The Issue Whether Respondent committed the unlawful employment practices alleged in the employment discrimination complaint Petitioner filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The County is a political subdivision of the State of Florida. The County Park and Recreation Department (Department) is a department of County government. At all times material to the instant case, Carolyn Gibson was a Region Manager with the Department, having ultimate supervisory authority over the operations at the County parks in her region (Region 2), including Arcola Park and West Little River Park. At all times material to the instant case, Rhonda Ham was a Recreational Specialist 2/Service Area Manager with the Department, who was based at Arcola Park and worked under the immediate supervision of Ms. Gibson. Ms. Ham has been married to her husband Earl for the last 13 or 14 years. Although Ms. Gibson considers Ms. Ham to be a friend,4 her friendship with Ms. Ham has not prevented her from taking disciplinary action against Ms. Ham when the "facts" have warranted. Petitioner is a single, custodial father of three children (two daughters and son) aged three, five, and seven. He is now, and was at all times material to the instant case, "the sole support of these children." Unlike Ms. Ham, Petitioner is college educated. He attended the University of Miami and Clarksdale Community College in Clarksdale, Mississippi, before receiving his Bachelor of Arts degree from Virginia State University (VSU) in 1993. After finishing his undergraduate studies, he spent a year in graduate school at VSU. Petitioner played football in college, and he went on to play the sport professionally after being selected in the National Football League (NFL) draft. One of Petitioner's teammates on the University of Miami football team was James Stewart.5 As teammates, Petitioner and Mr. Stewart "got along with one another and communicated from time to time," but they were not "close friends" and did not "hang out" together. Mr. Stewart also went on to play in the NFL. Following his playing career, he was convicted of a felony, and, in 2001, began serving a five-year prison sentence. He was released from prison in 2006 and is currently on probation. From March 20, 2006, until December 14, 2006, Petitioner was employed by the County as a Park and Recreation Manager 1 at West Little River Park. In that capacity, he had supervisory authority over the other Department employees assigned to work at the park. At all times during his employment with the County, he was a probationary employee with no entitlement to continuing employment.6 Ms. Ham was Petitioner's immediate supervisor for the duration of Petitioner's employment with the County except for a three-week period in April and/or May 2006.7 Her office (at Arcola Park) was located approximately two miles from Petitioner's office (at West Little River Park). Ms. Ham had the authority to monitor and evaluate Petitioner's job performance and to counsel and reprimand Petitioner, both verbally and in writing. The authority to terminate Petitioner's employment resided, not with Ms. Ham, but with Ms. Gibson. It was Ms. Gibson who hired Petitioner. She did so after reviewing Petitioner's application and interviewing him. Petitioner had applied for the position on or about March 2, 2006, by submitting a filled out and signed County employment application form. By signing the application, he "certified," among other things, the following: I certify that to the best of my knowledge and belief, all of the statements contained herein, and any attachments, are correct, complete and made in good faith. I understand that a background check will be conducted and that should an investigation disclose any misrepresentation, I may be subject to dismissal. The application form had an "Employment History" section, which contained the following instructions: List previous employment history, starting with your current or most recent employment. If you have held more than one position within the same organization, list each position as a separate period of employment. Be sure to indicate where employment may be verified. Please include job-related volunteer, temporary, part-time work and military experience. On his application, Petitioner knowingly failed to disclose that he had been employed from May 30, 2005, to September 17, 2005 as a Recreation Aide V with the City of Miami Parks and Recreation Department, working under the supervision of Lewis Mahoney, who was the Park Manager at Gibson Park. As a City of Miami Parks and Recreation Department employee, Petitioner had had a poor work record and had not gotten along with Mr. Mahoney. He undoubtedly knew, at the time he filled out the County employment application form in March 2006, that Mr. Mahoney, if contacted by the County, would not have good things to say about him. Ms. Gibson did not find out about Petitioner's failure to disclose his employment with the City of Miami on the County employment application form until after she had terminated Petitioner. Had she known about this non-disclosure, she would have never hired Petitioner and allowed him to work for the County. As part of the application and hiring process, Petitioner signed various forms in addition to the County application form. One of these forms was an Oath on Outside Employment for Full-Time Employees form that Petitioner signed on March 2, 2006. It read as follows: I, Damacio Green, a full-time employee of Miami-Dade Park and Recreation Department, certify that I am not engaged in any type of outside employment. I certify that I am not paid by, nor do I receive any equivalent gratuities from, any employer for any of my services except as performed during the normal course of my employment with the Miami-Dade Park and Recreation Department. I certify that before accepting outside employment, I will submit a complete record of intended outside employment to my Department Director for approval. I will abide by the Department Director's decision on the matter. I further certify that I fully understand the County policy on outside employment outlined below. MIAMI-DADE COUNTY POLICY ON OUTSIDE EMPLOYMENT (SEC. 2-11 OF THE CODE OF METROPOLITAN DADE COUNTY, FLORIDA) No full-time County employee shall accept outside employment, either incidental, occasional or otherwise, where County time, equipment or material is to be used or where such employment or any part thereof is to be performed on County time. A full-time County employee may accept incidental or occasional outside employment so long as such employment is not contrary, detrimental or adverse to the interest of the County or any of the department and the approval required in subsection (C) is obtained. Any outside employment by any full-time County employee must first be approved in writing by the employee's department head who shall maintain a complete record of such employment. Any employee convicted of violating any provision of this section shall be punished as provided in Section 1-5, and, in addition thereto, shall be subjected to dismissal by his Department. (Ord. No. 58-5, Sec. 25.01, 2-18-58) When Petitioner "first started working" for the County, he asked Ms. Gibson if, under the County's Policy on Outside Employment, he would be able to operate his mobile food service business, Damacio's Mr. Tasty, LLC, while employed with the County. Ms. Gibson responded to Petitioner's inquiry by telling him, "You can't do it." On at least two occasions during his employment with the County, Petitioner operated his mobile food service business without Departmental approval, despite knowing that doing so was in violation of the County's Policy on Outside Employment. It was not until after Petitioner had been terminated that Ms. Gibson discovered that Petitioner had committed this violation of the County's Policy on Outside Employment. Ms. Gibson would have terminated Petitioner's employment had he still been employed with the County at the time she learned of the violation. Among the other forms that Petitioner signed during the application and hiring process was an Acknowledgment of Receipt of the County's Unlawful Harassment Policy (Administrative Order No. 7-37). He signed this form on March 2, 2006. By doing so, he acknowledged the following: I have received a copy of this Unlawful Harassment Policy and understand that it contains important information on filing a complaint of harassment with my department or the Office of Fair Employment Practices. I will familiarize myself with the Unlawful Harassment Policy and understand that I am governed by its contents. If I have questions about the policy I can contact my Department Affirmative Action Officers Yolanda Fuentes-Johns or William Lindley at (305)755-7866 or the Office of Fair Employment Practices at (305)375-2784. The County's Unlawful Harassment Policy (which was printed on the form) provided, in pertinent part, as follows: POLICY The policy of Miami-Dade County is to ensure that all employees are able to enjoy a work environment free from all forms of discrimination, including harassment, on the basis of race, sex, color, national origin, religion, retaliation, age, disability, ancestry, marital status, pregnancy, sexual orientation, or the exercise of their constitutional or statutory rights. Administrative Order 7-28 was adopted in 1987 specifically to protect County employees from sexual harassment. Administrative Order 7-28 and Administrative Order 7-6, Personnel Policy on Equal Employment Opportunity, have since been interpreted to extend similar protection to employees who believe they have been harassed for unlawful reasons other than sex. This Administrative Order is intended to make clear that all County employees who believe they have been unlawfully harassed must notify the County's Office of Fair Employment Practices or their Departmental Affirmative Action Officer and may file a complaint for prompt and proper investigation. Employees who are found guilty of unlawfully harassing other employees shall be subject to appropriate sanctions, depending on the circumstances. These may range from counseling up to and including termination. Miami-Dade County will not tolerate adverse treatment of employees because they report harassment or provide information related to such complaints. The County, in exercising reasonable care to prevent and promptly correct harassment or retaliation for reporting harassment, will protect victims from further unlawful harassment and retaliation. * * * COMPLAINT PROCEDURE Employees who believe they have been the subject of harassment prohibited by this Administrative Order, must notify the County's Office of Fair Employment Practices or their Departmental Affirmative Action Officer and, if they choose, may file a formal complaint with the County's Office of Fair Employment Practices. Employees may, if they desire, also report such incidents of unlawful harassment to their supervisor but are under no obligation to do so. Employees are encouraged to report harassment before it becomes severe or pervasive. This will facilitate early mediation and effective resolution of potential unlawful harassment complaints. All complaints of harassment, subsequent investigations and corrective actions shall be handled on a confidential basis to the extent possible under the law. Protective measures will be instituted to protect the complainant. Miami-Dade County has established procedures for resolving, filing and processing complaints of unlawful harassment. If the investigation confirms the existence of unlawful harassment, the Fair Employment Practices Office will pursue prompt corrective action, including remedial relief for the victim, and appropriate disciplinary action against the offender. * * * At no time during his employment with the County did Petitioner complain, in accordance with the "complaint procedure" described in the County's Unlawful Harassment Policy, that he was being, or had been, sexually harassed by Ms. Ham. During much of the time that Petitioner worked under Ms. Ham's immediate supervision, the two had an amicable relationship--so amicable that on one occasion, without being asked by Ms. Ham, Petitioner gave her a check in the amount $125.00 to help her purchase a dance outfit for her daughter. What started out as a friendly, non-physical relationship evolved into a sexual one, in which both Petitioner and Ms. Ham freely and willingly participated. They engaged in sexual activity on three separate occasions--once in Petitioner's office at West Little River Park and twice in Ms. Ham's office at Arcola Park. The first of these consensual sexual encounters occurred in August 2006. The third and final encounter was in October 2006. On each occasion, Petitioner was the one who initiated the physical contact. "[A]shamed and embarrassed" by her conduct, Ms. Ham decided to put an end to her adulterous affair with Petitioner. There was no further sexual activity between Ms. Ham and Petitioner after October 2006. Ms. Ham oversaw a Children's Trust-funded after-school program at Arcola Park in which Petitioner's daughter, DK, was registered. It was Ms. Ham's responsibility to make sure that children in the program were picked up from their respective schools at the end of the school day and transported to Arcola Park. After the end of the school day on November 6, 2006, Petitioner received word from DK's school that DK had not been picked up and was still at school. Petitioner ultimately telephoned Ms. Gibson on her cell phone and, in a "very loud" tone of voice, said, "Ms. Ham left my daughter, she didn't pick my daughter up from school, what are you going to do about it?" Ms. Gibson later met with Petitioner and Ms. Ham to discuss the matter and try to sort things out. During the meeting, Petitioner was, in Ms. Gibson's eyes, "irate" and "out of control." He told Ms. Gibson that she "couldn't tell him anything" because she did not "have any kids" and she "kn[e]w nothing about parenting." Ms. Gibson sensed from Petitioner's and Ms. Ham's "body language" and the way that they were "glaring at each other" at the meeting that they might be involved in a non-work- related relationship. She therefore asked them, before they left, whether they had "crossed the line." They both denied that there was anything going on between them. A few days later, Petitioner came into Ms. Gibson's office and asked her, rhetorically, "Do you think I'm interested in Ms. Ham?" He then told her, "Well, Ms. Gibson, I'm not interested in Ms. Ham, I'm interested in you." Ms. Gibson's response to this come-on was to direct Petitioner to "get out of [her] office." Petitioner was due to be evaluated on or about September 24, 2006, but it was not until November 17, 2006, that he received his first Management Performance Evaluation. This November 17, 2006, evaluation was prepared by Ms. Ham (who signed the evaluation as the "rater") with input from Ms. Gibson (who signed the evaluation as the "reviewer"). The overall rating was unsatisfactory. The evaluation contained the following narrative: ACHIEVEMENT OF OBJECTIVES: RATING: Unsatisfactory Mr. Green, you entered this department on March 28, 2006 as a Park & Recreation Manager 1 at West Little River Park. From your inception there has been an increase in participant enrollment in spring and summer camp, and [the] after school program. However, there has been a decrease in registration/attendance in your sports development program, which is the region's primary program. DECISION MAKING AND JUDGMENT: RATING: Needs Improvement Mr. Green, over the past 6 months I have had the opportunity to observ[e] your decision- making skills and often times your decisions are hasty. At your level you should take the opportunity to first identify the problem, gather the facts and make decisions based on facts and not what you are feeling at the time, i.e. sending part-timers home and then call[ing] them back to work within the hour.[8] Also, it is important that you understand parents are our customers, they might not always be right in their actions. However, as professionals we must always maintain our composure by allowing them to vent and then by explaining the circumstances rather than trying to talk over them and suggesting they bring a spouse to deal with the situation instead, as you have done.[9] PERSONAL DEVELOPMENT RATING: Satisfactory Mr. Green, you have a solid educational foundation and you have taken the initiative to enroll in PAR training to aid you in better understanding the payroll attendance record. You are currently involved in the recreation modular training. However, being new to the department it is extremely important that you make a concentrated effort to enroll in trainings in the following areas[:] time management and dealing with conflict in the workplace, progressive discipline and a host of other trainings relative to your professional development. You need to encourage your subordinate staff to enroll in training to improve their knowledge and skills. PLANNING AND ORGANIZING RATING: Needs Improvement Mr. Green, during your first six months in the department you have not taken the initiative to plan, organize or implement any special events, activities or sporting events.[10] You have not shown any creativity or enthusiasm. INTERPERSONAL SKILLS RATING: Needs Improvement Mr. Green, your relationship with your subordinate staff has been less than cohesive. There have been instances of verbal conflict and derision between you and Mr. Morgan and Ms. Johnson,[11] a seasonal employee[,][12] and several parents of patrons that you were not able to resolve satisfactorily as the leader. Although we have discussed strategies on how you can improve in this area improvement is still needed to foster the teamwork ethic at West Little River Park. You have not made an effort to understand[] how the chain of command works. It is very important that you understand your first point of contact is your Service Area Manager. If we cannot resolve the situation at my level and if you're not satisfied with the resolution, you can then request a meeting with the next level in the chain of command. COMMUNICATIONS RATING: Unsatisfactory Mr. Green, your very limited knowledge of the computer has been a hindrance for you as a Park & Recreation Manager 1. It is very important for you to have a basic working knowledge of the computer. The computer is an essential tool that is used everyday. Our reliance on them is an ever increasing fact. Mr. Green, you are not taking the initiative to learn what you need to know in order to function in your capacity as a manager. During our regional staff meetings you are not attentive and you do not take notes, yet you come back to me with questions that were covered during the staff meetings.[13] I have been supportive by consistently aiding you with your assignments. However, in many instances you have not comprehended the information well and have looked to me for more than just support. You are now faced with spreading your part- time budget and coming up with goals and objectives. You have missed every deadline given. ADMINISTRATIVE POLICY AND PROCEDURE RATING: Needs Improvement Mr. Green, an improvement is needed in the area. You have been encouraged to avail yourself of all the resources available to educate yourself on the subject of the department's policies and procedures via the use of our various manuals and through counsel with your supervisors and peers. However, you have been challenged in your role as a leader in applying them in the daily operations of the park and rapport with your staff and patrons. ADDITIONAL FACTORS RATING: Not Applicable RATER'S OVERALL EVALUATION: Unsatisfactory Is employee eligible for merit increase? Deferred. Re-evaluate in 1 1/2 months/ Is employee eligible for permanent status? N/A IN WHAT WAYS CAN OR MUST THE EMPLOYEE IMPROVE PERFORMANCE? Mr. Green, to improve your overall performance, concentrate on the following: Increase participant registration/ attendance in the Sports Development Program which has declined under your supervision. Demonstrate more leadership before subordinate staff. Enroll in department management courses. They will help in your professional growth. Enroll for "Service Excellence" training to enhance you customer service skills with patrons. Plan, organize and market at least 2 annual special events at West Little River Park. Enroll [in] computer courses to be more proficient in the use of the personal computer. Follow the chain of command as mandated by our Regional Manager and your immediate supervisor. You will be re-evaluated in the next 1 1/2 months. If there has been no substantial improvement stronger measures will be made. Petitioner prepared a written rebuttal to his November 17, 2006, evaluation, which he provided to Ms. Ham and Ms. Gibson on or about November 27, 2006. It read as follows: SECTION 2: DECISION MAKING AND JUDGMENT: RATING: NEEDS IMPROVEMENT In the subject of decision-making and judgment, I received a rating of need[s] improvement. I totally feel that this rating is unfair because of one incident that happened in a six-month period. However, the situation with the parent being treated unprofessionally is completely wrong. The parent made the statement to me of having her husband deal with the issue rather than herself. I simply responded, "If you feel that this is necessary for your spouse to speak with me rather than you, then I have no problem with it. I will be here in my office whenever he ha[s] time to speak with me." The entire ordeal was handled totally in a professional manner. SECTION 4: PLANNING AND ORGANIZING: RATING: NEEDS IMPROVEMENT In the area of planning and organizing, I received a rating of need[s] improvement, which I feel is totally unfair and incorrect. During the entire six month[] period, I never once received a memo or any corresponden[ce] to the effect that my planning and organizing skills was not up to par.[14] When I received this position on March 21st, 2006, I was given a brief overview pre-training of my duties and responsibilities i.e., administrative paper work, sports development participation, seasonal camp programming, after school daily programming and maintenance responsibilities. Special events were never mentioned. My facility participated in spring break and summer camps in which we increase[d] the numbers a great deal from past history. We also participated in every sport development cycle. According to the directions I was given, I felt as if I was totally within my responsibilities. Now to receive an impromptu surprise that I am not on task is not only incorrect but also absolutely unprofessional. SECTION 5: INTERPERSONAL SKILLS: RATING: NEEDS IMPROVEMENT I feel that this rating, needs improvement, is unfair and incorrect. During my first six months, I've had two situations with parents that are sisters, which was a misunderstanding about the kids coming into the facility unsupervised. After explaining the danger of that to the parents, they both agreed with me. The second situation had already been explained in section 2 when a parent felt she would like for her husband to address the issue rather than herself. At that time the situation was resolved without further discussion. The issues that I had with Mr. Morgan, I feel personally w[ere] created by Mrs. Ham by allowing him to break the chain of command by calling you without discussing anything with me first was wrong. When I give Mr. Morgan an assignment that he does not like, he feels that he could call you to change it. Must I remind you that Ms. Gibson warned you about this behavior during summer camp. Ms. Gibson also stated to you, "Rhonda, this is wrong! You wouldn't want Mr. Green to do this to you with me." This is not the support I expected from my immediate supervisor. I feel sabotaged, betrayed and set up for failure. In my evaluation, you mentioned me breaking the chain of command and asked me to call my immediate supervisor about any issue before contacting the regional manager. If I remained unsatisfied, what did I violate if you were contacted twice, you were told that I was unhappy with your answer and I needed immediate attention? This would mean that I followed the chain of command to the letter. SECTION 6: COMMUNICATIONS: RATING: UNSATISFACTORY The rating that I received in section 6 communication: Unsatisfactory, I feel that it is unfair and incorrect. I have basic knowledge of the computer and can perform all of my duties as a Park and Recreation Manager 1. During our regional staff meetings, I did not always take written notes because at times I recorded the meetings. However, I feel my immediate supervisor should be someone I can go to for clarity which is not outside of her responsibilities. On top of this, I was faced with spreading a part-time budget in this department for the very first time and was left hanging out to dry by Mrs. Ham. I received very little directions and had to look toward other colleagues for help. Mrs. Ham set meeting dates when I asked for help and never met them. When she finally did show, she took the work that I had already done and said, "I'll handle it from this point." Mrs. Ham may have her method of assisting her staff but I feel the more hands on involvement I have with the new work and assignments will make me effective in learning the process and being more self- sufficient with the budget assignments as well as other paper work. However, I received no correspondence or memos of any type reflecting how off the mark I was in the area of communication during the entire six months. As a matter of fact, I felt the communication between Mrs. Ham and I was great. It was so great that I had no problem doing financial favors for her when she needed it. Now for everything to turn so bad so fast, I have no choice but to feel it is retaliation [for] the call made to Ms. Gibson on the day my daughter was an hour and a half late being picked up from her school which was supposed to be done by one of Mrs. Ham's staff workers which I had to do myself because of the number of calls I received from her school. This is pertaining to the issue of the broken chain of command. SECTION 7: ADMINISTRATIVE POLICIES AND PROCEDURE: RATING: NEEDS IMPROVEMENT I received a rating of need[s] improvement, which I feel it is only natural that a new employee to need improvement in this area if it is based on the knowledge of the manual instead of knowing where to go in the manual to retrieve the information. However, I will continue to read through my operation manual and my personal handbook in my sp[are] and down time. Overall, I feel this evaluation was a personal attack for some personal reason, i.e. contacting Ms. Gibson after trying to resolve the issue with Mrs. Ham to no satisfaction. This is when I first found out I was doing such a poor job as a manager and feel th[ere] will be more retaliation. While Petitioner's written rebuttal contained various accusations against Ms. Ham of supervisory wrongdoing, it was devoid of any allegation that Ms. Ham had subjected Petitioner to any type of sexual harassment.15 On November 30, 2006, after it had been brought to her attention that Petitioner was having his subordinates complete for him written assignments that Petitioner was supposed to be doing himself for a Department-sponsored management training class he was taking, Ms. Ham sent the following memorandum to Petitioner: I was informed by your PSA Jerome Jamison that you have been delegating your Recreation Module Training assignments to him and PSA Tremaine Morgan to complete. If this is correct, please stop this immediately. The training series that you have been recommended to participate [in] requires you to complete these assignments. These exercises [are] a part of your development and training as a manager. On December 5, 2006, Ms. Ham sent another memorandum to Petitioner. This memorandum was about an incident that had occurred the previous day. It read as follows: On Monday, December 4, at approximately 2:18 p.m. you called to let me know that the key for the West Little River Park's van was misplaced and that you could not find the key. I asked you why you were just now reporting this when your driver is scheduled to be at your first scheduled pickup point at 2:00 p.m. You began to yell in a loud voice at me, "You were the one that told me to schedule my driver to report at 2 p.m." I responded that you needed to lower your voice and that you were being insubordinate and that this is my last warning. Your statement was untrue as well. I directed you to schedule your staff to report at least one half hour prior to the first pick up anticipating travel time and to inspect the van. This is not the first instance of offensive conduct to me and I am aware that you acted similarly toward our Region Manager. I have discussed your conduct with you before. Mr. Green, there must be an immediate and sustained improvement in your performance or more serious disciplinary action will result. I need the Unusual Incident Report detailing the details on the missing van keys today. On December 5, 2006, in response to the November 30, 2006, and December 5, 2006, memoranda he had received from Ms. Ham, Petitioner sent a memorandum of his own to Ms. Ham. He provided a copy of this memorandum to Ms. Gibson. The memorandum read as follows: Ms. Ham, pertaining to the memo I received on Nov. 30, 2006, stating you were told by Mr. Jamison that I was delegating my module training to him and Mr. Morgan. That alleged statement you claimed Mr. Jamison made after speaking with Mr. Jamison, he stated that it was not true. Mr. Jamison stated that he was only inquiring more about the module. Now, let me tell you what really happened. What I simply did was shared the information that was in the module training with my staff because of their daily hands on with the participants. I felt as the Park Manager that I was well within my rights to discuss the information with my staff and ask for feedback w[hether] it was verbal or written. The reason I did this was because the questions in the training w[ere] not only rel[evant] to me but to them as well because of their dealings with the participants on a daily basis. When I told them why I was doing this, they both agreed. Mr. Jamison and Mr. Morgan also told me that the few questions they went over [were] not only intriguing but also very helpful in dealing with some of the issues they encounter with some of the participants. By the way Mrs. Ham, I was told in a discussion with Mr. Jamison that the question about the module was asked three weeks ago prior to [the] Nov 30, 2006 memo I received from you. My question to you is why give me a memo pertaining to this now. Pertaining to the memo I received today on my alleged conduct on December 4, 2006 is not only unfair but also untrue that I was yelling at you when I called about the missing key. I deplore that statement. What is true that I did do the right thing by notifying and informing you about the missing key. What is also true is that contrary to popular opinion, you were the one that became angry with me because I was asking you what else could I do in terms of getting my after school participants picked up. I also asked you should I go in my personal van to make sure that they were all picked up in a timely manner. You then started . . . yelling at me in sequence, "when did you first notice that the key was missing, Mr. Jamison must be just getting to work, what time do[es] he come in and why is he coming in at 2 p.m. when he has a 2 o'clock pick-up.["] I simply stated to you that "you were the one that made me change his scheduled time to come in from 1 o'clock to 1:30 p.m. to now 2:00 p.m." which was all I said in return with my regular tone of voice. Then you replied "you better watch [your] tone of voice with me. This is your last warning about that tone of voice." When in fact, you were the one that was doing all of the yelling and I have a witness to prove it. As I stated in my rebuttal to my regretful performance evaluation which came a week later after my call to our Regional Manager when I was doing so well before then. "I feel that th[ere] will be more retaliation to come" and it is now clear that I was right. You are doing just that because of my phone call to our Regional Manger about my daughter being an hour and a half late picked up by one of [your] subordinates which I had to do myself. In his memorandum, Petitioner alleged retaliation only for his having complained to Ms. Gibson about Ms. Ham's not having picked up his daughter on time. He made no allegations of sexual harassment. On December 5, 2006, Petitioner attended a Department- sponsored training class, the title of which was "How to Maintain a Harassment Free Work Environment." The class was lead by Beatriz Lee, the Department's Human Resources Manager and its Affirmative Action Officer. In her introductory remarks, Ms. Lee told the class "what [her] role [was with] the [D]epartment." The class lasted approximately three hours, during which Ms. Lee discussed, among other things, the County's Unlawful Harassment Policy, including how to file an unlawful harassment complaint. After the class ended Petitioner walked up to Ms. Lee and indicated that he wanted to talk to her. Ms. Lee took Petitioner into her office so that they could converse in private. Petitioner told Ms. Lee that he was "having problems with his supervisor," Ms. Ham, and then showed Ms. Lee the November 17, 2006, evaluation he had received. Ms. Lee asked Petitioner why he thought these "problems" existed. Petitioner replied that he and Ms. Ham were "tight" and were "good friends" and that he "didn't understand why [Ms. Ham] was being so demanding with him, because he had even helped her out financially." During their conversation, Petitioner told Ms. Lee about Ms. Gibson's having asked him and Ms. Ham if they had "crossed the line." Ms. Lee then inquired why Ms. Gibson would ask such a question. Petitioner responded, "I guess because we were so close. Because we-–you've got to understand me and Rhonda [Ham] are very tight . . . ." Petitioner crossed his middle finger over his index finger to show Ms. Lee how "tight" he and Ms. Ham were. At no time during his talk with Ms. Lee did Petitioner claim he had been sexually harassed by Ms. Ham. On Thursday, December 14, 2006, less than one and a half months after receiving his first Management Performance Evaluation, Petitioner received his second (and last) Management Performance Evaluation. This December 14, 2006, evaluation was prepared by Ms. Ham (who signed the evaluation as the "rater"). Ms. Gibson was on vacation, so Bobby Johnson signed the evaluation as the "reviewer" in her stead. Ms. Gibson, however, "concur[ed] with the statements contained in this performance evaluation" and had already decided that Petitioner's "probation [would] be failed." The evaluation contained the following narrative: ACHIEVEMENT OF OBJECTIVES: RATING: Satisfactory Mr. Green, the sports development program registration increased by 4, however you need to continue this effort by better utilizing your present staff and by developing a recruitment strategy. DECISION MAKING AND JUDGMENT: RATING: Needs Improvement Mr. Green, your continued effort is still needed for your improvement in this area. Please follow the recommendations given to you in your last performance evaluation. PERSONAL DEVELOPMENT RATING: Unsatisfactory Mr. Green, you completed the recreation module training, although I had to advise you that you are not allowed to delegate any of the related assignments to your subordinate staff.[16] You have enrolled for department training as I recommended. Remember, you need to encourage your subordinate staff to enroll in training likewise to improve their knowledge and skills. Your effort to recruit satisfactory seasonal and year round part-time staff has been a challenge for you. I recommended that you visit the local colleges for satisfactory applicants, however, thus far you have resisted my suggestions.[17] PLANNING AND ORGANIZING RATING: Unsatisfactory Mr. Green, there have no special events, activities or sporting events implemented by you for West Little River Park or as a regional event. On December 6 during the trial budget reviews with the Region Manager it was noted that you had set a goal of forming a basketball league to operate from January-May 2007. However in your planning you failed to include adequate time for publicizing the event in the community. You should have routed all your budget related items through your Service Area Manager. INTERPERSONAL SKILLS RATING: Unsatisfactory Mr. Green, improvement is still needed to foster teamwork at West Little River Park. During this rating period you were verbally reprimanded for your unprofessional conduct when speaking to me and our Region Manager, during presentation of your 6 month performance evaluation for a merit increase, during a phone conversation with me about a missing van key and during a phone conversation with Ms. Gibson. You have also reacted defensively when receiving constructive criticism from your supervisor. COMMUNICATIONS RATING: Unsatisfactory Mr. Green, use of the computer and related programs has been a challenge for you. Your registration paper work was not organized as I had directed and as a result the input of West Little [River Park] Program registrants into the CITRIX system has not been completed.[18] As I stated in your earlier evaluation, the computer is an essential tool and our reliance on them is an ever increasing fact. ADMINISTRATIVE POLICY AND PROCEDURE RATING: Satisfactory Mr. Green, I encourage you to avail yourself of all the resources available to educate yourself on the subject of the department's policies and procedures via the use of our various manuals and through counsel with your supervisors and peers. ADDITIONAL FACTORS RATING: Not Applicable RATER'S OVERALL EVALUATION: Unsatisfactory Is employee eligible for merit increase? Deferred. Not Granted. Is employee eligible for permanent status? Not Granted. Because she considered Petitioner to be a "substandard employee" who had performed poorly during his probationary period (and for this reason alone), Ms. Gibson decided to "fail [Petitioner's] probation" and terminate his employment with the County. Ms. Gibson's decision was based on: (1) Ms. Ham's evaluation of Petitioner's performance; (2) information provided to Ms. Gibson by other employees about Petitioner's performance19; and (3) Ms. Gibson's "independent observations of [Petitioner's] performance." On the evening of December 14, 2006, after having been presented with his second Management Performance Evaluation, Petitioner was advised that he was being terminated. Later that evening, Petitioner telephoned a friend of his, Jennifer Williams. (Ms. Williams taught reading to Petitioner's daughter DK and to the other children in the Children's Trust-funded after-school program at Arcola Park.) Petitioner began his conversation with Ms. Williams by telling her, "That bitch fired me," referring to Ms. Ham. He then asked if he could come by Ms. Williams' home. Ms. Williams told him that he could. Petitioner arrived at Ms. Williams' home shortly thereafter, and Ms. Williams invited him in. They went to the den, sat down, and talked. Petitioner again explained to Ms. Williams that "Ms. Ham had terminated him." He then told Ms. Williams that Ms. Ham had been "harassing him sexually." When Ms. Williams heard this she "just started laughing." Having seen Petitioner and Ms. Ham and "their interactions," she "could not believe" that Ms. Ham had sexually harassed Petitioner. Petitioner then asked Ms. Williams "to help him type up a letter" (on Ms. Williams' computer) describing "exactly what [had] happened between [Petitioner] and Ms. Ham." Ms. Williams agreed to provide such help. Following Petitioner's directions, Ms. Williams typed a letter addressed to Ms. Gibson, which read as follows: Subject: Wrongful Conduct from Immediate Supervisor This letter is in reference to the meeting that took place yesterday on December 7, 2006 around 3:00 p.m. at the region office.[20] You stated to me that you have a problem with me not being truthful about things that have happened between Mrs. Ham and I. As I indicated to you "yes, you are right! I have not told you everything that has happened." I feared that if I had told you Ms. Gibson about the constant request for money as well as the constant request for sexual favors that I would be terminated. Mrs. Ham has explained to me on several occasions that I can be terminated anytime she felt like it and it would be nothing I could do about it, each time before financial and sexual favors were requested. Mrs. Ham and I have been sexually involved over 10 times. These sexual acts have taken place at West Little River and Arcola Park. Also, at times when Mrs. Ham has told me to take her [to] lunch she has then pulled into a nearby motel and again requested sexual favors. Many times I wanted to tell you about these issues between Mrs. Ham and me, however, I feared for my job and I wanted to pass probation so that I could then start denying Mrs. Ham of these favors. Sincerely Damacio Green Petitioner asked Ms. Williams to "backdate the letter" to December 8, 2006, and Ms. Williams complied. The following day, Friday, December 15, 2006, Petitioner (or someone acting on his behalf) went to the Region 2 office to return his Department uniforms and, while there, surreptitiously placed in Ms. Gibson's desk an envelope containing the backdated "Wrongful Conduct from Immediate Supervisor" letter Jennifer Williams had typed the evening before. Ms. Gibson was not in the office that day, and her administrative secretary, Debbie Williams,21 was on break when the envelope was placed in Ms. Gibson's desk. Later that day, Petitioner telephoned Ms. Lee, complaining that Ms. Ham had sexually harassed him and had "fired" him because he had refused to "put up with it any more." Ms. Lee asked Petitioner why he had not said anything to her previously about Ms. Ham's sexually harassing him. Petitioner responded that he "had been afraid" and thought he might "lose [his] job." During his conversation with Ms. Lee, Petitioner falsely told her that, prior to his termination, he had "provided a letter to Ms. Gibson telling her that [Ms. Ham] had been forcing him to engage in sex." Ms. Lee asked Petitioner to send her a copy of that letter. At approximately 3:00 p.m. on December 15, 2006, Petitioner faxed to Ms. Lee a copy of the backdated "Wrongful Conduct from Immediate Supervisor" letter that Jennifer Williams had typed for Petitioner the evening of December 14, 2006. Ms. Lee showed the letter to her supervisor, Yolanda Johns, who subsequently telephoned Ms. Gibson to inquire about the matter. Ms. Gibson informed Ms. Johns that she did not know anything about a "Wrongful Conduct from Immediate Supervisor" letter addressed to her from Petitioner. Ms. Johns then faxed a copy of the letter to Ms. Gibson, who was at Martin Luther King Park attending a Christmas party. After reviewing the letter, Ms. Gibson confirmed that she had never seen it before. On Monday, December 18, 2006, Ms. Gibson (who was on leave) came by her office and discovered the letter inside an envelope in her desk drawer (where it had been placed on December 15, 2006, the day after Petitioner's termination). Ms. Lee conducted an investigation of Petitioner's allegations of sexual harassment. As part of her investigation, she interviewed Petitioner and numerous other individuals. Based on the information she obtained, Ms. Lee determined (correctly, as it turns out) "that Mr. Green and Mrs. Ham not only engaged in a consensual sexual relationship, but . . . Mr. Green was persistent in pursuing Mrs. Ham to engage in such activity." Consequently, Ms. Lee concluded that Petitioner's allegations of sexual harassment were unfounded. Ms. Lee issued her investigative report in February 2007. In her report, Ms. Lee recommended that Ms. Ham be suspended 30 days without pay for her "lack of judgment in succumbing to the pursuit of a subordinate." By letter dated March 15, 2007, Ms. Ham was given "formal notification" that she was being "suspended without pay for four (4) weeks to be served beginning Monday, April 9, 2007 through Sunday May 6, 2007," for having "engaged in a consensual sexual relationship with a subordinate employee, Mr. Damacio Green, former Park and Recreation Manager 1, which affected [her] ability to properly supervise this employee."
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 the County not guilty of the unlawful employment practices alleged by Petitioner and dismissing Petitioner's employment discrimination complaint. DONE AND ENTERED this 29th day of May, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 2009.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Florida Commission on Human Relations enter its Final Order dismissing Michael Bertone's petition for relief against Winn-Dixie. DONE AND ORDERED this 11th day of December, 1997, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1997.
The Issue Whether Respondent Employer is guilty of an unlawful employment practice by discrimination against Respondent on the basis of her age and gender (female).
Findings Of Fact Petitioner is female. Petitioner initiated her retirement from Respondent employer in February 2005 at age 65. No evidence was presented at the disputed-fact hearing to establish the number of persons employed by Respondent at any material period of time. However, because Respondent has acknowledged in its Proposed Findings of Fact that Petitioner is an "aggrieved person," as that term is defined in Section 760.02(10), Florida Statutes, and has further acknowledged that at all times material to this cause, Respondent was an "employer" as that term is defined in Section 760.02(7), Florida Statutes, and Respondent is hereby found to be a statutory employer under Chapter 760, Florida Statutes. Petitioner began part-time employment as an Order Entry/Mail Clerk with Respondent in July 1983. At the same time, and dating from May 30, 1983, Petitioner was also employed part-time with Sears, Roebuck and Company (Sears). In 1984, Petitioner accepted full-time commission sales employment with Sears and continued to work part-time for Respondent Employer. She worked full-time for Sears and part- time for Respondent until July 1996. Between 1983 and 1996, Jack Barber, president and CEO of Respondent Employer, repeatedly asked Petitioner to come to work full-time for Respondent. In July of 1996, Petitioner accepted full-time employment as Chief Finance Officer/Human Relations Director of Respondent Employer. At the time of her transition to her new, full-time position with Respondent, Petitioner was doing accounts receivable, accounts payable, payroll, and general ledger bookkeeping. Petitioner was qualified for all positions she held while employed by Respondent. At all times material, Petitioner was an exemplary employee. Petitioner testified that, as an inducement to give up her full-time Sears employment with its vested pension and excellent pay and benefits, Mr. Barber "guaranteed [her] in writing a five percent yearly increase in salary with no end date." It was Petitioner's position that between July 1996 and February 2005, when she retired, Respondent had a written employment contract with her, which contract had been negotiated in July of 1996, and that this contract provided for Petitioner to receive a raise equivalent to five percent of her base pay; one week of vacation in 1996; three weeks of vacation in 1997 and 1998; three days compensatory time (personal holidays) in 1996; six days of compensatory time (personal holidays) in 1997 and 100 percent medical insurance. The document she represented as her contract of employment was admitted in evidence as Petitioner's Exhibit One. Petitioner's Exhibit One is not dated. It also states no ending date and does not contain the signature of either Petitioner or Mr. Barber. It resembles arithmetic computations without setting out in sentences either Petitioner's or Respondent's obligations one to the other. It only lists the years 1996, 1997, 1998, and 1999, with regard to salary; only 1996, 1997 and 1998, as to vacation; and only 1996 and 1997 as to "comp. time." It bears the expression: "$150,000.00 + - 5 yrs." Furthermore, Petitioner testified that the exhibit does not encompass the whole of the parties' oral understanding at that point-in-time, because she believes that Mr. Barber also orally assured her that the five percent annual salary increases would continue as long as she was employed by Respondent, that vacation time and personal holiday time would accrue annually based upon Petitioner's original date of hire in 1983; and that Respondent company would institute a retirement plan in the near future. Mr. Barber testified that he had intended his notes and computations in 1996 on Petitioner's Exhibit One to only show that he anticipated if Petitioner came to work for Respondent in 1996: that he would guarantee Petitioner a term of employment up to at least five years; that there would be at least three years (1997, 1998, and 1999) with a five percent increase for her each year; and that, based on the foregoing prognosis, Petitioner could expect to earn at least $150,000.00 over a five-year period. Mr. Barber never intended Petitioner's Exhibit One to be a contract of employment. Petitioner candidly admitted that Respondent granted her five percent pay increases in January 1997, 1998, and 1999. Petitioner calculated that, without bonuses, she was paid half of $27,300.00 in 1996 because she started in July; $28,665.00 in 1997; $30,097.60 in 1998; and $31,720.00 in 1999. Petitioner accepted Respondent's figures that her annual W-2 compensation 1999 (including bonuses) was as follows: $33,635 2000 $31,720 2001 $32,830 2002 $33,015 2003 $32,330 2004 $31,720 Therefore, Petitioner's income without bonuses from Respondent for her first five years of employment (1996-2000) may have been less than $150,000.00. It was Petitioner's further position that the Respondent Employer had "contracts" similar to Petitioner's Exhibit One with other employees, specifically Greg Barber and Rob Humphrey (both younger male employees), which were honored by Respondent and that Petitioner's "contract" was not honored by Respondent. Petitioner claimed that Jack Barber's honoring the younger men's contracts, and not hers, constituted the acts of age and gender discrimination she complains of here. No contract between Respondent Employer and Greg Barber was presented for comparison with Petitioner's Exhibit One. No contract between Respondent employer and Rob Humphrey was presented for comparison with Petitioner's Exhibit One. Petitioner maintained that she "performed many of the same duties as Barber and Humphrey who were younger than she was at all times material and that she received less compensation." Greg Barber is the son of President/CEO Jack Barber. Since March 1985, Greg Barber has been the company's general manager and sales manager. Greg Barber also acts as co-CEO with his father. At all times material, he received a base salary plus commission based on total company sales. Greg Barber's responsibilities also included overseeing order entry personnel, accounts receivable/payable personnel, purchasing/inventory control personnel, mailroom personnel, shipping/warehouse personnel, service department personnel, and the receptionist. He also answered customer service calls and took phone orders. Rob Humphrey is the salesman responsible for Respondent's United States and Canadian sales. At all times material, he was paid a base salary plus commission based on Respondent's sales in the United States and Canada. Mr. Humphrey's responsibilities included training and overseeing a staff of two or three phone order entry/customer service personnel while also taking phone orders himself. At all times material, Petitioner was a salaried, non- commission employee. Petitioner claims that she performed many duties outside her job description. Specifically, she contends that she assisted both Rob Humphrey and Greg Barber in doing their jobs. Specifically, she described sharing responsibility with Greg Barber for making decisions regarding copy writing, marketing, in-putting of advertising materials, and direct marketing mailings. No witness corroborated Petitioner's assessment of her assistance to Greg Barber or Rob Humphrey, but at most, Petitioner only irregularly assisted these commissioned salesmen with their clerical or office tasks. She did not sell product. Despite Petitioner's contention that she performed some of the same services that Greg Barber and Ron Humphrey performed, it appears that the majority of the services she performed for Respondent were very different from theirs. It further appears that Humphrey and Barber performed services that were different from each other. Greg Barber had far more authority and responsibility than either Mr. Humphrey or Petitioner, and because of his position, Greg Barber received a commission out of Rob Humphrey's commission. In other words, as Mr. Humphrey's sales manager, Greg Barber received a percentage commission of all sales by whomever the sale was made and this increased Greg Barber's overall income. Likewise, Mr. Humphrey's responsibilities, particularly the necessity for him to deal with Canadian sales and marketing problems, varied greatly from Petitioner's responsibilities, which were primarily clerical or financial and home office based, and differed from Greg Barber's responsibilities, which were concentrated on home office management and sales in the United States. Petitioner maintained that other employees received raises when she did not. However, Respondent demonstrated that the annual base wage for Petitioner from 1999 through and including 2004, was $31,720.00; for Mr. Humphrey was $13,000.00; and for Mr. Barber was $47,840.00. Respondent further demonstrated that the base wages for all three employees remained constant from 1999 through 2004, and that Messrs. Barber and Humphrey, the commissioned employees, had fluctuations in their total gross wages during the five years from 1999 through 2004, due to fluctuations in the company sales and their resultant commissions. Rob Humphrey's W-2 compensation was below Petitioner's W-2 compensation from 1999 to 2001 and slightly exceeded hers from 2002 through 2004. Greg Barber's W-2 compensation exceeded Petitioner's W-2 compensation consistently from 1999 through 2004. Respondent demonstrated that in the year 2003, Respondent company suffered substantial losses, which affected the salesmen's commissions, and thus their overall income, but Petitioner's and everyone else's base wages remained the same, regardless of business conditions. How bonuses were calculated is unclear from the evidence, but in 1999, Petitioner's bonus was higher than either Mr. Humphrey's or Greg Barber's bonus. In 2000, no one got a bonus. In 2001, Greg Barber's bonus was $2,360.00; Mr. Humphrey's bonus was $540.00; and Petitioner's bonus was $1,110.00. In 2002, Greg Barber's bonus was $2,500.00; Mr. Humphrey's bonus was $665.00; and Petitioner's bonus was $1,295.00. No one received a bonus from 2003-2004. One of Petitioner's responsibilities while employed by Respondent was to assist Greg and Jack Barber in writing an employee handbook. This handbook clearly states that all of Respondent's employees are "at will" employees. That means that no guarantee of continued employment existed for any employee. Petitioner acknowledged that she had read that part of the handbook. The handbook also provides a reasonable procedure for someone, who believes that he or she is being discriminated against, to report that allegedly discriminatory treatment. Petitioner acknowledged that she never complained of sex discrimination or age discrimination while employed by Respondent. Petitioner also was aware she could file an Equal Employment Opportunity Commission complaint. She never did this either. Petitioner did complain to Jack Barber that her job was of greater importance than that of Greg Barber or Rob Humphrey, and she did repeatedly lodge her concerns with Jack Barber that her pay in comparison to theirs was inappropriate. Although denied by Mr. Barber, Petitioner is more credible that she asked for a five percent increase each year. In response to one of her complaints, Jack Barber "evened out" a bonus for her. In early 2005, Petitioner again approached Jack Barber regarding what she considered to be her "promised five percent annual increases." Petitioner and Jack Barber met several times during the months of April and May 2005. When their negotiations were not fruitful, Petitioner gave notice of retirement and left Respondent's employ on June 3, 2005, at age It had been her prior intent to continue working full-time for Respondent through the end of the year 2005. She hoped to continue working for Respondent part-time for several years beyond 2005. Petitioner testified that all employees received a retirement plan in 2001, but that she was not granted the promised yearly five percent increase in January 2000 and was not provided any reason or explanation for the decline in her base pay after that. She calculated that if the five percent per year increase had been given her, she would have received an additional $63,798.47, provided she had worked to the end of 2005, as she had intended.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 2nd day of August, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2006. COPIES FURNISHED: Kay F. Kelley Post Office Box 559 Center Hill, Florida 33514 Timothy Shea, Esquire 800 North Ferncreek Avenue, Suite 9 Orlando, Florida 32803 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether this cause is barred by a release of all claims.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing Petitioner, Jessica Miles', Petition for Relief from employment discrimination for lack of jurisdiction. DONE AND ENTERED this 9th day of December, 2010, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 9th day of December, 2010.
The Issue Whether this case is properly before the Division of Administrative Hearings.
Findings Of Fact On or about April 2, 2004, the Florida Commission on Human Relations (Commission) forwarded a packet of papers, as more fully described below, to the Division of Administrative Hearings (Division). At the request of the parties, a disputed- fact hearing was scheduled for June 30, 2004 through July 1, 2004. The Charge of Discrimination in this cause bears a signature date of April 23, 2002. It states that the most recent alleged discrimination occurred in December 2001, and alleges race, color, and religious discrimination and retaliation. The copy of the Charge sent to the Division in the Commission's referral packet bears a Commission date-stamp of December 2, 2002. However, Respondent has provided a copy of the Charge, showing that it was first filed with the Commission on November 19, 2002, and the parties are in agreement that November 19, 2002, was the date of actual filing of the Charge with the Commission. The Charge filed with the Commission was accompanied by a cover letter dated November 14, 2002, and a "confidential" affidavit also dated November 14, 2002. On December 6, 2002, Respondent received the Commission's Notice of Petitioner's Charge of Discrimination. Thereafter, Respondent submitted its position statement with attachments to the Commission. The parties subsequently engaged in settlement discussions but were unable to come to terms.1/ On November 20, 2003, the law office representing Petitioner notified the Commission that settlement was not possible and that Petitioner's attorney wanted to be advised of the Equal Employment Opportunity Commission (EEOC) case number assigned to the same allegations of discrimination by the EEOC, pursuant to the Commission's work-sharing agreement with that Federal agency. On January 21, 2004, Petitioner's attorney's law office again wrote to the Commission requesting the EEOC case number and stating, "[W]e may take our client's issues up in the judicial arena."2/ Petitioner filed with the Commission on February 10, 2004, an Election of Rights signed by her attorney on February 9, 2004, on which the following option had been checked: More than 180 days have elapsed since I filed my charge of discrimination. I wish to withdraw my charge and file a Petition for Relief to proceed with an administrative hearing as provided for under Florida Statutes Section 760.11(4)(b) and (8). On February 16, 2004, the Commission sent a letter to Petitioner's attorney confirming its receipt of the Election of Rights on February 10, 2004, and reciting the foregoing reason stated therein. The Commission attached to its letter a blank petition for relief with instructions that the petition should be completed and returned to the Commission within 20 days. Twenty days from the Commission's February 16, 2004, letter would have been March 8, 2004. By a letter dated March 16, 2004, Petitioner's attorney wrote the Commission advising that for purposes of the EEOC claim, "March 23, 2002," should be used as the last date of discrimination. March 23, 2002, is a date four months after the date alleged in the Charge of Discrimination which had been filed with the Commission. (See Finding of Fact No. 3.) Apparently, the Commission filed the EEOC complaint with that federal agency on March 18, 2004. By a March 18, 2004, form letter, the Commission advised Petitioner, via her attorney, that the EEOC claim had been filed and given a number. The Commission's form advises that Petitioner need do nothing with the EEOC until the Commission has made its final findings in the case before the Commission. The March 18, 2004, EEOC complaint is virtually identical in all respects to the Charge filed by Petitioner with the Commission on November 19, 2002, except for the date of alleged discrimination. (See Finding of Fact No. 9.) On March 29, 2004, Petitioner's attorney signed a second Election of Rights, checking the same reasons as were given in the February 10, 2004, Election of Rights. (See Finding of Fact No. 7.) The second Election of Rights was filed with the Commission on March 31, 2004. On April 1, 2004, the Commission sent a second letter to Petitioner via her attorney, confirming receipt of Petitioner's second Election of Rights dated March 29, 2004, and stating that it had been filed on March 30,[sic] 2004. This Commission letter again reiterated the option requested by the Petitioner. (See Finding of Fact Nos. 7 and 13.) The April 1, 2004, letter from the Commission attached a second blank petition for relief for Petitioner to complete, and further advised: The initial letter dated February 16, 2004 included the Petition for Relief to be filed with the Commission within 20 days of the dated letter. We have not received the Petition for Relief to date; therefore I am enclosing another Petition for Relief to be completed. Forward the original Petition for Relief to the Division of Administrative Hearings and mail a copy to the Division. The Election of Rights Form will be forwarded to the Division of Administrative Hearings for case assignment as requested. On April 1, 2004, the Commission filled out a Transmittal of Petition form, which it forwarded to the Division, attaching only the Commission's April 1, 2004, letter to Petitioner's attorney, a copy of the original Charge of Discrimination incorrectly date-stamped as filed with the Commission on December 2, 2003 (see Finding of Fact No. 3), and a copy of Petitioner's Election of Rights, dated March 29, 2004, which had been signed by her attorney. (See Finding of Fact No. 13.) Petitioner admits that at no time within 20 days of either the Commission's February 16, 2004, letter or the Commission's April 1, 2004 letter, did Petitioner file a Petition for Relief either with the Commission or the Division. Not until after Respondent had moved to dismiss before the Division on June 15, 2004, did Petitioner file a Petition for Relief. On June 24, 2004, that Petition for Relief was filed with the Division, without prior leave of an Administrative Law Judge of the Division. The Petition was not on a Commission form. As of June 25, 2004, the date of oral argument on the Motion to Dismiss and Response thereto, the free-form Petition for Relief had only been filed with the Division and had never been filed with the Commission. On the basis of the record before the Division, it appears that Petitioner has never filed with the Commission a Petition for Relief, also known as a request for administrative hearing. It is undisputed that no Petition for Relief or request for administrative hearing was filed by Petitioner with the Commission within 215 days of filing the Charge of Discrimination with the Commission, which would have been 180 days plus 35 days; nor within 35 days of February 16, 2004, the date of the Commission's first letter advising Petitioner to timely file a Petition for Relief with the Commission; or within 35 days of April 1, 2004, the date of the Commission's second letter advising Petitioner to timely file a Petition for Relief with the Commission.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss this case, which exists only by the Charge of Discrimination, and a late-filed petition before the Division of Administrative Hearings. DONE AND ENTERED this 29th day of July, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2004.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged by Petitioner.
Findings Of Fact Age Discrimination Petitioner, Ila Sharpe, was employed by FCHR from June 28, 2002, until February 6, 2006. Regina Owens is the housing investigations manager for FCHR. In approximately May 2004, Ms. Owens hired Petitioner into the housing unit upon the suggestion of the deputy director, Nina Singleton. Ms. Owens placed Petitioner in a vacant Senior Clerk position under her supervision in the housing unit. At the time, Ms. Owens became Petitioner’s supervisor, Ms. Owens was 51 years old. Petitioner was approximately 50 years old at that time. After Petitioner was in the Senior Clerk position for six or seven months, Ms. Owens promoted Petitioner to the position of Investigation Specialist I. Ms. Owens waived the requirements of a college degree and investigative writing experience for this new position, because Petitioner already worked for FCHR and had expressed an interest in moving up. The Investigator Specialist I position is a Selected Exempt Service position which included investigating cases, as well as “intake” duties. Ms. Owens explained to Petitioner that she would be doing investigations after about four months on the job. Petitioner was promoted to this position in January 2005. Ms. Owens sent Petitioner to Washington D.C. for training on three occasions in 2005: February, June, and December. Each training session lasted about a week and was conducted by the National Fair Housing Training Academy. After attending the February week-long training session, Petitioner continued to perform solely “intake” duties. Following the February training, Ms. Owens asked Petitioner if she was ready to take on an investigative caseload. Petitioner indicated that she was not ready to do so at that time. After Petitioner attended the June 2005, training session, Ms. Owens again spoke to Petitioner and determined that Petitioner was still not ready to take on investigative duties, although she had been in the position more than four months. In September 2005, Ms. Owens had e-mail communications with Petitioner, which gave her cause for concern that Petitioner might not know the answers to matters on which she had received training. In particular, Ms. Owens was concerned that Petitioner’s e-mail responses to her indicated that Petitioner was confused as to whom an investigator should be dealing with in a particular situation. Petitioner attended the third week-long training session in December 2005. After a discussion with Petitioner, Ms. Owens was still concerned about Petitioner’s reluctance to take on investigative duties despite her training and length of time on the job. Petitioner had been in the investigator specialist position for nearly a year but never investigated a case. In late December 2005, Ms. Owens developed a test for employees of the housing unit. The purpose of the test was to test employees’ working knowledge of the HUD manual and research skills in using the manual, specifically regarding the intake process. The “Housing Unit Intake Test” was based on the HUD manual, which is the book that all investigators have and use. The test was similar to the test the investigators had to take in Washington during training. The test developed by Ms. Owens is now given to all new investigators during their training. On January 5, 2006, Petitioner was first given the test using a “closed book” administration. The test pertained to the HUD manual materials, and Petitioner was given an hour to complete the closed book test. The purpose of the closed book administration was to assess the employee’s working knowledge of the subject matter. Petitioner scored ten correct answers out of 34 test questions. On January 6, 2006, Ms. Owens again gave Petitioner the same test questions. However, this second administration of the test was “open book” with two hours allowed to take the test. The open book administration was designed to assess the employee’s ability to do research, find the answers in the HUD manual, and to answer the questions correctly. Petitioner scored 11 correct answers out of 34 test questions. Also on January 6, 2006, Ms. Owens administered the same test to investigation specialist Julina Dolce. Ms. Dolce’s score on the closed book test is unclear from the record. However, on the open book test, Ms. Dolce received a score of 27 correct answers out of 34 test questions. After taking the test, Petitioner spoke to Ms. Dolce about what was on the test. However, there is no evidence in the record that Ms. Owens was aware that Ms. Dolce had a “heads up” on the test content prior to taking the test. The test was also given to Marshetta Smith on January 6, 2006. At the time she took the test, Ms. Smith was a senior clerk who did not do much intake work, and was approximately 30 years old at the time. While not an investigator, Ms. Smith was given the test to assess her working knowledge and research skills for potential upward mobility. Ms. Smith had 11 correct answers out of 34 test questions. Ms. Smith has since been terminated from employment with Respondent. About two weeks after administering the first test, Ms. Owens administered a different test, the “55+ exam”, which pertained to housing regulations for older persons. Petitioner scored 14 correct answers out of 20 test questions on the closed book administration and 16 correct answers out of 20 test questions on the open book administration of the test. Based upon her reluctance to take on an investigative caseload and upon her poor performance on the intake test, it was determined that Petitioner would be demoted to a senior clerk position. A meeting was held on January 26, 2006, with Ms. Owens, Petitioner, and the human resources manager, informing Petitioner of the intended demotion to be effective February 10, 2006. On January 30, 2006, Petitioner submitted her letter of resignation to Ms. Owens effective February 6, 2006. Her resignation was accepted, effective the close of business February 6, 2006. Consequently, the demotion did not take place as Petitioner resigned from employment with Respondent prior to the effective date of the intended demotion. After Petitioner’s resignation, Respondent moved Ms. Dolce into Petitioner’s position of investigation specialist. At that time, Ms. Dolce was 31 years old. While making a vague assertion that Ms. Owens made innuendos regarding younger people “some time ago”, Petitioner acknowledged that Ms. Owens never said anything derogatory to Petitioner about her age. Sherry Taylor began working at FCHR in 1999 as a senior clerk. She moved into an investigator position in April 2000. When Ms. Owens came into the housing unit in 2004, Ms. Taylor was an investigator II. Ms. Taylor was demoted in the fall of 2006 to an investigator I because the quality of her work “went downhill." At the time of her demotion, Ms. Taylor was 30 years old. There is no competent evidence that FCHR used age as a criterion in its decision to demote Petitioner. Timeliness Petitioner sent a document entitled “Technical Assistance Questionnaire for Employment Complaints” to the EEO Office, which alleged that she had been discriminated against by FCHR on the basis of her age. The fax cover sheet shows a date of January 19, 2007, but no “received” stamp appears on the document. The document included a request from Petitioner that the “complaint” not be forwarded to FCHR for investigation. Despite this request, the EEO office forwarded the completed questionnaire to FCHR on January 31, 2007. This date is confirmed by the date stamp indicating receipt, as well as the fax transmittal notation at the top of each page. However, the investigation was conducted by the EEO Office. The Determination: No Cause dated July 30, 2007, issued by FCHR to Petitioner states in part that “the timeliness and all jurisdictional requirements have been met.”
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 11th day of June, 2008, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 2008.
The Issue The issue is whether Respondent discriminated against Petitioner based on his race, national origin, age, sex, and/or disability in violation of section 760.10, Florida Statutes.1
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: PARTIES The Division is an employer as that term is defined in section 760.02(7). Mr. Gonzalez is a white Cuban male older than 40 years old. Out of respect for Mr. Gonzalez’s privacy, the Division stipulated that Mr. Gonzalez suffers from a disability or handicap without requiring him to disclose its nature at the hearing. Mr. Gonzalez has worked for the Division in Tallahassee since April 3, 2015. Mr. Gonzalez was initially hired in an Other Personal Services (“OPS”) capacity as an Operations Analyst I. On June 3, 2016, Mr. Gonzalez received a Career Service appointment to the same position, Operations Analyst I, which remains his position at the Division. Mr. Gonzalez is a switchboard operator. OCTOBER 24, 2019, AND ITS AFTERMATH While Mr. Gonzalez’s complaint broadened over time, the triggering event to his conflict with the Division was a meeting with his immediate supervisor, Operations Service Manager Kimberly Jackson, and several coworkers on the morning of October 24, 2019. Early on the morning of October 24, 2019, Mr. Gonzalez phoned Ms. Jackson to ask if he could take some time off work that morning. Mr. Gonzalez explained that his daughter was having her sick dog put to sleep and that he wanted to be with her because the situation was very emotional. During this conversation, Ms. Jackson told Mr. Gonzalez that she was calling a meeting with all of the switchboard operators later that morning. She left it up to Mr. Gonzalez whether he wanted to miss the meeting. Mr. Gonzalez testified that Ms. Jackson’s manner of giving him the option not to attend the meeting was threatening. He testified that she said, “Well, if you want to play it that way.” He took her message to be that he had better not miss the meeting. Mr. Gonzalez came into work and attended the meeting. Ms. Jackson denied that she said “if you want to play it that way” or anything of the sort. She testified that she told Mr. Gonzalez that he could go be with his daughter. Ms. Jackson was aware that another of her subordinates would also be absent that morning. She planned to discuss the meeting topics with that employee later. She testified that it would not have been a problem to include Mr. Gonzalez in that discussion. At 7:41 a.m. on October 24, 2019, Ms. Jackson sent out a memorandum informing her subordinates of the meeting to be held at 9:00 a.m. The memorandum went out after Ms. Jackson and Mr. Gonzalez spoke on the phone. The timing led Mr. Gonzalez to allege that Ms. Jackson had called the meeting in response to his request for leave, apparently from some malicious desire to prevent him from being with his daughter. Ms. Jackson testified that she had planned to call the meeting before she spoke to Mr. Gonzalez on the phone. The purpose of the meeting was to remind staff of certain office procedures, such as the importance of arriving on time so that the switchboard could begin accepting calls promptly at 8:00 a.m., and the prohibition on excessive personal cell phone use. Ms. Jackson stated that she had no reason for wanting to keep Mr. Gonzalez away from his family. Mr. Gonzalez testified that the meeting was short, no more than five minutes. He sat quietly and listened to Ms. Jackson. When she was finished, he raised his hand to ask a question. Ms. Jackson continually interrupted, making it impossible for him to ask his question. Mr. Gonzalez felt embarrassed and demeaned in front of his fellow employees, but denied ever responding aggressively or in an unprofessional manner. Ms. Jackson gave a vague answer to his question. When he attempted to ask a second question, Ms. Jackson shut down the meeting. Ms. Jackson’s version of the meeting was that Mr. Gonzalez was very unprofessional. He was rude, aggressive, and interruptive. He did not wait for Ms. Jackson to finish before he began peppering her with questions. Mr. Gonzalez constantly asked her to point to agency rules or written policies to support the directives she was giving. Ms. Jackson tried to explain that these were just office procedures that any supervisor can establish, but Mr. Gonzalez would not be satisfied. At one point, he pointed his finger at Ms. Jackson and said, “Ma’am, I listened to you. Now you’re going to listen to me.” Ms. Jackson’s version of events at the meeting is the more credible. Ms. Jackson testified that two newly hired employees were present and she was concerned they would come away with the impression that this was how she conducted meetings. Ms. Jackson testified that Mr. Gonzalez’s behavior at the meeting prompted her to contact her direct superior, Program Administrator Sarah Evans, to discuss the matter. Ms. Evans decided to informally investigate what happened at the meeting. First, Ms. Evans attempted to phone Mr. Gonzalez to get his version. When she was unable to reach him by phone, Ms. Evans sent an email to Mr. Gonzalez asking him to call her. Ms. Evans then proceeded to contact the other employees who were at the meeting. One employee, Tania Membreno, told Ms. Evans that she preferred not to get involved in the matter. Two other employees, Adam Wiman and Stacey Macon, confirmed Ms. Jackson’s version of events. Mr. Wiman told Ms. Evans that the meeting had been “awkward” and that Mr. Gonzalez was rude to Ms. Jackson, continually interrupting her. Mr. Macon told Ms. Evans that he felt uncomfortable during the meeting because Mr. Gonzalez was unprofessional and rude to Ms. Jackson. When Ms. Evans eventually reached Mr. Gonzalez by phone, he refused to give her any information about the meeting without a union representative and Robin Rega, a Department of Health Labor Relations Consultant, present. Mr. Gonzalez hung up on Ms. Evans. Ms. Evans and Ms. Jackson prepared a “supervisor counseling memorandum” to be presented to Mr. Gonzalez because of his behavior at the October 24, 2019, meeting. On October 31, 2019, Ms. Evans and Ms. Jackson met with Mr. Gonzalez and explained that they were providing him with the memorandum as a reminder to remain professional and courteous in the office. Mr. Gonzalez reacted by stating that he was never unprofessional. He attempted to veer the conversation off onto a discussion of another employee whom he believed was unprofessional. Mr. Gonzalez refused to sign the memorandum, though Ms. Evans explained that his signature would only indicate that he had received the document, not that he agreed with its contents. Mr. Gonzalez did agree to take a copy of the memorandum before he left the meeting. The supervisor counseling memorandum was not made part of Mr. Gonzalez’s employment record and did not constitute adverse employment action or disciplinary action against Mr. Gonzalez. It was merely a reminder to Mr. Gonzalez of the behavior and deportment expected of Division employees. The Department of Health’s personnel policy defines “counseling” as “[a] discussion between a supervisor and an employee that identifies a problem, clarifies expectations and consequences, and provides direction for the resolution of the problem.” The Department of Health’s personnel policy does not treat counseling as disciplinary action. Meetings held by supervisors to counsel employees are not considered investigatory interviews, and employees covered by a collective bargaining agreement do not have the right to union representation during counseling meetings. THE GRIEVANCE AND EMPLOYMENT COMPLAINT OF DISCRIMINATION The supervisor counseling memorandum gave Mr. Gonzalez 60 days to respond in writing, if he wished. Mr. Gonzalez decided to file a formal Career Service employee grievance pursuant to section 110.227(4), Florida Statutes. On November 4, 2019, Mr. Gonzalez obtained a grievance form and a copy of the Department of Health’s employee grievance policy from Ms. Rega. On November 12, 2019, Mr. Gonzalez forwarded his completed Career Service employee grievance form, with attached exhibits, to Ms. Jackson via email, with copies to Ms. Evans, Ms. Rega, Mr. Gonzalez’s union representative, and a representative of the FCHR. On its face, Mr. Gonzalez’s grievance complained of “discrimination of age, gender, ethnic [sic].” The six-page narrative attached to the grievance gave Mr. Gonzalez’s version of the events of October 24, 2019, and the subsequent supervisor counseling memorandum. The narrative also alleged that Ms. Jackson had arranged the furniture in Mr. Gonzalez’s office in a way that aggravated his claustrophobia, then refused to allow him to move the furniture. He alleged that Ms. Jackson would not approve his request to take annual leave over the Christmas holidays. He alleged that Ms. Jackson had wrongly asserted that she possessed the authority to deny Mr. Gonzalez’s Family Medical Leave Act (“FMLA”) leave requests. He alleged that the Division had unfairly cut his pay when he moved from OPS to Career Service. Finally, Mr. Gonzalez alleged that persons unknown were sabotaging his efforts to obtain other jobs within the Department of Health. Specifically, he believed he was being denied a veteran’s preference in his applications for other positions in the agency.2 Mr. Gonzalez’s narrative did not explain how any of the actions of which he complained constituted age, gender, or ethnic discrimination, aside from the fact that Kimberly Jackson is a black female. The only solution requested by Mr. Gonzalez in his grievance was for individuals in the Division to “Quit harassment, stalking, and scrutiny; Treatment like other employees; Get my original starting pay, and 10% for violating veterans preference.” The Department of Health’s grievance policy and section 110.227(4) specifically exclude discrimination claims from the Career Service grievance process. Discrimination claims are routed to the agency’s Equal Opportunity Office. On that jurisdictional basis, Ms. Jackson denied the grievance on November 18, 2019. Brenshinita McGee, Manager of the Department of Health’s Equal Opportunity Office, testified that her office investigated the allegations contained in Mr. Gonzalez’s grievance. However, before an investigative memorandum could be completed, Mr. Gonzalez filed an Employment Complaint of Discrimination with the FCHR. This action changed the Equal 2 Mr. Gonzalez’s narrative also included allegations that a Division employee was stalking him and that he was under intense surveillance by his superiors following the issuance of the supervisor guidance memorandum. Mr. Gonzalez presented no testimony or other evidence regarding these allegations, which are therefore found to have been abandoned. Opportunity Office’s role from investigating an internal complaint to responding on behalf of the Department of Health to an external complaint. On February 21, 2020, Mr. Gonzalez filed his Employment Complaint of Discrimination with the FCHR, attaching a copy of his grievance and all supporting information that had previously been sent to Ms. Jackson. On February 28, 2020, Ms. McGee sent an email to Kendricka Howard, an Investigation Manager with the FCHR, requesting clarification as to the issues associated with Mr. Gonzalez’s case. Ms. Howard responded: “The issues associated with this case are: Discipline, Failure to Accommodate, Failure to Hire, Failure to Promote, Terms/Conditions and Wages.” DISCIPLINE The only record evidence of anything resembling a disciplinary action against Mr. Gonzalez was the supervisor counseling memorandum. As found above, a supervisor counseling memorandum is not disciplinary action. There is no evidence that Mr. Gonzalez has ever been disciplined by the Division. Mr. Gonzalez suffered no adverse employment action as a result of the supervisor counseling memorandum or the meeting with his supervisors on October 31, 2019. FAILURE TO ACCOMMODATE The Division stipulated that Mr. Gonzalez suffers from a disability or handicap. However, no evidence was presented to show that Mr. Gonzalez ever requested an accommodation from the Department of Health’s Equal Opportunity Office or that the Department of Health failed to accommodate him. The closest thing to an accommodation claim was Mr. Gonzalez’s allegation that Ms. Jackson would not allow him to move the furniture in his office to alleviate his claustrophobia. At the hearing, Ms. Jackson reasonably explained that all Division office employees are prohibited from moving their own furniture for reasons of personal safety. If employees wish to move their furniture, they must submit a request to the maintenance department. Ms. Jackson had no objection to Mr. Gonzalez reordering the furniture in his office. FAILURE TO HIRE OR PROMOTE Mr. Gonzalez alleges that he was denied the veteran’s preference mandated by section 295.07, Florida Statutes, and Florida Administrative Code Chapter 55A-7, when applying for other positions within the Department of Health. In support of this claim, Mr. Gonzalez referenced applying for three positions between February and March 2018.3 In February 2018, Mr. Gonzalez applied for a Regulatory Specialist II position in the Department of Health’s Office of Medical Marijuana Use. At the hearing, it was established that the Office of Medical Marijuana Use is separate and distinct from the Division. No one in the Division had any decision making authority or advisory role as to who was chosen for the Office of Medical Marijuana Use position. There was no evidence that the Division committed any adverse employment action or discriminated against Mr. Gonzalez with respect to his application for the Office of Medical Marijuana Use position. In March 2018, Mr. Gonzalez applied for a Medical Disability Examiner position with the Division. In accordance with statutory and rule requirements, Mr. Gonzalez received an additional five points as a veteran’s preference, but failed to score well enough on the work sample portion of the interview to warrant an in-person interview. There was no evidence that the Division committed any adverse employment action or discriminated against 3 In all of these applications, Mr. Gonzalez declined to provide information as to his gender, race, ethnicity, or age. As to these job applications, Mr. Gonzalez did not claim unfair treatment on any basis other than the veteran’s preference. Mr. Gonzalez with respect to his application for the Medical Disability Examiner position. In March 2018, Mr. Gonzalez applied for a Management Review Specialist position with the Division. The notice for the position specifically stated: “Current employment with the Division of Disability Determinations processing federal Social Security claims is required.” At all times during his employment with the Department of Health, Mr. Gonzalez has been a switchboard operator for the Division. He did not meet the minimum qualifications for the Management Review Specialist position. There was no evidence that the Division committed any adverse employment action or discriminated against Mr. Gonzalez with respect to his application for the Management Review Specialist Position. TERMS, CONDITIONS, AND WAGES Mr. Gonzalez’s reduction in salary after his voluntary transition from OPS to Career Service was neither adverse employment action nor discriminatory. This reduction in salary was consistent with the Division’s practice for all employees. The Director of the Division, Brian Garber, testified that OPS switchboard operators are paid slightly more than Career Service operators to compensate for the facts that OPS employees do not get paid time off for holidays, do not accrue sick leave or annual leave, and do not participate in the State of Florida’s retirement system. When an OPS operator transitions into Career Service, his or her salary is reduced, but other benefits are obtained that offset the salary reduction. Mr. Gonzalez did not dispute that he received benefits when he transferred from OPS to Career Service, including paid leave, paid holidays, discounted insurance options, and retirement benefits. Mr. Garber testified that he specifically requested that Mr. Gonzalez be paid more than other starting switchboard operators because he speaks Spanish. There was no evidence that the Division committed any adverse employment action or discriminated against Mr. Gonzalez with respect to his wages as a Career Service employee. Mr. Gonzalez claimed that a vacation request was not approved “until [he] had to take measures to HR.” On October 16, 2019, Mr. Gonzalez submitted a request for annual leave the week of Christmas 2019. Ms. Jackson approved his request on November 18, 2019, six days after Mr. Gonzalez filed his complaint with the FCHR. At the hearing, Ms. Jackson explained the delay in approving Mr. Gonzalez’s leave. As the Christmas and New Year’s holidays approach, Ms. Jackson asks all of her subordinates to submit their leave requests by a date certain so that she can arrange for all positions to be covered during that period. She did not approve Mr. Gonzalez’s request until all of her other subordinates had submitted their requests. Ms. Jackson also noted that approval of Mr. Gonzalez’s particular request was contingent upon his accumulating sufficient leave hours before the requested vacation time arrived. In any event, there was no evidence that Mr. Gonzalez was treated disparately or discriminatorily as to his leave requests. The record established that Ms. Jackson has approved every request Mr. Gonzalez has made to use annual leave. Mr. Gonzalez claimed disparate and discriminatory treatment in how his workload is determined, alleging that he was given much more work than the other switchboard operators. The credible evidence reflected that Mr. Gonzalez’s workload is distributed evenly with other switchboard operators. Mr. Gonzalez’s claim about Ms. Jackson’s interfering with his right to take FMLA leave was premised on nothing more than a misunderstanding. On August 21, 2019, at 2:53 p.m., Mr. Gonzalez sent an email to Ms. Jackson stating that he would be absent from work on September 6, 2019, due to a medical procedure. The text of the email did not mention FMLA, though the subject line did read, “Medical Procedure/FMLA.” Ms. Jackson overlooked the subject line and responded to the text, inquiring whether Mr. Gonzalez had submitted a leave request for the date in question. When Mr. Gonzalez responded in the negative, Ms. Jackson nonetheless approved the leave, still not realizing it was FMLA leave and her approval was not required. The approval was given at 3:08 p.m., on August 21, 2019, 15 minutes after Mr. Gonzalez sent his initial email. At the hearing, Ms. Jackson acknowledged her error. Mr. Gonzalez made no showing that he suffered any actual harm from Ms. Jackson’s mistake. Mr. Gonzalez alleged that he has been “given a difficult time when [he tries] to make up [his] time from doctor’s appointments.” This allegation was not supported by record evidence. Ms. Jackson employs a request and approval process for all employees who wish to “adjust their time,” i.e., make modifications from the normal 8:00 a.m. to 5:00 p.m. schedule. The record evidence shows instances in which Mr. Gonzalez properly requested to adjust his time and other instances in which he made time adjustments without prior approval from Ms. Jackson. In neither situation was Mr. Gonzalez “given a difficult time” by Ms. Jackson. To the contrary, the evidence indicates great forbearance by Ms. Jackson in allowing Mr. Gonzalez to adjust his time for doctor’s appointments. Ms. Jackson has no control over the availability of overtime hours. When she is notified by her superiors that overtime is available in her section, Ms. Jackson makes it available equally to all of her subordinate employees. The record indicates that Mr. Gonzalez has both accepted and declined the offers of overtime. There was no evidence that Mr. Gonzalez has ever been denied an opportunity to utilize overtime when it was available. COMPARATOR EMPLOYEES Mr. Gonzalez has not shown that any other employee outside of the protected classes claimed in his FCHR complaint have been treated differently than he has. Mr. Gonzalez actually highlighted the fact that he and several of his OPS counterparts were treated equally when they moved over to Career Service as a group in 2016. The evidence supports a finding that the policies and procedures implemented and reinforced by Ms. Jackson and her supervisors in the Division apply equally to all employees. SUMMARY OF FINDINGS In sum, Mr. Gonzalez’s complaints bespeak a general dissatisfaction with the decisions of his supervisors, in particular his immediate superior, Ms. Jackson. However, disagreements with those in authority do not support claims of discrimination, particularly where the employee cannot establish that he or she has suffered any adverse effects from the disputed decisions. Mr. Gonzalez failed to establish that he was subjected to any adverse employment action by the Division. Mr. Gonzalez offered no evidence that he was treated differently than any other similarly situated employee.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Department of Health, Division of Disability Determinations did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 4th day of February, 2021, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Dee Dee McGee, EO Manager Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399 Rodolfo Gonzalez 2000 Lohman Court Tallahassee, Florida 32311 Louise Wilhite-St Laurent, General Counsel Department of Health Bin A-02 4052 Bald Cypress Way Tallahassee, Florida 32399 Virginia Edwards, Esquire Department of Health Prosecution Services Unit Bin A-02 4052 Bald Cypress Way Tallahassee, Florida 32399 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
The Issue Whether Petitioner timely filed her Employment Complaint of Discrimination ("Complaint") with the Florida Commission on Human Relations ("FCHR"), and, if so, whether FCHR has jurisdiction to entertain Petitioner's Complaint on the merits.
Findings Of Fact Petitioner was previously employed by Respondent as an attorney in its Miami, Florida office. On November 13, 2012, Petitioner tendered her resignation via correspondence entitled a "Notice of Constructive Discharge." The correspondence provided that her resignation would be effective on November 23, 2012. Petitioner's last date of employment with Respondent was November 23, 2012, and she was paid through that date. Petitioner completed a FCHR form entitled Technical Assistance Questionnaire for Employment Complaints ("Questionnare") and signed the same on November 20, 2013. The Questionnare provides on its face the following langauge: "REMEMBER, a charge of discrimination must be filed within 365 days of the alleged act of discrimination." Additionally, the Questionnare describes the principal purpose of the document as follows: The purpose of this questionnaire is to solicit information about claims of employment discrimination, determine whether the Florida Commission on Human Relations has jurisdiction over those claims, and provide charge filing counseling, as appropriate. On December 23, 2013, Petitioner filed an Employment Complaint of Discrimination ("Complaint") against Respondent with FCHR. The Complaint was stamped as received by FCHR on December 23, 2013 at 4:47 p.m. In the Complaint, under section C——"Cause of Discrimination"——Petitioner checked the boxes for sex and retaliation. Petitioner alleged discrimination pursuant to chapter 760 of the Florida Civil Rights Act. The Complaint further alleges that November 23, 2012, was the date that the "most recent discrimination took place." On March 20, 2014, following the completion of its investigation, FCHR issued a Determination: No Jurisdiction, on the grounds that "[t]he complaint was not timely filed."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject petition in its entirety due to lack of jurisdiction. DONE AND ENTERED this 24th day of July, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 July, 2014. COPIES FURNISHED: Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Dietrich Renee Jenkins, Esquire Unit 1503 1861 Northwest South River Drive Miami, Florida 33125 Laurie Michele Chess, Esquire Jones Walker, LLP Suite 2600 201 South Biscayne Boulevard Miami, Florida 33131 Kenneth E. Walton, II, Esquire The Walton Law Firm 1999 Southwest 27th Avenue Miami, Florida 33145 Elizabeth M. Rodriguez, Esquire FordHarrison LLP 100 Southeast 2nd Street Miami, Florida 33131 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issues in this case involve the type of contract (an annual contract versus professional services contract) Petitioner had with Respondent, how that contract was terminated, and when that contract was terminated.
Findings Of Fact The Division has jurisdiction to make findings of fact to determine subject matter jurisdiction. On September 26, 2013, the parties submitted a Joint Pre-Hearing Stipulation in this matter that detailed their respective positions. In the Pre-Hearing Stipulation, Ms. Hernandez asserts that she was offered and accepted a professional service contract (PSC) to teach, effective at the beginning of the 1996/97 school year. She taught under the PSC for three years. At the beginning of the 1999/2000 school year, Ms. Hernandez became an assistant principal;2/ however, she resigned that position in October 2000. Ms. Hernandez returned to work as a teacher under an annual contract for the 2004/05 school year. After again working as an assistant principal for several years, Ms. Hernandez transferred to a teaching position before she requested and was approved to take a leave of absence for both the 2009/10 and 2010/11 school years. In March 2011, Ms. Hernandez notified the School Board of her intent to return to work for the 2011/12 school year. In April 2011, the School Board notified Ms. Hernandez that it was not renewing her employment contract. Ms. Hernandez contends that she was working under a PSC and there was not just cause for her termination or non-renewal of her contract. The School Board's contention is that Ms. Hernandez was on an annual contract, and thus it could terminate or non-renew her contract in 2011.
Recommendation It is RECOMMENDED that Petitioner's request for an administrative hearing be dismissed for lack of jurisdiction. DONE AND ENTERED this 9th day of October, 2013, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 9th day of October, 2013.
