problem between Petitioner and the IT section. On or about December 17, 2015, Mr. Dickson called Petitioner. It was his first time communicating with Petitioner. Mr. Dickson’s purpose in placing the call was to act as a facilitator and to try and work out difficulties that had arisen between Petitioner and the IT department about the rollout of the Snap Quote tool. It was his intention to engage Petitioner in problem solving to find a solution to the problems between the product side and the IT side. The telephone call started with a discussion of solutions to the rollout that Matt Miller and the IT team were discussing with Petitioner. At some point during the telephone call, things “became elevated” as Petitioner asked Mr. Dickson a number of questions, including his title and position within Allstate, who he was responsible for supervising, and who he worked for. Mr. Dickson testified that Petitioner became louder, and that his call “turned into an inquisition.” Mr. Dickson then ended the call. After the initial telephone call, Mr. Dickson asked Petitioner for a demonstration of the Snap Quote tool. During that second meeting, Petitioner was taking notes of options for deploying the Snap Quote tool that the two were discussing. Petitioner asked Mr. Dickson to sign the document. Mr. Dickson perceived that Petitioner was again becoming “elevated.” At that point, Mr. Dickson, who did not have the authority to commit to security-related solutions, “just went into defusal,” and got up to leave the room. Petitioner did not want Mr. Dickson to leave until he signed the document, and became, in Mr. Dickson’s view, agitated, upset and very loud and vocal, to the point that it became “almost a safety issue.” After the second meeting, Mr. Dickson spoke with Mr. Schaeffer about his interactions with Petitioner. As a result, it was arranged for Petitioner to demonstrate the capabilities of the Snap Quote tool in a third meeting at which Mr. Dickson, Mr. Schaeffer, Ms. Henry, and members of the IT team would be in attendance. Among the purposes of the demonstration was to engage in a discussion of Allstate’s IT architectural guidelines, which Mr. Dickson described as being “way above both of us, you know, coming down from corporate,” and what could be done from a security standpoint. Price and deployment times may have been factors, but the primary issue was security. During the demonstration, Petitioner produced a Word document that contained notes of the meeting, a chronology, and options for deployment of the Snap Quote tool. Petitioner asked Mr. Dickson to sign the document to commit to Petitioner’s preferred solutions that Mr. Dickson was still trying to problem-solve. Mr. Dickson again chose to terminate the meeting rather than proceed. He described the initial telephone conversation and the demonstration meetings as “one of the most uncomfortable situations I've ever had to experience at Allstate.” Mr. Schaeffer’s description of the third meeting went into greater detail than that of Mr. Dickson. Mr. Schaeffer indicated that the meeting was intended as a follow-up about how to deploy the Snap Quote tool. Petitioner and Mr. Dickson had different opinions as to how the deployment would be accomplished. As the meeting progressed, Petitioner accused Mr. Dickson of changing his mind about how the tool would be distributed, being unethical, and “lying and things like that,” and asked him to sign a form. Mr. Schaeffer was direct and unequivocal in his testimony that Petitioner called Mr. Dickson a liar during the meeting. Mr. Schaeffer described the situation as being fairly contentious between the two, to the point that Mr. Schaeffer asked Petitioner not to speak anymore in the meeting, and to have no further direct contact with Mr. Dickson. The meeting then ended. At no time during the meeting did Petitioner state that Mr. Dickson’s conduct was in any way racial harassment. Ms. Henry testified that the meeting devolved due to Petitioner’s disagreement with the deployment solution recommended by Mr. Dickson and the IT department. Petitioner did not suggest to Ms. Henry that Mr. Dickson was acting illegally or in violation of Allstate procedures. Rather, she indicated that Petitioner “thought that [Mr. Dickson] was trying to throw his weight around and make [Petitioner] look bad.” She further testified that Petitioner was “disrespectful to everybody in the room,” and that as a result of Petitioner’s conduct, the meeting was “very contentious and antagonistic and accusatory and the tone was just not appropriate for the business environment.” After the meeting, Petitioner filed an internal ethics complaint against Mr. Dickson. In addition, Petitioner requested that Mr. Dickson, an Allstate vice president, be prohibited from communicating with the actuarial department for a period of six months. Neither party introduced a copy of the ethics complaint in evidence. Petitioner described the complaint as being related to “unethical conduct” in that: He used bullying tas- -- tactics, bureaucracy to subjugate me as an employee and he targeted me in a discriminatory fashion because other people were in the same boat, yet I was getting all of his ire. That was unethical . . . . [He] told me a stack of lies. He threatened my employment. He sent someone to take over my duties, all of these were not in line with the company's goals. These were in line with ostracizing and marginalizing me as an employee. There is no competent substantial evidence in the record that the ethics complaint included any charge of racial animus, bias, or harassment, or that any of the interactions between Petitioner and Mr. Dickson were racially motivated. Mr. Dickson recalled very little about the process of the investigation because it was, in his estimation, so outlandish that he did not dwell on it. The outcome of the investigation resulted in no action being taken against Mr. Dickson. Subsequent to the demonstration meeting, Mr. Dickson had no further involvement with Petitioner. He made no request that Petitioner be removed from the Snap Quote product, or that Petitioner face any consequence relating to the product. Mr. Dickson had no role in a recommendation to discipline or terminate Petitioner. There is no competent, substantial, or persuasive evidence that any of the interactions between Petitioner and Mr. Dickson included any element of racial animus, bias, or discrimination, and none is found. Petitioner did not discuss the ethics complaint with Mr. Schaeffer, who did not learn of it “until well after the fact,” and knew nothing of its details. Prior to Petitioner’s termination, Mr. Schaeffer met with Petitioner and advised him that his accusations that Mr. Dickson was lying and asking him to sign documents “made the meeting impossible and in no way was helping us get cooperation from the IT department that we needed.” Mr. Schaeffer stated that Petitioner was making it difficult to get tasks done because he was making enemies of people. Those statements have no tinge of racial animus, and none is found. With regard to the allegation that the incidents with Mr. Dickson were influenced by Mr. Dickson’s racial bias or animus towards Petitioner, or that Petitioner reported racial discrimination resulting therefrom, Petitioner failed to meet the burden of proof. Retaliation by Lisa Henry Petitioner has alleged that Ms. Henry retaliated against him “for filing that report on David Dickson.” On March 31, 2016, Petitioner’s 2015 performance evaluation was completed. Petitioner objected to his overall “inconsistent” evaluation. He believed he was entitled to a “better than expected” evaluation. Ms. Henry explained the basis for her evaluation. She indicated that a rating of inconsistent “means that sometimes it was good, sometimes it was bad, that not all goals were met. There's a formal definition in the HR system that I used the guidelines for [ ] my decision, so there were certain business goals that were fine and there were -- and leadership goals which are also a very important part of being an employee, and the balance between those two led me to give him an inconsistent.” She went through various sections of the evaluation, explaining the basis for her decisions. Her testimony was credible. Certainly, an evaluation that rates on a scale of performance involves an element of subjectivity. It is not the role of the undersigned to quibble with whether a particular rating is warranted. Rather, it is to determine whether an evaluation is influenced by racial or sexual discrimination, bias or animus, or whether it constitutes retaliation as that term is used in section 760.10(7). Petitioner registered his disagreement with his 2015 performance evaluation, not only in discussions with Ms. Henry, but also in his written comments to the 2015 evaluation. In his written comments, Petitioner stated his belief that the evaluation was “rooted in tainted ground,” and that “this final review signals something more unethical.” However, he also stated that “I enjoy working for [Ms. Henry]; for my company; and in the capacity that we do it. In the future, I hope that we can work more harmoniously, fairly, honorably, transparently, and with standard setting accountability.” The preponderance of the evidence suggests that the “tainted ground” and “unethical” review was directed to the incident with Mr. Dickson. Despite his lengthy comments, Petitioner made no reference to being subjected to any form of racial or sexual discrimination or harassment, or that it was retaliation as defined in section 760.10(7). There is no question but that the incident with Mr. Dickson was an element of Ms. Henry’s evaluation of Petitioner, and the decision not to retain him after he failed out of the ACP. However, that incident was determined to be an example of Petitioner’s inability to work cooperatively with Allstate employees, supervisors, and business partners. Petitioner’s “opposition” to Mr. Dickson’s involvement was based on his disagreement with the manner in which the Snap Quote tool was to be deployed. To the extent Petitioner’s behavior towards Mr. Dickson formed a basis for his evaluation, the performance rating was founded on a determination that Petitioner could not work cooperatively with Allstate employees, supervisors and business partners, as was determined to be a critical element of the job. It was not influenced by Petitioner’s race or sex. There was no competent, substantial, or persuasive evidence offered to establish that any employment decision made by Ms. Henry was based on Petitioner’s opposition to acts of discrimination based on race, color, religion, sex, national origin, age, handicap, or marital status. At the time the decision had been made to terminate Petitioner, he had filed no claim of discrimination with the federal Equal Employment Opportunity Commission, the Florida Commission on Human Relations, or a designated representative thereof. Petitioner was participating in Allstate’s investigation conducted in response to his ethics complaints against Mr. Dickson and Ms. Henry. Those ethics complaints could, indirectly, be participation in his subsequent FCHR claim. However, the greater weight of the evidence establishes that neither the ethics claims nor the internal investigations involved any claim of discrimination cognizable under the FCRA. Thus, Petitioner’s involvement in those ethics complaints was not “participation” in any form of proceeding involving a claim of race or sex discrimination, or retaliation for actions related thereto. With regard to the allegation that Ms. Henry retaliated against him for reasons of his opposition to incidents of racial or sexual discrimination, or for his participation in a proceeding designed to remedy racial or sexual discrimination either through her 2015 evaluation or through the decision to terminate Petitioner on August 12, 2016, Petitioner failed to meet the burden of proof. Event 2 - The “Racist Doll” Sometime prior to July 2015, several solar-powered dancing hula dolls had been placed on the tops of the dividers between the cubicles occupied by Petitioner, Mr. Nagai, and Mr. Kite. The evidence was not compelling as to where the hula dolls came from, but the evidence supports a finding that they were in the office. In July 2015, Mr. Nagai purchased two three-packs of solar toys from the Dollar Tree thinking, “it would be nice to have within the team.” The packs contained a monkey, a panda, and a parrot, each on a moving swing. Mr. Nagai testified that he gave the parrots to two women in the accounting department, and randomly distributed the monkeys and the pandas in the department. One of the monkeys was placed on Petitioner’s desk. Mr. Kite received a toy, Mr. Nagai kept one for himself, and one was apparently given to a fourth person. It is not known who received which of the other toys. Mr. Nagai testified, credibly, that he “randomly put those on people's -- friends' desks. So as I pull from the bag, that's the one he -- they get. I believe I gave it to all the people in our side. And some people got panda. Some people got monkeys.” He viewed the toys as simple office decorations. Petitioner testified that he found the toy to be offensive and “objectionable,” symbolizing that he was considered “the office monkey.” Nonetheless, he never complained about the toy to Mr. Nagai, Ms. Henry, or anyone else, and never told anyone that he found the toy to be offensive. Petitioner did not remove the toy from his desk, where it remained for months until it was replaced as Christmas approached with solar powered Santa Clauses, snowmen, and other holiday characters. Had Petitioner ever told Mr. Nagai that he was uncomfortable with the toy, or found it inappropriate, Mr. Nagai would have removed it. With regard to the allegation that the solar-powered toy that Mr. Nagai placed on Petitioner’s desk was intended to and had the effect of exposing Petitioner to racial denigration, or that Mr. Nagai selected the monkey to place on Petitioner’s “cube” as an act of racial animus or bias, Petitioner failed to meet the burden of proof. Event 3 - Sabotage of the Grading of the Actuarial Exam Petitioner has alleged that Allstate manipulated the grading of Petitioner’s May 2016 actuarial exam. Testing and grading is performed by the Society of Actuaries (“SOA”). Allstate is not involved in the administration of the examination or its grading. The examination was not administered at the Allstate offices. Nonetheless, Petitioner claims that he would have passed the exam, except Allstate convinced the SOA to alter his answers so that he would fail, thus, creating a falsified basis for his termination. He further alleged that he has distinctive handwriting, so it would have been a simple matter for Allstate to have identified his test. Prior to Petitioner taking the May 2016 exam, Ms. Henry asked Ms. Halim to review Petitioner’s practice exam with the goal of helping Petitioner pass the May 2016 exam. Ms. Halim has her FSA. Ms. Halim is not, nor has she ever been an actuarial examination grader. Years prior -- as far back as 2003 -- Ms. Halim served as an exam writer, and developed multiple-choice questions for the examinations to become an ASA. She had no involvement in writing examinations to become an FSA. Ms. Henry thought that Ms. Halim could contribute some advice. If Ms. Halim had felt that she could not contribute, she would have declined. Ms. Halim’s advice was generally limited to suggesting that Petitioner’s handwriting be larger and clearer so as to make it more legible for the exam grader, and to “box” his calculations related to an answer so the grader would not have to search the paper. Petitioner failed the May 2016 examination. It was his third consecutive time failing the examination. Ms. Halim was not involved in either of the previously failed tries. Petitioner produced no competent substantial evidence to support his allegation that Allstate somehow conspired with the SOA to falsify the results of Petitioner’s examination for the purpose of having him fail the examination, thus, creating a pretext for his termination under the terms of the ACP. The evidence established that such a conspiracy is not possible. With regard to the allegation that Allstate somehow influenced the grading of Petitioner’s actuarial examination, Petitioner failed to meet the burden of proof. Event 4 - “You Look Like a Chimpanzee” Related to Petitioner’s complaint that Mr. Nagai and Mr. Kite mocked, antagonized, and ostracized him was Petitioner’s allegation that, at some time during the fall of 2015, Phil Kite yelled “you look like a chimpanzee” to Petitioner as he was walking through the office. Petitioner alleged that the statement was an act of racial discrimination. Mr. Kite specifically denied having ever made a statement like that described by Petitioner. Mr. Kite testified that “[i]t is not in my nature to do anything that would belittle someone's appearance, physical or otherwise. And so I would not do that.” Petitioner asked Mr. Kite if “anybody [was] going to contradict what you just testified to,” to which Mr. Kite answered “No.” Mr. Kite was correct. The following testifying witnesses were asked if they heard Mr. Kite yell out, “You look like a chimpanzee”: Ms. Bradley; Mr. Nagai; Mr. Parsons; Mr. Posick; and Ms. Henry. Not one witness testified that they heard the alleged statement, despite several having workstations that would have been in easy earshot. Ms. Bradley further testified that she never joked about Petitioner looking like a chimpanzee, nor did she hear negative comments about him. Petitioner did not report the alleged statement to anyone within his supervisory chain of command, to Allstate’s HR hotline, to Allstate’s HR department, or to anyone at Allstate. With regard to the allegation that Mr. Kite called out to Petitioner “you look like a chimpanzee,” whether in an effort to racially denigrate Petitioner or otherwise, Petitioner failed to meet the burden of proof. Event 5 - Disproportionate Terminations Petitioner’s Complaint of Discrimination alleged that, between spring 2014 and spring 2016, a statistically disproportionate number of black employees on the seventh floor were terminated from employment. He listed Pam Bernaba, “Bryce,” “Winston,” “Ms. Bryant,” and Sharon Spruitt as black employees, and Lidiya Olsen, a white Russian employee, who were “abruptly terminated.” There was no competent, substantial, or persuasive evidence, of any kind, offered or received to support the allegation. With regard to the allegation that between spring 2014 and spring 2016, a statistically disproportionate number of black employees on the seventh floor were terminated from employment, Petitioner failed to meet the burden of proof. The November 30, 2017, Investigative Memorandum Pursuant to Judge Stevenson’s June 6, 2018, Order, evidence was allowed to address matters discussed in the FCHR’s IM. The Memorandum deals with many disparate allegations, some of which have no evidentiary support. Most involve incidents that occurred more than 365 days prior to the filing of the Complaint of Discrimination. Some involve allegations against prior employees. To the extent an allegation identified in the IM derived from the Complaint of Discrimination, and was discussed previously, it will not be repeated here. However, other incidents identified in the IM, none of which were set forth in the Complaint of Discrimination, will be discussed herein so as to provide a clear record for review by the FCHR. 2012 Incidents - Previous Employer The IM referenced two incidents that occurred in 2012, before Petitioner was hired at Allstate. Those incidents are not only well beyond the 365-day jurisdictional threshold for relief, but involve a previous employer. Why the investigator chose to include them in the IM is a mystery. Nonetheless, there was no evidence offered or received to support the allegations. The Condolence Card The IM next recited Petitioner’s allegation that “[s]taff screamed at [Petitioner] for buying a condolence card.” In August 2015, Petitioner purchased a condolence card for an Allstate employee. Whether he knew it or not, a condolence card was already being circulated throughout the actuarial department. The managers or someone in the department handled those situations in a more coordinated manner as was, apparently, the normal practice. Petitioner gave the employee his card, so there were two cards, “which caused confusion.” For whatever reason, this upset the grieving employee, who approached Ms. Halim and expressed her feelings. After the cards were distributed, Petitioner was sitting in a “huddle room” in the actuarial department. Ms. Halim approached Petitioner, asked that he not send cards out on his own, and said that she was “pissed” at him. She was upset, and her voice was “elevated.” Frankly, the undersigned is at a loss as to why an extra condolence card would be a source of consternation. It seems a small matter to be “pissed” about. Nonetheless, the incident was exclusively the result of Petitioner going outside of the “normal” way of doing things in the department. There is no evidence that the incident had anything to do with racial animus or discrimination. Throwing Things The IM next stated that Petitioner alleged that “between 2014 - 2016, . . . [Petitioner’s] manager threw items at [Petitioner].” During his testimony, Petitioner alleged that Ms. Henry would “throw candy at me. She threw paper at me. She threw a banana at me once.” The allegation was not mentioned in the Complaint of Discrimination. Despite having Ms. Henry on the stand, along with others who would have been in a position to observe such behavior, Petitioner never questioned anyone about the alleged conduct. There was no indication that the conduct occurred on or after June 30, 2016 (365 days prior to the June 30, 2017, Complaint of Discrimination), and the context of the statement, and the totality of the evidence concerning the period after June 30, 2016, indicates that, if it occurred, it occurred before June 30, 2016. Furthermore, there was no evidence whatsoever to support a finding that, even if the event occurred as described by Petitioner, it was a result of racial or sexual animus, bias, discrimination, or harassment, or that it was done as an act of retaliation as defined in section 760.10(7). Mr. Nagai’s Performance The IM next recited Petitioner’s allegation that Mr. Nagai’s work product was inaccurate, and that that he “received superior treatment for a pattern of poor work and poor behavior.” Mr. Nagai was honest that, of course, he has made mistakes, and has owned up to them. However, he also testified, credibly, in response to a question as to whether his errors made him fear for his job, that “I take my work -- I take pride in my work. So whenever I find errors and mistakes, I take it seriously . . . . However, my errors was immaterial, [and] I was not afraid -- based on the amount of the errors I made, I was not afraid.” Mr. Posick testified that “Mr. Nagai had proven to be someone that I could depend on, and the quality of his work was good.” He further testified that Mr. Nagai is “a valued employee. The work that he's doing has evolved over time, and I depend on him. He's built a number of processes that have improved the work that we do. He understands them. He's a value to the company and to me personally. . . . [Mr. Nagai] is an incredibly hardworking individual that, when given a task and a deadline, will do the work necessary to complete that task. That's the highest praise that I can give him.” Mr. Posick’s testimony is credited. There was no competent, substantial, or persuasive evidence to suggest that Mr. Nagai received superior treatment for work or behavior that was comparable to that of Petitioner, or that employment decisions with regard to Mr. Nagai were the result of any racial bias or animus towards Petitioner. Finally, the IM recited Petitioner’s allegation that soon after spring of 2014, Mr. Nagai “got removed from the [ACP] but allowed to keep his exact same job, title, and salary.” The evidence demonstrates that Mr. Nagai was removed from the ACP for failing an examination in the spring of 2017, after Petitioner’s termination. He remained qualified for the job he held at the time as an actuarial associate. Mr. Nagai worked in a different section, with a different number and mix of positions, and with a different supervisor. There was no competent, substantial, or persuasive evidence to suggest that Mr. Posick’s decision to offer Mr. Nagai a position as a “career ASA” after his removal from the ACP was the result of any racial bias or animus towards Petitioner. Coaching by Ms. Henry In addition to the foregoing allegations regarding Mr. Nagai, the IM referenced Petitioner’s complaint that Ms. Henry “lied about spending all of 2015 conducting coaching sessions with him.” The statement related to alleged acts that occurred more than 365 days prior to the filing of the Complaint of Discrimination. Furthermore, there was no evidence offered or received to suggest that Ms. Henry lied about coaching, to whom she may have lied, or that any such lie was motivated by racial or sexual harassment or discrimination. The evidence demonstrated that, prior to 2016, Ms. Henry had no formal coaching sessions with Petitioner. However, she considered daily direction and education on how Allstate works and how her employees interact with customers to be “coaching.” After Petitioner’s receipt of his “inconsistent” evaluation in early 2016, Mr. Schaeffer spoke extensively with Petitioner about his job performance. Petitioner complained that he was not given feedback during the year that his job performance was not satisfactory, and requested specific examples. It was suggested that regular coaching would be appropriate. Ms. Henry scheduled regular coaching sessions for the second Friday of every month. Petitioner declined to appear for the scheduled coaching sessions. He gave no contemporaneous excuse or notice; he would just not show up. Later, Petitioner complained that Allstate was singling him out by giving him too much coaching. There was no competent, substantial, or persuasive evidence to suggest that Ms. Henry lied about her efforts to coach Petitioner, either in 2015 or at any other time; and in any event, her coaching efforts, whether formal or informal, had nothing to do with Mr. Posick’s supervision of Mr. Nagai, and were in no way proven to be the result of racial or sexual harassment or discrimination towards Petitioner. Salary Disparity The IM discussed the allegation that Petitioner’s salary was less than comparable employees, and that black employees’ salaries were less than a group of “other white employees.” There was no competent, substantial, and persuasive evidence offered or received as to the salaries of the listed employees, except for that of Mr. Nagai. As to the comparison between Petitioner and Mr. Nagai, the evidence indicates that Petitioner was first hired as an actuarial technician in November 2013 at an annual salary of $65,000. Petitioner provided no evidence of any salary increases after his hiring, though the ACP Guidelines provide for an employee raise after achieving the ASA, which Petitioner achieved in 2014. In contrast, Mr. Nagai’s starting salary as an actuarial technician was $60,000, less than that of Petitioner. There was no competent, substantial, or persuasive evidence to suggest that there was a racially based salary disparity at Allstate during Petitioner’s period of employment or otherwise, and none is found. “Shackle the Monkey” The IM recited Petitioner’s allegation that Ms. Henry, during a discussion of his performance evaluation, stated to him that “this is how I choose to grade you. I choose to shackle the monkey before it becomes a gorilla.” She allegedly restated that comment at some unidentified 2016 meeting. Petitioner received his final performance evaluation from Ms. Henry in the spring of 2016. Thus, the alleged statement occurred more than 365 days prior to the filing of the Complaint of Discrimination. Ms. Henry gave Petitioner a performance rating of “inconsistent.” Petitioner did not agree with the rating, stated that he should have been rated “better than expected” on everything, accused Ms. Henry of being inaccurate and unethical, and refused to sign the evaluation. Petitioner alleged that, as she was discussing Petitioner’s final performance evaluation with him, Ms. Henry punctuated her evaluation with the statement that she would “shackle the monkey before he becomes a gorilla.” Ms. Henry denied having made the statement, either to Petitioner or in a separate 2016 meeting with Caroline (or Catherine) Levy. Mr. Schaeffer testified that he did not know Ms. Henry to have used that term. Petitioner further alleged that he reported the alleged statement during his July 2016 meeting with Mr. Schaeffer. Mr. Schaeffer specifically denied any such report, stating, “That I would remember. You never made any complaints about racial harassment or racial terms such as that that were used.” With regard to the allegation that Ms. Henry stated she would “shackle the monkey before he becomes a gorilla,” Petitioner failed to meet the burden of proof. “Devalued the Profession” The IM described an alleged “going away lunch” during which Mr. Posick stated that Petitioner “devalued the profession,” and that his recently achieved ASA “watered down the profession.” The IM indicated that the event occurred in July 2015. Petitioner testified that, in June 2014, he and several employees, including Mr. Posick and Mr. Nagai, were at a going away lunch when Mr. Posick stated, loudly enough for all to hear, that Petitioner’s “credentials devalued the profession,” and that Petitioner’s ASA made his less valuable. Regardless of which date is accurate, the alleged statement occurred more than 365 days prior to the filing of the Complaint of Discrimination. Mr. Posick testified that he never said that Petitioner’s credentials devalued the profession. He testified that he never said Petitioner’s ASA made his less valuable. He testified that he has never said anything to that effect about anyone. Although Mr. Nagai had no specific recollection of having attended that particular going away luncheon, he had no recollection of ever having heard Mr. Posick make such statements. Though Petitioner alleged that others were in attendance, and “[e]veryone laughed,” no other witnesses were called to substantiate the allegation. With regard to the allegation that Mr. Posick stated that Petitioner’s “credentials devalued the profession,” and that Petitioner’s ASA made Mr. Posick’s less valuable, Petitioner failed to meet the burden of proof. Working from Home The IM indicated that Petitioner asked to work from home at some time between June 14 and June 22, 2016. His request was denied. Petitioner claimed that the denial was discriminatory, since two white employees had been allowed to work from home. The denial of the request occurred more than 365 days prior to the filing of the Complaint of Discrimination. Petitioner was frequently described as one who preferred limited interaction with his co-workers. Ms. Henry described him as “preferr[ing] to keep to yourself with the computers and chugging away at programming.” As a result, starting in May or June of 2014 (according to Petitioner), barely six months from the time he was hired, he began to ask to work from home. He testified that: I wanted to work from home. Actuarial work can be done remotely. I can do actuarial work right now. You know, I can go down to Antarctica, pop up a laptop, and I can start crunching numbers, Your Honor. We don't need to be passing -- hand -- we don't need to be hand shaking. We don't even have to talk to one another, Your Honor. It can be done remotely. I could have done my job remotely at home. Petitioner’s requests were ongoing. Ms. Henry had no direct reports who worked from home. Petitioner was Ms. Henry’s only actuarial employee. As stated by Mr. Schaeffer, there are legitimate, business-related reasons for having employees working at their place of employment. He testified that actuarial employees’ availability to meet and discuss matters with co-workers, supervisors, and business partners is a necessary component of the position, particularly when, as here, the actuarial department is relatively small. His reasoning is reasonable and accepted. Petitioner’s requests to work from home were not granted. Petitioner argued that two Allstate employees were allowed to work from home. According to Petitioner, those employees were not African-American, and that race must have been the basis for the denial of his request. One of the alleged comparators was a woman who was on maternity leave, and asked to extend her leave for a few weeks. She was allowed to work from home during that period of several weeks before returning to work at the office. The second alleged comparator was a woman whose husband was stricken with cancer. She needed to work from home to care for him. She asked for and received permission to work from home so she could provide care. The two women who were allowed to work from home are, in no way, comparators to Petitioner. That the two women were allowed to temporarily work from home for legitimate medical and family reasons, and Petitioner was not allowed to permanently work from home, is not evidence of racially disparate treatment. Petitioner also identified Bridgette Tennant as being another white employee that was allowed to work from home. Although Ms. Tennant had been with Allstate for 22 years when Petitioner was hired, during all times relevant to this proceeding she was not a salaried employee of Allstate. She was never in the ACP. She was a contractor who worked on an hourly basis. She received no paid vacations, holidays, sick leave, or retirement. The work assigned to her was limited to what she could do remotely. As a result, there were only two or three tasks that she was assigned. Ms. Tennant’s position at Allstate is not at all comparable to that of Petitioner, and Allstate’s decision to allow Ms. Tennant to work from a remote location is not evidence of racially disparate treatment.5/ Ms. Halim also indicated that various employees on her team were, on occasion, allowed to work temporarily from home, for a week or less. Ms. Halim does not supervise Petitioner. It was not revealed whether the employees being granted temporary work-from-home status were actuarial employees or support staff. The reasons for the decisions were not asked or volunteered. Ms. Halim has more than one actuarial employee on the “health” side of the actuarial department. Ms. Halim’s decisions to allow her employees to temporarily work from home, while Petitioner was not allowed to work permanently from home, is not evidence of racially disparate treatment. In addition to his requests to work from home, at some point after March 2015, Petitioner asked to change his work hours so that he would not be in the office when other employees would be there. Petitioner provided no reasoning for his request. However, his requested hours would have made it so that he would not have been in the office during the regular work hours of his supervisor. Allstate attempted to accommodate Petitioner’s request by allowing him to start earlier in the day and adjusting his schedule with the understanding that Petitioner needed to be available “during core hours” if other business partners wanted to schedule afternoon meetings. Petitioner also asked to move his workstation to be away from his co-workers. Allstate was short of room as it was, so there was no room to move Petitioner. With regard to Allstate’s decision to require Petitioner to come to work at the office, as he had been hired to do, Petitioner failed to meet the burden of proof that the decision was driven by racial or sexual discrimination, bias, or animus. Other Random Allegations The IM included a number of other observations, sometimes buried in a discussion of other issues, and sometimes separately. They include, but are not limited to that Petitioner filed an ethics complaint against Ms. Henry after his final evaluation; that Allstate hired employees after his termination; that Ms. Henry “forced [Petitioner] to sign annual reviews, with which he disagreed”; and various incidents that “used a combination of passive aggression and physical intimidation.” Having carefully reviewed the IM, the undersigned finds that Petitioner failed to meet the burden of proof that the incidents described therein were driven by racial or sexual discrimination, bias, or animus, or by retaliation for having opposed an unlawful employment practice, or for having participated in an investigation, proceeding, or hearing under the FCRA. Other Allegations of Discrimination In addition to the foregoing, Petitioner spent considerable time discussing matters that he claimed were provided to FCHR, but which were not included in the Complaint of Discrimination, or discussed in the IM. Several of those matters warrant discussion. Dinner and a Movie Petitioner alleged (for the first time) in his Petition that Ms. Henry propositioned him repeatedly in 2014 -- advances that he spurned -- thereby constituting sexual harassment, creating a hostile work environment, and forming a basis for retaliation. When Petitioner was hired in November 2013, Ms. Henry understood that he was new to Jacksonville, and perceived that he had few activities outside of work. Early in Petitioner’s period of employment, during routine office banter, he expressed an interest in a movie that Ms. Henry knew her husband wanted to see. Ms. Henry and her husband were going out to dinner and to see the movie, so she invited Petitioner to join them. It was Ms. Henry’s practice with employees that were new to town to ask if they needed to learn new restaurants or wanted to be taken places. She saw no harm in the offer. It was free to be declined and, in fact, Petitioner did decline with no consequences. Ms. Henry has, over the years, made numerous similar invitations to persons who were new to town. As stated by Ms. Henry, “I have been to dinner with many people in our department and lunch and bowling and movies, and it's just social interaction.” Ms. Henry also asked Petitioner if he wanted to go bowling since Petitioner had mentioned that he enjoyed bowling. She told him that Allstate employees had formed a league team that had an open spot. She would generally ask Petitioner anytime she thought he was working too much and needed a distraction. She asked him on more than one occasion, and recalled that Petitioner did join the league at one point. However, Petitioner’s typical response was that he would “like to but [he was] studying or busy or it's hard to get there because [he] rode a bike and it was on the other side of town.” She did not specifically recall the frequency of her invitations. Since Petitioner gets around by bicycle, if Petitioner wanted to attend something that was too far to go by bicycle, Ms. Henry offered on occasion to drive him, stating, “I thought that was a polite thing to do.” Petitioner testified that Ms. Henry approached him on one occasion between November 2013 and the start of 2014 and suggested that they go to dinner and a movie together, and that “she also added in that her husband would not be there.” He characterized the alleged invitation as “asking me to go on dates,” which he characterized as being inappropriate and “set[ting] a bad tone for my employment there.” The undersigned finds Petitioner’s description of events to be, perhaps, the result of a simple misunderstanding. In any event, the undersigned finds Ms. Henry’s testimony and description of her intent to be credible and sincere. There was absolutely nothing improper, inappropriate, or unethical about Ms. Henry’s expressions of common decency and civility. Her attempts to engage Petitioner in social activities were not tinged with even a hint of sexual motivation. They involved no racial discrimination or bias. Her invitations cannot, under any reasonable evaluation of the evidence, be construed to have created a hostile work environment. Petitioner’s refusals to join Ms. Henry and her husband for dinner and a movie, or to join the Allstate bowling team, were not grounds for retaliation and, in fact, did not cause retaliation of any kind.6/ Retaliation Complaint against Ms. Henry In January or February 2016, Petitioner filed an internal ethics complaint against Ms. Henry. Ms. Henry had no specific information about the complaint or the allegations. Neither party introduced a copy of the complaint in evidence. It was Ms. Henry’s vague understanding that Petitioner was asserting that she was retaliating against him for his complaint against Mr. Dickson. She was interviewed but, other than questions regarding the third meeting involving Petitioner and Mr. Dickson to discuss the Snap Quote tool, had no recollection of the issues. At no time was Ms. Henry advised by the HR investigators that the complaint had anything to do with retaliation for complaining about race discrimination or sex discrimination. At the time Petitioner failed the third actuarial examination, she did not know if the investigation was still ongoing. There is no competent, substantial, and persuasive evidence to establish that the complaint against Ms. Henry had anything to do with racial or sexual discrimination, harassment, or retaliation. “Closet Actuary” During his period of employment, Petitioner alleged that Mr. Schaeffer referred to him as a “closet actuary.” Petitioner took that to be an affront to his manhood, and evidence of sexual harassment and discrimination. Mr. Schaeffer credibly testified that the term “closet actuary” is one he heard early in his career, more than 25 years ago, and describes “somebody [who] just wants to work in a closet and have work shoved under the door to them, they do it and spit it back out, that is what I mean by a closet actuary, somebody who does not want to work with other people.” Mr. Schaeffer testified, accurately, that Petitioner did not want to work with other people, and had asked to work during times that others would not be at the office. He noted that, during the final months of Petitioner’s employment, he asked to work at “unusual hours.” The request was denied. Although a large department can afford to have actuaries “who just want to sit in a corner and crank out numbers, [and] not deal with other people,” Allstate had a small actuarial department. Therefore, Allstate needed its employees to work regular “core hours,” to communicate and work with people in other departments and fellow employees in their department. Mr. Schaeffer stated that he may have directed the term “closet actuary” at Petitioner because “we need actuaries who will work with other people, not people who want to work on an island all by themselves and not be bothered with other people.” A preponderance of the evidence demonstrates that the term “closet actuary” has no racial or sexual connotation, and that the use of the term is not evidence of discrimination of any kind. Move to the Eighth Floor Petitioner alleged in his Petition that Allstate’s planned move of the actuarial department to the eighth floor after the completion of renovations was timed to occur after his termination, so that senior management would not have to share space with a black actuary. Allstate had, for about five years prior to Petitioner’s termination (which mathematically would have also started before he was hired), been remodeling floors in its building to upgrade the mechanical equipment and physical capabilities, and to create more occupancy. Virtually every department in the building moved at one point during the five- year renovation period. During 2016, Allstate was remodeling the eighth floor. When the eighth floor was remodeled, it produced more space for more employees. No team was transferred from the eighth floor during the remodel. The expectation was that the actuarial department, which was on the seventh floor, would move to the eighth floor upon completion, since the reconfigured space would allow for a department of the size of the actuarial department. Allstate’s executive level management also occupies the eighth floor. The renovations of the eighth floor were completed at some time in early 2017, and the actuarial department moved. By the time of the hearing, the actuarial department took up almost every available seat allotted to it. When asked if he thought the move felt like an “improvement,” Mr. Kite indicated it did not, stating that “[a] cubicle is a cubicle.” Petitioner asked Mr. Guidos, “[d]id you make it a condition for the eighth floor move to be terminating Elias Makere's employment,” to which the answer was “no.” His testimony is credited. With regard to the move of the actuarial department to the eighth floor, there was no competent, substantial, or persuasive evidence to support a finding that its occurrence after Petitioner’s termination was influenced, in any manner, by racial or sexual discrimination, bias, or animus towards Petitioner, or in retaliation for any action or statement by Petitioner. Payment for Third Examination During his testimony, Mr. Nagai indicated that Allstate paid for his third actuarial examination that he failed, leading to his removal from the ACP. Mr. Posick suggested, with less certainty, that Allstate paid for Mr. Ciurte’s third actuarial examination that he failed, leading to his removal from the ACP. Petitioner was compelled to pay for his failed third examination. There was no other evidence regarding the circumstances of the payments to Mr. Nagai and Mr. Ciurte. As indicated, both were in different sections, with different supervisors, and different employment status. There was no evidence that the payments were made as a result of racial discrimination, animus, or bias. More to the point, despite Petitioner providing testimony that he paid for his failed third examination, while others did not, Petitioner never pled that in his Complaint of Discrimination. It was not discussed in the IM. It was not included in the 231-page Petition for Relief. Thus, regardless of whether Mr. Nagai and Mr. Ciurte’s third examinations were paid, and Petitioner’s was not, that issue is not cognizable in this proceeding. Reporting Discrimination It is uniformly recognized that for an employer to be found to have engaged in discrimination or harassment under the FCRA, it must have been placed on notice of the offending conduct. The evidence in this case demonstrates that Petitioner never complained about, and never expressed offense or concern with any of the incidents discussed herein, with the exception of the incident with David Dickson. Respondent has a policy that employees should report discrimination and harassment, and has established protocols by which they may do so. The human resources department has a telephone hotline with a published list of telephone numbers for reporting discrimination. An employee can report to his or her manager, or their manager’s manager. During the period of his employment, Petitioner never reported to anyone at Allstate that he believed he was being subjected to racial or sexual discrimination or harassment. During his period of employment, there are two documented instances of Petitioner having complained of any workplace conduct. The first was his ethics complaint against Mr. Dickson. That complaint was not founded on racial discrimination, nor did it constitute a report of any form of discrimination. The second was his complaint against Ms. Henry, which he described as being about “[h]er retaliatory conduct towards me when I complained about David Dickson and that retaliatory conduct evidenced itself in the performance evaluation.” There is no competent substantial evidence that the complaint had anything to do with racial or sexual discrimination, nor did it constitute a report of any form of discrimination. Petitioner did not call the Allstate hotline, file a complaint with the HR department, or complain of any form of discrimination to anyone within his chain of supervision. Petitioner did not report any type of discrimination to Mr. Randles. Mr. Randles was never made aware of any acts of discrimination towards Petitioner, or of anything that he considered inappropriate. In May 2015, Petitioner’s 2014 performance evaluation was completed. Petitioner objected to his overall “as expected” evaluation. He believed he was entitled to a “better than expected” evaluation. He registered his disagreement not only in discussions with Ms. Henry, but in his written comments to the 2014 evaluation. Despite his lengthy comments, Petitioner made no reference to being subjected to any form of discrimination, harassment, or retaliation.7/ On March 31, 2016, Petitioner’s 2015 performance evaluation was completed. Petitioner objected to his overall “inconsistent” evaluation. He believed he was entitled to a “better than expected” evaluation. He registered his disagreement in his discussions with Ms. Henry, and in his written comments to the 2015 evaluation. In his written comments, Petitioner disagreed with Ms. Henry’s assessment, “believ[ing] that it’s rooted in tainted ground,” and that “this final review signals something more unethical.” The evidence established conclusively that those issues were related to his ethics complaint against Mr. Dickson, and not to any racial or sexual discrimination, harassment, or retaliation, and do not constitute a report to Allstate of discrimination, harassment, or retaliation. Petitioner did not complain to Mr. Schaeffer about racial or sexual discrimination, harassment, or retaliation while he was in Mr. Schaeffer’s chain of supervision. Petitioner alleged that he informed Mr. Schaeffer of incidents of discrimination, including the alleged sabotage by Ms. Boland, the “racist doll,” and Mr. Kite’s alleged “chimpanzee” statement. Mr. Schaeffer specifically and credibly denied that Petitioner disclosed any of that information. There is no documentary evidence to support the allegation. Petitioner did not complain to Ms. Halim about racial or sexual discrimination, harassment, or retaliation while he was working at her direction on the development of the Snap Quote tool. At no time during his employment did Petitioner advise his supervisor, Ms. Henry, that there was anything happening at the office that he believed to constitute racial discrimination, harassment, or retaliation. He never indicated that his issues with his co-workers had anything to do with Petitioner being a black male. During the period of his employment, Petitioner never stated any objection to his co-workers regarding their behavior, did not tell them that he found their alleged actions and comments offensive, and did not ask that they stop. He never complained about the “racist doll,” and left it on his desk for months without objection. The basis for Petitioner’s failure to complain or object was his apparent belief that his perceptions were shared by everyone, and, thus, the discrimination was obvious. They were not. As will be discussed in the Conclusions of Law, Petitioner bears the burden of proving that he reported incidents of discrimination to his employer in order to give the employer an opportunity to remedy the situation. Petitioner failed to meet the burden of proof. Comparators Petitioner testified that a gravamen of his complaint centered on his understanding that “I was terminated for taking an actuarial exam and failing that actuarial exam, but my non- black counterparts were not terminated when they did the exact same thing.” The IM indicated that Petitioner “named Bridgett Tennant, Nagai and Kite as those who even though failed their exams of exhibited deficient performance, [Allstate] still retained them.” Mr. Nagai and Mr. Kite worked on the health/valuation side of the actuarial department. Their chain of supervision included Mr. Posick and Mr. Randles. Petitioner was in the life/product development side. His chain of supervision included Ms. Henry and Mr. Schaeffer. Mr. Posick had several actuarial positions in his section. Ms. Henry had one actuarial position in her section, filled by Petitioner. In his Proposed Recommended Order, Petitioner also identified Tonya Dostie and Victor Ciurte as comparators. Phil Kite Mr. Kite is an actuarial analyst. He is not an actuary or an actuarial student. He has never been in the ACP, and has not taken an actuarial examination during his tenure with Allstate. Although Mr. Kite has a degree in actuarial science, he is “a technical person, a support of the actuarial department in another capacity.” Mr. Kite has worked at Allstate for 28 years. He started in the underwriting section, and worked in the actuarial department for the past 18 years. He has knowledge of applications to manage and report information, especially as it concerns reporting on a monthly basis for booking reserves, but does not perform actuarial work for Allstate. Mr. Kite did not perform the same duties as Petitioner. He did not work in the same section, or for the same manager. Mr. Kite is not a comparator against which to gauge the adverse employment action reflected by Petitioner’s termination. Bridget Tennant Ms. Tennant’s position with Allstate is discussed in paragraph 170. Ms. Tennant is not a comparator against which to gauge the adverse employment action reflected by Petitioner’s termination. Tonya Dostie Ms. Dostie was identified as a comparator solely because her supervisor, Ms. Halim, allowed her to work from home. Ms. Dostie was one of the women allowed to work from home as set forth in paragraphs 166 through 169. Ms. Dostie is not a comparator against which to gauge the employment decision taken with regard to Petitioner. Mr. Nagai Mr. Nagai was in Allstate’s ACP. At some time after Petitioner was terminated from employment, Mr. Nagai failed to pass the requisite exams. He was dismissed from the ACP. Mr. Nagai was retained by Mr. Posick as a career ASA, which is a suitable option for Mr. Nagai. As such, he was not an FSA actuary, and had no opportunity for advancement. Although he can be promoted based on the merit of his work, his position will not change unless he continues to take actuarial exams without financial or administrative support from Allstate. Mr. Posick testified credibly that the decision to offer Mr. Nagai a position in his section after he was removed from the ACP was based solely on his being a dependable worker who regularly completes his assigned work. As indicated previously, Mr. Posick was complementary of Mr. Nagai as “someone that I could depend on, and the quality of his work was good, so I chose to transition the position to a career ASA position.” Mr. Randles testified that Mr. Nagai “had the skill set necessary to do the financial job that we were asking him to do. He has done that well, and he worked well with other people in the department and worked well with the other people outside the department that he needed to interact with to perform his job,” all of which were described as critical elements of that position. As such, the decision was made to retain Mr. Nagai after his removal from the ACP, as is allowed under the ACP Guidelines. As set forth herein, Petitioner was perceived as having issues with taking instruction, completing tasks as directed, and working with other employees, supervisors, and business partners, and his ability to advance into Ms. Henry’s position that were not consistent with the critical elements of the position. That perception, whether accurate or not, was not formed as the result of racial or sexual discrimination, animus, or bias. Petitioner and Mr. Nagai were in sections of the actuarial department with a different mix and number of actuarial employees, and different duties. Mr. Nagai had different supervisors than Petitioner, none of whom was involved in the decision to terminate Petitioner or in the decision not to retain Petitioner as a career ASA in Ms. Henry’s section. Mr. Nagai is not a comparator against which to gauge any employment decision taken with regard to Petitioner. Victor Ciurte Mr. Ciurte is in Mr. Nagai’s section within the actuarial department, and was similarly situated to Mr. Nagai in many respects. Mr. Ciurte was in Allstate’s ACP. At some time after Petitioner was terminated from employment, Mr. Ciurte failed to pass the requisite exams. He was dismissed from the ACP. Mr. Posick testified credibly that the decision to offer Mr. Ciurte a position as a career ASA in his section after he was removed from the ACP was based solely on his performance. Mr. Ciurte was described as having “made incredible progress since he's reported to me on his ability to both communicate high level concepts as well as research.” Although Mr. Posick could have terminated Mr. Ciurte, he chose to retain him because he was able to “solve problems and research independently, to the point that “[c]urrently I trust him to present at the highest level.” Mr. Randles testified that Mr. Ciurte’s “job performance was very well. He continued to do the skills that we needed on the financial actuary side very well, and he continued to do that. He also worked well with the other people in the department, and so he was retained for that position.” Petitioner and Mr. Ciurte were in sections of the actuarial department with a different mix and number of actuarial employees, and different duties. Mr. Ciurte had different supervisors than Petitioner, none of whom were involved in the decision to terminate Petitioner or in the decision not to retain Petitioner as a career ASA in Ms. Henry’s section. Mr. Ciurte is not a comparator against which to gauge any employment decision taken with regard to Petitioner. Ultimate Findings of Fact Each of the persons who were involved in the decision to terminate Petitioner testified credibly that Petitioner’s race or sex had no bearing on the decision, nor was the decision made as retaliation for Petitioner’s opposition to any practice falling under the ambit of section 760.10. Rather, the decision to remove Petitioner from the ACP was one required by the ACP Guidelines and applied equally to each employee that failed to meet the one-in-three rule. The decision to not offer continued employment in a different position as a career ASA was based on his inability to become an FSA, thus, being able to succeed Ms. Henry upon her retirement, his unwillingness to work in a collaborative manner with Allstate’s employees, managers, and business partners, and his inability to complete tasks assigned. In the absence of some corroborative evidence, Petitioner’s statements alone do not provide the support to sustain his charge of discrimination. A review of the entire record of this proceeding reveals no corroborative evidence that many of the alleged statements and comments even occurred, much less that they were the result of racial or sexual discrimination, harassment, animus or bias, or that they were retaliation for opposing or participating in a proceeding regarding such discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Allstate Insurance Company, did not commit any unlawful employment practice as to Petitioner, Elias Makere, and dismissing the Petition for Relief filed in FCHR No. 2017-01432. DONE AND ENTERED this 18th day of April, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 18th day of April, 2019.
The Issue This matter was referred to the Division of Administrative Hearings by the Florida Commission on Human Relations to conduct a hearing regarding a Petition For Relief from an Unlawful Employment Practice filed by Petitioner against Respondent. The Petition For Relief alleges an unlawful employment practice under the Human Rights Act of 1977 in the form of Petitioner's discharge from employment as a Radio-Teletype Operator in December 1978 due to sexual discrimination. The Respondent answered the Petition and asserted that Petitioner was dismissed for legitimate, non-discriminatory reasons (failure to attain a satisfactory level of job performance) while a probationary employee. The Respondent further asserted that Petitioner had never attained permanent status with the Respondent. At the hearing, the parties completed the filing of a Pre- Hearing Stipulation and Supplement thereto and Petitioner's Amendment thereof, pursuant to an earlier order requiring a pre- hearing stipulation. By stipulation the parties agreed to change the style of this case to reflect the Respondent as shown above instead of the Florida Highway Patrol.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact: Petitioner was hired on April 13, 1978, as a Radio- Teletype Operator for the Miami Station of the Florida Highway Patrol, a division of the Respondent. Petitioner was hired on a provisional status for six months or until he passed the required examination, whichever occurred first. The examination was still being prepared when Petitioner was hired. Petitioner had prior experience as a wrecker dispatcher and in electronics. He had received an Associate of Arts degree in Criminal Justice in December 1977. His wages were $824 per month. Chief Operator S. K. Wallace, a male, was Petitioner's immediate supervisor and trainer. Effective May 1, 1978, Sergeant Gracey, a uniformed member of the Patrol, became Communications Officer for Troop E and was Wallace's supervisor. Captain Garris was the Troop Commander at time of hire. Petitioner identified three females and two males, other than himself and Wallace, who were employed as radio operators at Troop E. One male operator may have been employed by the Department of Transportation. On August 22, 1978, Petitioner passed his Radio-Teletype Operator I examination and received a score of 90. Passing score was 70. By memo of September 25, 1978, Petitioner was advised by Col. Beach that effective August 22, 1978, he was no longer provisional and was probationary for six months as a result of passing the examination. On August 7, 1978, Petitioner signed an Employee Performance Evaluation with an overall rating of satisfactory. The employee status was shown as probationary and the rating period was from April 19, 1978, to October 19, 1979, a period of 19 months. The rater was Chief Operator Wallace, who signed the rating on July 11, 1978. On July 20, 1978, Sergeant Gracey wrote a memo to Captain Garris wherein he requested a sixty-day extension of Petitioner's probationary period. Sergeant Gracey stated that he did not feel Petitioner had progressed to a level of competency commensurate with his length of service. The memo mentioned areas of deficiency and stated that Petitioner had been counseled regarding them and informed of the extension request. The memo accompanied the initial evaluation. Captain Garris signed the bottom of the memo, indicating his concurrence and stating that both he and Sergeant Gracey disagreed with the rater (wallace). on September 27, 1978, Petitioner signed an Employee Performance Evaluation with an overall rating of conditional. The rating period was from April 13, 1978, to October 13, 1978. Petitioner's performance was rated by Wallace on September 15, 1978, reviewed by Garris, and also initialed by Sergeant Gracey. The rater's comments noted deficiencies in Petitioner's reluctance to apply his knowledge and in always seeking help from others. It also mentioned his slowness. Petitioner checked a box indicating his desire to discuss the rating with his reviewers. Petitioner also spoke with both Captain Garris and Sergeant Gracey about this evaluation. On October 9, 1978, Col. Beach wrote a memo to Petitioner about the conditional evaluation and the Executive Director's approval of the request for extension of probation for three months, from October 13, 1978, through January 12, 1979. This memo also mentioned counseling from Petitioner's immediate supervisor to assist him in improving his performance. Petitioner was the subject of a third evaluation, for the period from September 15, 1978, to November 27, 1978. This rating was by Sergeant Gracey on November 13, 1978. It was reviewed by Captain Carmody who succeeded Captain Garris as the Troop Commander. This evaluation was not signed by Petitioner. Accompanying the third evaluation and referred to therein was correspondence dated December 4, 1978, from Sergeant Gracey constituting the rater's comments. In this memo, Sergeant Gracey recommended Petitioner's termination due to unsatisfactory performance. He indicated a counseling session with Petitioner on or about September 25, 1978, after the initial conditional rating, at which time Petitioner's weaknesses were explained. Sergeant Gracey wrote that he had advised Petitioner that his most serious problem was the inability to obtain information and disseminate it properly and that Petitioner often got information confused, requiring extra supervisory assistance. Sergeant Gracey described counseling for specific errors on October 11, 1978, and November 11, 1978, which mistakes were later repeated. He also mentioned Petitioner's failure to meet deadlines set by Wallace concerning Petitioner's uniform. Sergeant Gracey discussed frequent errors prohibiting Petitioner's assignment for the solitary (midnight) shift and problems with Petitioner's voice quality. Captain Carmody transmitted the second conditional evaluation along with Sergeant Gracey's letter to Col. Beach with the Captain's concurrence. The original submission was dated November 27, 1978, and was re-submitted with all attachments after December 4, 1978. Captain Carmody mentioned therein the counseling Petitioner had received with no appreciable improvement shown. By letter dated December 12, 1978, Petitioner was informed by Col. Beach, with the approval of Chester Blakemore as Executive Director, of his dismissal on December 15, 1978, based on conditional ratings while a probationary employee. The letter stated that since Petitioner lacked permanent status, he had no appeal rights to the Career Service Commission. Petitioner's subsequent attempt at an appeal to the Commission was rejected on that basis. During 1978, Chief Operator Wallace was not a very effective supervisor. For the rating period from September 1, 1977, through September 1, 1978, Wallace was rated conditional. Wallace demonstrated inadequate supervisory techniques, he lacked the respect of his subordinates, he failed to set a good example, and he lacked leadership. In general, Wallace was a weak supervisor. At all times material, Sergeant Gracey was aware of the quality of Wallace's supervision of the radio-teletype operators. During the period from January 1, 1978, to December 31, 1979, the radio-teletype operators employed by the Florida Highway Patrol consisted of 65 male employees and 34 female employees. During the same period there were more females in the applicant pool for radio-teletype operators, both on a statewide basis and in the Miami area. During the period in question there was no pattern of discrimination in favor of female operators or against male operators. When Sergeant Gracey became the Communications Officer on May 1, 1978, he sought to professionalize the operators and procedures. Gracey thought that Chief Operator Wallace was doing a poor job of supervising the operators and for that reason gave Wallace a conditional evaluation. Gracey disagreed with Wallace's initial evaluation of the Petitioner, but Gracey could not change the evaluation because Gracey was not the Petitioner's immediate supervisor. Gracey did, however, write a memo of July 20, 1978, stating his disagreement with Wallace's initial evaluation of the Petitioner, and Gracey also sought an extension of Petitioner's probationary period. Sergeant Gracey counseled with the Petitioner about his job performance on several occasions. In November of 1978 Gracey met with the Petitioner and told him that he (Gracey) was going to recommend that the Petitioner be dismissed. Sergeant Gracey did not direct Chief Operator Wallace to issue the first conditional rating of the Petitioner. Sergeant Gracey did not express a preference for female operators to either Wallace or the Petitioner. The Petitioner was recommended for termination solely because of his failure to achieve a satisfactory level of performance during his probationary period, as extended. The deficiencies in Petitioner's job performance are described in Sergeant Gracey's memo of December 4, 1978. These included the inability to properly disseminate information, that information was often confused, that specific mistakes were counseled but subsequently reoccurred, that the Petitioner failed to adhere to deadlines set by Wallace, and that he required close supervision, could not be left alone in the radio room, and had a nervous and irritating voice quality. Sergeant Gracey recommended the Petitioner's dismissal for the reasons summarized immediately above. The recommendation was approved by Gracey's superiors and the Petitioner was dismissed from his employment with the Florida Highway Patrol effective December 15, 1978.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing the Petition For Relief filed by Robert Hardison, Jr. DONE AND ORDERED this 28th day of August, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1986. COPIES FURNISHED: Mark A. Cullen, Esquire CULLEN 6 SZYMONIAK, P.A. 1030 Lake Avenue Lake Worth, Florida 33460 Judson M. Chapman Assistant General Counsel Department of Highway Safety and Motor vehicles Neil Kirkman Building Tallahassee, Florida 32301 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. In making these rulings and in finding the facts in this case, I have in many instances had to resolve direct conflicts in the testimony of opposing witnesses. In resolving conflicts between the testimony of the Petitioner and the testimony of witnesses called by the Respondent, I have generally accepted the testimony of the latter as more persuasive. In this regard, particular consideration has been given to the fact that some of the Petitioner's testimony is inconsistent and illogical. Consideration has also been given to the Petitioner's obvious interest in the outcome of the case. Yet another significant factor in weighing the conflicting testimony is that the testimony of Respondent's witnesses tended to be logical, corroborated by the documentary evidence, and convincing. Rulings on findings proposed by Petitioner Paragraph 1: Accepted as introductory material, but not as finding of fact. Paragraph 2: Accepted. Paragraph 3: Accepted with additional findings for accuracy. Paragraph 4: Accepted. Paragraphs 5 and 6: Accepted in substance with additional details in the interest of accuracy and clarity. Paragraph 7: Accepted. Paragraphs 8 and 9: Rejected as contrary to the greater weight of the evidence. Paragraph 10: Accepted. Paragraphs 11 and 12: Accepted in substance. Paragraph 13: First sentence of this paragraph rejected as not supported by persuasive competent substantial evidence. Remainder of paragraph rejected as constituting argument. Paragraph 14: Accepted. Paragraph 15: Rejected as contrary to the greater weight of the evidence. Paragraph 16: Rejected as contrary to the greater weight of the evidence. Although the statements the Petitioner attributes to Wallace were not specifically denied (they could not be denied by Wallace because he died several years before the hearing), they are inconsistent with other evidence and it is most unlikely that they were uttered or, if uttered, that they were uttered seriously. Paragraph 17: Consistent with the evidence, but rejected as irrelevant. Paragraph 18: First sentence of this paragraph is accepted. The remainder is rejected as contrary to the greater weight of the evidence. Paragraph 19: Accepted. Paragraph 20: Rejected as incorrect characterization of the evidence. Paragraphs 21 and 22: Consistent with the evidence but rejected as irrelevant. Rulings on findings proposed by Respondent Paragraphs 1, 2, 3, 4, 5, 6, and 7: Accepted. Paragraph 8: Rejected as irrelevant. The testimony about the statement attributed to the deceased Mr. Wallace is irrelevant both because it is unlikely that the statement was uttered, and even if uttered, it was erroneous. Paragraphs 9 and 10: Accepted. Paragraph 11: First sentence rejected because Petitioner's testimony in this regard is not persuasive. Second sentence is accepted in substance. Paragraphs 12, 13, 14, 15, and 16: Accepted. Paragraphs 17 and 18: Consistent with the evidence, but rejected as irrelevant. Paragraph 19: Rejected as unnecessary summary of testimony, most of which testimony is rejected as unpersuasive or as contrary to the greater weight of the evidence. Paragraph 20: Rejected for the most part as constituting a description of part of the evidence rather than a proposed finding. Accepted in part as a finding that Mr. Wallace was not a very effective supervisor at the time material to this case. Paragraphs 21, 22, 23, 24, 25, 26, and 27: Accepted in substance, although as stated these paragraphs constitute descriptions of the testimony rather than proposed findings of fact. It would greatly facilitate the efforts of hearing officers, agency heads, and courts if all proposed findings of fact were written in a form which constituted the ultimate finding sought by the proposing party. Proposed findings which constitute nothing more than summaries of the testimony pro and con are truly not very helpful to th~se who must recommend, decide, and review cases under Section 120.57(1), Florida Statutes.
Findings Of Fact The Parties. The Petitioner, Andrea Bateman, is a female. At all times relevant to this proceeding, Ms. Bateman was 41 or 42 years of age. Ms. Bateman is an attorney. Ms. Bateman failed to prove that she was a member of The Florida Bar during the period of time at issue in this proceeding. The Respondent, the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department"), is an agency of the State of Florida. Ms. Bateman's Employment by the Department. In October of 1990, the Department employed Ms. Bateman as an attorney in the Department's Office of Child Support Enforcement. Ms. Bateman was required to be a member of The Florida Bar. Ms. Bateman's position with the Department was classified as a "Select Exempt Service" position. Pursuant to Chapter 22SE-1.002(5), Florida Administrative Code, and Part V, Chapter 110, Florida Statutes, persons employed in select exempt service positions may be terminated from employment without cause. Ms. Bateman's immediate supervisor was Chriss Walker. Mr. Walker is a Senior Attorney with the Department and, at the time Ms. Bateman was hired, also served as the Assistant Secretary for Child Support Enforcement. As of December 4, 1991, the Assistant Secretary for Child Support Enforcement, and Mr. Walker's immediate supervisor was Anne F. Donovan. At all times relevant to this proceeding, William H. Bentley was an Assistant Deputy Secretary of the Department with supervisory authority over the Department's Assistant Secretary's, including Mr. Walker and Ms. Donovan. "Productivity Enhancement" at the Department. During 1991, the Department was required to evaluate all employment positions at the Department and to reduce those positions in an effort to improve the productivity of the Department. Generally, all positions at the Department and the work performed by the persons filling those positions were considered and decisions were made as to which positions could be eliminated. The Department referred to the elimination of positions as "red-lining". The Department also made efforts to insure that any person affected by the elimination of their position would be placed in another position. Ms. Bateman's attorney position with Child Support Enforcement was identified for elimination. Another attorney position in Child Support Enforcement and Mr. Walker's Senior Attorney position were not identified for elimination. The decision to eliminate one of the attorney positions was based upon conclusion that the administrative duties of the two attorney positions could be handled by a paralegal position and the legal duties could then be handled by one attorney. Efforts to assist Ms. Bateman to find another position were not successful. Ultimately, the Department decided to find a position in which to continue to employ Ms. Bateman rather than to terminate her position and release her. The Department reclassified another vacant position so that Ms. Bateman could continue to be employed as an attorney for Child Support Enforcement. Mr. Walker was directed to create an attorney position for Ms. Bateman by the Assistant Secretary for Human Services. This decision was made during the early Fall of 1991. The Department's decision to continue to employ Ms. Bateman was based in part on the Department's concern about terminating an employee of the Department. The evidence failed to prove that the Department acted unreasonably with regard to the red-lining of Ms. Bateman's position. Ms. Bateman's Performance. During the year after Ms. Bateman began her employment with the Department, Mr. Walker, Ms. Bateman's supervisor, began to develop concerns about the adequacy of her work product. Ms. Bateman also began to evidence behavior which was not acceptable for an attorney of the Department. As a result of Ms. Bateman's odd behavior, Mr. Walker became concerned about Ms. Bateman's mental well-being. Mr. Walker memorialized his concerns about Ms. Bateman in a memorandum to Mr. Bentley dated December 2, 1991. The memorandum was revised December 19, 1991 to eliminate references to a counselor that Ms. Bateman had informed Mr. Walker she was seeing. Ms. Bateman's work deteriorated to an extent which necessitated other employees carrying out some of her duties. Among the difficulties experienced with Ms. Bateman which formed a reasonable basis for terminating her employment were the following: Ms. Bateman had difficulty communicating with other employees and her supervisor. As an attorney, Ms. Bateman was required to communicate orally and in writing. She was unable to do so in an adequate manner. Ms. Bateman failed to demonstrate good judgment and trustworthiness and, therefore, her supervisors were unable to rely upon her judgment as an attorney of the Department. Ms. Bateman's appearance was unacceptable for an employee of the Department who was required to meet and communicate with the public. Ms. Bateman's hair was unkempt and dirty, her clothes were often soiled and wrinkled, she failed to brush her teeth and she appeared not to be bathing based upon her appearance and her strong body odor. Although required to do so by Department policy, Ms. Bateman refused to give her supervisor a permanent home address or phone number. On one occasion Ms. Bateman was found asleep in the offices of the Department at night and on one occasion she was found asleep during working hours. Based upon the inadequacy of Ms. Bateman's performance, the Department had a reasonable basis for terminating Ms. Bateman's employment. Mr. Walker's Evaluation of Ms. Bateman. On December 18, 1991, Mr. Walker presented Ms. Bateman with a Professional Employee Performance Appraisal form he had completed on her performance. The Appraisal was reviewed by Ms. Bateman and signed by her on December 18, 1991. Mr. Walker gave Ms. Bateman's performance a rating of "effective" on the Appraisal. Of the factors evaluated on the Appraisal, Mr. Walker judged Ms. Bateman's performance as "excellent" on one factor, "effective" on eleven factors and "needs improvement" on nine factors. Mr. Walker gave Ms. Bateman's performance an "effective" rating despite his conclusion that her work product was not acceptable and despite his concerns about her inappropriate behavior. He did so because he had recently been directed to create a position to keep Ms. Bateman as an employee of the Department and in an effort to avoid litigation over Ms. Bateman's termination. Mr. Walker did not believe that his supervisors wanted to avoid any difficulties concerning Ms. Bateman employment. Mr. Walker failed to follow Department procedure in presenting the Appraisal to Ms. Bateman. The Appraisal was required to be reviewed and approved by Mr. Walker's immediate supervisor, Ms. Donovan, before it was given to Ms. Bateman. Mr. Walker, contrary to Department policy, presented the Appraisal to Ms. Bateman before Ms. Donovan had seen and approved it. Ms. Donovan was aware of the problems with Ms. Bateman's performance and would not have approved an "effective" rating. Upon receiving the Appraisal, Ms. Donovan discussed the Appraisal with Mr. Walker and rejected it, as it was her right to do. Ms. Donovan, consistent with Department policy, specified that Ms. Bateman would be evaluated again in sixty days. The Department's Request that Ms. Bateman Undergo a Psychological Evaluation. Although the Department had a reasonable basis for terminating Ms. Bateman's employment by the end of 1991 and in early 1992, the Department decided to attempt to discover the cause of Ms. Bateman's decline in performance and the onset of her odd behavior rather than terminate her employment. The Department made this decision in an effort to determine what assistance Ms. Bateman might need. Ultimately, the Department was attempting to determine what work, if any, Ms. Bateman was capable of performing. The Department's decision was based upon a number of incidents involving Ms. Bateman. Those incidents are included in Mr. Walker's Chronology of December 2, 1991 and his Revised Chronology of December 19, 1991 and are hereby incorporated herein. Although not all the incidents described in the chronologies were proved during the final hearing to have occurred, the Department's consideration of the incidents reported by Mr. Walker was reasonable. Due to the Department's concerns about Ms. Bateman, the Department requested that Ms. Bateman voluntarily participate in the Department's employee assistance program. Ms. Bateman refused. In order to determine what could be done to help Ms. Bateman, and to determine what duties and responsibilities she was capable of performing, the Department requested that Ms. Bateman undergo a psychological, or other, evaluation. Ms. Bateman refused. After discussing the matter with Ms. Bateman and legal counsel she had retained, the Department notified Ms. Bateman that her continued employment was conditioned upon her undergoing a psychological evaluation or some other evaluation which would allow the Department to determine what work she was capable of performing. In a letter of February 12, 1992, Ms. Bateman, through her representative, was informed of the following: As you also know, we are attempting to help Andrea address a problem which we believe exists and has been well documented over the past 16 months. In return, we need Andrea's help and cooperation. If Andrea chooses to agree to our request that she undergo a psychiatric evaluation and authorize the release to us of the psychiatrist's prognosis, diagnosis and recommendation for treatment, we will be glad to schedule an appointment for her with a psychiatrist, and will pay for such an evaluation. We will use the evaluation to determine an appropriate course of action. Ms. Bateman's Termination from Employment. Ms. Bateman continued to refuse to undergo any evaluation or to suggest any alternative course of action. Consequently, based upon Ms. Bateman's inadequate and unacceptable work performance, the Department terminated Ms. Bateman's employment with the Department on or about February 13, 1992. Ms. Bateman's termination from employment was effective February 28, 1992. Ms. Bateman was terminated from employment due to the fact that she was not adequately performing her job and she refused to cooperate with the Department to find out what could be done to help her become an effective employee. Ms. Bateman failed to prove that the Department's reason for terminating her employment was a pretext. Ms. Bateman's Charge of Discrimination. On or about September 15, 1992, Ms. Bateman filed a Charge of Discrimination against the Department with the Florida Commission on Human Relations. Ms. Bateman alleged that she had been discriminated against on the basis of sex and a perceived handicap. On February 10, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " Ms. Bateman filed a Request for Redetermination on March 4, 1992. On April 12, 1993, the Commission issued a "Redetermination: No Cause" affirming its decision. On May 12, 1993, Ms. Bateman filed a Petition for Relief seeking a formal administrative hearing. In the petition Ms. Bateman alleged that the Department had discriminated against her on the basis of sex, a perceived handicap and, for the first time, age. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Ms. Bateman. Alleged Sex Discrimination. Ms. Bateman failed to prove that any action of the Department was based upon Ms. Bateman's sex: she was not held to any standard or requirement based upon her sex, she was not terminated because of her sex and the Department's efforts to determine the cause of Ms. Bateman's problems was not based upon her sex. Ms. Bateman failed to prove that any Department policy or standard had a disparate impact on female employees. Ms. Bateman failed to prove that she was replaced by a male attorney. Ms. Bateman's grooming habits were discussed with her. Some of those discussions concerned the wearing of panty hose and her makeup. It must be inferred that such discussions were not carried on with male employees. The evidence, however, failed to prove that Ms. Bateman's termination was based upon these matters. Although grooming played a part in the decision to terminate Ms. Bateman's employment, it was grooming related to basic cleanliness and neat appearance required of all employees and not just female employees. Ms. Bateman failed to prove that the Department discriminated against her on the basis of her sex, female. Alleged Age Discrimination. At the time that Ms. Bateman was hired she was 41 years of age, and at the time she was terminated she was 42 years of age. Ms. Bateman failed to prove that age played any part in her treatment by the Department. This finding is supported, in part, by the fact that the difference between Ms. Bateman's age when she was hired and when she was terminated was only one year. Ms. Bateman failed to prove that she was replaced by a younger person. Ms. Bateman failed to prove that the persons who made the decision to terminate her employment were aware of her age. Ms. Bateman failed to prove that the Department discriminated against her on the basis of her age. Alleged Perceived Handicap. The Department did believe that Ms. Bateman was suffering from some mental problem. This belief was based upon Ms. Bateman's odd behavior and a concern that Ms. Bateman was "homeless". It was for this reason that the Department requested that Ms. Bateman undergo a psychological evaluation. Ms. Bateman failed to prove, however, that the Department treated her differently from the manner other employees of the Department were treated under similar circumstances. Ms. Bateman also failed to prove that the Department's request that she undergo a psychological or other evaluation to determine how to assist her to meet the requirements of her employment was made for a discriminatory reason. Under the circumstances, the Department's request of Ms. Bateman was reasonable. Ms. Bateman also failed to prove that she was terminated from employment because of any perceived handicap. The evidence proved that she was in fact terminated from employment due to her inability to satisfactorily carry out her job responsibilities. Ms. Bateman also failed to allege or prove that she has a handicap based upon her mental condition. Ms. Bateman also failed to prove that the Department discriminated against her on the basis of a handicap or a perceived handicap.
Findings Of Fact Respondent, Rafael Daman, is an optician, having been issued License No. 0001712. (Petitioner's Exhibit 1) Respondent filed an apprentice application with the Board of Opticianry. (Petitioner's Exhibit 1) As part of that application, a form entitled "Apprentice Application to be Completed by Employer" was submitted to the Board of Opticianry. (Petitioner's Exhibit 1) This form is signed and sworn to by Ramon del Busto, M.D., as supervisor of Respondent. (Petitioner's Exhibit 1) Dr. del Busto acknowledged his signature on this document. (Deposition 7) Additionally, Ramon del Busto, M.D., submitted an Affidavit By Sponsor, and swore that he was the sponsor of the Respondent. (petitioner's Exhibit 1, Deposition 5) Respondent was not employed by Ramon del Busto, M.D. (Transcript - 22, Deposition 7, 8, 9) However, Respondent worked as an unpaid employee or student of Dr. del Busto (Transcript -48, Deposition 8, 9) The Apprentice Application to be Completed by Employer was actually completed by the Respondent and a secretary employed by G&B Optical. (Transcript - 36, 38) Ramon del Busto, M.D., signed the Apprentice Application to be Completed by Employer, but had no personal knowledge of the accuracy of the information contained therein. (Transcript - 24, 36, 38; Deposition - 7, 8, 9) Ramon del Busto, M.D., supervised the Respondent when they were both at G&B Optical, but Dr. del Busto was present at G&B Optical only on Tuesdays, Thursdays, and others times as necessary. Transcript - 22, 35, 36, 37, 40, 41; Deposition - 5, 9) However, Respondent was always present when Dr. del Busto was in this office. (Deposition - 9) Dr. del Busto did not remain on the premises while all the work of Respondent was being accomplished. (Transcript - 46)
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty of procuring an optician's license by misrepresentation in violation of Subsection 484.015(1)(a) , F.S., and placing Respondent on probation under the supervision of another optician as provided by Subsection 484.015(2)(e), F.S., until Respondent demonstrates compliance with Section 484.007, F.S. DONE and ORDERED this 23rd day of August, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1982. COPIES FURNISHED: Diane K. Kiesling, Esquire Davis, Kiesling & McCall 517 East College Avenue Tallahassee. Florida 32302 Mr. Rafael Daman 5426 N.W. 169th Street Mr. Samuel R. Shorstein Miami, Florida Secretary Department of Professional Mr. Fred Varn, Executive Director Regulation Board of Dispensing Opticians 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTICIANRY, Petitioner, vs. CASE NO. 82-337 LIC. NO. 0001712 RAFAEL DAMAN, Respondent. /
The Issue The issue is whether Respondent unlawfully determined that the proper way to return Petitioner to suitable gainful employment is through direct job placement, rather than job retraining.
Findings Of Fact Petitioner was born on October 3, 1958. She has been a licensed practical nurse in Florida since 1983. On April 7, 1998, while working as a licensed practical nurse, Petitioner slipped on a wet floor at work and sustained injuries to her right elbow, leg, and back. On August 27, 1998, while in transit to a workers' compensation clinic, Petitioner was involved in an automobile accident in which she sustained a cervical strain and sprain. On October 28, 1998, Petitioner was sitting at work, where she had been assigned light duty, when her chair rolled out from under her, causing her to fall and sustain injuries to her back and neck. Petitioner has not worked since sustaining these last injuries. A physician determined that Petitioner reached maximum medical improvement on April 10, 2000, at which time she had a 23 percent permanent impairment to the body as a whole. Among the physician's diagnoses were concussion with memory disturbances and cognitive difficulties. The physician determined that nearly 60 percent of Petitioner's permanent disability was attributable to "cerebral dysfunction." Among the physician's restrictions were avoiding lifting more than 20 pounds and pushing or pulling and limiting walking, standing, bending, and kneeling. Petitioner first contacted Respondent for job retraining services on January 10, 2001. At the conclusion of an orientation sponsored by Respondent on January 24, 2001, Petitioner signed a request for screening. After examining the file, the Respondent's Vocational Rehabilitation Consultant determined that Petitioner could find suitable gainful employment through direct job placement, rather than job retraining. In particular, the consultant relied on Petitioner's transferable skills and work history. After factoring in her restrictions, the consultant determined that Petitioner could still earn over half of what she had been earning as a licensed practical nurse prior to her first accident. Petitioner complains of delays in Respondent's processing of her request for job retraining services. However, no such delays existed in this case. Nor can Petitioner legitimately seek reimbursement for accounting courses that she began a mere five days after signing the request for screening. Obviously, she did not pursue this alternative after exhausting her options with Respondent and the services that it offers. A transferable skills analysis reveals that Petitioner could obtain suitable gainful employment by direct job placement in various nursing fields, and possibly also certain accounting fields. Clearly, the better approach to the vocational rehabilitation of Petitioner is direct job placement. If Petitioner is able to find and keep suitable gainful employment, she will have obviated the necessity of considering the extent to which her cognitive difficulties may restrict effective job retraining.
Recommendation It is RECOMMENDED that the Division of Workers' Compensation enter a final order dismissing Petitioner's request for job retraining services. DONE AND ENTERED this 11th day of February, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 11th day of February, 2002. COPIES FURNISHED: Mary B. Hooks, Secretary Department of Labor and Employment Security The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Elizabeth Teegen, General Counsel Department of Labor and Employment Security The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Silvia Valdes 4336 Southwest 48th Court Fort Lauderdale, Florida 33314 Elana J. Jones, Senior Attorney Department of Labor and Employment Security 2012 Capital Circle Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189
Findings Of Fact At all times relevant hereto, Respondent Sun Personnel Services, Inc., was a licensed private employment agency, and Denise Farrow (formerly Denise Verrez) and Deborah Crawford Yates were licensed employees of that agency. Farrow had a client whom she was trying to place in the motel or motel business. In conjunction with such a placement, on October 2, 1979, she telephoned Marion Chadwick, Director of Marketing at the Sheraton-Tampa Motor Inns, to inquire regarding possible employment positions at the Sheraton. Chadwick advised Farrow that she was looking for someone to act as a convention coordinator and that an applicant for that position would also be required to type. She further advised Farrow that she was willing to train the person she hired, that the position paid $3.50 per hour, and that advancement in the position was possible. The position was not immediately available since Chadwick did not wish her current employee occupying the position to know that she was interviewing a replacement. In this same telephone conversation, Farrow scheduled an appointment for her client with Chadwick. Later that same day Farrow called Chadwick to cancel the interview since her client required a higher salary than Chadwick could pay. Farrow recorded the information she had obtained from Chadwick on one of Respondent's Job Order forms, thereby making available to other employees of the Respondent the information she had obtained from Chadwick. The only information she placed on that form regarding specific job duties were the words "convention coordination" and the required typing speed of "50+" words per minute. Shortly thereafter, Farrow's employment with the Respondent was terminated. As a result of an advertisement in the newspaper, Petitioner Marilyn Kelley went to Respondent's office on October 15, 1979, and was interviewed by Deborah Crawford Yates. Kelley entered into an employment agreement with Respondent, agreeing to pay a placement fee if she accepted a position of employment through the efforts of Respondent. Kelley indicated on the agreement that she was not being considered for employment at that time except for a position involving sales on the telephone of yellow pages. Kelley further advised that although she was a recent college graduate, her employment experience was that of a secretary and that her secretarial duties included supervising a typist and three part-time assistants, and coordinating activities in her boss's absence. She indicated she was seeking a position in the public relations field or as a travel coordinator. During the following weeks, Yates sent Kelley on interviews to Data Processing Services, National Cash Register, General Electric Credit Corporation, Southern Data, and Howard Johnson's. She also discussed with Kelley possible positions at Lanier and at Dobbs House. On November 6, 1979, Yates called Chadwick to inquire whether the position as convention coordinator was still available, and upon finding that it was, she scheduled an interview for Kelley on that same date. Prior to her interview, Yates had Kelley come to her office at which time she explained to Kelley the information she had regarding the position and specifically told Kelley that the ability to type more than fifty words per minute was required. She sent Kelley to the interview with Chadwick with an interview card which indicated the position being applied for was that of convention coordinator. On the following morning, Yates called Chadwick to inquire as to the result of the interview. Chadwick advised Yates that she was impressed with Kelley and would make a decision regarding employment later that week. On November 9, Chadwick called Yates and advised that she wanted to schedule a second interview with Kelley on that day. Yates contacted Kelley and had her come to the office prior to her second interview to pick up another interview card. While there, Kelley asked Yates for specific information regarding the job, and Yates advised Kelley to ask Chadwick for any additional information which she wanted regarding the job or benefits. Yates waited at her office, and when Kelley returned, Kelley advised that she had accepted the position at the Sheraton. Yates called Chadwick to confirm that Kelley had been hired by Chadwick as a convention coordinator and thereafter filled in the placement Data portion of Respondent's employment agreement. Kelley advised Yates that she would not begin working until the following Tuesday since Chadwick was going to use Monday to fire the person occupying the position. On the day of her first interview with Chadwick, Kelley completed the Sheraton's application for employment on which form she indicated that she was seeking a position as a convention coordinator. After her second interview, Chadwick completed the Sheraton's portion of that form, indicating that Kelley had been hired as a secretary in the sales department. Kelley did not see that portion of the employment application indicating she had been hired in a position with a title different than that which she sought, nor did any employee at Sun Personnel Services, Inc., see that portion of the form filled in by Chadwick. By the time of the final hearing in this cause, Kelley had forgotten that she had two interviews with Chadwick, that one week had transpired between her first interview and the time she started employment, and had also forgotten most of the other interviews that Yates had set up for her. She did remember that she never discussed with Chadwick her specific job duties, her salary, or her possible salary advancement. She does remember that Yates discussed with her the convention coordinator job and its responsibilities although Yates seldom discusses job details with an applicant since the applicant and the prospective employer would have more information regarding that than she. Chadwick not only told Kelley that the actual position required typing, filing, and general office work, she in fact gave Kelley a typing test. Kelley did understand that she was being placed in a position wherein she would be an assistant to Chadwick and should eventually be able to cover some of Chadwick's duties, particularly when Chadwick was not in the office. Apparently, Chadwick assumed Kelley was applying for a primarily secretarial position, and Kelley assumed that she was applying for primarily a convention coordinator position, which confusion was both spawned and continued by Kelley's failure to ask her prospective employer any questions regarding the soon-to-be available employment position. In reality, Chadwick's position as Director of Marketing encompassed those duties typically performed by a convention coordinator, and Kelley's gradual coverage of Chadwick's duties would put her in a position where she functioned as both a convention coordinator and as a secretary in varying degrees. During the week between Kelley's first interview and her actual employment at the Sheraton, nothing was either said or done by either Chadwick or Kelley that would put the employees of Respondent on notice that there was a discrepancy between Chadwick's overly enthusiastic job title for the position and Kelley's total failure to understand the purpose of a job interview. Kelley commenced her employment at the Sheraton on November 13, 1979, and spent the day typing, filing, and answering telephones. At the end of her first day, she asked a secretary at the Sheraton if her duties would change from what they were on that day and was advised that they would not. The following morning, she asked Chadwick what her job duties were and discovered, for the first time, that she was hired as a secretary. Kelley then called Yates to complain, and Yates advised her to come to Respondent's office so they could discuss the matter and attempt to find a solution. Kelley called Yates later that day and said that she had already quit her job at the Sheraton. On the following day Kelley met with Yates and Charles E. DeCroes, the president of the Respondent. DeCroes explained to Kelley that the Respondent had fulfilled its contractual obligation by placing her in a position that she had accepted, that the Respondent owed Kelley no further assistance, that the Respondent was entitled to retain the placement fee of $761.63 which Kelley had paid for the position, but that if Yates felt an obligation to attempt to find other employment for Kelley, then Yates was free to do so. Accordingly, DeCroes and Kelley signed an agreement amending their employment agreement whereby Respondent agreed to replace Kelley in a position at no additional fee. Thereafter, Yates arranged an interview for Kelley at the Holiday Inn and scheduled three interviews for Kelley with Lanier. Kelley failed to keep any of the appointments arranged by Yates at Lanier. In the meantime, Kelley advised Yates that although she was in need of employment, she felt her chances of obtaining a suitable position would be increased if she first had the braces on her teeth removed. Yates then attempted to place Kelley in a part-time sales position until after Christmas so that Kelley could realize some income to help her through her financial problems, so that Kelley would have free time to interview for a position desirable to her, and so that Kelley would have time to have her braces removed. Kelley rejected the sales positions which she felt beneath her dignity as a college graduate and filed a formal complaint against the Respondent with the Division of Licensing on December 4, 1979, although Yates continued to attempt to place her subsequent to that date. Upon receipt of Kelley's written complaint, the Division of Licensing assigned Frank Calhoun, Regional Supervisor for the Department of State, to conduct an investigation. As a result of his investigation, Dennis L. English, Chief of the Bureau of Regulation & Enforcement, directed a letter to DeCroes, Respondent's President, setting forth the Division's conclusion that the position at the Sheraton Inn was misrepresented to Kelley in violation of Chapter 449.02(1)(d), Florida Statutes, setting forth the Division's determination that a full refund of Kelley's placement fee of $761.63 should be made, and stating that if the refund was not made, the Division of Licensing might take further action in accordance with Chapter 449.02(1), Florida Statutes. Chapter 449, Florida Statutes, which gave to the Department of State regulatory authority over private employment agencies was repealed by the Legislature effective July 1, 1980.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED THAT: A final order be entered denying the relief sought by the Petitioners herein, dismissing the complaint filed by Petitioner Marilyn Kelley, and authorizing Respondent, Sun Personnel Services, Inc., to retain the placement fee earned by it. RECOMMENDED this 19th day of January, 1981, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 1981. COPIES FURNISHED: James V. Antista, Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Cary R. Singletary, Esquire Yanger and Singletary, P.A. Exchange National Bank Building Suite 1625, 610 Florida Avenue Tampa, Florida 33602 The Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 =================================================================
The Issue The issues are whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her disability and by retaliating against her, and if so, what, if any, relief is Petitioner entitled to receive.
Findings Of Fact Petitioner is Respondent's former employee who began working for Respondent in 1993. Petitioner was most recently assigned to the warehouse in eastern Jacksonville, Florida, where she worked from October 2000 until September 2007. When she first transferred to the warehouse, Petitioner worked as the Return-to-Vendor (“RTV”) Clerk. As the RTV Clerk, Petitioner was responsible for shipping out returned merchandise to vendors and shipping salvaged items to the salvage companies. In 2004, Petitioner transferred to the Receiving Clerk position. Petitioner remained in the Receiving Clerk position until September 19, 2007, when she began a medical leave of absence. Jason Zook became the manager of the warehouse in May 2005. As the Warehouse Manager, Mr. Zook is responsible for overseeing the entire warehouse, including the Receiving Department. Mr. Zook is familiar with the requirements of the Receiving Clerk position because he previously worked in that position at another warehouse. Michael Sinanian is one of the Assistant Warehouse Managers. Mr. Sinanian transferred to the warehouse as an Assistant Warehouse Manager in 2002. Prior to becoming an Assistant Warehouse Manager, Mr. Sinanian worked in the Receiving Department at other warehouses for a little over two and a half years. During that time, Mr. Sinanian worked as a Receiving Manager, a Receiving Supervisor, an RTV Clerk, and a Receiving Clerk. The Receiving Department is located at the back of the warehouse. The warehouse is approximately the length of a football field from front to back. At all times material here, the Receiving Department at the warehouse had four positions: Receiving Manager, Receiving Clerk, Receiving Secretary, and Forklift Driver. In 2007, Deborah Lenox was the Receiving Manager, an employee named Sonya was the Receiving Secretary, Petitioner was the Receiving Clerk, and an employee named Valdean was the Forklift Driver. The Receiving Secretary and the Receiving Clerk have different job responsibilities. The Receiving Secretary is responsible for answering the phone, making vendor appointments, logging the appointments, dealing with paperwork, creating and printing out receiving tags, and logging shipment information into Respondent's computer system. The Receiving Clerk is responsible for counting and checking merchandise against freight bills, opening boxes and cartons with a box knife to verify and count the product, stacking bed-loaded merchandise or merchandise from damaged or unacceptable pallets onto approved pallets, separating mixed items from pallets for checking, wrapping pallets with plastic wrap in preparation for movement onto the warehouse floor, loading merchandise and emptying pallets onto trucks using a manual pallet jack or hand cart, and cleaning and clearing the receiving dock of any debris and trip hazards. Each of these essential job functions requires standing, which is consistent with the job analysis for this position. Respondent has written job analyses, which identify the essential functions of each job and are used to assist the Company, the employee, and the employee’s doctor in determining if the employee can perform the essential functions of his/her job with or without reasonable accommodations. Respondent does not remove or eliminate essential job functions, but will sometimes modify the manner in which the function is to be completed. Respondent will not displace another employee from his position in order to accommodate a disabled employee. A pallet of merchandise can be as much as 60 inches high. A typical pallet coming in the warehouse is a 60-inch cube. An electric pallet jack is a double pallet jack and is approximately 18 feet long. In order to operate an electric pallet jack, an employee has to stand and lean in the direction that she wants the machine to go and turn the handle. There is no seat on an electric pallet jack. Petitioner’s original foot condition was due to osteomyelitis, an infection of the bone. Between 1998 and 1999, Petitioner had four surgeries to address her foot condition. A surgeon placed an artificial plastic bone in Petitioner's foot in July 1999. In September 1999, Petitioner returned to work with medical restrictions that prevented her from standing for long periods of time and from lifting more than 25 or 35 pounds. At some point thereafter, while Petitioner was working at one of Respondent’s warehouses in Memphis, Tennessee, her podiatrist changed her restrictions to add limitations against cashiering, stocking, and inventory. Petitioner understood that the reason for these additional restrictions was that she was not able to do these tasks to the extent they required her to stand for a prolonged period of time. Petitioner’s medical notes stated that she was able to use her discretion as to her limitations, which Petitioner understood to mean that she could sit and rest her foot as needed. Each of these restrictions was permanent. Mr. Zook, Ms. Lenox, and Mr. Sinanian were all aware that Petitioner had medical restrictions relating to her foot condition that prevented her from standing for prolonged periods of time. They were aware that Respondent had agreed to allow Petitioner to sit down when she felt it was necessary, without first having to ask for permission. Despite her restrictions, Petitioner is able to ride her bike, go the grocery store, and work out at the gym. During the relevant time period, Petitioner worked out at the gym approximately four days a week. Her work-out routine included warming up on an elliptical machine for approximately 15-to-20 minutes or walking approximately one mile on the treadmill and using a leg press machine. Respondent performs inventory twice a year. It takes an inventory at all warehouses in February and August. The inventory process begins on Friday night and continues until the following Wednesday. The back-stock is counted on Friday night after closing and the stock on the sales floor is counted on Saturday night after closing. The post- audit process begins on Sunday morning before the warehouse opens to its members and continues on Monday morning. The Saturday night inventory count is more labor- intensive and is considered “all hands on deck.” The Saturday night inventory requires the staff to count approximately $9 million worth of inventory during roughly a five-hour period. On Saturday, Respondent assigns two employees to count the items in each aisle at the same time. The employees double- check each other’s counts. If there is a discrepancy between the employees’ counts, both will recount the items until their counts agree. If there are discrepancies after the Saturday counts between the physical counts and the computer records, the items are recounted during the Sunday post-audit. If variances still remain after the three counts, then the variances are researched during the Monday post-audit. For the Monday post-audit, Respondent only focuses on the larger-quantity, higher-dollar discrepancies. When researching the discrepancies from the variance reports, employees have to perform the following tasks: (a) count items on the floor or up in the steel racks; (b) verify bin tags; (c) research billing, shipment, and return-to-vendor records on Respondent’s computer system; and (d) check the receiving paperwork in an effort to locate and correct the source of the discrepancy. Some items will have been sold between the Saturday night count and the Monday post-audit process. Therefore, the Monday post-audit team also may have to research the sales history on a computer and back out the Sunday sales from the total count. The variance reports reflect the aisle where the item is located, the item count from the inventory count, the computer system count, and the amount of the variance. Employees are typically assigned to work in one department of the warehouse, which may require them to walk from aisle to aisle within that department. In order to assist the Monday post-audit team, the team is permitted to use computers throughout the warehouse. Employees can sit down at the computers when they are researching the variances in item counts. It can take anywhere from 15-to-30 minutes to research one item. The duties involved in the inventory post-audit process are similar to the job duties of the Receiving Clerk position. However, the post-audit does not require as much standing and is less physically demanding because the focus during post-audit is on researching the sources of the variances, rather than simply receiving, counting, and checking- in shipments. In selecting employees to work on the Monday post- audit team, Respondent prefers to schedule people who are familiar with Respondent’s return-to-vendor and receiving processes. Respondent also selects employees who are knowledgeable about Respondent’s AS-400 computer system. In February 2007, Petitioner worked the Saturday night inventory. During that time, she counted the bread then worked at the control desk. Petitioner's job at the control desk was to key-in inventory count sheets into Respondent’s computer system. Petitioner did not view this assignment as inconsistent with her restrictions against working inventory because she was seated for most of the time. In August 2007, Mr. Sinanian was responsible for the post-audit processes, including the scheduling of employees to work post-audit. Due to the requirements of post-audit, Mr. Sinanian selected people who, like Petitioner, were familiar with Respondent’s AS-400 computer system. Approximately 20 employees worked during the Monday post-audit. Mr. Sinanian and Ms. Lenox knew that Petitioner could use her discretion to sit down whenever she felt it was necessary. They had no reason to believe that the post-audit process was inconsistent with Petitioner’s medical restrictions. Therefore, she was selected to work the Monday post-audit. On Saturday, August 25, 2007, Petitioner was again assigned to count bread and then assist with keying inventory count sheets into the system. Petitioner was able to sit down while she was working at the control desk keying the inventory count sheets. Petitioner did not consider her Saturday assignments inconsistent with her restrictions. Petitioner did not work or perform any inventory or post-audit, inventory-related duties on Sunday, August 26, 2007. On Monday, August 27, 2007, the post-audit process lasted from approximately 5:00 a.m. until 10:00 a.m. Petitioner’s shift began at 5:00 a.m. After Petitioner clocked in, she reported to the control desk, where Mr. Sinanian assigned her to check variances for approximately 6 items in Department 14, the sundries department. The sundries department runs along the back right side of the building near the Receiving Department. The sundries department includes items like paper towels, cleaning chemicals, laundry detergent, water, juice, and soda. Petitioner was assigned to research variances between the physical counts and the computer system’s counts for Swiffers, dog bones, dog beds, water, soda, and paper towels. During the August 2007 post-audit process there were at least 18 computers for the employees to use. The computers were located in the Receiving Department, the front office, at the membership desk, and at the podium on the front-end. Employees were free to use any available computer and were able to sit down at most of the computers while researching items. Petitioner never had to wait to use a computer. Petitioner went to whichever computer was closest to her at the time to verify items. After she finished researching all of the items on her variance sheet, Petitioner, like all of the other employees who worked post-audit, met with Mr. Sinanian at the control desk at the front of the store to explain her findings. There was a chair at the control desk for Petitioner to sit in while meeting with Sinanian. The process of meeting with Mr. Sinanian took anywhere from 10-to-30 minutes. Other than discussing her assignment for the day and the post-audit research results, Mr. Sinanian did not have any other discussions with Petitioner on August 27, 2007. Petitioner was able to use her discretion to sit down during post-audit. She was never told that she could not sit down nor was she reprimanded for sitting down. Petitioner admits that she used her discretion to sit down at least twice during post-audit and to kneel down a couple of times. Petitioner also took a 15-minute break during the post-audit process, during which she sat down. After Petitioner finished working post-audit at approximately 10:00 a.m. on August 27, 2007, she returned to the Receiving Department, but left shortly thereafter to take her lunch break. Petitioner’s lunch break lasted for approximately a half-hour. Petitioner walked from the back of the warehouse, where the Receiving Department is located, to the front of the warehouse, where the break room is located, to take her lunch and walked all the way back after the end of her break to return to work. After returning from lunch, Petitioner began working on the UPS shipment. It was a busy day in the Receiving Department, as the UPS shipment had arrived with approximately 72 packages stacked on one pallet that was taller than Petitioner. Because Petitioner felt unable to stand, she could not check in the entire UPS shipment. As a result, Petitioner took it upon herself to take the UPS invoices and input the invoices into Respondent’s computer system, which is one of the Receiving Secretary’s job responsibilities. At some point thereafter, Ms. Lenox asked Petitioner why she was logging in items into Respondent’s computer system, rather than receiving the UPS shipment. Petitioner told Ms. Lenox that her foot was hurting and that she could not stand. Ms. Lenox told Petitioner to take her break and, when she returned from break, they would see how Petitioner’s foot was feeling. Petitioner walked to the front of the warehouse, where she took her second 15-minute break in the break room. Petitioner was able to sit with her foot up during her break. After returning from her break, Petitioner reported to the Receiving Department and told Ms. Lenox that she did not feel she could not stand any longer that day. Petitioner asked if there was something she could do other than her receiving duties. Ms. Lenox told Petitioner that if she could not stand, then Ms. Lenox did not have any more work for her and told her that she should go home. Accordingly, Petitioner went home approximately one hour before her shift ended. Petitioner reported to work the following day, Tuesday, August 28, 2007, at 5:00 a.m. and worked her entire shift. At some point after her shift started that day, Petitioner told Mr. Sinanian that Ms. Lenox would not allow her to take a break during post-audit. Petitioner also told Mr. Sinanian that her foot was swollen and hurting. She took off her shoe to show him her foot. Mr. Sinanian did not see anything unusual about Petitioner’s foot. He did not see any swelling, graying, or a red bump. From the conversation with Petitioner, Mr. Sinanian did not understand that her foot was hurting due to a new injury. Therefore, Mr. Sinanian did not fill out an incident report. Petitioner’s and Mr. Sinanian’s conversation lasted approximately two minutes. At some point after speaking with Petitioner, Mr. Sinanian asked Ms. Lenox if, at any point during post-audit, she told Petitioner that Petitioner could not take a break. Ms. Lenox denied Petitioner’s allegation. Mr. Sinanian had no reason to doubt Ms. Lenox. Petitioner continued to work her job as Receiving Clerk after August 28, 2007. She continued to use her discretion to rest her foot on an as-needed basis. When possible she would sit in a chair to work. She used the electric pallet, letting her foot hang off the platform. Petitioner waited three weeks to seek medical treatment from her podiatrist in West Palm Beach, Florida. She finally saw her doctor on Monday, September 17, 2007. At her appointment, Petitioner’s podiatrist gave her a note that stated, “DUE TO ARTHRITIC CONDITION, CYNTHIA IS UNABLE TO STAND FOR LONG PERIODS OF TIME AND IT IS MEDICALLY NECESSARY FOR HER TO BE OFF HER FOOT FOR 3 WEEKS. DUE TO THE FLARE UP.” Petitioner understood that her podiatrist wanted her to stay off her foot for a few weeks and to be in a sedentary position during that time. Petitioner also understood that these temporary restrictions were more limiting than her prior permanent restrictions. Petitioner reported to work on September 18, 2007, and told Ms. Lenox that her doctor did not want her standing. Ms. Lenox told Petitioner that they would need to speak with Mr. Zook about her restrictions when he arrived at work that day. In the meantime, Ms. Lenox permitted Petitioner to sit down and work on summary sheets. After returning from lunch, Petitioner met with Mr. Zook about her new temporary restrictions. The meeting lasted about an hour or more. Based on Mr. Zook’s prior experience working as a Receiving Clerk, his understanding of the essential job functions of that position, and Petitioner’s podiatrist’s statement that she needed to be off her foot for three weeks, he did not believe that Petitioner could perform the essential functions of that position without violating her doctor’s restrictions. Mr. Zook, nevertheless, asked Petitioner how she thought she could do her job from a seated position. Petitioner did not have any suggestions. There were no available sedentary positions in the warehouse at that time that could have accommodated Petitioner’s no-standing restrictions. As a result, Mr. Zook explained to Petitioner that based on her doctor’s restrictions, which required her to be in a sedentary position, he did not have any work for her at that time. Mr. Zook did not believe that Petitioner’s temporary no-standing restrictions prevented her from working in any capacity. Mr. Zook explained to Petitioner that she could take a leave of absence and return to work after her temporary restrictions expired. Because Petitioner’s restrictions were temporary, Mr. Zook did not contact Respondent’s Human Resources Department to schedule a job accommodation meeting. Despite Mr. Zook’s statement, Petitioner returned to work the following day and performed some work for a period of time. After Mr. Zook arrived at the warehouse, he went back to the Receiving Department and asked Petitioner why she was at work. Mr. Zook reminded Petitioner that he did not have any work for her to do at that time and that he could not allow her to work in violation of her doctor’s restrictions. After speaking with Mr. Zook, Petitioner clocked out, signed some paperwork, and left the building. Petitioner did not return to work after September 19, 2007. On October 15, 2007, Petitioner saw her podiatrist again. Petitioner’s podiatrist extended her temporary no- standing restriction for another six weeks. Petitioner understood, however, that her no-standing restrictions remained temporary at that time. Petitioner applied for and received short-term disability (“STD”) benefits beginning around the end of September 2007. Petitioner used paid time off until the STD period benefits began.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter an order dismissing the Petitions for Relief in these consolidated cases. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 24th day of November, 2009. COPIES FURNISHED: Hnin N. Khaing, Esquire Henrichsen Siegel, PLLC 1648 Osceola Street Jacksonville, Florida 32204 Kathleen Mones, Esquire Seyfarth Shaw LLP 1545 Peachtree Street Northeast, Suite 700 Atlanta, Georgia 30309 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
