The Issue The issue is whether Respondent discriminated against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner, Richelieu Williams, an African-American male, was employed as a truck operator, working out of the company's Jacksonville yard at Respondent C and C Pumping Services. C and C Pumping Services is a family-owned cement company with offices, at one time or another, in Groveland, Jacksonville, Tampa, Marianna, and New Orleans. Chris Holdorf, Sr., is the vice president of the company, while his son, Chris Holdorf, Jr., is the manager of the Jacksonville yard. Petitioner appeared through counsel and offered no testimony, whether live or through deposition. When asked, counsel for Petitioner stated that Petitioner voluntarily chose not to attend the final hearing. Petitioner's case, therefore, consisted solely of his initial claim of discrimination filed with the Commission, the Commission's Determination: No Cause, and his Petition for Relief, as well as cross-examination performed by his counsel at hearing. Petitioner claimed in his charge of discrimination filed with the Commission that he was the target of racial epithets by an employee of Respondent, a fellow pump operator named "Paul." He noted that Paul had a small tattoo of a swastika on the back of his hand. Petitioner's charge of discrimination also stated that, following the racially-charged insults, his truck was sabotaged. He claims he informed Chris Holdorf, Jr., his supervisor, of the racial epithets and the alleged sabotage of his truck, and that no action was taken. Mr. Holdorf has no recollection of any complaints by Petitioner about racial discrimination or the alleged sabotage of the truck, and he believes he would certainly know if there was any problem with the equipment under his care. He did acknowledge that Paul had a small tattoo of a swastika on the back of his hand. Petitioner started work with Respondent in the Fall of 2009. He was a good employee and caused no problems for management. Chris Holdorf, Jr., considered Petitioner a "good friend." Petitioner left the employ of Respondent for a short time in 2011 to work at the Hard Rock Café, but returned in November 2011. On December 19, 2011, Petitioner inexplicably quit his job with Respondent, notifying Chris Holdorf, Jr., by telephone message that he had quit. He left his truck keys, phone, and fuel card in the truck when he left for the night on December 19. Chris Holdorf, Jr., never heard anything about the alleged discrimination and truck sabotage until he received the discrimination statement from the Commission in April 2012. Further, the work schedules of Petitioner and Paul made it unlikely that the two of them were present at the same time on the Jacksonville yard more than 15-20 minutes a month. Chris Holdorf, Sr., was in almost daily contact with all of his truck operators and never heard from Petitioner that he had been discriminated against or that his truck had been sabotaged. Paul no longer works with Respondent, having moved away recently. Chris Holdorf, Jr., would be the person who would receive any complaints about discrimination or sabotage in the Jacksonville yard. He received no such complaints from Petitioner or any other employee of the company concerning Petitioner's allegations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding Respondent did not commit the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 4th day of April, 2013, 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 4th day of April, 2013. COPIES FURNISHED: Sean C. Barber, Esquire Law Offices of Bohdan Neswiacheny 151 College Drive, Suite 1 Orange Park, Florida 32065 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Leslie Holdorf Chris Holdorf, Sr. C and C Pumping Services 19968 Independence Boulevard Groveland, Florida 34736 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding is whether Petitioner was the subject of an unlawful employment practice based on his age.
Findings Of Fact Currently, Petitioner is a retired, 68-year-old male. He retired from Respondent at the age of 66. Petitioner began his employment with Respondent as a truck driver. The position of truck driver, involves many long hours of driving (sometimes over 56 hours) various interstate and intrastate truck routes, along with some lifting and exposure to diesel fumes. Petitioner attributed a variety of illnesses and health problems to his work as a truck driver. Some of the illnesses and health problems are hypertension and heart blockage and failure, which resulted in the implantation of a pacemaker, carpal tunnel syndrome, polyneuropathy, muscular and autonomic system problems and pathological hyper-insomnia. Petitioner offered no evidence that any of these conditions resulted from his employment with Respondent. Prior to September 9 or 10, 2000, at the age of 64, Petitioner was hospitalized for heart problems. Around September 9 or 10, 2000, Petitioner was released from the hospital. Upon his return to work, he gave his employer a physician’s note indicating that his work duties be limited to 40 hours a week. Petitioner met with Respondent’s transportation manager regarding whether less lengthy routes were available or whether his schedule or work duties could be adjusted. The employer did not have the ability to adjust the length of the routes, but added a second driver to ride and help with the driving on any route that Petitioner drove. Petitioner inquired about office work and was told that if he was interested in such work he needed to apply at the main office to see what was available. In part, because Petitioner liked driving and in part because the lesser number of hours involved in office work would cause Petitioner to earn less, Petitioner elected not to pursue and did not apply for such office work. No adverse employment action was taken against Petitioner, and Petitioner continued to work for Respondent. At some point during this meeting, Petitioner alleges that the transportation manager said, “Why don’t you just retire.” Petitioner offered no specific context for this statement other than it was a general conversation about his health and closeness to retirement age relative to the adjustments that could be made to his driving duties. One isolated statement such as the one above does not demonstrate any intent to discriminate on Respondent’s part based on Petitioner’s age, especially since no adverse employment action was taken against Petitioner and Petitioner continued to work for Respondent. Around January 1, 2001, for medical reasons, Respondent approved a Leave of Absence with pay for Petitioner. In June or July, 2002, Petitioner filed his first workers compensation claim with Respondent. Petitioner’s claim was turned over to Respondent’s workers' compensation insurer, Kemper Insurance Company. Petitioner did not offer any evidence that Kemper was under the direction or control of Respondent in any decisions Kemper made regarding paying or litigating Petitioner’s claim. In any event, Petitioner’s claim was contested. The main reason the claim was contested was that Kemper alleged that Petitioner’s “injuries” were not work-related. Over the years, Petitioner has amended his claim to include, among other health claims, the health problems listed above. Kemper has maintained its defense. During a mediation session on December 11, 2002, at which the employer was not present and in response to an inquiry regarding Kemper’s defense, Kemper’s representative stated that except for the carpal tunnel claim, all of Petitioner’s medical conditions were due to the natural aging process. Petitioner claims this statement demonstrates an intent on his employer’s part to discriminate against him based on his age. Such an isolated statement does not demonstrate such an intent especially since such conditions can be age related, there was no expert medical evidence demonstrating the cause of Petitioner’s health problems, the statement did not come from the employer, and there was no evidence that the insurer was under the direction or control of the employer regarding decisions to litigate or the factual basis for the defenses that the insurer would raise. The workers' compensation litigation continues to date. In the interim, Petitioner remained on a leave of absence with pay until January 1, 2003. He retired thereafter. There was no evidence that Respondent discriminated against Petitioner or that Petitioner suffered any adverse employment action based on his age. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relation 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Glynda Copeland Qualified Representative Tree of Life, Inc. Post Office Box 410 St. Augustine, Florida 32095-0410 Robert C. Johnson 560 Florida Club Boulevard, Suite 112 St. Augustine, Florida 32084
The Issue The issue in this proceeding is whether the Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Respondent Republic Parking System, Inc., operates paid parking lots and facilities at a variety of public and private locations. One of its locations is at the Northwest Florida Beaches International Airport in Panama City, Florida. As part of its operations, Republic maintains an equal- employment opportunity, anti-sexual harassment and non- discrimination policy. The policy also prohibits harassment at work by anyone, including supervisors, co-workers or customers. The evidence showed that the policy is disseminated to its employees in its Employee Handbook and is consistently enforced by the company. Under its Employee Handbook the company generally follows a progressive-disciplinary policy for violations of company policy, with increasing penalties ranging from reprimands to dismissal. However, certain violations of policy, such as use of abusive language or being discourteous to customers, supervisors or fellow employees, may result in immediate dismissal. In October of 2010, Petitioner, Joni Barkley, an African-American, was employed by Respondent as a parking booth cashier at the international airport in Panama City. Upon employment, Ms. Barkley received a copy of Republic Parking System, Inc.’s Employee Handbook and signed an acknowledgement of her receipt of that handbook. She was aware of the company’s policy regarding discrimination and harassment. During her tenure and prior to the end of December 2013 or early 2014, Ms. Barkley had no complaints of racial discrimination or harassment towards her. On the other hand, she had been verbally counseled about a remark she made that co- employees had interpreted as racially motivated. Respondent also had been disciplined for repeated tardiness. Additionally, during her employment, Ms. Barkley was known for misinterpreting statements of others and believing innocent statements or actions by others were directed at her. Towards the end of December 2013 or early January of 2014, one of Ms. Barkley’s co-workers, Eva Bishop, a Caucasian, showed her co-workers, including Ms. Barkley, several photographs and a video of her trip to Alaska. Among the photos she showed to everyone was a picture of a Ketchikan Native American clan house. The picture depicts a rustic blue wooden structure with several Alaskan Native American symbols painted on it to form a face with an open mouth for the front entry. Three large Native American totem poles dominate the front of the structure and are placed at the front corners and in the middle over the front entry way to the structure. When Ms. Barkley was informed that the photo was of a clan house, she mistakenly believed that the photo was related to the Ku Klux Klan and thought Ms. Bishop was referring to a “Klan” house. Unfortunately, Ms. Barkley maintained the correctness of her mistaken belief even though several co- workers who had seen the same picture tried to explain the picture to her. Through January of 2014, Ms. Barkley and Ms. Bishop had several arguments and animated discussions. Ms. Barkley insisted that Ms. Bishop was a member of the Ku Klux Klan and accused her of the same, with her rank in the Klan growing from member to president of the local chapter. She also insisted that the picture Ms. Bishop had shown Petitioner was related to the Ku Klux Klan. Due to her mistaken beliefs, Ms. Barkley became very anxious and fearful of Ms. Bishop. On February 5, 2014, Ms. Barkley first reluctantly complained about Ms. Bishop to Kim Hall, Republic’s Assistant Manager and Ms. Barkley’s immediate supervisor. She complained that Ms. Bishop had used racial slurs in talking with her and had discussed with her the Ku Klux Klan. Ms. Hall immediately took Ms. Barkley to Kelly Blum, Republic’s General Manager at the Panama City airport. Ms. Barkley made the same complaint, but indicated that she “loved” Ms. Bishop and did not want to see her fired. Shortly thereafter, Ms. Blum met with Ms. Barkley and Ms. Bishop together, and told them that they could not fight with each other at work. At the conclusion of the meeting, Ms. Barkley and Ms. Bishop hugged, apologized to each other, said they loved each other and told Ms. Blum they could work together. There was no evidence that demonstrated the manner in which Ms. Blum investigated or handled Ms. Barkley’s complaint was intimidating, harassing or discriminatory. Ms. Blum also stated that she would try to avoid scheduling Ms. Barkley and Ms. Bishop on the same shift. However, due to limitations in personnel, Ms. Blum could not ensure that the two employees would not be on the same shift. Unfortunately, sometime after this conversation, Ms. Barkley worked two hours with Ms. Bishop because Ms. Bishop’s replacement for the next shift was late or couldn’t make it in to work due to bad weather. The manager that day offered to stay with Ms. Barkley, but Ms. Barkley said it would be alright and that she could work with Ms. Bishop present. The evidence did not demonstrate that the one-time, unanticipated shift overlap was in retaliation for Ms. Barkley’s earlier complaint. Over the next several days and notwithstanding their mutual apologies, Ms. Barkley and Ms. Bishop continued to argue with each other, create a hostile work environment and use abusive, profane language. Eventually, Ms. Barkley called the F.B.I. and continued to accuse Ms. Bishop of being a racist and a member of the Ku Klux Klan. At some point, Ms. Barkley insisted on showing Ms. Bishop some books about the Ku Klux Klan, again accused Ms. Bishop of being a member of the Ku Klux Klan, and indicated that Ms. Bishop’s connection to the Klan scared her. Ms. Bishop told Ms. Barkley, in essence, that the KKK hung niggers, and asked why Ms. Barkley thought she would take a similar action. Ms. Barkley responded and, in essence, referred to Ms. Bishop as a white cracker bitch who would hang niggers from trees and that she better hang her with her pearls on. As a consequence, Ms. Blum looked into the continued behavior and reported her concerns about Ms. Barkley’s and Ms. Bishop’s behavior to her supervisor, Regional Manager Linda Kelleher. Ms. Kelleher requested that Republic’s human resources department investigate the matter. Again, there was no evidence that demonstrated this inquiry was intimidating, harassing or discriminatory towards Ms. Barkley. Jan Veal, Republic Parking System, Inc.’s Director of Human Resources, interviewed all witnesses, including Ms. Barkley, Ms. Bishop, Ms. Williams, Ms. Hall, Ms. Blum, and Ms. Kelleher. During the investigation, Ms. Bishop admitted using racial epithets towards Ms. Barkley. Based upon Ms. Bishop’s admission, Ms. Bishop was suspended, with pay, pending the conclusion of the investigation. Shortly thereafter, following Ms. Veal’s interview with Ms. Barkley and the other witnesses’ report of the racial remarks of Ms. Barkley, Ms. Barkley also was suspended with pay, pending the conclusion of the investigation. Such actions were reasonable since both Ms. Bishop and Petitioner were at fault in their behavior towards each other. On February 25, 2014, Republic Parking Systems, Inc., terminated Ms. Barkley’s employment, having concluded that she used offensive and threatening language of a racial nature including the use of profanities and creation of a hostile work environment in violation of company policies. Republic Parking System, Inc., terminated Ms. Bishop’s employment on the same day for the same reasons. As such, the evidence was clear that both employees engaged in similar behavior and were disciplined in the same manner. Both were terminated. Based on these facts, Petitioner failed to establish that Respondent discriminated against her based on race or retaliation when it terminated her from employment. As such, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter an Order dismissing the Petition for Relief. DONE AND ENTERED this 4th day of August, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 2015. COPIES FURNISHED: Joni Marie Barkley 15221 Banks Drive Southport, Florida 32409 (eServed) Jan Veal Republic Parking System, Inc. Suite 2000 633 Chestnut Street Chattanooga, Tennessee 37450 James Scott McDearman, Esquire Grant Konvalinka and Harrison, P.C. 633 Chestnut Street Chattanooga, Tennessee 37450 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race, age, sex, or as retaliation in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, a 56-year-old African- American female, as a Food Support Worker at Florida State Hospital in Chattahoochee, Florida, at all times relevant to these proceedings. Petitioner was promoted to the position of Food Service Worker on May 10, 2002, with probationary status until May 10, 2003. On February 12, 2003, Petitioner was terminated from her employment for failure to satisfactorily complete her probationary period in the career service. In the course of her employment with Florida State Hospital, Petitioner was aware of the strict safety guidelines implemented by Respondent to protect employees from injury. Petitioner also knew that violation of the safety rules could result in dismissal of an erring employee. Violations of these policies had resulted in dismissal of both non-minority and minority employees in the past. On February 9, 2003, due to an unsafe act and violation of Respondent’s safety rules, Petitioner proceeded to cut the tip of her left thumb in the process of slicing cabbage. Petitioner was not using a cutting glove, a mandatory requirement of the safety rules. As a result of this rule violation, Respondent terminated Petitioner’s employment on February 12, 2003. At final hearing, Petitioner admitted the cutting injury to her finger, but contended that termination of employment had not been effected for other younger white employees for similar offenses in the past. These allegations of Petitioner were non-specific and uncorroborated; they are not credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 3rd day of November, 2004, in Tallahassee, Leon County, Florida. S DON W. 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 November, 2004. COPIES FURNISHED: Annette Carroll 10202 Northwest Third Street Bristol, Florida 32321 Kathi Lee Kilpatrick, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000 Jacqueline H. Smith, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent, Pritesh, Inc., d/b/a IHOP 36-151 ("IHOP"), committed unlawful employment practices contrary to section 760.10, Florida Statutes (2011),1/ by discharging Petitioner from her employment in retaliation for her complaints regarding racial and religious discrimination in the workplace.
Findings Of Fact IHOP is an employer as that term is defined in subsection 760.02(7), Florida Statutes. IHOP is a restaurant in Leesburg. IHOP is owned by Pritesh Patel, who owns and operates a total of four International House of Pancakes stores in the Leesburg area through his corporation, Pritesh, Inc. Petitioner is a black female who is an observant Jew. Because of her religious beliefs, Petitioner does not work on the Sabbath, from sundown on Friday until sunset on Saturday. Petitioner was hired to work as a server at IHOP on March 19, 2012. She made it clear that she did not work on the Sabbath, and IHOP agreed to respect her religious beliefs. There was some difference in recollection as to the notice Petitioner gave to IHOP. Petitioner testified that she made it clear she could not work until sundown on Saturdays. The store manager, Brian Jackson, also recalled that Petitioner stated she could only work Saturday evenings. Mr. Patel testified that Petitioner said that she could work on Saturday "afternoon." Petitioner's version is credited as being more consistent with her stated beliefs, though there is no doubt that Mr. Patel was testifying honestly as to his recollection. Petitioner was the only black server working at IHOP at this time. Both Mr. Patel and Mr. Jackson credibly testified that IHOP has had many black servers through the years. Mr. Jackson noted that Petitioner only worked for IHOP for a period of two weeks and therefore was in no position to judge IHOP's minority hiring practices. Petitioner testified that assistant manager Hemanshu "Shu" Patel, a relative of the owner, created a hostile working environment for her from the time she started on March 19. She complained that Shu would alter the seating chart so that she would have fewer tables to cover, meaning a reduction in her tips. Petitioner also stated that Shu was disrespectful and rude, in a manner that caused her to believe there was a racial motivation behind his actions. Despite the fact that Shu was subordinate to Mr. Jackson, Petitioner believed that Shu was really in charge because he was a relative of Mr. Patel and therefore "untouchable" as an employee of IHOP. Petitioner's main complaint was that Shu, who was in charge of work schedules for the restaurant, scheduled her to work on Saturdays. Petitioner testified that on the first Saturday of her employment, March 24, Shu called her to come into work at noon. She replied that she could not come in until after sundown. This problem was apparently worked out to Petitioner's satisfaction, and she was not required to report to work on Saturday afternoon. However, when Shu posted the next week's schedule on the following Tuesday, Petitioner saw that she had been scheduled to work on the morning of Saturday, March 31. Petitioner complained. Both Mr. Patel and Mr. Jackson testified that Shu had merely made an error in scheduling that was rectified as soon as Petitioner notified them of the problem. Petitioner did not deny that the problem was resolved mid-week, well before any Sabbath conflict could arise. Mr. Patel testified that he wanted Petitioner to work from 4 p.m. until midnight on Saturday, March 31, so that she would not lose a day's work due to the scheduling error. Shu phoned Petitioner early on Saturday afternoon and asked her to come in. Petitioner told Shu that she could not come in until 8 p.m. Mr. Patel testified that he did not need someone to work a four-hour shift, and that Petitioner was told not to come in. As a further reason for declining to work on Saturday evening, Petitioner testified that she had only been trained for the morning shift. Mr. Jackson testified that the only distinction between the dayshift and the nightshift is that the latter is less busy. All servers are trained for the morning shift. Mr. Jackson stated that, once trained for the morning shift, a server would find the night shift "a piece of cake." Petitioner's reason for not working in the evening was not credible in this respect. Mr. Patel testified that he had no problem with Petitioner's not working on that Saturday, provided that she understood she was going lose a day. Mr. Patel stated that from his point of view the problems began when Petitioner insisted that he give her weekday hours to make up for the lost Saturday hours. Mr. Patel declined to cut another employee's hours for Petitioner. Petitioner came in to work on the morning of Sunday, April 1. Sunday morning is a busy time for IHOP. According to head server Bernadine Hengst, Petitioner stood near her at the register and voiced her complaints about Shu, who was working in the kitchen. Shu heard Petitioner and stepped into the dining room, asking her, "You got something to say to me?" Petitioner and Shu became loud, and their argument was moved outside for fear of disturbing a restaurant full of people. Petitioner finished her shift then went home and composed a letter to Mr. Patel. She made copies of the letter for every employee at IHOP. Ms. Hengst was the first to see the letter. She phoned Mr. Jackson at home to tell him about it, and Mr. Jackson phoned Mr. Patel. The letter read as follows: On March 19, 2012, I was hired to work as a server. I am a professional, pleasant, respectful, prompt and dutiful individual. As the only African-American server, it is imperative that you know since I have arrived at IHOP, I have faced fierce blatant hostility from a manager ("Shu") and co- workers ("C.C., Misti and Cherish"). I feel Shu has deliberately created a divisive and hostile working environment. It is my understanding Shu is a family member yet his behavior is definitely bad for business. On two separate occasions, Shu altered the seating chart that Brian originally created and took two tables from me. He lacks proficient management skills and is totally unprofessional, disrespectful and rude. On Sunday, April 1, 2012, Shu spoke to me in a loud, impolite manner in front of staff and customers. Shu communicated in a very bellicose fashion and for a moment, it felt as though he would physically attack me. You must take it serious that Shu's conduct is detrimental to your business. When Shu hired me I made it clear that I am Jewish and do not work on the Sabbath ("Saturday"). Nevertheless, Shu called me to come into work on Saturday about noon; I told him I would come in after the Sabbath at 7:00 p.m. The following week I was scheduled to work a Saturday, which in turn caused me to lose a day of work. Also on April 1, 2012, Shu assigned me only two booths for the whole day; when I spoke up about it he threatened to take another booth from me. This type of attitude and his unfair behavior cannot be tolerated in the United States of America in 2012. Shu is outwardly mean, discriminative, and racist towards me. He acts like a tyrant, a bully and he feels he is untouchable. On Sunday, April 1, I was only assigned two booths while my co-workers had four to six tables. This was unfair seating arrangements. At the end of the day, Bernie [Hengst] told all the servers to tip out the busboy, yet I did not because I was unjustly treated by only being assigned two tables. This was one-sided and insulting. I am an exceptional waitress and I depend on this job to pay my bills. During my first week, I was scheduled to work 36.10 hours and this week I was only given approximately 23.0 hours. Everyone should be treated fairly and equally. I ask that you continue to give me a full schedule each week. This letter officially informs you of the battles I have dealt with in your establishment and I have not worked here for one whole month. All Americans have the right to work without being harassed. I urge you to intervene and equitably resolve this issue. Ms. Hengst testified that Shu is a loud person who "talks with his hands," but she saw nothing that gave her the impression that Shu would "physically attack" Petitioner. She did not detect that Shu treated Petitioner any differently than he treated other servers. Ms. Hengst saw Petitioner as an equal participant in the April 1 confrontation. As to Petitioner's complaint about the number of tables to which she was assigned, Mr. Jackson testified that servers are always trained on two booths and then moved to four booths after training is completed. He stated that Petitioner was doing a "terrible" job working four booths, which caused Shu to move her down to two. Mr. Jackson stated that it is counterproductive to overwhelm a new server, and that the server must demonstrate the ability to perform the basics before taking on more tables. On the morning of April 2, after reading Petitioner's letter, Mr. Patel went to the IHOP and sat down for a meeting with Petitioner in hopes of addressing her complaints. Mr. Patel testified that the first thing Petitioner asked him was, "Do you know how many black employees you have?" Though he had been willing to discuss Petitioner's grievances concerning scheduling, Mr. Patel decided to fire Petitioner when she started "threatening us" based on claims of "black and white discriminating." He decided to fire Petitioner for the future of his business, because he did not want the problems associated with allegations of discrimination. Mr. Jackson was also at the April 2 meeting, and testified that Petitioner claimed she was being singled out because of her race. Based on all the testimony, it is found that Petitioner had little basis for claiming that IHOP was discriminating against her based on her race or religion during the actual course of her job. She was mistakenly scheduled to work on Saturday, but was not required to come in to the store once she made management aware of the error. She did lose one shift's worth of work for March 31, but that was partly due to her declining to work the evening shift. The evidence established that Shu Patel was loud, somewhat hotheaded, and perhaps not the ideal choice for managing a busy restaurant, but did not establish that he singled out Petitioner for particular abuse because of her race or religion. The evidence established that Petitioner's poor job performance was the cause of at least some of the friction between her and IHOP management. However, Mr. Patel's own testimony established that he dismissed Petitioner in direct retaliation for her complaint of discriminatory employment practices. IHOP offered no legitimate, nondiscriminatory reason for Petitioner's dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Pritesh, Inc., d/b/a IHOP 36- 151 committed an act of unlawful retaliation against Petitioner. It is further recommended that the Florida Commission on Human Relations remand this case to the Division of Administrative Hearings for an evidentiary proceeding to establish the amount of back pay/lost wages owed to Petitioner. DONE AND ENTERED this 5th day of March, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2013.
The Issue The issue in the case is whether the termination of Petitioner's employment by Respondent constituted discrimination against Petitioner on the basis of gender.
Findings Of Fact Petitioner is a female, a member of a protected group under applicable law, and was at all times material to this case, employed by Respondent until the termination of employment that is the subject of this dispute. Respondent is an employer as the term is defined by relevant sections of the St. Petersburg Municipal Code and the applicable Pinellas County Ordinance. During the period of time relevant to this dispute, Sam Obinwa owned Respondent. During the period of Mr. Obinwa's ownership, Respondent was a business engaged in providing health care supplies, including pharmaceuticals to customers. Beginning in July 1996, Petitioner was employed as a courier by Respondent. Petitioner was primarily assigned to make deliveries of supplies to Respondent's customers. Respondent also employed a second courier, a male, during this period. At some point during Petitioner's employment, Mr. Obinwa hired an office manager, Kim Henderson. Ms. Henderson became Petitioner's supervisor. Ms. Henderson was responsible for the operation of the office, including receiving customer complaints and resolving employee disputes. Mr. Obinwa testified that he received information related to the office operations from Ms. Henderson and relied upon it in making the decision to terminate Petitioner's employment. According to Mr. Obinwa's testimony, he received complaints regarding Petitioner's job performance and behavior from both customers and Ms. Henderson. Mr. Obinwa testified that he discussed the complaints with Petitioner during her employment. On December 14, 2003, Mr. Obinwa met with Petitioner and explained that her employment was being terminated. As grounds for the termination, Mr. Obinwa, in a termination letter provided to Petitioner, cited complaints about her behavior from both customers and work associates. The complaints included lack of cooperation, abusiveness, failure to follow instructions or to adhere to the delivery schedule, and missed or late medication deliveries. Petitioner asserts that she was terminated on account of gender. There is no credible evidence, direct or indirect, that Respondent's termination of Petitioner's employment was on account of gender. At the time of Petitioner's termination, Respondent employed eight to nine persons, including six to seven females. The employee most similarly situated to Petitioner (the male courier) was not terminated; however, there is no evidence that there were complaints regarding his behavior from either customers or work associates. At the hearing, Petitioner asserted that the male courier generally received the same treatment as did she. The evidence establishes that Petitioner received an additional benefit that was not provided to the male courier. Petitioner was permitted to use a company delivery vehicle for occasional personal transportation. There is no evidence that the male courier was permitted to take the company vehicle for personal use. Petitioner testified that another male employee identified as Herman Jones was hostile towards her and towards other women working for Respondent. Petitioner claimed that Mr. Jones was somehow responsible for her termination. Mr. Jones was a pharmacy technician. Mr. Jones was responsible for imputing prescription information into the computer system and for preparing the medications according to the prescriptions. Prior to being delivered to the customers by the couriers, the medications were checked by a pharmacist. There is no credible evidence that Mr. Jones had any supervisory duties related to Petitioner. There was testimony suggesting that there were personality conflicts between Petitioner and Mr. Jones. There is no evidence that Mr. Jones was involved in Mr. Obinwa's decision to terminate Petitioner's employment, other than the general consideration Mr. Obinwa gave to the complaints from Petitioner's co-workers related to her behavior in the office. At the hearing, Petitioner presented supportive letters from five customers who were apparently pleased with Petitioner's performance. Petitioner made between 100-200 deliveries each week to Respondent's customers. Mr. Obinwa testified that some of the customers to whom Petitioner made deliveries were happy and that others were not. No evidence related to damages to Petitioner was presented during the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's complaint be DISMISSED. DONE AND ENTERED this 1st day of December, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 1st day of December, 2004. COPIES FURNISHED: Stephanie N. Rugg City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731-2842 Suzanne M. Mucklow, Esquire Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756 Willie Mae Curry 2702 4th Street, South St. Petersburg, Florida 33705-3641 Donna J. Buchholz, Esquire D. J. Buchholz, P.A. 4320 El Prado Boulevard, 15 Tampa, Florida 33629
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2004),1/ by discriminating against Petitioner based on her national origin.
Findings Of Fact Arthrex is a company that designs and manufactures orthopedic surgical tools, implants and devices for surgeons, medical facilities, and hospitals. Arthrex is regulated by the United States Food and Drug Administration ("FDA") and maintains certification through the International Organization for Standardization ("ISO"). Arthrex is an employer as that term is defined in Section 760.02, Florida Statutes. Petitioner is a Hispanic female, whose primary language is Spanish. Beginning in June 2001, Petitioner worked in the cleaning and packaging area of Arthrex's production facility. "Cleaning" in this context should not be confused with janitorial services. Petitioner's job was more technical and exacting and involved the maintenance of a sterile, disinfected work area and equipment in the manufacture of items that, in some cases, are surgically implanted in the human body. She worked in the company of 10 to 12 co-workers within a relatively confined space. Arthrex obtains staffing for its cleaning and packaging area through an independent contractor, Randstad, a large employment services company. On June 13, 2003, Petitioner accompanied a friend to the local Randstad office to assist the friend in applying for a job with Arthrex in the cleaning and packaging area. Petitioner became angry with the Randstad representative who performed the screening and testing of Petitioner's friend. Petitioner believed that the Randstad employee decided at the outset not to hire her friend, and so tested the friend on difficult subjects having nothing to do with the Arthrex cleaning and packaging job, such as her ability to use a computer and her ability to "write, read and talk perfect English." Petitioner stated that other applicants were not subjected to the same scrutiny as was her friend and that both she and her friend felt humiliated by the "rude" Randstad employee. Immediately after the job interview, the Randstad representative phoned Margarita Alvarez, the human relations manager for Arthrex, and told Ms. Alvarez that Petitioner had "made a scene" at the Randstad office. Ms. Alvarez asked the Randstad representative to put her complaint in writing, and she would then address the matter with Petitioner. Shortly after the phone call, Ms. Alvarez was conducting an employee relations meeting in her office when Petitioner walked into her office. Petitioner began complaining loudly about the "ridiculous" hiring process employed by Arthrex, waving her hands and stamping her foot in anger. Ms. Alvarez told Petitioner that she would discuss the matter after her meeting was over. Petitioner walked out of Ms. Alvarez's office saying, "Thank you for nothing." Petitioner then proceeded to stamp her way down to her workplace, continuing to display her anger and disrupt the work of the other employees in her area by complaining loudly about Arthrex's hiring practices. Ms. Alvarez testified that Petitioner's behavior violated Arthrex's written policies regarding hostile, disruptive behavior in the workplace. Ms. Alvarez prepared a written warning called "performance correction notice" dated June 17, 2003. The notice described the disruptive behavior Petitioner engaged in on June 13, 2003, and stated that Petitioner was expected to maintain a "friendly work environment" and to express her disagreements with company policy "respectfully[,] . . . in private with [her] immediate supervisor or with Human Resources." The notice further warned Petitioner that any further "unprofessional conduct" (antagonism, disruptive behavior or hostility) could subject Petitioner to a "final warning." On the afternoon of June 18, 2003, Petitioner met with Ms. Alvarez and Lea Custodio, Petitioner's immediate supervisor, who had taken the day off on June 13, 2003. Ms. Alvarez presented Petitioner with the performance correction notice. She explained that while she understood Petitioner's frustration, she could not allow such displays of temper in the workplace. Ms. Alvarez testified that she believed Petitioner understood the situation, and she encouraged Petitioner to write down her thoughts, comments, or corrections before signing the notice. Ms. Alvarez told Petitioner that she could write her response in Spanish, if that would allow her better to express herself. Ms. Alvarez is fluent in Spanish. On June 19, 2003, Petitioner submitted a handwritten note to Ms. Alvarez. Written in Spanish, the note expressed Petitioner's belief that the Randstad representative discriminated against her friend by imposing unreasonable requirements for the cleaning position in question. Petitioner was not disciplined in any way for either the form or content of this note, which was incorporated with the performance correction notice as part of Petitioner's employment file. Petitioner testified that she could not recall having been disciplined for the June 13, 2003, incident. She denied causing a disturbance at the Randstad facility or at her own workplace. She admitted writing the note and submitting it on June 19, 2003, but testified that Ms. Alvarez asked her to document the incident because of other complaints she had received about the Randstad representative. Petitioner's testimony is inconsistent with the documentary evidence, including the self-justifying language of her own handwritten note. Ms. Custodio's testimony corroborated that of Ms. Alvarez's concerning the disciplinary meeting held on June 18, 2003, at which Petitioner was given the performance correction notice and counseled by Ms. Alvarez as to the company's expectations regarding her behavior. Petitioner's testimony as to the June 13, 2003, incident and its aftermath is not credible. On or about August 10, 2003, a personal conflict arose between Petitioner and a co-worker, Pierre Escanio. Petitioner loudly questioned the quality of Mr. Escanio's work. In the cleaning and packaging area, the workers' products were commingled into single lots and sent to Arthrex's quality control division for review. Petitioner claimed to be concerned that Mr. Escanio's poor work would cause quality control to return the entire lot, meaning that everyone would have to redo their work. Ms. Custodio, the supervisor, attempted to calm the situation by telling Petitioner that she would talk to Mr. Escanio about his work. Ms. Custodio did so despite the fact that she had trained Mr. Escanio and knew him to be a competent employee. Ms. Custodio next told Petitioner that she would separate Petitioner's work from that of Mr. Escanio, marking the items so they would know whose work had been rejected by quality control. Despite Ms. Custodio's effort, Petitioner continued to complain. Ms. Custodio finally told Petitioner to stop making these complaints in front of the other dozen or so people in the work area. Ms. Custodio believed that Petitioner was questioning her authority in front of the other employees. She went to Ms. Alvarez to discuss the situation and obtain the assistance of the Human Resources Department in addressing the problem of Petitioner's insubordination. Ms. Custodio told Ms. Alvarez that she could no longer handle the situation with Petitioner. In keeping with the policies of Arthrex's Human Resources Department, Ms. Alvarez investigated the matter, conducting interviews with employees who witnessed Petitioner's behavior. Ms. Alvarez testified that her investigation led her to conclude that "there was a serious problem in the department." After a final consultation with Arthrex's general counsel, Ms. Alvarez recommended that Petitioner's employment be terminated for insubordination. Ms. Custodio agreed with the recommendation. By letter dated August 12, 2003, and signed by Ms. Alvarez, Arthrex terminated Petitioner's employment. The letter stated the following express reasons for Petitioner's termination: Previous written warning referring to disruptive behavior of 6/17/2003. Numerous reports of negative comments about the company and management in front of other employees. Antagonistic behavior with supervisor and coworkers. Petitioner produced no credible evidence that her language or national origin played a role in the decision to terminate her employment. Petitioner's chief claim is that she was terminated for refusing to obey instructions from her supervisors, including Ms. Custodio and Ms. Alvarez, to cease speaking Spanish in the workplace. Both Ms. Custodio and Ms. Alvarez credibly denied giving any such instructions to any Arthrex employee. Arthrex does have a "Language Policy" that requires employees to be proficient in English to ensure that FDA regulations and ISO certification standards are met, because the company "has determined that the English language is the most common and effective means of communications" in the United States. The policy requires employees to communicate business-related information in English, but states that it "is not intended to prevent or discourage any employee from speaking their native language at Arthrex for certain business related matters, on their own time or with regard to non-business matters." The evidence established that all but one or two people in Petitioner's work area were native Spanish speakers and that they were allowed freely to communicate in Spanish in their day-to-day work activities. Employees were encouraged to communicate with their supervisors in their native language, if doing so improved the quality of the information conveyed. Ms. Custodio and Ms. Alvarez each testified that they knew of no Arthrex employee who had ever been disciplined for speaking a language other than English in the workplace. At the hearing, Petitioner repeatedly made reference to the efforts of one lower-level supervisor, Renee Vanderberg, to force the employees in Petitioner's section to refrain from speaking Spanish and confine their work conversations to English. However, the evidence established that once the Human Resources Department learned of Ms. Vanderberg's actions, she was admonished to cease directing the employees to speak English. When Ms. Vanderberg continued to press the issue, Arthrex terminated her employment. The evidence produced at hearing demonstrated that the reasons for Petitioner's termination were limited to those set forth in the termination letter of August 12, 2003.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Arthrex Manufacturing did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 17th day of May, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2005.
The Issue The issues are whether Respondent, Parkland Rehabilitation and Nursing Center (Parkland), committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, when it terminated the employment of Petitioner, Ardel Hannah, and whether it subjected Petitioner to disparate treatment on the basis of his national origin.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Parkland is a rehabilitation and nursing center located at 1000 Southwest 16th Avenue, Gainesville, Florida. It is an employer as that term is defined in Section 760.02(7), Florida Statutes. Petitioner is a black male of American national origin. Although his actual date of employment is not of record, the evidence reflects that Petitioner had been employed by Parkland's maintenance department for more than ninety days when he was suspended on August 24, 2007, and then formally terminated by letter dated September 7, 2007. His primary job assignment was to repaint residents' rooms at the facility after the rooms were vacated. Petitioner's supervisor was Arthur Ellesten, Director of Maintenance, who is originally from Jamaica but is now a United States citizen. Although Mr. Ellesten has authority to hire employees in that department, he does not have authority to terminate employees. Two other workers on the maintenance staff, including Vichaun Palmer, were of Jamaican national origin. Michael Rau was the Administrator of the facility and its most senior employee. Mr. Rau has the authority to hire and terminate employees. He is of American national origin. On August 21, 2007, Mr. Ellesten verbally counseled Petitioner based on his unsatisfactory job performance. Petitioner became hostile towards Mr. Ellesten during this counseling session and swore at Mr. Ellesten. Petitioner was informed that he would be formally written up if his performance did not improve. Prior to August 24, 2007, Mr. Rau verbally counseled Petitioner on at least two occasions for his poor job performance, based on his slow progress at assigned tasks and fraternizing with female staff members for long periods of time during regular working hours. An incident occurred on August 24, 2007, which, when coupled with his prior unsatisfactory job performance, culminated in Petitioner's suspension and termination. Although the testimony regarding the incident is conflicting in many respects, the following facts are found to be the most credible. On that date, Petitioner arrived at work around 8:00 a.m. and confronted Mr. Ellesten in the courtyard of the facility. Petitioner requested Paid Time Off (PTO) for that day, which is paid leave accrued by full-time employees. Petitioner was told that he would have to request a form from Mr. Rau. Believing that Mr. Ellesten had provided PTO forms to the other Jamaican maintenance workers, Petitioner became angry and began swearing at his supervisor. Seeking to avoid a physical confrontation, Mr. Ellesten left the courtyard to return to his office on the second floor. Petitioner followed Mr. Ellesten up the stairs to the office where Petitioner verbally threatened to kill him. After Petitioner refused to leave the office, Mr. Ellesten called security, who telephoned the police department. Mr. Ellesten then departed his office, and as he was walking down the stairs, Petitioner pushed him. However, he was not injured. Petitioner left the premises a few minutes later and returned to an apartment complex where he lived. After security contacted the police department, Officer Moore was dispatched to Parkland. Mr. Ellesten requested that Officer Moore not file criminal charges against Petitioner but only give him a trespass warning. Officer Moore then went to Petitioner's apartment and issued a verbal trespass warning. This is evidenced by an Incident/Investigation Report prepared by Officer Moore. Petitioner later returned to Parkland the same day where he met with Mr. Rau to discuss the incident. During their conversation, Petitioner alleged that Mr. Ellesten had physically attacked him that morning. After Officer Moore arrived a few minutes later and joined the two, Petitioner did not repeat the allegation. Pending a further investigation of the matter, Mr. Rau suspended Petitioner. Petitioner never filed a complaint with the police department against Mr. Ellesten, and he never filed a complaint or grievance with anyone at Parkland alleging that Mr. Ellesten had attacked him, as alleged in his Petition for Relief. Also, he never informed Mr. Rau that he was treated different or unfairly by Mr. Ellesten, other members of the maintenance department, or other employees of Parkland. Finally, he never complained that the other two workers in the maintenance department were treated more favorably than he. Violence against a co-worker or supervisor is considered unacceptable conduct and by itself is a basis for termination by Mr. Rau and Parkland. As a part of his investigation, Mr. Rau questioned Mr. Ellesten about the events on August 24, 2007, obtained a written statement from Mr. Ellesten, spoke with Petitioner on August 24, 2007, and reviewed the Incident/Investigation Report prepared by Officer Moore. On September 7, 2007, Mr. Rau sent Petitioner a letter formally terminating his employment with Parkland based on the August 24, 2007, incident and "past issues related to [his] performance and conduct." There is no evidence, direct or circumstantial, that national origin was considered at any point during Petitioner's employment or that national origin played a part in his termination. Further, no credible evidence, direct or circumstantial, was submitted to show that he was otherwise subjected to disparate treatment because he was an American.
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 Parkland did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 22nd day of October, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 22nd day of October, 2008. COPIES FURNISHED: Denise Crawford, Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 200 Tallahassee, Florida 32399-4857 Ardel Hannah 996 Southwest 16th Avenue Apartment 904 Gainesville, Florida 32601-8483 Lauren M. Levy, Esquire Levy & Levy, LLC 4230 South MacDill Avenue, Suite 230 Tampa, Florida 33611-1901 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32399-4857
The Issue Whether Petitioner was wrongfully terminated from her position as a payroll clerk with Respondent because of her race, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Prior to November 1994, Petitioner was employed by Markings and Equipment Corporation, first as a receptionist, later as a payroll clerk for several years. She had a good working relationship with management and staff. In November 1994, Edward T. Quinn and two other investors purchased the assets of Markings and Equipment Co. and established a new corporation named Mill-it Striping, Inc., a Florida corporation. On November 7, 1994, Mill-It Striping began operations. Edward T. Quinn was named Vice-President and Chief Operating Officer. Petitioner and one other person were retained as office staff. Other employees of the former owner were retained as field workers in their same positions. Petitioner and the other employees were retained on a 90-day probationary period. All employees were required to complete application forms for the new company. The organization of the company was revamped and operating policies were changed. Petitioner and Quinn became embroiled in disputes over policy and procedures on a nearly daily basis. Quinn's management style was gruff and unprofessional. Foul language was directed toward Petitioner's work by Quinn on a regular basis. There was insufficient evidence to prove that Quinn's derogatory remarks of a social nature were directed toward Petitioner. On December 5, 1994, Petitioner was terminated from her position as a payroll clerk. Quinn alleged that Petitioner was terminated because of her poor work performance and reporting to work late on more than one occasion while on probation. Petitioner, who is an African-American female, was replaced in her position by a Caucasian female. Respondent's company presently has been administratively dissolved, as of September 24, 1999. There is no evidence that the corporation is active, is a subsidiary to another company, or that it has any remaining assets.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief with prejudice. DONE AND ENTERED this 29th day of December, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2000. COPIES FURNISHED: Azizi M. Coleman, Acting Agency Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149 Edward T. Quinn as former Vice President Mill-It Stripping, Inc. 107 Shore Drive Longwood, Florida 32779 Valerie A. Roberts Post Office Box 543 Maitland, Florida 32751 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent committed an unlawful employment practice in violation of Section 760.10, Florida Statutes, by discriminating against Petitioner based on her race.
Findings Of Fact Respondent is a financial company that owns and services student loans. Petitioner is a black female. She was employed in Respondent’s Florida Loan Servicing Center (Service Center) on two separate occasions. The first time she worked for Respondent from September 1989 until September 1990. During that time, Petitioner did not experience anything that she felt was racial discrimination at the Service Center. Petitioner left her initial period of employment with Respondent by resigning and moving to South Florida. Petitioner subsequently returned to Panama City, Florida. Initially, she worked for the Bay County School Board. Thereafter, from July 2001 to November 2001, she returned to work as a Loan Origination Representative (LOR) for Respondent through a temporary agency, Kelly Services. In August 2001, Petitioner received a training evaluation, which indicated that Petitioner was meeting all expectations. In November 2001, Petitioner converted to a regular employee position with Respondent. Petitioner received her 90-day initial review in February 2002. According to her written evaluation, Petitioner needed to improve in two areas: (a) successfully meeting the goals established during the 90-day initial review period; and (b) demonstrating initiative and resourcefulness in work performance. The evaluation states as follows in relevant part: A discussion was held with Millie regarding her productivity for application and phone call processing during the review period. At that time, Millie was placed on a verbal warning for her performance. She currently averages 3.65 applications per hour. The department standard is 5 applications per hour. Millie also currently averages 6.66 calls per hour for the review period. The department standard is 8 calls per hour. Pursuant to this evaluation, Respondent extended Petitioner's 90-day initial review period for a 30-day period in which Petitioner was required to perform according to Respondent's standards. The evaluation advised Petitioner that failure to meet standards might result in further disciplinary action, up to and including termination of employment. In March 2002, Respondent selected Petitioner to represent the National Team for Private Credit Originations. This designation required Petitioner to undergo two days of additional training. Respondent has well-disseminated policies prohibiting discrimination and harassment on the basis of race. These policies are available to employees through Respondent’s Employee Reference Manual and Code of Business Conduct. Respondent’s internal website also contains employee-related information such as policies, notices and the company’s equal employment opportunity and anti-harassment policies. Further, Respondent distributes an annual affirmation of its anti- discrimination and anti-harassment/anti-retaliation policies via e-mail. Petitioner knew of Respondent’s commitment to diversity. Petitioner became aware of Respondent’s equal employment opportunity and anti-harassment/anti-retaliation policies immediately upon being employed with Respondent. In November 2001, Petitioner received Respondent’s Employee Reference Manual, Respondent's Code of Business Conduct, and a copy of Respondent’s annual reaffirmation of its anti- harassment/anti-retaliation policies. The annual reaffirmation outlined the procedure an employee should follow to report discrimination or harassment, and provided several avenues for reporting such conduct. Petitioner was also aware that Respondent had an internal website with employee information. Respondent’s anti-harassment policy prohibits retaliation against employees who report harassment. The policy also protects employees who participate in an investigation of a claim of harassment. Petitioner knew individuals in Respondent’s Human Resources Department. For example, when Petitioner first interviewed for a job with Respondent, she met Joni Reich, Respondent’s vice president of human resources. From July 2002 to November 2002, Petitioner’s immediate supervisor was Paul Wunstell. Mr. Wunstell was Respondent's supervisor of Private Credit Originations. In early July 2002, Bobby Wiley, Respondent’s human resources director for the Service Center was counseling an employee for performance issues when the employee made an internal discrimination complaint. The employee stated that a supervisor had made a racially discriminatory comment about the Martin Luther King, Jr. holiday. The employee told Mr. Wiley that Petitioner could confirm the racially derogatory comment. On July 19, 2002, Petitioner was asked to go to the human resources department. Upon her arrival, Petitioner met Mr. Wiley for the first time. Mr. Wiley directed Petitioner to a conference room. Mr. Wiley explained that he had asked Petitioner to meet with him because he was investigating a discrimination complaint made by another employee about a supervisor who might have said something derogatory about the Martin Luther King, Jr., holiday. He explained that he had been told that Petitioner might have some knowledge about these events. Several times, Mr. Wiley asked Petitioner whether she knew of any racial discrimination at the Service Center and whether she had heard a supervisor make a racially derogatory comment. Petitioner denied being aware of any race discrimination at Respondent's facility. Petitioner stated that she did not want to talk to Mr. Wiley. Although Petitioner understood that she was required to report discrimination, she did not provide Mr. Wiley any information supporting or corroborating the complaint that he was investigating. During the meeting, Petitioner appeared nervous. She told Mr. Wiley that she was uncomfortable meeting with him. Mr. Wiley replied that their conversation would be confidential, “between the two of them,” or words to that effect. Petitioner mistakenly interpreted Mr. Wiley’s comment to mean that he would do nothing with any information provided by Petitioner and that he simply wanted to “contain” or cover up the issue of possible discrimination. Petitioner did not ask Mr. Wiley to clarify what he meant by his statement that their conversation would be “between the two of them.” During his meeting with Petitioner, Mr. Wiley conducted himself in a professional manner. However, because he was eating ice cream when he met with Petitioner and did not have a note pad, Petitioner mistakenly thought he did not take allegations of discrimination seriously. Mr. Wiley was eating an ice cream bar that had been distributed around the human resources department immediately before Petitioner came to see him. The conversation between Mr. Wiley and Petitioner lasted approximately ten minutes. Mr. Wiley thanked Petitioner for meeting with him. Mr. Wiley stated that he was glad to hear there was no discrimination at Respondent’s facility because Respondent would not tolerate discrimination. Petitioner then left the conference room. After the July 19, 2002, meeting, Petitioner never contacted Mr. Wiley to complain of discrimination or retaliation. Additionally, Petitioner’s supervisor, Mr. Wunstall, never knew about Mr. Wiley’s meeting with Petitioner. On or about July 1, 2002, Respondent advised all employees serving as LORs that they would be required to attend a training class on July 13, 2002. The purpose of the class was to ensure the proper handling of Laureate School Accounts for Private Credit Originations. Each employee needed an active Laureate computer ID and password in order to participate in the hands-on training. As instructed, Petitioner immediately advised Respondent that she did not have access to the Laureate software on her computer. On July 8, 2002, Respondent sent Petitioner an e-mail regarding her Laureate computer password. After receiving the password, Petitioner still could not gain the appropriate computer access. On July 9, 2002, Petitioner informed Respondent that she did not have the Laureate software installed on her personal computer. Respondent then made arrangements for Petitioner to test her password on another computer. Respondent also arranged to have the Laureate icon placed on Petitioner's computer. On July 23, 2002, Petitioner wrote a letter to Ms. Reich complaining about her meeting with Mr. Wiley. The letter stated that, although she had not told Mr. Wiley about it, Petitioner thought there was racial discrimination at the Service Center. Petitioner’s letter indicated that she wanted to make a statement concerning discrimination against blacks. In the letter, Petitioner requested information on Respondent’s policies and procedures to report such discrimination. Mr. Wunstell never knew that Petitioner had sent a letter to Ms. Reich complaining about racial discrimination. On July 29, 2002, Petitioner allegedly fainted at work due to panic attacks. Respondent's staff called an ambulance that took Petitioner to the hospital. Petitioner claims she was absent from work for three consecutive days without calling her supervisor and without being terminated for abandoning her job. On August 2, 2002, Petitioner received a letter from Ms. Reich. In the letter, Ms. Reich apologized for Mr. Wiley's failure to handle the meeting with Petitioner in a manner that Petitioner felt was appropriate. Ms. Reich told Petitioner that Respondent viewed discrimination complaints seriously and she included a copy of the anti-harassment policy, which outlined procedures for reporting harassment or discrimination. Ms. Reich explained several avenues to report discrimination. Ms. Reich’s letter also indicated that she and senior director of human resources, Joyce Shaw, would be in Florida within the next two weeks. In the letter, Ms. Reich asked Petitioner to meet with them to discuss her concerns and to promptly address any alleged discrimination. On August 12, 2002, Petitioner received an e-mail from Ms. Shaw to schedule a meeting on August 19, 2002. The text of the e-mail did not state the reason why Ms. Shaw and Ms. Reich wanted to meet with Petitioner, but Petitioner knew the reason for the meeting. The e-mail asked Petitioner to contact Ms. Shaw either on her cellular telephone or by e-mail to schedule the meeting. Mr. Wunstell did not have the capability to access Petitioner’s e-mail messages and there is no evidence that he saw Ms. Shaw’s e-mail. On August 19, 2002, Petitioner met with Ms. Shaw and Ms. Reich for approximately one hour. Ms. Shaw and Ms. Reich listened to Petitioner’s concerns. They were pleasant to Petitioner during the meeting. During the August 19, 2002, meeting, Petitioner first complained that Mr. Wiley had been disrespectful or inattentive during their July 19, 2002, meeting. Petitioner also told Ms. Shaw and Ms. Reich about her feelings that black employees were treated differently in the workplace. This was the first time that Petitioner discussed her race discrimination concerns with anyone who worked for Respondent. When pressed for more specific information, Petitioner stated that: (a) she felt black employees received different training than non-black employees; and (b) black employees’ questions were not answered as promptly or as thoroughly as the questions of non-black employees. Petitioner did not provide Ms. Shaw and Ms. Reich with specific examples of racially discriminatory behavior or the names of any minority employees who Petitioner felt experienced discrimination. That same day, after the meeting with Ms. Shaw and Ms. Reich, Petitioner provided Ms. Shaw with several e-mails about the Laureate computer training. The e-mails did not illustrate any mistreatment of Petitioner. During the August 19, 2002, meeting, Petitioner told Ms. Shaw and Ms. Reich that she was experiencing panic attacks. Ms. Reich suggested that Petitioner take advantage of Respondent’s employee assistance program for the alleged panic attacks. Ms. Reich and Ms. Shaw told Petitioner that they would look into her concerns. They did not tell her they would contact her again in the future. Instead, Ms. Reich gave her business card to Petitioner in case she needed to contact Ms. Reich in the future. After the August 19, 2002 meeting, Petitioner did not contact Ms. Reich or Ms. Shaw again during her employment with Respondent. During the hearing, Petitioner testified that she complained to Ms. Shaw and Ms. Reich about the following: (a) supervisor Melanie Childree's reference to the Martin Luther King, Jr. holiday as "spook day"; (b) three employees telling an African American manager not to go to the "master cube," which Petitioner felt was a racial reference to "slave talk"; (c) a hearsay statement from a student's mother who called another employee at the Service Center to accuse a white customer service representative of calling her daughter "stupid nigger"; and (d) where a black supervisor was married to a white woman, one employee allegedly said he was "going to string [the black supervisor] up for messing with our women." Apparently all of these alleged incidents occurred before Petitioner's July 19, 2002, meeting with Mr. Wiley. The most persuasive evidence regarding these allegations is that Petitioner did not report them to Ms. Shaw or Ms. Reich or anyone else in Respondent's chain of command. Instead, the complaints that Petitioner shared with Ms. Shaw and Ms. Reich on August 19, 2002, were non-specific generalizations. Moreover, Mr. Wunstell was never aware of Petitioner’s meeting with Ms. Reich and Ms. Shaw to complain about discrimination. Petitioner does not know what steps, if any, Ms. Shaw and Ms. Reich took after their meeting to look into her concerns. At the hearing, Ms. Shaw testified that she investigated Petitioner’s concerns and found them to be unfounded. First, Ms. Shaw reviewed the e-mails provided by Petitioner but did not find anything inappropriate in their contents. Second, Ms. Shaw interviewed the director in charge of Petitioner’s department, Ann Nelson. Ms. Nelson explained that the process by which employee questions were answered made it unlikely that employees could be singled out due to their race. According to Ms. Nelson, all employee questions were directed to a central telephone helpline staffed by supervisors or senior employees who randomly responded to calls. Ms. Shaw correctly concluded that it would be difficult for racially discriminatory behavior to occur in such context. Third, Ms. Nelson assured Ms. Shaw that training was the same for all employees. Student loans are heavily regulated by federal law and thus, the manner in which employees handle borrowers is regulated, making Petitioner’s concerns about unequal employee training unfounded. Finally, Ms. Shaw spoke to the person in charge at the Service Center, Renee Mang, to determine if Ms. Mang was aware of any racial discrimination concerns at the facility. Ms. Mang, whose office was in close proximity to Petitioner’s cubicle, indicated that she was not aware of any racially discriminatory behavior in the workplace and that no one had complained to her about discrimination. After the investigation, Ms. Shaw was unable to corroborate Petitioner’s racial discrimination allegations. On or about September 30, 2002, Respondent gave Petitioner a verbal warning regarding her phone quality control average. The department's expected call productivity average was 8 calls per hour at the minimum level of customer service. From July 1, 2002, to September 25, 2002, Petitioner's average was 7.5 calls per hour. Once again, Petitioner was given 30 days to meet the department's performance goal of at least 9 calls per hour at Petitioner's level of customer service. On October 8, 2002, while employed with Respondent, Petitioner applied for full-time employment with the Bay County School Board. Petitioner applied for employment in the school system because she felt a lot was going on at Respondent’s facility and her mental health counselor suggested she look for employment elsewhere. Petitioner had followed Ms. Reich’s suggestion and enrolled in mental health counseling through Respondent’s employee assistance program. Respondent accommodated Petitioner by adjusting her work schedule and allowing her to report for work late on the days she had appointments with her mental health counselor. For example, on or about October 24, 2002, Respondent requested an adjustment in her work schedule so she could attend a mental health counseling session. Respondent accommodated Petitioner's request. During the hearing, Petitioner testified that Respondent adjusted the work schedule of a white female LOR to match the work schedule of her husband who also worked for Respondent. The husband's work schedule required him to work until 7:30 p.m. every day. According to Petitioner, the schedule adjustment resulted in the white female employee having no work to perform for 30 minutes per day after the phones shut down at 7:00 p.m. However, there is no evidence that Petitioner or any other employee ever made a similar request for a work schedule accommodation under similar circumstances. On October 29, 2002, Petitioner suffered a workers’ compensation accident. A telephone headpiece flicked off and hit Petitioner across the face, resulting in an uncomfortable feeling and a small chip on her tooth. On October 30, 2002, Petitioner reported the accident to Respondent’s Benefits Specialist, Kristi Scott and requested to see a dentist. From that time on, Petitioner and Ms. Scott communicated directly with each other regarding treatment for Petitioner’s injury. Ms. Scott kept Petitioner updated on her progress locating a dentist that would accept Petitioner as a patient for a workers' compensation claim. Mr. Wunstell was not involved in arranging for treatment for Petitioner’s injury. Petitioner was not required to channel her communications with Ms. Scott through Mr. Wunstell. On October 31, 2002, Ms. Scott sent Petitioner an e-mail stating that Ms. Scott had been unable to locate a dentist who would see Petitioner as a workers' compensation patient. Ms. Scott's e-mail directed Petitioner to see any dentist of her choice to treat her injury. Ms. Scott told Petitioner that Respondent would reimburse her for any out-of- pocket expenses that resulted from her dental visit. Petitioner did not suffer immobilization as a result of the injury to her mouth and she did not have to undergo treatment as a result of her injury. Petitioner did not feel her condition was an emergency. In fact, she did not see a dentist immediately because neither her regular dentist nor other dentists considered her mouth injury an emergency. Following the October 29, 2002, mouth injury, Petitioner continued working. She worked full days the rest of the week: October 30, 2002, through November 1, 2002. On Monday, November 4, 2002, Petitioner did not show up for work. Instead, that morning Petitioner drove herself to her mental health counseling session. After her counseling session, around noon, Petitioner called Mr. Wunstell from home. During this telephone conversation Petitioner told Mr. Wunstell that she had seen a doctor in the morning. She also told Mr. Wunstell that her mouth was in severe pain, and she was trying to find a dentist who would see her. At the time of Petitioner's conversation with Ms. Wunstell, Petitioner had made appointments with two dentists. Petitioner typically worked until 7 p.m. During their noon telephone conversation, Mr. Wunstell specifically asked Petitioner whether she was planning to return to work that day. Petitioner responded that she would be returning to work later that day. Petitioner did not tell him that she was unable to work, nor did she request time off work. Petitioner alleges that she told Mr. Wunstell during their November 4, 2002, telephone conversation that her neck was bothering her, that she needed to see a doctor, in addition to a dentist, that she was unable to work and that she asked Mr. Wunstell to have Ms. Scott call her at home. The greater weight of the evidence indicates that Petitioner did not mention any of these things during her telephone conversation with Mr. Wunstell. Petitioner made no effort to obtain Ms. Scott’s telephone number. After her November 4, 2002, call to Mr. Wunstell, Petitioner made no effort to contact Ms. Scott directly regarding her workers' compensation injury, despite the fact that Petitioner and Ms. Scott had been communicating directly about the injury until that time. Petitioner did not show up for work the rest of the week of November 4, 2002. She did not call Mr. Wunstell or anyone else at Respondent’s office during the week of November 4, 2002, to inform them of her condition or her expected return to work date. Respondent has a job abandonment policy. An employee who is absent from work for three consecutive days without notifying his/her immediate supervisor will be considered to have voluntarily resigned or abandoned his/her job. Respondent’s job abandonment policy applies to all employees, including those who are injured on the job. When an employee is a no call/no show for three consecutive days, the job abandonment policy is applied in a fairly automatic manner. The employee’s immediate supervisor does not call the employee at home. Instead, the supervisor contacts Teresa Jones in the human resources department, indicates that the employee has been a “no call/no show” for three consecutive days, and directs the human resources department to send a termination letter. This type of transaction is handled by lower-ranking human resources department employees at the Service Center, and neither Mr. Wiley nor Ms. Shaw participated in the process of sending out termination letters. When Petitioner did not come to work and failed to contact Mr. Wunstell after their November 4, 2002, conversation, Mr. Wunstell instructed Ms. Jones to send Petitioner a letter informing of her termination for job abandonment. There is no evidence that Ms. Shaw, Ms. Reich or Mr. Wiley influenced Mr. Wunstell’s decision to request that Respondent send Petitioner a termination letter pursuant to the job abandonment policy. By letter dated November 8, 2002, Respondent informed Petitioner that, pursuant to the company’s job abandonment policy, she was deemed to have voluntarily abandoned her job by being absent for three consecutive days without contacting her supervisor after November 4, 2002. Respondent’s letter encouraged Petitioner to contact Ms. Jones if she had any questions regarding Respondent’s letter. Also attached to the termination letter was an Exit Interview questionnaire and postage pre-paid envelope. The questionnaire asked Petitioner to explain why she had resigned her employment. Petitioner did not return the questionnaire and made no effort to contact Respondent to protest, contest, or clarify her employment status. After receiving the November 8, 2002, letter, Petitioner did not file a petition for unemployment compensation benefits. Instead, on November 17, 2002, exactly two weeks after the last day She came to work for Respondent, Petitioner began working with the Bay County School District. Mr. Wunstell did not apply Respondent’s job abandonment policy to Petitioner for retaliatory reasons because he did not know of her alleged protected activity. Mr. Wunstell may not have terminated Petitioner in July 2002 when she was absent for three days. However, Mr. Wunstell has otherwise consistently and non-discriminatorily enforced the job abandonment policy and has terminated numerous employees pursuant to the job abandonment policy. There is no evidence that Respondent applied its job abandonment policy differently to Petitioner than it did to other employees. During the year 2002 and the first few months of 2003, Respondent terminated 28 employees pursuant to its job abandonment policy. Of these 28 employees, 25 were white, and none had complained about discrimination or participated in a discrimination investigation. Except for Petitioner's three-day absence in July 2002, there is no evidence of any other employee who violated Respondent’s job abandonment policy by being absent from work for three consecutive days without calling and who was not terminated. In January 2003, almost two months after her separation from Respondent, Petitioner wrote a letter to Al Lord, Respondent’s CEO. The letter incorrectly alleged that Respondent had not provided assistance in obtaining dental treatment for Petitioner’s on-the-job tooth injury. The letter for the first time informed Respondent that Petitioner felt she was involuntarily terminated. Unlike Petitioner’s testimony at the final hearing, the letter to Mr. Lord did not allege that Petitioner had told Mr. Wunstell on November 4, 2002, that she needed to see both a dentist and a doctor for her injury. Likewise, the letter did not allege that Petitioner asked Mr. Wunstell to have Ms. Scott call her at home. On February 11, 2003, Petitioner received a letter from Ms. Shaw. The letter informed Petitioner that she had looked into the allegations contained in the letter to Mr. Lord and had found them to be unsupported and inaccurate. Ms. Shaw's letter concluded as follows: (a) Respondent non-discriminatorily and consistently enforced its job abandonment policy; and (b) Respondent had assisted Petitioner in obtaining treatment for her dental injury. Finally, the letter questioned why, if she had not intended to voluntarily quit her job, Petitioner had made no effort to contact Respondent upon receipt of her November 8, 2002, termination letter. On March 15, 2003, Petitioner wrote a letter to Ms. Shaw. In the letter, Petitioner did not allege that she had told Mr. Wunstell on November 4, 2002, that she needed to see a doctor, in addition to a dentist, as a result of her mouth injury. Petitioner’s letter also did not state that she had asked Mr. Wunstell to tell Ms. Scott to call her at home regarding an appointment with a doctor. Petitioner filed a charge of discrimination with the FCHR on June 2, 2003. During the processing of her charge of discrimination, Petitioner complained that Respondent had improperly withheld from her last payroll check a portion of her pay for 66 hours of accrued, unused vacation time. This was the first time Respondent learned of this allegation. Although Petitioner believed that Mr. Wunstell had given instructions for Respondent to withhold a portion of her vacation pay, she never contacted Mr. Wunstell or Respondent’s human resources department to report or challenge this incorrect deduction. When, after the filing of the charge, Respondent received information about the incorrect deduction, it immediately investigated and reimbursed Petitioner for the incorrect deduction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 28th day of January, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2005. COPIES FURNISHED: Millie Carlisle 105 Detroit Avenue Panama City, Florida 32401 Luisette Gierbolini, Esquire Zinober & McCrea, P.A. Post Office Box 1378 201 East Kennedy Boulevard, Suite 800 Tampa, Florida 33601-1378 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
