The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was subjected to an unlawful employment practice based upon her disability or based upon retaliation, in purported violation of Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner was employed as a Training Specialist II in the staff development department of the Sunland facility of the Department of Children and Families. (Now the Agency for Persons With Disabilities.) At times relevant hereto, in October 2003, the Petitioner, Constance Gatewood, was employed by "Sunland Marianna" (Sunland). The Respondent Department of Children and Family Services is an agency of the State of Florida charged, as pertinent hereto, with implementing statutes, rules, and policies concerning persons with disabilities who are within its custody or otherwise. A meeting was conducted with Sunland's management and the Petitioner on October 8, 2003, in which the Petitioner provided documentation from a physician confirming that she suffered from a condition triggered by exposure to certain chemicals or perfumes. This condition was described as "potentially life threatening." The condition apparently primarily involved the Petitioner's respiration. Sunland sought to accommodate this condition by instructing attendees to training sessions conducted by the Petitioner to refrain from using perfumes, colognes, etc., which might aggravate the Petitioner's condition. There is no dispute that the Petitioner has a disability of this nature. Sunland also provided each new employee who came for training with the Petitioner with a separate similar notification. Sunland also posted the notification in and around the staff development building, the Petitioner's primary work place. Sunland also relocated the Petitioner's office and ordered alternative non- irritating cleaning supplies in order to accommodate the Petitioner's condition. Despite these accommodations the Petitioner's condition still sometimes became symptomatic. In an effort to minimize her exposure to perfumes or other chemicals the Petitioner on occasion would teach from her doorway, rather than standing in her accustomed place in front of the class. On occasion she would have to teach her class with all the doors opened, which sometimes created an uncomfortable draft in cold weather. On other occasions she would send students out of her class in the belief that they were wearing a perfume, cologne, or other chemical agent which was irritating her respiratory condition. On one or more occasions she had to rely on a co-worker to perform a cleaning task for which she was responsible. The Petitioner received a performance evaluation in March of 2004, which contained an overall rating of 4.33, a score which reflects that her performance exceeded expectations. On performance expectation number one, however, she received a grade of three rather than the four she had received the prior year. This was based upon a decline, in her employer's view, of her performance related to team work and respect for others. Because of this reduction from a four to a three on this category of her performance evaluation the Petitioner filed a Career Service Grievance. She contended that her performance had been based upon "confidential information," despite her supervisor's assurances that it was based on her supervisor's perception of problems the Petitioner had in the areas of cooperation with co-workers and respect for class attendees. Upon investigation, the Career Service Grievance was denied by a memorandum of April 8, 2004. Dr. Clemmons, the superintendent of the Respondent's facility, continued efforts to accommodate the Petitioner and her disability. He offered the Petitioner a job in an open position as a social worker on or about April 1, 2004. This position would have no deleterious effect on the terms, conditions, privileges, or benefits of the Petitioner's employment. The Petitioner was apparently pleased to have the job transfer to the new position and, in fact, volunteered to begin the position prior to the customary two week notice period. The Respondent has continued to attempt to accommodate the Petitioner and her disability as she has raised issues regarding her disability upon assuming her new position. The Petitioner, however, did not identify in advance any accommodation-related issues to her employer prior to beginning work in her new position.
Recommendation 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 in its entirety. DONE AND ENTERED this 1st day of April, 2005, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 1st day of April, 2005. COPIES FURNISHED: Constance Gatewood Post Office Box 262 Campbellton, Florida 32426 Amy McKeever Toman, Esquire Agency for Persons With Disabilities Sunland Center 3700 Williams Drive Marianna, Florida 32446 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Cavalier is in the business of providing various types of telephone services including landline communications, DSL, and Internet TV. They have as many as 150 employees in the Pensacola area and have offices in other locations. Cavalier acquired Talk America, Inc., a predecessor corporation, on April 20, 2006. Ms. Smith began working for Cavalier as a sales representative in December of 2006. As a sales representative for Cavalier, Ms. Smith called potential customers and attempted to sell them services and products provided by Cavalier. She was very successful at this work and was considered to be an excellent employee. Her sales were high, and she was awarded bonuses. On April 19, 2007, Ms. Smith suffered a mini-stroke and was absent from her work until May 2, 2007. At that time, she assumed that she had recovered and reported for work. Her supervisor, Floor Manager Cassandra Pressley, and fellow employees were happy to see her return. To celebrate her return, Ms. Pressley and other employees contributed money that was used to buy flowers for Ms. Smith. As the day progressed, Ms. Pressley noticed Ms. Smith slumped over in her chair and was concerned. Ms. Pressley offered her extra breaks, but Ms. Smith refused her entreaties. Eventually, Ms. Smith became clearly unwell, and with Ms. Pressley's encouragement, she departed with a co-worker who followed her home. On May 2, 2007, Ms. Smith learned from her doctor that she would have to take, or continue with, medical leave. When Ms. Pressley became aware of this, she caused Ms. Smith to communicate with Suzanne Altare, Cavalier's director of human relations for the southeast area. Ms. Altare explained Cavalier's company leave policy. Ms. Altare informed Ms. Smith that she was ineligible for leave pursuant to the Family Medical Leave Act because she had been employed with the company for less than a year. Nevertheless, Ms. Altare told Ms. Smith that she could have eight weeks of unpaid discretionary leave. This leave became effective May 2, 2007. Ms. Altare's actions complied with Cavalier's Employee Handbook. The Employee Handbook requires equal treatment of all employees. Subsequent to May 2, 2007, Ms. Pressley and Ms. Altare both checked in with Ms. Smith by telephone on more than one occasion to see how she was doing and inquired if her doctor was going to provide her with a release so that she might return to work at the end of the eight-week leave. On or about July 5, 2007, in the ninth week of her absence, both Ms. Pressley and Ms. Altare communicated with Ms. Smith by telephone. Ms. Smith informed them that her doctor had not released her for return to employment. Since she could not provide an estimated time of return, she was terminated. Because Ms. Smith was an especially valued employee, Ms. Altare informed her that she would process her termination as voluntary so that when she was physically able, she could return to work at Cavalier. This coincided with what Cavalier had done with other employees who had to stop working temporarily due to an illness. At least one of those had in fact returned upon receiving a release from her doctor. No evidence was adduced by any witness that Ms. Smith either complained of discrimination or requested an accommodation. In September 2007, Ms. Pressley was asked by a person identified as Ms. Smith's husband to help Ms. Smith at a check- cashing facility that was located close to the Cavalier workplace. Ms. Pressley went with him to the check-cashing facility. Ms. Smith approached Ms. Pressley and hugged her. Ms. Pressley inquired as to when Ms. Smith would return. She told Ms. Pressley that she had not been released by her doctor. Ms. Smith testified that she received "disability payments" until December 16, 2007, when her doctor informed her that she could go back to work. Ms. Smith testified, "I figured they would rehire me, anyway, because of my good sales, yes, sir." However, at least up until the time of the hearing, Ms. Smith had not asked to return to her job.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief filed by Sarah L. Smith. DONE AND ENTERED this 28th day of July, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 28th day of July, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lori Y. Baggett, Esquire Carlton Fields 4221 West Bay Scout Boulevard Post Office Box 3239 Tampa, Florida 33607 Sharon Glover, Esquire 2134 West Laburnum Richmond, Virginia 23227 Sarah L. Smith 513 North Reus Street Pensacola, Florida 32501 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Respondent James Seay, who had worked as a teacher in Suwannee County for many years, was out sick first with a stomach virus and then with recurring head pain for the entire school week of March 4-8, 1991. He visited physicians on March 5, 7 and 8, and took three prescribed medicines. Mr. Seay telephoned the morning of March 4, 1992, and told Sonja Suber, a secretary who was "the designated person at the school," (T.48) responsible for obtaining substitute teachers and maintaining sick leave records, that he was ill and would not be in that day. The parties agree that respondent was on sick leave through March 8, 1991. On the evening of March 4, 1991, he telephoned Nancy Roberts, director of elementary education for the Suwanee County School District and principal of Douglass Center. When Mr.Seay told her he would not be in the following day, she cancelled an observation she had scheduled for his benefit. The next day or the day after Sonya Suber telephoned respondent to relay Ms. Roberts' advice that a meeting scheduled for March 11, 1991, had been cancelled. On Saturday, March 9, 1991, Mr. Seay telephoned Ms. Suber and said "that he would be coming Monday to the school but he would not report to the classroom." T. 29. He had earlier expressed to Ms. Roberts discomfort "with the students that were assigned" (T. 46) to him. On Monday, March 11, 1991, at 7:53 o'clock in the morning, he appeared as promised and signed in at Suwanee County School District's Douglass Center. After greeting Sonya Suber, he went to the teachers' lounge. He did not give any indication that he was unwell or make any request for leave. Ms. Roberts saw Mr. Seay reading a newspaper in the lounge. She asked him to accompany her to her office, where she "let him know that he was a teacher assigned to the Alternative Program at the Douglass Center and what his responsibilities were . . . working with the students there." T.50. Respondent handed Ms. Roberts one of his attorney's cards, and told her "that there was nothing [she] could do to make him go in that classroom and that he was not going to that classroom," (T.50) and asked her "to stop harassing him." Id. After Mr. Seay's return to the teachers' lounge, Ms. Roberts gave an account of events to Mr. Charles F. Blalock, Jr., petitioner here. Petitioner's Exhibit No. 2. The following morning Mr. Seay signed in at the Douglass Center at ten before eight, Petitioner's Exhibit No. 1, but he again went to the teachers' lounge rather than to his assigned classroom. Again he told nobody he was ill, and asked nobody for sick leave. Ms. Roberts twice asked him to go to his classroom. When she told him his failure to teach the class he had been assigned "could be construed as insubordination on his part," (T.53) he asked her to clarify what she meant by insubordination and, with her permission, made a tape recording of her answer. Petitioner's Exhibit No. 3. He refused to go to his classroom. On Wednesday, March 13, 1991, Mr. Blalock wrote a letter to Mr. Seay advising him that he was suspended with pay, and that, as superintendent, he would recommend suspension without pay and ultimately dismissal at the next regular meeting of the School Board. Petitioner's Exhibit No. 4. When Ms. Roberts telephoned Thursday morning with word that Mr. Seay was at Douglass Center, Mr. Blalock went himself to speak to Mr. Seay. Twice he personally directed Mr. Seay to go to his classroom and get to work. Confronted with Mr. Seay's silent refusal, Mr. Blalock handed him the letter of suspension, dated the day before. When the School Board met, heard what had transpired, and listened to a presentation by Mr. Seay's lawyer, it decided that Mr. Seay should have a physical examination and be examined by a psychiatrist. At the school board meeting, nobody suggested that respondent was on sick leave at any time after March 8, 1991. In keeping with the collectively bargained agreement between the School Board and teachers like Mr. Seay under continuing contract with the School Board, Petitioner's Exhibit No. 6, petitioner demanded that respondent go for medical and psychiatric examinations, by letter dated April 10, 1991. Petitioner's Exhibit No. 7. A second, follow-up letter reiterating the demand, dated April 29, 1991, Petitioner's Exhibit No. 9, reached Mr. Seay by registered mail. As of the time of the hearing, Mr. Seay had not complied with the Board's demand that he submit to a physical examination and be examined by a psychiatrist.
Recommendation It is, therefore, RECOMMENDED: That petitioner terminate respondent's employment. DONE and ENTERED this 3rd day of December, 1992, at Tallahassee, Florida. ROBERT T. BENTON, II, 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 3rd day of December, 1992. APPENDIX FOR NO. 91-6046 Petitioner's proposed findings of fact Nos. 1-11 and 13-20 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact No. 12 pertains to immaterial matters. With respect to petitioner's proposed finding of fact No. 21, respondent apparently also took the position that he had been on sick leave in the unemployment compensation case. Petitioner's proposed findings of fact Nos. 22 and 23 pertain to subordinate matters. Respondent's proposed findings of fact Nos. 1-3, 5-8 and 19 have been adopted in substance, insofar as material. Respondent's proposed findings of fact Nos. 4, 9-12, 21 and 24 pertain to subordinate matters. Respondent's proposed findings of fact Nos. 13 and 15 are immaterial since respondent never requested sick leave. Respondent's proposed findings of fact Nos. 14, 16, 17 and 18 have been rejected as unsupported by the weight of the evidence. With respect to respondent's proposed finding of fact No. 20, Ms. Roberts' testimony in that regard is unrebutted. With respect to respondent's proposed finding of fact No. 22, there is no disagreement. Respondent's proposed finding of fact No. 23 pertains to an immaterial matter. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Charles Blalock, Superintendent Suwanee County School Board 224 W. Parshley Street Live Oak, FL 32060 J. Victor Africano, Esquire Post Office Box 1450 Live Oak, FL 32060 Linsey Moore, Esquire 50 East 2nd Street Jacksonville, FL 32206
The Issue The issues for determination in this proceeding are whether Respondent discriminated against Petitioner on the basis of a handicap, within the meaning of Section 760.10, Florida Statutes (2002), and whether the same alleged discrimination violated Section 448.045, Florida Statutes (2002).
Findings Of Fact Petitioner is a handicapped person. Petitioner is bipolar and has episodes of psychosis and occasional ideations of suicide and homicide. On January 14, 2003, Petitioner returned to work after an extended vacation, during which he suffered a psychotic episode and was diagnosed with his handicap. Respondent scheduled an in-office hearing, identified in the record as a "fit-for-duty hearing," because Respondent was concerned for the safety of Petitioner and other employees. Respondent denied Petitioner's request to postpone the hearing for one day to allow Petitioner to get back into "the swing of work routine." Petitioner requested 30 days of accrued personal leave. Respondent granted the request, and Petitioner was due back on the job on February 18, 2003. At the conclusion of the 30-day leave, Respondent granted Petitioner's request for medical leave. The medical leave began on February 18, 2003, and Petitioner was scheduled to return to work on July 3, 2004. Respondent's policy requires every employee that is on medical leave, including Petitioner, to be certified by a physician that the employee is fit to return to work, with or without reasonable accommodation. A physician's certification is a prerequisite for any employee on medical leave to return to his or her job after medical leave. During Petitioner's medical leave, Petitioner sought treatment from several physicians. As of the date of the administrative hearing, no doctor had certified Petitioner as fit to return to work because Petitioner consistently refused to take medication prescribed for his handicap. After going on medical leave, Petitioner received short-term disability benefits and, at the time of the administrative hearing, was receiving long-term disability benefits. The long-term benefits were scheduled to expire in August 2005. Petitioner is not contractually entitled to long- term disability benefits unless Petitioner is unable to perform all of the material and substantial duties of his regular occupation. When Petitioner's medical leave ended on July 3, 2004, Petitioner was not medically certified as fit to return to work. Petitioner refused to take medication prescribed for his condition and continued to receive long-term disability benefits. Respondent refused to accommodate Petitioner any further with additional leave. Respondent terminated Petitioner's employment on July 3, 2004.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that Respondent did not unlawfully discriminate against Petitioner by convening a "fit-for-duty hearing" or by subsequently terminating Petitioner's employment. DONE AND ENTERED this 21st day of December, 2004, 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 21st day of December, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Norman K. Wright 826 Grand Cayman Court Orlando, Florida 32835 J. Lester Kaney, Esquire Cobb & Cole 150 Magnolia Avenue Post Office Box 2491 Daytona Beach, Florida 32115-2491 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding is whether Petitioner was the subject of an unlawful employment practice based on his age.
Findings Of Fact Currently, Petitioner is a retired, 68-year-old male. He retired from Respondent at the age of 66. Petitioner began his employment with Respondent as a truck driver. The position of truck driver, involves many long hours of driving (sometimes over 56 hours) various interstate and intrastate truck routes, along with some lifting and exposure to diesel fumes. Petitioner attributed a variety of illnesses and health problems to his work as a truck driver. Some of the illnesses and health problems are hypertension and heart blockage and failure, which resulted in the implantation of a pacemaker, carpal tunnel syndrome, polyneuropathy, muscular and autonomic system problems and pathological hyper-insomnia. Petitioner offered no evidence that any of these conditions resulted from his employment with Respondent. Prior to September 9 or 10, 2000, at the age of 64, Petitioner was hospitalized for heart problems. Around September 9 or 10, 2000, Petitioner was released from the hospital. Upon his return to work, he gave his employer a physician’s note indicating that his work duties be limited to 40 hours a week. Petitioner met with Respondent’s transportation manager regarding whether less lengthy routes were available or whether his schedule or work duties could be adjusted. The employer did not have the ability to adjust the length of the routes, but added a second driver to ride and help with the driving on any route that Petitioner drove. Petitioner inquired about office work and was told that if he was interested in such work he needed to apply at the main office to see what was available. In part, because Petitioner liked driving and in part because the lesser number of hours involved in office work would cause Petitioner to earn less, Petitioner elected not to pursue and did not apply for such office work. No adverse employment action was taken against Petitioner, and Petitioner continued to work for Respondent. At some point during this meeting, Petitioner alleges that the transportation manager said, “Why don’t you just retire.” Petitioner offered no specific context for this statement other than it was a general conversation about his health and closeness to retirement age relative to the adjustments that could be made to his driving duties. One isolated statement such as the one above does not demonstrate any intent to discriminate on Respondent’s part based on Petitioner’s age, especially since no adverse employment action was taken against Petitioner and Petitioner continued to work for Respondent. Around January 1, 2001, for medical reasons, Respondent approved a Leave of Absence with pay for Petitioner. In June or July, 2002, Petitioner filed his first workers compensation claim with Respondent. Petitioner’s claim was turned over to Respondent’s workers' compensation insurer, Kemper Insurance Company. Petitioner did not offer any evidence that Kemper was under the direction or control of Respondent in any decisions Kemper made regarding paying or litigating Petitioner’s claim. In any event, Petitioner’s claim was contested. The main reason the claim was contested was that Kemper alleged that Petitioner’s “injuries” were not work-related. Over the years, Petitioner has amended his claim to include, among other health claims, the health problems listed above. Kemper has maintained its defense. During a mediation session on December 11, 2002, at which the employer was not present and in response to an inquiry regarding Kemper’s defense, Kemper’s representative stated that except for the carpal tunnel claim, all of Petitioner’s medical conditions were due to the natural aging process. Petitioner claims this statement demonstrates an intent on his employer’s part to discriminate against him based on his age. Such an isolated statement does not demonstrate such an intent especially since such conditions can be age related, there was no expert medical evidence demonstrating the cause of Petitioner’s health problems, the statement did not come from the employer, and there was no evidence that the insurer was under the direction or control of the employer regarding decisions to litigate or the factual basis for the defenses that the insurer would raise. The workers' compensation litigation continues to date. In the interim, Petitioner remained on a leave of absence with pay until January 1, 2003. He retired thereafter. There was no evidence that Respondent discriminated against Petitioner or that Petitioner suffered any adverse employment action based on his age. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the 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. DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relation 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Glynda Copeland Qualified Representative Tree of Life, Inc. Post Office Box 410 St. Augustine, Florida 32095-0410 Robert C. Johnson 560 Florida Club Boulevard, Suite 112 St. Augustine, Florida 32084
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)
The Issue Whether Respondent, Cracker Barrel Old Country Store (Respondent), committed the unlawful employment practice, as alleged, in the Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner, Reza Mahallaty (Petitioner), be granted.
Findings Of Fact Petitioner did not testify in this case. Based upon the undisputed testimony of the witnesses, Petitioner was employed by Respondent and served as a senior assistant manager (SAM). At all times material to the allegations of the case, Respondent employed Petitioner. As a nationally recognized purveyor of food and goods to the public, Respondent presumably employs more than 15 employees. At all times material to this matter, Respondent used a management structure at its stores that included managers in training, assistant managers, senior assistant managers, and general managers. Persons seeking to become general managers typically work their way through the ranks and serve as a SAM before promotion to general manager of a store. On or before August 2010, Petitioner sought a position with Respondent as a general manager. He did not get the promotion. Thereafter, he filed the underlying complaint with FCHR. The complaint stated: I have been employed by Cracker Barrel Old Country Store since June 26, 2006. My most recent position is Senior Associate Manager. I hereby allege that I have been discriminated against due to my race and national origin in violation of Title VII of the Civil Rights Acts of 1964. The foregoing allegations were made under penalty of perjury and for purposes of this case have been accepted as to the facts alleged, but not as to the legal conclusion of discrimination. Petitioner presented no evidence as to his race or national origin. Petitioner’s Petition for Relief reiterated his conclusion that he had been discriminated against based upon his claim of being Iranian and of Persian origin. In addition to not having received promotions, Petitioner included complaints about retaliation that were not addressed by the FCHR. As previously indicated, retaliation issues are not part of the determination that was presented for administrative review. With regard to Petitioner’s attempt(s) to be promoted prior to August 2010, Petitioner did not present evidence that he was more qualified than the applicant Respondent chose. Respondent uses an interview process that rates the candidates for general manager by a selection team. The selection team looks at the candidates’ credentials, history with the company, and responses to the interview questions to rate each applicant for the position sought. Petitioner did not present evidence that he had achieved a higher score in the rating process than the applicant chosen. Petitioner did not present evidence that Respondent knew or should have known Petitioner was the best qualified candidate for the position of general manager. Petitioner did not present evidence that Respondent selected a candidate for general manager that had fewer years of employment with the company than Petitioner. Petitioner did not present evidence that any general manager Respondent selected in preference to Petitioner was of a race or national origin that received special deference over Petitioner. Other than Petitioner’s assertion that he must have been denied promotional opportunities due to his race and national origin, Petitioner failed to establish bias on Respondent’s part. To the contrary, Respondent asserted that Petitioner was not qualified to be a general manager because he was unwilling to master and fully support the company’s core operating systems, the company’s philosophies, and the company’s initiatives. Petitioner presented no credible evidence to refute Respondent’s assertion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 10th day of April, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 10th day of April, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Shane T. Munoz, Esquire Ford and Harrison, LLP 101 East Kennedy Boulevard, Suite 900 Tampa, Florida 33602 Reza Mahallaty 656 English Lake Drive Winter Garden, Florida 34787 Larry Kranert, General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Respondent Solutia, Inc., discriminated against the Petitioner Darlene Fitzgerald, by allegedly denying her employment because of her hearing impairment. Embodied within that general issue is the question of whether, under Chapter 760, Florida Statutes, and other relevant law, the Respondent is an "employer"; whether the Petitioner is handicapped or disabled; whether the Petitioner is qualified for the position for which she applied; whether the Petitioner requested a reasonable accommodation from the alleged employer; whether the Petitioner suffered an adverse employment decision because of a disability; and whether the Petitioner has damages, their extent, and whether the Petitioner properly mitigated any damages.
Findings Of Fact The Petitioner, Darlene Fitzgerald, is a 34-year-old woman who alleges that she applied for a "carpet walker" position with either the Respondent or "AmStaff" in March 1998. The Respondent, Solutia, Inc. (Solutia), is a company which owned and operates a manufacturing plant that manufactures fibers and carpet in Escambia County, Florida. A number of independent contractors operate at the Solutia plant, performing certain phases of the manufacture and related services and operations there, including "AmStaff" and "Landrum." AmStaff is a contractor which operates a tire yarn plant and a Kraft plant at the Solutia facility. AmStaff hires its own employees to work in its operations at the Solutia plant. It is solely responsible for all hiring, counseling, disciplinary and termination decisions concerning its employees. AmStaff has its own payroll, does the Social Security withholdings for its employees, pays workers' compensation premiums on its employees and provides retirement benefits to its employees. Landrum is a staff leasing company which is responsible for certain jobs at the Solutia plant, including carpet walkers. Landrum is solely responsible for all of its hiring, counseling, disciplinary and termination decisions concerning its employees. Landrum has its own payroll, does its own Social Security withholdings for its employees and pays workers' compensation premiums on its employees. A carpet walker is a person who tests carpet for wear and tear. A carpet walker is required to work 40 hours per week and to walk approximately 18 miles a day testing carpet. Neither Solutia nor AmStaff employs carpet walkers. The Petitioner has never been to Solutia's facility or offices and has never gone out to the Solutia plant to apply for a job. She has had no contact with anyone representing or employed by Solutia concerning a job. All of the Petitioner's contacts concerning employment in March 1998, were with either AmStaff or Landrum. The Petitioner testified that she saw a newspaper ad that AmStaff was taking job applications, but never produced a copy of that ad. The Petitioner went to AmStaff to fill out an employment application. AmStaff's office is not at the Respondent Solutia's plant. The Petitioner gave conflicting testimony as to the date she allegedly applied with AmStaff for a carpet walker position. First, she testified that she applied for the position on March 15, 1998, which was a Sunday. After that was established by the Respondent, as well as the fact that AmStaff was closed on Sundays, the Petitioner then maintained that she applied for the carpet walker position on March 19, 1998. This date is incorrect, however, as evidenced by Respondent's Exhibit two in evidence, which is AmStaff's "notification of testing." According to the Petitioner the company name printed on the employment application she filled out was AmStaff. The Petitioner was then scheduled for testing by AmStaff on March 12, 1998, at Job Service of Florida (Job Service). The notification of testing clearly indicates that the Petitioner applied for a job with AmStaff. While at the Job Service, the Petitioner spoke with an individual named Martha Wyse. The Petitioner and Robin Steed (an interpreter who accompanied the Petitioner to the job service site), met Martha Wyse, who never identified her employer. Subsequent testimony established that Martha Wyse was AmStaff's recruiting coordinator. Martha Wyse has never been employed at Solutia nor did she ever identify herself as being employed by Solutia. All applicants with AmStaff must be able to meet certain physical requirements, including, but not limited to pushing and pulling buggies weighing 240 to 1,080 pounds; lifting 50 to 75 pound fiber bags, lifting 60 pound boxes, stacking and pouring 55 pound bags and working indoors in temperatures of up to 100 degrees Fahrenheit. The Petitioner admitted that she could not push or pull buggies weighing 240 pounds; could not lift 50 to 75 pound fiber bags, could not lift 60 pound boxes nor stack and pour 55 pound bags or work indoors in temperatures in the range of 100 degrees. Additionally, the Petitioner admitted that her obstetrician and gynecologist had restricted her, in March 1998, to no lifting or pushing. On September 24, 1998, the Petitioner was involved in an automobile accident. Her doctors restricted her to lifting no more than 25 to 30 pounds as a result of the injuries sustained in the automobile accident. Because of the injuries sustained in the automobile accident, the Petitioner was unable to work and applied for Social Security disability. Apparently she was granted Social Security disability with attendant benefits. AmStaff employees must work around very loud machinery. There is noise from the machines themselves, combined with that of the air conditioning equipment. Horns blow signaling that forklift trucks are moving through the employment area. The machinery also emits a series of beeps that are codes to let employees know to do different things at different times regarding the machinery. Although the Petitioner stated that she had no restrictions concerning her hearing and could hear everything with the help of her hearing aid, she also stated that she could not stand loud noises generated by machines. In addition to the physical requirements, AmStaff employees were required to work rotating shifts. The employees had to rotate between a 7:00 a.m. to 7:00 p.m., shift and a 7:00 p.m. to 7:00 a.m., shift. The Petitioner did not want to work from 7:00 p.m. to 7:00 a.m. Additionally, AmStaff's employees were required to work 36-hour weeks followed by 42-hour weeks on alternating week schedules. The Petitioner did not want to work more than 20-hours per week in 1998, and in particular the months of April through September 1998. She did not want to work more than 20-hours per week, as she did not want to endanger her Social Security income benefits or have them reduced. Landrum did not have an opening for a carpet walker position at the time the Petitioner allegedly applied for that position. The Petitioner did not ask AmStaff or Landrum for any disability accommodations. If an employee is not entirely aware of the sounds and signals emanating from a plant and the machinery within the plant, that employee cannot respond immediately or accurately to situations that may cause problems with the machinery and ultimately could cause injury to the employee or to other employees. If a bobbin is not seated properly on a machine, for example, the machine will begin to produce a clanking noise. If the noise is not heard by the operating employee and the bobbin is not re-seated properly it can become detached from the machine and be thrown by the force of the machine potentially striking either the operator or anyone who happens to be moving through the machine aisle nearby at the time. Further, there are over 300 alarm boxes throughout the plant. These alarms are used in emergency situations. The alarms indicate the type of emergency, the location of the emergency and its severity. There are different types of warnings for vapor clouds and evacuations. All warnings come through that alarm system. An employee must listen for the type of sound or blast, the number of sounds or blasts and the sequence of the sounds or blasts in order to determine the type of emergency and to know how to react to it. The Petitioner was unemployed from September 24, 1998 until April 2000, when she became employed at Walmart. She left her employment at Walmart in July of 2000. After leaving Walmart the Petitioner has not been employed and has not looked for work. She apparently worked at Popeye's Fried Chicken for an undetermined period of time after March 1998. From April to September of 1998, she voluntarily restricted her work to no more than 20-hours per week in order to keep from reducing her Social Security disability benefits.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, as well as the pleadings and arguments of the parties, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 6th day of December, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 6th day of December, 2001. COPIES FURNISHED: Danny L. Kepner, Esquire Shell, Fleming, Davis & Menge, P.A. 226 South Palafox Street, Ninth Floor Pensacola, Florida 32501 Erick M. Drlicka, Esquire Emmanuel, Sheppard & Condon 30 South Spring Street Pensacola, Florida 32501 Cecil Howard, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Did Respondent discriminate against Petitioner because of his handicap and in retaliation for filing an earlier discrimination complaint with the Florida Commission on Human Relations, as alleged in Petitioner's Petition For Relief, in violation of Sections 760.01 - 760.11, Florida Statutes, known as the Florida Civil Rights Act of 1992?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: Petitioner checked the boxes for both Handicap and Retaliation in the section titled "Cause of Discrimination Based On" of the Charge of Discrimination filed by Petitioner on May 14, 1994. In the section titled "Date Most Recent or Continuing Discrimination Took Place" of the Charge of Discrimination Petitioner indicated December 22, 1992. In the section titled "The Particulars Are" of the Charge of Discrimination Petitioner indicated: PERSONAL HARM: On a continuing basis I have not been referred for work by my union, with the last occurrence on December 22, 1992. RESPONDENT'S REASON FOR ADVERSE ACTION: Mr. Mike Brewer, Union Business Agent, said that I was not wanted in the department in which I had previously worked. DISCRIMINATION STATEMENT: I believe I have been discriminated against because of retaliation for filing (FCHR No. 90-8052) for the following reasons: The last time I contacted Mr. Brewer he hung up on me. continuing Mr. Brewer has referred other union members for work on a basis. A NOTICE OF DETERMINATION: NO CAUSE was issued by the Commission on March 11, 1996. In Section 3 of the Petition For Relief filed with the Commission on April 15, 1996, Petitioner alleges that Respondent violated the Florida Civil Rights Act of 1993, as Amended, as follows: Conspiring with company to isolate the HANDICAPPED Petitioner in a classification essentially made obsolete with an ex post facto "Crafts Maintenance Contract" subsequent to the July 26, 1990 signing of the A.D.A. (singling him out for "layoff") F.S. 760.10(4b). Filing a grievance to deter the Petitioner from filing any HANDICAP Discrimination complaints, and refusing to process it. Referring others for employment on a continuing basis, (F.S. 760.104(b). Refusing representation. (Foreman/union steward?) At all times material to this proceeding, Petitioner Dennis M. Presson was a member of the bargaining unit of the Craft Maintenance Council, Carpenters Local Union No. 1820. Respondent Craft Maintenance Council, Carpenters Local Union No. 1820 Statutes. Commission and the courts. as a Property Craftworker Assistant, and assigned Petitioner to the Furnishings 10. During August, 1990, the work in Furnishings declined and, in lieu of craftworker assistants, including Petitioner, were temporarily assigned on through the first week of October 1990. October 11, 1990, was laid off due to lack of work in Furnishings. Petitioner 12. On November 2, 1990, the remaining six property craftworker assistants higher in seniority than Petitioner. transferred back to Furnishings so that he could be laid off is without merit. department until their function could no longer be justified in lieu of laying The lay-offs on October 11 and November 2, 1990, were caused by lack get back at Petitioner because of his handicap or in retaliation for filing an On October 11, 1990, when Petitioner was laid off, Disney offered as custodians. Although other property craftworker assistants accepted work as On October 12, 1990, Michael Brewer, Shop Steward filed an Employee of seniority - another worker with lower seniority had been retained. Respondent settled with Disney for $2,500 rather than proceed to final and Petitioner received payment. grievance or delayed or refused to process the grievance so as to deter During the grievance process Disney again offered Petitioner a job as From the time Petitioner was laid off on October 11, 1990, until December, 1992, Respondent referred Petitioner to six or seven jobs. These jobs covered every field where the work required unskilled or slightly skilled employees. Petitioner declined each and every offer, stating that he was an artist and wanted a job as an artist. Prior to Petitioner filing this complaint with the Commission, Respondent's last contact with Petitioner was around December 1992, when Petitioner informed Respondent that he had a job as an artist with Dollywood in Tennessee and was moving. On August 27, 1992, Petitioner filed a charge against Respondent with the National Labor Relations Board alleging that Respondent "has restrained or coerced and is restraining and coercing Dennis M. Presson, a crafts worker assistant, in the exercise of rights guaranteed in Section 7 of the Act by refusing to advise him of the status of his grievance on his layoff, for arbitrary, invidious and discriminatory reasons and therefore has breached its of fair representation". The National Labor Relations Board dismissed the charge for lack of merit. Respondent has referred Petitioner to jobs where Petitioner's skill matched the classification (unskilled or slightly skilled) of the job being offered. There was no evidence that Respondent had refused or failed to refer Petitioner to jobs that matched his skill because of Petitioner's handicap or in retaliation for filing an earlier discrimination complaint against Disney with the Commission. Petitioner presented no evidence of any job that matched his skill that was available through Respondent which Respondent failed or refused to refer Petitioner for any reason. Based on Petitioner's allegation, Respondent's last refusal to refer Petitioner to an available job occurred in December 1992. There was no evidence that Respondent: (a) conspired with Disney to isolate Petitioner in a classification made obsolete with an ex post facto "Crafts Maintenance Contract" subsequent to the July 26, 1990, signing of the A.D.A. (Americans with Disabilities Act); (b) conspired with Disney to single Petitioner our for lay off; or (c) refuse to represent Petitioner while a member of the union. Petitioner has neither been employed nor has he attempted to obtain any gainful employment since he was laid off by Disney on October 11, 1990. During this period Petitioner has worked on this case and looked after his mother. Petitioner survives on food stamps and other governmental subsidies.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that the Petition for Relief filed by Dennis M. Presson against Craft Maintenance Council, Carpenters Local Union No. 1820 be dismissed. RECOMMENDED this 27th day of November, 1996, at Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings COPIES FURNISHED: Sharon Moultry, Clerk Building F, Suite 240 325 John Knox Road Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 Tallahassee, Florida 32303-4149 2816 4th Street Orlando, Florida 32820 Thomas Egan, P.A. 56 East Pine Street
The Issue The issue in the case is whether Respondent unlawfully discriminated against Petitioner by terminating her employment in violation of the Age Discrimination Employment Act.
Findings Of Fact Lombardi started her employment as a judicial assistant with Dade County in 1971. Judge Mattie Belle Davis was the first judge who hired Petitioner. Judicial Assistants serve at the pleasure of the appointing Judge.1 Judge Bruce Levy hired Lombardi as his judicial assistant after Judge Davis retired. In December 2004, Judge Levy lost his re-election bid and Petitioner no longer had a full-time position as a judicial assistant with a judge. Lombardi started working in the temporary pool of judicial assistants. The position allowed Petitioner to retain her benefits while seeking a permanent judicial assistant position. While serving in the pool, Petitioner worked for Judge Leon Firtel from February 14, 2005, through February 28, 2006, before he let her go. Petitioner then worked for Judge Rosa Rodriguez from April 1, 2006, through May 23, 2007, until she let her go. Petitioner last worked for Dade County when she served as retired Judge Roger Silver's ("Silver") judicial assistant from September 1, 2007, until January 7, 2008. Lombardi was terminated in Silver's chambers with a bailiff and Ms. Suarez from Human Resources present. Silver informed the Petitioner her services were no longer needed and he was letting her go. Petitioner questioned why she was being terminated; however, Silver did not provide an explanation. Silver terminated Petitioner because he was not happy with her work performance. Silver testified that Petitioner had the following problems regarding her work: taking lunch breaks beyond the one hour he had discussed with her; numerous complaints from attorneys; selling Avon at the work place; not answering the phones and allowing calls to go to voicemail; and repeatedly setting unnecessary hearings on the docket. Prior to terminating Lombardi, Silver inquired with Human Resources about a replacement and was informed that he could not be assured that he would be able to get a temporary assistant to replace Lombardi due to the unavailability of funding. He still choose to terminate Petitioner because, "[he] felt having no one was better than what [he] had under the circumstances." Petitioner was not able to go back in the "temporary pool" of judicial assistants as she had in the past after Silver terminated her. In 2008, the Eleventh Judicial Circuit had a hiring freeze whereby the temporary pool was no longer funded. Human Resources eventually sent Elizabeth Gonzalez, whose date of birth is May 26, 1965, to Silver as a temporary judicial assistant. Silver had never met Gonzalez prior to her coming to work for him. There was no discussion of age when Silver requested a judicial assistant or when Gonzalez was assigned to him. Gonzalez served as Silver's temporary judicial assistant for a number of weeks and, when personnel advised him he could hire someone, including Gonzalez, Silver hired Gonzalez on or about March 10, 2008, because he was pleased with her work. Gonzalez worked with him until his retirement in December 2008. At the time when Petitioner filed her Charge of Discrimination, Petitioner was unaware of the exact age of her replacement. Petitioner's date of birth is May 18, 1948.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 30th day of November, 2009, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2009.
