The Issue Whether Respondent committed the unlawful employment practice alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations (“FCHR”), and if so, what relief should Petitioner be granted.
Findings Of Fact Respondent manufactures valves for the safe transportation of hazardous chemicals on tanker-trailers. Respondent is headquartered in the Vero Beach area; specifically, the Gifford community, which is a predominately African-American community. Respondent employs a significant number of employees from the Gifford community.1/ Petitioner is an African-American male who was employed by Respondent from approximately February 2012 until his termination in September 2013. At the time of his termination, Petitioner was employed by Respondent as an assembly technician. Petitioner was supervised by Darrall Holloway, an African- American male. The incident giving rise to Petitioner’s termination involved a physical altercation between two of Respondent’s employees, Jormonte Hunter (African-American male) and Mike Alvarado (Hispanic male) on September 25, 2013. The physical altercation followed approximately two months of arguing between Mr. Hunter and Mr. Alvarado over a female employee of Respondent. Mr. Holloway and his supervisor, John Brennan (Caucasion male), learned of the ongoing dispute between Mr. Hunter and Mr. Alvarado sometime during the afternoon working hours of September 25, 2013. That same afternoon during working hours, Mr. Holloway and Mr. Brennan met with Mr. Hunter and Mr. Alvarado and told them to cease their bickering, and to avoid any future confrontations with each other, on or off company property. That same afternoon during working hours, Mr. Holloway and Mr. Brennan also met with Petitioner and two other African- American male employees (Chris Joseph and Marcus Melbourne). During this meeting, Petitioner, Mr. Joseph and Mr. Melbourne were directed not to allow the situation between Mr. Hunter and Mr. Alvarado to escalate, on or off company property. Petitioner, Mr. Joseph and Mr. Melbourne were further warned that if the situation between Mr. Hunter and Mr. Alvarado escalates, on or off company property, “actions will be taken.” Nevertheless, Petitioner, Mr. Joseph, Mr. Melbourne, Antonio Wallace (African-American male), and Mr. Hunter left work after 4:00 p.m., on September 25, 2013, and drove to Mr. Alvarado’s apartment complex. Petitioner, Mr. Joseph, Mr. Melbourne, Mr. Wallace, and Mr. Hunter went to Mr. Alvarado’s apartment knowing there was going to be a physical altercation between Mr. Alvarado and Mr. Hunter. After arriving at Mr. Alvarado’s apartment complex, Petitioner, Mr. Joseph, Mr. Melbourne, Mr. Wallace, and Mr. Hunter exited their vehicles. Mr. Hunter then walked toward Mr. Alvarado’s apartment, followed by Petitioner, Mr. Joseph, Mr. Melbourne, and Mr. Wallace. Moments later, Mr. Alvarado opened his apartment door, some words were exchanged between Mr. Alvarado and Mr. Hunter, and the physical altercation ensued. Petitioner and Mr. Wallace instigated and witnessed the physical altercation, and did nothing to try and stop it. Mr. Joseph and Mr. Melbourne also witnessed the physical altercation, and did nothing to try and stop it. The physical altercation between Mr. Hunter and Mr. Alvarado lasted a matter of seconds, resulting in Mr. Hunter slamming Mr. Alvarado’s face to the ground, causing Mr. Alvarado to suffer physical injuries to his face. The next day, September 26, 2013, Mr. Alvarado arrived to work with his face badly injured as a result of the altercation. On September 26, 2013, Mr. Holloway, Mr. Brennan, and Mr. Girard, the president of the company, learned of the physical altercation that had occurred between Mr. Alvarado and Mr. Hunter at Mr. Alvarado’s apartment complex the day before. Petitioner, Mr. Joseph, Mr. Melbourne, Mr. Wallace, Mr. Hunter, and Mr. Alvarado were all suspended pending an investigation by Respondent. Over the next few days, Respondent conducted an investigation. Following its investigation, Respondent terminated Petitioner, Mr. Wallace, Mr. Hunter, and Mr. Joseph. Mr. Girard made the ultimate decision to terminate Petitioner, Mr. Wallace, Mr. Hunter, and Mr. Joseph.2/ Petitioner was terminated because he ignored the prior directives of Mr. Holloway and Mr. Brennan given during the meeting on September 25, 2013; he instigated and witnessed the physical altercation between Mr. Hunter and Mr. Alvarado; and he was employed by Respondent for only one year and eight months prior to his termination, during which his job performance was, at times, below expectations. Mr. Hunter was terminated because he ignored the prior directives of Mr. Holloway and Mr. Brennan given during the meeting of September 25, 2013, and he was directly involved in the physical altercation with Mr. Alvarado. Mr. Wallace was terminated because he instigated and witnessed the physical altercation between Mr. Hunter and Mr. Alvarado, and he was employed by Respondent for only six months prior to his termination. Mr. Joseph was terminated because he ignored the prior directives of Mr. Holloway and Mr. Brennan given during the meeting of September 25, 2013, and he witnessed the physical altercation between Mr. Hunter and Mr. Alvarado. Mr. Alvarado was not terminated because he was the victim of the physical altercation, and the physical altercation occurred at his residence. Mr. Melbourne was not terminated because he did not instigate the physical confrontation between Mr. Hunter and Mr. Alvarado, and he was a long-term and model employee of Respondent prior to the September 25, 2013, incident.3/ Following his termination, Respondent replaced Petitioner with Shaunte Collins, an African-American male. The persuasive and credible evidence adduced at hearing demonstrates that Petitioner was terminated for legitimate, non- discriminatory reasons having nothing to do with his race. Petitioner’s charge of race discrimination is based on speculation and conjecture, and Petitioner failed to prove that Respondent’s reasons for his firing are a mere pretext for intentional race discrimination.
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 17th day of December, 2014, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 17th day of December, 2014.
Findings Of Fact Petitioner was hired and began work with DPR on August 22, 1989, in the position of Information Specialist II. The job duties for that position are contained in Respondent's Exhibit 1. Petitioner was terminated on February 5, 1990, before the expiration of her probationary term under the Career Service System. On November 30, 1989, Randy Reid was hired as a public information specialist and worked with Petitioner. It is uncontroverted that Ms. Reid and Petitioner had a personality conflict. Effective January 25 or 26, 1990, Ms. Reid was promoted to the position of Public Information Supervisor, a position to which Petitioner was directly responsible. Before that time, Petitioner had made Ms. Reid aware that the duties which she was performing were not the duties for which she had been hired. Specifically, Petitioner wanted to cover board meeting and to write. Instead she was spending much of her time responding to telephone requests for information. Ms. Reid initiated the paper work to promote Petitioner to the position of Information Specialist III. According to Respondent's Exhibit 2, Petitioner would have been performing the duties for which she had expressed an interest. She would also receive a pay increase. When Ms. Reid informed Petitioner of this promotion, Petitioner was unhappy because she did not want to begin an new probationary period. Petitioner made the situation more difficult by refusing to take directions from Ms. Reid unless the instructions were given by Ms. Reid in writing. Petitioner also responded inappropriately to reporters' requests for information. Instead of advising that certain confidential information was not available, Petitioner, having been a reporter herself for 15 years, expressed empathy with the reporters' dilemma and frustration with not being able to get the information the reporters sought. The information was confidential and Florida Statutes expressly prohibit disclosure. On February 2, 1990, an incident occurred during which Petitioner was insubordinate to Ms. Reid. Petitioner raised her voice and told Ms. Reid that she would not take verbal directions from her. Petitioner then left her work place and went to the personnel office to complain about Ms. Reid's alleged verbal abuse. Based on this incident and the other problems experienced between Ms. Reid and Petitioner, Ms. Reid recommended to the DPR Assistant Secretary that Petitioner be terminated. When Petitioner returned to her work place, Ms. Reid took her to the Assistant Secretary's office. Petitioner was given the option to resign or be terminated. She was very agitated when the Assistant Secretary presented her with that option. She was given the upcoming weekend to make her decision. Petitioner returned to work the following Monday morning, February 5, 1990. She refused to resign and she was terminated. The parties stipulate that Petitioner is over the age of forty and is of French origin. Petitioner's position of Information Specialist II was filled by a person over age forty of American origin. Petitioner alleged throughout this proceeding that Ms. Reid regularly, verbally harassed her by making disparaging comments about her age and national origin. She alleged that Ms. Reid is married to a German man from the Alsace- Lorraine region, which has been the subject of many disputes between the French and Germans. She further alleged that the marital relationship prompted Ms. Reid to harass her in order to please her husband. Finally, Petitioner alleged that Ms. Reid verbally abused her with specific negative comments about her age and French accent. Absolutely no credible evidence was produced by Petitioner to substantiate any of these allegations. It is found that Ms. Reid did not verbally harass Petitioner based on age or national origin. Petitioner did perform her job duties adequately except for the specific instances found herein.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's complaint for age and national origin discrimination. DONE and ENTERED this 28th day of May, 1991, in Tallahassee, Florida. DIANE K. KIESLING 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 28th day of May, 1991. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Liliane Parbot-Johnson Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); and 12 & 14(11). Proposed findings of fact 2, 3, 4, and 15 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 5-11, 13, and 17 are unsupported by the credible, competent and substantial evidence. Proposed finding of fact 16 is irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 3(4); 4(3); 5(5); 6(5); and 10(10). Proposed findings 2, 7, 8, and 9 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Liliane Parbot-Johnson Post Office Box 20363 Tallahassee, FL 32316 Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Ronald M. McElrath, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570
The Issue The issue in this proceeding is whether the Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Respondent Republic Parking System, Inc., operates paid parking lots and facilities at a variety of public and private locations. One of its locations is at the Northwest Florida Beaches International Airport in Panama City, Florida. As part of its operations, Republic maintains an equal- employment opportunity, anti-sexual harassment and non- discrimination policy. The policy also prohibits harassment at work by anyone, including supervisors, co-workers or customers. The evidence showed that the policy is disseminated to its employees in its Employee Handbook and is consistently enforced by the company. Under its Employee Handbook the company generally follows a progressive-disciplinary policy for violations of company policy, with increasing penalties ranging from reprimands to dismissal. However, certain violations of policy, such as use of abusive language or being discourteous to customers, supervisors or fellow employees, may result in immediate dismissal. In October of 2010, Petitioner, Joni Barkley, an African-American, was employed by Respondent as a parking booth cashier at the international airport in Panama City. Upon employment, Ms. Barkley received a copy of Republic Parking System, Inc.’s Employee Handbook and signed an acknowledgement of her receipt of that handbook. She was aware of the company’s policy regarding discrimination and harassment. During her tenure and prior to the end of December 2013 or early 2014, Ms. Barkley had no complaints of racial discrimination or harassment towards her. On the other hand, she had been verbally counseled about a remark she made that co- employees had interpreted as racially motivated. Respondent also had been disciplined for repeated tardiness. Additionally, during her employment, Ms. Barkley was known for misinterpreting statements of others and believing innocent statements or actions by others were directed at her. Towards the end of December 2013 or early January of 2014, one of Ms. Barkley’s co-workers, Eva Bishop, a Caucasian, showed her co-workers, including Ms. Barkley, several photographs and a video of her trip to Alaska. Among the photos she showed to everyone was a picture of a Ketchikan Native American clan house. The picture depicts a rustic blue wooden structure with several Alaskan Native American symbols painted on it to form a face with an open mouth for the front entry. Three large Native American totem poles dominate the front of the structure and are placed at the front corners and in the middle over the front entry way to the structure. When Ms. Barkley was informed that the photo was of a clan house, she mistakenly believed that the photo was related to the Ku Klux Klan and thought Ms. Bishop was referring to a “Klan” house. Unfortunately, Ms. Barkley maintained the correctness of her mistaken belief even though several co- workers who had seen the same picture tried to explain the picture to her. Through January of 2014, Ms. Barkley and Ms. Bishop had several arguments and animated discussions. Ms. Barkley insisted that Ms. Bishop was a member of the Ku Klux Klan and accused her of the same, with her rank in the Klan growing from member to president of the local chapter. She also insisted that the picture Ms. Bishop had shown Petitioner was related to the Ku Klux Klan. Due to her mistaken beliefs, Ms. Barkley became very anxious and fearful of Ms. Bishop. On February 5, 2014, Ms. Barkley first reluctantly complained about Ms. Bishop to Kim Hall, Republic’s Assistant Manager and Ms. Barkley’s immediate supervisor. She complained that Ms. Bishop had used racial slurs in talking with her and had discussed with her the Ku Klux Klan. Ms. Hall immediately took Ms. Barkley to Kelly Blum, Republic’s General Manager at the Panama City airport. Ms. Barkley made the same complaint, but indicated that she “loved” Ms. Bishop and did not want to see her fired. Shortly thereafter, Ms. Blum met with Ms. Barkley and Ms. Bishop together, and told them that they could not fight with each other at work. At the conclusion of the meeting, Ms. Barkley and Ms. Bishop hugged, apologized to each other, said they loved each other and told Ms. Blum they could work together. There was no evidence that demonstrated the manner in which Ms. Blum investigated or handled Ms. Barkley’s complaint was intimidating, harassing or discriminatory. Ms. Blum also stated that she would try to avoid scheduling Ms. Barkley and Ms. Bishop on the same shift. However, due to limitations in personnel, Ms. Blum could not ensure that the two employees would not be on the same shift. Unfortunately, sometime after this conversation, Ms. Barkley worked two hours with Ms. Bishop because Ms. Bishop’s replacement for the next shift was late or couldn’t make it in to work due to bad weather. The manager that day offered to stay with Ms. Barkley, but Ms. Barkley said it would be alright and that she could work with Ms. Bishop present. The evidence did not demonstrate that the one-time, unanticipated shift overlap was in retaliation for Ms. Barkley’s earlier complaint. Over the next several days and notwithstanding their mutual apologies, Ms. Barkley and Ms. Bishop continued to argue with each other, create a hostile work environment and use abusive, profane language. Eventually, Ms. Barkley called the F.B.I. and continued to accuse Ms. Bishop of being a racist and a member of the Ku Klux Klan. At some point, Ms. Barkley insisted on showing Ms. Bishop some books about the Ku Klux Klan, again accused Ms. Bishop of being a member of the Ku Klux Klan, and indicated that Ms. Bishop’s connection to the Klan scared her. Ms. Bishop told Ms. Barkley, in essence, that the KKK hung niggers, and asked why Ms. Barkley thought she would take a similar action. Ms. Barkley responded and, in essence, referred to Ms. Bishop as a white cracker bitch who would hang niggers from trees and that she better hang her with her pearls on. As a consequence, Ms. Blum looked into the continued behavior and reported her concerns about Ms. Barkley’s and Ms. Bishop’s behavior to her supervisor, Regional Manager Linda Kelleher. Ms. Kelleher requested that Republic’s human resources department investigate the matter. Again, there was no evidence that demonstrated this inquiry was intimidating, harassing or discriminatory towards Ms. Barkley. Jan Veal, Republic Parking System, Inc.’s Director of Human Resources, interviewed all witnesses, including Ms. Barkley, Ms. Bishop, Ms. Williams, Ms. Hall, Ms. Blum, and Ms. Kelleher. During the investigation, Ms. Bishop admitted using racial epithets towards Ms. Barkley. Based upon Ms. Bishop’s admission, Ms. Bishop was suspended, with pay, pending the conclusion of the investigation. Shortly thereafter, following Ms. Veal’s interview with Ms. Barkley and the other witnesses’ report of the racial remarks of Ms. Barkley, Ms. Barkley also was suspended with pay, pending the conclusion of the investigation. Such actions were reasonable since both Ms. Bishop and Petitioner were at fault in their behavior towards each other. On February 25, 2014, Republic Parking Systems, Inc., terminated Ms. Barkley’s employment, having concluded that she used offensive and threatening language of a racial nature including the use of profanities and creation of a hostile work environment in violation of company policies. Republic Parking System, Inc., terminated Ms. Bishop’s employment on the same day for the same reasons. As such, the evidence was clear that both employees engaged in similar behavior and were disciplined in the same manner. Both were terminated. Based on these facts, Petitioner failed to establish that Respondent discriminated against her based on race or retaliation when it terminated her from employment. As such, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter an Order dismissing the Petition for Relief. DONE AND ENTERED this 4th day of August, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 2015. COPIES FURNISHED: Joni Marie Barkley 15221 Banks Drive Southport, Florida 32409 (eServed) Jan Veal Republic Parking System, Inc. Suite 2000 633 Chestnut Street Chattanooga, Tennessee 37450 James Scott McDearman, Esquire Grant Konvalinka and Harrison, P.C. 633 Chestnut Street Chattanooga, Tennessee 37450 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Petitioner, a member of a protected class, was denied training, subjected to unequal terms of employment and denied promotion to three jobs including the position of Lead Custodian with the Respondent in the Physical Plant Department in 1993, on the basis of his gender (male) and race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1993).
Findings Of Fact The Respondent is an employer under the 1992 Florida Civil Rights Act. Petitioner was employed by Respondent as a custodian in the Physical Plant Department since July 1989 and during the relevant period of time including 1993 and 1994. Petitioner is a male African-American, and a member of a protected class. Petitioner applied for a promotion to three different positions at the college between August 26, 1993 and December 6, 1993. In late August, 1993, Petitioner applied for the part-time position of House Manager at the college theatre. Petitioner was not selected because his present work schedule would overlap the position at the theatre and his prior work experience was not relevant to the position. In addition, another candidate possessed better interpersonal and communication skills, and his education and work experience was more relevant to the position than the Petitioner's. In early October, 1993, Petitioner applied for the position of HVACR (heating, ventilation, air conditioning and refrigeration) apprentice. The position is a learning position which requires working with a lead mechanic. Part of the job requirement for the apprentice position was the ability to attend trade school in HVACR. During the employment interview Petitioner expressed reservations about attending the HVACR training because he was presently enrolled in night classes at Rollins College. In addition to Petitioner, two white males and a Hispanic male applied for the position. A Hispanic male was selected for the position who had better qualifications. Thereafter, the racial make-up of the HVACR Department consisted of two whites, one black and one Hispanic male. On October 14, 1993, three vacancies for the newly created position of Lead Custodian in the Physical Plant Department was advertised by Respondent. Petitioner was one of nine applicants for the position. The nine individuals who applied for the position of Lead Custodian consisted of four African-American males, three African-American females and two Caucasian females. Following the review of each persons application and file and a personal interview, two African-American males and one African-American female were selected for the positions. Petitioner was not recommended for one of the vacancies. The selection process was based on relevant work experience and work history, and was not based on improper or discriminatory race or gender considerations. Petitioner was not denied training based on his race or gender. Petitioner applied for and attended six seminars covering a variety of subjects over the last several years. Respondent's stated reasons for its promotion and training decisions were not proven to be pretextual.
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 which DENIES the Petition for Relief. DONE AND ENTERED this 24th day of October, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 24th day of October, 1995. APPENDIX The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner: Accepted in substance: paragraphs: none Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 1, 2, 3, 4, 5, 6. COPIES FURNISHED: Lea Ann Banks, Esquire BAKER & HOSTETLER P. O. Box 112 Orlando, Florida 32802 Mr. Ulysses B. Williams 1020 Polk Avenue Orlando, Florida 32303-4149 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on August 27, 2012.
Findings Of Fact Petitioner is a female who has identified her race as Asian and her national origin as Indian. Petitioner’s age was not established in evidence. However, based upon the attachments to Petitioner’s Petition for Relief, Petitioner was identified as 43 years old, presumably at the time she filed the Complaint of Employment Discrimination. There is nothing in the record to indicate otherwise and, based upon observations of her while testifying at hearing, 43 is a reasonable approximation of her age. Respondent, Leon County School Board (LCSB), is an employer within the meaning of the Florida Civil Rights Act. Petitioner has applied for numerous job openings with the School Board over a number of years. However, based upon the applicable statute of limitations as explained more fully in the Conclusions of Law, there are five LCSB job postings that are at issue in this proceeding, one of which was never filled. The job positions applied for are as follows: --Job posting 1071-2012, Custodian position at Nims Middle School. --Job Posting 0170-2012, Instructional paraprofessional position at Sealy Elementary School. --Job Posting 011-2012, custodian position at Rickards High School. --Job posting 0201-2012, Assistant Manager for Extended Day Program at J. Michael Conley Elementary School. --Job posting 0215-2012, Receptionist at Leon County High School. This position was not filled. Petitioner is the mother of two children who are or have been students in the Leon County schools. Petitioner has extensive volunteering experience in LCSB schools. In 2008, she received the Volunteer of the Year award for her volunteer work at Sealy Elementary School. She was invited to and attended the Volunteers of the Year Luncheon in 2008. Petitioner also volunteered at Conley Elementary School in 2011. While Petitioner has considerable volunteer experience in Leon County Schools, she has no job/employment experience since coming to the United States in 1998. Petitioner holds a college degree from Utkal University in India. The unofficial transcript states that it is a “Honours Diploma for Bachelor of Arts (Three Year Degree Course).” Respondent uses the PATS (Paperless Applicant Tracking System) system to accept applications for all job openings within the Leon County School District. Based on information inputted into PATS by applicants, a list of qualified individuals is generated for each position. The PATS system does not ask for or identify an applicant’s age, race, national origin, or sex. Vitalis Dennis is the Director of Human Resources for the LCSB. She has general supervision over the PATS system. According to Ms. Dennis, LCSB does not count volunteer work in evaluating work experience. This is a generally applied policy, applied to all applicants, including Petitioner. Hiring decisions are made by each school’s principal. The school principals send recommendations for hiring to the District Human Resources office. Job Posting 1071-2012 Petitioner applied for job posting 1071-2012, a custodial position at Nims Middle School. At that time, Charles Finley was assistant principal at Nims. He was in charge of interviewing and hiring vacant custodial positions. The executive secretary at Nims printed a list of applicants from PATS. He then accessed PATS to check applicants’ educational and work history to identify applicants with previous custodial work experience. Generally, he would interview eight to 12 applicants. The successful candidate for this position was Eloise Hatten. Ms. Hatten was 52 years of age, is African-American, and is female.2/ Ms. Hatten’s application reflects approximately nine years’ of cleaning commercial/institutional experience. Mr. Finnley interviewed Ms. Hatten and testified that the interview went well. He describes Ms. Hatten, who is still employed at Nims, as tied for the best hire he ever made. Job Posting 0170-2012 Petitioner applied for Job Posting 0170-2012, Instructional Paraprofessional at Sealy Elementary. Demetria Clemons is the principal of Sealy Elementary School. Ms. Clemons receives and reviews the PATS list of applicants. She then makes a list of applicants for her secretary to call to set up interviews. When reviewing the list, she looks to see if any applicant is a veteran. Then she looks to see if anyone on the list had previous work experience with her or was recommended by a colleague. The successful applicant was Alisha Saint Cloud. Ms. Saint Cloud was 24 years of age, is African-American, and is female. Ms. Clemons interviewed Ms. Saint Cloud and offered her the job. Ms. Saint Cloud was selected for this position primarily because she held the position as an annual contract employee the previous school year. Annual contract employees often are given notice letters at the end of a school year, as principals do not know at that time whether they will be able to rehire them for the following school year. If staffing allocations allow, the job is then posted. Ms. Saint Cloud was in that situation when Ms. Clemons hired her for this permanent position. Ms. Clemons knew of Petitioner’s volunteer work at Sealy, but the volunteer work was done in individual classrooms, not directly for Ms. Clemons. Job Posting 011-2012 Petitioner applied for Job Posting 011-2012, custodian position at Rickards High School. Clebern Russell Edwards is the assistant principal at Rickards High School. He made the hiring decision for this custodial position for which Petitioner applied. A list of applicants generated from PATS was printed by the principal’s secretary. He looked to see if any applicants were veterans, then whether any were recommended by colleagues. The successful applicant for that position was Jaterrius Robinson. Mr. Robinson was 23 years of age, and is an African-American male. Mr. Robinson had institutional/ Commercial-cleaning experience and was a graduate of Rickards High School. Mr. Edwards believes that it is important to have someone with experience cleaning in an environment similar to a school in such a position. Mr. Edwards took into consideration Mr. Robinson’s work experience, being an alumnus of Rickards, and his outstanding interview when making the decision to hire Mr. Robinson for the job. Job Posting 0201-2012 Petitioner applied for job posting 0201-2012, assistant manager for the Extended Day Program at J. Michael Conley Elementary School. Danielle Dielbeck is the Extended Day Manager at Conley Elementary School. She is responsible for hiring the Extended Day personnel and supervising those employees. Jeremy Rollins was the successful applicant for this position. Mr. Rollins was 23 years of age, and is an African- American male. Ms. Dielbeck reviewed the PATS list of applicants to determine who would be a good fit for the job. She also takes into consideration any recommendations that may come from other schools. Mr. Robinson has work experience as an after-school teacher. Ms. Dielback selected Mr. Robinson because of his experience as an after-school teacher in another program with a large number of students, and because he also had experience as a cashier for a grocery company. Ms. Dielbeck believed his cashier experience demonstrated that he had experience handling money. She determined that this was a benefit because the Extended Day Program is responsible for its own budget. Petitioner’s assertions Petitioner strongly believes that LCSB has systematically discriminated against her by not hiring her. She believes that LCSB is harassing her personally, including an unnamed person parking her car outside the Rath’s home and taking photographs.3/ However, there is no competent evidence to support her subjective belief that the person in the car has anything to do with LCSB. There is no competent evidence in the record that supports any coordinated efforts or conspiracy by LCSB personnel to deny her employment. Each person with the responsibility to make hiring decisions did so independently.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding that the Leon County School Board is not guilty of the unlawful employment practice alleged by Petitioner and dismissing Petitioner's Complaint of Employment Discrimination. DONE AND ENTERED this 29th day of October, 2013, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 2013.
The Issue Whether Petitioner was demoted from his position as a security officer, and later terminated from his position with the Respondent as a groundskeeper on or about May 22, 1995, on the basis of his race (Black) or sex (male), in violation of Section 760.10(1)(a), Florida Statutes (1995).
Findings Of Fact The Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992. Petitioner is an African-American male, and is licensed as a Class D security officer by the State of Florida. Respondent, Life Care Retirement Communities, Inc., is a not-for-profit corporation, based in Iowa, which owns Village on the Green, a community with 241 independent living units and 60 skilled health center beds in Longwood, Florida. Petitioner was hired by Respondent, on April 27, 1998, as a security guard at Village on the Green in Longwood, Florida. He worked in that capacity until May 12, 1995. In accordance with the company's standard procedure, all employees who have keys or access to resident's private property are required to have a criminal background check completed. Petitioner's position as a security guard required such a check. Petitioner signed a consent form and the background check was completed. The background check revealed that, in 1993, Petitioner was arrested for the felony of grand theft auto. The charge was later reduced from the misdemeanor charge of Trespass to a Conveyance. On May 17, 1994, Petitioner pled nolo contendere to the charge. Adjudication was withheld by the Court and Petitioner was placed on six months probation. Petitioner successfully completed probation. It is the policy of Respondent that an employee with a prior criminal record which involves theft may not be placed in a safety-sensitive position which permits employee access to a resident's living quarters or personal property. A security officer has such access. Petitioner was then informed that he would be removed from his position as a security guard. Petitioner was then offered a position in groundskeeping and Petitioner accepted. He was transferred to groundskeeping, at the same salary, and was employed from May 15, 1995, until May 22, 1995, at which time he was terminated. Between May 15 and May 22, 1995, Petitioner performed his job satisfactorily. On May 15, 1995, a severe electrical storm knocked out electricity to Petitioner's residence. As a result, Petitioner overslept and did not report to work at 7:00 a.m., the scheduled beginning of his shift. At approximately 8:00 a.m., Petitioner called the security guard on duty and advised her of the reason he was late and that he would not be in that day because the storm had caused damage to his automobile. The fact that Petitioner reported in on May 15th was not conveyed by the unidentified security guard to Petitioner's supervisor. Respondent's policy, as stated in the Employee Handbook, called "No show/no call," requires an employee to notify his supervisor if he is going to absent, or if he is unable to contact the supervisor, then he is to report his absence or tardiness to the switchboard operator. The Employee Manual, at page 45, states in pertinent part: ". . . Failure to report for duty without notification, failure to call in prior to shift change and tardiness will result in disciplinary action." After an internal investigation, which included an interview with Petitioner, Respondent was unable to determine that Petitioner had called in on May 15, 1995. Petitioner was terminated. Petitioner has failed to demonstrate that Respondent's reason for termination was pretextural, or that the employer engaged in unlawful hiring, firing, pay or promotion practices.
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 which DENIES the Petition for Relief. DONE AND ENTERED this 3rd day of June, 1998, in Tallahassee, Leon County, Florida. COPIES FURNISHED: John V. Griffin DANIEL M. KILBRIDE 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 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1998. Director of Human Resources Life Care Retirement Communities, Inc. d/b/a Village on the Green 200 East Grand, Suite 390 Des Moines, Iowa 50309 Terrance Davenport 861 Carver Street Winter Park, Florida 32789 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue Whether Respondent Employer is guilty of an unlawful employment practice, as defined by Chapter 760, Part I, Florida Statutes, against Petitioner on the basis of his race (African- American).
Findings Of Fact White Oak Plantation is an "employer" as defined by Section 760.02(7), Florida Statutes. At all times material, Respondent was in the business of breeding, raising, selling, and showing thoroughbred horses. Petitioner is an adult African-American male. Petitioner was employed by Respondent from January 17, 1996 until March 19, 1999. Petitioner's employee evaluations showed that at all times material he met expectations or exceeded expectations. Petitioner was terminated by Billy Davis, his immediate superior, on March 19, 1999. Davis is a Caucasian male and at all times material was a Stable Manager. It is undisputed that Petitioner alleged in both his Charge of Discrimination and his Petition for Relief instances of racial harassment and the use of racially derogatory names against himself in the work place by Frank Gowen, a co-employee, and by Mike Brown, who at one point was a co-employee and who later was not an employee of Respondent. With regard to his termination, Petitioner's Charge of Discrimination alleged: 3. On March 19, 1999, Mr. Martin, Billy Farmer and myself were heading to clean the stalls. Mr. Martin called me "buckwheat" [sic]. He then grabbed a nearby hose and hosed me down, soaking my clothes with water. I stood there in shock as Mr. Martin ran out of the stable. He came back and began threatening to turn me White [sic] with lime. He threw the lime, and it landed on my shoes. I threw a bucket of water on him in self-defense, hoping he would leave me alone to do my job. Instead, he began punching and kicking me, and I protected myself. Mr. Davis then entered the stable and asked if there was horse-play [sic] going on. He then stated that everyone would be punished. When questioned later, I told Mr. Davis what happened, and he accused me of letting Mr. Martin take the fall. On March 24, 1999, I was unjustly terminated. On June 4, 2002, the Commission entered its Determination: No Cause. Petitioner timely filed a Petition for Relief, pursuant to Chapter 760, Florida Statutes, and the Rules of the Commission. His Petition alleged, with regard to his termination, as follows: 5. During my employment with respondent another incident that involved racial names being made to an African American [sic] employee by a white [sic] employee occurred. The African American [sic] employee complained to management. Both employees were terminated after the African American [sic] employee stated that he was defending himself after being called racial [sic] derogatory names by the white [sic] employee. The African American employee was rehired after EEOC intervined [sic]. I was defending myself and received serious injury to the right ankel [sic]. The ligament was torn out of place when another employee threw a 50# bag of shavings that hit me on the ankel [sic]. I suffer with a limp and serious pain from my ankel [sic] being reaggravated [sic] from the incident that occured [sic] on 03/20/99. I also suffer with anxity [sic] and depression from having been allowed to go through the comments alone when no one tried to stop it. I am seeking relief in the amount of 68000.00 [sic] for injuries sustained and for mental distress and anxity [sic]. After the case was referred to the Division of Administrative Hearings, a Notice of Hearing was issued, indicating that the disputed issues of material fact would be "as stated in the Petition for Relief." While Petitioner's testimony was vague as to dates, chronology, and relationship of some discriminatory events to other identifiable events, he testified concerning several incidents of racial harassment. Petitioner testified that sometime in 1996, a Caucasian male employee named Frank Gowen spotted another Caucasian male and an African-American male wrestling in one of Respondent's parking lots. Gowen asked aloud, in Petitioner's presence, "What does that Nigger think he's doing?" No other witness corroborated that this comment was made. Petitioner admitted that he never reported the comment to anyone in management until after he was terminated in 1999. Respondent's management employees, Billy Davis and Ronnie Rogers, Human Resources Officer, were credible in their testimony that they never knew of this incident until after Petitioner's termination. Petitioner testified that on another unspecified date, Gowen asked a Caucasian female employee, also in Petitioner's presence, what "Pontiac" meant, and then answered his own question as, "Pontiac means 'Poor Old Nigger Thinks It's A Cadillac.'" At hearing, the female employee denied this event happened. No other witness corroborated Petitioner's account of this incident. No other witness even seemed to understand the so-called joke or anagram for Pontiac. Petitioner admitted that he never reported this comment to any superior until after he was terminated in 1999. Respondent's management employees were credible that they never knew of this specific incident until after Petitioner's termination. There is sufficient evidence to corroborate Petitioner's account that in approximately January 1998, he had a knife in his hand, opening a feed sack, with the knife's point aimed at a Caucasian male employee, without any intended threat, and at that point, Gowen said to the other employee, something like, "You got to watch them Niggers. They'll cut you." Petitioner admitted that he never reported this incident to any superior until after he was terminated in 1999. Petitioner also testified credibly that on the same day as the "cutting" comment, Frank Gowen prevented him from sitting in the front of a flatbed dump truck with Gowen and another Caucasian male, Donovan Rewis, while saying something to the effect of "That's right. Let the Nigger ride in the back of the truck." Mr. Rewis corroborated that this discriminatory comment and event, in fact, occurred. On the same day as the "cutting" and "back of the truck" comments/events occurred, another male African-American employee named Clarence McClendon approached Billy Davis. McClendon told Davis that a bad situation was developing between Petitioner and Gowen. Exactly what McClendon told Davis is unclear, but it appears that Davis was at least made aware that the term "Nigger" had been repeatedly used by Gowen to Petitioner and was further made aware that the "cutting" and "back of the truck" incidents had occurred on the same day. Upon learning of the "cutting" and "back of the truck" incidents from McClendon, Davis immediately asked Petitioner to come to his office. Davis asked Petitioner to explain what had happened involving Gowen. Petitioner did not specifically describe the "wrestling" comment or the "Pontiac" comment, and it is unclear whether Petitioner described either the "cutting" or "back of the truck" incidents in the detail provided by the foregoing Findings of Fact, but Petitioner did explain to Davis that Gowen had repeatedly used the word "Nigger" in his presence and about himself. Davis then told Petitioner that Gowen's behavior was unacceptable behavior for a White Oak Plantation employee and that Gowen's comments and behavior would subject Gowen to discipline, which discipline could go as far as Gowen's termination. Petitioner then told Davis that he did not want Gowen to be punished or to get in any trouble for making the comments. Petitioner requested that Gowen simply be asked to make a sincere apology to him and to promise that he would never again make such comments. Davis specifically told Petitioner that he could inform Respondent's Human Resources Office of the incidents. Petitioner, however, requested that Human Resources not be involved and that, instead, the matter be handled by Davis. Petitioner testified that he simultaneously met with Davis and Rose Harley, an owner-manager, about the Gowen matter. It is important to Petitioner that all concerned know that Harley stated to him that the Gowen situation should have been brought to her attention sooner and that he would receive a record of the comments and management's response. Davis recalls only meeting with Petitioner alone and then meeting alone with Rose Harley to further discuss the situation. Petitioner is credible that at some point Harley made the statement to him which he related, but Davis is just as credible that Petitioner asked him not to involve the Human Resources Office. After meeting with Petitioner, Davis and Harley met with Gowen to discuss the matter with him. Davis told Gowen that he and White Oak Plantation were disappointed in his behavior. He instructed Gowen to apologize to Petitioner. Gowen, in fact, apologized to Petitioner. After the apology, Davis met with Petitioner again, and Petitioner told Davis that he was satisfied with the apology that he had received from Gowen. At this meeting, Davis instructed Petitioner to inform him if any further incidents occurred. He further told Petitioner that if Petitioner did not feel comfortable talking to him, Billy Davis, Petitioner could notify any other supervisor, which presumably would include Ms. Harley, or the Human Resources Officer, Ronnie Rogers. Although Petitioner claimed at hearing that he had told Davis by phone about Gowen's earlier comments, Davis denied that any such phone call took place, and no witness corroborated Petitioner's timeline. What is undisputed is that in 1998, no more than one day elapsed from the time McClendon notified Davis of Gowen's comments until the time the incident was resolved to Petitioner's apparent satisfaction. Davis continued to check with Petitioner, informally, in passing, on a regular basis, to ensure that Petitioner was not having any more problems with Gowen. Petitioner never indicated to Davis that any further discrimination problems existed. Mike Brown was a Caucasian male employee of Respondent who left Respondent's employ in 1999. How long he was a co- employee with Petitioner is not in evidence. While they were both employees of Respondent, Brown and Petitioner fell into a habit of addressing each other by nicknames. Brown referred to Petitioner as "Buckwheat." Petitioner referred to Brown as "Cracker," "Vidalia," "Onion Head,"1 and "Grand Wizard." Various Caucasian employees considered Petitioner and Brown to be only "cutting the fool" or "joking around" when they addressed each other this way. Other employees, including Brown's girlfriend, Missy Springer, also referred to Brown as "Vidalia." Apparently, Petitioner was always aware that the term, "Grand Wizard," inferred that Brown held that rank in the Ku Klux Klan, and Petitioner saw nothing wrong in addressing Brown that way, because Brown had asked Petitioner to call him "Grand Wizard." However, Petitioner initially did not think "Buckwheat" had any racial connotation or derogatory intent. Petitioner testified that he initially took the term "Buckwheat" to refer to the African-American character of the same name in "The Little Rascals" series of films; to be a joking nickname; and to be a harmless "stereotype."2 At some point, Petitioner contacted the National Organization for the Advancement of Colored People (NAACP) and was informed by that organization that references to the character "Buckwheat" in "The Little Rascals" series constituted disparagement of the Negro race, based on a stereotypical, uneducated, ragamuffin, Negro child who ate watermelon and behaved like a wild animal. The record does not reveal when Petitioner consulted the NAACP or whether the insult was explained to him in this way before or after Brown's leaving Respondent's employ. However, it is clear that Petitioner did not go to Davis or Rogers about the situation with Brown at any time. Once again, Petitioner's situation was reported to Davis by Clarence McClendon, after Brown left Respondent's employ. After Brown ceased to be one of Respondent's employees, Brown continued to come on Respondent's premises to provide transportation for his girlfriend, Missy Springer. During this period of time, the trading of offensive nicknames between Petitioner and Brown continued without any complaint from Petitioner to management. Over one year after the disciplining of Gowen, and after Brown was no longer Respondent's employee, McClendon reported to Davis that he had observed Brown call Petitioner "Buckwheat" and that Petitioner had called Brown "Vidalia" and "Cracker." At hearing, Petitioner claimed, without any corroborating testimony, that Davis was aware of Brown's racial disparagement of him at some time while Brown was still employed by Respondent, because Davis had been present in the break room once when Brown had telephoned, and when Petitioner answered the break room phone, Brown had addressed Petitioner, over the phone, as "Buckwheat." Petitioner testified that other employees in the break room laughed and Missy Springer told Davis that the caller had to be "Vidalia," a/k/a Mike Brown, because Brown was the only one who called Petitioner "Buckwheat." Davis categorically denied being present when any such event occurred, if it occurred. Based on the evidence as a whole, Davis is the more credible witness on this aspect of the case. Petitioner did not ever affirmatively approach Davis for redress of the nasty nickname situation with Brown. However, immediately after being informed by McClendon, Davis approached Petitioner about McClendon's allegations involving Brown. He asked if Petitioner wanted him to ban Brown from Respondent's premises. Petitioner agreed that was what he wanted done. In this discussion with Petitioner, Davis suggested that Ronnie Rogers, Human Resources Officer, be contacted regarding Brown's behavior, because Brown now was a member of the public. Petitioner agreed that Human Resources should be consulted. A meeting was held by Davis and Rogers with Petitioner. During this meeting, Rogers reviewed White Oak Plantation's Equal Employment Opportunity (EEO) statement with Petitioner. During Petitioner's employment, Respondent's EEO anti- discrimination and anti-sexual harassment statement had consistently been displayed at the time clocks of the East Stable, where Petitioner was assigned, and in the employee cafeteria, where employees daily received a free lunch. This statement prohibited racial disparagement or harassment. It set out to whom reports of such activities should be made, which included any supervisor. It stated that Respondent would not retaliate against anyone who made a good faith report of discrimination, even if that person turned out to be wrong. It did not promise confidentiality. In their meeting concerning banning Brown from the premises, Petitioner told Rogers that he was familiar with the EEO statement. Rogers agreed with Davis and Petitioner that Brown should be banned from the premises. Davis told Petitioner sometime during this period that if he experienced any repercussions as a result of Brown being barred from the property, Petitioner was to inform Davis immediately. Petitioner's testimony suggested that he now considers this statement to have been a threat by Davis or to demonstrate Davis's reluctance to ban Brown from Respondent's property, but Davis is more convincing that if he said anything close to this, it related to what Missy Springer might do or say. Rogers told Petitioner that if Petitioner experienced any future problems, whether those problems were related to Brown or not, Petitioner should immediately contact either his supervisor, Davis; another supervisor; or Rogers, himself, depending upon with whom Petitioner felt more comfortable. After meeting with Petitioner, Davis and Rogers immediately sought out Missy Springer, Brown's girlfriend whom he was transporting to and from work. They met alone with Springer and told her that Brown would no longer be allowed on Respondent's premises. They directed Springer to telephone Brown to tell him that. In the presence of Rogers and Davis, Springer telephoned Brown and instructed Brown that he was banned from coming onto White Oak Plantation property. Rogers then contacted Respondent's Head of Security and instructed him to post notices at both gates stating that Brown would no longer be allowed on White Oak Plantation property. White Oak Plantation maintains security guards on a twenty-four hour basis, seven days per week, and they were instructed not to allow Brown onto the property again. Since the date that the notices were posted and Brown was notified that he was barred from White Oak Plantation property, Brown has not returned. After the situation with Brown had been investigated and apparently resolved in late February 1999, Davis continued to check with Petitioner informally to inquire whether Petitioner was having any further problems. Petitioner was credible that he did, in fact, receive some unpleasant comments from other employees as a result of Rogers's and Davis's banning of Brown from the White Oak Plantation property. However, Petitioner did not report any such problems to Davis. Instead, he took a vacation for two weeks. After Petitioner returned to work, on March 19, 1999, Davis was shoeing a horse at the Forge, a small stabling facility about 100 yards from Respondent's East Stable. From the Forge, Davis had a direct line of sight to the East Stable. From the Forge, Davis witnessed two individuals running around and throwing water at each other. Because they were in the dark hallway of the stable, because of the distance, and because Davis was looking from lightness into darkness, Davis could not make out exactly who they were, but he could clearly see the conduct in which they were engaged. Respondent White Oak Plantation had gone out of business by the date of hearing. However, at all times material, White Oak Plantation was world renowned for its thoroughbred horse breeding program. It housed many mares valued in excess of $1,000,000.00 and foals with insurance values up to, and in excess of, $1,000,000.00. What Davis witnessed on March 19, 1999, was inconsistent with the training and instructions provided to employees working around such valuable blood stock. After contacting another employee to secure the horse in the Forge, Davis walked to the East Stable to investigate the commotion. Upon arriving at the East Stable, Davis discovered water in the hallway, disinfecting powder (lime) covering the black asphalt hallway, and a broken director's chair, normally reserved for guests, in the vicinity of a stall housing a young thoroughbred mare and her three-day-old foal. Davis approached the employees who were working at the East Stable at that time. They were Petitioner; Jason Martin, a minor Caucasian male; Clarence McClendon; and Billy Farmer, an adult Caucasian male. Davis noticed that Petitioner and Martin were both soaked with water, while McClendon and Farmer were dry. Davis asked Petitioner and Martin separately, but within earshot of each other, what had been going on, and both said they had been working. Davis then asked Farmer and McClendon, individually, what had occurred involving the water, lime, and broken chair. Both Farmer and McClendon avoided the question and responded that they did not want to get involved in the situation. Davis again asked Farmer and McClendon what had happened. Farmer and McClendon replied that they were working and that Davis should ask Martin and Petitioner what had happened. Davis asked Farmer and McClendon a third time what had occurred at the East Stable. Each of them replied that while they were working, Martin and Petitioner were horsing around. Davis then asked both Petitioner and Martin two or three times what had occurred, and each time Petitioner and Martin claimed that they had been working. Ultimately, Martin confessed that he had been involved in horse play and the commotion had been his fault. Davis immediately terminated Martin. Petitioner began to walk away from the situation, but Davis called after him something to the effect of "No, you can't let him take the fall for you. You are out of here, too." Petitioner protested that since Martin had confessed the incident was his fault, he, Petitioner, should not be terminated as well. The mare and three-day-old foal that were in the East Stable when Petitioner and Martin were horseplaying had a combined insurance value of between $750,000.00 and $800,000.00. The foal was only the mare's second or third birthing, and as a youngish mother she could be presumed to be nervous. Due to the age of the foal and the highly temperamental nature of young thoroughbred mares, the conduct in which Petitioner and Martin were engaged was very dangerous to the well-being of this mare and her three-day-old foal. It was conceivable that the mare could have been spooked and stepped on the foal, injuring it. Fortunately, that did not happen. Davis had trained all of his stable employees, including Martin and Petitioner, in the correct way to act around thoroughbred horses. Even though their horseplay was not actually in the stall with the new mother and foal, Davis considered Petitioner's and Martin's conduct with the water, lime, and broken chair to be inconsistent with the training provided. He accordingly terminated both Martin, the Caucasian boy, and Petitioner, the African-American man, because both had been involved in the event. Either orally or in paperwork, both Petitioner and Martin were terminated for engaging in horse play, for creating an unsafe work environment for themselves and their co-workers, and/or for reckless misconduct around the blood stock or thoroughbred horses. Petitioner pointed out that some or all of these reasons were not specifically listed as major offenses, subjecting an employee to termination, in Respondent's personnel manual at the time of his termination. That fact might be relevant in a case of unlawful termination pursuant to a contract of employment or collective bargaining agreement, but it is not material to the resolution of this case under Chapter 760, Florida Statutes. The manual does not purport to be exhaustive of the reasons an employee could be terminated. What is material here is that Petitioner agrees that he and Martin were terminated for the same reason or reasons, however phrased. Petitioner feels that his termination was unfair because Martin essentially took the blame for them both, but Davis's reason for terminating both employees may be summed up by the old adage, "It takes two to make a fight." On the day of his termination, Petitioner told Davis that he and Martin were fighting, and that he was defending himself, but he did not say anything to Davis about Martin making any racial comments towards him. During Mr. Davis's contemporaneous investigation of the incident in the East Stable, neither McClendon nor Farmer told him that Martin had used any racial terms while engaged in horse play with Petitioner. After Petitioner was terminated, he appealed to Respondent's Human Resources Officer, Ronnie Rogers, so Rogers conducted his own investigation of the facts surrounding Davis's terminations of Petitioner and Martin. In connection with that investigation, Rogers interviewed Farmer, McClendon, and Petitioner. McClendon told Rogers that on the day of Petitioner's and Martin's terminations, he witnessed Petitioner and Martin running, playing, and throwing water on each other. McClendon further stated that he saw either Martin or Petitioner push the other individual into the director's chair, breaking it. Farmer told Rogers that on the day of Petitioner's and Martin's terminations, he had witnessed Petitioner and Martin running around and playing for 10 to 15 minutes. Rogers concluded that Davis had made a proper decision in terminating both Martin and Petitioner. The Monday following Petitioner's termination, Petitioner telephoned Rogers to inquire whether he was still terminated. During the course of this conversation, Petitioner admitted to Rogers that he and Martin were horse playing in the stables where the thoroughbred horses were housed. During this conversation, Petitioner did not say anything to Rogers about Martin or any other individual using any racial or inappropriate language on the date of Petitioner's termination. Rogers and Davis met with Petitioner on March 24, 1999, five days after Petitioner was terminated. During this meeting, Petitioner reiterated what he had told Rogers, that he and Martin were playing around in the East Stable on the day of their terminations, but he also brought up the previous racial incidents involving Gowen and Brown and inquired whether Rogers was aware of them. Rogers had not been aware of the incidents involving Gowen and asked Petitioner if he were satisfied with the way that all the previous incidents involving both Gowen and Brown had been handled. Petitioner indicated that he was satisfied with the manner in which the incidents involving Gowen and Brown had been handled. Petitioner claimed at hearing that in the March 24, 1999, meeting, he related to Davis and Rogers that the March 19, 1999, altercation with Martin had been self-defense because he had been attacked by Martin and/or provoked by Martin's racist comments. Both Davis and Rogers credibly deny that Petitioner told them anything about racial comments by Martin. They also credibly deny that Farmer or McClendon reported any racial comments. They are less clear that Petitioner said nothing about self-defense or about Petitioner having to fight Martin, and I accept Petitioner's testimony only to the extent that he did claim both horseplay and self-defense as of March 24, 1999. Neither Davis nor Rogers independently observed or was aware of any racially inappropriate conduct or comments. At hearing, Petitioner testified that on March 19, 1999, the date of termination, Martin had called Petitioner "Buckwheat." Petitioner related that Martin had then stated that if Mike Brown were permitted to call Petitioner "Buckwheat," then he, Martin, should be allowed to call Petitioner "Buckwheat," too, and that Petitioner told Martin that he could not because Petitioner now knew it to be racist language. Petitioner related that Martin then hosed Petitioner down, soaking Petitioner's clothes with water. Petitioner said he let this event pass, because it was hot. He then filled a pail of water and spilled some. He poured the remainder of the water in his pail into a wash stall. Martin ran away from Petitioner, thinking Petitioner was going to throw water on him, and said something to the effect of "Since you think you White and you want to be White, I'm going to take this lime and throw it on you and turn you White." Petitioner related that Martin was referring to the lime used to disinfect the stalls. However, Petitioner did not testify that Martin picked up any lime. Rather, Petitioner testified that Petitioner picked up a bucket of water and threw it on Martin. Petitioner related that Martin reacted to being doused by Petitioner by getting Petitioner in a headlock and punching and kicking him. A fight ensued, in close vicinity to the young mare and her three-day- old foal, but not within their stall. Petitioner testified that the director's chair was broken when Petitioner threw Martin into it. The area was also flooded with water.
Recommendation Upon 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 Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 11th day of December, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2002.
The Issue Whether Petitioner was terminated from his position with Respondent as a warehouse supervisor on or about August 9, 2002, on the basis of his race (African-American), in violation of Subsection 760.10(1)(a), Florida Statutes (2003).
Findings Of Fact Based upon all of the evidence, the following Findings of Fact are determined: Respondent, Heritage Paper Company, Inc. (Respondent), is an employer as that term is defined under the Florida Civil Rights Act of 1992 (FCRA). Respondent is a wholesale distributor of paper and plastic products. Petitioner, Alonzo C. Brown, is an African-American male and is a member of a protected class. Petitioner was employed in the warehouse at Respondent's Orlando facility from 1998 until he was terminated on or about August 9, 2002. Dan Patterson ("Patterson"), who was the general manager at the Orlando facility during the relevant time period, supervised Petitioner throughout his employment with Respondent. Patterson made the decision to hire Petitioner, made the decision to promote Petitioner to warehouse supervisor, and made the decision to terminate Petitioner's employment. In November 1999, Petitioner was officially promoted from warehouseman to warehouse supervisor. Petitioner's job duties as warehouse supervisor included supervising the drivers, receiving inventory, putting away inventory, pulling orders, and ensuring that the trucks were loaded. Petitioner was responsible for assigning work to his assistants, ensuring that the runs were pulled, and ensuring that the merchandise ordered by customers was actually on the trucks for delivery. He was also responsible for the overall condition of the warehouse. Petitioner's performance deteriorated during approximately the last five months of his employment. When Petitioner got behind in the warehouse, Patterson assisted him and even hired an assistant to help Petitioner in the warehouse with inventory control and other assistance, where necessary. At the final hearing, Petitioner testified that he was discriminated against based on his race in retaliation for filing a workers' compensation claim and for disagreeing with his supervisor's instruction to put matches on a truck during a fire inspection. Petitioner was responsible for ensuring that the trucks left on time in the morning and for pulling the runs the previous afternoon. Even though an assistant was hired to help Petitioner in the warehouse at times, Petitioner refused to assign tasks to his assistant. Patterson wrote a note to Petitioner on May 1, 2002, telling Petitioner that he could not send items to the customer, NSC Northport, without matching up purchase order numbers. NCS Northport had very strict delivery requirements and would refuse delivery if Respondent did not comply with their delivery procedures. The evidence demonstrates that Patterson notified Petitioner on May 1, 2002, that Respondent's procedure with regard to NSC Northport was not followed. Although Petitioner introduced testimony that he did not write the information on the NSC Northport invoice, Patterson reasonably believed that it was Petitioner's handwriting and testified that Petitioner never informed him that he did not write the information on that invoice. Further, Marissa Moore, Petitioner's own witness, identified the handwriting as Petitioner's. When problems in the warehouse first arose, Patterson spoke with Petitioner regarding Respondent's policies and procedures for the warehouse. Patterson wrote another note to Petitioner on May 13, 2002, regarding excessive overtime and the importance of having runs pulled the previous afternoon to prevent overtime. Patterson wrote a third note to Petitioner and his assistant, Keynon Turner, on June 27, 2002, reiterating the importance of having the runs pulled in the afternoon and reminding them that the runs must be pulled by 4:00 p.m. Petitioner's explanation for the overall condition of the warehouse from May through August 2002 is not credible. Bob Purser, Sr., Respondent's chairman, CEO, and founder testified that in a conversation with Patterson, he told him that if Petitioner was unable to keep the warehouse organized, minimize the overtime, and get the trucks out on time, then they would have to get someone in the warehouse who would be able to do so. When Purser found out that incorrect merchandise was delivered to customers, he told Patterson to personally review the orders before the trucks were loaded. Purser visited the warehouse where Petitioner was employed prior to his termination and found that the warehouse was in disarray. He observed the aisles were blocked with merchandise and that the forklifts were unable to move up and down the aisles. Denis Nieves, the current warehouse supervisor for Respondent's Orlando facility, was hired on August 12, 2002, three days after Petitioner's employment was terminated. When he was hired, the warehouse was disorganized and cluttered, inventory blocked some of the aisles, the bay doors, and the exits and that it was sometimes difficult to locate inventory. It took him approximately six to eight weeks to reorganize the warehouse, unblock the aisles, put the inventory on racks, and unblock the bay doors and the exits. Respondent's Equal Employment Opportunity policy states that Respondent will provide equal employment opportunity to all qualified employees and applicants for employment regardless of race, color, sex, age, religion, national origin, handicap, marital status, and status as a disabled veteran or veterans of the Vietnam era. This policy was in effect when Petitioner was hired, and he received a copy of Respondent's employee handbook at the time of his hire, which contained the Equal Employment Opportunity policy prohibiting all types of unlawful discrimination. Petitioner knew of Respondent's Equal Employment Opportunity policy. He was aware of the procedures for mailing a complaint about racial discrimination and/or harassment. Respondent also maintained an open-door policy where employees could speak with Purser regarding any perceived problems. Petitioner was aware of this open-door policy. Other employees took advantage of Respondent's open-door policy to address their concerns with Patterson and/or Purser. Petitioner never complained to Purser about Patterson's alleged discriminatory treatment. Purser confirmed that Petitioner never addressed any concerns about race discrimination or any retaliatory actions by Patterson with him. Petitioner testified that he did not feel that he was ever discriminated against at any time during his employment with Respondent, except when Patterson terminated his employment. Although Petitioner raised various instances of perceived unfairness throughout his employment with Respondent, such as being paged to the front office and having his uniform "stripped" from him, he testified that the only point he believed he was discriminated against because of his race was when Patterson terminated his employment. Petitioner's witnesses, Ralph McDaniel and Ricky Vaughn, admitted that they never noticed any discriminatory acts or racial inequalities against anyone while they were employed with Respondent. Moore testified that she never heard any discriminatory comments about Petitioner. Andrew Mitchell testified that he never noticed any discriminatory acts during his employment with Respondent. Petitioner's only other witness, Kenyon Turner, testified that the only perceived discriminatory actions he experienced while employed at Respondent was Patterson's "getting mad and cursing [him] out every once in a while." When asked if Patterson cursed at others as well, Turner answered affirmatively stating, "[o]f course he cursed out the other people that was there," meaning all employees, regardless of race. This does not constitute evidence of racial discrimination. Purser testified that his company does not discriminate against its employees on the basis of race and Patterson testified that he did not consider Petitioner's race in making the decision to terminate his employment. Through Mitchell's testimony, Petitioner attempted to establish that he was a "good employee" and that he was a "capable and knowledgeable" warehouse supervisor, but offered no additional evidence demonstrating that he was doing a good job. The greater weight of evidence supports the fact that Patterson made the decision to terminate Petitioner's employment based on the continuing problems in the warehouse and a load factor decline of approximately 22 percent. The load factor is a percentage used to determine how many customer orders are being accurately filled. At the time of Petitioner's termination, he was earning $11.72 per hour. Petitioner testified that he did not begin looking for work until the first part of 2003. Petitioner worked sporadically for Florida Courier and that he earned approximately $11,000.00 in 2003. Petitioner did not work many hours and did not seek alternative employment during the summer months. Petitioner is also a full-time pastor, and his church pays his mortgage payment, which is approximately $1,000.00 per month. Petitioner testified that he has submitted "a couple of applications" to prospective employers, but has not really been interested in working for someone else.
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 which DENIES the Petition for Relief. DONE AND ENTERED this 19th day of January, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 19th day of January, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Alonzo C. Brown 7230 Plantain Drive Orlando, Florida 32818 Robert T. Devine, Esquire Alva L. Cross, Esquire Coffman, Coleman, Andrews & Grogan, P.A. Post Office Box 40089 Jacksonville, Florida 32203 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner, a member of a protected class, was terminated from the position of a District Manager with the Respondent on or about December 21, 1992, on the basis of his national origin (Hispanic), in violation of Section 760.10(1)(a), Florida Statutes (Supp. 1992).
Findings Of Fact Respondent, The Silent Witness, Inc., is a corporation engaged in providing worker's compensation investigative services for insurance companies. It currently employs approximately forty (40) employees. In December, 1992, it employed approximately 71 employees. Respondent is an employer under the Florida Civil Rights Act of 1992. Respondent has been in business since 1988. Bob Gott, President of Respondent, and Phil Sanford, Vice President, were owners of the Company at all times relevant to this case. At the relevant time, a company Directorate had been established for managing the day to day operations of the company. The Directorate was made up of five (5) employees, Jim Yockey, Director of Operations (Atlanta), Tom Overton, Director of Operations, Jo Branton, Director of Sales, Sheila Harold, Director of Administration, and Keith Freeman, Director of Human Resources. The Respondent has adopted and had in effect at all times pertinent, a written policy of equal employment opportunity. Respondent has employed and promoted Hispanic and African-American employees in the past. Petitioner, Juan Falcon, is an American male of Hispanic (Puerto Rican) descent. Petitioner was employed by Respondent from August 10, 1992 until December 21, 1992 as a Division Manager. Petitioner was hired a rate of pay of $500 per week and received a $100 per week raise in September, 1992. During the course of his employment, Petitioner was not reprimanded for poor performance. Petitioner was interviewed and hired into a management position (Division Manager) upon the recommendation of Keith Freeman who had known and supervised him at a previous employer, Florida Claims Bureau. During the relevant time period, there were three division managers in the Respondent's investigative division, Petitioner, Danny Laughlin and Tom Overton. Petitioner and Danny Laughlin, an African-American, reported to Tom Overton, a white male, Director of Operations, who also acted as a Division Manager. In the fall of 1992, the owners, Bob Gott and Phil Sanford, and the Directorate became concerned with problems in the Operations Department. These problems related to communications with other departments, loss of customers, and lack of follow up by the Operations Department after additional training. In December, 1992, Bob Gott came to Keith Freeman and stated to Freeman that he had found an audio tape on his desk. Gott stated that he did not know where the tape came from or who had placed it there but he had listened to it. Gott stated to Freeman that the substance of the tape was indicative of attitude problems the Petitioner and others were having and important enough to discuss at the next Directorate meeting. The tape apparently consisted of conversations between Laughlin and the Petitioner and investigators working under each of them. The conversations included debriefings of the investigators. Gott believed the tape demonstrated poor attitudes on the part of the Division Managers and investigators involved. Gott came to the Directorate meeting on December 8, 1992. He advised the Directorate that he had a tape, that he did not know where the tape came from, that he was disturbed by the contents of the tape, and that he wanted the Directorate to review the tape and take appropriate action. Gott then left the meeting. The Directorate listened to the tape and appointed Tom Overton to conduct an investigation into the problems reflected on the tape. Overton was to report back to the Directorate at the next meeting with an analysis of what he felt was wrong with the Operations Department and how to improve its operations and fix the problems. The Directorate specifically ordered Overton not to discuss the investigation with anyone other than the members of the Directorate or the owners. Overton contacted all of the employees who were on the tape, except one, and played the tape at a meeting in his home. Petitioner and Danny Laughlin, who were Division Managers, as well as Mark Jarrett and John Bagley who were investigators were present. Jarrett worked under the Petitioner and Bagley worked under Laughlin. Theresa Miller, who worked under Laughlin, was also on the tape but was not present because she was out of town. Overton told those present not to say anything about the tape and not to admit that they knew the tape existed. Gott found out that Overton had played the tape for those on it and had divulged the existence of the investigation to other people in the company. When confronted by Gott, Overton initially denied he had let his employees listen to the tape, but eventually admitted it sometime before December 21, 1992, the date when Petitioner was terminated. On or about December 17, 1992, Gott spoke briefly with the Petitioner concerning the Petitioner's knowledge about the tape and the meeting at which Overton played it. The Petitioner denied any knowledge of any tape recordings because he believed he might lose his job. Gott came to Freeman and asked him to meet with Gott and the Petitioner. Gott was concerned that the Petitioner had denied any knowledge of the tape because everyone else involved had said the Petitioner was at the meeting where Overton played the tapes. Gott was aware of Freeman's relationship with the Petitioner and wanted Freeman to meet with Gott and the Petitioner to try to alleviate the Petitioner's concerns and try to get him to honestly answer the questions. Later the same day, Freeman and Gott met with the Petitioner in Freeman's office. Freeman told the Petitioner that he had known the Petitioner for years, that he had helped bring the Petitioner into the company and that the Petitioner did not need to be concerned about his position as long as he told the truth. Freeman also told the Petitioner that if a manager had told the Petitioner to do something the Petitioner was uncomfortable with, the only person he had to be honest with was the owner of the company. The Petitioner was specifically asked if he heard the tape, if he had any knowledge of the tape, and if he was in a meeting with Overton. The Petitioner stated that he was not aware of any tape recordings made between investigators and their managers and he did not attend a meeting called by Overton. At the next meeting of the Directorate, the Directors discussed the fact that Overton had divulged the investigation and contents of the tape to outside parties and discussed it with other people besides the Directorate. Overton was not at the meeting because he had admitted this to Gott. The Directorate voted to terminate Overton for direct violation of the Directorate's orders; however, because of Overton's longevity with the Respondent it voted to offer Overton a demotion. The Directorate voted to terminate Laughlin for lack of performance. The Directorate voted to terminate the Petitioner for dishonesty. On December 21, 1992, Overton was called into the Directorate meeting and was terminated and then offered a demotion. The Petitioner was called in next and was terminated for being dishonest to an executive officer and for lack of performance. Laughlin was called in and informed of his termination. The day after Petitioner's discharge, Ed Coglin, a white investigator was promoted to the position of Division Manager at a rate of pay of $650 per week. Coglin had not passed his division manager's test at the time of his promotion. At the end of the week, Phillip Sanford, Vice President of the Respondent, called Laughlin and offered him a job in a demoted position as a senior investigator. Laughlin indicated he had had a number of other offers with other companies and declined the offer. Sanford did not contact the Petitioner to offer him a position because of his dishonesty in response to Freeman and Gott's questions about the tape. The week after their termination on December 21, 1992, Laughlin and the Petitioner filed a complaint with the Altamonte Springs Police Department concerning the tape of their conversations with their investigators. The complaint was forwarded to the State Attorney's office, which took no action. Between January, 1992 and June 1993, at least eight other employees besides the Petitioner have been terminated for poor work performance. Of those eight, two were Hispanic, five were white and one was black. Two other employees, one white and one Hispanic, were terminated for dishonesty in 1990. The Petitioner was specifically informed that he could be terminated without notice for dishonesty when he was first employed. In fact on August 10, 1992, the Petitioner signed and acknowledged the list of termination offenses. The Respondent's employee policy handbook also states that dishonesty in dealing with clients or management are grounds for immediate termination. At the time of the Petitioner's termination, two employees were promoted to Division Manager, i.e., Reginald McCutchen, black, and Ed Coughlin, white. One Division Manager position was eliminated. McCutchen was in the Atlanta office at the time. Coughlin and Overton performed the duties of Division Manager in Orlando. Respondent has employed twenty division managers since 1989. Of those twenty, seven were non-Caucasians. The longevity of the division managers is delineated below: Caucasian division managers: 5 years 2 4 years 1 3 years + 5 2 years + 2 1 year + 2 6 months 1 TOTAL 13 Non-Caucasian division managers: 2 months 1 4 months 1 1 year + 2 (Laughlin + McCutcheon who worked in Atlanta) 2 years + 2 As of October, 1994, no Hispanic investigators were working for Respondent. Petitioner claimed that Bob Gott, the Company President, was a racist and treated him discriminatorily by behaving coldly to him and never greeting him and because he was a "very cold distant type individual". Gott lacked interpersonal skills, could be moody, had an abrasive personality, and often spoke abruptly to other employees both Hispanic and non-Hispanic. The evidence failed to show that Gott had a "racist" attitude toward Hispanics. The Petitioner claims he was treated differently than similarly situated non-Hispanic employees when he was terminated. The Petitioner failed to present sufficient evidence to show that he was terminated on the basis of his national origin (Puerto Rican). As of Tuesday, December 22, 1992, the date of Petitioner's discharge, he was earning $600 per week. As of the date of the Division of Administrative Hearing's hearing Petitioner had accrued 94 weeks of back pay at the rate of $600. per week. Following his discharge, Petitioner earned $14,897 in 1993 and he had earned $10,598 as of the date of the Division of Administrative Hearing's hearing on October 11, 1994. Thus, the information shows the following: INCOME AT SILENT WITNESS 94 x 600 = 55,200.00 INCOME ACTUALLY EARNED SINCE DISCHARGE: 1993 14,897 1994 10,598 25,495.00 TOTAL LOST INCOME 29,705.00
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 which DENIES the Petition for Relief. DONE AND ENTERED this 17th day of March, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 17th day of March, 1995. APPENDIX The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact: Accepted in substance: p.1, paragraph A.1 (in part); p.2, paragraphs 1, 2, 3; p. 3, B2; p.4, paragraph C.1 (in part); p.5, paragraph C.2.2; p.5, paragraph C.2.3. (in part); p.6, C.2.4.; p.6, C.2.5 (in part); p.7, D.1, D.2. Rejected as contained in the Preliminary Statement: p.1, paragraph A.1 (in part); p.5, paragraph C.2.1, or subsumed. Rejected as a argument on comment on the evidence and irrelevant and immaterial: p.3, paragraph B.1.; p.4, paragraph B.4, C.1 (in part); p.6, C.2.6. Rejected as against the greater weight of evidence or hearsay: p.4, C.1 (in part); p.5, paragraph C.2.3. (in part); p.6., C.2.5 (in part). Respondent's proposed findings of fact: Accepted in substance: paragraphs 1, 2, 3, 4 (in part), 5, 6, 7, 8, 9, 10 (in part), 11, 12, 13 (p.4), 13 (p.5), 14, 15, 16, 17, 18, 19, 20, 21, 22, 23. Paragraphs rejected as argument or a comment on the evidence and irrelevant and immaterial: Paragraphs 4 (in part), 10 (in part). COPIES FURNISHED: Carol Swanson, Esquire 801 N. Magnolia Avenue Ste 302 Orlando, Florida 32803 Dorothy F. Green, Esquire Richeson & Brown, P.A. Post Office Box 3006 Orlando, Florida 32802 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent committed the unlawful employment discrimination practices alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact Petitioner is an African-American male. At all times pertinent to this case, Petitioner was employed by Respondent as an equipment operator in the golf course maintenance department. Respondent has been employed by Respondent for approximately 20 years. Respondent is a golf and country club.1/ Respondent's employment policies are contained in its "Employee Handbook."2/ The Employee Handbook provides that a "[v]iolation of any of the rules or policies set forth in this Handbook may lead to discipline, up to and including immediate discharge." Respondent's Employee Handbook contains a section on absenteeism and tardiness, which provides in pertinent part as follows: Excessive absenteeism or tardiness can result in discipline up to and including discharge. If you are going to be late or absent from work for any reason, you must personally notify your Supervisor as far in advance as possible (but no later than 2 hours before your scheduled start time) so proper arrangements can be made to handle your work during your absence. Of course, some situations may arise in which prior notice cannot be given. In those cases we expect you to notify your Supervisor as soon as possible. Leaving a message, sending a text, or having someone else call on your behalf, does not qualify as notifying your Supervisor- you must personally contact your Supervisor. If you are required to leave work early, you must also personally contact your Supervisor and obtain his/her permission. Absences of more than one day should be reported daily, unless you have made other arrangements with your Supervisor or the Human Resources Office. (emphasis in original). * * * Although an employee may be terminated at any time for failing to report to work without contacting the Club, if an employee fails to report for work or call in for three (3) consecutive calendar days they will be considered to have abandoned their job and will be terminated. Respondent's Employee Handbook also contains a provision concerning workplace violence. Employees are notified that, "[v]iolations of this policy may result in disciplinary action, up to and including termination of employment." The workplace violence policy provides in pertinent part: The Club has a zero tolerance policy regarding violent acts or threats of violence against our employees, applicants, members, vendors, or other third parties. We do not allow fighting or threatening words or conduct. We also do not allow the possession of weapons of any kind on the Club's premises, except as required by law. No employee should commit or threaten to commit any violent act against a co-worker, applicant, member, vendor, or other third party. This includes discussions of the use of the dangerous weapons, even in a joking manner. May 3, 2013, Incident On May 3, 2013, Petitioner was not at work, but rather, performing work for a resident in the community. Petitioner's vehicle was apparently parked on the wrong side of the road. Mike Jones, a security guard, advised Petitioner to move his vehicle or he was going to receive a ticket. Petitioner informed Mr. Jones that he was not going to receive a ticket, and followed Mr. Jones back to the guard gate. Thereafter, Petitioner and Mr. Jones became engaged in "some words." According to Petitioner, after the verbal altercation he left the guard gate. On May 4, 2013, Petitioner presented to work and performed his duties. The following day, May 5, 2013, Petitioner was arrested for the May 3, 2013, incident and charged with battery on a security officer. Petitioner testified that the arrest occurred in Mike Ballard's office.3/ Mr. Ballard was Petitioner's superintendent at some point in his employment. Beth Sandham, Respondent's Human Resources Director, was not present at the time of arrest. Petitioner remained in custody throughout May 6, 2013. When Petitioner did not appear for work on May 6, 2013, Ms. Sandham credibly testified that the Human Resources department, as well as his supervisors, attempted to contact Petitioner. After several attempts to reach him by phone, Respondent sent a letter to Petitioner via Federal Express.4/ Petitioner testified that he contacted his supervisor on May 6, 2013, and was advised that he had been terminated. Petitioner contends that his termination was racial in origin because Respondent did not obtain his account of the altercation prior to his termination. On this point, Petitioner testified as follows: That why I say this is a racist thing because they listen to what their two security guards say, but they never gave me the chance to explain myself. On May 6, 2013, Ms. Sandham terminated Petitioner's employment on the grounds of failing to report to work and the alleged violent behavior. As an additional basis for alleging racial discrimination, Petitioner testified that Mike Ballard was a racist. Specifically, Petitioner testified that on one occasion he overheard Mr. Ballard advise another employee, Jeff Beneclas, to "[t]ell that nigger mind his own f***en business." Petitioner explained that Mr. Ballard was referring to him. Mr. Beneclas was terminated on June 25, 2010. Addressing this allegation, Ms. Sandham explained that, if the alleged statement had been made over Respondent's radio system, said statement would have been heard by the tennis department, the golf professionals, facilities maintenance, the superintendents, and golf course maintenance. Ms. Sandham credibly testified that neither Petitioner nor any other employee notified her of such a statement or made a complaint. Additionally, Ms. Sandham credibly testified that Petitioner never made a complaint to her regarding Mr. Ballard.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief against Wycliffe Golf and Country Club. DONE AND ENTERED this 16th day of April, 2015, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2015.
