The Issue Whether Petitioner, a member of a protected class, was terminated from his position as a delivery person with the Respondent on or about September 28, 1991, on the basis of his race (Black), in violation of Section 760.10(1)(a), Florida Statutes (1991).
Findings Of Fact The Respondent, Portion-Trol Foods, Inc., d/b/a Mother Butler Pies, is in the business of manufacturing and delivering pies to Denny's Restaurants, and is an employer under the Florida Human Relations Act of 1977, as amended. Petitioner, a black male, was hired by Respondent on June 26, 1990. Petitioner was employed by Respondent as a delivery person, whose primary duty was delivering Respondent's pies to restaurants throughout the Central Florida area, which he did in 1990 and 1991. Petitioner's direct supervisor was Percival Gordon, a black male. Petitioner, like all other employees working under direct supervision, had been informed on several occasions regarding how to properly work and interact with restaurant personnel when delivering pies to the restaurants. Petitioner displayed no patience while interacting with restaurant personnel when he delivered pies. Beginning in early 1991, Petitioner began to act rudely and abrasively toward restaurant personnel with which he interacted when delivering pies to their restaurants. This improper conduct by Petitioner included being very loud and verbal in front of restaurant customers. He offended a restaurant hostess, a restaurant unit aide, and restaurant managers with his objectionable agressive behavior. He spoke rudely to everybody, and used profanity toward restaurant managers while in the restaurants. On one occasion he removed pies from a restaurant cursing, and destroyed customer pies by placing the pies on top of another in the hands of a restaurant cook. Petitioner's supervisor gave him verbal reprimands regarding his conduct in April and May, 1991. As supervisor of delivery persons, it was a job duty to routinely visit the restaurants to which the delivery persons he supervised delivered pies. During these visits Petitioner's supervisor would talk to the restaurant manager and other restaurant personnel in an effort to obtain feedback regarding the job performance of the delivery persons over which he had supervision. On June 5, 1991, Petitioner's supervisor visited two restaurants as part of his job duties. During these visits, management personnel of the restaurants approached Petitioner's supervisor, and voiced a complaint regarding Petitioner and a specific incident where Petitioner had delivered the wrong pies to each of the restaurants, and Petitioner's response to them. Petitioner's response was abusive and inappropriate in both instances. Both management persons told Petitioner's supervisor that due to Petitioner's inappropriate conduct, they did not want to see him back in their restaurant anymore. After being informed of these two most recent acts of improper conduct by Petitioner toward those individuals to whom he delivered pies, Petitioner was issued a written counseling review on June 8, 1991, which summarized the facts regarding these incidents of improper conduct. In this written counseling review, it was explained to Petitioner that he had already been issued several verbal warnings regarding his negative attitude and use of abusive, profane language toward restaurant personnel with which he interacted. Petitioner was warned that if such an incident occurred again, further disciplinary action would be taken against Petitioner. Respondent's Bakery Plant Manager reviewed the counseling review form issued to Petitioner, and prepared a memorandum which he gave to Petitioner. In this memorandum, it was reiterated to Petitioner that if there were "any further occurrences [sic] of the type of poor behavior described that it will result in further disciplinary action up to and including termination. You need to understand that this is very serious, and up to you to correct immediately." Despite the above-mentioned warnings from his supervisor, Petitioner continued to conduct himself inappropriately when interacting with restaurant personnel to whom he delivered pies. In September 1991, Petitioner engaged in another act of improper conduct. On this occasion Petitioner was delivering pies to a restaurant in Apopka, Florida. On this occasion, Petitioner first spoke with a cook on duty at the time. Petitioner told the cook that he had permission from Respondent's main office "to destroy or get rid of pies out of the case that don't [sic] supposed to be there." Petitioner did not at any time during his employment with Respondent have permission from Respondent's main office to remove customer's pies from restaurants and throw them away. Petitioner began to remove the customer's pies from the restaurant and stack them one on top of the other, into the hands of the cook. Petitioner then took the pies out of the cook's hands and put them in a tub used for bussing the tables of the restaurant. After verifying the incident, the General Manager spoke with Petitioner via telephone about the incident. During the conversation Petitioner got angry with the manager, and slammed down the phone. After receiving a report regarding this most recent incident, Petitioner's supervisor went to the restaurant in Apopka, and conducted a complete investigation into what took place. The supervisor and the Baker Plant Manager evaluated this most recent incident of improper conduct by the Petitioner, in light of his prior employment history with Respondent, and decided to terminate Petitioner based upon his continued improper conduct. Their decision was based upon the fact that Petitioner had received numerous warnings regarding his inappropriate conduct, and had failed to respond in a positive manner to any of these warnings. Petitioner offered only three unsubstantiated allegations as to why he believed he was terminated based upon his race. First, Petitioner alleged that when white delivery drivers employed by Respondent delivered pies to various restaurants, restaurant personnel would not make them wait as long as they would make him wait. However, Petitioner admitted that the restaurant managers and personnel, who he claimed kept him waiting longer than other white drivers, were not the managers of Respondent, Mother Butler Pies, but rather of Denny's Restaurants. Second, Petitioner alleged that he believed that he was terminated by Respondent based upon his race, because he was issued shirts with different people's names on it, which his wife had to stitch his name onto for identification purposes. Third, Petitioner claimed that he believed he was terminated based on his race due to an alleged incident in which a restaurant manager started a fight with Petitioner and subsequently Respondent did not want Petitioner "to go into the store to make a delivery because he [the restaurant manager] was having a problem with the employee. He [the restaurant manager] took it out on me". Petitioner admitted that the restaurant management personnel with whom he had problems were not the managers of Respondent, Mother Butler Pies. Petitioner offered testimony concerning his damages.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued which DENIES the Petition for Relief. DONE AND ENTERED this 12th day of October, 1993, 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 12th day of October, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-0320 The following constitutes 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: Petitioner did not submit proposed findings of fact. Proposed Findings of Fact Submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3, 8(in part), 11, 12, 14, 15, 16, 18, 19(in part), 21, 22, 24, 25 Rejected as irrelevant, immaterial or a comment on the evidence: paragraphs 4, 5, 6, 7, 8(in part), 9, 10, 13, 17, 19(in part), 20, 23 COPIES FURNISHED: Veerasammy Mangali (pro se) 5642 Pendleton Drive Orlando, Florida 32839 William Curphey, Esquire 205 Brush Street Tampa, Florida 33601 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether the Respondent committed the following acts on Ellenton Shoney's construction project: Aiding and abetting a person engaged in the unregistered and uncertified practice of contracting. Obtaining a permit for construction in which he took no part. Using his license to illegally associate with an unlicensed contractor.
Findings Of Fact At all times material to these proceedings, Respondent, Samuel E. Whitener, was licensed as a certified general contractor in Florida, and held license number CG C024909. His qualifying status is that of an individual, and the business address is 13502 Greenleaf Drive, Tampa, Florida 33612. On December 9, 1987, the Respondent contracted with Restaurant Management Services, Inc., a Georgia corporation, to manage a construction project known as Shoney's in Ellenton, Florida. Respondent was awarded the contract once it was determined that he had submitted the lowest bid for the job. This contract was the written restatement of an oral agreement entered into by the parties on December 4, 1987. Pursuant to the contract terms, Respondent was to substantially complete the partially completed project within four weeks from the restart of the job. His management fee of $4,000.00 was to be paid upon completion of his contract. The reason the job had to be restarted was that Stop Work Order number 1055 had been issued by the Manatee County Building Official on December 3, 1987 because a properly qualified Florida licensed contractor was not on the permit documents previously submitted to the county. At the time the stop work order was issued, the project was seventy- five percent complete. All of the subcontractors were in place, and the project manager retained by the owner was still with the project. The Shoney's restaurant being built at this location was based upon a design and plans created by the architect Steven Cooper. This was a "cookie cutter" project in that the project manager and a majority of the subcontractors had built Shoney's restaurants from the same plans at various locations throughout Florida and the Southeast. The project manager and the subcontractors went from location to location, and built the restaurants wherever the owner, Restaurant Management Services, Inc., scheduled such construction. In keeping with the corporate plan to locate these restaurants in certain locales by certain target dates, the subcontractors and the project manager were paid by the corporation instead of the contractor. When Respondent entered into the contract with Restaurant Management Services, Inc., he was aware that the funds for supplies and services on the project were to be managed by the owner. Respondent likened the contract to those traditionally made with school boards and hospitals. In Florida, these particular entities hire a contractor, but they like to maintain control of the funds themselves. However, as part of the cost management of the project, the contract specifically required that Respondent, Samuel E. Whitener, approve all related costs prior to payment by the owner. He also had authority to determine the value of the subcontractor's work on the site. It was agreed that Respondent would visit the jobsite twice weekly, and he would be on call during normal working hours. He would meet with building officials when needed. Values of work or code interpretation would be his sole responsibility, and the job superintendent had to be qualified and approved by Respondent Whitener. If he were unable to work with the job superintendent provided, a replacement would be made by Respondent. During the time period between December 4, 1987 and the completion of the project, the Respondent took responsibility for the work performed at the site and fulfilled his obligations of contract. As agreed, he was paid upon completion of the job. The Respondent was not paid $4,000 by Fred Pringle to obtain the permit. He was paid $4,000 to manage the remaining twenty-five percent of the project, which he did. After his personal interview of the project manager, and upon review of his work during the project, the Respondent decided to allow the same project manager to continue with his work on this project. No conflicts occurred on the job involving Respondent's authority or the quality of construction undertaken by the subcontractors or the project manager. Testimony from one subcontractor at hearing revealed that Respondent exercised his authority as the general contractor to reject some clay materials brought to the site that he determined were unacceptable for its intended use.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Respondent be found not guilty of having violated Sections 489.129(1)(e), (f) and (m), as alleged in Counts I, II and II of the Amended Administrative Complaint filed August 14, 1990, and modified without objection on December 14, 1990. DONE and ENTERED this 28th day of February, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 28th day of February, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-5657 Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO number 1. Accepted. Accepted. See HO number 4. Reject the first sentence. Contrary to fact. See HO number 2. Accept the rest of the paragraph. Reject the first sentence. Contrary to fact. See HO number 3, number 11 and number 12. Accept second sentence. See HO number 8. Reject the rest. Contrary to fact. See HO number 5 - number 15. Accept the first sentence. Reject the second sentence. Contrary to fact. See HO number 10, number 11, number 13 - number 15. Reject the third sentence. Contrary to fact. See HO number 7. Reject the fourth sentence. Contrary to fact. See HO number 10. Accept the last sentence. Respondent's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO number 1. Accepted. See HO number 2, number 5, number 8, number 9, number 10. Accepted. See HO number 11 - number 15. Rejected. Irrelevant. Accepted. See HO number 11 and number 12. Accepted. Accept that Respondent was unaware of an entity known as Quality Construction. See HO number 8. The rest of the paragraph is rejected as irrelevant. COPIES FURNISHED: Robert B. Jurand, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Brian A. Burden, Esquire Post Office Box 2893 Tampa, Florida 33601 Daniel O'Brien, Executive Director Construction Industry Licensing Board 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Jack McCray, Esquire General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this hearing is whether Petitioner was discriminated against by Respondent in employment through sexual harassment; because of her age, sex, marital status, and handicap; and in retaliation for complaints made by her against management.
Findings Of Fact 1. At the time in issue, the facility in question in this hearing was owned by HP Tampa, LC (HP Tampa) and was operated by Mr. James Rogers under a contract with his management company. After Mr. Rogers' contract was terminated, the facility was operated by Cornerstone Hospitality Group Cornerstone. Management 's duties included employee relations. As manager, Mr. Rogers had almost free rein to hire and fire and was responsible for employee policies. HP Tampa did not oversee these details. 2. Petitioner had been employed at the Respondent's property in Tampa for approximately 18 years when she was terminated on November 27, 1995. During the period of her employment, Petitioner was recognized at least once as employee of the year and was asked to take over management of the facility's bar, which she initially refused because she had several children to raise. Finally, after six years, she took the position and served as manager of the hotel bar, the Silver Dollar Saloon, for the last 12 of the 18 years she worked there. Petitioner contends she worked without any problems until Mr. Lloyd was hired in April 1995, and asserts she has never filed a discrimination complaint against any employer until this one. 3, Mr. Lloyd was hired as comptroller at the facility in April 1995. It was announced that his job was to get control of the audits of the operation, and he was to work with the Petitioner to implement controls to reduce costs in the lounge. Petitioner understood, however, that she was to continue to report directly to the Manager, Mr. Rogers, and that she was on a parallel level of authority to Mr. Lloyd. 4. Petitioner alleges that during June and July 1995, Mr. Lloyd began making sexually oriented comments to her. He mentioned her breasts -- jokingly, she believed because she was so slim at the time and had small breasts. Petitioner was not amused by Mr. Lloyd's attempts at humor and complained to him directly. 5. Petitioner also claims that Mr. Lloyd began to drink More and more while on the job. On one occasion, she contends, he came into the liquor room while she was there and grabbed her from the back. She resisted and, afterwards, complained to Mr. Rogers and his assistant both orally and in writing. She received no feedback. 6. According to Petitioner, sometime during either July or August 1995, Mr. Lloyd called her into his office to go over the bar's operating figures. After a period of business conversation, Mr. Lloyd reportedly stated it was a shame she was married. Petitioner demurred to that comment, and when she got up to leave, she claims Mr. Lloyd grabbed her and kissed her. When she slapped him in response, he replied that he always got what he wanted. After this incident, Petitioner wrote another memo to Mr. Rogers and asked to see him. He finally did see her quite a while later, she claims, but treated the incident lightly. She wanted him to speak to Mr. Lloyd with her because she was uneasy working with him, but this did not happen. 7. On another occasion, when she was supposed to go to Las Vegas with her husband, she gave up her trip to work, letting her husband go by himself. While her husband was gone, she contends, Mr. Lloyd asked her to meet him at an off-premises location, a request which she refused. At this point, she also told him what she thought of him. She also claims he had touched her on two. occasions, which resulted in a heated argument between them. 8. On November 3, 1995, an employee of the bar came to Ms. Cremeens and advised her that Mr. Lloyd had said that she, the reporter, and another employee would be terminated. Ms. Cremeens confronted Mr. Lloyd and asked him by what right he had told employees under her supervision they would be terminated. Mr. Lloyd became loud and threatening, which scared Ms. Cremeens. She immediately tried to call Mr. Rogers, but he was out of town. As a result, she left messages for Mr. Rogers and his assistant that she wanted to see them as soon as possible. 9. Ms. Cremeens finally got to talk with Mr. Rogers with his assistant present and told him how frightened of Mr. Lloyd she was. She told Mr. Rogers she would try to get a restraining order against Mr. Lloyd and at that point, Mr. Rogers told her he would talk to Mr. Lloyd and get back to her. Mr. Rogers did not do so, however, until he found out that Mr: Cremeens' husband had tried to call mr. Morris, Mr. Rogers' boss. Ms. Cremeens also told Mr. Rogers she would talk to Mr. Morris about what was going on even if it cost her her job. 10. Some time thereafter, Ms. Cremeens was called in and terminated. She was told at the time her termination was necessitated because of a drop in business and because, due to the effect on the working atmosphere caused by the dissention between her and Mr. Lloyd, one of them had to go. At that time, Mr. Rogers told Ms. Cremeens that she would receive four weeks vacation pay, but she never got it. Her termination threw her into a state of shock as a result of which she became extremely depressed and cut herself off from family and friends. She claims she has never been right since. The irony of this situation, she contends, is the fact that in January 1995, she was offered a job at the High Point Resort. At that time, Mr. Rogers came to her and begged her not to leave because she was doing such an excellent job. If this is the case, she queries, why was she let go for cause less than a year later? 11. Ms. Cremeens has sought other employment since her termination and worked part time as a waitress and bartender. However, she was let go after a short while because of mutual dissatisfaction. She claims she has never been able to bring herself back to the status she occupied while manager of the bar at the Days Inn. She has been to counseling in an effort to help herself, but she finally realized that the only way to get this trauma out of her system was to file her complaint. As it is, it has taken four years for the state to reach a determination of cause. Much of this time, she believes, was due to the failure of the Respondent to provide the information required by the Commission. 12. The Respondent sought to make much of the fact that Ms. Cremeens has been married four times and filed bankruptcy with her third husband in 1993. Her fourth husband filed bankruptcy in 1999, but she was not a party to that action. Neither her multiple marriages nor her bankruptcy have been shown to have any bearing on the instant issue, however, and are disregarded. 13. Petitioner admits, however, to having failed to report all tips she received when she manned the service bar from time to time. The facility had a requirement that all bar employees report tips for consolidation and sharing and contends Petitioner's failure to do this is identified as a basis for her termination. 14. Mr. Rogers was manager of the facility in question during the entire time in question. He contends that the basis for Petitioner's termination was a continuing decline in the profitability of the bar operation under her Management from a significant profit in 1991 to a loss of $1,048 in 1995. Ms. Cremeens was already working as bar Manager at the hotel when Mr. Rogers began overall management. The Silver Dollar was a local bar primarily for local people which was also used by hotel patrons. The bands, which Played in the evening, were mostly country and western. 15. As general manager, Mr. Rogers had as Support staff an assistant Manager, a comptroller, a beverage/lounge Manager (Ms. Cremeens), a restaurant manager, an executive housekeeper, a chief engineer, and a director of sales and marketing. Each of those department heads had a staff. The department heads were Salaried, but the Majority of the employees were hourly employees. 16. Petitioner was the only salaried lounge employee. Her staff included bartenders, Servers, and bar backs, who were hourly employees and also received tips. Tips were to be reported to the comptroller for tax purposes, and, though Petitioner was a salaried employee, she also received tips which should have been reported. As was noted previously, Petitioner admitted she did not always do this. The band was contracted for and band members were not hotel employees. 17. Because of a downturn in revenues and profits over the years starting in 1990, cutbacks in all departments (not just the lounge) were Mandated by a memorandum dated December 20, 1993, Mr. Lloyd was hired as comptroller by mr. Rogers sometime in 1995 because profits at the hotel, including the lounge, were declining so rapidly a real potential for closure of the hotel existed. Mr. Lloyd had a degree in auditing and was a Certified Public Accountant who had experience in hotel and restaurant Management. 18. Revenues in all departments of the hotel were declining, but not as badly as in the lounge upon which revenues management relied for a large portion of the cash flow. The lounge had previously been a "cash cow" for many years, and when the revenues declined, the hotel's owners started putting pressure on Mr. Rogers. His job was at stake, and since he was paid a portion of profits, so was his income. 19. Historically, the lounge manager had the authority to hire and fire employees, to schedule employee work hours, to supervise employees and bartending, to hire all bands and entertainment, to purchase all liquor and bar supplies, to prepare for all inspections, to provide for bar security, and to insure harmonious guest relations. 20. Petitioner, as lounge manager, had total responsibility for the lounge operation, including financial responsibility for that profit center, and to insure the facility operated within budget constraints for entertainment, advertising, and drinks. She was to report to Mr. Lloyd as comptroller on accounting matters, and Mr. Rogers asked Mr. Lloyd to work with Petitioner to bring lounge expenses under control and to increase sales. According to Mr. Rogers such a relationship is common in the industry. 21. At the time Mr. Rogers hired Mr. Lloyd, he claims he had some personal concerns about the hotel operation. Because of declining sales and profits, particularly in the lounge, and as the result of the negative reports of comparison shoppers, he wanted the lounge operation looked at with regard to service levels (were servers attentive and courteous?), portion control, and accounting for sales to tell him how the customers were being served. He also claims he had heard complaints of rudeness and lack of courtesy by employees, and most of these reports had been passed on to Petitioner. Though they had had an open communication for nine years, he found that usually on negative reports Petitioner denied the problem or became defensive. 22. Nonetheless, Mr. Rogers instructed Mr. Lloyd to work with Petitioner and come up with proposed controls in the bar to decrease expenses. Mr. Lloyd came up with the controls and he and Mr. Rogers met with Petitioner about them. Some of Mr. Lloyd's proposals were not acceptable to Petitioner. One of these was the proposal to close the service bar, which was where Petitioner often worked and from which she derived tips. Mr. Lloyd wanted to close it because of the inability to control what went on there. The proposals were put into effect, but even so, there was little improvement in the operation. Mr. Lloyd wrote a memorandum to Mr. Rogers to this effect on November 1, 1995, and sometime after receiving it, Mr. Rogers made, he 10 claims, a business decision to terminate Petitioner for her failure to perform adequately and to implement proposed internal controls and increase profits. 23. According to Mr. Rogers, Petitioner assumed a proprietary interest in the lounge operation. She had built up profits during the late 1980's and the early 1990's, but from 1993 on, business dropped. He claims he gave her five years to turn the operation around and make it profitable again, but she failed to do so, and he considered letting her go even before Mr. Lloyd was hired. In addition, her salary as bar manager was based on her prior performance, and she was not performing up to that level. Therefore, he believed he could save money by terminating her and having a bartender do the work. After Petitioner was terminated, another bar manager was not hired. Instead, one of the bartenders was promoted to head bartender, with a slight hourly wage increase, and was assigned some of Petitioner's former duties. 24. Concerning the complaints allegedly made by Ms. Cremeens regarding sexual harassment by Mr. Lloyd, Mr. Rogers contends he never received any complaints from her about it or reports from Petitioner or anyone else that Mr. Lloyd was harassing her or had asked her out. He admits that she complained to him that she was afraid of Mr. Lloyd because of an incident which occurred in the kitchen. On the whole, there is insufficient evidence to support finding that Ms. Cremeens 11 complained to Mr. Rogers about Mr. Lloyd sexually harassing her, and it is so found. on the other hand, there is sample evidence that she complained to Mr. Rogers about Mr. Lloyd's rudeness, threats, and verbal abuse, but these do not constitute actionable misconduct in this forum. 25. With regard to the kitchen incident, both Petitioner and Mr. Lloyd came to mr. Rogers upset with each other. As he’ recalls, Petitioner came to see him first contending that she and Mr. Lloyd had had an argument and she was afraid of him due to his size and his temper. At the time, Mr. Rogers asked her if Mr. Lloyd had touched her and she said no. She indicated that Mr. Lloyd had started the altercation, but she admitted she took part. Mr. Rogers claims he took care of the incident, but apparently not to Petitioner's satisfaction. 26. It appeared to Mr. Rogers that Petitioner felt she owned the bar and could ignore instructions she didn't like. He recalls she complained about Mr. Lloyd constantly for various things, but he cannot recall it ever being for harassment or assault. In each case he claims he looked into her complaints and could not find any misdeeds by Mr. Lloyd. It was evident to Mr. Rogers that Petitioner wanted Mr. Lloyd out of the bar which she apparently felt was her territory. However, he also received complaints about Mr. Lloyd from the director of sales and Marketing and from his own son, who has a learning disability. Both indicated that mr. Lloyd yelled at them and was abrupt, but 12 neither complaint was of a sexual nature. Mr. Rogers received a total of four complaints about Mr. Lloyd, for each of which Mr. Lloyd was reprimanded. 27. Kristi Carroll, formerly administrative assistant to Mr. Rogers when he was manager of the Days Inn, worked there at the same time Mr. Lloyd did. At no time did she ever see Mr. Lloyd engage in any sexual misconduct on duty, nor did she ever hear any complaints of such even from Petitioner. She knows of no sexual advances by Mr. Lloyd to any hotel employee. There is evidence to the contrary, however. 28. When Mr. Rogers left the management of the hotel in early 1997, he claims he was not aware of Petitioner's complaint and was not made aware of it until January 2001. Petitioner worked under his supervision for approximately nine years and was equal to Mr. Lloyd in the chain of command. He considers the two memoranda which Mr. Lloyd wrote concerning her performance to be warnings to her but neither was placed in her personnel record after she signed acknowledgement of it. , . 29. Mr. Rogers admits that during the time in issue, 1991 through 1995, room income and beverage income both dropped radically. He includes in the reasons therefor in the bar area as being increased competition; the cessation of band entertainment, a decision of his; a lack of air conditioning; and crime in the immediate area. All these factors contributed to a reduction in patronage, but he considers Petitioner's performance 13 to be the Major cause. In 1994, due to a decline in restaurant business, mr. Rogers considered Closing the restaurant and making the whole area a lounge however, he did not do so. 30. Ms. Carroll, while assistant general manager during 1995, looked into the causes of the lower hotel and lounge revenues, which had declined from good levels in 1993 and 1994, Her investigation showed that increased competition from new Ybor City clubs substantially impacted revenue in the Silver Dollar. Ms. Carroll immediately noticed tension between Mr. Lloyd and the Petitioner due to Mr. Lloyd's new Procedures and his interference with Petitioner's authority. He was given input into areas wherein Petitioner had previously had free reign, and this was obviously difficult for Petitioner to accept. 31. Mr. Rogers ultimately concluded that Petitioner might have to be terminated, When it finally occurred, Petitioner's removal was based on a financial decision that a lounge Manager was not needed. After a thorough review of lounge advertising, entertainment, the need for a back bar, and the size of the staff, it was deemed beneficial to replace the salaried Manager position with a current bartender paid hourly. ms. Carroll admits that management knew the decline in income in the bar was not due solely to Petitioner's Management. There was a definite increase in competition, and Petitioner's being laid off was a cost cutting decision. 32. At the time of Petitioner's removal, neither 14 Ms. Carroll nor mr. Rogers knew of Petitioner's complaint nor diq Petitioner's age play any part in the decision. Ms. Carroll 33. Ms. Carroll was present when Petitioner was terminated Mr. Rogers about vacation time. She cannot recall the Particulars of the discussion, however, but it is found that Petitioner was promised four weeks vacation time for which she was not compensated. 34. Ms. Carroll also substantiates Petitioner's claim that Mr. Lloyd was argumentative and abusive in his work relations with subordinate employees. She knew there was tension between Petitioner and mr. Lloyd and that Petitioner complained to Mr. Rogers, but she cannot recall the specific complaints. She is of the Opinion that mr. Lloyd had a temper and is aware that Mr. Lloyd had altercations with several staff members. Notwithstanding all the bad language between Petitioner and Mr. Lloyd, Ms. Carroll cannot recall ever hearing Petitioner use foul language or curse customers. 35. Several employees of the lounge were aware of the conduct of both Petitioner and mr. Lloyd. Several claimed Mr. Lloyd was loud and abusive in language to employees. Several i5 recalled he made a Sexually oriented comment regarding at least one female employee. Further it is clear that Mr. Lloyd dated at least two female employees of the lounge, one of whom was made head bartender when Petitioner was terminated. 36. On the other hand, while at least one employee described Petitioner as seductive and flirtatious, the majority claimed otherwise, and while her detractors described her as loud and abusive, the Majority of her employees did not. At no time did any of the lounge employees, save those aligned with Mr. Lloyd, describe Petitioner as having lost interest in the lounge operation before she was terminated. 37. According to Sadie Strickland, a long-time co-worker of Petitioner in the lounge, Mr. Lloyd would talk to lounge employees about Petitioner and her performance and he espoused opinions and suggestions which he wanted implemented in the bar without seeking or obtaining Petitioner's participation. Nevertheless, Petitioner remained supportive. When on one occasion Ms. Strickland threatened to quit because of problems with Anna-Marie Genco, another lounge employee, Petitioner talked Anna-Marie out of it. Petitioner was, in her opinion, a good employer/manager who gave her best without any support from upper Management. Rather than help, Mr. Rogers took away the bar's advertising budget and refused to act on Petitioner's suggestions. 38. To be sure, there was tension between Petitioner and 16 Mr. Lloyd and between Petitioner and some other lounge employees. For example, on November 8, 1995, Petitioner is alleged to have called in Ms. Carla Genco and her sister, Anna-Marie, and yelled at them because of their refusal to talk to Ms. Strickland. on that occasion, Petitioner is alleged to have said she'd like to stomp Anna-Marie's "f---ing butt." As a result, Ms. Genco prepared a letter to Mr. Rogers recounting the incident. Ms. Genco does not know what, if any, action was taken, but she enjoyed working at the hotel because both Mr. Lloyd and Mr. Rogers were good to her. 39. Mr. Lloyd's account of the situation differs substantially from that of the Petitioner. When he first started working at the hotel as comptroller, he was instructed to initiate internal controls in several areas, one of which was the bar. Before doing anything, he analyzed the situation for about two and a half months and came up with proposals which he coordinated with Mr. Rogers. 40. Mr. Lloyd found a lack in internal controls. Bar stock was not being maintained appropriately, inventory was too high, requisitions were not being done on a regular basis, bar tabs were not being rung up timely, and guest checks were not being accounted for. He also felt there was not enough business to justify keeping the service bar open. Labor costs were too high relating to sales, and costs were higher than industry standards due to the pouring of too many free drinks. 17 41. Mr. Lloyd gave a copy of his analysis to both Mr. Rogers and the Petitioner, and discussed his analysis with Ms. Cremeens. Her reaction to the memo was that she would try to comply with the suggestions. Somewhat later, in November 1995, Mr. Lloyd prepared a follow-up memorandum, which he gave to Mr. Rogers and which pointed out those suggestions which were not being followed by Petitioner and identified additional deficiencies for review. The memo identified a continuing problem with free drinks; a failure to ring up sales at the time of sale; a failure to monitor promotion drinks; a failure to properly punch time cards; and a failure to properly declare tips. 42. Mr. Lloyd's analysis of Petitioner's performance indicated to him that she had lost interest in her job. This conclusion was based on his determination that she had failed to provide relevant cost information as required; failed to be on site for an appropriate time on busy nights; and demonstrated a temper and used foul language at inappropriate times. He observed some instances wherein Petitioner would get mad at people working behind the bar and would start yelling and swearing at them. Other similar instances were reported to him. This is not supported by the majority of lounge employees, however. 43. When Petitioner was terminated in November, 1995, she 18 was not replaced with a salaried bar manager. Instead a position was developed as head bartender for operations, and Mr. Lloyd assumed responsibility for inventory and cash payments. Anna Genko was promoted to head bartender on an hourly wage basis as a joint decision of Mr. Rogers, the assistant Manager, and Mr. Lloyd. According to Mr. Lloyd, there was no immediate change in profitability as a result of these changes, but over the succeeding year, there was a considerable increase which he claims was due to the implementation of innovations designed to attract customers. 44. Mr. Lloyd contends that Petitioner's age had nothing to do with her termination. He repeatedly asserted that the decision to terminate Petitioner was based on her performance. He claims to have discussed the problem areas with her and explained her weaknesses. However, he contends, she failed to modify her performance to comply with the directives of management. 45. Mr. Lloyd also denies having sexually harassed the Petitioner. He denies having suggested she meet him at another place while her husband was out of town. He denies having ever touched her or kissed her. He denies having told her he gets what he wants, and he denies ever having made a comment to her about her breasts. He also denies drinking on the property though the evidence indicates he did. Mr. Lloyd had a very selective memory at the hearing, however, he does admit to having 19 a temper and to having yelled at Petitioner from time to time. Taken as a whole, however, there is insufficient evidence of record to support a conclusion that Mr. Lloyd sexually harassed Ms. Cremeens. To be sure, he did not always behave like a gentleman toward her, but it cannot be said his conduct constituted sexual harassment, and it is so found. 46. Once Petitioner was terminated, she became despondent and withdrawn and pushed family and friends away. Petitioner was terminated on November 27, 1995, but did not file her claim for discrimination until September 1996, almost ten months later. She delayed filing her complaint because she was in shock and embarrassed. She lost self-esteem and self-confidence and was afraid her marriage would be jeopardized if her husband found out the particulars of the termination. 47. Dr. Glenn D. King, a clinical psychologist whose specialty is forensic psychology, reviewed the materials relevant to Petitioner's claim against HP Tampa and did his own personal evaluation of the Petitioner relating to her claim of psychological harm resulting from her termination. 48. One of Dr. King's major opinions was that Petitioner had a longstanding psychological disorder stemming from childhood resulting in demonstrated histrionics, flirtatiousness, and a misperception of the motives of others. She has had an extraordinary number of chaotic events throughout her life that makes her no different after her discharge than before. Her 20 previous psychiatric history is lengthy reflecting professional mental health care at age 28 because of physical, emotional, and sexual abuse by her husband which caused her to leave home and Move to Tampa. The significance of this is that the psychological difficulties which she claims were caused by her discharge existed years before this incident and have resulted in her being in counseling for years prior to the termination. Her medical records indicate she has been taking psychotropic medications for years. 49. Dr. King also notes that though Petitioner mentioned her termination in the first counseling session she had after that incident, the major thrust of her complaints dealt with Marriage and family problems. 50. After Petitioner was terminated at the Silver dollar, she got a job at another lounge for about two months earning $10 per hour before she was fired. She then took another job for eight months before being hired at a Golden Corral for two years. She was let go from that job in August 1997 and drew unemployment compensation at $100 per week for five months. She opened another lounge, Angel's Place, in October 1997. This position lasted only a short time, after which she went to work for Old JR's Steak House where she earned $400 per week from January 5, 1998 to March 1, 1998. She then worked for the Old Florida Pub in Naples for five months before starting at Target stores and is currently employed by Target Stores. 21 51. Petitioner is seeking back wages for the period from when she was terminated in 1995 to the present and for five years forward at the rate she was getting less what she earned in the interim. In addition to the sums she earned from the various jobs she held, she also sold off household goods and had between $30,000 and $40,000 in gambling income, a part of which went into the costs of opening Angel's Place. All of this income was reported to the IRS. 52. Petitioner also seeks payment of $50,000 which represents the equity in her home which was lost to foreclosure in 2000, almost five years after her termination by HP Tampa. Some time after her termination by HP Tampa, Petitioner was declared eligible on her husband's insurance, yet she seeks to have HP Tampa also pay for her medical insurance. 53. According to Melissa Mancini, human resources director for Cornerstone Hospitality Group, Petitioner was never an employee of Cornerstone, but her office prepared the response to the Commission on Human Relations regarding Petitioner's claim. It would appear that there was some confusion as to who was responsible for the response, but ultimately, the requested information was forthcoming. When the Petition for Relief was received, it was sent to the corporate office of Cornerstone because Cornerstone was handling the sale of the property. Cornerstone admits to no liability regarding Petitioner's claim. 22
Conclusions For Petitioner: Angel Cremeens, pro se 5351 Hemingway Lane, West Apartment 506 Naples, Florida 34116 For Respondent: David P. Thatcher, Esquire Chamberlain, Hrdlicka, White, Williams and Martin 191 Peachtree Street, Northeast Ninth Floor Atlanta, Georgia 30303-1747
Recommendation Based on the foregoing Findings of Fact and Conclusions of 27 Law, it is recommended that the Florida Commission on Human Relations enter a Final Order reflecting a determination of No Cause regarding Petitioner's claim of discrimination and Petition for Relief. DONE AND ENTERED this & day of July, 2001, in eel Jha NOLD POLLOCK 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) 921-6947 www.doah.state.fl.us Tallahassee, Leon County, Fl Filed with the Clerk of the Division Administrative Hearings this be aay of July, 2001. COPIES FURNISHED: Angel Cremeens 5351 Hemingway Lane, West Apartment 506 Naples, Florida 34116 David P. Thatcher, Esquire Chamberlain, Hrdlicka, White, Williams and Martin 191 Peachtree Street, Northeast Ninth Floor Atlanta, Georgia 30303-1747 Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 28 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Did Respondent engage in unlawful employment practices directed to Petitioner, as defined in Section 760.10(1), Florida Statutes? In particular, did Respondent knowingly maintain a sexually-hostile and abusive environment for its female servers which unreasonably interfered with their work, exposing the female employees to disadvantageous working conditions to which male employees were not exposed? Was the work place for female servers permeated with discriminatory ridicule and insults? Did Respondent maintain an intimidating environment which caused Petitioner's constructive discharge? Is Petitioner entitled to take up her former duties as a server at Respondent's restaurant? Has Petitioner sustained damages, including loss of back and future pay and related benefits?
Findings Of Fact Respondent owns four (4) restaurants. Two are located in Tallahassee, Florida. One is located in Mary Esther, Florida; and one is located in Pensacola, Florida. The Tallahassee restaurants are located on North Monroe Street and Apalachee Parkway. It is the Apalachee Parkway restaurant that is the subject of this case. At times relevant to the inquiry, the Parkway restaurant operated with an average staff of 16-18 servers, who are mostly female, and 9-10 cooks, who are males. The Parkway restaurant had a high volume of business during the period under inquiry. At peak volume, the employees felt under pressure and were not especially respectful of fellow employees. Petitioner was employed at the Parkway restaurant from February 12 through May 15, 1993. Petitioner is approximately 30 years old. Petitioner is a female, whose stature is one of average height and weight. Petitioner was hired by a manager at the Parkway restaurant. That manager was Erin Stowell. Respondent empowered Mr. Stowell to hire and fire employees at the Parkway restaurant and to impose the necessary controls to conduct business at the restaurant. Mr. Stowell had the supervisory authority to conduct the everyday business at the Parkway restaurant in the capacity of supervisor of servers and cooks. At times relevant to the inquiry, Petitioner worked the day shift. Mr. Stowell was her manager. On that shift, most servers were female. In Petitioner's latter tenure, there was one male server working the day shift. At times relevant, a manual detailing appropriate employee conduct was in place. Among the expectations for employees was that the employees not engage in profane and vulgar language. Moreover, employees were expected to engage in moral and proper behavior. Petitioner was given the employee manual. In the restaurant operation, servers were expected to fill out customer food order tickets that accurately described the food orders. This accuracy was vital to the restaurant's financial operation. All food items served were to be charged for. The cooks had a corresponding responsibility to make certain that the tickets were accurate and that they not prepare food that was not described on the food order ticket. These arrangements led to conflicts between the servers and the cooks concerning food preparation and its timely delivery to the customer. Christopher Titze is the son of Michael Titze. Michael Titze owns Respondent. Beth Titze is Michael Titze's wife and mother of Christopher Titze. Christopher Titze worked at the Parkway restaurant at times relevant to the inquiry. He served as a host who greeted customers. In the event that problems occurred between servers and cooks that affected service to the customer, Christopher Titze would mediate disputes between servers and customers. In addition, if there were other problems between cooks and servers, the server would seek Christopher Titze's intervention or the cook might seek Christopher Titze's intervention as mediator. This mediation function took place once or twice a day at most. Specifically, cooks would ask for assistance if the servers were not charging for food and when servers did not properly space the time for delivering food order tickets to the cooks. Servers would complain when cooks were not getting the food prepared fast enough. Christopher Titze observed that Petitioner often did not wear the proper uniform for a server. She wore shoes that were other than required and did not wear pantyhose as required. As host, Christopher Titze was expected to inform Petitioner that she was not wearing the appropriate uniform. He did inform her. These reminders were given to Petitioner on 15-20 occasions. Christopher Titze did not have the authority to discipline Petitioner for noncompliance with the uniform requirements. Christopher Titze would occasionally remind other servers that they were not in proper uniform from time to time. By contrast, Petitioner was chronically out of uniform. Christopher Titze was working at the restaurant on the Petitioner's last day of employment. He overheard Petitioner yelling. He observed that several customers in the lobby area to the restaurant were looking at him during the outburst. Christopher Titze felt embarrassment and went running to the area where Petitioner was located. When he arrived at that area, Petitioner and a cook named O.C. Mack were there. Mr. Mack was a 250-pound man. Christopher Titze observed that Petitioner was "carrying on". Mr. Mack appeared upset and seemed not to be paying attention to Petitioner. Petitioner was getting more upset with Mr. Mack and was yelling and screaming and cursing at him. At that time, the manager, Mr. Stowell was not in attendance in the area where Petitioner and Mr. Mack were engaged. In particular, Christopher Titze heard Petitioner say to Mr. Mack: "This is fucking bullshit and I don't have to put up with this shit from you or anyone else". Christopher Titze tried to ascertain what had caused the outburst. It took a couple of minutes for Petitioner to calm down and quit yelling. During this time, Mr. Mack was cooking. Mr. Mack explained that Petitioner had not charged a customer for hollandaise sauce. Petitioner told Christopher Titze that the problem had to do with hollandaise sauce for a customer. Christopher Titze told Mr. Mack that he needed the hollandaise sauce right now. Mr. Mack told Christopher Titze that he was not going to get it. Christopher Titze then went up front and asked Mr. Stowell to go back and take care of the problem. Before Christopher Titze went up front to get Mr. Stowell, Mr. Mack told Christopher Titze that he was not going to give the hollandaise sauce to him until it was charged for on the ticket. When Christopher Titze found Mr. Stowell he told Mr. Stowell that Petitioner and Mr. Mack were having an argument and that he could not straighten it out and that Mr. Stowell needed to go back there. Christopher Titze made sure that a server other than Petitioner delivered the hollandaise sauce to the customer. Later, Christopher Titze observed Petitioner yelling and screaming and saw her take her purse and comment "this is unfair" and that "she was leaving." The May 15, 1993 incident was the only occasion upon which Petitioner complained to Christopher Titze about Mr. Mack's conduct. Other servers had complained to Christopher Titze about Mr. Mack's conduct. They told Christopher Titze that Mr. Mack was hard to work with and that he was very particular on tickets, making sure that customers were charged for food. The servers reported to Christopher Titze that Mr. Mack was concerned about food costs and that Mr. Mack skimped on some things. The other servers reported that Mr. Mack was rude about the way he went about doing his job and adhering to rules in the restaurant. Christopher Titze observed that Mr. Mack was loud when operating under stress. Mr. Mack especially did not like it when tickets were not properly written, and he complained about it. Christopher Titze observed that Mr. Mack would use the word "shit" and similar language when he was under stress. He would direct his remarks to servers: "You need to write this shit right". Christopher Titze heard the kitchen staff call the servers "bitches" on one or two occasions. Christopher Titze has no recollection of doing anything in response to the remarks by the kitchen staff directed to the servers. Christopher Titze never observed nor heard servers complain that the cooks were not getting out their orders quickly as a means of being spiteful to the servers. Christopher Titze never observed the kitchen staff holding or manipulating their genitals in the presence of servers. Lori Helms was a server who worked on the shift with Christopher Titze. She reported to Christopher Titze that a cook named Wendell Holmes had been requested to prepare an employee meal for her, to which Mr. Holmes stated: "I'll make you a cum sandwich." When the incident was reported to Christopher Titze, he told Mr. Stowell. Mr. Stowell sent Mr. Holmes home that day. Mr. Holmes was subsequently fired, having never been allowed to come back and work at the restaurant beyond the day he was sent home. By Christopher Titze's observation Ms. Helms was made to cry by Mr. Holmes' conduct. Christopher Titze has no recollection of the conduct of Mr. Mack causing Ms. Helms to cry or observing her to cry on any occasion other than the incident with Mr. Holmes. Terri Dixon was a server at the Parkway restaurant from November 2, 1992 until April 1993, when she was fired by Mr. Stowell. Ms. Dixon observed that Mr. Mack was rude and that he would use vulgar language. She observed that Mr. Mack would raise his fist at you and that his conduct seemed threatening. Mr. Mack referred to Ms. Dixon as "you little white girl", "you little bitch", and "you little honkey girl". Cooks would refer to Ms. Dixon as "whitey" "honkey" and "you white bitch". This made her feel intimidated. Which cooks other than Mr. Mack made these remarks was not proven. Ms. Dixon complained to a cook named Jason about an order that she believed was not being prepared in a timely manner. Apparently, her customers were complaining about the timeliness. Jason responded to her by saying, "shut up, you white bitch" and "I will stomp your white ass into the ground". Ms. Dixon observed other cooks shaking spatulas at her. Ms. Dixon explained that when she thought that the cooks had had ample time to prepare the food she complained to the cooks. The response by the cooks was to the effect, "I will give you your food when I get well and ready to." Ms. Dixon had the experience that when service of the food was delayed, customers did not want to tip her. A food preparation employee made a number of attempts at asking Ms. Dixon to go out with him. She considered his actions to be harassment. This same person also offered her drugs. Ms. Dixon complained to Mr. Stowell about that conduct by the male employee. After her complaint, the situation did not improve. What action, if any, that Mr. Stowell took to address her complaint is not clear. Ms. Dixon did not indicate that she reported back to management to inform management that she was continuing to be approached by the food preparation employee. Ms. Dixon observed the incident between Ms. Helms and Mr. Holmes. She saw Mr. Holmes grab his genitals and say "well how about I give you a cum sandwich." Ms. Helms worked at the Parkway restaurant from around January or February, 1993, until sometime in May 1993. She quit her job as a server at about the same time that Petitioner last worked at the restaurant. Ms. Helms describes what she considered to be rude conduct by Mr. Mack. These comments were directed to Ms. Helms pertaining to the manner in which she hung or presented the customer food order tickets to the cook. He made remarks calling her "stupid", "that drugs had eaten her brain" that "she was crazy" and would refer to her as "bitch". Mr. Mack yelled at her and she was afraid of him. These circumstances usually occurred when the restaurant was busy. Otherwise, Mr. Mack was nice to Ms. Helms when she first came to work in the morning. At busy times Mr. Mack would complain to Ms. Helms that she was not writing her tickets right and would grab them off the wheel where they were placed. To Ms. Helms, it seemed as if Mr. Mack would be under pressure and would take it out on her. In the exchanges where Mr. Mack would use the terms "bitch, stupid and crazy" directed to Ms. Helms, the food that she was responsible to serve would be sitting at the service window and available to be served. On these occasions Ms. Helms would direct argument back to Mr. Mack. She would then go back to the bathroom area to collect herself sufficiently to serve the food. Under these circumstances the food service would be delayed. At times when Ms. Helms complained about the delays in serving food to the customers when the restaurant was especially busy, responses from the cooks would be "hold on a damn second, baby, I can't do everything at once." At times these remarks were made in a manner which Ms. Helms believed to be screaming. The cooks would also say, "I'm going to do it and you are the one who messed it up in the first place and this wouldn't never have happened in the first place if you would have written the damn ticket wrong." Ms. Helms observed cooks dancing around and grabbing their crotches. She did not indicate complaining about these observations to management. While working at the restaurant Ms. Helms would cry often. In this respect Ms. Helms acknowledges that she is a very sensitive person and that when she was yelled at, this made her cry. This conduct hurt her feelings. In instances when she would cry Ms. Helms would go to Mr. Stowell and he would console her by telling her to stop crying and go about her business and that it would be okay and that Ms. Helms should not allow the conduct by the other employees to get to her. Ms. Helms describes the incident with Mr. Holmes in which she asked Mr. Holmes to make a sandwich for her and he replied, "baby I'll make you a cum sandwich". She responded by telling Mr. Holmes not to talk to her that way. The incident was one of the reasons that led her to quit her position at the Parkway restaurant. As described before, Ms. Helms reported the incident to Mr. Stowell. Soon after the incident with Mr. Holmes, Ms. Helms quit her job. As Ms. Helms observed, Mr. Stowell was present when cooks would use words such as "bitch", "fuck", "shit", "damn" and "ass", in Ms. Helms' presence. She considered these remarks to be directed to her. With the exception of the word "bitch", it is not clear that the use of profane language was directed to Ms. Helms as opposed to merely being stated in her presence. On Petitioner's last day, Ms. Helms, although she was not in the immediate vicinity of the incident, overheard part of the exchange between the Petitioner and Mr. Mack. She heard both Mr. Mack and the Petitioner yelling back and forth about the hollandaise sauce. Ms. Helms then observed the Petitioner go to the back of the restaurant to smoke a cigarette and that the Petitioner was crying. Ms. Helms took the customer the hollandaise sauce. Ms. Helms was told not to wear socks as part of the attire for servers because the servers were expected to wear pantyhose. Nonetheless, she wore socks again after being told not to do so. Ms. Helms observed that cooks wore their clothes loosely and that they would hang down to the extent where she could see their underwear and could see Mr. Mack's "butt crack". She did not indicate that she complained about these observations to management. Ms. Helms also had problems with a female server Kim Tuten whom Ms. Helms described as making her feel unwelcome and treating her in a rude manner. One time Ms. Tuten told Ms. Helms "I'll kill you." Ms. Tuten called Ms. Helms "stupid." Ms. Helms said that she "hates Ms. Tuten." Ms. Helms observed Ms. Tuten using profane language. Ms. Tuten used the words "fuck, damn, shit and ass". Ms. Tuten also called Ms. Helms "a bitch". Linda McCord began work at the Parkway restaurant in 1992, working on the night shift. She quit her position as a server at the restaurant because of a conflict with her school schedule. She came back to work at the restaurant and quit a second time because of Beth Titze's actions in "dressing down" Ms. McCord. Although Mr. Mack worked on a different shift than Ms. McCord, the shifts overlapped to some extent this allowed her to watch Mr. Mack perform as a cook. She observed Mr. Mack to be intimidating. She saw him early in the morning on weekends. When Mr. Mack first arrived he acted as if nothing was right and "would just raise hell at everybody, whether you were a server, a dishwasher, you know whatever." Ms. McCord observed Mr. Mack and his son Governor Mack, another cook, use the words "fuck, fuck you and mother fucker", sometimes directed to her but a lot of times in conversation between the cooks or with a dishwasher or with other servers. Ms. McCord observed the cooks on Mr. Mack's shift, to include Mr. Mack, "brag about their physical anatomy and what they do and how they do and that they would talk sexually about women." The words that were used in the discussions between the cooks about sexual matters made Ms. McCord feel uncomfortable and offended. Ms. McCord complained to Mr. Stowell about the profane language by the cooks. His response to the complaints was "I'll see about it". She made similar complaints to the night manager who said he would talk to the day manager who was Mr. Stowell. It is not clear whether Ms. McCord received a satisfactory response to her complaint. Donna Land was a server at the Parkway restaurant. She is and has been the Petitioner's roommate since 1989. Her employment at the Parkway restaurant lasted a few days. She quit her job at the restaurant shortly after Petitioner's last day as a server. Ms. Land observed that Mr. Mack was "fussy" on the day that Petitioner was last employed at the restaurant. Ms. Land was standing near the window where the food is delivered when she saw Petitioner approach that area. Petitioner asked Mr. Mack to do her a favor and get the Petitioner some hollandaise sauce. At that time Ms. land observed that Mr. Mack was real busy. The ticket holder was full and Mr. Mack said "I've got to have a ticket in order to do that." To which Petitioner responded that Mr. Stowell was coming with the ticket. Shortly thereafter Mr. Stowell came into the conversation. After Stowell showed up Mr. Mack started yelling and cursing Petitioner and shaking his spatula in her direction. Mr. Mack said "I'm not going to get you this, god damn this." Mr. Mack called Petitioner a "fucking white bitch" and told the Petitioner to "drop dead" and that he was "going to kill her." At this juncture Petitioner started to cry. Mr. Stowell then slid a bowl across and told Mr. Mack to give Mr. Stowell some hollandaise sauce. Mr. Mack slid the bowl back and said "you go to hell, I'm not giving you it either." Mr. Mack then said "get that fucking white bitch out of my face before I stomp her to the ground." As Ms. Land recalls, Mr. Stowell then told Petitioner to go home. Petitioner replied "I can't believe you are letting him talk to me like this." Mr. Stowell told Petitioner again to "go". Petitioner stepped away and remarked to the effect that, "I'm not going anywhere" and asked Mr. Stowell if he was firing her. Mr. Stowell then responded by telling the Petitioner that she was fired. It appears that Mr. Stowell was trying to remove Petitioner from a threatening situation, not intending to fire her until Petitioner refused to leave. Petitioner walked out of the restaurant at that time. Ms. Land was upset by these events. Mr. Stowell told Ms. Land that the Petitioner would be all right and that he would give her a call later. In the conversation between the Petitioner and Mr. Mack that was overheard by Ms. Land, Petitioner remarked that while the customer had been served hollandaise sauce that it was not enough and the man wanted more as a side order. The extra hollandaise sauce had not been put on the ticket as required by restaurant policy. Ms. Land overheard the kitchen staff using the words "fucking, pussy and bitch." Ms. Land perceived that the words were directed at her and she felt a little embarrassed. Ms. Land observed the kitchen staff put their hands in their pants, which they wore very low, meaning placing their hands in their groin area. Ms. Land is not sure whether the manager, Mr. Stowell, observed this conduct and she did not make a complaint about the conduct. Ms. Land observed cooks in the kitchen yell at Ms. Helms and that Ms. Helms cried a lot. Ms. Land worked with a male server named Joe. She never observed the cooks give Joe "a hard time." Angela Brumblaugh worked at the Parkway restaurant from September 1992 into August 1994 as a hostess, server and closing manager. She also lived with Michael and Beth Titze for four months. Christopher Titze was her friend during the time Ms. Brumblaugh worked at the restaurant. During the time that Ms. Brumblaugh worked at the restaurant she overheard curse words and profanity from cooks, servers, bus-boys and dishwashers. Those words that she heard were "damn, shit, and fuck." Among others, she heard Petitioner use those words. The context in which she heard those words used was related to a general griping about something that was not going right while working at the restaurant. By example, food orders that did not come out fast enough or someone getting in the way of employees' movements or a customer that was too demanding. The context was one in which the situation was stressful due to the time constraints for preparing and delivering food orders. Ms. Brumblaugh observed that Mr. Mack was a stickler about marking things that were to be charged for on the tickets. If they were not marked, and other cooks were not enforcing the policy about requiring the tickets to be marked so that items could be charged for, he would "get on" those other cooks. Ms. Brumblaugh never heard cooks refer to Petitioner as "fucking white bitch." Ms. Brumblaugh never observed what she considered to be a sexual problem involving employment discrimination. Ms. Brumblaugh observed Petitioner's overall disposition as being happy and excited one minute and "pissed off and bitching and yelling" the next minute. Ms. Brumblaugh overheard Petitioner yelling about food being late coming out the window and in the course of these remarks Petitioner was profane. Petitioner never mentioned to Ms. Brumblaugh that she considered that employment discrimination was being directed to the Petitioner based upon Petitioner's sex. Ms. Brumblaugh observed kitchen personnel place their hands in their crotch area. She perceived these actions to be to adjust shorts or to scratch. As hostess, Ms. Brumblaugh was expected to remind servers about the correctness of their uniforms. She gave these reminders. If a server was missing a bow tie she would get them another and at times when servers were missing hose there were hose available at the restaurant; if not available, the server was reprimanded and told to wear the hose. Kim Taylor has worked as a server at the Parkway restaurant on and off for a period of ten years. She describes herself as a close friend of Petitioner. Ms. Taylor worked on the day shift with Petitioner. Ms. Taylor would cry when Mr. Mack yelled at her for not writing the tickets properly. She did not complain to management about this problem, but resolved the issue by working in an area separate from Mr. Mack. Ms. Taylor heard kitchen employees refer to servers as "bitch". Ms. Taylor observed that when problems developed between the servers and the cooks the food service was delayed and that influenced the amount of money the servers earned. Ms. Taylor did not observe Mr. Stowell being present when the kitchen employees used profane language, but surmises that Mr. Stowell heard it because it could be heard throughout the restaurant. Furthermore, on those occasions Mr. Stowell would come and tell the kitchen employees to "chill out" or "you need to stop". In Ms. Taylor's view these attempts at correction were unavailing. However, Ms. Taylor does not appear to have reminded management that its attempts at correction were not successful. After Petitioner's last day, Ms. Taylor talked to the Petitioner and following that conversation asked Beth Titze to rehire the Petitioner. Beth Titze worked at the Parkway restaurant between the hours of 8:00 a.m. and 2:00 p.m. on weekdays and from around 8:00 to 8:30 a.m. to 2:30 to 4:00 p.m. on weekends. Although Ms. Titze had no specific recollection as to the exact words of the profanity that were used, she does recall profanity being used by the cooks in her presence. When this occurred she told them to cease. When circumstances would occur between servers or cooks that involved swearing and it was reported to her she would intercede. Usually this profanity was based upon provocations by servers yelling at cooks, but sometimes it involved cooks provoking servers. The circumstances for these exchanges were related to times of stress. When informed of the problems Ms. Titze would go into the area and yell, "watch your mouth", "what's the problem" or "what do you need" or "what is the situation here". Ms. Titze expected Mr. Stowell to make decisions on whether an employee should be dismissed. If an employee was repeatedly late, Ms. Titze would remind Mr. Stowell that he had a problem and leave the decision to Mr. Stowell to dismiss a server if the server continued to be late. Her general experience was that most employees were on time for work. When employees were not in the proper uniform Ms. Titze expected Mr. Stowell to see that they got into proper uniform. Whatever disciplinary action was to be taken for not being in proper uniform was left over to Mr. Stowell. Ms. Titze has never observed a point in time when all servers were out of the proper uniform. Ms. Titze established that the servers' earnings and benefits package was a payment of $2.31 an hour, plus tips and a week's paid vacation for servers who had worked at the restaurant for a year. Ms. Titze observed that Petitioner was often late for work, especially on weekends or occasions when it was important for the Petitioner to be on time. Ms. Titze indicated that Petitioner was habitually late for work. Ms. Titze described the fact that Petitioner was not always in uniform, especially related to the refusal to wear nylons even in the instance where Ms. Titze had bought nylons to provide Petitioner. Another problem that Ms. Titze observed was that the Petitioner did not wear appropriate shoes. Petitioner wore cloth shoes that were a type of canvas tennis shoes which were not acceptable foot wear. When Ms. Titze spoke to Mr. Stowell about Petitioner's problems with being late for work and not being in the proper uniform, a conversation which she had with him on frequent occasions, Mr. Stowell responded that he, "did not have anyone to take her place at that time." As described before, Petitioner sought reemployment from Ms. Titze. On that occasion Petitioner was in uniform, to include the proper foot wear. Petitioner remarked to Ms. Titze that she had the correct shoes and could she please have her job back. Ms. Titze replied that the fact that Petitioner was always late and that she could never depend on her, made Ms. Titze feel that she could not use Petitioner at that point. The decision on reemployment was made by Ms. Titze because she was managing the Parkway restaurant at that time. Ms. Titze has no personal knowledge of any conduct directed to Petitioner that could be considered discrimination on the basis of sex and no conduct of that type was reported to Ms. Titze. Contrary to testimony by other witnesses, Ms. Titze did not say, in jest, that she was going to cut Petitioner's legs with a razor blade, direct profanity at servers or make an obscene gesture at servers with her middle finger. Ms. Titze does admit to swearing under her breath by using the word "damn" in certain circumstances that occur at the restaurant. Ms. Titze has not observed the buttocks of the male cooks while they were working at the restaurant, nor seen those cooks grab their crotches. Ms. Titze, from her observations, believed that the slow downs in service were related to the volume of business and not a deliberate ploy by the cooks. She is correct. Moreover, the delays in service created by arguments between servers and cooks explain why customers did not receive their food as quickly as they would have preferred, not the idea that cooks alone contrived to delay the service. As a consequence the servers' loss of tips for late service cannot be equated to unilateral action by the cooks to interfere with the tips received by servers. Petitioner perceived the relationship with the kitchen employees as being an intense situation, especially when the restaurant was busy. Mr. Mack in particular was seen by the Petitioner as being upset when the restaurant was busy. She observed him shaking his spatula and making gestures with his hands and yelling out slurs at the slower servers and picking out problems on the tickets which Petitioner did not believe to be a "big deal." Petitioner described the conduct by Mr. Mack as "ranting and raving." He would remark that he "was not going to do this damn food for you this way" and "this ain't the way its on the fucking menu." By virtue of complaints which Petitioner made to Mr. Stowell there was a period in which Mr. Mack and the Petitioner "just laid off each other." At times Mr. Mack and other cooks called Petitioner a "bitch" or "fucking bitch". Cooks would also refer to Petitioner as "stupid bitch". Petitioner heard cooks refer to Ms. Dixon as "stupid bitch" and Ms. Helms as a "dumb bitch". When this occurred Petitioner observed that Ms. Dixon and Ms. Helms would often cry. Petitioner observed Mr. Mack tell Ms. Helms that she was "crazy", that "crack" drove her "crazy" and had "eaten her brain." Governor Mack referred to Petitioner on one day as "damn bitch". She replied that he was a kid and should not talk to people that way. Petitioner observed the cooks wearing loose clothing such that you could see part of their shorts with words written on the shorts like "yes" and "no". When the cooks bent over in the kitchen Petitioner could see their "cracks". Petitioner considered the clothing that the cooks wore that allowed her to see their shorts to be sexually offensive. What she meant by that is further described as, she "did not like seeing a man with his pants half hanging down" and that "this was a restaurant setting and they were representing the restaurant and that they were dressed just like on the street" and that it was "vulgar to her." Petitioner observed the cooks place their hands in their crotch area where the genitals are and at the same time observed that the cooks were talking about girls using terms like "that baby" or "I got her". Petitioner felt degraded by the profanity directed to her and the conduct that she observed and the physical conduct that she observed on the part of the kitchen employees. Petitioner made a general complaint to Mr. Stowell about the vulgar language used by the kitchen staff. She mentioned in "walking and talking lightly" to Mr. Stowell that he should tell the cooks "to pull up their pants or something and to tell the cooks to dress a little better." Petitioner describes that she had problems getting her orders from the kitchen when she probably did something to irritate the cook. On a few occasions Petitioner believed that the cooks were deliberately delaying her orders, but acknowledges that those were circumstances in which she did not have her ticket correct, though she believes that it was correct enough to have gotten the order out. When these arguments were engaged in with the cooks concerning the delays, the food would be sitting there ready for serving, and it would not be served while the argument went on between Petitioner and the cook. On these occasions the cooks would say "I ain't gonna cook this shit for you" and would call the Petitioner a "bitch". On her last day Petitioner was told by Mr. Mack that he was the only cook scheduled for his part of the restaurant and words to the effect that he "could not believe" that circumstance and complained that Mr. Stowell can't get things right and that he would be glad when Mr. Stowell was gone. Petitioner remarked to Mr. Mack to the effect "are you having a bad morning", and he replied that he was "sick of this." Throughout the morning Petitioner observed that Mr. Mack was under stress and that he was the only cook working in that area. As Petitioner describes the situation on her last day, she delivered a customer a skillet that had broccoli and hollandaise sauce. The customer did not believe that it had enough hollandaise sauce and asked Petitioner to get more. Petitioner left the food order ticket with the customer and took up other duties. She then passed Mr. Stowell and asked him to get the ticket, because she needed to get the customer some more hollandaise sauce. Mr. Stowell said that he would. Petitioner then went to the kitchen area and asked Mr. Mack if he would give her some hollandaise sauce, "this man needs some". Mr. Mack asked where her ticket was for the extra hollandaise sauce. Petitioner told Mr. Mack that Mr. Stowell was coming with the ticket. Mr. Mack said "I ain't giving you shit". Petitioner made a further request for the hollandaise sauce and repeated that Mr. Stowell was coming with the ticket. During this exchange Mr. Mack told the Petitioner to "drop dead" and called her a "white fucking bitch" and that he was "going to stomp her into the ground." When he make these remarks he was yelling. When Mr. Stowell approached Petitioner and Mr. Mack, the cook continued his remarks by saying he was "going to kill" Petitioner and calling her a "fucking white bitch". Mr. Stowell said "here's your ticket, give me the hollandaise sauce now". Mr. Mack responded "I ain't giving you shit either." Mr. Mack told Mr. Stowell "you get that white fucking bitch out of my face, I'm going to kill her. Get her out of this building, get her out of here. I'm going to kill her or stomp her face into the ground". Under these circumstances, in which Mr. Stowell perceived that the Petitioner was at risk, Mr. Stowell told Petitioner to leave and go home. Petitioner started to leave, then told Mr. Stowell, "you are going to have to fire me if I have to leave this job for the way he just talked to me", referring to Mr. Mack's remarks. Petitioner said to Mr. Stowell "please fire me". Mr. Stowell then responded by saying, "go home, you're fired, Elisa; if that's what you want, you are fired". Petitioner then stated to Mr. Stowell "that's all I wanted to hear." In her testimony Petitioner failed to acknowledge that she had been profane to Mr. Mack. Petitioner felt threatened by Mr. Mack and cried. At hearing Petitioner described her motivation on the last day to be that she was not going to quit the job. She was "not going to be cussed like a dog and then have to walk away" and that "it was better to have been fired." Under that arrangement Petitioner testified "I didn't have to ever come back there". After she left the restaurant on the last day that Petitioner was employed at the Parkway restaurant, she told an acquaintance, Ruby Wilson, who works part-time at the Village Inn restaurant on North Monroe Street, and part- time at Jerry's restaurant at the airport, that Petitioner "quit" her job at the Parkway restaurant. Petitioner further told Ms. Wilson that she "wasn't worried about it and would go back, talk to Beth and get the job back". Petitioner had also told the Unemployment Compensation Commission referee, in her hearing on unemployment compensation, that she was "going to make it final that day, and that day I finalized it." She also told the referee that she would have probably quit anyway if circumstances did not improve at the restaurant. Petitioner acknowledged that she used profanity while working at the restaurant such as "damn it, they are not getting my food out for me" or "damn it, I can't believe I'm being cussed at again" or "I just can't take this shit no more". By contrast Petitioner denies profane exchanges with the cooks. That testimony related to exchanges is not accepted. Petitioner remembers the reason Ms. Titze gave her for not reemploying Petitioner was because the Petitioner did not wear pantyhose. An Unemployment Compensation Commission employee advised Petitioner to go back and try an obtain her job and this led to her conversation with Ms. Titze requesting reemployment. Joseph Halladay has worked as a server with Respondent on and off for seven or eight years, but his employment on the shift with Petitioner was only for a couple of weeks at the end of Petitioner's employment. During times when he worked for the Respondent he did not receive any sexual or profane abuse by any of the cooks. He did not observe what he considered to be sexual harassment directed to any other server from the cooks. Mr. Halladay noticed a difference in conduct by the employees at the restaurant when they were in the rush period. In that setting things were hectic. Mr. Halladay has heard employees yell things like "get out of my way or move". On the last day that Petitioner worked at the restaurant Mr. Halladay observed Petitioner and Mr. Mack yelling back and forth one to the other. He does not recall exactly what was being said. He describes the matter as "quite a bit of bickering going on between both parties." As Mr. Halladay recalls, the exchange between Petitioner and Mr. Mack was real loud. Mr. Halladay did not observe the cooks flaunting their genitals or grabbing their crotches or wearing their pants so low that the cooks buttocks could be seen. He did observe their underwear showing. He made no complaint about the latter observation. Mary Darlene Roy worked ten years with Respondent to include part of the time with Mr. Mack. She left that employment at the beginning of 1994. While employed, Ms. Roy did not detect what she considered to be sexual abuse or harassment by Mr. Mack or other cooks. Ms. Roy did observe that when order tickets were not correctly filled out the cooks would get upset. In particular, when the tickets were not right and the cooks prepared the wrong food and had to redo the food preparation, this would upset them. When Petitioner was late to work Mr. Stowell would ask other servers, to include Ms. Roy to cover Petitioner's work station. On some occasions Mr. Stowell had requested Petitioner to pick up a server named Kitty Roe and bring her to work. This made the Petitioner late. On other occasions Petitioner was late for reasons of her own making. On one occasion Ms. Roy overheard Mr. Stowell correct Petitioner for not having a bow tie on. Ms. Roy heard Petitioner and Mr. Mack arguing "a lot". The arguments had to do with orders not being picked up that were "piling up" and tickets that were not being written right. Mr. Mack yelled at Petitioner about those problems. Ms. Roy recalls that Mr. Mack was a stickler about problems with tickets. In Ms. Roy's experience other cooks would get upset when tickets were not being written properly and orders were not being picked up on time. They were not as verbal about the problems as Mr. Mack would be. Ms. Roy never heard Mr. Mack refer to Petitioner as "a fucking white bitch" or "a white bitch". Mr. Titze established that Mr. Mack had worked for the Respondent for approximately five years in the capacity of lead cook. This meant that Mr. Mack was responsible for training cooks. Mr. Titze described Mr. Mack as being very high strung. When tickets were not correct Mr. Mack would pull them down and make the server correct them. If the tickets were not correct the cooks would prepare the wrong food and this would throw the cycle of work off. Under these circumstances Mr. Mack was observed by Mr. Titze to "fly off the handle". Mr. Titze identified that the employee manual prohibits vulgar language or failure to follow a supervisor's instructions. The managers, according to the manual, are expected to squelch the profane language. Mr. Titze confirmed that Mr. Holmes was fired for the sexual advances that he made to Ms. Helms. Other than the Holmes incident, Mr. Titze was not aware of conduct which might be considered sexual harassment. Prior to the events involving the Petitioner's claims related to discrimination on the basis of sex, neither Mr. Titze nor Ms. Titze had received complaints of employment discrimination against Petitioner or other servers. At the end of May, 1993, Petitioner applied for unemployment compensation. She was granted that compensation in July, 1993. Before applying for unemployment compensation Petitioner tried to gain employment at several restaurants other than Respondent's restaurant. She managed to obtain a job at Banjo's restaurant in Tallahassee, Florida, but only worked there for a period of 20 minutes when she was told that she was being dismissed for reasons that were apparently unrelated to her performance at that restaurant. In lieu of compensation, Petitioner participated in the Training Investment Program which allowed her to receive schooling directed toward a profession. That schooling was at Lively Vocational Technical School in Tallahassee, Florida, to become a barber. The tuition at Lively was paid by another program. The Training Investment Program paid $69.00 per week through May, 1994, when Petitioner concluded her schooling to become a barber. In this arrangement Petitioner was not required to seek employment while in school. Petitioner began employment as a barber or hair stylist beginning June, 1994. Petitioner's gross earnings for the period that she worked at the Parkway restaurant were $3,167.50. The value of the TIP income for the year that Petitioner received that money was $3,588.00. The $3167.50 earned by Petitioner when employed by Respondent was for an 11-week period covered by a diary kept by Petitioner related to her earnings as extrapolated by an employe with the Unemployment Compensations Commission. When annualized to represent the period from the beginning of June 1993 until the end of May, 1994, when Petitioner was unemployed and attending barber's school, the anticipated earnings had Petitioner maintained her position with Respondent would have been $14,971.00. That $14,971.00 is offset by the $3,588.00 which she was paid as a participant in the TIP program. Therefore, the backpay, including tips and wages, for the period that Petitioner was out of work would amount to $11,383.00. The only benefit that Petitioner would be entitled to is a week's earnings for a vacation period amounting to $72.00, representing a work week of 34 hours at $2.13 per hour.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the final order be entered which dismisses Petitioner's claims of discrimination based upon sex. DONE and ENTERED this 24th day of May, 1995, in Tallahassee, Florida. CHARLES C. ADAMS, 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 May, 1995. APPENDIX The following discussion is given concerning the proposed facts of the parties: Petitioner's Facts: Paragraphs 1 and 2 are not necessary to the resolution of the dispute. Paragraphs 3 through 7 are subordinate to facts found. Paragraph 8 is rejected. Paragraphs 9 through 12 are subordinate to facts found. Paragraph 13 is not necessary to the resolution of the dispute. Paragraph 14 is subordinate to facts found with the exception of the latter phrases referring to "mother fuckers" and "fuck you, mother fucker" which phrases are rejected. Paragraphs 15 and 16 are subordinate to facts found. Paragraph 17 is rejected. Paragraph 18 is subordinate to facts found with the exception of the reference to comments about breasts which is rejected. Paragraph 19 is subordinate to facts found. Paragraph 20 is contrary to facts found. Paragraph 21 is accepted in the reference to verbal aggression and is rejected in the reference to physical aggression. Paragraph 22 is subordinate to facts found with the exception of the phrase which says describing their genitals and "you want some of this baby" which is rejected. Paragraph 23 is subordinate to facts found with the exception that the suggestion that the cooks were directing their conduct specifically to the Petitioner is rejected. Paragraphs 24 and 25 are not necessary to the resolution of the dispute. The first sentence to Paragraph 26 is subordinate to facts found. The latter sentence is rejected. The first sentence to Paragraph 27 is rejected. The second sentence is subordinate to facts found. Paragraphs 28 through 30 are subordinate to facts found. The first sentence to Paragraph 31 is contrary to facts found. The second sentence is subordinate to facts found with the exception of the phrase that the attempts to stop the conduct did not do any good which phrase is rejected. The third sentence to Paragraph 31 is subordinate to facts found. Paragraph 32 is subordinate to facts found in its first sentence. The first phrase in the second sentence is subordinate to facts found. The latter phrase is not necessary to the resolution of the dispute. The third sentence is contrary to facts found. The fourth and fifth sentences are rejected in the suggestion that the complaint by the server's father led to the dismissal of the cook. The last sentence in Paragraph 32 is subordinate to facts found with the exception of the suggestion that the complaint was to no avail, which is rejected. Paragraph 33 is subordinate to facts found. Paragraphs 34 and 35 are contrary to facts found in the suggestion that orders were deliberately slowed up resulting in lower tips to the servers. The offensive language that is commented on in Paragraphs 34 and 35 is subordinate to facts found. Paragraphs 36 and 37 are subordinate to facts found. Paragraph 38 is not necessary to the resolution of the dispute. Paragraph 39 is rejected in its suggestion that the Petitioner's nonconformance with uniform requirements were comparable to the experience with other servers in terms of frequency. Paragraph 40 is subordinate to facts found. Paragraph 41 is not necessary to the resolution of the dispute. Paragraph 42 is not necessary to the resolution of the dispute. Paragraph 43 is contrary to facts found in the suggestion that Petitioner was occasionally late, is subordinate to facts found in the remaining phrase. Paragraph 44 is subordinate to facts found. Paragraph 45 is not necessary to the resolution of the dispute. Paragraphs 46 and 47 are not necessary to the resolution of the dispute. Paragraph 48 is subordinate to facts found. Paragraph 49 is not necessary to the resolution of the dispute. Paragraph 50 is subordinate to facts found with the exception of the last sentence which is not necessary to the resolution of the dispute. Paragraph 51 is subordinate to facts found. Paragraphs 52 through 54 are not necessary to the resolution of the dispute. Paragraphs 55 through 63 are subordinate to facts found. The first sentence to Paragraph 64 is not necessary to the resolution of the dispute. The latter sentence is subordinate to facts found. Paragraphs 65, 66 and 67 in the non-parenthetical references are subordinate to facts found. The parenthetical references are an incomplete discussion of the facts found in the recommended order. Paragraph 68 is subordinate to facts found. Paragraphs 69 and 70 are not necessary to the resolution of the dispute. The first sentence to Paragraph 71 is contrary to facts found. The second and third sentences are subordinate to facts found. Paragraph 72 is contrary to facts found in its suggestion that Petitioner did not use profane language in the confrontation with the cook. Paragraph 73 is contrary to facts found. Paragraph 74 is a conclusion of law. Paragraph 75 is contrary to facts found. Paragraph 76 is not necessary to the resolution of the dispute. Paragraph 77 is not necessary to the resolution of the dispute. The first sentence to Paragraph 78 is not necessary to the resolution of the dispute. The latter sentence to Paragraph 78 is subordinate to facts found. Paragraphs 79 and 80 are not necessary to the resolution of the dispute. Paragraph 81 is contrary to facts found. Paragraphs 82 through 88 are not necessary to the resolution of the dispute. Concerning Paragraphs 89 and 90, whatever Petitioner's intentions prior to the confrontation with the cook, once that confrontation transpired Petitioner opted to be fired rather than be sent home to get away from the threats by the cook or to quit her employment of her on volition. Paragraph 91 is subordinate to facts found. Paragraphs 92 through 95 are rejected. Paragraphs 96 through 99 are subordinate to facts found. Paragraph 100 is not necessary to the resolution of the dispute. Paragraph 101 is subordinate to facts found in the first sentence. The latter sentences in Paragraph 101 are irrelevant. Paragraphs 102 through 104 are acknowledged as attempts at impeachment but are rejected in favor of the facts found in the recommended order. Paragraphs 105 through 114 are subordinate to facts found. Paragraph 115 is not necessary to the resolution of the dispute. Paragraphs 116 and 117 are subordinate to facts found. Paragraphs 118 through 120 are not necessary to the resolution of the dispute. Paragraphs 121 through 124 are subordinate to facts found. Paragraphs 125 through 133 are not necessary to the resolution of the dispute. Paragraph 134 is irrelevant with the exception of the last sentence which is subordinate to facts found. Paragraphs 135 through 145 constitute legal argument. Respondent's Facts: Paragraphs 1 and 2 are subordinate to facts found. The first phrase to Paragraph 3 is accepted to the extent that conditions were stressful and the expectation of timely service to patrons. The remaining language in Paragraph 3 is rejected in that it was not established that the employees were aware of any signs that incrementally addressed the time standards for service. Paragraphs 4 through the first two sentences of Paragraph 8 are subordinate to facts found. The phrase pertaining to Petitioner's former employment is not relevant. The remaining portions of Paragraph 8 are subordinate to facts found. Paragraphs 9 and 10 constitutes legal argument. Paragraphs 11 through 13 are not necessary to the resolution of the dispute. Paragraph 14 is subordinate to facts found. Paragraph 15 is not necessary to the resolution of the dispute with the exception of the discussion of the basis for Petitioner's departure from the restaurant on May 15, 1993, which is subordinate to facts found. Paragraphs 16 and 17 are not necessary to the resolution of the dispute. Paragraph 18 is not relevant. Paragraph 19 is subordinate to facts found. Paragraph 20 is not necessary to the resolution of the dispute. Paragraphs 21 through 24 are subordinate to facts found. Paragraph 25 is not necessary to the resolution of the dispute. Paragraph 26 and the first sentence to Paragraph 27 are subordinate to facts found. The remaining sentences within Paragraph 27 constitute legal argument. Paragraph 28 is subordinate to facts found. Paragraph 29 is contrary to facts found. Paragraph 30 constitutes a correct portrayal of the process engaged in by the hearing officer; however, it is not necessary to report those activities in the fact finding. COPIES FURNISHED: Patricia A. Renovitch, Esq. P. O. Box 6507 Tallahassee, FL 32314-6507 Stephen Marc Slepin, Esq. 1114 E. Park Ave. Tallahassee, FL 32301 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Rd. Bldg. F, Ste. 240 Tallahassee, FL 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Rd. Bldg. F, Ste. 240 Tallahassee, FL 32303-4149
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of sex, religion, and national origin in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact No dispute exists that at all times material hereto, Omni was an employer as defined by the Florida Civil Rights Act of 1992, as amended. No dispute exists that Mr. Priskie is a white, Jewish male. Mr. Priskie began his employment with the Colonnade Hotel in 1992 as a Catering Manager. The Colonnade Hotel was then managed by The Continental Companies. As a Catering Manager, Mr. Priskie was in a sales position. He was the Manager of the Year in 1993 and 1994. At the time of hearing, Mr. Priskie had 20 years of experience in the hotel business. In January 1994, the management of the Colonnade Hotel was assumed by Omni Hotels. The Colonnade Hotel then became known as the Omni Colonnade Hotel. When Omni Hotels2 assumed management, the Colonnade Hotel was under-performing in all areas as a hotel. On or about January 25, 1994, Mr. Priskie was hired by Omni and immediately promoted to the Director of Catering. Based upon Mr. Priskie's performance before Omni took over, Omni was convinced that Mr. Priskie could perform in the position. As Catering Director, he was the direct supervisor of the Catering Sales Managers and other employees in the Catering Department. Mr. Priskie had never been a Catering Director under Omni's management. At the time of Mr. Priskie's interview for the position of director of catering, at least two of the persons interviewing him knew that he was Jewish. Mr. Priskie replaced a non-Jewish male. In mid-April 1994, Keith Douglas was transferred to the Omni Colonnade as the Director of Sales and Marketing. Mr. Douglas, in that position, became Mr. Priskie's supervisor. Mr. Douglas and Mr. Priskie had not worked together in any capacity prior to Mr. Douglas' transfer. The primary goal of Mr. Douglas was to aid in the transition of the Omni Colonnade's catering and sales operations to Omni's standards. One of his core focuses in accomplishing this goal was for the Catering Department to develop and maintain its files according to Omni's Accounting Coverage Program (ACP) system's standards. In 1994, the ACP system was a manual filing system, which required categorizing and qualifying accounts. The ACP system was used by Omni to evaluate the revenue potential of the Catering Department's account base. A Lotus spreadsheet, called the "ACP" for short, was created to reflect each of the files for the individual Catering Department's accounts, and included some of the contents of the files. Further, each file of an account of the Catering Department was required to be categorized a certain way and contain certain information qualifying the account, i.e., qualifying information. The ACP system was particularly significant to Omni. The ACP system revealed the revenue potential of the Catering Department's account base, and Mr. Douglas needed to know the value of those accounts in light of the recent transition of the hotel to Omni. One of the first issues addressed by Mr. Douglas with the Catering Department was the ACP system. He held a meeting in April 1994 with the Catering Department regarding the ACP system and, afterwards, provided the Catering Department with a memorandum explaining the ACP system. The memo explained how the ACP system should be executed. At no time prior to his termination did Mr. Priskie indicate that he needed assistance in complying with the ACP system. To assist employees under his supervision, Mr. Priskie issued at least two memoranda explaining the ACP procedures and offering assistance to any employee who had questions. An inference is drawn that Mr. Priskie understood the ACP system. On May 1, 1994, Omni's Management Performance Appraisal (MPA) was completed on Mr. Priskie. Mr. Douglas had requested Mr. Priskie to perform a self-evaluation using the MPA, and then he and Mr. Priskie reviewed the MPA. Mr. Douglas agreed with Mr. Priskie that Mr. Priskie's performance as the Director of Catering was acceptable, without noting any serious problems. A section of the MPA, entitled "Summary of Evaluation," considered the individual, being evaluated, on the whole and inquired in one area whether the individual's performance far exceeded, exceeded, met, needs some improvement, or did not meet job requirements. No notation was made by either Mr. Priskie or Mr. Douglas. Within about a month after Mr. Douglas' arrival, he began to have concerns regarding Mr. Priskie's ability to lead the Catering Department under Omni's management. Mr. Douglas had several discussions with Mr. Priskie regarding expectations that he had as to Mr. Priskie's performance. By memorandum to Mr. Priskie, dated July 6, 1994, Mr. Douglas summarized the several discussions that he had with Mr. Priskie and as to what he perceived to be Mr. Priskie's substandard performance. The memorandum was signed by Mr. Douglas and Mr. Priskie, and, as a witness, by Ms. Alina Molina, who was the Director of Human Resources. Mr. Douglas stated in the memorandum that Mr. Priskie needed to complete three priorities by June 27, 1994: *Finalize Catering ACP *Qualification and color coding of Catering Files *Achieve ACP and Prospecting call quotas for the department Further, Mr. Douglas indicated in the memorandum that Mr. Priskie failed to complete the first two priorities by the designated time and that Mr. Priskie blamed another employee for the incompletion, when the incompletion was caused by Mr. Priskie's own failure to perform priority number two with his own files. Moreover, Mr. Douglas indicated that, on June 28, 1994, he had given Mr. Priskie an extended deadline of July 1, 1994, to complete verification of the qualification of his own files but that Mr. Priskie failed to do so. Mr. Douglas considered Mr. Priskie's attempt to blame another employee a misrepresentation by Mr. Priskie. Furthermore, Mr. Douglas considered the misrepresentation by Mr. Priskie to be a "huge infraction." Additionally, Mr. Douglas stated in the memorandum that, on June 28, 1994, he informed Mr. Priskie that Mr. Priskie's performance was "disappointing" and that change was expected "immediately" in the following areas: *Execution of the Catering ACP and Catering file system *Personal qualification of your files *Achieve targeted ACP and Prospecting call quotas weekly for the department and personally *Achieve established revenue goals for the department *Set an example for the department *Develop Monthly Strategic Action Plan to achieve Catering Revenue Goals Finally, Mr. Douglas stated in the memorandum that all of the areas indicated above were of "major concern" and that he and Mr. Priskie agreed that "30 days is a reasonable time frame to recognize a marked improvement and your progress will be evaluated at that time." Mr. Priskie was aware that he was in a "job threatening situation," i.e., that his job was in jeopardy. The undersigned finds credible the testimony that, in the hotel industry, an employee in Mr. Priskie's level of hierarchy, who is informed that their job is in jeopardy, knows that termination, not suspension, probation, or some other form of action, is the next step if the required change is not made. Mr. Priskie began several techniques to address Mr. Douglas' concerns and noted the techniques in a memorandum to Mr. Douglas, dated July 11, 1994, with a copy to Ms. Molina and to Mark Amidon, Omni's Director for Food and Beverage. Some of Mr. Priskie's responsibilities as Director of Catering affected the food and beverage department over which Mr. Amidon was responsible. Mr. Priskie indicated, among other things, that the filing system was being put back in place after the files had been incorrectly and improperly filed by a person under his supervision; that the ACP worksheet update would begin after completion of the filing system; that remaining files would be updated; that weekly meetings with and monitoring of sales persons would occur regarding revenues, and everyone would work as a group; that individual counseling would occur with staff who failed to meet their revenue goals; and that he had begun to set a positive example for the sales persons by communicating more with them daily. Shortly thereafter, on July 18, 1994, Mr. Douglas met with Mr. Priskie. Mr. Douglas discussed Mr. Priskie's inability to administratively lead the Catering Department, including leading by example; Mr. Priskie's managing by memoranda, as the only form of communication with the employees under his supervision; and Mr. Priskie's inability to handle relations between catering sales managers and difficult customers by referring difficult customers back to the appropriate sales manager and making sure proper follow-up occurs with both the sales manager and the customer. Mr. Douglas made clear to Mr. Priskie that he was questioning Mr. Priskie's ability to be the Director of Catering and that Mr. Priskie's job was in jeopardy. Mr. Douglas issued a memorandum to Ms. Molina, with a copy to Mr. Priskie, memorializing the meeting and discussion. By memorandum dated July 21, 1994, Mr. Amidon complained to Mr. Douglas about the Catering Department, a complaint which was indirectly about Mr. Priskie. Mr. Amidon complained that the "flow of informations [sic]" from the Catering Department to the Banquet Department was worse and was causing "numerous problems for the Banquet department and alternately our guests." As Director of Catering, Mr. Priskie was held responsible for the problems regarding the communication between the departments. Mr. Priskie failed to meet Mr. Douglas' expectations as Director of Catering. On August 5, 1994, Mr. Priskie was terminated from his position of Director of Catering and from his employment with Omni. On the date of Mr. Priskie's termination, Mr. Douglas issued a memorandum addressing whether Mr. Priskie had met the goals outlined in the memorandum of July 6, 1994. Mr. Douglas reviewed a portion of Mr. Priskie's and the Catering Department's files and determined that neither Mr. Priskie's files nor the Catering Department's files, as a whole, met Omni's ACP standards. Even though Mr. Priskie had established a Lotus spreadsheet outlining his files and the files of each catering manager, Mr. Douglas determined that the information in the files themselves did not mirror the information on the spreadsheets. Further, Mr. Douglas determined that the Catering Department, as a whole, failed to meet its sales goals although Mr. Priskie consistently met his own booking and sales revenue goals. As the Director of Catering, Mr. Priskie was held responsible for the performance of the sales persons in the Catering Department and for assuring that the Catering Department achieved its goals as a whole. Mr. Priskie does not dispute that the Catering Department, as a whole, failed to meet its revenue (sales) goals. At the same time, Mr. Priskie states that he should not be held responsible because Mr. Douglas prevented him from managing his (Mr. Priskie's) subordinates. The record contains insufficient evidence to support Mr. Priskie's position. During his employment with Omni as the Director of Catering, Mr. Priskie supervised a Hispanic3 female, Amisel "Amy" Nunez. Ms. Nunez was first a Catering Sales Manager and, subsequently, a Senior Catering Sales Manager. Ms. Nunez's primary responsibility was to generate revenue and bookings from the catering markets assigned to her. Ms. Nunez's responsibilities were no comparison to Mr. Priskie's, who was responsible for the performance of the Catering Department in revenue goals, as a whole, as well as his own revenue goals. According to her Pace Reports, Ms. Nunez exceeded her year-to-date sales goals through May 1994, but failed to meet her goals for the months of June and July 1994. She was not terminated for failing to meet her sales goals for June and July 1994. Mr. Priskie asserts that he was prevented by Mr. Douglas from supervising Ms. Nunez. Mr. Priskie complained to Mr. Douglas regarding Ms. Nunez not meeting her sales goals. According to Mr. Priskie, Mr. Douglas advised him not to be concerned about Ms. Nunez's performance regarding the sales goals. Mr. Priskie's testimony is found to be credible. Regardless, the evidence is insufficient to show that the failure of Ms. Nunez's reaching her sales goals for June and July 1994, played a role in the termination of Mr. Priskie for poor performance. At or around the time of Mr. Priskie's termination from Omni, Ms. Nunez's position was Senior Catering Sales Manager. By letter dated July 19, 1994, Ms. Nunez notified Mr. Douglas that she was resigning, effective August 25, 1994. Omni requested that she reconsider her decision to resign, and by memorandum, dated July 27, 1994, Ms. Nunez advised Omni that she would continue in the position of Senior Catering Sales Manager for 30 days and would consider completely rescinding her resignation under certain conditions, which were enumerated. After Mr. Priskie's termination, even though Ms. Nunez did not have the title of Director of Catering, she assumed Mr. Priskie's responsibilities. Omni had begun to pursue its Hispanic market, a more lucrative market for Omni at that time. An inference is drawn that Omni's pursuit of the Hispanic market was a business decision. On August 22, 1994, Omni's Management Performance Appraisal (MPA) was completed on Ms. Nunez, as Senior Catering Sales Manager, by Mr. Douglas. The Summary of Evaluation section indicated, among other things, that Ms. Nunez exceeded the job requirements. The MPA reflected also a recommendation from Mr. Douglas to increase her salary from $25,000.00 to $28,000.00, with a .5 percent increase in gratuity. Ms. Nunez resigned her position, as Senior Catering Sales Manager, effective October 1994. Mr. Priskie claims that Omni terminated him so that it could replace him with a Hispanic female, namely, Ms. Nunez, and attract the Hispanic market. Obviously, Ms. Nunez is of a different sex than Mr. Priskie. Mr. Priskie has taken differing positions on whether he was terminated because of his sex: he does and he does not believe that he was terminated because of his sex. The evidence is insufficient to demonstrate that Mr. Priskie believes that he was terminated because of his sex. During his employment as Director of Catering, Mr. Priskie was requested by his superiors to test the market and develop Kosher catering at Omni, wherein Omni would handle the Kosher catering in-house instead of hiring an outside business to provide the Kosher catering. Among other things, in-house Kosher catering required supervision by a Rabbi; a kitchen devoted exclusively to Kosher cooking; the use of Kosher products, cooked in Kosher pots and pans, and served on Kosher plates; and the use of Kosher utensils. At the time, no other hotel in the area had a Kosher program. Mr. Priskie had numerous meetings with the Jewish community and suppliers of Kosher products and expended an enormous number of hours in developing a plan for Kosher catering. Mr. Douglas claims that he was not aware that Mr. Priskie had expended so much time on the Kosher catering; however, such testimony by Mr. Douglas is not found to be credible. Mr. Douglas was aware of Mr. Priskie's involvement in developing in-house Kosher catering at Omni. But, what is found to be credible is the testimony that Omni determined that Kosher catering would not be pursued because Kosher catering was too expensive and because Omni's physical limitations were not suitable for Kosher catering. For Omni to provide Kosher catering, many changes and revisions would have to be made, including creation of an additional kitchen for which no additional space existed; and additional space for the storing of Kosher cutlery, dishes, pots, and pans for which no additional space existed. Sales revenue was lower than Omni wanted, and Omni did not want to venture into a costly undertaking. The evidence is insufficient to demonstrate that Omni disparately treated Mr. Priskie because it did not pursue or by not pursing the Kosher catering program. Apparently, after the decision was made to not pursue Kosher catering, Mr. Priskie was not notified of the decision. Mr. Priskie continued with his planning. He was finally informed that Omni would not pursue Kosher catering. After Mr. Priskie's termination, in-house Kosher catering became a dead issue. In October 1994, after Mr. Priskie's termination, Omni hired a female, Melanie Zeller, as a Catering Sales Manager. In February 1995, she was promoted to the position of Director of Catering. Mr. Douglas believed that Ms. Zeller possessed the capabilities to perform and grow in the position. On May 26, 1995, Ms. Zeller was appraised in her position as Catering Director, using the MPA. In the Summary of Evaluation section, she was rated as having met the job requirements. By memorandum dated November 14, 1995, Ms. Zeller was notified by Mr. Douglas of performance concerns. He indicated, among other things, that the memorandum constituted a warning and that further disciplinary action, including termination, may follow if certain areas did not improve. On January 2, 1996, Ms. Zeller was appraised again using the MPA. In the Summary of Evaluation section she was rated as not meeting the job requirements. On March 26, 1996, Ms. Zeller was terminated for poor performance. Prior to her termination, Ms. Zeller was warned of the areas in which she must improve, as was Mr. Priskie. The areas for improvement were customer response time; billing and collections for the catering department; development of realistic, but aggressive, budgets for the catering department; achievement of monthly budget expectations; and enhancement of her position within Omni. Ms. Zeller was unable to meet the performance expectations of Omni and was terminated. Mr. Priskie also asserts that Ms. Zeller was provided a longer period of time to improve and, therefore, Omni discriminated against him. Omni's economic circumstances at the time that it assumed management of the hotel needs to be considered. The hotel was under-performing in all areas, which equated to low revenues; Omni wanted revenues to increase and increase in a short period of time. When Ms. Zeller became Director of Catering, the revenues were better than in the beginning of Omni's management, but Omni still had standards to maintain. The evidence is insufficient to show that such action by Omni was inappropriate, especially given the circumstances. No evidence as to Ms. Zeller's religion was presented. The evidence was insufficient to establish her national origin. Obviously, Ms. Zeller is of a different sex than Mr. Priskie. Another employee under Mr. Douglas' supervision to whom Mr. Priskie claims his treatment should be compared is Diana Anker. Ms. Anker's position was Business Travel Sales Manager. Her position was not equivalent to Mr. Priskie's position. Even though she had sales goals, Ms. Anker's sales goals were in terms of numbers of room nights booked, not in terms of dollar amounts. Further, Mr. Priskie was not terminated on his failure to meet his sales goals. Additionally, another employee with whom Mr. Priskie claims his treatment should be compared was Omni's Chef, Alain Petitbon. Chef Petitbon was Mr. Priskie's equal in terms of hierarchy at Omni, and he had no supervisory authority or any other authority over Mr. Priskie. Allegedly, Chef Petitbon made an anti-Semitic remark about Mr. Priskie at a banquet function, referring to Mr. Priskie as a "Jew boy" or "Jew" or "fucking Jew." Mr. Priskie complained both orally and in writing. Mr. Amidon was Chef Petitbon's supervisor. By memorandum to Chef Petitbon, dated March 22, 1994, Mr. Amidon imposed disciplinary action against Chef Petitbon. The memorandum was signed by George Cozonis, Omni's General Manager; Ms. Molina; Mr. Amidon; and Chef Petitbon. Among other things, Mr. Amidon labeled Chef Petitbon's remarks as a "grave offense" and warned him against any further violations of Omni's policy. The disciplinary memorandum was placed in Chef Petitbon's personnel file. The disciplinary action taken against Chef Petitbon was not taken at or around the time that he made the anti-Semitic remark about Mr. Priskie. The disciplinary action, regarding Mr. Priskie, was taken against Chef Petitbon only after Chef Petitbon had committed improper actions against other employees in February 1994, which were considered in violation of Omni's policy. Prior to the disciplinary action against Chef Petitbon, but shortly after Chef Petitbon made the remark about Mr. Priskie, Mr. Douglas and Mr. Amidon were in attendance at an Executive Committee meeting, as members of the Executive Committee. During the meeting, Mr. Douglas made a joke regarding the anti-Semitic remark by Chef Petitbon, using the phrase "Jew boy" but not directly referring to Mr. Priskie although it was understood that Mr. Douglas' remark was referring to Mr. Priskie. Even though, in 1994, Omni had an "Open Door Policy," which provided an avenue for Mr. Priskie or Mr. Amidon to complain regarding the remark made by Mr. Douglas, neither Mr. Priskie nor Mr. Amidon used the "Open Door Policy." The undersigned finds Mr. Amidon's testimony credible that Mr. Douglas made the remark.4 The evidence demonstrates that Mr. Douglas and Omni's management knew that Mr. Priskie was Jewish before Mr. Priskie's termination. Even having found that Mr. Douglas knew that Mr. Priskie was Jewish before Mr. Priskie's termination, the evidence is insufficient to demonstrate that such knowledge played a role in the termination of Mr. Priskie. Further, Mr. Priskie asserts that, during hiring/promotional phase to the position of Director of Catering, Omni's Regional Vice President, Philip Georgas, made a discriminatory comment and that the comment evidenced discrimination. Mr. Georgas was one of Omni's executives with whom Mr. Priskie interviewed. The comment made by Mr. Georgas was that Mr. Georgas was "Greek," that Mr. Priskie was "Jewish," and that "normally Greeks and Jews don't work well together." However, even after the comment was made, Mr. Georgas did not object to Mr. Priskie being hired/promoted as the Director of Catering and Mr. Georgas was under no obligation to approve Mr. Priskie getting the position. This evidence is insufficient to establish that Mr. Georgas' comment or knowledge that Mr. Priskie was Jewish caused or played a role in Mr. Priskie's termination. During 1994, Omni terminated seven employees for poor performance. Mr. Priskie asserts that such terminations support his position that Omni discriminated against him. Race-wise, of the seven persons terminated, one was Black, two were Hispanic, and four were White. The religious affiliation of each employee was listed by Omni as "unknown" because such information was not required by Omni and was, therefore, not maintained by Omni. However, the evidence clearly shows that one of the seven terminations was Jewish, i.e., Mr. Priskie. Further, the undersigned finds Mr. Priskie's testimony credible that another employee was a Jewish-female, who worked for Omni only six weeks before being terminated. Mr. Priskie did not know the other five employees who were terminated. This evidence that two Jewish-employees were terminated in 1994 by Omni is insufficient, in and of itself, to demonstrate that Omni terminated Mr. Priskie because he is Jewish or that his religion and/or national origin played a role in his termination. Taking the above circumstances together, regarding knowledge of and the actions of those who had knowledge of Mr. Priskie's religion and/or national origin and the termination of seven employees for poor performance, the evidence is still insufficient to demonstrate that Omni terminated Mr. Priskie because he is Jewish or that his religion and/or national origin played a role in his termination. Damages At the time of his termination, Mr. Priskie earned $40,000.00 per year in salary, plus a percentage of the Catering Department revenues.5 According to Mr. Priskie, his commission was $21,000.00 in 1994 and he estimates that his commission for 1995 through 2001 at $42,000.00 per year. The evidence is insufficient to show that Mr. Priskie's commissions can be predicted with reasonable certainty. For the years 1994 through 2001, he estimates his lost wages at $343,643.00 and lost commission at $315,000.00.6 Mr. Priskie computes his lost wages by adding a three percent cost of living increase to his salary for each year after 1994. Further, Mr. Priskie asserts an entitlement to his actual cost of health insurance, totaling $57,330.00, that he obtained after his employment. As a benefit of his employment, Omni provided Mr. Priskie with health insurance at no cost to him. As a result, Mr. Priskie claims lost wages of $715,973.00, with 10 percent simple interest; totaling $787,570.00. In addition to lost wages, Mr. Priskie asserts an entitlement to fees at $450,000.00 and costs of bringing this action at $23,352.85. The fees are calculated by using the estimated time that he and his wife expended on this case over a seven-year period, which was 3000 hours, at $150.00 per hour. The costs include copying, stationary, subpoenas, gasoline, cellular telephone, home telephone, dry cleaning, postage, and home computer. Further, Mr. Priskie claims punitive damages at $1,260,622.85. Consequently, Mr. Priskie's total claim is $8,240,622.85. Regarding mitigation, Mr. Priskie asserts that he tried to find employment after he was terminated, but he could not recall who he contacted, his first job after being terminated, where he worked in 1995, or how long he was unemployed. Approximately one month after being terminated, Mr. Priskie underwent knee surgery and, during his recovery period from the surgery, Mr. Priskie was unable to recall whether he sought employment even though he was able to perform catering duties. For the years 1994 (after his termination) and 1995, no credible evidence was presented as to mitigation. Beginning approximately 1996, Mr. Priskie started his own business, named "Father Goose," which was a mail- order/internet catalogue. Mr. Priskie ran Father Goose exclusively and obtained no other employment until approximately 2000 because he wanted to work at home, so that he could spend time with his family. According to Mr. Priskie, Father Goose operated at a loss. In approximately 2000, Mr. Priskie began working as the Director of Catering at a restaurant, named Shooters. He earns $35,000.00 per year, as a base salary, and a commission of three percent of his gross catering sales. Mr. Priskie's base salary is less than he received at Omni, and his commission is more than he received at Omni. Mr. Priskie's tax returns for the years 1994, 1996, 1997, and 1998 were entered into evidence. During the years 1996, 1997, and 1998, Mr. Priskie characterized his occupation as an "Investor" on his tax returns. According to Schedule D of his tax returns, Mr. Priskie had capital gains from sales and purchases of stock of $194,913.00 for 1996; $31,348.00 for 1997; and $178,532.00 for 1998. Mr. Priskie's tax returns for the years 1995, 1999, and 2000 were neither offered nor entered into evidence.7 Furthermore, no credible evidence regarding his income for those years was presented. Mr. Priskie's efforts at mitigation were not reasonable until 2000 when he began employment at Shooters.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Ibex Colonnade Corporation, d/b/a Omni Colonnade Hotel did not discriminate against Jeffrey Priskie on the basis of his sex, religion, and/or national origin. DONE AND ENTERED this 31st day of January, 2003, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2003.
