The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact The Petitioner began his employment with the Respondent on or about April 9, 2004. The Petitioner worked as a houseman. This job description was within the Respondent's housekeeping section. His original schedule required him to work a shift that ran from 6:00 a.m. until 2:00 p.m. In October or November of 2004, the Petitioner's work schedule changed and he was directed to work the overnight shift. The overnight shift personnel reported for duty from 11:00 p.m. until 7:30 a.m. The Petitioner accepted this re-assignment. The change in shift assignment was requested by Elizabeth Cortes' predecessor. Some time after December 2004, the Petitioner's supervising manager changed and Elizabeth Cortes became the director or manager for housekeeping. The Petitioner asked Ms. Cortes if he could return to the 6:00 a.m. to 2:00 p.m. shift. That request was not approved. The Petitioner accepted this decision and continued to work as scheduled. Ms. Cortes told the Petitioner at that time that she did not have another employee who would be available to take the night shift. In 2007 the Petitioner enrolled in school and requested that his shift be changed to a 9:00 p.m. to 5:00 a.m. shift so that he could attend school at Miami Dade. That request was approved. From the time of approval, the Petitioner was permitted to work three days from 9:00 p.m. to 5:00 a.m. (his school days) and two days from 11:00 p.m. to 7:30 a.m. The modification of the schedule allowed the Petitioner sufficient time to get to school in the morning. The Petitioner continued to work these shift times without complaint or issue. In November or December of 2006, the Petitioner made an application to become a banquet server for the Respondent's restaurant. He alleged that he gave the application to Elizabeth Cortes who was to sign it and forward it to Human Resources. According to Esther Sandino, the Petitioner did not file an application for restaurant server. Further, Ms. Cortes did not recall the matter. The Petitioner did not file a claim of discrimination for this alleged incident but presumably alleged that this incident demonstrates an on-going disparate treatment. There was no evidence that a non- Haitian was hired for the job as banquet server. There was no evidence any banquet servers were hired. Ms. Cortes did not hire banquet servers. Her responsibilities were directed at housekeeping. During the time Ms. Cortes was the housekeeping supervisor, the Respondent employed approximately 90 employees within the housekeeping section. Of those employees approximately 70 were Haitian. The remainder were Hispanic, Jamaican, Filipino, and other. Of the five persons who held supervisory positions, one was Haitian, two were Hispanic, one was from Czechoslovakia, and the country of origin of the fifth supervisor was unknown to Ms. Cortes. Ms. Cortes did not have the authority to terminate the Respondent's employees. Standard procedure would cause any allegation of improper conduct to be referred to the Human Resources office for follow up and investigation. There were two incidents referred for investigation regarding the Petitioner prior to the incident of April 22, 2007. Neither of them resulted in suspension or termination of the Petitioner's employment with the Respondent. On April 22, 2007, a security officer reported to the hotel manager on duty, Bingina Lopez, that the Petitioner was discovered sleeping during his work shift. Based upon that report, Ms. Lopez sent an e-mail to the housekeeping department to alert them to the allegation. When the Petitioner next reported for work, Mr. Saldana told the Petitioner to leave the property and to report to the Human Resources office the next day to respond to the allegation. The Petitioner did not report as directed and did not return to the property. Mr. Saldana did not have the authority to suspend or terminate the Petitioner's employment. Moreover, the Respondent did not send a letter of suspension or termination to the Petitioner. In fact, the Respondent assumed that the Petitioner had abandoned his position with the company. Ms. Cortes presumed the Petitioner abandoned his position because all of his uniforms were returned to the company. To avoid having the final paycheck docked, the Respondent required that all uniforms issued to an employee be returned upon separation from employment. The Petitioner acknowledged that he had his brother return the uniforms to the Respondent for him. The Respondent considered turning in uniforms to be an automatic resignation of employment. To fill the Petitioner's position (to meet housekeeping needs), the Respondent contacted an agency that provides temporary staffing. The person who came from the agency for the assignment was a male Hispanic. The male (who may have been named Lewis Diaz) arrived at the Trump Resort for work about ten days after the Petitioner left. The replacement employee's schedule was from 4:00 p.m. to midnight or 1:00 a.m. The temporary replacement remained with the Respondent until a permanent replacement for the Petitioner could be hired. It is unknown how long that was or who the eventual permanent employee turned out to be. Because the Petitioner never returned to the Trump Resort as directed, he was not disciplined for any behavior that may have occurred on April 22, 2007. The Petitioner's Employee Return Uniform Receipt was dated April 25, 2007. Prior to the incident alleged for April 22, 2007, the Petitioner had been investigated in connection with two other serious charges. Neither of those incidents resulted in discipline against the Petitioner. Both of the incidents claimed improper conduct that was arguably more serious than the allegation of April 22, 2007. Of the 400 plus employees at the Respondent's resort, the majority are Haitians. The Respondent employs persons from 54 different countries. The Petitioner's claim that he was referred to as a "fucking Haitian" by a security guard has not been deemed credible. The Petitioner was unable to indicate when the comment was made. Moreover, the Petitioner did not complain to anyone at the time the comment was allegedly made. Finally, no other employee could corroborate that the comment was made. One former employee testified that the Petitioner told him about the alleged comment. At best it was one offensive statement made on one occasion. There is no evidence that the Petitioner was treated in a disparate or improper manner based upon his national origin.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 27th day of February, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 27th day of February, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141 Warren Jay Stamm, Esquire Trump International Beach Resort 18001 Collins Avenue, 31st Floor Sunny Isles, Florida 33160 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on sex/gender.
Findings Of Fact Respondent is an employer within the meaning of Section 760.02(7), Florida Statutes (2008). Respondent operates a chain of retail stores/service stations, some of which include a deli. Petitioner, an African-American female, began working for Respondent sometime in 2006. Petitioner was still working for Respondent on August 20, 2008, when she filed her complaint with FCHR. Petitioner took the job initially because it would provide her with more hours. It also provided benefits, such as the opportunity to buy health insurance and to enjoy a paid vacation. In January 2008, Petitioner's job responsibilities included cleaning and stocking shelves during the night shift at Respondent's store located on Cervantes Street, Pensacola, Florida. The Cervantes store did not have a deli. Alvin Philyaw, a white male, was the manager at the Cervantes store. Bill Fuller, a white male, was the store's assistant manager. Robert Wensel, another white employee at the Cervantes store, took care of the trash. Two other employees worked at the Cervantes store during the relevant time period. Obrien Sullivan, race unknown, worked as a cashier. Khia, last name unknown, was from Hawaii and worked as a cashier. The night crew sometimes stood around and talked with each other. Petitioner listened to and participated in the conversations. The crew joked around and teased one another on a regular basis. On at least one occasion Petitioner, Mr. Sullivan, Mr. Fuller, and maybe others, discussed the Wicca religion in general. The subject came up because either Mr. Fuller had friends that were participating members of the religion or Petitioner raised the topic. Neither Mr. Sullivan nor Mr. Fuller had ever been members of the Wicca religion. The group talked about the religion being based on witchcraft. The conversation(s) about the Wicca religion was never directed at Petitioner. However, Petitioner somehow assumed that either Mr. Fuller or Mr. Sullivan said a satanic prayer and cast a spell on her. On another occasion, someone in the night crew asked Petitioner if she was a Muslim because she always covered her hair. Petitioner was offended and informed the co-worker that it was none of his business but she was an Islamic Christian. During another shift, Mr. Wensel pointed to a male outside the store and asked Petitioner if the person was her lover. Petitioner should have known that the co-worker was teasing. However, when Petitioner reacted negatively, another co-worker asked if Petitioner was racist because she would not date a white man. Petitioner again was offended, stating that she was an independent woman, did not date anyone, would not date a white man, and would not date anyone from that geographical area. One time, Mr. Fuller and Mr. Wensel pretended that Mr. Fuller had knocked Mr. Wensel to the floor. When Petitioner saw Mr. Wensel on the floor calling her name, she did not know that Mr. Wensel and Mr. Fuller were just pretending. Petitioner was offended when she realized they were joking. Mr. Fuller never threw Mr. Wensel against the building or put a broom up his rectum. Petitioner's testimony in this regard is not credible. Likewise, Mr. Fuller never inquired whether sex was the reason that Petitioner had so much energy to wash the coolers. Additionally, Mr. Fuller never asked Petitioner whether she wanted to be his lover. Contrary to Petitioner's testimony, the night crew did not discuss sexual activities on a regular basis. Petitioner was offended by many of the night crew's conversations. However, the men never used racial slurs when referring to or about Petitioner. The only racial slurs heard in the store were made by customers referring to each other. Mr. Fuller never put his hand on Petitioner's backside, cursed at her, stuck his tongue out at her, or pulled her nose. Mr. Fuller did put his finger in Petitioner's face on one occasion. He never did it again because Petitioner objected. Mr. Fuller heard that Petitioner was accusing him of being a devil worshiper. Mr. Fuller asked Petitioner to stop spreading false rumors about him. Mr. Fuller did not threaten Petitioner. Petitioner did not complain to Mr. Philyaw about any of the above-referenced incidences that offended Petitioner. Petitioner did tell Mr. Philyaw that the night crew was discussing voodoo. Petitioner did not tell Mr. Philyaw that the witchcraft conversation was directed at her. Mr. Philyaw never made a comment of any kind about Petitioner's weight. Mr. Philyaw gave Petitioner a size 5X replacement uniform because that is the size Petitioner requested. Mr. Philyaw did not know that Petitioner really needed a size 3X uniform. Petitioner claims that she called Respondent's hotline to complain about Mr. Fuller's alleged sexual harassment in November 2007. Petitioner's complaint indicates that Respondent (corporate) called her back after reaching the conclusion that no sexual harassment had occurred. More importantly, Mr. Philyaw was unaware of Petitioner's sexual harassment claim until she filed her complaint with FCHR. On or about January 2, 2008, Petitioner and Mr. Wensel were in the store's cooler. Petitioner was unloading a shopping cart when Mr. Wensel, who was subject to panic attacks, fell towards Petitioner. Petitioner reached with one arm to catch Mr. Wensel. After the incident, Petitioner and Mr. Wensel went back to work. The store's video camera did not capture the incident. If the incident had been recorded, the store's employees could not have erased the video tape. The tape is always preserved for 90 days. On or about January 15, 2008, Petitioner told Mr. Fuller that she had injured her shoulder when Mr. Wensel fell on her. Mr. Fuller told Petitioner to discuss it with Mr. Philyaw. Petitioner then talked to Mr. Philyaw. He told Petitioner that, pursuant to store policy, she should have immediately reported the accident. After finding nothing on the video tape about the fall, Mr. Philyaw told Petitioner and Mr. Wensel to file written reports about the accident. Petitioner subsequently filed a formal workers' compensation grievance about her dissatisfaction with the medical care she received for her alleged shoulder injury. The workers' compensation claim is not at issue here. Petitioner erroneously claims that the accident involving Mr. Wensel occurred as a result of a satanic spell cast on Petitioner by one of her co-workers. Petitioner's testimony in this regard is not credible. Around January 18, 2008, Mr. Philyaw learned that the Cervantes store was losing employee hours. Mr. Philyaw asked Petitioner if she would like to transfer to the store on Bayfront Street, Pensacola, Florida, where she could get more hours, work in the deli, and keep her benefits. Petitioner agreed. Petitioner went to Respondent's main office to speak with Jackie Ridgeway. Petitioner requested the transfer to the full-time position in the Bayfront store's deli. Petitioner worked with Amy Williams, a white female, and Channel Pritchett, a black female, in the deli at the Bayfront store. Ms. Williams was the deli supervisor. Ms. Pritchett was the deli cook. Petitioner assisted by cleaning and waiting on customers. Petitioner never told Ms. Williams about Petitioner's alleged shoulder injury. One day at the Bayfront store, a cooking pan fell and hit Petitioner in the face. Ms. Pritchett thought the accident was funny. Petitioner's glasses were broken when the pan fell. The incident was an accident and not the result of witchcraft or any malicious intent. Needless to say, Petitioner and Ms. Pritchett did not get along very well. They each complained to Ms. Williams about the other. Ms. Williams eventually told Petitioner that she needed to learn how to get along with everyone. Petitioner and Ms. Pritchett also worked together in the deli at the store in Cantonment, Florida. Petitioner did not like having to drive 50 miles round trip to work a shift at the Cantonment store. There is no evidence that Respondent gave Petitioner the Cantonment work assignment for any improper purpose. Petitioner worked at the Cantonment store because that is where Respondent temporarily needed her services. Petitioner also worked with Marilee Hawkins, a white female, in the deli at the store on Barrancas Street, Pensacola, Florida. One day in October 2008, a piece of paper caught fire under the steam box. Petitioner reached in with tongs, picked up the paper, and put the fire out in the deli sink. The fire did not injure Petitioner who went on working her shift as usual. Felicia Williamson, race unknown, was Petitioner's manager/supervisor at some point in time. According to Petitioner, Ms. Williamson fired Petitioner for moving too slowly. Petitioner admitted that Ms. Williamson was dissatisfied with Petitioner's work performance. Petitioner testified that she was unable to perform her job better because of the injuries she suffered while working for Respondent. There is no competent medical evidence to substantiate Petitioner's claims about her many medical problems. The date of Petitioner's termination is unknown.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 12th day of May, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 2009. COPIES FURNISHED: Carolyn Johnson Post Office Box 4671 Pensacola, Florida 32507 Joyce Clemmons Circle K 25 West Cedar Street, Suite 100 Pensacola, Florida 32502 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race or sex.
Findings Of Fact Petitioner is Valerie Miller-Moskowitz. She was employed by Respondent from August 4, 1987 until termination of her employment on September 9, 1987. Respondent is the Tom James Company, an interstate mail order clothing business based in Brentwood, Tennessee with an area sales office in Tampa, Florida. Respondent sells garments through its salespersons as opposed to operation of a retail store. These salespersons, including the office manager, are generally in the office only in the late afternoon in order to make telephonecalls and arrange appointments with customers for the following day. The manager of Respondent's Tampa office, with authority to fire, hire and impose disciplinary actions upon employees at all times pertinent to these proceedings, was Mark Dunphy. Through a process of interviews, Petitioner became a finalist for Respondent's vacant position of "operations manager" in the Tampa office. In the final interview, Petitioner went to Dunphy's home where he and his wife observed Petitioner's operation of a personal computer. Skill in the usage of the personal computer was important to Dunphy since he expected the new operations manager to prepare letters for mass mailing to potential customers through the use of a software program on the computer. The letters, extolling the company's products, would be mailed to potential customers after preparation by the operations manager. Following completion of all interviews, including a psychological evaluation of Petitioner conducted over the telephone with Petitioner by an individual hired by Respondent for that purpose, Dunphy formally hired Petitioner. This occurred sometime around the first of August of 1987. Petitioner's duties as operations manager consisted of being a "jack of all trades" with responsibility for typing, telephone answering and meeting with customers in the absence of salespersons in the office. She was also expected to operate the computer, now moved to the office from Dunphy's home, and to prepare mass mailings. Petitioner initially reported for work on August 4, 1987. At the conclusion of Petitioner's first day on the job, Dunphy went by Petitioner's home at her request. Petitioner was upset as the result of a telephone call from her husband and talked with Dunphy regarding her martial problems. After some discussion, Dunphy, who was growing hungry, asked Petitioner to have a drink and dinner at a local Mexican restaurant. Petitioner consented. The two went to the restaurant, had dinner and continued to discuss their personal backgrounds and experiences. Petitioner, who is black, related her disappointment with her present separation from her husband, who is white. Dunphy is also white. At the conclusion of the dinner, both left for their respective homes in their separate automobiles. As her employment progressed in the following days, Petitioner experienced some difficulty operating the personal computer at the office and called Dunphy's wife on several occasions for guidance in the effective use of the machine. While she managed accounting matters in the office quite well, Petitioner was unable at any time during her brief employment to produce mass mailing letters in a quantity sufficient to meet Dunphy's expectations. Although he was becoming aware that Petitioner's computer skills were not as proficient as he desired, Dunphy continued an amicable relationship with Petitioner. On August 6, 1987, he again invited Petitioner to go out for drinks, but she refused. There were subsequent invitations from Dunphy during thenext week to go out for drinks, to go jogging, and to go dancing. Petitioner declined all these invitations from Dunphy. Approximately two weeks after beginning her employment, Petitioner went to Jacksonville, Florida, for a job related training session sponsored by Respondent. Upon conclusion of the training session on or about August 14, 1987, she and Dunphy agreed in the course of a telephone conversation that Dunphy would meet her at the airport and give her a ride to her home. Dunphy complied and upon arriving at Petitioner's residence, Dunphy escorted her inside where he attempted to embrace and kiss her. Petitioner told him "you shouldn't do this to your wife." Dunphy did not attempt to press his affections further and left Petitioner's home. One day during the next week, in the course of conversation, Petitioner told Dunphy that the day, August 18, 1987, was her birthday. Dunphy proceeded to give her a birthday card in which he inscribed the following: Happy B. Day Val- you inspire me with your attitude toward life, and what life throws at us from time to time. Your[sic] tough in your determination to make a success of your self even in tough personal times. I know you will help me in achieveing[sic] my goals while we are associated together. I know I will be helpful to you in achieveing[sic] your dreams & goals. --This good for one marguerita. Mark In the ensuing days, Petitioner began to be late for work at various times, although Dunphy did not formally document this deterioration of Petitioner's attendance in any time records. Petitioner's car was burglarized during the week of August 24, 1987, and she took time from work to replace her driver's license, credit cards and other documents that were stolen from the vehicle. Dunphy became concerned about Petitioner's attendance at work and the two of them quarreled. Petitioner's husband contacted her in the early part of September, 1987. He was ready to conclude their separation and needed her to come to New York and assist in his move to Florida. Petitioner met with Dunphy on the morning of September 9, 1987, and informed him of her intention to take the following two work days (Thursday and Friday) off in order to go to New York to deal with family business matters. When Dunphy expressed reluctance to authorize the time off for Petitioner, she became angry and declared that she would be taking the time off anyway because her "family came first." Dunphy, already disappointed with Petitioner's failure to meet expectations regarding operation of the personal computer and preparation of mass mailing materials, also became angry and told Petitioner to leave since she was going anyway. Petitioner took Dunphy's response to mean that she was fired and left the business premises. Later in the day, Petitioner contacted an accountant in the company's home office for assistance in persuading Dunphy to reconsider and continue her employment. Those efforts were unsuccessful. After conclusion of her trip to New York, Petitioner wrote to Respondent's president at the company's home office on September 16, 1987, and complained of Dunphy's verbal abuse and unprofessional displays of anger. In the letter, she opined that Dunphy was a good salesman, but needed additional training in order to become a "people oriented supervisor." Notably, she made no specific reference to racial discrimination or sexual harassment in the letter, although she noted Dunphy's attempts "to pressure the Operations Manager into going out for drinks, when both parties are married."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 10th day of April, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1990. APPENDIX The following constitutes my ruling on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings Rejected, not supported by the weight of the evidence. Adopted in substance, though not verbatim. Rejected, a mere restatement of Petitioner's position. To the extent that this proposed finding seeks to establish that Petitioner rejected advances of Mark Dunphy, the proposed finding has been substantially adopted with regard to one occasion, but not verbatim. Adopted in substance. Rejected, argumentative as to legal conclusion regarding burden of proof rather than proposed finding of fact. 6 Rejected, not supported by the weight of the evidence. Rejected, relevancy, conclusion of law. Adopted in substance as to firing and date of same. Rejected, not supported by weight of the evidence. Rejected, not supported by the weight of the evidence, legal conclusion and argumentative. Rejected, not supported by weight of the evidence. Rejected, not supported by the weight of the evidence. Respondent's Proposed Findings 1.-3. Rejected, unnecessary. Modified to extent that Dunphy operated Respondent's Tampa office. Addressed in substance as to Respondent Tom James Company. 6.-10. Adopted in substance, but not verbatim. Petitioner's hiring found to have occurred on August 4, 1987, otherwise this proposed finding is adopted in substance. Adopted by reference. Not supported by weight of the evidence with regard to lack of capability of Petitioner, adopted in substance with regard to Dunphy's disappointment with her performance abilities. Adopted in substance. Petitioner's version that August 4, 1987, was her first day of work is adopted on the basis of the witness' credibility as opposed to Dunphy's testimony on this point. 16.-19. Adopted in substance. 20. Rejected, relevancy. 21.-23. Rejected, relevancy. 24. Adopted by reference. 26. Rejected, relevancy and cumulative. 27.-28. Adopted in substance. 29.-30. Rejected, relevancy. Rejected, cumulative. Rejected, cumulative. 33.-34. Rejected, unnecessary. Adopted in substance. Rejected as to Dunphy's version of these events on the basis of the comparative creditability of the witnesses on this particular point. Adopted in substance, though not verbatim. 38.-41. Adopted in substance, though not verbatim. 42.-44. Rejected, not supported by the weight of the evidence. 45.-48. Rejected, unnecessary. 49.-66. Rejected as argumentative of proposed findings postulated by Petitioner. COPIES FURNISHED: Donald A. Griffin Executi
The Issue Whether Respondent Employer is guilty of an unlawful employment practice against Petitioner Employee.
Findings Of Fact On or about November 17, 2006, Petitioner filed an Employment Complaint of Discrimination (formerly known as a "Charge of Discrimination") on the basis of disability/handicap and national origin with the Florida Commission on Human Relations. On June 15, 2007, the Commission entered a Determination: No Cause. On or about July 2, 2007, Petitioner filed a Petition for Relief with the Commission. On or about July 5, 2007, this case was referred by the Commission to the Division of Administrative Hearings. On July 18, 2007, a telephonic conference was held to schedule a final disputed-fact hearing date. The hearing date agreed upon was October 1, 2007, and a Notice of Hearing and Order of Pre-hearing Instructions issued on July 18, 2007. Neither party complied with the Order of Pre-hearing Instructions. At the time noticed for October 1, 2007, Respondent appeared for hearing. In the Joint Response to Initial Order, filed July 16, 2007, and in a subsequent Motion filed September 26, 2007, Respondent referred to itself as "Wal-Mart Stores, East L.P. (incorrectly referred-to in the caption as Wal-Mart Stores)," but made no motion to correct the style of this cause. Respondent acknowledged in its pleadings, and its counsel acknowledged orally at hearing, that it was the appropriate Respondent in this cause, regardless of the case's style. After waiting 30 minutes, Petitioner still had not appeared for hearing. The undersigned made diligent inquiry to ensure that Respondent had done nothing to discourage Petitioner from appearing, and closed the hearing.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Employment Complaint of Discrimination and a Petition for Relief. DONE AND ENTERED this 3rd day of October, 2007, in Tallahassee, Leon County, Florida. S ___ ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2007. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Amy Harrison, Esquire Lindsay A. Connor, Esquire Ford & Harrison 225 Water Street, Suite 710 Jacksonville, Florida 32202 Catrina Soriano 1826 Nekoma Court Tallahassee, Florida 32304
The Issue Whether Respondent engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact Graham is a black male. He filed an employment application with Pier 1, a "chain retailer," on August 23, 1999. The application indicated that he applied for a position as a sales associate but in fact he was to be employed as a stockroom assistant. His employment application included a block denominated, "Work Availability." Graham completed this block indicating that he was available to work between 6:00 a.m., and 12 p.m., Monday through Saturday. The employment application stated in the block denominated, "Work Availability," the following: "Although an effort will be made to accommodate individual work schedule preferences and availability, work schedules such as start time, number of daily or weekly hours and assigned work days are subject to change at any time. Availability to work on weekends is required. Number of hours may vary based on business necessity and could change an individual's employment status." Graham was hired on August 30, 1999, as a full-time employee. He worked primarily in the back stockroom. A meeting of store personnel was scheduled at the store on Sunday, November 17, 1999, at 6:30 p.m. Graham was aware of the meeting. He was 20 minutes late because he was participating in a church service at Macedonia Primitive Baptist Church. As a result of his tardiness he was presented with an Associate Corrective Action Documentation, which is a confidential Pier 1 form. The form noted that this was his first "tardy." The form as completed took no action such as suspension or loss of pay. It merely informed him that further instances of tardiness could lead to disciplinary action. Graham testified that he was treated differently from a white woman employee, one Christy Musselwhite, who did not attend the meeting, because Musselwhite did not receive a counseling form. However, Graham's personal knowledge of Musselwhite's situation was insufficient to demonstrate that Musselwhite was treated differently from Graham because of race or gender. Graham felt humiliated because he received the Associate Corrective Action Documentation form. Graham resigned from Pier 1 effective November 12, 1999, so that he could begin employment with the Florida Department of Children and Family Services at a rate of pay in excess of that which he received at Pier 1.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission Human Relations enter a final dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2001. COPIES FURNISHED: Russell D. Cawyer, Esquire Kelly, Hart & Hallman 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Kenneth Terrell Graham 2811 Herring Drive Tallahassee, Florida 32303-2511 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ronni Morrison Pier 1 Imports Post Office Box 961020 Fort Worth, Texas 76161-0020
The Issue Whether Respondent, The Meltdown on 30A (“The Meltdown”), discriminated against Petitioners, D’Shante L. LeBeaux, Erin M. Scott, and Latanya M. Scott (collectively, the “Petitioners”), in violation of the Florida Human Rights Act; and, if so, what penalty should be imposed?
Findings Of Fact The Meltdown is a restaurant operated out of a 23-foot- long Airstream trailer. It does not have tables and chairs for customers to consume their meals; it is a “to go” establishment. The trailer can comfortably hold about five people when it is in operation. The Meltdown operates on Highway 30A (hence its name) and is generally parked near the beach in Seaside, a tourist area. The Meltdown serves between 500 and 700 sandwiches per day. The restaurant is one of five owned by Mr. Shirley and managed by Mr. Haile. In February 2016, The Meltdown switched its payroll functions from Oasis to ECB. The change resulted also in a new method of signing in, on-line, by which employees were able to be paid. D’Shante L. LeBeaux is an African-American woman. At final hearing, she claimed to have a disability, but did not raise that as a basis for the discrimination claim against The Meltdown. She began working for The Meltdown in June 2016. She voluntarily left her employment when her means of transportation, Latanya Scott, resigned around August 19, 2016. While working for The Meltdown, Ms. LeBeaux was never written up or disciplined for missing work or performing poorly. Ms. LeBeaux did not cite any instance of discriminatory actions or words by her employer. She claimed that the manner in which her schedule was handled, i.e., that she did not always work the same hours as Latanya Scott, constituted discrimination. The testimony was not persuasive. Latanya Scott is an African-American woman. She is married to Erin Scott, an African-American woman. Latanya Scott was hired on June 24, 2016. On August 10, 2016, she provided a letter to The Meltdown which stated her intent to resign as of August 19, 2016. As of that date, she voluntarily ceased working for The Meltdown. Her reason for resigning was, primarily, that Mr. Haile had not shown any compassion when Latanya Scott’s grandmother got sick (and ultimately passed away). While working at The Meltdown, Latanya Scott was written up for being belligerent to other employees. She was passed over when a manager, Carolyn Bramlett, left her position and a new manager was needed. No one was hired, however, to replace Ms. Bramlett; Mr. Haile simply took over the responsibilities himself. Erin Scott is an African-American woman and is the wife of Latanya Scott. She was hired at The Meltdown on May 29, 2016, and continues to work there. She cited to no discriminatory actions by The Meltdown, but suggested that other related couples may have been treated somewhat differently than were she and her wife. Her complaints were neither confirmed nor deemed discriminatory. Erin Scott continues to work in a supervisory capacity for The Meltdown and is considered a good employee. Each of the Petitioners stated that they never received an employee handbook until recently, i.e., during the pendency of this administrative hearing. They never saw, therefore, the nepotism policy set forth in the handbook. The owner and manager maintain that all employees are given the handbook when they “signed in” as an employee the first time. Based upon the facts of this case, whether or not the Petitioners were provided an employee handbook or knew about the nepotism policy is essentially irrelevant to their claims of discrimination. There were a number of family members working at The Meltdown when Mr. Haile first began managing. When ECB came in, a nepotism policy was enacted that prevented any further employment of family members. The family members who were already there were grandfathered in, i.e., they were not asked to resign. Mr. Haile does not remember Ms. LeBeaux raising the issue of a disability at the time of her hiring. She did begin asking for fewer hours, no more than 25 per week, at some point and Mr. Haile tried to accommodate her. He learned that she and Latanya Scott were riding together, which created a small problem, but he attempted to work around that issue as well. Mr. Shirley operates all of his restaurants without tolerating discrimination or harassment. His credible testimony was that the Petitioners seem to have a problem with how the restaurant was managed rather than having a complaint about discrimination. He genuinely appears to care about his employees and to wish to do the right thing vis-à-vis his employees. In short, there was no credible or persuasive evidence of discrimination against Petitioners by The Meltdown.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent, The Meltdown on 30A, did not discriminate against Petitioners, D’Shante L. LeBeaux, Erin M. Scott, and Latanya M. Scott, and their Petitions for Relief should be denied. DONE AND ENTERED this 1st day of September, 2017, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) D'Shante LaCheryl LeBeaux Apartment B 190 Patrick Drive Defuniak Springs, Florida 32433 (eServed) Timothy Tack, Esquire Miller Tack & Madson Suite 135 3550 Buschwood Park Drive Tampa, Florida 33618 (eServed) Erin M. Scott Post Office Box 962 Defuniak Springs, Florida 32433 Latanya M. Scott Post Office Box 962 Defuniak Springs, Florida 32433 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue for determination in this proceeding is whether Respondent committed an unlawful employment practice as alleged in the Petition For Relief.
Findings Of Fact Respondent is an employer for the purposes of this proceeding. Respondent's principal place of business is in Orlando, Florida. In 1982, Petitioner was employed by Respondent as a houseman at one of Respondent's hotels located at Marco Island, Florida. Respondent worked continuously in that location until he requested a transfer to the Orlando World hotel in 1986 and received his transfer in the same year. While employed at the Orlando World hotel, Petitioner refused to follow instructions, had excessive absences and was late to work repeatedly. Petitioner received the following disciplinary warnings which finally resulted in his termination on or about October 7, 1991: March 8, 1991 - Written Warning (refused to follow a reasonable job order) March 17, 1991 - Verbal Warning (reporting to work later on 3 occasions within a 90 day period), 2/27/91, 3/3/91, 3/17/91 May 15, 1991 - Written Warning (failure to follow Respondent's work policies) July 30, 1991 - Termination Recommendation (changed to a written warning) August 2, 1991 - Written document (explaining to Petitioner his problems with respect to attendance and tardiness) October 7, 1991 - Suspension and Termination Recommendation. Respondent's rules require employees to call in at least two hours in advance of their shift starting time to report a planned absence from work. Petitioner failed to comply with Respondent's rules by failing to give Respondent timely notice of his planned absence for October 7, 1991. On October 7, 1991, Petitioner called in to report his absence 15 minutes before 8:00 a.m. when his shift started. Petitioner failed to provide credible and persuasive evidence that the Respondent's disciplinary warnings were fraudulent or untruthful. Petitioner was replaced by Mr. Martin Gamey, an Hispanic male. Respondent did not conduct an unlawful employment practice in terminating Petitioner. Respondent did not act with any bias or animus against Petitioner. Petitioner's termination was based upon Petitioner's failure to satisfy his job requirements, failure to follow instructions, excessive absences, and failure to give timely notice for planned absences.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 7th day of December, 1993, at Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1302 Respondent's paragraphs 3, 4 and 7 were rejected as irrelevant and immaterial. Respondent's paragraph 1, 2, 5 and 6-10 were accepted in substance. COPIES FURNISHED: Carlton J. Trosclair, Esquire Marriott Corporation One Marriott Drive, Department 923 Washington, D.C. 20058 Sharon Moultry, Clerk Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Nicolas Polanco 88-05 71st Street Apartment 1-K Jamaica, New York 11432
The Issue Whether Respondent committed the unlawful employment practice as alleged in the Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Petitioner is a black male and is part of a group of persons protected from unlawful discrimination. Petitioner was formerly employed by Respondent and served initially as an usher for Respondent’s business. Respondent operates theaters and concessions in Florida, and employs a number of individuals, none of whom are employed on a “full-time” schedule. Only the manager, Cindy Palmer, is considered a full-time employee. During the school year when attendance at the theaters may be presumed to be down, Respondent offers fewer hours to its employees. Conversely, during the summer months, employees may be offered more hours. Respondent’s employees are asked to fill out a form that indicates the amount of hours they are available to work and the days upon which those hours may be assigned. Pertinent to this case, Petitioner advised Respondent that he was available to work only on Fridays, Saturdays, Sundays, and Tuesdays. Petitioner asked that he be given 40 hours per week. When Petitioner applied for employment with Respondent he was required to answer a number of questions. One of the questions, aimed at addressing the seasonal aspect of Respondent’s work demands, asked: “During slow periods when school is in session, there may be only 10 to 15 hours a week to work. Is this ok?” Petitioner answered “yes.” Petitioner failed to show that any employee was given more hours than he during the slow work periods. Respondent did not cut Petitioner’s hours during his employment at the theater. Respondent did not fail to consider Petitioner for any promotion or wage increase that he applied for during his employment. Petitioner presented no evidence that any employee was more favorably treated in the assignment of hours or promoted over him. Petitioner did not apply for any promotions. Petitioner’s verbal interest in seeking additional skills was never formalized or written to management. Despite postings of methods to complain to upper management regarding the theater operations, Petitioner never notified Respondent of any problems at the theater that would have suggested racial discrimination on Respondent’s part. In fact, when he completed an investigative form on an unrelated matter, Petitioner did not disclose any type of inappropriate behavior by any of Respondent’s employees. Petitioner’s response to the question, stated that he “hadn’t seen anything inappropriate, just bad attitude.” During the period July 2010 through November 2011, Petitioner received a number of “write-ups” citing performance deficiencies. Similar “write-ups” were issued to non-black employees. Petitioner did not establish that he was written up more than any other employee. More important, Petitioner did not establish that the deficiencies described in the write-ups were untrue. Respondent’s Employee Handbook (that Petitioner received a copy of) prohibits discrimination on the basis of race. Methods to complain to upper management, including a toll-free number, were open to Petitioner at all times material to this case. Except for the filing of the instant action, Petitioner never availed himself of any remedy to put Respondent on notice of his claim of discrimination, nor the alleged factual basis for it. Petitioner was directed to leave the theater after a verbal disagreement with his supervisor, Ms. Palmer. Petitioner’s take on the matter is that he was fired by Respondent. Respondent asserts that Petitioner voluntarily quit based upon his actions and verbal comments to Ms. Palmer. Regardless, Petitioner’s race had nothing to do with why he ultimately left employment with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by Petitioner and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of July, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2012.
The Issue The issue is whether Respondent engaged in an unlawful employment practice by subjecting Petitioner to gender discrimination and retaliation in violation of the Florida Civil Rights Act.
Findings Of Fact Southgate is a student housing and dining facility located in Tallahassee, Florida, near the campuses of Florida State University, Florida A&M University, and Tallahassee Community College. On September 16, 2004, Southgate hired Petitioner Devon Rozier as a dishwasher in the cafeteria dish room. The cafeteria is open seven days a week and currently employs approximately 34 employees, some part-time and some full-time. Petitioner had just turned 16 years old when Ken Mills hired him based upon a long-standing relationship with Petitioner's father, who had worked at Southgate for many years and was an exemplary employee. Petitioner worked as a part-time employee on the night shift, 3:30 p.m. until 8:00 p.m., for a total of 20-25 hours per week. Petitioner later received a promotion out of the dish room to the grill, and also worked other positions such as attendant and greeter. Petitioner also worked in various positions to assist as needed, as did other employees in the cafeteria. At the beginning of his employment, Petitioner exhibited good performance. As time progressed, Petitioner's performance began to decline, and he openly disrespected management. Various disciplinary techniques were employed by his supervisors in efforts to improve his performance, but the improvements always proved to be short-lived. On April 30, 2009, Petitioner and his supervisor, Rasheik Campbell, had an altercation, and Petitioner left the facility. Mr. Campbell warned Petitioner before he left the facility that such action would constitute job abandonment. Despite Mr. Campbell's warning, Petitioner left the facility. Mr. Campbell took the position that Petitioner abandoned his employment with Southgate. Petitioner was no longer placed on the schedule. On May 4, 2009, Southgate sent Petitioner a letter confirming his resignation. As months passed, Petitioner made attempts to regain his position with Southgate by calling his supervisors Mr. Campbell and Mr. Jason McClung. When his attempts were met with resistance by his supervisors, Petitioner bypassed them and went directly to Ken Mills, Southgate's General Manager and Petitioner's former supervisor. Petitioner presented his case to Mr. Mills in July and August 2009, regarding his desire to return to work. Mr. Mills had previously intervened on Petitioner's behalf, out of respect for Petitioner's father, to help him keep his job when difficulties with management had arisen. This time, Mr. Mills instructed Petitioner that Mr. McClung and Mr. Campbell were his direct supervisors and that they had ultimate responsibility regarding his desired return to work at Southgate. In August 2009, at the request of Mr. Mills, once again doing a favor for Petitioner based upon the long-standing work history of Petitioner's father at Southgate, Mr. Mills, Mr. McClung, and Mr. Campbell met with Petitioner and his mother, Jennifer Rozier. At the meeting, they discussed Petitioner's request to return to work at Southgate. During the meeting, Mr. McClung and Mr. Campbell did not feel that Petitioner exhibited any improvement in his behavior and respect for authority. As a result, Mr. McClung and Mr. Campbell chose not to re-hire Petitioner. Petitioner claims the following conduct he witnessed while working at Southgate was discriminatory: a) females were allowed to sit down at tables and eat while on the clock; b) females were allowed to use the computer while on the clock; and c) Petitioner was required to perform the females' work when they failed to show up or wanted to leave early. Petitioner further claims that his firing was retaliatory based upon one complaint he made to Mr. Campbell in February 2009 about having to perform the tasks of others who failed to come to work. Other employees, including Jodece Yant, Petitioner's girlfriend, and Darnell Rozier, Petitioner's own brother, testified that both males and females could be seen eating or using the computer while on the clock, and all were told to perform others' tasks when they failed to come to work or left early. Petitioner conceded that on occasion he engaged in the same behaviors he alleges to be discriminatory. Petitioner obtained a full-time job at Hobbit American Grill on January 21, 2010, and, as of the date of the hearing, continued to work there. His rate of pay at Hobbit American Grill is currently $7.25 per hour, and he testified he is better off there than at his former employer, Southgate. Petitioner is currently earning the same hourly wage ($7.25) as he was earning when employed at Southgate. Southgate had policies and procedures in force that prohibited, among other things, discrimination on the basis of gender or any other protected characteristics. Southgate's policies and procedures also prohibited retaliation. Petitioner received a copy of the employee handbook, which contained Southgate's anti-discrimination policies and was aware that Southgate had such policies in place.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of November, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2010. COPIES FURNISHED: Desiree C. Hill-Henderson, Esquire Littler Mendelson, P.C. 111 North Magnolia Avenue, Suite 1250 Orlando, Florida 32801 Micah Knight, Esquire 123 North Seventh Avenue Durant, Oklahoma 74701 Devon A. Rozier 7361 Fieldcrest Drive Tallahassee, Florida 32305 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
