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 The issues for consideration in this hearing are whether the Respondent discriminated against the Petitioner in employment because of his national origin, and whether Respondent unlawfully retaliated against Petitioner by discharging him from employment.
Findings Of Fact At all times pertinent to the issues herein, Respondent, CCCS, was a nonprofit charitable corporation engaged in providing personal financial and credit counseling in Tampa, affiliated with the United Way. It is an employer within the meaning of the Human Rights Act of 1977 and Title 7 of the Civil Rights Act of 1964, as amended. CCCS has adopted, and had in effect at all times pertinent herein, a written policy of equal employment opportunity and affirmative action. This policy is outlined in a personnel policy manual prepared by CCCS which is provided to all employees and which was provided to Petitioner. In August, 1991, CCCS management decided to hire an individual to fill the vacant accounts manager position. Initial screening of applicants was conducted by Gloria Jackson who interviewed several candidates, including Petitioner, and recommended three of these to the President, Diane Trithart. Petitioner, Emmanuel Ebeh, was one of the three recommended and was the successful candidate selected by Ms. Trithart. At the time, Petitioner, who is black and a native of Nigeria, was residing, with his family, at Metropolitan Ministries because he was unable to provide housing and sustenance for his family without employment. He had no experience in either personal financial management or employee supervision. Up until that time, he had worked as a cook, a kitchen helper, a mail room clerk, and a pipe-fitter's helper. However, even with his lack of supervisory experience and an absence of supervisory training, Ms. Trithart felt he should be afforded this opportunity. Petitioner's immediate supervisor was Ms. Jackson. She assisted Petitioner and his family in their move into government assisted housing, even to the extent of having her husband rent a truck to help move Petitioner's personal belongings and the furniture donated by Metropolitan Ministries to their new home. Once installed in the job, Petitioner was provided with a six weeks training program, including a syllabus, to assist him in making the transition into his new position. Nonetheless, it appears that during his training period, Petitioner had difficulties accomplishing his job tasks. Within six weeks, Ms. Jackson met with him to discuss errors made in client deposit entries and at that time, provided him with written procedures to follow. She gave him a two week warning confirmed in a written memorandum dated September 17, 1991, the date of the counseling. On September 26, 1991, Ms. Jackson followed up the two week warning period with another memorandum which noted the continuation of existing problems in Petitioner's department and which extended the warning period to October 4, 1991. Mr. Ebeh continued to experience job difficulties. At first, one of his employees, Ms. Warhul, tried to cover for him, but was unable to continue to do both her own job and his. As a result, she contacted Ms. Jackson and described the situation as she saw it. Ms. Jackson then tried to discuss the matter with Mr. Ebeh. However, whenever she did, he would insist on speaking with Ms. Trithart about the issues, claiming he felt it necessary to resist Ms. Jackson's directions. Ms. Trithart promptly and explicitly explained to Mr. Ebeh that his unjustified resistance of Ms. Jackson's direction constituted insubordination and would not be tolerated. Nonetheless, he continued to resist any guidance from Ms. Jackson, whether in the form of direction or constructive correction, becoming defensive and contending that his intentions were good and he was being misunderstood. He claims that Ms. Jackson was always on his back. Petitioner's performance problems were not isolated however, nor were they restricted to incidents with Ms. Warhul. He frequently had problems with misplaced files, posting entries to wrong accounts and other errors of a similar nature which were observed by other CCCS employees. On one occasions, Ms. Jackson asked Petitioner to prepare a letter to creditors who had worked with CCCS in the past but who were not currently participating in their program. She specifically requested that Petitioner let her review a draft of the letter before it was dispatched. Notwithstanding that direction, Petitioner prepared a letter, dated March 4, 1992, which contained a number of grammatical errors and misstatements of procedure and policy, and dispatched it to approximately 2,500 creditors without allowing Ms. Jackson or anyone else in authority to review or approve it. He thereafter left a note on the desk of Mary Jennus, CCCS' education coordinator, advising her that Ms. Jackson and Ms. Trithart wanted her to make changes in the letter and enclosures. This was not so. On March 19, 1992, Ms. Trithart called a meeting with Petitioner, Ms. Jackson and Ms. Jennus to discuss this letter, and at which she orally reprimanded Petitioner both for sending it out without authority and for the inappropriate use of her name in giving false instructions to Ms. Jennus. This meeting was subsequently memorialized by memorandum. Though management contended Petitioner's letter adversely impacted on the agency's image, he asserts it had good results in that some income was realized. On March 30, 1992, Ms. Jackson prepared a written evaluation covering Petitioner's performance for the prior six months. This report indicated Petitioner had continuing problems in the performance of his duties and in his supervision skills. It also called for a further review in 90 days to assess his progress in meeting the requirements of his job. Petitioner refused to sign this evaluation and requested a meeting with Ms. Trithart. Though a note by Ms. Jackson on the evaluation indicates she would arrange that meeting, it cannot be determined if, in fact, such a meeting took place. However, on April 13, 1992, Petitioner prepared a memorandum to operations personnel in which he alludes to "miserable and harsh treatment from management and especially our boss." He also noted the possibility his employees might not be satisfied with his treatment of them and solicited their comments and complaints to him or to the assistant director. This memo discomfited at least one of his employees, Ms. Warhul, who took exception to it in writing. Ms. Mosley also disagreed with his conclusions regarding a harsh working environment and thought it inappropriate for him to send out such a memo without consulting the other employees in the department. He was the department head, however, and his memo, though it might be considered ill advised and somewhat inflammatory, was from him to the people in his department. He did not claim his conclusions were theirs nor did his comments accuse them of misconduct. A meeting of all operations personnel was called by Ms. Trithart for April 13, 1992, the date of that memo. All employees were given the opportunity to express their concerns and it became apparent that not all operations personnel agreed with Petitioner in his characterization of their work environment. The memorandum of that meeting indicates his subordinates see Petitioner as an individual who broods over situations and lets things build up to a point where he writes a memo rather than discussing the problem. An example of this is Petitioner's note on a memo dated April 13, 1992 encouraging all employees to take their lunch break and reminding them that only time before and after normal duty hours may be considered for compensatory time off. Petitioner describes this memo as "inconsiderate treatment" and concludes it was directed at him because he was not taking lunch breaks because he "was sad and depressed because of how [he] was constantly humiliated." After the meeting on April 13, 1992, Ms. Trithart again reviewed Petitioner's file and determined that in light of his most recent infractions, including the unauthorized creditors letter and the false instructions to Ms. Jennus, and his continuing performance mistakes, it would be best to terminate his employment. Her rationale was that he could not be an effective supervisor if he felt, as he clearly did, that he did not have the support of either his employees or his supervisors, and this was compounded by his insubordination which, she believed, undermined the morale in his department and Ms. Jackson's authority as his supervisor. He was, therefore, discharged on April 13, 1992. None of the employees who testified indicated, nor was there any other independent evidence to establish, that Petitioner had been treated any differently while employed by CCCS than any other employee. By the same token, save the personal impressions testified to by Petitioner, there was no indication that either race or national origin played any part in the decision to terminate his employment and it is found they did not. To the contrary, the evidence is clear that the decision to terminate Petitioner's employment with CCCS was based on his failure to meet required standards in the performance of his duties and nothing more. The same is true regarding his claim that his discharge was in retaliation to his complaint in his April 13, 1992 memo regarding what he perceived as the harsh working environment both he and his subordinates had to endure. In that regard, it is found that the memo in question is, in itself, insubordination and evidence of the improper work climate created by the Petitioner rather than his employers. Had he truly felt the treatment given him was harsh, miserable and unfair, the grievance procedures outlined in the personnel manual he had been given would have provided an appropriate avenue for adjustment as opposed to the inflammatory and insubordinate action he took. Petitioner claims his supervisors did not uniformly apply company standards. He asserts he has been treated differently from white employees who were treated with kindness and politeness and when found to have committed errors in their performance, were given time to improve. For example, he cites the case of a Ms. Sweeny who refused to sign an acknowledgment of error and who was merely demoted instead of discharged. In his case, he notes, he met with hostility. He claims no concern was given to the legal issues involved in his situation and he was discharged right away. This is, however, not the case. The evidence is quite clear that Petitioner was counselled on several occasions and evaluated formally during his period of employment with no discipline taken against him. Only when he published the insubordinate memo of April 13, 1993 was action taken. On the basis of that memo and the record of his substandard prior performance, Ms. Trithart decided to discharge him. Petitioner also claims that Ms. Warhul and others who testified against him were engaged in a conspiracy to hide the unhealthy atmosphere which existed. He asserts he was told by Ms. Warhul she would not support him when he wrote his memo because she was afraid of losing her job. It is his contention that she and he were previously close. In actuality, though she was under his supervision, she gave him much of the training he received. He believes that she and many other employees do not like Ms. Jackson but are afraid to say so. Petitioner offered no independent proof of this contention, however, and it is found to be unsupported. Petitioner also takes exception to the claim by CCCS's management that his English was hard to understand. He claims that during the entire 8 months he worked there, his English was never criticized until such time as the decision was made to discharge him. At that time, he contends, he was told that he did not project the proper image the company desired. Mr. Ebeh also notes that he was constantly confronted with a situation where his immediate supervisor would approve something he did and then deny it. Ms. Jackson would approve in advance something his department proposed and then, when it was not well received, deny approving it. Petitioner claims that because of the actions of CCCS's management, he has undergone great stress. When he applied for the position with the firm he and his family were homeless and he admits he was helped considerably by the job and the company personnel. However, he claims he did not get all the help for free and asserts he has paid back for what he received during those first few weeks. He also claims that he has been maligned by company personnel who reported to his job service counsellor that he was soliciting money from coworkers and that he had a bad body odor. These comments humiliated him and he notes that they did not come about until after he complained to Ms. Trithart. Petitioner has no job now and no income and claims to be suffering from health problems. As of April, 1993, a Department of Health and Rehabilitative Services physician noted that he is suffering from raised cholesterol which interferes with his employment "for the present." His total monthly income for himself, his wife and his four sons is $600.00, out of which he must pay approximately $300.00 in rent and $113.00 for utilities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that a Final Order be entered dismissing Emmanuel Ebeh's Petition for Relief from the alleged unlawful employment practices of discrimination based on race or national origin, and of retaliation filed against the Respondent CCCS. RECOMMENDED this 25th day of June, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1993. COPIES FURNISHED: Emmanuel B. Ebeh 4002 East Pocahontas, #110 Tampa, Florida 33610 James R. Freeman, Esquire Shear, Newman, Hahn & Rosenkranz, P.A. 201 E. Kennedy Blvd., Suite 1000 Tampa, Florida 33602 Sharon Moultry, Clerk Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-4149
The Issue The issues in this case are whether, in violation of the Florida Civil Rights Act, Respondent terminated Petitioner's employment on the basis of her race, or retaliated against her for engaging in protected activity; and whether Respondent subjected Petitioner to a hostile work environment.
Findings Of Fact Respondent Cole, Scott & Kissane, P.A. ("CSK"), is a law firm having offices throughout the state of Florida. Petitioner Latasha McCleary ("McCleary"), an African-American woman, worked for CSK in its Orlando office as a legal assistant from August 7, 2017, through July 31, 2018. However, because McCleary began taking medical leave on June 6, 2018, and never returned to work, her last day in the office was June 5, 2018. Thus, the period of time in which McCleary actually functioned as a regular CSK employee was ten months. During her tenure with the firm, McCleary provided secretarial and administrative support to several attorneys, including partner Bartley Vickers and associates Jeremy Beasley and Shawn Gibbons. McCleary's direct supervisor was the then office manager, Lilliam Hernandez. CSK regarded McCleary as a valued and high-performing employee. Although, as will be discussed, McCleary complains that she was subjected to unfair criticism during the last weeks of her time in CSK's Orlando office, she was never reprimanded, disciplined, or subjected to an adverse employment action. For the first nine months of her employment, McCleary got along well with the attorneys for whom she worked, including Mr. Vickers, and she has no complaints about their treatment of her during this period. The only noteworthy incident or incidents of relevance to have occurred in this time frame are a secretary's use, on one or perhaps more occasions, of the "n- word" in McCleary's presence. An employee's use of this racial epithet in the workplace is, of course, extremely offensive and inflammatory, to say the least, and, if unchecked, could create a hostile work environment. That did not happen here, however. The legal assistant who made the offensive remark (apparently in the presence of peers only, not supervisors or managers) apologized to McCleary when the latter expressed her discomfort. McCleary never reported the incident(s) in writing to the firm's management, as the Employee Handbook required——a fact from which the undersigned infers that she accepted her co-worker's apology——and the bad behavior stopped. The upshot is that this upsetting incident was resolved informally among the affected employees without initiating an investigation by the firm, and a nascent problem was nipped in the bud. The watershed moment in this case occurred on May 7, 2018, at the beginning of McCleary's tenth month with CSK. An expert witness retained by CSK was scheduled to conduct an on- site inspection that day but failed to appear, forcing a last- minute cancelation which caused opposing counsel to incur travel expenses that CSK had to reimburse. McCleary mistakenly had failed, on the previous business day, to confirm the expert's availability, as the firm's routine required, and thus, she bore some responsibility for the unwanted results. That said, there is no evidence that this situation was other than a relatively minor inconvenience that could be fixed, learned from, and forgotten. When the problem came to light on May 7, 2018, Ms. Hernandez, the office manager, sent an email to McCleary reminding her that the inspection "should have been confirmed" beforehand to avoid a "waste[] [of] time and money." McCleary apologized for making a "human error" and promised it would not happen again. On May 9, 2018, Mr. Vickers, the partner, sent an email to McCleary and Mr. Gibbons, the associate, telling them that "some form of confirmation is needed" "for confirming inspection dates." He added: "This is a mistake that I imagine will not happen again, and I am glad we can move past it and look to the future without these types of issues again." The only thing remarkable about these emails is how unremarkable they are. Two points of interest will be mentioned. First, as just suggested, the tone of each message was neither derogatory nor personal, but measured and professional. There was a touch of criticism, to be sure, as would be expected, but the criticism was constructive in nature, not harsh or angry in tone. Second, McCleary was not the only one called to account. Mr. Vickers's email was directed as much to the associate attorney as to McCleary. The next day, Thursday, May 10, 2018, Mr. Vickers conducted a training meeting for the legal assistants in his group, which McCleary attended. There were a number of topics on the agenda, covering a range of administrative tasks that CSK expected its litigation support staff to carry out. Although Mr. Vickers brought up that week's scheduling snafu as an example of miscommunication-driven consequences, no evidence suggests that McCleary's mistake had prompted the meeting. Further, McCleary was not identified in the meeting as having been at fault or involved in the incident. McCleary, however, complains that she was "singled out" during the meeting, "80% [of which, she maintains,] covered what happened with [her] in regards to the May 7th re-inspection." The greater weight of the evidence does not support her characterization of the training session. According to McCleary, Mr. Vickers, who had been a good boss for the previous nine months, suddenly turned into a tyrant around May 10, 2018. McCleary alleged in an email written a few weeks later, on June 1, 2018, that soon after the canceled inspection, Mr. Vickers had begun asking her "idiotic questions to be sure [she knew] her job," and been constantly micromanaging [her] with multiple emails" accusing her of making numerous mistakes. Yet, although this entire period spans just 18 business days, McCleary produced none of Mr. Vickers's alleged, accusatory emails. The greater weight of the evidence does not support McCleary's allegations concerning Mr. Vickers's treatment of her during the month of May 2018. Sometime near the end of May, McCleary sent out notices of taking deposition duces tecum that did not have the document requests attached. McCleary was not solely to blame for this oversight; the attorney handling the case should have reviewed the papers to make sure that everything was in order before service. Still, as the legal assistant, McCleary should have spotted the omission and brought it to the attorney's attention. On the morning of May 31, 2018, after the problem had been discovered, Mr. Vickers sent an email to McCleary and Mr. Beasley, the associate, admonishing them to "stay focused" when preparing deposition notices for service. Similar to the canceled inspection earlier in the month, the incomplete deposition notices were a problem that CSK obviously would rather have avoided; inattention to detail, moreover, is something any reasonable employer should want to correct. There is no evidence, however, that CSK generally, or Mr. Vickers in particular, made a big deal about this incident. Mr. Vickers told McCleary and the associate that he hoped "it would not happen again"——and that, it seems, would be that. Except it wasn't. Later that day, May 31, 2018, McCleary spoke to the office administrator, Johnson Thomas. During this conversation, McCleary complained about working for Mr. Vickers and asked to be transferred to a different group of attorneys. On Friday, June 1, 2018, McCleary again contacted Mr. Thomas, sending him the email mentioned above. This email was the first written notice that CSK received from McCleary concerning her complaints about Mr. Vickers. In the email, McCleary did not allege racial discrimination, per se, but she did include some language which clearly indicated that such a charge might be forthcoming: "I refuse to subject myself to further retaliation, oppression and disrespect from Mr. Vickers. He is creating a hostile working relationship between us. I cannot concentrate on work and am in need of immediate transfer." (emphasis added). The following Tuesday, June 5, 2018, CSK approved McCleary's request to be transferred, assigning her to the work group headed by partner Melissa Crowley. When the announcement was made, Ms. Crowley sent an email to McCleary stating, "Welcome Latasha! I look forward to working with you." McCleary never reported for duty under Ms. Crowley. Instead, she took a sick day on June 6, 2018, and applied for unpaid medical leave. Despite McCleary's having presented somewhat nonspecific reasons, such as heart palpitations and anxiety, the firm granted McCleary's application and placed her on medical leave through July 11, 2018. In mid-July, McCleary provided CSK with a note from her mental health counselor in support of a request to extend the unpaid medical leave until September 5, 2018. On July 12, 2018, the firm informed McCleary that it would not be able to keep her position open that long without hiring a replacement, but agreed to let her remain on leave until July 31, 2018. CSK made it clear to McCleary that she needed to return to work on August 1, 2018, or face dismissal on grounds of abandonment. McCleary did not return to work on August 1, 2018, and the firm terminated her employment. Ultimate Factual Determinations There is no persuasive evidence that CSK took any actions against McCleary motivated by discriminatory animus, or created (or acquiesced to the creation of) a hostile work environment. Indeed, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of unlawful racial discrimination could be made. There is no persuasive evidence that CSK took any retaliatory action against McCleary for having opposed or sought redress for an unlawful employment practice. Ultimately, therefore, it is determined that CSK did not discriminate unlawfully against McCleary on any basis.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding CSK not liable for race discrimination, retaliation, or creating a hostile work environment. DONE AND ENTERED this 20th day of December, 2019, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 20th day of December, 2019. COPIES FURNISHED: Reshad Favors, Esquire Mosaic Law Firm Tenth Floor 1875 Connecticut Avenue Northwest Washington, DC 20009 (eServed) Robert Alden Swift, Esquire Cole, Scott & Kissane, P.A. Tower Place, Suite 750 1900 Summit Tower Boulevard Orlando, Florida 32810 (eServed) Barry A. Postman, Esquire Cole, Scott & Kissane, P.A. Second Floor 1645 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
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, Amanda L. Van Parys', 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 The issues for determination are whether the Florida Commission on Human Relations (Commission or FCHR) lacks jurisdiction under Chapter 760, Florida Statutes (2003), over the claims in the Charge of Discrimination because the claims are barred by the doctrines of collateral estoppel and res judicata; the claims are time-barred by Subsections 760.01(1) and (5), Florida Statutes (2003); or both.
Findings Of Fact Respondent employed Petitioner in Respondent's Code Enforcement Division as a Program Coordinator from sometime in November 1999, until Petitioner resigned his employment on June 13, 2003. On April 2, 2002, while Petitioner was employed with Respondent, Petitioner filed identical charges of discrimination simultaneously with the Commission and the United States Equal Employment Opportunity Commission (EEOC). The charges alleged that Petitioner's employer discriminated against Petitioner on the basis of his race through disparate treatment in pay and promotion, retaliated against Petitioner, and created a hostile work environment for Petitioner. The EEOC assigned case number 150A201984 to the charge of discrimination. On April 29, 2002, the EEOC issued a Dismissal and Notice of Rights. On July 26, 2002, Petitioner filed a civil action in the United States District Court for the Middle District of Florida. The initial Complaint and subsequent Amended Complaint contained the same allegations as those set forth in the charges of discrimination filed with the Commission and the EEOC. The complaints alleged that Petitioner's employer violated Title VII of the Civil Rights Act of 1991 and the Florida Civil Rights Act by discriminating against Petitioner on the basis of race, through disparate treatment in promotion and pay; by retaliating against Petitioner; and by creating a hostile work environment. On February 12, 2004, Petitioner voluntarily dismissed his racial harassment claims in the federal civil case. On March 17, 2004, the federal court entered a Summary Judgment for the employer on all remaining claims and dismissed Petitioner's case with prejudice. The Summary Judgment expressly includes allegations of discrimination through the date of Petitioner's resignation from Orange County on June 13, 2003. On or about June 10, 2004, Petitioner appealed the Summary Judgment to the United States Court of Appeals for the Eleventh Circuit. On September 30, 2004, the Eleventh Circuit affirmed the Summary Judgment. On April 7, 2004, Petitioner filed the Charge of Discrimination over which the Commission determined it has no jurisdiction. The Charge of Discrimination alleges in its entirety: I believe I have been discriminated against pursuant to Chapter 760 of the Florida Civil Rights Act, and/or Title VII of the Federal Civil Rights Act, and/or the Age Discrimination in Employment Act, and/or the Americans with Disabilities Act as applicable: Once I filed a discrimination complaint (EEOC # 150A201984) I was retaliated against and subjected to disparate treatment because of my race (Black). Specifically, I was subjected to different terms and conditions, demoted and unfairly disciplined. Once I filed my complaint I was not invited to attend bi-weekly senior staff meetings and my job duties were diminished and reassigned to other staff. In addition, the entire Citizen Coordination Section which I supervised was eliminated and I was transferred to another Division in a position that had non-supervisory status. The position provided no opportunity for promotion and had minimal job duties. I was unjustifiably given a written reprimand for rude behavior and being absent without proper notification. After I grieved the reprimand it was reduced to an oral warning. One non-African American supervisor received numerous pay increases and unwarranted promotions. Eventually, he surpassed me in salary. Another non-African American supervisor was paid at a higher salary than myself, but did not qualify for the position and falsified the employment application. I filed a complaint with the Orange County Office of Professional Standards but they failed to conduct a fair and thorough investigation. Once I filed my complaint I was subjected to racial discrimination, retaliation and subjected to a hostile working environment from various members of County Administration which defamed my character and good name after working in County government for six years; thus purposely ruining my career to serve as a public servant in Orange County government. Ultimately, I was constructively discharged on June 13, 2003. Joint Ex. 18. The Commission investigated Petitioner's allegations in the Charge of Discrimination. The Commission provided Petitioner with an opportunity to explain how the allegations differed from the matters that the federal court disposed of in the Summary Judgment. Petitioner responded to the Commission in a timely manner. On July 28, 2004, the Commission determined that it did not have jurisdiction over the claims in the Charge of Discrimination. In relevant part, the Commission specifically stated: The Respondent is an employer within the meaning of one or more of the following laws: (a) the Florida Civil Rights Act of 1992, as amended, §760, Florida Statutes (2002); (b) Title VII of the Civil Rights Act of 1964, as amended; (c) the Age in Discrimination in Employment Act (ADEA); and/or (d) the Americans with Disabilities Act (ADA), however, all jurisdictional requirements for coverage have not been met. Federal case law interpreting Title VII is applicable to cases arising under the Florida Civil Rights Act because the Florida act was patterned after the federal civil rights laws. Florida State University v. Sondel, 685 So. 2d 923, 925 (Fla. 1st DCA 1996). On or about May 17, 2004, the Middle District of Florida, Orlando Division, decided the Complainant's claims against Respondent for discrimination and retaliation on summary judgment and dismissed all claims with prejudice. The failure to promote claim was dismissed for failure to exhaust administrative remedies. Complainant's complaint consists of substantially the same claims decided by the civil court. A dismissal of claims with prejudice is a final order. See Kobluer v. Group Hospitalization and Medical Services, Inc., 954 F. 2d 705 (11th Cir. 1992). As such, the appellate court has jurisdiction to decide such issues. Id. See also Solar v. Merit Systems Protection Bd., 600 F. Supp. 535 (D.C. Fla. 1985). The Commission does not have the authority to re-investigate and re-decide issues that were decided by the civil court, even if the reason for dismissal was failure to exhaust administrative remedies. See DOAH Docket Sheet filed 9-1-04. The Charge of Discrimination and Petition for Relief in this proceeding do not allege any acts or violations that were not raised in, and ruled on, by the federal court in prior litigation. Several of the allegations refer to matters that occurred more than 365 days before the filing of the Charge of Discrimination on April 7, 2004, including allegations contained in the charges of discrimination that Petitioner filed simultaneously with the Commission and EEOC on April 1, 2002. Other allegations of discrimination, hostile work environment, and retaliation through June 13, 2003, when Petitioner resigned from his employment with Respondent, are included in the Amended Complaint filed in federal court. It is undisputed that the allegations in this proceeding concerning demotion and transfer to a non-supervisory position refer to a transfer to Respondent's Neighborhood Services Division on June 16, 2003. The Summary Judgment expressly states that the Neighborhood Services Division "transfer has also become a part of this suit." The Summary Judgment notes that the transfer to the Neighborhood Services Division is an incident of retaliation alleged by the employee and ruled that the transfer was not retaliatory. Petitioner included the transfer in his Initial Brief to the United States Court of Appeals for the Eleventh Circuit and also argued that the elimination of his duties, his exclusion from key meetings, and the closing of the Citizen Coordination Section that he had supervised all supported his retaliation claim. The order affirming the Summary Judgment considered the issue of the alleged retaliatory transfer, the elimination of Petitioner's job duties over time, and an allegedly unwarranted written reprimand, and determined there was no retaliation. The Charge of Discrimination in this proceeding alleges, in relevant part, that the elimination of the Citizen Coordination Section that Petitioner had supervised was discriminatory and/or retaliatory. The order affirming the Summary Judgment considered the issue of the elimination of Petitioner's job duties over time and did not find retaliation. It is undisputed that the allegations in the Charge of Discrimination in this proceeding refer to a written reprimand issued by Petitioner's supervisor in March 2003. The written reprimand was part of the federal litigation, including the employee's Statement of Facts in Response to Orange County's Motion for Summary Judgment and in the employee's supporting exhibits. The order affirming the Summary Judgment specifically referred to the written reprimand and did not determine that the reprimand constituted retaliation. Moreover, neither DOAH nor the Commission has statutory authority to consider allegations concerning the written reprimand because those allegations involve acts that occurred more than one year before the filing of the Charge of Discrimination within the meaning of Subsection 760.11(1), Florida Statutes (2003). It is undisputed that allegations in the Charge of Discrimination in this proceeding concerning disparate pay for two non-African American supervisors referred to higher pay for supervisors, identified in the record as Mr. Robert Hildreth and Mr. Ed Caneda, that occurred in March 2002. The federal civil court previously analyzed Petitioner's claims of pay disparity related to both supervisors. The court found that Petitioner was not similarly situated to either supervisor. The Charge of Discrimination in this proceeding alleges that Respondent subjected Petitioner to a hostile working environment when various members of the Orange County Administration defamed Petitioner's character and good name. Petitioner fully addressed the allegations of harassment and hostile work environment in his response to the motion for summary judgment in federal court. Petitioner stipulated to a dismissal with prejudice of his hostile work environment claims, and the federal court ruled that Orange County was the prevailing party on Petitioner's claims for hostile work environment. It is undisputed that the Charge of Discrimination in this proceeding does not contain any allegations concerning the failure to promote Petitioner. However, Petitioner did raise this issue and litigated the issue in federal court. The federal court ruled that Petitioner did not exhaust his administrative remedies concerning allegations that Respondent failed to promote Petitioner and that the claim arose in January 2002, prior to date when Petitioner filed simultaneous claims with the EEOC and FCHR. More than two years passed before Petitioner filed the Charge of Discrimination in this proceeding. Accordingly, Petitioner's claim of promotion discrimination falls outside the statutory one-year filing requirement prescribed in Subsection 760.11(1), Florida Statutes (2003). In any event, the claim that Respondent failed to promote Petitioner is not a new issue that was beyond the scope of the Summary Judgment. It is undisputed that allegations in the Charge of Discrimination in this proceeding concerning the alleged failure of Respondent's Office of Professional Standards (OPS) to conduct a fair and thorough investigation of his discrimination complaint referred to an investigation into Petitioner's complaint in March 2002. OPS issued its final report on July 3, 2002, approximately 21 months before Petitioner filed the Charge of Discrimination in this proceeding. Accordingly, the complaints about the OPS investigation fall outside the statutory one-year filing requirement set out in Subsection 760.11(1), Florida Statutes (2003). The federal litigation included identical allegations concerning the OPS investigation. During the federal case, Petitioner's attorney deposed Mr. William Moore, the manager of OPS, and questioned Mr. Moore extensively about the way OPS investigated Petitioner's complaint. In response to the motion for summary judgment, Petitioner specifically claimed that the investigation undertaken by OPS was unfair and discriminatory. The complaint in the Charge of Discrimination in this proceeding is not a new issue or claim, but is identical to the issue litigated in federal court. Allegations in the Charge of Discrimination that Respondent excluded Petitioner from key meetings refer to events in September 2001. The same allegations were litigated in federal court. Petitioner outlined his allegations to the federal court that allegedly showed his exclusion from key meetings. Petitioner also appealed the issue of exclusion to the appellate court. The Charge of Discrimination presents no new issue, and the issue falls outside the one-year filing requirement in Subsection 760.11(1), Florida Statutes (2003). It is undisputed that the allegation in the Charge of Discrimination that Respondent constructively discharged Petitioner, refers to being demoted, reprimanded, excluded from meetings, and transferred to the Neighborhood Services Division. The allegation of constructive discharge is not a new claim, but is the same claim that was litigated in federal court.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order dismissing this proceeding for the reasons stated in this Recommended Order. DONE AND ENTERED this 25th day of January, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 25th day of January, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan T. Spradley, Esquire Deborah L. La Fleur, Esquire Gray Robinson, P.A. Post Office Box 3068 Orlando, Florida 32802 Kelvin D. Bodley Post Office Box 680507 Orlando, Florida 32686-0507 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Petitioner was discriminated against on the basis of his race, color, or national origin in violation of Section 760.10, Florida Statutes (2000).1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Bamawo is a black male from Nigeria. Mr. Bamawo began working for the Department at the Dade Correctional Institution ("DCI") as a correctional officer in March 1993. At the times material to this proceeding, Mr. Bamawo was a career service employee whose duties included the care, custody, and control of inmates of the institution. Mr. Bamawo normally worked the third shift, from 2:00 p.m. to 10:00 p.m. During most of the time Mr. Bamawo was employed at DCI, Captain Scott Pardue, as the third shift supervisor, directly supervised Mr. Bamawo. According to Mr. Bamawo, he and Captain Pardue did not "see eye-to-eye" even though Mr. Bamawo tried to get along with Captain Pardue. The first incident that Mr. Bamawo considers discriminatory occurred in 1995, when Captain Pardue formally disciplined Mr. Bamawo for writing graffiti.3 Mr. Bamawo denies that he wrote the graffiti, and he made a verbal complaint to a superior officer identified as "Colonel Thompson." Mr. Bamawo also asserts that, in 1995, an Anglo corrections officer was promoted to sergeant, and Mr. Bamawo was required to follow his orders. Mr. Bamawo asserted that he made many complaints to Captain Pardue about this sergeant but that Captain Pardue did nothing. Also in 1995, Captain Pardue made two remarks to Mr. Bamawo that Mr. Bamawo considered offensive: On one occasion, Captain Pardue apparently was looking at a picture of an African woman in a National Geographic magazine when he asked Mr. Bamawo if "you people live in houses or sleep in trees"; Mr. Bamawo believed Captain Pardue was making a derogatory comment about Mr. Bamawo's being a native of Africa. Another occasion was at Thanksgiving, when Mr. Bamawo brought a can of corn to a covered-dish lunch; Mr. Bamawo opened the can of corn and set it on the table with the other food, and Captain Pardue asked if this was the way people in Africa ate corn. These remarks caused Mr. Bamawo to be humiliated and embarrassed in front of his co-workers. Mr. Bamawo asserts that Captain Pardue refused to approve his requests for time off the job but would approve time off for Anglo officers. When Captain Pardue refused Mr. Bamawo's requests for time off, Mr. Bamawo asked other captains for approval, and, when they refused to approve his requests for time off, Mr. Bamawo called in sick. Mr. Bamawo recalls that, on one occasion, he was forced to miss an appointment because Captain Pardue ordered him to work overtime. According to Mr. Bamawo, Captain Pardue accused Mr. Bamawo of being a minute late on one occasion and penalized him, although Mr. Bamawo recalls that Captain Pardue did not penalize others for being late. It was Mr. Bamawo's perception while he worked at DCI that, countless times, Captain Pardue changed the work assignments of Anglo officers when they requested a change, but that Captain Pardue never changed Mr. Bamawo's work assignment when he requested a change. Mr. Bamawo believed that he was given the assignments that no one else wanted. On March 21, 2000, Mr. Bamawo was involved in an altercation with Sergeant Frankie Tindall. Mr. Bamawo called Sergeant Tindall "bitch" and threatened to "blow away" Sergeant Tindall when Sergeant Tindall questioned Mr. Bamawo about trash that littered his post.4 On April 23, 2000, Captain Pardue designated Correctional Officer Orol as third-shift supervisor in DCI's north annex "Yard One"; Mr. Bamawo was one of three other correctional officers assigned to Yard One at the time. As designated supervisor, Mr. Orol had the authority to assign tasks to the three other officers. Mr. Bamawo protested Captain Pardue's choice of Mr. Orol because Mr. Orol had been out of the academy only six months; Mr. Bamawo felt that he should have been designated supervisor because he was the senior officer on the shift. Captain Pardue told Mr. Bamawo that he felt more confident with Mr. Orol in the position of supervisor. Mr. Bamawo told Captain Pardue that he was going to file a grievance. At some point during the daylight hours of the third shift on April 23, 2000, Mr. Orol told Mr. Bamawo to complete a check of the perimeter fence, which Mr. Bamawo considered a difficult job to do in the daylight because it was very hot work. Mr. Bamawo refused the order and told Mr. Orol that he would do the fence check when the sun went down. After a time, Mr. Orol called Mr. Bamawo on the radio and told him again to check the perimeter fence; Mr. Bamawo again refused, using a radio shorthand phrase meaning, "Do it yourself." Captain Pardue was monitoring the radio transmission and heard the exchange between Mr. Bamawo and Mr. Orol. Captain Pardue thought that Mr. Bamawo had responded to Mr. Orol in a "nasty" tone of voice, and, fearing that Mr. Bamawo and Mr. Orol might get into a confrontation, Captain Pardue radioed Mr. Bamawo and told him to come to the control room. Captain Pardue took Mr. Bamawo into a copy room and confronted him about his attitude toward Mr. Orol. Mr. Bamawo again complained about Captain Pardue's choice of Mr. Orol as supervisor rather than Mr. Bamawo. During the discussion, Mr. Bamawo became agitated, turned, and walked away from Captain Pardue. Captain Pardue called to him and told him to come back; Mr. Bamawo turned back and approached Captain Pardue with his fists clenched, called Captain Pardue "bitch," and said he would "bust" Captain Pardue.5 At this point, Captain Pardue, fearing for his safety, called Jeffrey Wainwright, who was the acting warden of DCI. After talking with Captain Pardue and Mr. Bamawo, Mr. Wainwright reassigned Mr. Bamawo to the women's facility across the street from DCI. Mr. Bamawo threatened to file a discrimination complaint if Mr. Wainwright did anything to him as a result of the incident with Captain Pardue. Mr. Bamawo was terminated from his employment with the Department on May 4, 2000. Mr. Bamawo appealed his termination to PERC, which found that the Department had just cause to terminate him based on the incidents of March 21 and April 23, 2000. Mr. Bamawo testified that, through the years, Captain Pardue made "countless" derogatory remarks about Mr. Bamawo's race and national origin. At first, according to Mr. Bamawo, he thought that Captain Pardue was joking, but that, eventually, he saw hate behind Captain Pardue's remarks.6 Mr. Bamawo also claims that Captain Pardue gave him bad work assignments; refused to give him days off; and used rookie officers like Mr. Orol to "agitate" him. Mr. Bamawo believes that he was terminated in retaliation for having threatened to file a grievance against Captain Pardue for unprofessional conduct because Captain Pardue designated Mr. Orol as the supervisor on April 23, 2000, and allowed him to give orders to more senior correctional officers. Other than his complaint to "Colonel Thompson" about the graffiti incident in 1995, Mr. Bamawo did not complain during the years he worked at DCI, either verbally or in writing, that Captain Pardue made racist remarks or derogatory remarks about his national origin or that Captain Pardue discriminated against him in any respect. Mr. Bamawo stayed in his job as a correctional officer at DCI because he liked the job, thought everyone was friendly, and liked working with the inmates. He had no problem with anyone on the job except Captain Pardue and Sergeant Tindall.7 Summary The evidence presented by Mr. Bamawo is not sufficient to support a finding that his termination by the Department was motivated by discriminatory intent or retaliatory. Mr. Bamawo failed to present any evidence to support a finding that the Department has ever imposed a lesser penalty on anyone not a black or a person of African origin for having threatened a Department sergeant or captain with violence. Mr. Bamawo has failed to present sufficient evidence to support a finding that his termination was retaliatory because he had not, at the time he was terminated, filed an employment discrimination complaint; rather, Mr. Bamawo had merely threatened Mr. Wainwright that he would file such a complaint if disciplinary action were taken against him for the April 23, 2000, incident involving Captain Pardue. The evidence presented by Mr. Bamawo is not sufficient to support a finding that he was subjected to continual harassment based on his race or national origin such that his ability to function as a correctional officer was impeded. Although Mr. Bamawo, as a black man of African origin, is a member of two protected classes, he did not present evidence sufficient to establish that he was treated differently from other correctional officers with respect to pay, assignments, time off, or any other aspect of his employment with the Department, and he did not present sufficient evidence to support a finding that he was forced to endure an abusive and hostile work environment at DCI. The evidence submitted by Mr. Bamawo is sufficient to establish that, in 1995, Captain Pardue made a remark about Africans sleeping in trees and a remark about the manner in which Africans served canned corn, but, even though Mr. Bamawo was humiliated and embarrassed by these boorish remarks, these two isolated instances of derogatory comments based on race and national origin are not indicative of a pervasively hostile or abusive work environment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief of Oghenerhoro Bamawo. DONE AND ENTERED this 18th day of September, 2003, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2003.
Findings Of Fact 1. Petitioner (Randolph) is an African-American female. 2. Petitioner was hired by Respondent on June 2, 1997, and was terminated by Respondent from her employment on September 30, 1997. 3. When initially hired, Petitioner’s official employment class title was Other Personnel Services (OPS) Paralegal Specialist. 4. On July 1, 1997, approximately one month after her date of employment, Petitioner’s official employment class title was changed to Administrative Secretary and Petitioner’s pay plan status was changed from OPS to Career Service. 5. On September 1, 1997, Petitioner's class title was reclassified to Paralegal Specialist. 6. From July 1, 1997, until the date of her termination, Petitioner was employed in a probationary status by DOAH with her primary job responsibilities being that of a proofreader. 7. Probationary employees are not entitled to progressive discipline and can be terminated at will pursuant to Florida Administrative Code Rule 60L-36.005. 8. Ann Cole, the clerk of DOAH, interviewed all candidates for the newly created proofreader position. 9. There were several applicants for the proofreader position and after a series of tests and interviews Ann Cole determined that Petitioner was the best applicant for the proofreader position and Petitioner was hired for the job. 10. Approximately one month after Petitioner was hired, a second proofreader (Dr. Rappendelli) was hired. Dr. Rappendeli is a white female. 11. Both Petitioner and Dr. Carol Ripandelli were supervised at DOAH by Ann Cole. ATTENDANCE HISTORY 312. During the first month of her employment Petitioner shared a work area in DOAH’s mailroom with current DOAH employee Elma Moore, an African-American female. 13. Elma Moore typically arrived at work between 7:00 and 7:15 a.m. even though the required start time for employees of the clerk’s office was 8:00 a.m. 14. Elma Moore was able to directly observe the times during which Petitioner arrived at work. Ms. Moore noted that Petitioner reported to work forty-five minutes late on her first day. Ms. Moore further noted that Petitioner would often be late. 15. Elma Moore was relocated to another part of the clerk’s office when Dr. Rappendelli was hired. 16. Elma Moore, even from her new workstation, continued to be situated such that she was able to observe the times at which Petitioner customarily arrived at work. 17. Elma Moore testified that during the four month period that Petitioner worked for DOAH, at least two to three times each week, Petitioner would arrive at work approximately ten to thirty minutes beyond the mandatory 8:00 a.m. start time for employees. 18. The testimony of Elma Moore is further corroborated by the affidavit of Deanna Hartford. 19. Ms. Hartford, who was the Deputy Clerk Supervisor for DOAH during Petitioner’s period of employment, stated that she observed Petitioner arrive to work late, without notice, on several occasions during her OPS employment and during her career service probationary employment. 20. Ms. Hartford stated in her affidavit that around the first week of September 1997 she was asked by Ann Cole to observe Petitioner’s attendance. Ms. Hartford noted that during this period of observation Petitioner arrived to work at’ the following times on the dates as indicated: September 8, 1997, 8:20 a.m.j; September 9, 1997, 8:25 a.m.; September 10, 1997, 8:10 a.m.; and September 17, 1997, 8:20 a.m. 21. Ms. Hartford reported to Ann Cole, Petitioner's supervisor, that Petitioner was frequently late for work. 22. This is consistent with Elma Moore’s testimony that Petitioner, at least two to three days per week, was customarily late for work in excess of ten minutes. 23. Petitioner attempted to contradict the testimony of Elma Moore and the affidavit of Deanna Hartford by testifying that she was told by her supervisor, Ann Cole, to make up her tardy time thereby excusing the fact that she was habitually late for work. 24. Ms. Cole stated the importance of proofreaders being punctual to work, and testified that she and Petitioner had at least two meetings where they discussed Petitioner’s tardiness issue prior to her termination. 25. Ms. Cole stated that she spoke with Petitioner about her timesheet and attendance, and the need for Petitioner to tell her when she is late and how she plans to make up her time. 26. Ms. Cole stated that Petitioner’s communication regarding her promptness and plans to make up time never improved. 27. Ms. Hartford stated that she never observed Petitioner disclose her late arrivals to her supervisor, Ms. Cole. On more than one occasion, Ms. Hartford stated, she reported Petitioner’s tardiness to Ms. Cole, who indicated she was unaware of the late arrival. PHONE USE 28. Unlike some of the other jobs in the clerk's office, the proofreader’s duties and responsibilities did not require the utilization of the telephone. 29. Elma Moore stated that during the time that she shared an office with Petitioner, her desk was in close proximity to Petitioner’s desk and that on several occasions she noticed that Petitioner was talking on the telephone. 30. Elma Moore stated that Petitioner was using the telephone for personal calls frequently. 31. Elma Moore further testified that she knew that the responsibilities and duties of the proofreader did not require Petitioner to use the telephone. 32. Deanna Hartford noted in her affidavit that she personally observed that Petitioner was always on the phone. 33. Ms. Hartford also noted in her affidavit that other employees at the Clerk’s office had complained to her about Petitioner’s excessive use of the telephone. 34. Ms. Hartford advised her supervisor Ann Cole about Petitioner’s excessive phone use. 35. In response to the complaint about Petitioner's excessive use of the telephone, Ms. Cole contacted DOAH’s information services department and requested that they audit all of the telephone extensions for the clerk’s office. 36. The audit results for the clerk’s office revealed that during the audit period, employees, excluding Petitioner, averaged 85.5 outgoing phone calls. 37. Petitioner, however, had 294 outgoing calls attributed to her extension during this period. Dr. Carol Ripandelli, the other proofreader, had 79 outgoing calls attributed to her extension during this same period. 38. The audit results for the clerk’s office revealed that during the audit period, employees, excluding Petitioner, averaged 1.6 outgoing calls that exceeded ten minutes in duration. 39. The number of outgoing calls exceeding ten minutes in duration that were attributed to Petitioner's extension during the audit period totaled thirteen. Dr. Carol Ripandelli had only two outgoing calls that exceeded ten minutes in duration attributed to her extension during the audit period. 40. Petitioner denied having made the number of phone calls attributed to her extension. Petitioner also charged that it was possible that other employees could have made outgoing calls from the phone on Petitioner’s desk. 41. Elma Moore testified that it was neither the practice nor the custom of employees of the clerk’s office to regularly use the telephone of other employees. INITIATIVE 42. Deanna Hartford, in her affidavit, noted that in July of 1997 she was asked by Ann Cole to provide additional training to the proofreaders. 43. Petitioner and the other proofreader were instructed to inform Ms. Hartford when they were caught up with their work so that the additional training could be provided. 44. Dr. Carol Rappendeli, the OPS proofreader, sought and received additional training in several areas including filing, assisting in the quarterly file purge and destruction, outgoing docketing procedures, and maintaining the Florida Administrative Code supplements. 45. Petitioner never sought additional training as requested. 46. Ann Cole observed Petitioner nodding off on at least three occasions while in an important proofreading standards meeting. 47. Ms. Cole observed Petitioner cutting coupons at her desk the morning of September 22, 1997, during business hours. 10 48. Elma Moore also testified to the fact that Petitioner, during business hours would frequently work on a personal book when she wasn’t proofreading. DISRUPTIVE AND RUDE BEHAVIOR 49. Ms. Cole testified that along with the attendance problems and telephone usage, Petitioner also had attitude problems. 50. On two occasions, Petitioner felt the need to apologize for rude comments made to her supervisor, Ms. Cole. 51. Ms. Cole observed rude behavior by Petitioner directed toward Dr. Ripandelli when they were discussing proofreading on a particular order. 52. Ms. Cole stated that when Petitioner gets in one of her moods, teamwork between Petitioner and Dr. Ripandelli is ineffective. 53. Ms. Cole testified that she had to speak with Petitioner about her radio and that it was so loud it caused a disturbance in the break room. 54. Dr. Ripandelli testified that Petitioner’s radio was so loud that she bought herself headphones in order to drown out Petitioner’s radio. i 55. In contrast, Ms. Cole testified that Dr. Ripandelli gets along with all the judges and that Dr. Ripandelli interacts fine with her. TERMINATION 56. Ms. Hartford stated that Petitioner never discussed with her any need to accommodate her for a disability or for her religion. 57. Ms. Hartford further stated that Petitioner never mentioned that she was being discriminated against for any reason. Ms. Hartford never observed Petitioner walk with a limp, or have sores or bandages on her legs. 58. Petitioner was terminated on September 30, 1997, due to her chronic tardiness, excessive use of the telephone, and her general failure to demonstrate initiative.
Conclusions Petitioner: Ms. Audrey Randolph, Pro Se 2644 Edgewood Avenue, West Jacksonville, FL 32209-2431 904-713-9913 For Respondent: Mr. Linzie F. Bogan, Esquire Office of the Attorney General PL-01 The Capitol Tallahassee, FL 32399 850-414-3300 ext. 4650
Recommendation 29 In the present case, Respondent showed a legitimate reason for discharging Petitioner. Petitioner failed to establish a prima facie case of discrimination based upon her race, religion, disability or marital status. Petitioner also failed to demonstrate that Respondent discriminated against her in retaliation for Petitioner engaging in an activity that was protected by Section 760.10(7), Florida Statutes. Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 4A day of Vabir ; 2003, in Tallahassee, Leon County, kative Law Judge sd Way, Bin A-0 32398-1703 Filed with the clerk of the Florida Commission of Human Relations this 2" day of December 2003. 30 COPIES FURNISHED: Ms. Audrey Randolph 2644 Edgewood Avenue, West Jacksonville, FL 32209 Mr. Linzie F. Bogan, Esq. Office of the Attorney General PL-01 The Capitol Tallahassee, FL 32399 Harry Hooper Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Secretary of Commission Mike Hanson Room 1801, The Capitol Tallahassee, Florida 32399-0001
The Issue Whether Respondent was terminated as a deputy sheriff for offenses for which he had been previously disciplined and, if so, whether the termination is barred by principle of "double jeopardy."
Findings Of Fact At all times pertinent to this case, Respondent, Lendel Bright (Respondent), was employed by Petitioner, Everett S. Rice, Pinellas County Sheriff (Petitioner or the Sheriff), as a deputy sheriff or a sergeant. In May 2000, Petitioner received a complaint from Mark Parker, the husband of Belinda Parker, that his wife was having an extra-marital relationship with Respondent. At the time this complaint was filed, Respondent was a sergeant with the Pinellas County Sheriff's Office (Sheriff's Office), assigned to the Child Protection Investigations Division, and Belinda Parker was a civilian employee in the same division and was supervised by Respondent. As a result of the May 2000 complaint, Respondent's supervisor, Lt. Dennis Fowler, forwarded an Administrative Inquiry Form to the Administrative Investigations Division (AID). The inquiry form was subsequently returned to the command level for investigation and documentation. When questioned by Lt. Fowler and Capt. Rodney Steckel, Respondent denied having an extra-marital relationship with Ms. Parker. The allegation was also denied by Ms. Parker. The May 2000 complaint filed by Mr. Parker was later determined to be unfounded based upon several factors. First, during the investigation, both Respondent and Ms. Parker made statements denying the relationship. Second, Mr. Parker retracted his May 2000 complaint and requested that the matter be abandoned. On or about January 31, 2001, Mr. Parker again alleged that Respondent was having an extra-marital relationship with his wife. In this instance, the complaint was made to Capt. Steckel, who on February 1, 2001, made a second complaint to the Sheriff's Office. As a result of this second complaint, an investigation was initiated and conducted by the AID. This matter was assigned Administrative Inquiry No. AI-01-009 (AI-01-009). During the course of the investigation of AI-01-009, Respondent, while under oath, denied having an extra-marital relationship with Ms. Parker. Respondent also denied utilizing his agency cell phone for personal phone calls to Ms. Parker. At the conclusion of the investigation of AI-01-009, the matter was referred to the Administrative Review Board (ARB). Thereafter, the ARB convened to conduct a proceeding. At the ARB hearing, Respondent, while under oath, denied having an extra-marital relationship with Ms. Parker. Respondent also denied utilizing his agency cell phone for personal phone calls to Ms. Parker. In making these denials of the existence of an extra- marital relationship with Ms. Parker to the AID investigators and to the ARB, Respondent was untruthful. At the conclusion of the ARB hearing, the ARB recommended to Petitioner that Respondent be found guilty of violating Sheriff's Office rules and regulations related to untruthfulness and performance of duty. The ARB recommended that Respondent receive a ten-day suspension for these violations. On June 19, 2001, after the ARB hearing, at the request of Respondent's attorney, Petitioner agreed to modify the ARB recommendation. As part of this agreement, Petitioner did not accept the ARB's recommended finding of untruthfulness against Respondent, but instead found that Respondent was guilty of a single Level Five violation related to duties and responsibilities. For Respondent's part, he agreed to accept a demotion from the rank of sergeant to deputy sheriff and to waive his right to seek review of the discipline under the Civil Service Act. This agreement was reached to avoid Respondent's jeopardizing his law enforcement certificate with the State of Florida, Department of Law Enforcement, by having a finding of untruthfulness. Respondent voluntarily entered into the agreement discussed in paragraphs 13 and 14, and he received the benefit of the agreement. Pursuant to the agreement, there was no finding of guilt against Respondent as it relates to untruthfulness, and Respondent was demoted from sergeant to deputy sheriff, effective July 15, 2001, and continued to work for the Sheriff's Office. With this resolution, AI-01-009 was closed on or about June 19, 2001. The Notice of Sustained Complaint, dated June 19, 2001, to Respondent from the Sheriff, memorialized the agreement between the Sheriff and Respondent that there would be no finding as to untruthfulness and that Respondent would be demoted. This Notice of Sustained Complaint concerned AI-01-009 and was based on incidents which occurred between "January 2000 and February 2001." Between December 2001 and December 2002, after entering into the agreement discussed in paragraphs 13, 14, and 15, Respondent wrote a series of memoranda and correspondence to the Sheriff and others within the Sheriff's Office administration. In those written communications, Respondent continued to deny the existence of an extra-marital relationship between himself and Ms. Parker. In those communications, Respondent also alleged that the investigation in AI-01-009 was conducted inappropriately, that he was not treated fairly and equally, and that he had not requested the demotion that he agreed to in June 2001. In making the denials described in paragraph 17 regarding the extra-marital relationship between himself and Ms. Parker and the manner in which AI-01-009 was conducted and resolved, Respondent was untruthful. In February 2002, the AID again received a complaint from Mr. Parker that his wife was continuing to have an extra- marital relationship with Respondent. As a result of the complaint and additional information provided by Mr. Parker, the AID again initiated an investigation into the allegations of the extra-marital relationship. In July 2002, Ms. Parker provided a sworn statement admitting the existence of an extra-marital relationship between herself and Respondent. Ms. Parker also provided additional information regarding the circumstances surrounding that extra- marital relationship. In December 2002, the Sheriff submitted an interoffice memorandum to the AID notifying Respondent that he was the subject of an administrative investigation regarding violations related to truthfulness and conduct unbecoming a member of the Sheriff's Office. Petitioner stated in the interoffice memorandum that as a result of Respondent's correspondence, in which he repeatedly denied having an inappropriate relationship with Ms. Parker and claimed that the prior investigation was unfair, Petitioner "feels obligated to take the extraordinary measure to direct the Administrative Investigations Division to 're-examine this particular matter' and present the findings to the ARB." As a result of the December 2002 interoffice memorandum, the AID conducted an investigation into the actions of Respondent as they related to his conduct, the use of agency equipment, and his testimony and statements previously given to supervisors or in previous investigations. This matter was assigned Administrative Inquiry No. AI-02-082 (AI-02-082). During the investigation of AI-02-082 that followed, the AID confirmed the statement of Ms. Parker regarding the existence of an extra-marital relationship between her and Respondent. As part of the investigation of AI-02-082, on January 22, 2003, Respondent gave a sworn statement, in which he admitted to having an extra-marital relationship with Ms. Parker. Respondent also admitted that he had been untruthful in his previous statements regarding the extra- marital relationship. During the investigation related to AI-02-082, in his January 22, 2003, sworn statement, Respondent admitted to utilizing Sheriff's Office property, a cell phone, for personal purposes without providing reimbursement to the Sheriff's Office for the personal usage. Many of these phone calls were to Ms. Parker and took place after the closure of AI-01-009. During the investigation related to AI-02-082, in a sworn statement, Respondent admitted to authoring official Sheriff's Office documents, interoffice memoranda, and correspondence, that contained falsehoods. In one memo, written in or about December 2001, to the chief deputy in the Sheriff's Office, Respondent stated, "I never had or considered having an affair with Mrs. Parker, there was only a personal friendship" and that he "was truthful at all times." These memoranda were official Sheriff's Office communications that were written and disseminated by Respondent after the closure of AI-01-009. Notwithstanding Respondent's repeated and continuous denials in official Sheriff's Office documents, he continued to have an extra-marital relationship with Ms. Parker after AI-01-009 was settled and closed. By Respondent's own admission, the extra-marital relationship with Ms. Parker began in January 2000 and did not end until February or March 2002. After the investigation of AI-02-082 was concluded, an ARB hearing was convened on or about February 10, 2003. During this proceeding, Respondent again admitted to having an extra- marital relationship with Ms. Parker and to his having been untruthful in his previous statements regarding the extra- marital relationship. Respondent also admitted that he utilized the Sheriff's Office property, a cell phone, for personal purposes without providing reimbursement to the Sheriff's Office for the personal usage. Moreover, Respondent admitted that he wrote and distributed interoffice memoranda and correspondence, referenced above, that contained falsehoods. Based on its review of the allegations and the evidence related to AI-02-082, the ARB determined that Respondent was guilty of violating the Civil Service Act and the rules, regulations, and operating procedures of the Sheriff's Office. A February 10, 2003, interoffice memorandum sets forth the violations with which Respondent is charged and the conduct, which is the basis of those violations. The violations and conduct are summarized as follows: Pinellas County Sheriff's Office Rule 3-1.1 (Level Five violation), 5.6 related to Truthfulness; to wit: Members are required to be truthful at all times when acting in an official capacity, whether under oath or not, such as when offering testimony in legal proceedings and administrative investigations. Synopsis: Respondent was untruthful, repeatedly, to both supervision and the Administrative Investigations Division (while under oath) concerning his involvement in a paramour relationship. Pinellas County Sheriff's Office Rule 3-1.1 (Level Five Violation), 5.14 related to Conduct Unbecoming Members of the Agency, to wit: Knowingly making false entry or cause false entry to be made in any official record of the Sheriff's Office. Synopsis: Respondent knowingly made false entry on official agency records by repeatedly submitting inter-office memorandums, which he now admits contained both falsehoods and mistruths. Pinellas County Sheriff's Office Rule 3-1.3 (Level Three Violation), 3.1 related to Standard of Conduct, to wit: Members shall conduct their private and professional lives in such a manner as to not bring discredit to the Sheriff's Office. Synopsis: Due to Respondent's paramour relationship and his attempt to perpetrate falsehood and mistruths concerning the administrative investigative process, he brought discredit to the Sheriff's Office. Pinellas County Sheriff's Office Rule 3-1.1 (Level Three Violation), 3.1 related to Unauthorized Use of Agency Equipment, to wit: Members will not appropriate equipment owned by the agency for their own use. Synopsis: Respondent repeatedly used the agency-issued cellular telephone for personal use and failed to reimburse the agency for those calls. The violations resulted in a cumulative point total of 75, which allows for discipline from a ten-day suspension to termination. The ARB recommended to the Sheriff's Office that Respondent be terminated. The Sheriff reviewed the recommendation of the ARB and agreed with the recommendation. In the Notification of Sustained Complaint dated February 10, 2003, the Sheriff notified Respondent that he was being terminated from employment with the Sheriff's Office. The notification indicated that the complaint which was the basis of the sustained complaint involved incidents that occurred on "June 2000 through [p]resent." The violations in AI-01-009 and the underlying conduct, which was the basis for those violations, were resolved pursuant to the negotiated settlement agreement between the Sheriff and Respondent. Therefore, that conduct is not actionable in a subsequent disciplinary proceeding. However, the Sheriff is not precluded from imposing discipline for conduct which occurred after AI-01-009 was closed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Civil Service Board of the Pinellas County Sheriff's Office enter a final order finding Respondent guilty of violating Sheriff's Office Rule 3-1.1, 5.14, related to conduct unbecoming members of the agency; Sheriff's Office Rule 3-1.1, 3.1, related to standard of conduct; and Sheriff's Office Rule 3-1.1, 3.1, related to unauthorized use of agency equipment; and upholding Respondent's termination as a deputy sheriff with the Pinellas County Sheriff's Office. DONE AND ENTERED this 3rd day of September, 2003, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 2003. COPIES FURNISHED: Kenneth J. Afienko, Esquire Kenneth J. Afienko, P.A. 560 First Avenue, North St. Petersburg, Florida 33701 Keith C. Tischler, Esquire Allen, Norton & Blue, P.A. 1669 Mahan Center Boulevard Post Office Box 12186 Tallahassee, Florida 32317-2186 B. Norris Rickey, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 34616 Jean H. Kwall, General Counsel Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500
The Issue Whether the Respondent, Mario Medero, discriminated against the Petitioner, Sharon L. Zbikowski, on the basis of her sex, female?
Findings Of Fact The Parties. The Petitioner, Sharon L. Zbikowski, is a female. The Respondent, Mario Medero, is a male. Dr. Medero is a physician. He practices medicine as a professional association. Dr. Medero is the chief executive officer and the supervisor or principal of the professional association. The professional association operates a medical office in Ocala, Florida. The medical practice performed by Dr. Medero consists primarily of treating individuals who have been injured on the job and who are covered by workers compensation insurance. Ms. Zbikowski's Employment. On August 20, 1992, Ms. Zbikowski was hired for employment by Dr. Medero's professional association as the front desk receptionist at Dr. Medero's office. At the time she was hired, Ms. Zbikowski was told that she would be considered for an accounts payable clerk position at the office. The position was held by Barbara Redding if Ms. Redding left the position. Ms. Zbikowski was told at the time of her employment that her consideration for the position of accounts payable clerk was dependent upon Ms. Redding actually leaving. Ms. Redding ultimately decided not to resign her position. The evidence failed to prove that Ms. Zbikowski was hired as a bookkeeper or accounts payable clerk, or that she was not placed in the position she was hired to fill. Ms. Zbikowski's Performance. Ms. Zbikowski worked initially at the front desk. Her performance was considered inadequate by Marilyn Hartsel, the office manager and Ms. Zbikowski's immediate supervisor. Ms. Zbikowski was moved to other positions within the office. She worked for a while in medical records and for approximately one day in accounts payable with Ms. Redding. Ms. Zbikowski's performance in medical records and in accounts payable was also considered inadequate by Ms. Hartsel. Within three or four weeks after Ms. Zbikowski began her employment, Ms. Hartsel had decided to recommend that Ms. Zbikowski be terminated because of the inadequacy of her work. Ms. Zbikowski's Employment by Dr. Medero. At the time that Ms. Zbikowski was initially employed at Dr. Medero's office, Dr. Medero had caused the office to advertise for a housekeeper for his home. Ms. Zbikowski discussed the position with Dr. Medero. Dr. Medero agreed to employ Ms. Zbikowski as his housekeeper and Ms. Zbikowski agreed to work as Dr. Medero's housekeeper. Ms. Zbikowski agreed to clean Dr. Medero's house, run errands for him and the office, pick up his son from school and take his son to and from tennis lessons, meet Dr. Medero's former wife half way between Ocala and Tampa to pick up or to drop off Dr. Medero's daughter, who was in the custody of his former wife, and generally oversee his household. Although the evidence failed to prove that Ms. Zbikowski performed services in her capacity as housekeeper for anyone other than Dr. Medero, Ms. Zbikowski was paid for her services out of accounts of the professional association and Ms. Hartsel continued to be her immediate supervisor. The evidence failed to prove that Ms. Zbikowski was forced in any way to accept employment as Dr. Medero's housekeeper. The evidence proved that she accepted the position voluntarily and without coercion. Ms. Zbikowski continued to work as Dr. Medero's housekeeper until September 28, 1992. During her employment as Dr. Medero's housekeeper, Dr. Medero was satisfied with Ms. Zbikowski's performance. Alleged Sexual Harassment. The evidence failed to prove that Dr. Medero sexually harassed Ms. Zbikowski. Ms. Zbikowski testified about very few specific alleged incidents involving Dr. Medero and the evidence failed to substantiate those incidents. Ms. Zbikowski admitted that she had had no physical contact with Dr. Medero except for one occasion when she hugged him from advancing funds to her to pay for her son's day care and on another occasion when he gave her a physical examination after being in an automobile accident. The evidence failed to prove that either incident involved improper conduct by Dr. Medero. Ms. Zbikowski's testimony that Dr. Medero evidenced a "flirtatious manner" was not substantiated by competent substantial evidence of specific incidents. The most specific incident, and the incident which led to Ms. Zbikowski's termination from employment, took place on Thursday, September 24, 1992. At lunch on that day, Ms. Zbikowski and her four year old son were in Dr. Medero's back yard. Ms. Zbikowski was cleaning lawn furniture. Dr. Medero and Ms. Redding came to Dr. Medero's house, waved at Ms. Zbikowski and went into Dr. Medero's bedroom. The curtains/blinds to the bedroom windows were closed soon after Dr. Medero and Ms. Redding went into the room. Dr. Medero and Ms. Redding, both of whom were not married at the time, were lovers. Ms. Zbikowski was aware of their relationship. At no time did Ms. Zbikowski see Dr. Medero or Ms. Redding in Dr. Medero's bedroom. Ms. Zbikowski believes that Dr. Medero and Ms. Redding engaged in sexual intercourse while in the bedroom. This belief was not, however, substantiated by competent substantial evidence. Dr. Medero and Ms. Redding, who is not longer involved personally or in a working relationship with Dr. Medero, both testified that they did not engage in sexual intercourse. Ms. Zbikowski did not see them engage in intercourse. At best, Ms. Zbikowski's belief was based upon hearing "giggling" and "these little, um, sounds and things" from the bedroom. Ms. Zbikowski's Termination from Employment. On the afternoon of September 24, 1992, Ms. Zbikowski spoke with Ms. Hartsel and told her that Dr. Medero and Ms. Redding had sexual intercourse in her presence and her son's presence. Ms. Zbikowski was very upset and Ms. Hartsel told her to take the afternoon off and report to the office the next morning. Ms. Zbikowski also made other allegations, which the evidence failed to substantiate, of incidents of sexual harassment by Dr. Medero. Ms. Zbikowski left a beeper and a garage door opener she had been provided by Dr. Medero at Dr. Medero's home and left. The next morning, Friday, September 25, 1992, Ms. Zbikowski reported to the office. She was told that she would be expected to the work at the office in the mornings and then work at Dr. Medero's home in the afternoons. Ms. Zbikowski left at lunch and did not return. Ms. Zbikowski informed Ms. Hartsel that she did not intend to return that day because she did not want to return to Dr. Medero's home. Ms. Hartsel told Ms. Zbikowski that she would discuss the matter with Dr. Medero. Ms. Hartsel did not, however, order Ms. Zbikowski to return to work that day or inform her that she was not authorized to stay home. After speaking to Ms. Hartsel by telephone that weekend and being told that Ms. Hartsel had not yet discussed the matter with Dr. Medero, Ms. Zbikowski reported to work Monday, September 29, 1992. By the time that Ms. Zbikowski returned to the office on Monday, Dr. Medero had been informed of the allegations of sexual harassment she had made against him to Ms. Hartsel. Shortly after arriving at the office, Ms. Zbikowski was escorted to her automobile by Dr. Medero, Ms. Hartsel and a nurse and was told by Dr. Medero not to return. Ms. Zbikowski was, therefore, fired by Dr. Medero. Ms. Zbikowski was terminated because of the allegations she made concerning Dr. Medero and Ms. Redding and the other allegations of sexual harassment. Ms. Zbikowski was not terminated because she was not performing her duties as Dr. Medero's housekeeper in a satisfactory manner. Ms. Zbikowski's Subsequent Employment. Ms. Zbikowski was employed, and eventually terminated, by other physicians after her termination from employment by Dr. Medero. The evidence failed to prove that Dr. Medero was involved in any manner in Ms. Zbikowski's subsequent terminations from employment. Ms. Zbikowski's Charge of Discrimination. Ms. Zbikowski filed a Charge of Discrimination against Dr. Medero with the Florida Commission on Human Relations. Ms. Zbikowski alleged that she had been discriminated against based upon the following: I am a female. I worked for the above named respondent since August 20, 1992, until September 28, 1992 when I was discharged from my position of maid. During my employment I was subjected to sexual harassment by Dr. Mario Medero, and also I was subjected to different terms and conditions in my employment. I believe I have been discriminated against because of my sex, in violation of Title VII of the Civil Rights Act of 1964, as amended. On September 2, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " Ms. Zbikowski filed a Petition for Relief, requesting a formal administrative hearing on October 19, 1993. In the Petition for Relief filed with the Commission Ms. Zbikowski alleged, in part, the following: Respondent has violated the Human Rights Act of 1977, as amended, in the manner specifically described below: Petitioner did not abandoned [sic] her job. Petitioner was hired for one position and was told to accept another position 1 1/2 weeks into her employment which was not mentioned, nor described as part of original position. The disputed issues of material fact, if any, are as listed below: Petitioner did not abandoned [sic] her job. Petitioner was hired for one position and was told to accept another position 1 1/2 weeks into her employment which was not mentioned, nor described as part of original position. The ultimate facts alleged and entitlement to relief are as listed below: . . . . The alleged fact memos are that Petitioner was hired for a "Bookkeeping" position but was never given the opportunity to work in this position as original Bookkeeper (Dr. Medero's girlfriend) decided not to leave her position, so Petitioner was given a less meaningful job as "Housekeeper" but was subjected to harassing sexual misconduct by Respondent. The relief is as follows: Petitioner has for 1 year been trying to maintain and seek employment in the Medical field, one which she has worked in for 13 years, but because of Dr. Medero's influence in the Medical field has made it very hard for Petitioner to continue in this field. Petitioner is seeking recovery for the discriminating position he placed her in while under his employment plus relief from the undue hardship which has been placed upon her because of his lies in this matter. . . . . . . . Ms. Zbikowski proved the following allegations contained in her Charge of Discrimination and the Petition for Relief: "I am a female." "I worked for the above named respondent since August 20, 1992, until September 28, 1992, when I was discharged from my position of maid." "Petitioner did not abandoned [sic] her job." The remaining allegations contained in the Charge of Discrimination and the Petition for Relief were not supported by the weight of the evidence. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Ms. Zbikowski. Ms. Zbikowski failed to prove that any action of Dr. Medero was based upon Ms. Zbikowski's sex: she was not held to any standard or requirement based upon her sex, she was not sexually harassed and she was not terminated because of her sex. Ms. Zbikowski failed to prove that any policy or standard of Dr. Medero or his office had a disparate impact on female employees. Ms. Zbikowski failed to prove that she was replaced by a male or that other female employees with comparable or lessor qualifications were retained. Ms. Zbikowski failed to prove that she was sexually harassed by Dr. Medero. Ms. Zbikowski failed to prove that Dr. Medero or his office discriminated against her on the basis of her sex, female.
