The Issue Whether Petitioner was the victim of an unlawful employment practice.
Findings Of Fact Petitioner is a black woman who was employed by Wal- Mart, Inc., at its Marianna, Florida store, as a cashier, from May 29, 1995, until her termination on April 19, 1999. The Marianna store is a "Super Wal-Mart." Respondent is a large retail establishment subject to the "Florida Civil Rights Act of 1992," as contemplated by Section 760.02(7), Florida Statutes. Prior to being employed by Respondent, Petitioner experienced mental depression and mood swings. She had anxiety attacks, including agoraphobia. Once she resided in her bedroom without exiting for nine months. Eventually, she became well enough to hold a job with Respondent. During the time she worked for Respondent she was also employed by a nearby service station. Ms. Jeannie Garrett, a black woman called as a witness by Petitioner, related an incident where she believed she was mistreated in a conflict involving whether a mop was or was not placed in a sink. She also was involved in a disturbance involving a customer in the restaurant portion of the store. She was admonished by the person in charge of the restaurant. Ms. Garrett was transferred to a cashier position and quit as a result. Ms. Garrett testified that, "It wasn't about race. It was because she didn't like me." Neither Ms. Garrett nor Petitioner presented any evidence that Respondent was prejudiced against anyone because of race. The evidence of record indicating that Petitioner was disabled consisted solely of her testimony that she had emotional problems, and a doctor's note dated August 26, 1998, entitled "For Margie Israel," which stated, "(undecipherable) needs one week off due to severe anxiety depression." Petitioner presented testimony regarding a number of incidences which she believed proved she was mistreated. In a question involving a determination of the correct amount of change, William Michael Gilmore (Mr. Gilmore), the store manager, talked harshly to her. Jan K. Peterson, in Petitioner's opinion, wanted to dominate Petitioner, resented Petitioner, talked harshly to Petitioner's husband, and "sassed" Petitioner's husband. Petitioner bought numerous items in the store and some of the cashiers did not want to check her out because she used coupons and determining the value of the coupons was too complicated for them. On one occasion Petitioner tried to use a coupon and a cashier named Rose instigated an argument about the matter. Petitioner believed Rose had a vendetta against her. The disagreement became loud and the Customer Service Manager (CSM) got involved. Francis Baker was the shift manager on duty and Petitioner tried to talk to him about the incident but he walked off. This hurt Petitioner's feelings. On one occasion a man attempted to utilize a discount card at another cashier's post and Petitioner intervened and informed the cashier that the man was separated from his wife, an employee of Respondent, and therefore was not eligible to use his discount card. The husband became angry and called her a "bitch." On another occasion the midnight cashier refused to check out Petitioner who had attempted to use a "comp ad." A "comp ad," is utilized in a situation where a customer produces an advertisement from a competitor which demonstrates that the competitor offers an identical product at a lower price. In such a situation, Respondent will sell the product at the competitor's price. Petitioner complained about this which attracted the attention of the night manager. This resulted in a disputatious event which disturbed the tranquility of the store. Petitioner wanted to be a backup CSM but was not installed as such. There is no actual position of "back-up CSM." It is simply a temporary working title. Petitioner never told Respondent's manager, Mr. Gilmore, or anyone else in authority, that she had a mental disability, although she once told Mr. Gilmore that she was suffering from depression. Petitioner never requested an accommodation. Mr. Gilmore was aware that Petitioner was afflicted with diabetes and made every accommodation for that condition, including giving her "breaks" and allowing her to have juice and water at her work station. This was accomplished even though Petitioner never provided Respondent with information from a physician indicating that she had diabetes. There was no record in her personnel file indicating that Petitioner was afflicted with diabetes or any other disorder. Petitioner agreed that during the time she worked for Respondent the drugs she was ingesting, designed to combat depression, controlled her problem. Petitioner affirmed that she was not limited in any major life activity as a result of her depression. Moreover, the record reveals that during the period prior to her termination she successfully worked at two different jobs. Jan K. Peterson is experienced in the retail trade. She was a supervisor of cashiers and CSM supervisor. She supervised Petitioner and observed that Petitioner was often late. Ms. Peterson tried to establish new hours for Petitioner for the convenience of Petitioner but Petitioner continued to be tardy nevertheless. She observed Petitioner clock in and thereafter visit with other associates rather than report to her work station. Ms. Peterson observed that Petitioner was disrespectful to the CSM's. On one occasion, Petitioner threatened to "get" her in the parking lot. Ms. Peterson concluded this communication was a threat of physical harm. Even though Ms. Peterson was often Petitioner's supervisor, Petitioner generally refused to speak to her. Petitioner indicated that she desired to be promoted to CSM. Ms. Peterson tried to train her so that her hopes could be realized. Ms. Peterson put Petitioner on the service desk to expand her vocational horizons. However, no openings for CSM occurred subsequent to Petitioner requesting the promotion and her eventual termination. Respondent demonstrated its caring attitude toward its personnel by providing a program called Resources for Living. This is a program for the benefit of employees although residual benefit is gleaned by Respondent. The program is designed to provide help to those who experience stress, or mental problems, alcoholism, or other maladies. The availability of this program was widely advertised in the store and Petitioner was aware of its availability. Petitioner never took advantage of this program. Brenda Garrett has worked at Wal-Mart for six and one half years and worked as a manager in another retail store before being employed by Wal-Mart. She is also a certified nursing assistant. Ms. Garrett observed Petitioner reporting to work late on numerous occasions. She was never informed by Petitioner that Petitioner believed she was mentally disabled. Ms. Garrett did, however, know that Petitioner was diabetic. During April 1997, Mr. Gilmore became manager of the Marianna Super Wal-Mart. Upon assuming his duties he reviewed employee work histories. Petitioner's record attracted his attention because it revealed entries involving insubordination, dress code violations, and tardiness. Mr. Gilmore attempted to counsel Petitioner in an effort to make her a better employee. Petitioner would not talk to him upon his initial attempt. Eventually she consented to talk to him and told him she wanted to be a CSM. Mr. Gilmore stated that if she improved her performance in her current position she could possibly be a CSM. Mr. Gilmore observed that Petitioner was capable of accomplishing her assigned duties. On one occasion Petitioner informed him that she was depressed. Mr. Gilmore asked her for documentation with regard to her depression but she never provided it. He did ensure that she was provided juice to ameliorate problems caused by her diabetes. Petitioner never asserted to Mr. Gilmore that she was disabled in any way and he observed no disability. Petitioner was the recipient of "coaching" forms. Some were entitled "Coaching for Improvement" forms. These forms are used to record a disciplinary breach and the corrective action taken. They cover the period May 7, 1997 through May 17, 1999. The coaching forms revealed that Petitioner was counseled for being short in her cash drawer, tardiness (twice), failing to make correct change, insubordination, shopping on duty, and causing a disturbance in the presence of customers on two occasions. Petitioner, during the time she worked at Respondent's store, was recorded as being late to work at least 38 times. Mr. Gilmore fired Petitioner because of her bad behavior, tardiness, absenteeism, and insubordination. He did not fire her because he did not believe she had a disability. He indicated a willingness to rehire her at some future date.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered dismissing the Petition. DONE AND ENTERED this 21st day of June, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 2002. COPIES FURNISHED: Margie R. Israel 2940 Carver Lane Marianna, Florida 32446 John A. Unzicker, Jr., Esquire Vernis & Bowling of Northwest Florida, P.A. 635 West Garden Street Pensacola, Florida 32501 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed the unlawful employment practice as alleged in the Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Petitioner is a black male and is part of a group of persons protected from unlawful discrimination. Petitioner was formerly employed by Respondent and served initially as an usher for Respondent’s business. Respondent operates theaters and concessions in Florida, and employs a number of individuals, none of whom are employed on a “full-time” schedule. Only the manager, Cindy Palmer, is considered a full-time employee. During the school year when attendance at the theaters may be presumed to be down, Respondent offers fewer hours to its employees. Conversely, during the summer months, employees may be offered more hours. Respondent’s employees are asked to fill out a form that indicates the amount of hours they are available to work and the days upon which those hours may be assigned. Pertinent to this case, Petitioner advised Respondent that he was available to work only on Fridays, Saturdays, Sundays, and Tuesdays. Petitioner asked that he be given 40 hours per week. When Petitioner applied for employment with Respondent he was required to answer a number of questions. One of the questions, aimed at addressing the seasonal aspect of Respondent’s work demands, asked: “During slow periods when school is in session, there may be only 10 to 15 hours a week to work. Is this ok?” Petitioner answered “yes.” Petitioner failed to show that any employee was given more hours than he during the slow work periods. Respondent did not cut Petitioner’s hours during his employment at the theater. Respondent did not fail to consider Petitioner for any promotion or wage increase that he applied for during his employment. Petitioner presented no evidence that any employee was more favorably treated in the assignment of hours or promoted over him. Petitioner did not apply for any promotions. Petitioner’s verbal interest in seeking additional skills was never formalized or written to management. Despite postings of methods to complain to upper management regarding the theater operations, Petitioner never notified Respondent of any problems at the theater that would have suggested racial discrimination on Respondent’s part. In fact, when he completed an investigative form on an unrelated matter, Petitioner did not disclose any type of inappropriate behavior by any of Respondent’s employees. Petitioner’s response to the question, stated that he “hadn’t seen anything inappropriate, just bad attitude.” During the period July 2010 through November 2011, Petitioner received a number of “write-ups” citing performance deficiencies. Similar “write-ups” were issued to non-black employees. Petitioner did not establish that he was written up more than any other employee. More important, Petitioner did not establish that the deficiencies described in the write-ups were untrue. Respondent’s Employee Handbook (that Petitioner received a copy of) prohibits discrimination on the basis of race. Methods to complain to upper management, including a toll-free number, were open to Petitioner at all times material to this case. Except for the filing of the instant action, Petitioner never availed himself of any remedy to put Respondent on notice of his claim of discrimination, nor the alleged factual basis for it. Petitioner was directed to leave the theater after a verbal disagreement with his supervisor, Ms. Palmer. Petitioner’s take on the matter is that he was fired by Respondent. Respondent asserts that Petitioner voluntarily quit based upon his actions and verbal comments to Ms. Palmer. Regardless, Petitioner’s race had nothing to do with why he ultimately left employment with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by Petitioner and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of July, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2012.
The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent, Beard Equipment Company, Inc., sells and maintains heavy equipment in Panama City, Florida. The Petitioner, Robert G. Harrison began employment with the Respondent in Panama City, Florida, in September, 1988. The Petitioner was employed as a janitor. Petitioner's duties included running numerous and varied errands which required driving of a motor vehicle. In April of 1989, Petitioner was hospitalized in order to adjust his medication for what he indicated was a bipolar disorder. However, at the hearing, Petitioner produced no expert testimony to establish that he was mentally handicapped or had bipolar disorder. At that time, Respondent became aware that Petitioner had a medical problem. Later, Petitioner was hospitalized in order to adjust his medication on two more occasions in 1989, and twice in 1992. On each occasion the Respondent accommodated Petitioner by making arrangements to hire temporary employees or readjust other employees' duties so that they could perform Petitioner's duties while he was hospitalized. In early 1992, the Respondent's liability insurance company conducted a random audit of employee driving records. The Respondent was notified by its insurance company that no coverage would be provided for any accident where the employee/driver had a DUI conviction. This random audit prompted Respondent to conduct a complete company- wide internal audit of driving records of all employees. The driving record audit resulted in some transfers for those employees for whom driving was an essential part of their job duties, but whose driving records would prohibit them from being covered under Respondent's liability policy. Employees who could not fulfill the duties of a non-driving position were terminated. Respondent could not afford to allow employees to drive who could not be insured by Respondent's liability carrier. The in-house driving record audit revealed that Petitioner had a DUI conviction on his record. Respondent had no other non-driving positions for which the Petitioner was qualified. Respondent was therefore forced to discharge the Petitioner since he could no longer fulfill the duties of his employment. Petitioner was discharged in November of 1992. When Petitioner was terminated, Petitioner was advised by Mark Veal, his supervisor, that the driving record audit had revealed that Petitioner had a DUI conviction, and because he would not be covered under the company insurance policy, they had no alternative but to discharge him. Within a day or so, Petitioner's wife called and requested his discharge letter in writing. Veal prepared the letter, indicating that due to Petitioner's medical history, his operating a motor vehicle would be too much of a liability. Although the real reason for Petitioner's discharge and the reason given him at the time was the DUI conviction, Veal tried to write the discharge letter in such a way as to minimize any embarrassment for the Petitioner due to his DUI conviction. Therefore, the termination letter does not support the conclusion that Respondent discriminated against Petitioner based on a mental handicap. In fact, there was no substantial evidence that Respondent terminated Petitioner based on a mental handicap. The evidence clearly showed Respondent was terminated for his driving record and his lack of qualifications to fill any other non-driving position. Moreover, Petitioner failed to establish that his position was filled by a person not in a protected class or that Respondent is an employer employing more than 15 employees. Given these facts, Petitioner has not established a prima facie case that Respondent committed an unlawful employment practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his alleged handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 22nd day of December, 1994, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1994.
The Issue Whether respondents are guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, including the pleadings and argument of counsel, the following findings of fact are determined: Petitioner, Carolyn E. Simmons, is a black female. In 1990, she began employment as a cook with respondent, Inverness Inn (Inn), an employer allegedly subject to the Florida Human Rights Act, as amended. At that time, the Inn was owned by respondent, Cvetko Blazevski. On March 25, 1992, petitioner filed a charge of discrimination with the Commission on Human Relations (Commission) alleging that she was "harassed and subjected to racial terms by Mr. Cretko (sic) Blazevski, Owner, from the beginning of (her) employment until the present time." For the purpose of ruling on this motion only, the undersigned has accepted this allegation as being true. The charge of discrimination, and the petition for relief subsequently filed, did not specify the relief being sought. In April 1992, Blazevski's ownership in the Inn was terminated by a court, and the Inn later closed and went out of business. Petitioner continued to work in her position as a cook after Blazevski left the Inn and until it closed. According to petitioner's counsel, Simmons seeks only compensatory damages against respondents for their conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order dismissing with prejudice the petition for relief. DONE AND ENTERED this 27th day of October, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1993. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Kenneth S. Stepp, Esquire 305 North Apopka Avenue Inverness, Florida 34450 David L. Wilcox, Esquire 452 Pleasant Grove Road Inverness, Florida 34452
The Issue The issue is whether Respondent, Higbee Company, d/b/a Dillard’s (“Dillard’s”), discriminated against Petitioner based upon his national origin or disability, in violation of section 760.10, Florida Statutes (2016).2/
Findings Of Fact Dillard’s is an employer as that term is defined in section 760.02(7). Dillard’s is a department store chain. Petitioner, a Mexican male, was hired as a sales associate in the men’s department of Dillard’s store at Tallahassee’s Governor’s Square Mall on May 13, 2014. Petitioner’s job was to sell men’s fragrances directly to customers at the store. Allen Gustason was manager of the Dillard’s store at Governor’s Square Mall during the time Petitioner was employed there. Dee Thomas was the assistant store manager. Mark Kronenberger, who testified at the final hearing, was the men’s department sales manager and was Petitioner’s direct supervisor during the entire time that Petitioner worked at Dillard’s. Petitioner started at a salary of $12.00 per hour as a sales associate. His job performance and pay increases were assessed primarily on the basis of sales. On January 6, 2015, Petitioner received a raise to $12.60 per hour. On April 14, 2015, Petitioner was promoted to the position of fragrance specialist and received a raise to $14.50 per hour. Petitioner’s promotion did not change his basic duties, i.e., direct sales to customers. Petitioner’s employment at Dillard’s ended on November 28, 2015. Dillard’s did not dispute Petitioner’s testimony that he was a good and effective salesperson. Petitioner developed a regular clientele of Spanish-speaking customers who liked his ability to communicate with them in their native language. At the time of his hiring, Petitioner received, read, and agreed to abide by Dillard’s Associate Work Rules and General Policies, which among other things forbade insubordination by sales associates. “Insubordination” was defined to include failure to follow lawful instructions from a supervisor and engaging in contemptuous or taunting conduct that undermines the authority of management. As noted in the Preliminary Statement above, Petitioner claims that he is a Mexican male with a disability. The claimed disability is the human immunodeficiency virus (“HIV”). Dillard’s did not dispute that Petitioner has HIV. Petitioner claims that he was harassed by fellow employees because of his Mexican national origin. Petitioner claims that he complained to his supervisors, Mr. Kronenberger and Mr. Gustason, about the harassment. Petitioner claims that no effective action was taken to curb the harassment. Petitioner described a pervasive sense of discrimination at Dillard’s of which he became conscious only after about a year of working there. He testified that he is from California and had no real concept of being discriminated against because of his Mexican heritage. It took some time for him to realize and acknowledge to himself that it was happening. However, Petitioner was unable to describe many specific instances of discriminatory behavior by fellow employees. People were “mean,” or “picked on me,” or “didn’t like me,” but few of Petitioner’s complaints pointed toward racial discrimination as opposed to personal dislike. He complained that co-workers planned parties and get-togethers away from work but never asked him along, even for Mr. Kronenberger’s birthday party, but could only speculate as to the reason for his exclusion. Petitioner testified that he was an aggressive and successful salesperson. While its salespeople are assigned to specific departments, Dillard’s allows them to cross-sell in other departments. Several of the incidents described by Petitioner began when he took customers to other departments to sell them something. The undersigned infers that at least some of the bad feelings toward Petitioner were due to his perceived “poaching” of sales from other sections of the store. Petitioner testified that an employee named Carol would yell at him, apparently without provocation, so consistently that he went out of his way to avoid crossing her path. Petitioner stated that one day Carol screamed that he was good-for-nothing and was a “damn Mexican,” in front of customers and co-workers. Petitioner testified that he had no idea why she did this because he had done nothing to provoke her. He walked away, covering his ears from her abuse. Petitioner testified that he went upstairs and spoke to Mr. Gustason about the incident but that nothing was done. Petitioner stated that he returned to the sales floor. Other employees told him that Carol had worked for Dillard’s for many years and was a friend of Mr. Gustason and that he should not expect anything to be done about her behavior. Petitioner testified that an employee named Eric, who worked in the men’s department, made fun of his accent, particularly Petitioner’s difficulty in pronouncing “Saturday.” Petitioner testified that another fellow employee, a white woman named Amber who also worked in fragrance, was constantly rude and mean to him. In front of customers, Amber would say that she did not know why Petitioner was there, that he was only good for cleaning the counters. Petitioner repeatedly complained to Mr. Kronenberger about Amber. Mr. Kronenberger told him to continue doing a good job and not to focus on Amber. Petitioner stated that Mr. Kronenberger directed Amber to stay away from Petitioner’s counter, but she ignored the order and continued to harass him. Petitioner stated that matters came to a head when he was helping some female customers and went to Amber’s counter one day. He reached behind her to get the fragrance the customers wanted and Amber struck him with her elbow. The customers were aghast and complained to Dillard’s management despite Petitioner’s entreaties that they let the matter drop. Petitioner and Amber were called to the office to meet with Mr. Kronenberger and Yami Yao, the manager of women’s cosmetics. Amber denied everything. The supervisors told Petitioner and Amber to get along. They told Amber to stay away from Petitioner’s counter. Petitioner testified that Amber ignored the instruction and continued to harass him. Petitioner testified that on another day he was approached by a customer who wanted to pay Petitioner for a pair of shoes. Petitioner testified that he asked Mr. Kronenberger about it, because he did not want to steal a sale or anger anyone. Mr. Kronenberger told him that he was there to sell and that cross-selling was fine. As Petitioner was completing the sale, an older white man working in the shoe department threw a shoe at Petitioner and said, “You damn Mexican, I’m going to raise hell against you.” Petitioner testified about an altercation with Risa Autrey, a fragrance model who worked in Dillard’s and who Petitioner stated was another longtime friend of Mr. Gustason. One day, Ms. Autrey approached Petitioner--again, with zero provocation, according to Petitioner--and began berating him, saying that she had no idea why Dillard’s kept Petitioner around. This occurred in front of co-workers and customers. The customers went upstairs and complained to Mr. Gustason, who followed up by admonishing Petitioner to stop telling people to complain to him because nothing was going to come of it. Petitioner testified that a day or so after the incident with Ms. Autrey, he met with Mr. Gustason and Mr. Thomas.4/ During the course of this meeting, Petitioner disclosed his HIV status. Petitioner testified that Mr. Gustason’s attitude towards him changed immediately, and that Mr. Gustason had him fired two weeks later on a pretextual charge of stealing and insubordination. Petitioner testified that he got sick a few days before Black Friday, which in 2015 was on November 27. When he returned to work on November 25, he attempted to give Mr. Gustason a doctor’s note that would have entitled Petitioner to paid leave, but Mr. Gustason would not talk to him. Petitioner worked a long shift on Black Friday. On Saturday, November 28, 2015, he was called to Mr. Thomas’s office about an altercation he had on November 25 with Ms. Yao, the woman’s cosmetics manager. Mr. Kronenberger was also in the office. Petitioner testified that Mr. Thomas accused him of stealing, as well as insubordination to Ms. Yao, and fired him. Two mall security officers, the Dillard’s security officer, and Mr. Kronenberger escorted Petitioner out of the store. Petitioner testified that he was given no paperwork to memorialize his firing or the reasons therefor. Mr. Kronenberger testified at the final hearing. He testified that Petitioner constantly complained about someone not liking him or picking on him. Petitioner never gave him specifics as to what happened. Mr. Kronenberger stated that Petitioner never complained about racial slurs or that any of his alleged mistreatment had a discriminatory element. It was always, “This person doesn’t like me.” Petitioner had issues with tardiness and absenteeism throughout his employment with Dillard’s. Mr. Kronenberger testified that there would be days when Petitioner simply would not show up for work, or would send a text message to Mr. Kronenberger saying that he had things to do or someone he had to meet. Employment records submitted by Dillard’s supported the contention that Petitioner was frequently late for, or absent from, work. Mr. Kronenberger testified that Petitioner was erratic in his communications. Petitioner would send a text message saying he could not come in. Then he would send a text telling Mr. Kronenberger how happy he was to have the job. Mr. Kronenberger recalled once receiving a text from Petitioner at midnight that read, “I know I’ve been bad.” In November 2015, Petitioner had six unexcused absences, including four consecutive days from November 21 through 24. Mr. Kronenberger testified that Petitioner finally admitted that he needed to cut his hours in order to qualify for some form of public assistance. Mr. Gustason told Petitioner that something could be worked out to cut his hours, but that just not showing up for work was unfair to Mr. Kronenberger and the other employees. Mr. Kronenberger testified that Dillard’s would normally terminate an employee with six unexcused absences in one month under the heading of job abandonment. He stated that Mr. Gustason bent over backward to work with Petitioner and keep him on the job. When Petitioner was absent, Mr. Gustason would leave messages for him, asking him to call and let him know what was going on. During the string of November absences, Mr. Kronenberger phoned Petitioner, who said that he was afraid to come into work for fear that Mr. Gustason would fire him. Mr. Kronenberger assured Petitioner that Mr. Gustason had no such intent, but that in any event no one would have to fire him because he had not been to work in a week. Petitioner was effectively “firing himself” by abandoning his position. Petitioner showed up for work on November 25, 2015, at 4:50 p.m. He had been scheduled to come in at 9:45 a.m. Mr. Kronenberger testified that he was not present for Petitioner’s altercation with Ms. Yao, but that Ms. Yao reported she had attempted to counsel Petitioner about gifts with purchases. The promotional gifts were to be given away only with the purchase of certain items, but Petitioner was apparently disregarding that restriction and giving the gifts with non-qualifying purchases. Ms. Yao told Mr. Kronenberger that Petitioner quickly escalated the counseling into a shouting match in front of customers and co-workers. He yelled, “You’re not going to talk to me that way.” Ms. Yao told Petitioner that she worked in another department and did not have to deal with his antics. She told him that she was going to report the matter to Mr. Kronenberger and Mr. Thomas.5/ Mr. Kronenberger testified that his conversation with Ms. Yao was brief because there was no need to give many particulars. He was used to getting reports of employee run-ins with Petitioner and did not need much explanation to get the gist of what had happened. Mr. Kronenberger decided not to raise the issue with Petitioner on Black Friday, the busiest day of the year at the store. On the next day, November 28, Petitioner was called into the office to meet with Mr. Kronenberger and Mr. Thomas. Mr. Kronenberger testified that this meeting was not just about the incident with Ms. Yao but also Petitioner’s absences. In Mr. Kronenberger’s words, “[I]t was to follow up with the incident with Yami, and it was to follow up with, ‘Hey, you’ve just missed a week, you’ve been back a day, and you’re having this blow-up with a manager on the floor.’ Like, ‘What’s going on?’” Mr. Kronenberger testified that neither he nor Mr. Thomas went into this meeting with any intention of terminating Petitioner’s employment. However, two minutes into the conversation, Petitioner was on his feet, pointing fingers, and shouting that he knew what they were trying to do and he was not going to let them do it. He was quitting. Petitioner walked out of the office. Mr. Thomas asked Mr. Kronenberger to walk Petitioner out of the store so that there would be no incidents on the floor with the other employees. Mr. Kronenberger accompanied Petitioner to the fragrance area, where Petitioner retrieved some personal items, then walked him to the door. They shook hands and Petitioner left the store. Mr. Kronenberger was firm in his testimony that no security personnel were involved in removing Petitioner from the store. Petitioner was not accused of stealing. His parting with Mr. Kronenberger was as cordial as it could have been under the circumstances.6/ After Petitioner left his office, Mr. Thomas prepared a “Separation Data Form” confirming Petitioner’s dismissal for “violation of company work rules.” The specific ground stated for Petitioner’s dismissal was violation of the Associate Work Rule forbidding insubordination. Mr. Kronenberger testified that in his mind the “insubordination” included not just the scene with Ms. Yao, but the explosion Petitioner had in the meeting with Mr. Thomas. At the time of Petitioner’s dismissal, Mr. Kronenberger was unaware of Petitioner’s HIV status. Mr. Kronenberger credibly testified that Petitioner’s HIV status had nothing to do with his dismissal from employment at Dillard’s. Mr. Gustason, who apparently was aware of Petitioner’s HIV status, was not at work on November 28, 2015, and was not involved in the events leading to Petitioner’s dismissal. Mr. Thomas, the assistant store manager, made the decision to treat Petitioner’s situation as a dismissal for cause.7/ Mr. Kronenberger’s testimony is credited regarding the circumstances of Petitioner’s dismissal and as to the general tenor of Petitioner’s employment at Dillard’s. Petitioner was constantly in the middle of conflicts, but never alleged until after his termination that these conflicts were due to his national origin or disability. Petitioner’s demeanor at the hearing was extremely emotional. He cried frequently and seemed baffled that Mr. Kronenberger was disputing his testimony. The undersigned finds that Petitioner’s version of events was genuine in the sense that it conveyed Petitioner’s subjective experience of his employment as he recollected it. However, the undersigned must also find that Petitioner’s subjective experience did not conform to objective reality. However, Petitioner internalized the experiences, it is not plausible that Dillard’s employees were yelling at Petitioner without provocation, hitting him, throwing shoes at him, and calling him a “damn Mexican” in front of customers. It is not plausible that Petitioner’s superiors would ignore such flagrant discriminatory behavior when it was brought to their attention. Petitioner’s feelings about the motives of his co-workers and superiors cannot substitute for tangible evidence of unlawful discrimination. Petitioner offered the testimony of two Dillard’s customers, neither of whom saw behavior from Petitioner’s co- workers that could be attributed to anything beyond personal dislike or sales poaching. Santiago Garcia testified that he noted other Dillard’s employees rolling their eyes at Petitioner, but he thought the reason might be that Petitioner talked too loud. Mr. Garcia also saw “bad looks” from other employees and believed that the atmosphere among Dillard’s employees was “tense,” but did not offer a reason for the tension. Claudia Pimentel testified, through a Spanish language interpreter, that she always went directly to Petitioner because she speaks only Spanish and Petitioner was able to help her. Ms. Pimentel noted that a female Dillard’s employee got mad at Petitioner because he sold Ms. Pimentel a cream from her counter. During the years 2015 and 2016, the Dillard’s store in Governor’s Square Mall terminated two other sales associates for insubordination. Neither of these sales associates was Mexican. One was a black female and the other was a black male. Neither of these sales associates had a known disability at the time of termination. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reason given by Dillard’s for his termination. Petitioner offered no credible evidence that Dillard’s stated reason for his termination was a pretext for discrimination based on Petitioner’s national origin or disability. Petitioner offered no credible evidence that Dillard’s discriminated against him because of his national origin or his disability in violation of section 760.10.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Higbee Company, d/b/a Dillard’s, did not commit any unlawful employment practices, and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 24th day of October, 2017, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October 2017.
The Issue The issue for determination is whether Respondent committed an unlawful employment practice against Petitioner on the basis of sexual harassment and retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Recommendation Based on the foregoing Finding of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying Benjamin Bullard's Petition for Relief. S DONE AND ENTERED this 3rd day of December, 2012, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 3rd day of December, 2012. COPIES FURNISHED: Benjamin Bullard 12211 Park Drive Hollywood, Florida 33026 Spencer D. West, Esquire Stephen N. Montalto, Esquire Mitchell & West, LLC 3191 Coral Way, Suite 406 Miami, Florida 33145 Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner timely filed a complaint of discrimination in accordance with the provisions of Chapter 760, Florida Statutes (2010).
Findings Of Fact At the hearing, the parties stipulated to the facts numbered 1-4, as follows: Petitioner was terminated from his employment with Respondent on March 13, 2009. Petitioner's deadline for filing his complaint with the Florida Commission on Human Relations (FCHR) was March 14, 2010. Petitioner emailed a Technical Assistance Questionnaire to the FCHR on February 18, 2010. Petitioner signed an Employment Complaint of Discrimination and dated it March 24, 2010. In addition to the stipulated facts, the undersigned noted that the Complaint is stamped received by the FCHR at 10:48 a.m. on March 25, 2010.
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 Petitioner's claim of discrimination. DONE AND ENTERED this 10th day of December, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2010. COPIES FURNISHED: 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 Lacey Hofmeyer, Esquire Danielle Garno, Esquire Greenberg Traurig 1221 Brickell Avenue Miami, Florida 33131 James Jean-Francois, Esquire Law Offices of James Jean-Francois, PA 6100 Hollywood Boulevard, Suite 211 Hollywood, Florida 33024
The Issue The issue for determination in this proceeding is whether Respondent committed an unlawful employment practice as alleged in the Petition For Relief.
Findings Of Fact Respondent is an employer for the purposes of this proceeding. Respondent's principal place of business is in Orlando, Florida. In 1982, Petitioner was employed by Respondent as a houseman at one of Respondent's hotels located at Marco Island, Florida. Respondent worked continuously in that location until he requested a transfer to the Orlando World hotel in 1986 and received his transfer in the same year. While employed at the Orlando World hotel, Petitioner refused to follow instructions, had excessive absences and was late to work repeatedly. Petitioner received the following disciplinary warnings which finally resulted in his termination on or about October 7, 1991: March 8, 1991 - Written Warning (refused to follow a reasonable job order) March 17, 1991 - Verbal Warning (reporting to work later on 3 occasions within a 90 day period), 2/27/91, 3/3/91, 3/17/91 May 15, 1991 - Written Warning (failure to follow Respondent's work policies) July 30, 1991 - Termination Recommendation (changed to a written warning) August 2, 1991 - Written document (explaining to Petitioner his problems with respect to attendance and tardiness) October 7, 1991 - Suspension and Termination Recommendation. Respondent's rules require employees to call in at least two hours in advance of their shift starting time to report a planned absence from work. Petitioner failed to comply with Respondent's rules by failing to give Respondent timely notice of his planned absence for October 7, 1991. On October 7, 1991, Petitioner called in to report his absence 15 minutes before 8:00 a.m. when his shift started. Petitioner failed to provide credible and persuasive evidence that the Respondent's disciplinary warnings were fraudulent or untruthful. Petitioner was replaced by Mr. Martin Gamey, an Hispanic male. Respondent did not conduct an unlawful employment practice in terminating Petitioner. Respondent did not act with any bias or animus against Petitioner. Petitioner's termination was based upon Petitioner's failure to satisfy his job requirements, failure to follow instructions, excessive absences, and failure to give timely notice for planned absences.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 7th day of December, 1993, at Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1302 Respondent's paragraphs 3, 4 and 7 were rejected as irrelevant and immaterial. Respondent's paragraph 1, 2, 5 and 6-10 were accepted in substance. COPIES FURNISHED: Carlton J. Trosclair, Esquire Marriott Corporation One Marriott Drive, Department 923 Washington, D.C. 20058 Sharon Moultry, Clerk Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Nicolas Polanco 88-05 71st Street Apartment 1-K Jamaica, New York 11432
The Issue The issue is whether Respondent committed an unlawful employment act against Petitioner pursuant to Chapter 70 of the Pinellas County Code, as amended, and Title VII of the U.S. Civil Rights Act of 1964, as amended.
Findings Of Fact Petitioner, a black female, is a member of a protected group. Respondent is an employer as defined in the Pinellas County Code, as amended, and Title VII of the Civil Rights Act of 1964, as amended. Respondent hired Petitioner as a telemarketer on December 8, 1997. Petitioner's job required her to call the telephone numbers on a list furnished by Respondent. After making the call, Petitioner was supposed to solicit the booking of vacations in time-share rental units by reading from a script prepared by Respondent. The script included an offer to sell potential customers three vacations in three locations for $69. When Respondent hired Petitioner, she signed a copy of Respondent's "New Employee Policy and Procedures" manual. Petitioner admits that this manual required her to book 25 vacations each pay period after a two-week training period. She also admits that the manual required her to only use the prepared script, including preplanned rebuttals to customer questions when talking over the telephone. Petitioner understood that during the two-week training period, she would be required to book 14 vacations or be terminated. She knew that Respondent's supervisors would monitor her sales calls. Petitioner sold four vacation packages in her first week at work with no complaints from her supervisors. In fact, one of Respondent's supervisors known as Mike told Petitioner, "You got the juice." On December 15, 1997, Mike monitored one of Petitioner's calls. Petitioner admits that she did not use the scripted rebuttals in answering the customer's questions during the monitored call. Instead, she attempted to answer the customer's questions using her own words. According to Petitioner, she used "baby English" to explain the sales offer in simple terms that the customer could understand. After completing the monitored call on December 15, 1997, Mike told Petitioner to "stick to the shit on the script." Mike admonished Petitioner not to "candy coat it." Petitioner never heard Mike use profanity or curse words with any other employee. Before Petitioner went to work on December 16, 1997, she called a second supervisor known as Kelly. Kelly was the supervisor that originally hired Petitioner. During this call, Petitioner complained about Mike's use of profanity. When Kelly agreed to discuss Petitioner's complaint with Mike, Petitioner said she would talk to Mike herself. Petitioner went to work later on December 16, 1997. When she arrived, Mike confronted Petitioner about her complaint to Kelly. Petitioner advised Mike that she only objected to his language and hoped he was not mad at her. Mike responded, "I don't get mad, I get even." When Petitioner stood to stretch for the first time on December 16, 1997, Mike instructed her to sit down. Mike told Petitioner that he would get her some more leads. Mike also told Petitioner that she was "not the only telemarketer that had not sold a vacation package but that the other person had sixty years on her." Petitioner was aware that Respondent had fired an older native-American male known as Ray. Respondent hired Ray as a telemarketer after hiring Petitioner. When Petitioner was ready to leave work on December 17, 1997, a third supervisor known as Tom asked to speak to Petitioner. During this conversation, Tom told Petitioner that she was good on the telephone but that Respondent could not afford to keep her employed and had to let her go. Tom referred Petitioner to another company that trained telemarketers to take in-coming calls. Tom gave Petitioner her paycheck, telling her that he was doing her a favor. During Petitioner's employment with Respondent, she was the only black employee. However, apart from describing the older native American as a trainee telemarketer, Petitioner did not present any evidence as to the following: (a) whether there were other telemarketers who were members of an unprotected class; (b) whether Petitioner was replaced by a person outside the protected class; (c) whether Petitioner was discharged while other telemarketers from an unprotected class were not discharged for failing to follow the script or failing to book more than four vacations during the first ten days of employment; and (d) whether Petitioner was discharged while other telemarketers from an unprotected class with equal or less competence were retained. Petitioner was never late to work and never called in sick.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the City's Human Relations Review Board enter a final order dismissing Petitioner's Complaint. DONE AND ENTERED this 16th day of November, 2001, 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 16th day of November, 2001. COPIES FURNISHED: Bruce Boudreau Vacation Break 14020 Roosevelt Boulevard Suite 805 Clearwater, Florida 33762 Donna Conway 3156 Mount Zion Road No. 606 Stockbridge, Georgia 30281 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Stephanie Rugg, Hearing Clerk City of St. Petersburg Community Affairs Department Post Office Box 2842 St. Petersburg, Florida 33731
Findings Of Fact Petitioner Linda Mae Krueger, a white female, became a manager at One Stop Oil's Riverview, Florida, store on April 1, 1986. Petitioner's first immediate supervisor was Mr. Tom McBeth, area supervisor for six stores. Mr. McBeth was replaced by Mr. John Richardson on January 26, 1987. Upon becoming area supervisor, Mr. Richardson implemented certain changes in the manner in which all store managers under his supervision were to perform their duties. Petitioner disagreed with Mr. Richardson's changes and failed to follow some of Mr. Richardson's instructions regarding these changes. Petitioner developed a great deal of hostility towards Mr. Richardson and refused to accept the fact that the changes in operation were within Mr. Richardson's managerial capacity. The basis of Petitioner's claim of discrimination was Mr. Richardson's attempt to implement operational changes which Petitioner disagreed with and which were clearly not sexually discriminatory in nature. At the hearing, Ms. Krueger testified that she felt like she was treated unfairly by Mr. Richardson, but admitted that Mr. Richardson placed the same requirements on all other store managers. Petitioner, in June of 1988, told Mr. Richardson that she was considering leaving employment during the beginning of July. Petitioner marked on her store's calendar that she was leaving employment on July 2, 1988. Petitioner, on August 12, 1988, again gave verbal notice to One Stop Oil that she was separating employment with the company on August 27, 1988. At the time the Petitioner gave One Stop Oil this verbal notice of separation, Petitioner was planning to move with her family to North Carolina. On August 17, 1988, Petitioner quit her position as store manager at One Stop Oil's Riverview store. She quit because of a pay dispute over the amount of her bonus check. Petitioner and her husband expected a larger check. When Petitioner's husband saw the actual amount of the check he called the Jacksonville office of Respondent and told them he was closing the store and they had "better get somebody down there." Petitioner and her husband then left the store. Respondent sent Mr. Richardson to the store. He called in Cheryl Chipman and began accounting for the store receipts. He discovered that $1,700 in deposits was missing. Petitioner had given the deposit money to her husband on the day the check dispute arose. Petitioner's husband could not adequately account for the missing money. 1/ Respondent obtained Petitioner's store keys from her without any discussion. The keys were voluntarily turned over by Petitioner. Petitioner never reported for work afterwards. Petitioner's position was filled by Ms. Cheryl Chipman, a white female.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the petition against Respondent be dismissed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of January, 1989. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1989.
