The Issue Whether Respondent Department of Corrections (Respondent or the Department) constructively discharged Petitioner Lou Armentrout (Petitioner) in violation of the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by subjecting Petitioner to a hostile work environment because of Petitioner’s race, age, or gender.
Findings Of Fact Petitioner is an Asian female born February 25, 1970. Petitioner speaks Chinese and English. Petitioner speaks with a Chinese accent. She does not speak or understand Spanish. Respondent is a state agency responsible for “the incarceration and supervision of offenders through the application of work, programs, and services." See § 20.315(1), Fla. Stat. At all material times, Respondent employed more than 15 persons. Petitioner was employed by Respondent at its Lake Correctional Institution (Institution) from September 16, 2011, until October 12, 2012, as a Senior Registered Nursing Supervisor. Petitioner's duties as a Senior Registered Nursing Supervisor included the supervision of approximately 80 nurses at the Institution. While employed at the Institution, Petitioner worked directly under the supervision of the Institution's Chief Health Officer. When Petitioner was hired, the Chief Health Officer was Dr. Moreno. Dr. Moreno’s annual performance evaluation of Petitioner for the period ending February 29, 2012, gave Petitioner an overall 3.51 performance rating score, indicating that Petitioner “consistently meets and may occasionally exceed the performance expectation of the position.” Petitioner never received an evaluation score below a 3, indicating that the employee at least “meets expectation,” on any written evaluation of her performance while she was employed by the Institution. After Dr. Moreno resigned in April or May 2012, Dr. Virginia Mesa was hired as Chief Health Officer of the Institution in May of 2012. Dr. Mesa is Hispanic. Dr. Mesa’s supervision was often harsh. Dr. Mesa had a bad temper and would raise her voice and reprimand employees in the presence of others, including inmates. Dr. Mesa described her supervisory style as the “team approach.” She advised that, instead of meeting with employees individually, she would meet them as a “team.” She would meet every morning with the nurses in the medical unit and once a week in the psych unit. Petitioner attended these meetings. During the meetings, Dr. Mesa would often address the group, many of whom were Hispanic, in Spanish instead of English. Many of the discussions were regarding Dr. Mesa’s medical direction and discussion about patients’ cases. Dr. Mesa knew that Petitioner did not speak Spanish. On more than one occasion, Petitioner asked Dr. Mesa what was being said, and Dr. Mesa would reply, “Ask one of the nurses.” Although Dr. Mesa never specifically mentioned Petitioner’s race, age, or gender, she treated Petitioner harshly and made fun of Petitioner’s Asian accent behind her back. On one occasion, while Petitioner was not present, Dr. Mesa made a joke of Petitioner’s pronunciation of a word by substituting Petitioner’s mispronunciation with a vulgar term, repeating the word a number of times in the presence of other employees and laughing with those employees while poking fun at Petitioner. While not mentioning Petitioner’s race, it is evident that the joke was designed to ridicule Petitioner on account of Petitioner’s race.2/ Petitioner was made aware by others that Dr. Mesa belittled her behind her back. Dr. Mesa’s contempt for Petitioner was overt. Dr. Mesa would raise her voice and glare at her, and challenge Petitioner’s competence as a supervisor and medical professional in front of others in a bullying way. Dr. Mesa would humiliate Petitioner by testing Petitioner’s bedside nursing skills in front of other nurses and inmates, knowing that Petitioner had not been working as a nurse for a number of years, primarily because Petitioner had been working in an administrative position. Feeling as though her authority was being undermined by Dr. Mesa, and wanting to improve her business relationship and obtain some direction from Dr. Mesa, Petitioner asked for private meetings with Dr. Mesa on numerous occasions. Dr. Mesa refused. In addition, despite Petitioner’s continued requests that she use English, Dr. Mesa continued to address Hispanic staff in Spanish during morning staff meetings. Dr. Mesa did, however, meet privately with Gary Assante, a white male, who, although not licensed in a medical profession, was an administrator with the Institution with lateral authority to that of Petitioner. Instead of giving directions directly to Petitioner, Dr. Mesa would give directions through Mr. Assante to Petitioner. Some of the directions were of a medical nature. Dr. Mesa would also use nurses supervised by Petitioner to deliver directions to Petitioner. Dr. Mesa’s tactics undermined Petitioner’s supervisory authority. Petitioner became frustrated because Dr. Mesa’s tactics were interfering with Petitioner’s ability to do her job. Petitioner complained to the assistant warden of the Institution, Assistant Warden Young, of Dr. Mesa’s intimidation and behavior. In particular, Petitioner complained that, in addition to her intimidation of Petitioner, Dr. Mesa threatened nursing staff members with termination on several occasions. Assistant Warden Young set up a meeting between Petitioner, Mr. Assante, and Dr. Mesa to discuss the issues in July 2012. During the meeting, Dr. Mesa stated that she is paid too much to listen to the allegations. Despite Petitioner’s complaints, Dr. Mesa’s intimidating behavior continued. On August 22, 2012, without any prior warning of disciplinary action, Dr. Mesa brought Michelle Hanson to Petitioner’s office. Michelle Hanson was the Regional Nursing Director of the Department’s Region 3 Office, which included the Institution. During the meeting, Dr. Mesa questioned Petitioner’s competency as a nurse and told Petitioner that she wanted to demote her. Petitioner told Dr. Mesa that she did not want a demotion and asked Dr. Mesa to specify the problems with Petitioner’s performance. Dr. Mesa never did. In fact, there is no evidence of verbal counseling or reprimands from Dr. Mesa in Petitioner’s personnel file. Dr. Mesa never provided a written evaluation of Petitioner’s performance while Petitioner was employed by the Institution. Near the end of August or early September, Petitioner verbally complained to the Institution’s warden, Warden Jennifer Folsom, about Dr. Mesa’s behavior. Dr. Mesa’s intimidation continued. On September 16, 2012, Petitioner provided Warden Folsom with a letter explaining how Dr. Mesa’s “workplace bullying” was adversely affecting Petitioner and the workplace environment, asking “higher level management for assistance and to make a reasonable working environment,” and advising that Dr. Mesa had asked Petitioner to take a demotion. Petitioner’s letter explained, in part: I strongly feel workplace bullying is linked to a host of physical, psychological, organizational and social costs. Stress is the most predominant health effect associated with bullying in the workplace. My experience with workplace bullying is developed poor mental health and poor physical health, inability to be productive and loss of memory and fear of making key decisions. Recently, I also turn to other organizations for job opportunities and I have been asked by Dr. Mesa and Mr. Assante where do I go for interview and how long will this last by asking for days and hours for interviewing. My fearful of retaliation even made me so scared to ask for job interviewing. Petitioner met with Warden Folsom the next day, September 17, 2012. During the meeting, Warden Folsom assured Petitioner that Dr. Mesa did not have the authority to demote her, and gave Petitioner someone to contact in Employee Relations regarding her concerns. Warden Folsom followed up the meeting with a letter dated September 17, 2012, stating: It has come to my attention that you have alleged harassment by your supervisor. You are being provided the name and contact number for the Intake Officer at the Regional Service Center. Norma Johnson (407)521-2526 ext. 150 Please be aware the Department does not tolerate inappropriate behavior in the workplace. Your allegations will be looked into and any appropriate action taken. The letter was signed by Warden Folsom and a witness, as well as by Petitioner, acknowledging receipt. It was copied to Norma Johnson, Employee Relations. After that, Petitioner spoke a couple of times by telephone with Norma Johnson. She told her that Dr. Mesa was continuing to harass and bully her in the workplace, and that Dr. Mesa was causing a hostile work environment. Despite Petitioner’s complaints, nothing changed. It is apparent that Petitioner’s complaints were ignored. In fact, Dr. Mesa claimed that she never heard about complaints that she treated individuals that are Hispanic differently than she treated Petitioner, and could not recall if the Warden ever approached her regarding Petitioner’s complaints. Incredibly, Dr. Mesa testified that she was not made aware of Petitioner’s complaint that she was speaking Spanish and Petitioner could not understand until after Petitioner left her employment with the Institution. After Petitioner’s meeting with the Warden and conversations with Norma Johnson, Dr. Mesa continued to speak Spanish at meetings with staff and Petitioner could not understand. Dr. Mesa continued to direct Petitioner through other employees. And Dr. Mesa continued to raise her voice and challenge Petitioner’s competence in front of other employees. The evidence supports Petitioner’s claim that the way she was treated was discrimination, based upon Petitioner’s race. The evidence does not, however, support Petitioner’s claims that she was discriminated against based upon Petitioner’s age or gender. The harsh treatment Petitioner received, based upon her race, undermined Petitioner’s supervisory authority and interfered with Petitioner’s ability to do her job. The discrimination was overt, continuous, and created a hostile work environment that was intolerable. Petitioner, in essence, was forced to leave the employ of the Institution. Approximately two weeks later, on September 28th or 29th, 2012, after deciding that she could no longer endure the situation, Petitioner sent the following letter to Dr. Mesa and Warden Folsom: Dear DOC: Please accept this letter as my formal notice of resignation from Senior Registered Nurse Supervisor effective 10/12/12. This is the most difficult decision I have ever made throughout my career; however, my time here at Lake Correctional Institution has been some of the most rewarding and memorable years of my professional life. I sincerely appreciate the opportunities that I have been given to contribute to the organization’s success, while growing professionally and personally. Sincerely, Lou Armentrout Cc Human Resource: Please leave all my leave times (annual and sick leaves) in people first until receiving notification from me. Thank you for your assistance. In the year following Petitioner’s resignation, the health care services were privatized and provided by Corizon Health, Inc. Most employees kept their jobs that they held prior to privatization. Had Petitioner remained with the Institution, it is likely that she would have transitioned over to an equivalent position with Corizon Health, Inc. After leaving the Institution on October 12, 2012, Petitioner obtained a job with the Department of Health on October 26, 2012. Petitioner suffered a loss of pay in the amount of $2,222.40 during the period of her unemployment between October 12, 2012, and October 26, 2012. Petitioner’s pay at her new job with the Department of Health is $299.32 less per two-week pay period than her job at the Institution. $299.32 per two-week pay period equals $648.53 less each month ($299.32 X 26 weeks = $7,782.32/year ÷ 12 months = $648.53/month ÷ 30 = approximately $21.62/day). The time period between the date Petitioner began her new job with the Department of Health on October 26, 2012, and the final hearing held January 16, 2015, equals 26 months and 21 days. The loss in pay that Petitioner experienced in that time period totals $17,315.80 ((26 month x $648.53/month) + ($21.62/day x 21 days) = $17,315.80). The total loss in pay ($2,222.40 + $17,315.80) that Petitioner experienced from her resignation until the final hearing is $19,538.20. Petitioner also drives 92 miles further each work day to her new position with the Department of Health. The extra cost that Petitioner incurs to get to her new job, calculated at the State rate of $0.445 per mile, equals $40.94 per day. Taking into account 260 work days per year (5 work days per week), from beginning of Petitioner’s new job through the date of the hearing equals a total of $23,663.32 (578 days x $40.94/day), without subtracting State holidays or vacation days. Subtracting nine State holidays and two weeks for vacation each year results in a total of $21,943.84 to reimburse Petitioner for the extra miles driven each work day through the day of the final hearing (536 days x $40.94/day).
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 that the Department constructively discharged Petitioner Lou Armentrout by subjecting her to a hostile work environment on account of Petitioner’s race in violation of the Act; Ordering the Department to pay Petitioner $19,538.20 in back pay through the date of the final hearing, January 16, 2015, plus $21.62 per diem thereafter through the date of the Commission's final order, with interest accruing on the total amount at the applicable statutory rate from the date of the Commission's final order; Ordering the Department to pay Petitioner $23,663.32, as an additional aspect of back pay, for extra daily travel expenses incurred to get to and from her new job through the date of the final hearing, plus $40.94 for each work day thereafter that Petitioner drives to her new job through the date of the Commission's final order, with interest accruing on the total amount at the applicable statutory rate from the date of the Commission's final order; Ordering the Department to make arrangements to reinstate Petitioner to an equivalent position with Corizon Health, Inc., for service at the Institution; Prohibiting any future acts of discrimination by the Department; and Awarding Petitioner her costs incurred in this case. DONE AND ENTERED this 29th day of April, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2015.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was terminated from his employment by the Respondent based on discrimination because of his race in violation of Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner is an African-American male. He was employed at times pertinent hereto until his termination, by the Respondent Mold-Ex, L.L.C. The Respondent is a manufacturing company located in Milton, Florida, which operates a manufacturing facility and operation on a multi-shift basis, engaged in the manufacturing of various plastic and rubber products, particularly automotive-related parts. The Petitioner began employment with the Respondent on September 8, 1989, as a press operator. He also worked as a machine operator for about four months and was promoted to Second Shift Supervisor in the injection department. This is an injection molding operation which molds plastic and rubber parts. The Petitioner was a Second Shift Supervisor in that department for eight and one- half years. The Petitioner reported to Jerry Decker, who was his supervisor. The Petitioner is an employee and the Respondent company is an employer within the meaning of Section 760.10, Florida Statutes. The Petitioner's duties included monitoring overall operation of the machinery, training, new employees, setting up machines and jobs, completing attendance reports and holding employee meetings. As many as twenty-three employees were supervised by him on the second shift. The Petitioner was the only black supervisor at Mold-Ex. The Petitioner was terminated from his employment on December 4, 1998. He was told by Mr. Decker, his supervisor, that he was being terminated because the company was "down-sizing" or reducing positions and the number of employees due to financial difficulties. The Petitioner elected to contest this by filing a Charge of Discrimination with the Commission, claiming that he was harmed because he was discharged because of his race. Beginning in early 1998, the corporate parent company which owned Mold-Ex, L.L.C., was experiencing significant financial difficulties. This resulted in part from the "reservoir seal project" which involved a contract for a certain part that the Respondent was to manufacture for the Delphi Division of General Motors Corporation. There were difficulties in manufacturing the reservoir seal successfully, it was difficult to manufacture and required extra labor. It was termed by the Respondent's president as a "real disaster" which caused serious financial drain on the company. The company had a great deal of difficulty in successfully manufacturing the part to the correct specifications and lost much revenue due to unfilled orders and/or improperly manufactured parts which had to be replaced. Additionally, and related to these difficulties, the parent company was having great difficulty meeting its debt service obligations. In fact, the parent company never actually recovered from the financial difficulties from 1998, such that ultimately the Respondent was sold to another corporation. These financial difficulties throughout 1998 resulted, by the fall of that year, in the parent corporation putting significant pressure on the Respondent's management in Milton to reduce costs substantially, including labor costs. The Respondent considered and implemented several ideas for cutting costs, including restructuring the supervision of the operation and otherwise seeking to reduce labor costs. In September of 1998, the Respondent employed an excess of people over those needed to operate efficiently. At that time the Respondent employed approximately three-hundred workers. Because there was an excess of employees and, therefore, payroll expense, a hiring freeze was instituted. This resulted in a steady reduction of employees through not filling positions that were voluntarily vacated by employees leaving the company, as reflected in the Respondent's Exhibit 10 in evidence. The overall operating officer of the Milton facility, Vice President Ettelson, established in his testimony that in late November of 1998, the hiring freeze resulted in a reduced head count which saved the company substantial amounts of money. Thus, by the end of 1998, the company employed only approximately 280 persons instead of the 300 who were employed in September of 1998. By April of 1999, the employment roster was down to approximately two hundred and fifty persons. The Respondent additionally restructured supervision in order to save money and to operate more efficiently, in terms of simply more effective manufacture and filling of orders, as well as in the saving of personnel and related expenses. This restructuring involved combining supervisory positions and re- allocating duties, such that one plant superintendent was placed in charge of all of the operations on the second shift rather than having approximately three supervisors overseeing the individual business units operating on the second shift. The Petitioner was a Second Shift Supervisor whose position was eliminated in this restructuring. His duties were distributed among Mr. Don Brumley, who was a long-experienced employee who was re-hired out of retirement and who became the Second Shift Plant Superintendent; an employee in the injection and molding department, referred to as a "lead-employee" and also to certain individuals on the first shift. The restructuring resulted in a savings of approximately $40,000.00 as to salaries by eliminating three positions and selecting Mr. Brumley as the plant superintendent for the second shift. The re-structuring concentrated on the second shift because the other two shifts required the management personnel that were currently in place. On the first shift, various improvement projects and process development efforts required more intense, active supervision and supervisory personnel that were already in place. On the second shift, because no improvement projects were being conducted, the differences in activity between the second and first shift allowed the company to supervise that entire shift, as to all departments, by placing a strong effective plant superintendent in charge of that entire shift; eliminating three supervisory positions for a substantial savings in expenses. On the third shift, no re- structuring occurred because it was only a small operation of approximately twenty-five employees. The highest management personnel present for that shift was already a lead person in the mixing department and a supervisor in the injection molding department. Additionally, the company management recognized a strong need for a superintendent such as Mr. Brumley who had a record of implementing better disciplinary measures and who could ensure consistency and efficiency of operation in all of the operating departments on the second shift. The re-structuring effort resulted in a change in the reporting system or "chain of command" as well. Prior to re- structuring, three managers, one for each of the three business units (profile extrusion, molding, and reinforced hose), reported directly to Vice President Ettelson. Below these three managers were the supervisors in charge in each individual department within the three business units. For example, in the molding department where the Petitioner worked as Injection Molding Supervisor on the second shift, supervisors in injection molding on the first and third shifts as well as a first shift supervisor in the trim department, for a total of four supervisors, reported directly to molding manager Jerry Decker. Four supervisors reported to the Reinforced Hose Manager, Sidney Hood. Two supervisors reported to Profile Extrusion Manager Steve Wieczorek. Those three managers reported to Vice President Ettelson. After the re-structuring, supervisors remained in place on the first and third shifts, but on the second shift no supervisors remained who would be reporting to the department managers Decker, Hood and Wieczorek. Instead, Don Brumley, re- hired from retirement as the second shift plant superintendent, reported directly to Vice President Ettelson. Don Brumley was therefore in charge of all three business units during the second shift. His duties were much more substantial than the Petitioner's. He managed approximately 60 people while the Petitioner had managed approximately 20 to 23 people. Mr. Brumley had more administrative duties than did the Petitioner. He had hiring and firing authority that the Petitioner did not have and had the responsibility for adherence to company policy on the entire second shift rather than in only one department. Molding Manager, Jerry Decker, established that the re-structuring organization functioned effectively. It resulted in the elimination of the Petitioner's position on or about December 4, 1998. Additionally, two white males in supervisory roles were terminated by the Respondent because of the re-structuring. The Petitioner maintained that one of those terminated white individuals, Dan Lowery, had been out of work seven months with tuberculosis and was permanently disabled and, therefore, was terminated because he was not qualified to perform his job duties. However, the Human Resources coordinator, Nick Bores, the person with probably the most knowledge and insight concerning Mr. Lowery's employment capabilities, established in a credible fashion that Mr. Lowery had indeed been on leave for a few months due to his illness but returned to his employment duties with a full clearance from his physician to perform all of his duties. This testimony was corroborated by that of molding manager Jerry Decker and Vice President David Ettelson and is accepted. The Petitioner also contended in his testimony, in essence, that racially discriminatory motivation for his termination existed as shown by two incidents. One incident in 1997 involved an employee who had been disciplined in some way by the Petitioner, who then purportedly placed a "swastika" symbol on the Petitioner's car in the parking lot. The Petitioner asserts that the employee was not disciplined for that act, which he contends was indicative of racially discriminatory animus toward him by the Respondent's management. In fact, however, the Respondent did not discipline that employee because, upon questioning, he denied the conduct. The Respondent had no independent proof that he was guilty of the act. The Petitioner himself was not disciplined on an occasion when he was accused of sexual harassment by a female employee, because he denied it and the Respondent had no independent proof that he was guilty of the alleged conduct. Moreover, at about the same time as the "swastika incident" the Petitioner received a written commendation, signed by CEO Thomas Henry and Vice President Ettelson. These facts, considered together, tend to show lack of racial animus by the company management. The other incident described by the Petitioner related to management reaction to observing an employee under the Petitioner's charge failing to wear safety goggles. Mr. Ettelson purportedly told the Petitioner he would "kick his butt" if his employees again failed to wear protective goggles. This statement, if made, may be coarse or harsh, but was not shown to be other than an isolated occurrence. Moreover, it does not evince a racially discriminatory motive or attitude on the part of an employment-related decision-maker. The Petitioner maintained that his replacement, Don Brumley, was not qualified for the position created by the re- structuring and that his "lead man," Eddie Byers, was the only person in the department who could have performed the duties that the Petitioner had performed. This testimony, however, is rebutted by the testimony of witnesses Decker, Ettelson and Thomas Henry, the CEO of the company. Their testimony establishes that Mr. Brumley was well-qualified to assume management of the entire second shift operations as Plant Superintendent which included the scope of the Petitioner's job but included other substantial duties and responsibilities as well. In fact, with the exception of being retired for approximately one year, Mr. Brumley worked for the Respondent since 1963 and was the company's first employee after it was founded by Mr. Henry, his father and Mr. Henry's brother. Prior to his retirement, Mr. Brumley functioned as Compression Molding Manager, which was a position above the Petitioner's position level in the hierarchy of the company and at the same level as the Petitioner's former supervisor, Jerry Decker. In fact, Mr. Brumley, at one time, had a supervisory role over the Petitioner. The Petitioner's experience was limited to one department during his tenure with the company. Mr. Brumley, however, had worked in all departments in his 36 years with the Respondent. Mr. Brumley knew the operations of the company very well and bringing him back to the company to function as the Second Shift Plant Superintendent, with his skills and experience, saved the company substantial expenses by allowing it to avoid the necessity of retaining other employees. Additionally, Mr. Brumley had a reputation as a strict disciplinarian and Mr. Ettelson and the company management felt that stricter discipline was required for the operations on the second shift. When the Petitioner was terminated he was offered a severance package of four weeks' pay at the time of termination, but elected not to accept that offer. He was not offered a different employment position with the Respondent because no suitable options, in terms of his skills and qualifications and in relation to his salary level, were available with the company at that time. The Petitioner was earning $7.80 per hour, at the time of his termination and his annual salary, without overtime, was $16,234.00. During 1998, which was his best year in terms of income, he earned approximately $27,000.00 when overtime was added to his regular salary. The Petitioner earned a total of $13,175.72, in 1999 and earned $3,117.00 in unemployment compensation in 1999. He earned $7,513.51, when employed by Britt Landrum Temporaries, Inc., in 1999, and earned $1,608.01 when employed by Interim Services, Inc., in 1999. Additionally, he was employed by Transport Leasing Contract, Inc., in 1999 and earned $937.20 with that employer. Since approximately January 2000, the Petitioner has been working at the Waterfront Mission and earned $6.50 per hour, and then in September 2000, was raised to $7.00 per hour. The Petitioner concedes that with his qualifications and experience he could obtain employment at more than $7.00 per hour, which he makes at the Waterfront Mission. He chose to work at the Waterfront Mission because that employment is compatible with his calling to be a minister. He desires to have work which is compatible with his duties as a pastor for two churches in the area. He has earned about $375.00 per month as a pastor for his two churches since approximately May 2000. The Respondent presented evidence by witnesses Ettelson, Decker and Bores, the Human Resources coordinator, all of whom testified that the re-structuring plan, which included the elimination of the Petitioner's position, was for the purpose of serving the above-referenced financial business needs in relation to reducing costs, as the reasons which led to the Petitioner's termination. All testified that the primary goal was reducing costs in order to help the company to survive its business downturn, including the fact, established by Mr. Henry's testimony, that the United Auto Workers strike of the Delphi Division of General Motors began in the summer of 1998. This caused a loss of approximately one-million dollars per month. That is the reason that the re-structuring was effected which allowed them to bring in a more experienced man, Mr. Brumley, who was qualified to run the entire department at lower costs as the Plant Superintendent on the second shift, rendering the Petitioner's job and position unnecessary. Their testimony that these business reasons were the cause of the re- structuring and the Petitioner's termination is accepted, rather than the Petitioner's contention that the reasons for his termination involved his race.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations denying the Petition for Relief. DONE AND ENTERED this 6th day of April, 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 April, 2001. COPIES FURNISHED: R. John Westberry, Esquire Holt & Westberry, P.L. 1108-A North 12th Avenue Pensacola, Florida 32501 Heather Fisher Lindsay, Esquire Gordon, Silberman, Wiggins & Childs, P.C. 1400 South Trust Tower Birmingham, Alabama 35203 Azizi Coleman, Agency Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on an alleged disability.
Findings Of Fact Respondent is a Carnegie I residential and coeducational university of approximately 40,000 students and over 13,000 full and part-time faculty and staff located in Tallahassee, Florida. The Office of Financial Aid (OFA) is responsible for the overall administration of student financial aid, including federal, state, and institutional financial aid. Of the approximate 40,000 students, 25,000 on average receive some form of financial aid in the amount of approximately $300 million dollars per year. OFA hired Petitioner on August 7, 1990, as a secretary. Thereafter, Petitioner worked for OFA for almost 18 years. During her 18 years of employment, Petitioner resigned from OFA on three occasions. She resigned in 1996 and again in 2006, only to be rehired by the same OFA Director each time. Petitioner submitted her third resignation and notice of retirement on September 19, 2008, effective September 30, 2008. With one exception, Petitioner did not make Respondent aware of any complaints or allegations of unfair treatment prior to her ultimate retirement from OFA. She never complained to anyone that she was being stalked, monitored, or overworked more than her co-workers. She did complain on one occasion that Joann Clark, OFA's Assistant Director, was walking by her office/work station and knocking on the wall/desk/counter. All new employees receive Respondent's policies and procedures relative to retirement and employee benefits eligibility. The policies and procedures include sections on the Americans with Disability Act (ADA), Family Medical Leave Act (FMLA) and Workers' Compensation (WC). On July 13, 2005, Petitioner had surgery for carpel tunnel of the wrist. Petitioner did not inform her immediate supervisor of the scheduled surgery until July 12, 2005, even though Petitioner's doctor scheduled the surgery on June 13, 2005. On July 12, 2005, Petitioner's supervisor was Lassandra Alexander. Ms. Alexander provided Petitioner with copies of, ADA, FMLA, and WC forms and reviewed them with her as soon as Ms. Alexander became aware of the surgery scheduled for the next day. Petitioner told Ms. Alexander that she was not going to worry about applying for an accommodation under the ADA, for leave under FMLA, or WC benefits. Petitioner failed to timely file for WC in July 2005. She was not eligible to receive Workers' Compensation benefits because she did not comply with the proper protocol and procedures. Petitioner returned to work on August 29, 2005, with a doctor's statement recommending her for "light duty." On September 23, 2005, Petitioner presented a doctor's statement recommending her to work half time, four days a week. Respondent complied with the doctor's recommendations. Respondent divided Petitioner's work among other co-workers and also allowed Petitioner to take breaks as needed. On October 26, 2005, Petitioner presented a doctor's statement, allowing her to return to work full time. After October 26, 2005, Petitioner never submitted any further medical documentation to indicate that she had continuing work restrictions. After October 26, 2005, Petitioner did not formally request an accommodation or furnish medical documentation indicating a need for an accommodation. Even so, Respondent continued to provide Petitioner with support and assistance as requested. On July 25, 2008, Petitioner signed a letter confirming her appointment to a full-time position. That same day, Petitioner signed a Memorandum of Understanding that advised her about the FMLA, Respondent's Sexual Harassment and Non-discrimination Policies, and Respondent's Workers' Compensation Program Guidelines. Petitioner's testimony that she never received copies of these documents and that she was unaware of benefits and eligibility forms at any time during her several hires by OFA is not persuasive. There is no competent evidence that Petitioner was substantially limited in performing the essential functions of her job or that she suffered from a disability as defined by the ADA after October 2005. Additionally, Petitioner never informed her supervisors of an alleged on-going disability and never provided medical certification to substantiate her current allegations. Therefore, it is clear that Petitioner's co- workers and supervisors did not regard her as having an impairment. Petitioner's work evaluations for her entire 18-year employment with OFS were above standards. Petitioner's supervisors valued her work ethic and production in the office. The greater weight of the evidence indicates that Respondent's staff did not intentionally discriminate against Petitioner. They did not harass Petitioner by any means, including stalking her, excessively monitoring her work habits, isolating her to her office, giving her more work than her co- workers, tampering with her office computer, refusing to investigate her allegations of vandalism to her car in the parking lot, and refusing to give her a new office chair and computer mouse that she requested on an office "wish list." Petitioner's testimony to the contrary is not credible. At some point in time, Petitioner complained to Willie Wideman, OFA's Associate Director, that Assistant Director Joanne Clark was knocking on the wall to her office/workspace/counter. Mr. Wideman spoke to Ms. Clark, determining there was no validity to Petitioner's allegations. Petitioner also complained to her friend and co- worker, Joann Smith, that she was irritated because people were knocking on her counter. Ms. Smith admitted she had knocked on Petitioner's counter as a means of friendly communication, a way to say hello in passing. Later, Ms. Smith became aware of the "no knocking" sign on Petitioner's desk. Petitioner's two letters of resignation and her notice of retirement clearly demonstrate that she did not perceive any discrimination, harassment or hostile work environment from her fellow employees or supervisors. All of Petitioner's colleagues were shocked when they learned about Petitioner's complaint and read the allegations.
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. DONE AND ENTERED this 22nd day of December, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2009. COPIES FURNISHED: Cheryl Mask-Brockman 536 West 5th Avenue Tallahassee, Florida 32303 Brian F. McGrail, Esquire Florida State University 424 Wescott Building 222 South Copeland Street Tallahassee, Florida 32306 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue for determination at the final hearing was whether the Respondent, City of Largo, as employer of Petitioner, Cleareather B. Gross, committed an unlawful employment practice by discriminating against Petitioner on the basis of race.
Findings Of Fact Based upon the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Petitioner, a black female, was hired as a Clerical Assistant I for the City of Largo's City Clerk's Office on September 21, 1981 and was assigned to the mail room. The Petitioner was hired for the position by City Clerk Kay Klinsport, a white female. The interview went well and, although there were other candidates for the position, the Petitioner was hired. Shortly after commencing work with the City Clerk's Office, the relationship between the Petitioner and her supervisor, Kay Klinsport, began to turn sour. Ms. Klinsport utilized very strict management and supervisory techniques and was not considered a very good personnel manager by many of her subordinates. The Petitioner is an extremely assertive person and takes pride in her willingness to "speak her mind" in all situations. Ms. Darlene Trowell, a white female, worked as a secretary in the City Clerk's Department during the time in question. Ms. Trowell also had trouble with Ms. Klinsport's management and supervisory techniques, but decided that the best way to deal with her was by keeping quiet and having limited contact. Ms. Klinsport antagonized several of her subordinates, both white and black. Ms. Klinsport decided that the Petitioner should be watched especially close and asked Ms. Trowell to "keep an eye on her (Petitioner)." This occurred as a result of Ms. Klinsport's management techniques, the Petitioner's overall assertive attitude and several complaints that were received regarding the Petitioner. Ms. Klinsport no longer works for the City of Largo. Darlene Trowell frequently complained to the City Manager regarding Ms. Klinsport's managerial techniques. The City of Largo has written guidelines governing employee conduct and discipline; those guidelines are titled "Code of Conduct and Disciplinary Measures" and a copy is provided to all employees. The guidelines require that supervisors pursue a philosophy of "progressive discipline" by administering gradually increasing disciplinary actions for each successive instance of employee misconduct. Possible disciplinary actions include oral reprimand, written reprimand, suspension, and ultimately, dismissal. Kay Klinsport received several complaints regarding the Petitioner, at least one of these complaints came from the Fire Chief and one complaint came from an employee of the Police Department. In her position with the City Clerk's Office, the Petitioner had occasion to come into contact with employees of the Police and Fire Departments. One of the complaints about Petitioner came from a black employee of the Police Department. On December 3, 1981, J. G. Knight, Fire Chief, sent an interoffice memorandum to Kay Klinsport complaining of the Petitioner's behavior. Specifically, the complaint alleged that Mr. Knight had received numerous verbal complaints and at least two written complaints of confrontations and harrassments by the Petitioner when it becomes necessary for fire department clerical employees to conduct business in or around the mail room. In addition, the complaint alleged that the Petitioner wrongfully opened a sealed envelope addressed to an employee of the fire department concerning the death of a member of his immediate family. On January 29, 1982 Kay Klinsport, City Clerk, issued the Petitioner a written reprimand. The reprimand specifically addressed friction between the Petitioner and other employees and noted the following: 11-16-81 - Failure to complete a project from personnel; 12-1-81 - A confrontation with Becky from the Fire Department; 12-10-81 - A confrontation with Barbara from Public Works Department Refusal to stamp signatures on annexation notices; A confrontation with Bonnie concerning Vivian and Marlene; Problem involving mail from P. O. Box 137 and directions given from Lynn in Finance; A confrontation with Charlotte regarding mail pick-up during distribution; 1-25-82 - Compensatory time confrontation as to date used; 1-26-82 - Attitude involved throughout day and into next.' The written reprimand stated that if Petitioner received another reprimand for the same reason, she would be suspended without pay for five days in accordance with personnel rules and regulations. On February 16, 1982 Kay Klinsport, City Clerk, issued a written reprimand to the Petitioner. This reprimand involved a complaint that Ms. Klinsport had received from the Police Department concerning the Petitioner's use (or rather misuse) of the microfilming equipment. The Police Department allows the City Clerk's Office to use certain camera equipment for microfilming records. Specifically, the reprimand alleged that the Petitioner continued to run documents through the machine without proper preparation (i.e., removing staples and paperclips) despite being instructed as to the proper use of the equipment. Improper use of the machine by failing to remove staples and paperclips can cause the machine to malfunction because the staples and paperclips accumulate in the bottom of the machine. The written reprimand warned Petitioner that if she continued to misuse the camera equipment at the Police Department, she would be suspended for three days. On October 8, 1982 Kay Klinsport, City Clerk, issued a written reprimand to the Petitioner. The written reprimand cited the following: 10-1-82 - Incident involving Lynn McKenzle, Finance Department, in failure to readily relinquish use of the computer; 10-6-82 - Copy paper incident with Brenda stemming from incorrect certificate of indebtedness turned into supervisor, department head; and Verbal complaints from several other employees. On the basis of this written reprimand, the Petitioner was suspended for five days without pay. The Petitioner was warned that should her attitude continue to interfere with subordinate and/or fellow employee relationships, she would be dismissed. On November 12, 1982, the Petitioner filed a charge of discrimination against the City of Largo with the Equal Opportunity Commission (case #025830181). On November 30, 1982 Kay Klinsport issued a written reprimand to Petitioner, Specifically, the reprimand addressed the Petitioner's poor attitude and ability to deal with subordinates and/or fellow employees and noted a confrontation between the Petitioner and "Kay and Leah." On the basis of this written reprimand, the Petitioner was suspended without pay for five days, with termination of employment to take effect on December 7, 1982. Effective July 4, 1982, the Petitioner was moved from Clerical Assistant I to Acting Clerical Assistant II. On September 29, 1982, the Petitioner sent a memo to Kay Klinsport indicating her desire to apply for the permanent position of Clerical Assistant II. On November 21, 1982, the Petitioner was returned to her permanent position of Clerical Assistant I. Lynn McKenzie, a white female, was hired to fill the Clerical Assistant II position. The Petitioner performed poorly on the Clerical Assistant II written test and was not hired for the vacant position. Of the five people that took the examination, the Petitioner placed last; however, Ms. McKenzie did not make the highest score. On March 21, 1982, the Petitioner's probationary appraisal was made by Kay Klinsport. In the evaluation, the Petitioner was rated "satisfactory" on overall performance. With the exception of "attitude," all factors were rated "satisfactory;" attitude was indicated as "generally neutral; disposition and outlook varied with mood." On September 21, 1982, the Petitioner received her "anniversary performance appraisal" which was completed by Kay Klinsport. The Petitioner's overall performance was rated as "satisfactory." Ms. Klinsport did, however, mention that the Petitioner's attitude varied with her mood. The Petitioner appealed her discharge and on September 19, 1983, an order of the Federal Mediation and Faciliation Service was issued directing that the City of Largo reinstate the Petitioner without any back pay to the position held by her on the date of her discharge. The Mediation order found that the Petitioner's conduct warranted a disciplinary penalty short of discharge. The Petitioner returned to work on October 5, 1983. However, the Petitioner resigned on February 4, 1984.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner's Petition for Relief be denied in that no unlawful employment practice has been shown. DONE AND ORDERED this 31st day of December 1985 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December 1985. COPIES FURNISHED: Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303 Aurelio Durana, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303 Ms. Patricia Catalano Personnel Analyst City of Largo Post Office Box 296 Largo, FL 33540 Ms. Cleareather B. Gross 915 North Garden Avenue Clearwater, FL 33515 Thomas M. Gonzalez, Esq. P. O. Box 639 201 E. Kennedy Blvd. Suite 838 Tampa, FL 33601
Findings Of Fact The City and Charging Party executed their first collective bargaining agreement on November 5, 1974. This agreement under its terms was made retroactive to October 1, 1974. Among the provisions of the agreement is Article 9, which sets forth the grievance procedure. Its last step is final and binding arbitration. Paul Williams, a firefighter employed by the City and covered under the agreement, had apparently had a history of pay problems going back to 1973 when Williams was allegedly placed in the improper pay classification based upon his years of service. The exact nature of the difficulty was not explored because it is not material to the issue present in this case. However, Williams subsequently sought to correct this situation, which apparently adversely affected his pay, by various means to include discussing the matter with various superiors in both the fire department and city administration. This matter was never officially resolved or a decision reached which was satisfactory to Williams. In December 1974, Williams received his first check under the newly negotiated contract. He went immediately to his union representative and complained that he was not being paid in accordance with the contract's terms and the service which he had. In short, the alleged error about which Williams had complained nearly 18 months had been continued under the computation of Williams' pay under the newly negotiated contract. Williams filed a grievance under the contract in December 1974, disputing his pay classification and seeking adjustment to his wages from October 1, 1974, the effective date of the contract. His grievance was therefore filed within six months of the date the alleged dispute arose regarding his classification and wage under the contract. The grievance was approved by the union grievance committee, as the first step in the grievance procedure. Thereafter, the grievance was submitted to the fire chief, who requested that he be given several days to check around and see what he could do. On or about December 20, 1974, the fire chief advised the men that he lacked authority to change the pay status of Williams, thus leaving the matter unresolved at the second level. The matter was pursued to the third step, referring it to the city manager. During the latter part of December and January, the city manager discussed the Williams' grievance with the union representative. By January 14, 1975, there had been no progress in resolving the matter, and the union representative notified the City of its intent to invoke Step 4 of the grievance procedure outline in Article 9, supra. The City has refused to move to Step 4, which is submission to a grievance committee whose decision is final and binding.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends the Commission order the Employer to cease and desist from refusing to take Williams' grievance to the final step in the grievance procedure set out in the collective bargaining agreement. Further, the Hearing Officer recommends that an appropriate public notice to employees of the Public Employer be posted in conspicuous placed where notices to employees are usually posted for a period of time determined by the Public Employees Relations commission. This report is respectfully submitted this 26th day of March, 1976, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Allen M. Blake, Esquire Alley and Alley, Chartered Post Office Box 1427 Tampa, Florida 33601 Tom Brooks, Esquire Staff Attorney Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, Florida 32301 Robert W. Vause, President Tarpon Springs Professional Fire Fighters, Local 2353 1408 Ledgestone Drive New Port Richey, Florida
The Issue Whether Respondent Eastern Florida State College (EFSC) engaged in discriminatory employment practices and retaliation, in violation of the Florida Civil Rights Act (FCRA), as alleged in the Petition for Relief; and, if so, the appropriate penalty.
Findings Of Fact Ms. Garrett is a 53-year-old African American woman. EFSC is a public college in Brevard County, Florida. For the time period relevant to this matter, EFSC is, and has been, her employer. On July 9, 2018, Darla Ferguson informed Ms. Garrett that EFSC eliminated her position as e-Learning Coordinator. EFSC did not fill Ms. Garrett’s position in the e-Learning department; rather, the prior job duties were assigned to other members in the e-Learning department. After eliminating the position of e-Learning Coordinator, EFSC offered Ms. Garrett the position of Coordinator of the Office of Undergraduate Research (OUR). The OUR department supports and promotes research opportunities among undergraduate research students through EFSC’s four campuses. Ms. Garrett accepted EFSC’s offer, and Ms. Garrett became EFSC’s first employee to hold the position as Coordinator of OUR. In lieu of offering Ms. Garrett the position of Coordinator of OUR, EFSC could have laid off Ms. Garrett following the elimination of her position as e-Learning Coordinator. However, rather than laying her off, EFSC found a new position for Ms. Garrett. Following her transfer to the position as Coordinator of OUR, Ms. Garrett’s salary and benefits remained unchanged from her prior position as e-Learning Coordinator. On July 10, 2018, Ms. Garrett met with Dr. Sandra Handfield, Scott Herber, and Dr. Ashley Spring to discuss Ms. Garrett’s new position as Coordinator of OUR. At that meeting, Dr. Handfield—who was Ms. Garrett’s new supervisor—informed Ms. Garrett that Dr. Spring and Mr. Herber were the founders of OUR. Prior to Ms. Garrett’s arrival as Coordinator of OUR, Dr. Spring and Mr. Herber, who were full-time faculty members, oversaw the OUR program. Dr. Handfield also informed Ms. Garrett that should she have any questions regarding her position as Coordinator of OUR, she should consult with Dr. Spring and Mr. Herber. As of the date of the final hearing, Ms. Garrett remained employed by EFSC as the Coordinator of OUR, and continues to receive the same salary and benefits that she received when she was the e-Learning Coordinator. Allegations of Adverse Employment Action EFSC originally intended for the Coordinator of OUR to be a Director, and possess a doctorate degree. However, EFSC later changed this position to Coordinator, which did not require a doctorate degree, and which had a lower salary. Ms. Garrett never applied for the Director of OUR position, and she does not have a doctorate degree. Ms. Garrett testified concerning her belief for the reason that EFSC transferred her to the Coordinator of OUR position, stating: I believe they did that because the intent was to put me in a position that was beyond my reach so that when I had issues and problems, they could use that and tie it with this position in order to say that I could not do the job. On April 12, 2019, Ms. Garrett received a six-month performance evaluation covering her first six months in her position as Coordinator of OUR. Dr. Handfield provided the performance evaluation approximately four months after the performance period ended. The performance evaluation indicated that Ms. Garrett was deficient in the areas of teamwork, valuing differences, and communication. Following the performance evaluation, Ms. Garrett did not lose any pay or benefits, and nothing adverse happened to Ms. Garrett as a result of the performance evaluation. Ms. Garrett testified that she believed Dr. Handfield gave her that evaluation “as a form of retaliation[,]” but not on the basis of her race, age, or gender. She further testified as follows: Q. Okay. But just to be clear, not gender, age, or race. You think it’s retaliation, what she did, correct? A. Correct. Q. Okay. And what was she retaliating against you for in your view or what facts do you have that it was for retaliation? A. I believe it was retaliation based on the input from the faculty members, based on the interactions we had during the actual performance review period, which would have been July 9th, 2018, until January 9th, 2019. Q. So based on the interaction you had with Dr. Handfield, Dr. Spring and Mr. Herber for the six months before that; is that what you’re saying? A. Yes In January 2019, Ms. Garrett requested that she use Canvas shell computer software to enable her to build an orientation outline. EFSC denied this request, because it would not generate money. Allegations of Comparator Ms. Garrett identified Justin Looney, a 38-year-old white male, as a comparator in support of her discrimination claim.1 Ms. Garrett’s testimony was that Mr. Looney was an EFSC employee working as an Academic Services Coordinator at EFSC’s Patrick Air Force Base campus; upon the closing of that campus, EFSC eliminated Mr. Looney’s position and, similarly to Ms. Garrett, transferred him to a newly-created position in which he received the same salary and benefits. 1 At the final hearing, Ms. Garrett also mentioned Marian Sheltman as a possible comparator, stating that she was a white female. However, Ms. Garrett failed to introduce any additional facts or evidence concerning Ms. Sheltman’s status or to explain how the undersigned could consider Ms. Sheltman as a valid comparator. The undersigned finds that Ms. Garrett failed to establish Ms. Sheltman as a comparator in this matter. Ms. Garrett contends that EFSC treated Mr. Looney differently, during his transfer, in that EFSC provided Mr. Looney more notice time between the elimination of his prior position and the transfer to his new position. Ms. Garrett also contends that EFSC treated Mr. Looney differently than her because Mr. Looney was Dr. Handfield’s son-in-law. Allegations of Hostile Work Environment Ms. Garrett testified that at the July 10, 2018, meeting, Dr. Spring commented about the uncleanliness of the OUR office, and recommended that Ms. Garrett obtain a broom and dustpan to keep the office clean. Ms. Garrett also testified that she declined to assist Dr. Spring in hanging posters on the wall of the OUR office. Ms. Garrett also testified that Dr. Spring noticed that the OUR signage was covered up on the outside of the building, and asked Ms. Garrett to correct this. Ms. Garrett testified that in subsequent meetings with Dr. Handfield, she “shared [her] concerns regarding the work environment[,]” and stated that she did not feel comfortable with the things Dr. Spring and Mr. Herber asked of her because these things “were in violation of college policy.” Ms. Garrett testified that Dr. Spring micromanaged her role as the Coordinator of OUR; for example, Dr. Spring continued to process online student research forms, and coordinated the Fall 2018 OUR board meeting. Ms. Garrett also testified that Dr. Spring opened the OUR online student forms too early, which prevented Ms. Garrett from matching faculty mentors with student applicants.2 Ms. Garrett also testified that Dr. Spring made decisions concerning the OUR without consulting with her. Ms. Garrett testified that Dr. Spring would send her e-mails asking if Ms. Garrett had completed the work requested of her. 2 Ms. Garrett also testified that Mr. Herber was not involved in micromanaging her role as the Coordinator of OUR. Ms. Garrett testified that Dr. Spring told Ms. Garrett what she should be doing, and would become vocal with her dissatisfaction of Ms. Garrett’s job performance. Ms. Garrett testified that she did not know why Dr. Spring engaged in any of these actions. After a November 2018 meeting with Dr. Spring, Ms. Garrett testified that her work atmosphere became “more tense … in terms of Dr. Spring and Mr. Herber starting to make comments about allegations about my work.” She further testified that after this meeting, Dr. Handfield “started issuing directives[,]” such as requiring Ms. Garrett to first ask Dr. Spring and Mr. Herber for input prior going to other EFSC campuses to host information tables. Ms. Garrett claimed that she was subjected to a hostile work environment in which “in every meeting that I planned and hosted, Dr. Spring and Mr. Herber would say disparaging comments during the meeting.” For example, “[t]hey would talk across me and I did not reply.” Although Dr. Handfield was Ms. Garrett’s supervisor, Ms. Garrett testified that Dr. Handfield openly discussed supervision of the OUR with Dr. Spring and Mr. Herber. Findings of Ultimate Fact Ms. Garrett presented no persuasive action that EFSC’s decisions concerning, or actions affecting, her, directly or indirectly, were motivated in any way by race-based, sex-based, or age-based discriminatory animus. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race, sex, or age discrimination. Ms. Garrett presented no persuasive evidence that EFSC’s actions subjected her to harassment based on race, sex, or age. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race, sex, or age harassment. Ms. Garrett presented no persuasive evidence that EFSC discriminated against her because she opposed an unlawful employment practice, or because she made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the FCRA. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful retaliation. Ms. Garrett presented no persuasive evidence that EFSC’s actions were sufficiently severe or persuasive to alter the terms and conditions of her employment to create a hostile work environment. There is no competent, persuasive evidence in the record upon which the undersigned could make a finding of hostile work environment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Mary F. Garrett’s Petition for Relief. DONE AND ENTERED this 12th day of November, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Mary F. Garrett Apartment 2508 2741 Caribbean Isle Boulevard Melbourne, Florida 32935 (eServed) Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue The issues to be resolved in this proceeding concern whether the Respondent, Lehigh Portland Cement Company/Furniture Division ("Lehigh"), discriminated against the Petitioner on account of her race (white) by discharging her from employment following a verbal altercation with a black co- employee in which the Petitioner allegedly uttered racial slurs directed at or concerning that black co-employee and whether the Petitioner was discriminated against on account of her sex (female) and because of a perceived interracial, personal relationship with another co-employee, who is black.
Findings Of Fact The Petitioner is a former employee of Lehigh. She was discharged by that concern on August 4, 1989 as a disciplinary measure in response to her utterance of racial slurs concerning a black co-worker in the vicinity of the factory floor on Lehigh's premises immediately before the workday began on the date in question. She ultimately filed a charge of discrimination raising the issues and commencing the proceedings referenced in the above Statement of Issues and Preliminary Statement. Lehigh is a furniture manufacturer located in Marianna, Florida. Its plant consists of several large buildings where employees assemble and finish furniture. Lehigh employs somewhat over 400 persons at that factory. On the morning of August 2, 1989, Dorothy Hall and Major Hallmon, both black co-workers of the Petitioner, were having a discussion concerning union business just before the workday commenced on or in the vicinity of the shop floor of Lehigh's factory. Ms. Hall was a shop steward for the union in the paint shop, where the Petitioner was employed. Mr. Hallmon was the chief union steward for Lehigh as a whole. Ms. Hall was expressing concern to Mr. Hallmon about employees in her department or "shop", including the Petitioner, avoiding her, in her capacity as shop steward, and presenting problems directly to Mr. Hallmon when issues or incidents arose which they felt involved the responsibility of their union representatives. Ms. Hall mentioned the Petitioner as one of the employees who had complained about her to Mr. Hallmon. While Ms. Hall was making these comments to Mr. Hallmon, the Petitioner approached them and interrupted their conversation, getting into a verbal altercation with Ms. Hall. Mr. Hallmon attempted to get the Petitioner to cease arguing and yelling. Lehigh's personnel management procedures require that if employees engage in a physical or verbal altercation in their work area, they must cease arguing or fighting and move the disagreement to their supervisor's office for their supervisor to handle with them in an adult manner. Ms. Hall retreated from the confrontation with the Petitioner and walked into the office of George Williams, the supervisor of both of them. The Petitioner then made loud comments which were overheard by a number of co-workers. During their argument, or about the time Ms. Hall walked away in the direction of the supervisor's office, she referred to the Petitioner as a "stupid, white fool" or a "white fool". When the Petitioner walked away from the site of their verbal altercation, a white co-worker, Annette White, told the Petitioner that "Dorothy said she is going to whip your tail" or words to that effect. At this point, the Petitioner responded "I am not afraid of no black ass nigger." The Petitioner's comments were made in a very loud voice and were overheard by a number of co-workers nearby although Ms. Hall, herself, did not hear them nor did Mr. Hallmon. Anne Hamlin, a white woman, who worked in the Petitioner's department, heard the Petitioner say the above-quoted comment. Ms. Hamlin admonished the Petitioner that she should not be calling people by that name. Wilford Pittman, a black man, observed Mr. Hallmon trying to calm the Petitioner during or shortly after her verbal altercation with Ms. Hall. He heard the Petitioner use the word "nigger" and state words to the effect that "I am not scared of that nigger". Odell Harrison, a white man, also heard the Petitioner state "I am not scared of that nigger". Ron Baker, a black man, heard the Petitioner reference Ms. Hall as "a black son of a bitch". The Petitioner, herself, admitted that she stated "I am not afraid of no black ass nigger". The Petitioner immediately joined Ms. Hall in the office of the supervisor after the above incident. Mr. Jack Toole, a crew leader, was also present in the office on that occasion. The argument was renewed once the Petitioner and Ms. Hall were together in the supervisor's office. During the course of their renewed argument, in one of the Petitioner's comments, she used the words "I am white" to which Ms. Hall retorted "No you ain't, your shorts is white". Mr. Toole, who was present during the argument in the supervisor's office, recalls Ms. Hall telling the Petitioner that she was "a white fool for fooling around with Major Hallmon and ruining his life". He also recalls Ms. Hall first coming into the office when he was already present and stating words to the effect that "if we didn't do something about that white woman out there, she would do something with her". Mr. Williams remembers Ms. Hall stating "you make an old fool out of Major". The Petitioner then made a comment to the effect that Ms. Hall should stay home and tend to her "thieving husband" and stay out of other people's business, whereupon Ms. Hall picked up an ashtray as though to strike the Petitioner. Mr. Toole grabbed her arm and took the ashtray from her hand, replacing the ashtray on the desk. The signal to begin work then sounded and Mr. Williams instructed both antagonists to leave his office and begin work. Lehigh has a very specific policy prohibiting racial slurs. That policy provides: Further, it is a stated policy of Lehigh to prevent and prohibit discriminatory conduct in the work environment including statements or actions which could be interpreted as, racially, sexually, religiously or ethnically based, sexual harassment or any other discriminatory harassment or conduct with respect to co-employees, subordinate employees, or supervisors. Any employee who is found to have violated this policy will be subject to discipline, up to and including discharge. This equal employment opportunity policy was posted on all of the company's bulletin boards in the work place in early 1987 and was so maintained and posted forward of that time. Lehigh's management had experienced two disciplinary incidents in the past where two employees, Mr. Cecil Sims and Mr. Coy Jackson, both white, had used the word "nigger", in a conversational context with two black co-employees or in a circumstance where those employees overheard the comment, although it was not uttered in the course of an argument or verbal altercation. Those employees were disciplined by Lehigh for uttering that word, which is found to constitute a "racial slur". Shortly thereafter, during contract negotiations with the union in November of 1988, union representatives informed Lehigh's management that they felt that Lehigh was not enforcing its anti-discrimination policy as vigorously as it should, with the Sims and Jackson incidents used as examples of the union's perception that management's disciplinary practices with regard to the use of this racial slur by employees was too lax. Although Lehigh's management took the view, and still does, that it had taken appropriate disciplinary action in those two prior incidents, Lehigh also agreed with union representatives that such racial slurs constituted a serious offense and agreed that the company would thenceforth enforce its discrimination policy more vigorously. Lehigh's policy, with regard to racial slurs, includes its view that the word "nigger" is one of the most severe or offensive words used to disparage or embarrass a person on account of that person's race. This interpretation of its anti-discrimination policy is a reasonable one because it was established in the record that that word, dating from the time of slavery in America forward to the present time, has been used essentially as a term of disparagement. It is one of the few words in the American vocabulary most likely to demean the person to whom it is directed, to arouse ill will between the person employing the word and the person or persons to whom it is directed, or about whom it is referenced, and even to incite violence between them. It is rational for Lehigh to consider that the use of that racial slur is one of the most severe offenses to which its anti-discrimination policy is directed and designed to prohibit and prevent. In carrying out its disciplinary policy and procedures, Lehigh investigates alleged violations of company rules or policies to find out what occurred and to determine if a rule or policy was, indeed, violated. That customary procedure was performed in the instant case situation. If the management of Lehigh determines that an employee has violated a rule or policy of the company, it evaluates the nature of the offense and views it against the past employment and disciplinary record of the employee to determine what discipline, if any, is appropriate. The management of the company considers the severity of the offense; whether the violation was a willful one; whether it was done with malice; whether the employee under investigation was the aggressor in the incident; the degree of provocation for that employee's behavior; whether the employee expresses or demonstrates any remorse for the occurrence; and the employee's past general work history and disciplinary record. All of these factors are weighed by the company's management in determining what discipline is appropriate. The company customarily has viewed the disciplinary history of an employee as a very significant factor in determining the appropriate discipline to be imposed for a violation of company rules or policies under review as to that employee. In imposing discipline for infractions of company rules or policies, Lehigh employs progressive discipline whenever possible in order to attempt to persuade the employee to change his or her behavior which has resulted in the violation. If an employee exhibits a pattern of rule infractions, especially infractions of the same rule or type of rules, the company imposes a progressively harsher discipline. When considering an employee's past disciplinary record, the company considers only disciplinary violations which have occurred within the past nine months, however. This is because the company's union contract, by which it is bound in terms of its personnel policies and procedures with regard to its union-member employees, contains a provision which requires this restriction. This provision has been applied to all hourly employees of Lehigh for the life of that contract or approximately the past 18 years. It is thus a regular and customary past practice of the company for purposes of the terms of its union contract. The disciplinary measures, which the company imposes for infractions of its rules and policies, range from an oral reprimand (the imposition of which is recorded in the employee's personnel record even if delivered verbally); a written reprimand; suspension from employment for a discreet time period; and permanent discharge from employment. Mr. Albert Berger is the Vice President of Operations for Lehigh. He is responsible for personnel management, among other duties. His personnel management duties include the investigation of alleged infractions of the company's personnel policies and rules, interpreting the company's disciplinary policies and procedures and arriving at decisions about how to discipline employees. Mr. Berger investigated the subject incident involving the Petitioner and Ms. Hall, ultimately determined how to discipline each employee and imposed that discipline. He followed the company's disciplinary policies and procedures in deciding how to discipline the Petitioner and Ms. Hall concerning the incident of August 2, 1989. Upon learning of the incident between those two employees on August 2, 1989, Mr. Berger commenced an investigation of the matter that same day. After making a preliminary inquiry into the matter, he elected to suspend the Petitioner from work sometime on the morning of August 2, 1989, such that she left the company premises under suspension shortly before Noon. He continued his investigation that afternoon, conducting taped interviews with employees and supervisors who had witnessed the altercation. Those witnesses later signed summaries of their statements to Mr. Berger. The Petitioner returned to the factory between 1:00 and 2:00 on the afternoon of August 2, 1989, while Mr. Berger was still concluding his interviews of other employees and supervisors. He gave the Petitioner an opportunity to relate her version of the incident to him. During her taped interview, the Petitioner was very loud and hostile in her demeanor and statements and responses to his questions. She repeatedly employed the term "nigger" with reference to Ms. Hall and her version of the occurrence in question. During the course of the hearing, the Petitioner attempted to explain her behavior during the taped interview with Mr. Berger by insinuating that she was under the influence of alcohol when she exhibited loud and hostile demeanor and comments during the interview, including the use of the term "nigger". She attempted to substantiate this claim by stating that she had consumed several six-packs of beer between the time she left the company premises under suspension shortly before Noon on August 2, 1989 and the time of her interview with Mr. Berger at approximately 2:00 that afternoon. She did not, however, appear drunk or under the influence of alcohol to Mr. Berger when he interviewed her nor did her verbal statements and responses depicted on the tape of that interview justify a finding that she was drunk or under the influence of alcohol at the time of the interview. Moreover, this explanation of her conduct during the interview is self-serving and is thus deemed not credible. Upon concluding his investigation and in the process of determining what, if any, discipline to impose on the two protagonists, Mr. Berger reviewed and considered the employment histories of both the Petitioner and Ms. Hall. Ms. Hall's disciplinary record was a good one. Her most recent disciplinary offense had occurred 13 years before the August 2, 1989 incident. She had been disciplined only one other time, approximately 16 years before the August 2, 1989 incident. Under its union contract, Lehigh was prohibited from considering those two disciplinary incidents in deciding whether and how to impose discipline for the current August 2, 1989 occurrence because those disciplinary infractions occurred more than nine months prior to the August 2, 1989 incident. In addition to the fact that her disciplinary record was a good one with no disciplinary infractions for more than a decade, Ms. Hall readily expressed remorse for her involvement in the incident, apologizing to Mr. Berger and promising to let no such occurrence happen in the future. Because of this and because Lehigh's management, through Mr. Berger, viewed the racial slur "nigger", loudly uttered by the Petitioner, as more egregious than the remark "white fool", "old fool", or "you're not white, your shorts are white", made by Ms. Hall, a lesser discipline was imposed upon Ms. Hall. Mr. Berger imposed a written warning upon Ms. Hall for picking up the ashtray as a threatening gesture directed to the Petitioner and a verbal warning upon her for the above- quoted name calling. This is not a minimal sanction. Written memoranda of both types of discipline are made a part of such an cmployee's personnel record. Concerning the discipline imposed upon the Petitioner, the record establishes that on June 23, 1989, less than two months prior to the incident concerning Ms. Hall, the Petitioner received a three-day suspension for interference with company operations through the use of abusive language directed at another employee. This incident involved the Petitioner painting the words "High Ass" on the door front of a piece of furniture and sending it down the assembly line so that it could be viewed by the co-worker to whom the words were directed. The Petitioner admitted that the words were directed at a black co-worker who was farther down the assembly line. In conjunction with her suspension, Mr. Berger warned her that if she continued to engage in name calling or racial slurs, the consequences for the next such incident would be more severe, including the potential loss of her employment. Mr. Berger concluded and the record establishes that the Petitioner's conduct on August 2, 1989 clearly violated the company's explicit policy against racially-discriminatory conduct in the work place, as that policy is quoted in the above Findings of Fact. The Petitioner's conduct on August 2, 1989, along with the incident leading to her earlier suspension for similar conduct, establishes a pattern of abusive, racially-discriminatory behavior towards her co-workers. Further, the Petitioner was shown to be the aggressor in the incident, interrupting the private conversation between Ms. Hall and Mr. Hallmon, and making statements or comments which incited the ensuing argument and name-calling episode. The Petitioner showed no remorse for her behavior. She was still hostile and inflammatory in her description and reaction to the occurrence concerning Ms. Hall in her interview with Mr. Berger hours later, when she had every reason to believe that her job was at stake with a strong resulting incentive to be conciliatory and remorseful in her reaction and relation of her version of the occurrence to Mr. Berger. Because of these differences in her conduct, her past record, and the severity of her infraction of company policy, as opposed to that of Ms. Hall, and because of Ms. Hall's relative demeanor and reaction to the occurrence and the subsequent summons by Mr. Berger to account for it, Mr. Berger decided, after considering all of the above factors, to convert the Petitioner's suspension to a termination. Discharging the Petitioner for the August 2, 1989 violation in consideration of the above factors related to her conduct, demeanor and past record, as opposed to that of Ms. Hall, was shown to be reasonable, pursuant to Lehigh's customarily-followed "progressive discipline" policy. The differences in severity between the actions of the Petitioner and Ms. Hall, the differences in their personnel histories, the differences in the circumstances of their actions and their demeanor and conduct after the occurrence with regard to it support the differences in the discipline imposed upon them. In attempting to establish a prima facie case of disparate treatment and discrimination related to her termination, the Petitioner employed in her case the examples of Coy Jackson, a white employee and crew leader, being disciplined, but not terminated for using the term "nigger" directed at a black co-employee, Rudolph Townsend, and the similar example of Cecil Sims, a department supervisor, who is also a white man, using the term "nigger" in the presence of a black co-employee. Mr. Sims was also not terminated, but was given a lesser level of discipline. Concerning the Jackson and Sims incidents, the record establishes that in 1988, Coy Jackson spoke of Mr. Townsend, the black employee, who had complained of being cold, as follows: "Get that nigger a coat before he freezes to death." Mr. Sims, a supervisor in that same department, investigated that incident. During Mr. Sims' investigation, he questioned the employees involved about the name calling and the use of the words "black" and "nigger". Mr. Sims stated to Mr. Townsend that there were two names "you all" (meaning black people) could be called-"black" or "nigger"-and he then asked Mr. Townsend which he preferred to be called. Mr. Townsend responded that he simply wished to be called by his own name. Mr. Townsend complained about Mr. Sims' comment to him; and Mr. Berger investigated that incident, as well. He ultimately decided to give Mr. Sims a verbal warning concerning it and admonished him that he was never to use the word "nigger" again in any context and that the next incident, when it occurred, would result in his discharge. The discipline imposed on Mr. Sims was based upon the fact that Mr. Sims readily expressed remorse for the incident, that he had a long, unblemished career with Lehigh, and was then near retirement. He had had no prior history of uttering abusive language, name calling, or the use of racial slurs in the work place. Moreover, the incident occurred in Mr. Sims' office in a normal conversational tone; it was not shouted or uttered loudly on the factory floor in the presence of a number of other employees. Mr. Jackson, the crew leader who made the remark concerning the coat, was also given a verbal warning for use of the word "nigger". The imposition of a verbal warning as discipline for Mr. Jackson was directly related to the fact that Mr. Jackson had personally apologized to Mr. Townsend for making the remark even before the occurrence had been related to Mr. Berger and any investigation of the matter instituted. Moreover, he had made the comment quietly to one other employee and did not shout it in the work place before a number of other employees. Further, these two incidents occurred in February of 1988 before Lehigh elected, at the urging of the employees' union, to more vigorously enforce its policy against racial slurs, which vigorous enforcement policy it has uniformly pursued since that time. These incidents were thus not proven to be similar to the incidents involving the Petitioner and her employment and disciplinary record. Neither involved the disciplining of a black employee differently than a white employee. The Petitioner, Mr. Sims and Mr. Jackson are white. The less severe discipline imposed on Mr. Sims and Mr. Jackson was rationally related to the mitigating circumstances described above, rather than to their status as men or white men. It is also noteworthy that several years before the Petitioner's discharge, a white man employed in Lehigh's loading department, in the course of a conversation with a black employee, held up a piece of rope, apparently tied as a hangman's noose, and told the black employee that he would show him what use was made of rope in the white employee's home town. The black employee, at this juncture, hit the white employee with his fist. Mr. Berger investigated that incident, as well. Although it was alleged to him that the white employee had used the term "nigger", Mr. Berger was not able to identify a disinterested witness who would actually establish that the term had been used. In any event, however, Lehigh's management, through Mr. Berger, determined that this was a serious, malicious violation of the company's anti-discrimination policy. He promptly discharged the white employee for this conduct. The black employee, in turn, was also discharged for engaging in violence, which the company has uniformly considered to be one of the most severe violations of its disciplinary rules. Each of those employees was individually disciplined for their respective violations of company policy, based upon the circumstances peculiar to each. Neither of those incidents is similar to the incident for which Lehigh discharged the Petitioner. The discipline imposed on each of them was shown to be consistent with the company's customary anti-discrimination policy. None of the exemplary incidents described above serve to establish that white employees, male or female,(or, for that matter, black employees) have been subjected to a pattern of discriminatory disciplinary measures, including termination. They, likewise, do not show that any of those employee groups were accorded favored treatment. Rather, the facts regarding these incidents show that the company has pursued a pattern of non-discriminatory employee discipline. The employees who were disciplined in these three incidents were not shown to be similarly situated to the Petitioner, in terms of the infraction she committed, her past record, the circumstances surrounding her infraction and the investigation afterward, versus the underlying reasons for the various disciplinary measures imposed on these other employees, related above. During the hearing, the Petitioner first raised the issue of alleged discriminatory treatment because of a perceived close interracial relationship between her and Mr. Hallmon. Accordingly, she amended the Petition, ore tenus, without objection. Mr. Hallmon and the Petitioner had apparently become close friends at the point when he asked her to be his assistant in his position as chief union steward. She accepted the position. Mr. Hallmon indicated that this was because of his concerns about tensions between black and white employees. He wished a white employee to be his assistant to, as he termed it, "balance things out". That association began approximately three years ago. Mr. Hallmon and the Petitioner customarily would spend their lunch period together on frequent occasions to discuss union business. They sometimes met after work, in the parking lot next to the factory, to discuss union business because, as Mr. Hallmon put it, he maintained his union business office in the trunk of his car. The two also met many mornings prior to work for donuts and coffee. Their apparent friendship is corroborated by the fact that Mr. Hallmon elected to urge one of the witnesses to the Petitioner's behavior on August 2, 1989 to conceal her knowledge of it. He stopped Anne Hamlin in the parking lot on the day of the incident and told her that she should say nothing about it. The Petitioner has been engaged in contesting her discharge through the union grievance procedure or the administrative process before the Commission on Human Relations and the Division of Administrative Hearings for more than a year and one-half as of the time of hearing. However, she never had complained prior to the day of hearing that her friendship with Mr. Hallmon or any perceived close, personal interracial relationship between her and Mr. Hallmon had been involved in the reasons for her discharge or any discriminatory treatment she believed had been imposed upon her. Mr. Hallmon contended at the hearing that 80% of the approximately 400 workers at Lehigh had made comments about their relationship but, upon questioning about this testimony, was only able to relate two specific comments which had been made to him concerning his and the Petitioner's relationship. Neither of these comments were made by management-level personnel of Lehigh. Moreover, both the Petitioner and Mr. Hallmon, as union representatives, were acquainted with procedures for bringing a grievance to the attention of management, concerning discriminatory treatment, or any other basis for a grievance and yet neither had complained concerning any perceived discriminatory treatment to management. The only instance in which management might have gained any knowledge of their alleged relationship, other than personal observation, was from a conversation between Mr. Hallmon and Mr. Berger on one occasion when Mr. Hallmon asked Mr. Berger whether there was any violation of company policy if two people, black and white, or male or female, have lunch together. Mr. Berger responded by stating, in effect, that it was not any of management's business or anyone else's business concerning which employees had lunch together. Mr. Berger, however, upon learning that Mr. Hallmon had an apparent concern about the perception which management or co-employees might have concerning his and the Petitioner's relationship, did advise him to remember that "...this is the deep south...and I wouldn't want any of these rednecks catching up with you". When asked if he could recall any discussions between management personnel concerning the amount of time Mr. Hallmon and the Petitioner spent together, Mr. Berger answered "no, it's none of our business". Although Mr. Berger had observed the Petitioner and Mr. Hallmon together on several occasions, he felt that was none of his business as a manager of the company. Neither body of testimony, appearing at pages 49, 50 and 90 of the transcript nor any other testimony or evidence in this record, establishes that management had any knowledge of any pervasive discriminatory pattern of behavior in the work place by co-workers toward the Petitioner and Mr. Hallmon, if such indeed existed, which was not proven. It was also not established that management had any concern with any real or perceived relationship between the Petitioner and Mr. Hallmon and it was not demonstrated that it had any effect on the decision to discipline the Petitioner nor on the severity of the discipline imposed. After her termination, the Petitioner attempted to secure employment through the services of Job Services of Florida by application of August 28, 1989. Job Services referred her to Russell Corporation on September 8, 1989 and to Wal-Mart on September 21, 1989. She applied for employment unsuccessfully at both places. These were the only attempts the Petitioner made to obtain employment from the time of her August 2, 1989 termination until the hearing. Her listing, as available for employment, with Job Services of Florida became inactive on November 30, 1989. It was not established that she sought to reactivate that listing until just prior to the hearing. During the period of her unemployment, there were opportunities to seek employment which she did not avail herself of. On the date of the hearing, there were 22 jobs with private employers and 15 jobs with public employers listed with Job Services of Florida for which the Petitioner could have qualified to apply. She contended that she had looked in the help-wanted advertisements in a weekly newspaper for jobs, but there were none for which she was qualified. Local papers published in Jackson, Calhoun and Liberty counties, in the immediate vicinity of the Petitioner's residence in Altha, reveal that there were a number of advertisements for jobs during her unemployment period which she could have qualified to apply for and possibly to secure. The Petitioner's payroll records for 1988 reveal seven pay periods out of 52 when her total hours equaled or exceeded 50 hours. There were seven pay periods when she worked fewer than 40 hours per week. The average hours worked weekly during 1988 were 42.2. The highest gross pay received in 1988 was $375.76 per week, and the lowest weekly gross pay was $98.56. Her weekly gross pay on an average basis for 1988 was, thus, $273.24. The Petitioner worked 36 pay periods in 1989. She worked more than 40 hours in only eight of those weekly pay periods. The time in excess of 40 hours in these eight pay periods varied, with 5.5 hours being the largest number of hours in excess of 40 hours worked for a weekly pay period; and .3 hours was the lowest number of hours in excess of 40 hours worked for a weekly pay period. In 15 of these 36 pay periods, the Petitioner worked fewer than 40 hours. The average hours per pay period for 1989 were, thus, 33.98. She received overtime pay in eight pay periods. Her highest gross salary for any pay period in 1989 was $309.28. Her lowest gross salary for a pay period in 1989 was $51.28. Her average gross pay for 1989 was, thus, $220.72 per week. The average weekly gross pay for the entire period of her employment was $246.12. She earned $6.41 per hour at the time of her discharge. Had she remained employed, this would have increased to $6.63 per hour on December 16, 1989 and to $6.83 on December 16, 1990. She was eligible for two weeks of paid vacation per year since she had been employed for three years, and eight paid holidays per year. Federal income tax, social security, and union dues were withheld from her gross weekly pay. In 1988, income tax withholding totaled $1,022.80; social security totaled $1,066.98; and union dues totaled $110.00. In 1989, federal income tax totaled $513.97; social security totaled $596.76; and union dues totaled $96.00 for the 36 pay periods she worked in 1989. Lehigh was self- insured for health insurance and any amounts exceeding the employee contributions were to be paid by Lehigh. The employees, including the Petitioner, contributed $7.50 per week towards health insurance. Her payroll records reveal, however, that she ceased participating in the employer-provided group health insurance after the seventh pay period of 1989. In arriving at the above Findings of Fact, it has been necessary, to some extent, to reject the testimony of the Petitioner and Mr. Hallmon. This is because the Hearing Officer finds the testimony of other witnesses to the argument between the Petitioner and Ms. Hall and the surrounding circumstances and events to be more credible. The testimony of the other witnesses to these events was accepted because of their basic agreement on the significant circumstances concerning the occurrences in question and the fact that these other witnesses were demonstrated to have no reason to shade the truth concerning the occurrences and the underlying circumstances, including the fact that these witnesses, whose testimony has been accepted as more credible, are of both races involved. The Petitioner, however, is interested in the litigation and admits using the words "black ass nigger" and her tape-recorded statements made the same day of the argument in question are corroborative of the statements, behavior and demeanor on the part of the Petitioner reported by the other witnesses who have been found to be more credible and who are named in the above Findings of Fact. It is found that Mr. Hallmon's close relationship with the Petitioner might have influenced his recollection of the events in question. More significantly, his effort to actually prevent Ms. Hamlin from relating her knowledge about the incident is evidence of a bias in favor of the Petitioner. Moreover, the Petitioner's testimony about alleged recent job-search efforts was impeached because in her deposition taken approximately a week prior to hearing, she repeatedly asserted that the potential jobs at Russell and Wal-Mart were the only ones she had sought, although she maintained at hearing that she had also applied for work at Oglesby Nursery and McDonald's two or three weeks prior to hearing. She offered no explanation of why she did not mention job applications allegedly made less than a month prior to her deposition testimony. It is simply not credible that she would have forgotten those applications if, indeed, they had been made, especially since she was repeatedly asked about that subject matter at her deposition. Thus, her testimony about applying for employment with the two additional employers is deemed not credible.
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 finding that the Petitioner, Donna J. Brown, was not discharged in violation of Section 760.10, Florida Statutes (1989), and was not the victim of a discriminatory employment practice and, therefore, that her Petition be dismissed in its entirety. RECOMMENDED this 7th day of August, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6596 Petitioner's Proposed Findings of Fact 1-3. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter after determination of the relative credibility of the witnesses. Accepted. 6-9. Accepted. 10-11. Accepted. Accepted, but not material based upon the issues actually pled even by ore tenus amendment at hearing in this proceeding. It has not been established that the employer had knowledge, constructive or otherwise, of any pattern of usage of racial slurs by multiple employees on such a frequent basis, or with any frequency. Thus, it could not have condoned such a pattern of utterance of racial slurs if it was not shown to have known about them, nor was it established that the use of the word "nigger" by fellow employees approximately once or twice a month, as apparently heard by Mr. Hallmon, was made only by white employees. Accepted. Accepted, but not to the extent that this finding establishes a pattern of discrimination against white employees by Mr. Berger or the management of Lehigh. 15-17. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. As delineated in the Hearing Officer's findings of fact, a number of factors were considered in the decision to terminate as opposed to imposing another type or degree of discipline; not consideration of the word "nigger" alone. 20-21. Accepted. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. This finding of fact is not, in itself, materially dispositive of the issues to be adjudicated. Accepted, but not material to resolution of the relevant issues presented for adjudication. Accepted, but not material in this de novo proceeding. Accepted, but subordinate to the Hearing Officer's more detailed findings of fact concerning this subject matter and issue. 26-30. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, including finding that the Petitioner did not participate in the group health insurance program any longer than the period of time delineated in the Hearing Officer's findings of fact. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. It has not been established that employment available for purposes of mitigation of damages for lost wages and benefits has to be precisely comparable in circumstances, condition, quality, wages or benefits or any other element in order to be a relevantly considered available job. Rejected, as contrary to the Hearing Officer's findings of fact on this subject matter. It has not been established that the Petitioner would work 50 hours, with 10 hours of overtime, for each week which she would have worked since August 2, 1989 had she not been discharged. Such a figure is therefore speculative, rendering the figures contained in this proposed finding, other than the actual wage figures for a 40-hour work week, speculative. The Hearing Officer's findings of fact on this subject matter are adhered to and those in this paragraph are rejected as not supported by the evidence and as subordinate to the Hearing Officer's findings of fact. Rejected, as not supported by the preponderant evidence of record in light of the Hearing Officer's findings of fact concerning the liability issue. Respondent's Proposed Findings of Fact 1-2. Accepted. 3. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the record. 4-6. Accepted. 7. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence of record. 8-10. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, except as modified by the Hearing Officer's findings of fact. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 15-17. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. 20-25. Accepted. 26. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 27-98. Accepted, except as modified by the Hearing Officer's findings of fact and by the Hearing Officer's acceptance of the proposed findings of fact by the Petitioner concerning the hourly wage rates Petitioner would have received with her next scheduled pay raises had she remained employed. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Ben R. Patterson, Esq. PATTERSON & TRAYNHAM 1215 Thomasville Road P.O. Box 4289 Tallahassee, FL 32315-4289 George J. Little, Esq. 134A Constitution Lane P.O. Box 1612 Marianna, FL 32446 John D.C. Newton, III, Esq. AURELL, RADEY, ET AL. Suite 1000, Monroe-Park Tower 101 North Monroe Street P.O. Drawer 11307 Tallahassee, FL 32302
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 The issue is whether Respondent committed an unlawful employment action against Petitioner contrary to Sections 760.10(1)(a) and 760.10(7), Florida Statutes (2006).
Findings Of Fact Petitioner is an African-American female who worked for Respondent's Division of Administrative Services from September 1992 through May 2006. Throughout her tenure, Petitioner consistently received favorable personnel evaluations. During her employment, Petitioner received only the legislatively mandated annual state worker pay increases. However, at the time she was terminated in May 2006, Petitioner was the highest paid non-supervisory employee in Respondent's Division of Administrative Services. At that time, Petitioner was making $70,000. From September 1992 until November 1993, Petitioner worked as Respondent's human resources/relations administrator. Sandy DeLopez, a white female who served as Respondent's Director of Administrative Services, was on the selection team that hired Petitioner for the position of human relations administrator. In that position, Petitioner was charged with the intake and administration of race-based discrimination complaints within the agency. Petitioner supervised two employees in her position as human relations administrator. In November 1993, Respondent moved Petitioner to the Office of Employee Relations. This move occurred because the former human relations administrator wanted to return to her previous position. There is no evidence that Petitioner objected to being moved to the Office of Employee Relations. In the Office of Employee Relations, Petitioner reported to Ken Wilson, the manager. While under his supervision, Petitioner handled employee grievances and drug testing, as well as maintaining Respondent's Supervisor Assistance System (SAS), a statewide computer program for supervisors. In 1997, Respondent moved Petitioner into the Bureau of Personnel Services. This move was in conjunction with Mr. Wilson's move to the Bureau of Personnel Services as Bureau Chief. Petitioner's assignment was to continue handling special projects, including the drug testing program and the SAS computer program. The Office of Employee Relations became the employee relations section in the Bureau of Personnel Services when Mr. Wilson became Bureau Chief. The Bureau of Personnel Services had other sections, including benefits, pay and classification, and employment. In 1997, the pay and classification section was combined with the employment section, and referred to thereafter as the organization development section. When Mr. Wilson became Bureau Chief of the Bureau of Personnel Services, his previous job position as manager of employee relations remained vacant after being advertised two times. Petitioner told Mr. Wilson that she was interested in filling his former position but she did not apply for the position either time it was advertised. Mr. Wilson had a very open relationship with Petitioner. Petitioner frequently told Mr. Wilson that she wanted or needed more money. Mr. Wilson never told Petitioner that Ms. DeLopez would not let Petitioner fill his former position as manager of the employee relations section because Ms. DeLopez had a "hard-on" for Petitioner. Mr. Wilson never heard Ms. DeLopez make the following statements: (a) referring to Petitioner as another one of Mr. Wilson's experiments that had failed; and (b) Petitioner could have been one of "Ms. Ever's boys." There is no evidence that Petitioner ever complained to Mr. Wilson about any statement by Ms. DeLopez. From June 1995 to March 1997, Rene Knight, a white female, was manager of the benefits section in the Bureau of Personnel Services. As manager, Ms. Knight was a senior personnel manager with supervision responsibilities. In March 1997, Ms. Knight applied for, and was appointed to, the position of manager of the organization development section. Her title continued to be senior personnel manager. In June 1997, Ms. Knight began dating Jim Hage, a white male, who worked in the one of the areas under Ms. Knight's supervision. For that reason, Ms. Knight requested a job reassignment as manager of the employee relations section. Mr. Wilson granted Ms. Knight's request for the lateral reassignment that did not require advertisement or an increase in pay. In the Bureau of Personnel Services, the pay grade for the manager of employee relations had been downgraded from a pay grade of 26 to a pay grade of 24. Ms. Knight kept her pay grade of 24 after the lateral transfer. Petitioner's pay grade was 25. It would have been a demotion for Petitioner to accept the position of manager of employee relations. After Ms. Knight moved into the position as manager of the employee relations section, her old position was advertised as vacant. Petitioner did not apply for that position. Subsequently, Ms. Knight married Mr. Hage. Later in 2002, Mr. Hage applied for and was appointed as a manager in one of the sections in the Bureau of Personnel Services. There is no evidence that Petitioner applied for that job when it was advertised. In any event, Mr. Hage's managerial position would have been a demotion for Petitioner. In April 2002, Respondent transferred Petitioner into the Office of Program Support. The move was the result of a need to accommodate a disabled employee, who was put in charge of the drug testing program, formerly part of Petitioner's duties. There is no evidence that Petitioner objected to the transfer. In the Office of Program Support, Petitioner served as a management review specialist and worked under the supervision of Mallory Horne, Jr., then Chief of Staff. Mr. Horne reported directly to Ms. DeLopez. In the Office of Program Support, Petitioner participated in special projects, such as executing the STARS report and working on workers' compensation claims. In 2003, Ms. Knight became the Assistant Chief of Personnel Services just before Mr. Wilson retired. Ms. Knight received this lateral transfer/reassignment because she had served as a manager/supervisor in just about every office in the Bureau of Personnel Services. Ms. Knight was appointed Bureau Chief of the Bureau of Personnel Services when Mr. Wilson retired in May 2003. The Bureau Chief position was a promotion to a higher pay grade for Ms. Knight. The most persuasive evidence indicates that Petitioner was not qualified for the Bureau Chief job. Unlike Ms. Knight, Petitioner did not have five years of experience as a supervisor in the human resources area. In 2002 or 2003, Ms. DeLopez authorized Petitioner's participation in Respondent's Educational Leave with Pay Program. The program allows employees to be full-time students for the final year of their educational programs, with Respondent paying the costs of the programs, as well as their full salary and benefits. Ms. DeLopez also personally authorized at least one semester longer than the usual term for Petitioner because she needed extra time to complete the coursework for a doctorate in instructional systems. Petitioner completed the coursework but did not earn the doctoral degree. When Ms. Knight became Bureau Chief of the Bureau of Personnel Services, Ms. Knight recommended that Cindy Mazzar, a white female, apply for the position of manager of employee relations. Ms. Mazzar applied for and was appointed to the position. Petitioner did not apply for the job and never told Ms. Knight that she was interested in filling the position. In 2004, Kristen Watkins, a white female, applied for and was appointed to the advertised position of human resources manager. Petitioner did not apply for the job. The position of human resources manager would have been a lateral transfer for Petitioner if she had been interested. It would not have increased her pay grade. In 2006, Petitioner continued to work for Mr. Horne in the Office of Program Support as a management review specialist. In that capacity, Petitioner continued to serve as a special projects person. Among other things, Petitioner helped develop an agency-wide safety program. Toward the end of April 2006, Respondent decided to implement a realignment of some of its administrative offices. The reorganization called for the elimination of the Office of Program Support and for Petitioner to be transferred to the Bureau of Personnel Services, working under Ms. Knight as Bureau Chief, and under Ms. DeLopez as Division Director of Administrative Services. As with any reorganization, Respondent wanted to find a position for Petitioner rather than terminate her employment. However, there is no evidence that there ever was a vacant position to which Petitioner preferred to be assigned rather than moving to personnel services. On April 24, 2006, Petitioner received a telephone call from Ms. DeLopez, asking Petitioner to attend a meeting in Ms. Knight's office. During the meeting, Ms. DeLopez informed Petitioner that due to the realignment, effective May 1, 2006, Petitioner would work in Bureau of Personnel Services with Ms. Knight performing Petitioner's Annual Performance Evaluation. Petitioner's office furniture would be moved to her new office on May 3, 2006. Petitioner inquired whether the new job assignment was a promotion. Ms. DeLopez responded by commenting that Petitioner already was the highest paid employee in administrative services that was not a Bureau Chief. Ms. DeLopez also stated that when a Bureau Chief position became available, Petitioner could compete for it. On April 25, 2006, Ms. Knight scheduled a meeting with Petitioner to discuss her currently assigned work projects. The meeting was set for 3:00 p.m. on April 26, 2006, in the personnel services conference room. On April 26, 2006, Ms. Knight sent Mr. Horne an e-mail, requesting a copy of Mr. Horne's position description for Petitioner. Ms. Knight also wanted to know Petitioner's job responsibilities and assigned projects with timelines. On April 26, 2006, Petitioner sent Ms. DeLopez an e- mail, requesting an opportunity to discuss the personnel action being taken. Petitioner wanted Ms. DeLopez to know that Petitioner was seeking an opportunity to advance within the agency and that she wanted to discuss further options. Around 1:00 p.m. on April 26, 2006, Petitioner went to Ms. DeLopez' office uninvited and with no appointment. Ms. DeLopez was working in her office suite alone. Petitioner began talking to Ms. DeLopez about Petitioner wanting to make more money. As the conversation continued, Petitioner became agitated and hostile. When Petitioner would not stop talking, Ms. DeLopez stood up to leave the office. Petitioner, who was standing in the doorway, then stated that she would call 911 if Ms. DeLopez left the office. At that point, Ms. DeLopez felt threatened and decided to leave the room. Petitioner followed Ms. DeLopez down the hall to the office of Lieutenant Colonel Rick Gregory of the Florida Highway Patrol. Ms. DeLopez informed Lt. Col. Gregory that she could not make Petitioner disengage. Lt. Col. Gregory told Petitioner to go back to her office and asked Ms. DeLopez to stay in his office to talk to him. Lt. Col. Gregory went to Petitioner's office a few minutes before 2:00 p.m. He advised Petitioner about a meeting with Ms. Knight that afternoon at 2:00 p.m. In the 2:00 p.m. meeting, Ms. Knight explained that she would be the in-take officer for Petitioner's complaint against Ms. DeLopez. Petitioner stated that she did not want to discuss her complaint with Ms. Knight because both of them were subordinate to Ms. DeLopez. Petitioner also would not discuss her complaint without having someone else in the room. Petitioner then told Ms. Knight that Petitioner was leaving the meeting and that Ms. Knight should "just go ahead and call the police." Ms. Knight and Petitioner never had the 3:00 p.m. meeting to discuss Petitioner's new job responsibilities. Later on the afternoon of August 26, 2006, Petitioner had a meeting with Fred Dickinson, Respondent's Executive Director, David Westberry, Respondent's Deputy Executive Director, and Lieutenant Colonel Austin of the Florida Highway Patrol. Petitioner misunderstood the results of this meeting. She erroneously thought the following: (a) the planned move of her office location would be placed on hold; (b) she would not work for Ms. DeLopez or Ms. Knight; and (c) she would contact the Executive Director's office the week of May 8, 2006, to schedule an appointment to explore other options with the agency. On April 28, 2006, Ms. DeLopez sent Petitioner an e-mail. The message requested her work schedule, an outline of her work assignments, and a list of projects or activities that Petitioner was working on for the week of May 1-5, 2006. On May 1, 2006, Petitioner responded with the requested information by e-mail. In a letter to Mr. Westberry dated May 8, 2006, Petitioner described her employment history at the agency and samples of her work, including but not limited to a concept paper relating to technological innovations and workplace performance. The letter stated that Petitioner wanted to discuss employment options within the agency. The May 8, 2006, letter and attached documents were not responsive to the request that Mr. Dickenson and Mr. Westberry made in the August 26, 2008, meeting. The documents did not identify a position or place within the agency where Petitioner could be of value to the organization and benefit Petitioner at the same time. During a meeting on May 8, 2006, Petitioner gave the above referenced letter and documents to Mr. Westberry. Because Petitioner could not identify another vacant position in the agency that she preferred, Mr. Westberry directed Petitioner to coordinate with Ms. Knight about future job duties. On May 11, 2006, Petitioner participated in a meeting in Mr. Westberry's office where Ms. Knight and Petitioner sat together on a love seat. Later, Petitioner falsely accused Ms. Knight of having intentionally kicked Petitioner when Ms. Knight crossed or uncrossed her legs. In a letter dated May 11, 2006, from Petitioner to Mr. Westberry, Petitioner complained that Ms. DeLopez had subjected Petitioner to a hostile work environment, disparate hiring and promotional practices, and a form of retaliation. The letter states that Petitioner's complaint stems from an extended period of time during her employment and most recently on April 26, 2006. The letter requested that someone other than Ms. Knight be assigned as the complaint in-take officer. The letter did not specify race, gender, age, or any specific form of discrimination as a basis for the alleged mistreatment. In a letter dated May 12, 2006, from Mr. Westberry to Petitioner, he states that he received Petitioner's complaint naming Ms. DeLopez and Ms. Knight as parties. In the letter, Mr. Westberry directed Petitioner to go to Maggie Lamar, Senior Consultant in the employee relations section, who would serve as the in-take officer and investigator of Petitioner's complaint. Mr. Westberry advised Petitioner that Ms. Lamar would report directly to Judd Chapman, as Respondent's counsel, and Mr. Dickenson. In the mean time, Mr. Westberry directed Petitioner to continue under the direct supervision of Ms. Knight. Mr. Westberry specifically directed Petitioner to contact Ms. Knight prior to close of the business day to clarify work assignments and related responsibilities. On May 12, 2006, Petitioner sent Mr. Westberry a letter. In the letter, Petitioner states that she had contacted Ms. Knight to clarify job responsibilities. According to the letter, Ms. Knight had not provided Petitioner with information about Petitioner's work assignments and related responsibilities. The letter states Petitioner's concerns that Ms. Knight will abuse her authority as Petitioner's supervisor. The letter includes Petitioner's requests as follows: (a) that Respondent have Ms. Knight clarify Petitioner's work assignments and related responsibilities in writing pending completion of the investigation of Petitioner's complaint; and (b) that Respondent provide a witness during any meeting or conversations between Petitioner and Ms. Knight. In a letter dated May 16, 2006, Mr. Westberry acknowledged Petitioner's May 12, 2006, letter. Mr. Westberry then proceeded to clarify his previous instructions as follows: (a) Petitioner should attend a meeting with Ms. Knight and Mr. Chapman at 11:00 a.m. on May 17, 2006; and (b) In the absence of any documented threat to Petitioner's personal safety, Respondent would not provide a witness to document day- to-day discussions between Petitioner and Ms. Knight. Finally, Mr. Westberry reminded Petitioner of the appointment of Ms. Larmar as the in-take officer for Petitioner's complaint. On May 16, 2006, Ms. Knight sent Petitioner an email. The e-mail alleged that Petitioner had not been at work and had not requested sick leave or any other kind of leave on May 15, 2006. Ms. Knight had left Petitioner several written and telephone messages at Petitioner's office. Ms. Knight called Petitioner's home. Petitioner did not respond to any of the messages on the day in question. Ms. Knight's e-mail urged Petitioner to contact Ms. Knight as soon as possible to discuss work assignments. Petitioner responded to Ms. Knight's May 16, 2006, e-mail by requesting a 4:00 p.m. meeting on May 17, 2006. On May 17, 2006, Ms. Knight sent Petitioner an e-mail, confirming a meeting at 4:00 p.m. in Petitioner's office with Ms. Knight and Mr. Chapman. During the 4:00 p.m. meeting on May 17, 2006, Petitioner gave Ms. Knight a written statement. The statement asserts, in part, that Petitioner considered the meeting to be a continued abuse of authority by Ms. DeLopez and Ms. Knight with the intent to adversely affect Petitioner's employment. During the meeting, Petitioner for the first time accused Ms. Knight of kicking Petitioner on May 11, 2006, in Mr. Westberry's office. It was during this meeting that Ms. Knight first knew about Petitioner's unhappiness with being transferred to the Bureau of Personnel Services. On May 17, 2006, Petitioner sent Ms. Knight an e-mail referencing the 4:00 p.m. meeting. The message provided Ms. Knight with Petitioner's schedule for May 18 and 19, 2006. Petitioner stated she was available to meet with Ms. Knight at her convenience within the confines of that schedule. On May 19, 2006, Ms. Knight visited Petitioner's office at 2:45 p.m. because Ms. Knight wanted to make sure Petitioner knew about the meeting scheduled with Ms. Knight on May 23, 2006, at 9:30 a.m. During the visit, Ms. Knight and Petitioner discussed their professional relationship. Ms. Knight advised Petitioner that everything would work out as long as Petitioner refrained from making further false allegations. Petitioner then said she knew Ms. Knight had not meant to bump Petitioner with her foot in the May 11, 2006, meeting in Mr. Westberry's office. Ms. Knight answered that if Petitioner knew it was an accident, why did Petitioner accuse Ms. Knight of kicking her in front of Judd Chapman in the May 17, 2006, meeting. After the meeting with Ms. Knight on May 19, 2006, Petitioner sent an e-mail to Kay Pietrewicz, Ms. Knight's personal assistant. The e-mail states that Petitioner wanted to change the time of the 9:30 a.m. meeting on May 23, 2006, with Ms. Knight because it conflicted with an unspecified commitment that Petitioner wanted to honor. The message went on to express Petitioner's view of her employment issues, including details of the alleged kicking incident and subsequent conversations with Ms. Knight regarding that incident. After work on May 19, 2006, Ms. Knight got a call at home from Ms. Pietrewicz. During that conversation, Ms. Knight learned about Petitioner's e-mail to Ms. Pietrewicz. Ms. Knight subsequently sent Petitioner an e-mail, giving her a direct order to cease communications relative to her employment issues with any employee except Ms. Knight and Ms. Lamar. Ms. Knight advised Petitioner that the meeting at 9:30 a.m. on May 23, 2006, would take place as scheduled. On May 23, 2006, Petitioner sent Ms. Knight an e-mail to recap the meeting they had earlier in the day. The e-mail indicates that the following topics were discussed during the meeting: (a) the physical move of Petitioner's office furniture on May 24, 2008; (b) the signing of certain administrative forms; (c) the reduction of Petitioner's annual leave balance by eight hours because Petitioner had not been at work on May 15, 2006; (d) the drafting of Petitioner's position description; (e) Petitioner's volunteer/mentor activities; (f) Ms. Knight's direction for Petitioner to refrain from sending e-mails like the one she sent to Ms. Pietrewicz on May 19, 2008; Petitioner's dissatisfaction with her work assignment; Petitioner's computer skills; and (i) Petitioner's project assignment to begin updating the SAS. In a letter dated May 24, 2006, Mr. Westberry advised Petitioner that her employment was terminated effective at the close of business that day. Mr. Westberry made the decision to fire Petitioner 12 days after referring Petitioner to Ms. Lamar. At the time of Petitioner's termination, there was no pending complaint because Petitioner had not contacted Ms. Lamar. Instead of discussing her complaint with the designated in-take officer, Petitioner continued to demonstrate unwillingness to accept the responsibilities assigned to her as a result of the agency reorganization. Three law enforcement officers went to Petitioner's office around 5:00 p.m. on May 24, 2006. They delivered the termination letter and offered to escort Petitioner out of building. Respondent uses officers to escort terminated employees when the agency has concerns that termination might be less than a mutual parting of the ways. In this case, Petitioner refused to sign the termination letter or to leave the building. Petitioner inquired about what would happen if she did not leave. After hearing the response to her question, Petitioner stated that the officer would have to arrest her and take her to jail. Next, Petitioner called her husband and the Tallahassee Democrat. When Lt. Col. Austin arrived, he talked to Petitioner alone. He was unsuccessful in persuading Petitioner to leave the premises. When the officers re-entered Petitioner's office, Petitioner confirmed that she wanted to be arrested rather than leave the office voluntarily. The officers then put the handcuffs on Petitioner and began to inventory her purse. Lt. Col. Austin reentered the office, accompanied by Petitioner's husband. After removing the handcuffs, all of the officers left the office so that Petitioner could talk to her husband alone. The officers continued to wait for Petitioner to leave the building. Other officers and Petitioner's pastor arrived to offer assistance in persuading her to exit the building. Petitioner eventually left the premises without being arrested. On May 24, 2006, Ms. DeLopez was afraid for her personal safety after the termination letter was delivered to Petitioner. Ms. DeLopez requested that Mr. Westberry escort her to her car at the end of the workday. Mr. Westberry complied with the request. On May 25, 2008, Petitioner attempted to call Ms. Lamar by telephone. In a letter dated May 26, 2008, Petitioner requested Ms. Lamar to move forward with the processing of her complaint against Ms. DeLopez and Ms. Knight for retaliatory and harassing behaviors toward Petitioner. Petitioner's letter did not allege that the behavior of Ms. DeLopez and Ms. Knight was due to a specific type of unlawful discrimination.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations dismiss the Petition for Relief. DONE AND ENTERED this 21st day of October, 2008, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 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 October, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 H. Richard Bisbee, Esquire H. Richard Bisbee, P.A. 1882 Capital Circle Northeast, Suite 206 Tallahassee, Florida 32308 Glen A. Bassett, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner based on her race in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is an African-American female. Respondent initially hired Petitioner through a temporary labor service. Petitioner worked for approximately 60 days as a temporary employee in the position of a medical transcriptionist preparing medical chronologies. At the end of the 60-day period, Respondent decided to eliminate Petitioner's position. Petitioner decided to enhance her career opportunities by applying for a position as a paralegal with Respondent. In a letter dated June 19, 1996, Petitioner expressed her interest in working for Respondent as a full-time employee. According to the letter, Petitioner had worked for over 20 years as a secretary/administrative assistant, including some experience in the areas of management and supervision. The letter, together with Petitioner's resumé, indicated that she had experience as a legal secretary. In a letter dated August 26, 1997, Respondent offered Petitioner a job as a paralegal. Petitioner accepted the offer. Randy Fischer, Esquire, explained the duties of a paralegal to Petitioner and gave her a copy of a paralegal's job description. The duties included, but were not limited to, the following: (a) drafting pleadings and correspondence; (b) drafting discovery requests; (c) organizing files and preparing file indexes; (d) investigating cases; (e) scheduling depositions; (f) attending document productions, exhibit exchanges, and pretrial conferences; and (g) assisting in legal research. Respondent gave Petitioner an employee handbook. The handbook included, among other things, information about attendance, discipline, and the firm's anti-discrimination policies and procedures. Petitioner also received a paralegal manual and billing guidelines. Respondent's anti-discrimination policy communicated to employees that sexual harassment, racial discrimination, or any other type of discrimination would not be tolerated. Respondent had an "open door" policy by which employees could report discrimination to the office manager or the office-managing partner. At all times material here, Mr. Fischer was the office-managing partner, and Janet Siefert was the office manager. Petitioner never took advantage of the opportunity to report any alleged racial discrimination to anyone on Respondent's staff. From the beginning of her employment as a paralegal, Mr. Fischer communicated to Petitioner that she would be expected to schedule, coordinate, and calendar activities for attorneys. He frequently was critical of Petitioner's performance because she failed to meet these expectations. There is no persuasive evidence that Mr. Fischer's criticisms were racially motivated. Respondent regularly provided written performance evaluations of employees. Petitioner's first review took place in December 1997. The evaluation indicated that Petitioner's attendance or dependability and teamwork were "highly acceptable." Her performance in oral expression, writing ability, decision-making ability, work product accurateness, and work product volume was "acceptable." Petitioner "needed to improve" in the following areas: (a) knowing subject matter; (b) analyzing problems; (c) obtaining information; (d) meeting deadlines; (e) performing assignments resourcefully and creatively; (f) recording billable time; (g) showing initiative; and (h) following through on assignments. Petitioner's overall rating on the evaluation was "acceptable." During the evaluation, Mr. Fischer counseled Petitioner about her job deficiencies. He particularly discussed Petitioner's need to follow appropriate guidelines for billing. This was important because Respondent routinely had to reduce Petitioner's excessive billing time in some areas. There is no persuasive evidence that Petitioner was singled out in terms of having billing time entries removed from the timesheets. In February 1998, Petitioner began having problems with her attendance and low work productivity. A written disciplinary action dated February 11, 1998, outlined the following deficiencies: (a) inattention to detail in handling files by failing to schedule the continuation of a deposition; poor performance in handling the Angela Davis file; leaving the building during work hours without proper authorization; (d) being late for work on numerous occasions; and (e) taking numerous personal absences. Regarding the Angela Davis file, Petitioner's failure to follow instructions adversely affected Mr. Fischer's handling of the file. Mr. Fischer became angry because it took Petitioner two hours to drive from Ocala, Florida, to Gainesville, Florida, with only a portion of the Angela Davis file that he had requested. However, there is no evidence that Mr. Fischer's anger was racially motivated. Petitioner admits that she occasionally left the building during her work breaks to go to the bank or for other personal reasons instead of spending that time in the employees' break room. She asserts that she did not know she had to have permission to do so and that she had to sign in and out. According to Petitioner, other employees were allowed these privileges without being reprimanded. Petitioner's testimony in this regard is not credible. Petitioner admitted during the hearing that her attendance record was problematic due to personal problems. On at least one occasion, Mr. Fischer agreed to let Petitioner make up some of the time she had lost. There is no persuasive evidence that Respondent's attendance policy was applied more rigidly to Petitioner than to any other employee. More importantly, Petitioner admitted that she was not qualified to perform all of the duties of a paralegal when she accepted the position. It is clear that she had difficulty learning "on-the-job." On February 20, 1998, Mr. Fischer wrote Petitioner and another paralegal a note regarding the importance of pulling a file together and following directions. Mr. Fischer had gone to mediation without the necessary file documents because Petitioner and her co-worker had not followed his directions. On March 12, 1998, Mr. Fischer reminded Petitioner and another paralegal about the importance of providing him with daily timesheets in a timely manner. Petitioner and her co-worker were at least a week behind in providing him with their timesheets. On March 26, 1998, Petitioner used the firm's copy machine and other supplies for personal reasons. On April 8, 1998, Petitioner was late to work due to a flat tire. In May 1998, Petitioner requested a more flexible work schedule so that she could attend class in Orlando, Florida, one afternoon each week. Mr. Fischer responded that her billing hours were already low and that she was routinely late to work. However, Mr. Fischer agreed to give her the time off for a 30-day period if she documented her time at the office, improved her productivity, and billed a minimum of 25 billed hours per week. In June 1998, Mr. Fischer had to remind Petitioner again about the importance of keeping calendars for the attorneys. Because Petitioner failed to follow instructions, no attorney from Respondent's office attended a scene viewing. In July 1998, Mr. Fischer sent Petitioner an e-mail message criticizing her for not properly issuing a subpoena and deposition notice. When he realized that Petitioner was not at fault, he promptly apologized in a subsequent message. On August 18 and 19, 1998, Petitioner received two personal facsimile transmissions at the office. On August 25, 1998, Mr. Fischer gave Petitioner a written disciplinary action and placed her on probationary status. The discipline was based on the following reasons: (a) Petitioner had been out of the office for various personal reasons 31 times in the last 90 days; (b) Petitioner had provided Respondent with inaccurate or incomplete reasons for those absences; (c) Petitioner's productivity was below office standards; (d) Petitioner had failed to properly schedule activities and calendar events for an attorney; (e) Petitioner had failed to follow repeated instructions in relation to file handling, scheduling depositions, and scheduling meetings; (f) Petitioner had used firm time to receive and review personal facsimile transmissions, to discuss personal information, and to participate in personal telephone calls; and (g) Petitioner had inappropriately used firm resources. On September 16, 1998, Mr. Fischer gave Petitioner another written disciplinary action. The memorandum outlined continued problems with Petitioner's performance. One example of Petitioner's poor performance involved her failure to properly arrange for a deposition. Other examples involved excessive billing for making summaries of records; the lack of time billed for other case activities, such as setting and noticing depositions and hearings; failure to resolve unpaid costs on a case; and modification of timesheets after they had been edited. The September 16, 1998, disciplinary action also reviewed continued problems with Petitioner's attendance and attitude. Respondent's paralegals are required to bill 100-105 hours per month. Some examples of Petitioner's billing hours are as follows: (a) March 1998, 97.3 hours; (b) April 1998, 58.9 hours; (c) May 1998, 74.3 hours; and (d) June 1998, 69.7 hours. Respondent fired Petitioner on September 25, 1998. Her termination was based on cumulative reasons, including low productivity, failure to be attentive to detail in the handling of files, and frequent absences and tardiness. During the time that Petitioner worked for Respondent, Mr. Fischer fired Robin Carr, a white female, for similar reasons that Petitioner was terminated: excessive absences, inappropriate use of personal time in the office, and excessive personal telephone calls. Mr. Fischer also fired Art Monig, a white male, for low work productivity. Ms. Carr and Mr. Monig both worked as paralegals. Petitioner testified that, on one occasion, Ms. Carr and other employees were in the employees' break room discussing the turnover of staff in the office. Petitioner testified that Ms. Carr made the statement that Petitioner did not have to worry about losing her job because she was a "token." In the Petition for Relief, Petitioner alleges that Ms. Seifert made this comment. Ms. Carr did not testify at the hearing but Ms. Seifert did testify and denies making such a statement or ever hearing it made. Similarly, Jennifer Whitehead, who was Mr. Fischer's secretary from February 1997 through May 2001, testified that she never heard anyone in the office make a statement that Petitioner was a "token" or a "quota." Nevertheless, Petitioner's testimony in this regard is persuasive. Petitioner admits that she never reported the statement allegedly made by Ms. Carr to anyone in Respondent's office. She admits that Mr. Fischer never made inappropriate racial comments in her presence. Mr. Fischer's dissatisfaction with Petitioner's performance may have caused Petitioner to be uncomfortable from time to time, but there is no evidence that his reactions to her poor performance were racially motivated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 23rd day of May, 2003, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 23rd day of May, 2003. COPIES FURNISHED: Dorine Alexander 1421 Southwest 27th Avenue Apartment No. 1807 Ocala, Florida 34474 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Randy Fischer, Esquire Boehm, Brown, Fischer & Harwood, P.A. Post Office Box 4140 Ocala, Florida 34478 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
