The Issue The issue for determination is whether Petitioner was subjected to discrimination in the work environment by the Department of Corrections (Respondent) due to Petitioner's age in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner, Paul Sondel, was born on August 13, 1928. He was 72 years old at the time that he applied for Respondent's Position No. 01891/Education Supervisor I. His application was timely received by Respondent personnel. The minimum qualifications for the education supervisor were, inter alia, two years' teaching experience and possession, or eligibility for a current professional State of Florida Educator's certificate in adult or vocational administration. Mary Bass, a personnel technician for Respondent, reviewed all applications for the education supervisor position to make an initial determination as to whether applicants met the required minimum qualifications. She was not required to telephone applicants concerning the minimum qualifications and relied solely upon the information contained on the employment applications to make the initial determination of eligible applications. She completed her review of all applications in the same manner. Further, her inspection was done without regard to the ages of the applicants as set forth in the applications. In reviewing Petitioner's application, Bass could not determine whether Petitioner, in fact, had two years of teaching experience; nor could she determine that he currently possessed or was eligible for a professional State of Florida educator's certificate in adult or vocational administration. Since his application did not contain information indicating that either of these two minimum qualifications had been met, Bass determined that Petitioner did not meet minimum qualifications for the job and did not merit further consideration. Had Bass made a determination that Petitioner's application did meet minimum qualifications, such a determination would have merely permitted inclusion of his application with other eligible applicant applications and would not have necessarily led to an interview or obtainment of the position by him. Based on Bass' initial screening of his application, Petitioner was notified by Respondent personnel via letter dated January 24, 2001, that he had not been selected for the position of Education Supervisor 1. As established by the evidence adduced at final hearing, the individual eventually hired by Respondent for the position at issue in these proceedings had six years of teaching experience and current possession of a State of Florida teaching certificate. The age of this individual is not in evidence. Mary Bass' determination that Petitioner's application did not meet minimum qualifications for the position of Education Supervisor 1, was based solely on a good-faith review of Petitioner's application. Bass had no agenda that included dispensing with Petitioner's application on the basis of his age.
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 13th day of March, 2002, in Tallahassee, Leon County, Florida. 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 13th day of March, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 D. Paul Sondel 2135 Victory Garden Lane Tallahassee, Florida 32301-8507 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Petitioner was employed by Respondent from January, 1986, until March 7, 1988. Petitioner worked as a tailor and performed alterations at Respondent's store located in Altamonte Springs. In the latter half of 1987, Mr. Pease became the manager of the Altamonte Springs store and thus became Petitioner's supervisor. As had the prior manager, Mr. Pease and Petitioner worked out a schedule that did not require Petitioner to work in violation of his religious principles. However, relations between Petitioner and Mr. Pease were not good. Shortly after becoming manager, for independent business reasons, Mr. Pease decided to reduce the amount of fitting done in the store. The effect of this decision was to reduce the amount of work available for Petitioner. At about this time, Petitioner suffered an accident unrelated to employment. The accident resulted in an extended absence from work. Petitioner received his physician's approval to return to work on February 16, 1988, but failed to do so. Without prior notice, Petitioner showed up at the store on March 7, 1988, and informed Mr. Pease that Petitioner was ready to return to work. Mr. Pease told Petitioner that the work schedule had already been arranged for the week. Mr. Pease told Petitioner that the only days he could work were Saturday, March 12, and Sunday, March 13. Petitioner told Mr. Pease that he could not work Sundays due to his religious beliefs. Mr. Pease reiterated that no other time was available that week. Petitioner told Mr. Pease that Petitioner understood that he was being fired. Mr. Pease told him that he was not being fired; rather, he was quitting if he left Respondent's employment. Two days later, Petitioner filed for unemployment compensation benefits. He never reported to work with Respondent again. Consistent with his Petition for Relief, Petitioner offered no evidence of discrimination due to national origin. Nothing in the record suggests the existence of any such discrimination. Petitioner has also failed to prove the existence of any religious discrimination. There is no evidence that Mr. Pease refused to try to accommodate Petitioner's religious beliefs with respect to work schedules after the weekend of March 12-13. The only evidence is that when Petitioner suddenly reported to work, the only days immediately available were the weekend days. The record does not even disclose whether Mr. Pease linked the two days, so as to prevent Petitioner from working the Saturday without working the Sunday. There is nothing in the record suggesting that Mr. Pease told Petitioner that if he failed to work the coming Sunday, he would lose his job. In sum, Petitioner has left it entirely to conjecture whether Mr. Pease would have failed to make reasonable accommodation for the religious beliefs of Petitioner. In fact, Mr. Pease was never presented with that opportunity. In addition, Petitioner has produced no evidence that Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. There is no evidence of the number of employees working for Respondent at the relevant time.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Petition for Relief filed by Petitioner be dismissed. ENTERED this 2nd day of May, 1989, in Tallahassee, Florida. ROBERT E. MEALE 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 2nd day of May, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5689 Treatment Accorded Respondent's Proposed Findings 1-3. Adopted in substance. 4-5. (first sentence) Adopted. 5. (second sentence) Rejected as irrelevant. 6-10. Adopted. s 11. Rejected as irrelevant. COPIES FURNISHED: Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird, Esq. General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Agerton, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Weceslao Lugo Palermo 7505 Armstrong Road Lockhart, FL 32810 Richard D. Pease 590 West Highway 436 Altamonte Springs, FL 32714
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 The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2008),1 by discriminating against Petitioner based on her color and/or her age.
Findings Of Fact The Town is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner was hired by the Town in November 2004 as an administrative assistant to Mayor Anthony Grant. Petitioner is a dark-skinned African-American woman who was 51 years of age at the time of the hearing. Petitioner was interviewed and hired by a committee appointed by Mayor Grant. The committee included town clerk Cathlene Williams, public works director Roger Dixon, and then- chief administrative officer Dr. Ruth Barnes. Mayor Grant did not meet Petitioner until the day she started work as his administrative assistant. The mayor's administrative assistant handles correspondence, filing, appointments, and anything else the mayor requires in the day-to-day operations of his office. For more than two years, Petitioner went about her duties without incident. She never received a formal evaluation, but no testimony or documentary evidence was entered to suggest that her job performance was ever less than acceptable during this period. In about August 2007, Petitioner began to notice a difference in Mayor Grant's attitude towards her. The mayor began screaming at her at the top of his lungs, cursing at her. He was relentlessly critical of her job performance, accusing her of not completing assigned tasks. Petitioner conceded that she would "challenge" Mayor Grant when he was out of line or requested her to do something beyond her job description. She denied being disrespectful or confrontational, but agreed that she was not always as deferential as Mayor Grant preferred. During the same time period, roughly July and August 2007, Petitioner also noticed that resumes were being faxed to the Town Hall that appeared to be for her job. She asked Ms. Williams about the resumes, but Ms. Williams stated she knew nothing and told Petitioner to ask the mayor. When Petitioner questioned the mayor about the resumes, he took her into his office and asked her to do him a favor. He asked if she would work across the street in the post office for a couple of weeks, to fill in for a post office employee who was being transferred to the finance department; as a team player, Petitioner agreed to the move. While she was working as a clerk at the post office, Petitioner learned that the mayor was interviewing people for her administrative assistant position. She filed a formal complaint with the Town. For a time after that, she was forced to work half-time at the post office and half-time in the mayor's office. On or about October 22, 2007, Petitioner was formally transferred from her position as administrative assistant to the mayor to the position of postal clerk in the post office. Her salary and benefits remained the same. At the hearing, Mayor Grant testified that he moved Petitioner to the post office to lessen the stress of her job. Based on his conversations with Petitioner, he understood that Petitioner was having personal or family problems. He was not privy to the details of these problems, but had noticed for some time that Petitioner seemed to be under great stress. The post office was a much less hectic environment than the mayor's office, and would be more amenable to her condition. Ms. Williams, the town clerk, testified that the mayor told her that Petitioner was stressed and needed more lax duties than those she performed in the mayor's office. Mr. Dixon, the public works director, testified that Petitioner had indicated to him that she was under pressure, but she did not disclose the cause of that pressure. He recalled that, toward the end of her employment with the Town, Petitioner mentioned that she felt she was being discriminated against because of her skin color. Petitioner denied ever telling Mayor Grant that she was feeling stressed. She denied telling him anything about her family. Petitioner stated that the only stress she felt was caused by the disrespect and humiliation heaped upon her by Mayor Grant. Petitioner's best friend, Gina King Brooks, a business owner in the Town, testified that Petitioner would come to her store in tears over her treatment by the mayor. Petitioner told Ms. Brooks that she was being transferred to the post office against her will, was being forced to train her own replacement in the mayor's office,3 and believed that it was all because of her age and complexion. Mayor Grant testified that he called Petitioner into his office and informed her of the transfer to the post office. He did not tell her that the move was temporary. He did not view the transfer from administrative assistant to postal clerk as a demotion or involving any loss of status. Mayor Grant testified that an additional reason for the change was that he wanted a more qualified person as his administrative assistant. He acknowledged that Petitioner was actually more experienced than her eventual replacement, Jacqueline Cockerham.4 However, Petitioner's personal issues were affecting her ability to meet the sensitive deadlines placed upon her in the mayor's office. The mayor needed more reliable support in his office, and Petitioner needed a less stressful work environment. Therefore, Mayor Grant believed the move would benefit everyone involved. Mayor Grant denied that Petitioner's skin color or age had anything to do with her transfer to the post office. Petitioner was replaced in her administrative assistant position by Ms. Cockerham, a light-skinned African- American woman born on October 17, 1961. She was 46 years of age at the time of the hearing. Documents introduced by the Town at the hearing indicate the decision to hire Ms. Cockerham was made on March 26, 2008. Ms. Williams testified that she conducted the interview of Ms. Cockerham, along with a special assistant to the mayor, Kevin Bodley, who no longer works for the Town. Both Ms. Williams and Mayor Grant testified that the mayor did not meet Ms. Cockerham until the day she began work in his office. Petitioner testified that she knew the mayor had met Ms. Cockerham before she was hired by the Town, because Mayor Grant had instructed Petitioner to set up a meeting with Ms. Cockerham while Petitioner was still working in the mayor's office. Mayor Grant flatly denied having any knowledge of Ms. Cockerham prior to the time of her hiring. On this point, Mayor Grant's testimony, as supported by that of Ms. Williams, is credited. To support her allegation that Mayor Grant preferred employees with light skin, Petitioner cited his preferential treatment of an employee named Cherone Fort. Petitioner claimed that Mayor Grant required her to make a wake-up call to Ms. Fort every morning, because Ms. Fort had problems getting to work on time. Ms. Fort was a light-skinned African-American woman. Under cross-examination, Petitioner conceded that Mayor Grant and Ms. Fort were friends, and that his favoritism toward her may have had nothing to do with her skin color. Petitioner claimed that there were other examples of the mayor's "color struck" favoritism toward lighter-skinned employees, but she declined to provide specifics.5 She admitted that several dark-skinned persons worked for the Town, but countered that those persons do not work in close proximity to the mayor. As to her age discrimination claim, Petitioner testified that a persistent theme of her conversations with Mayor Grant was his general desire for a younger staff, because younger people were fresher and more creative. The mayor's expressed preference was always a concern to Petitioner. Petitioner testified that she felt degraded, demeaned and humiliated by the transfer to the post office. She has worked as an executive assistant for her entire professional career, including positions for the city manager of Gainesville and the head of pediatric genetics at the University of Florida. She believed herself unsuited to a clerical position in the post office, and viewed her transfer as punitive. In April 2008, Petitioner was transferred from the post office to a position as assistant to the town planner. Within days of this second transfer, Petitioner resigned her position as an employee of the Town. At the time of her resignation, Petitioner was being paid $15.23 per hour. Petitioner is now working for Rollins College in a position she feels is more suitable to her skills. She makes about $14.00 per hour. The greater weight of the evidence establishes that there was a personality conflict between Petitioner and Mayor Grant. Neither Petitioner nor Mayor Grant was especially forthcoming regarding the details of their working relationship, especially the cause of the friction that developed in August 2007. Neither witness was entirely credible in describing the other's actions or motivations. No other witness corroborated Petitioner's claims that Mayor Grant ranted, yelled, and was "very, very nasty" in his dealings with Petitioner.6 No other witness corroborated Mayor Grant's claim that Petitioner was under stress due to some unnamed family situation. The working relationship between Mayor Grant and Petitioner was certainly volatile, but the evidence is insufficient to permit more than speculation as to the cause of that volatility. The greater weight of the evidence establishes that, due to this personality conflict, Mayor Grant wanted Petitioner transferred out of his office. He may even have used the subterfuge of a "temporary" transfer to exact Petitioner's compliance with the move. However, the purpose of this proceeding is not to pass judgment on Mayor Grant's honesty or skills as an administrator. Aside from Petitioner's suspicions, there is no solid evidence that Mayor Grant was motivated by anything other than a desire to have his office run more smoothly and efficiently. Petitioner's assertion that the mayor's preference for lighter-skinned employees was common knowledge cannot be credited without evidentiary support. Petitioner's age discrimination claim is supported only by Petitioner's recollection of conversations with Mayor Grant in which he expressed a general desire for a younger, fresher, more creative staff. Given that both Petitioner and Ms. Cockerham were experienced, middle-aged professionals, and given that Mayor Grant had nothing to do with the hiring of either employee, the five-year age difference between them does not constitute evidence of discrimination on the part of the mayor or the Town. Petitioner was not discharged from employment. Though Petitioner perceived it as a demotion, the transfer to the post office was a lateral transfer within the Town's employment hierarchy. Petitioner was paid the same salary and received the same benefits she received as an administrative assistant to the mayor. A reasonably objective observer would not consider working as a clerk in a post office to be demeaning or degrading.
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 the Town of Eatonville did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 17th day of February, 2009, 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 February, 2009.
The Issue The issue in this case is whether Petitioner has been subjected to an unlawful employment practice.
Findings Of Fact Chipola is a college located in Marianna, Florida, and offers two-year and four-year degrees. In August 2005, Ms. Tucker contacted personnel at Chipola inquiring about a faculty position. She sent an e-mail to Karan Davis (Ms. Davis), Chipola’s associate vice president of Human Resources and included a brief résumé. No positions were available at that time. On or about May 18, 2006, Ms. Tucker submitted an application for employment at Chipola as an adjunct instructor. An adjunct instructor position is a temporary position on an as- needed basis to instruct a specific course. Health benefits are not provided for adjunct instructors. The employment application which Ms. Tucker submitted requested that applicants complete a section on educational employment and a section on non-educational employment. In each section, the application provided space for the listing of three present or former employers. The application stated, “If you wish to further describe your work experience, please attach a resume to this application.” Ms. Tucker did not attach a résumé to the application. In the section for educational employment, Ms. Tucker listed employment as a substitute teacher for two school districts and one private school. In the section for non- educational employment, Ms. Tucker listed employment in 2006 at Florida State University, employment from 1979 to 1988 with the United States Postal Service, and a position as a legal secretary from 1975 to 1977. The application asked, “Have you ever been discharged or forced to resign from a previous position?” to which Ms. Tucker replied, “No.” The application contains an applicant certification, which states: I am aware that any omissions, falsifications, misstatement or misrepresentations may disqualify me for employment consideration, and if I am hired, may be grounds for termination at a later date. Ms. Tucker signed the applicant’s certification. Wendy Pippen (Ms. Pippen) is employed by Chipola as the human resources coordinator. She is responsible for coordination of the daily activities and tasks in the Human Resources Department, including review of employment applications and résumés. She did not receive a résumé from Ms. Tucker at any point during the hiring process. Ms. Tucker was interviewed for the position as adjunct instructor. During a conversation with Ms. Pippen following Ms. Tucker’s interview, Ms. Tucker mentioned that she had worked at the University of South Florida. Ms. Pippen did not recall seeing the University of South Florida listed as an employer on Ms. Tucker’s application. She checked Ms. Tucker’s application and confirmed that the University of South Florida was not listed on the application. Ms. Pippen immediately advised her supervisor, Ms. Davis, of the omission. Ms. Tucker told Ms. Pippen that she had omitted her employment with the University of South Florida because an employment agency had advised her to do so due to the potential for a negative reference. Ms. Tucker vehemently testified at the final hearing that the reason she did not list employment with the University of South Florida was that she was terminated for medical reasons, and it was “no one’s business.” However, she also testified that the University of South Florida gave “bad references.” She had told others that she was concerned that the University of South Florida would give her a bad reference. It was her opinion that the University of South Florida was not ethical in giving references on former employees. Having judged the demeanor of the witnesses, Ms. Pippen’s testimony is credited that Ms. Tucker told her the reason that she did not put the University of South Florida on her application was that she felt the University of South Florida would not give her a good reference. Upon being informed by Ms. Pippen that Ms. Tucker had worked at the University of South Florida, Ms. Davis contacted the University of South Florida to check Ms. Tucker’s past employment. Ms. Davis was advised that Ms. Tucker had been employed by the University of South Florida and that she had been terminated for medical reasons. Ms. Davis did not inquire why Ms. Tucker was terminated. That information was volunteered by personnel at the University of South Florida. Ms. Davis did not ask for an explanation of the medical reasons, and no explanation was volunteered. Ms. Davis did not inquire whether Ms. Tucker had a disability, and no one from the University of South Florida told Ms. Davis that Ms. Tucker had a disability. The decision was made not to hire Ms. Tucker as an adjunct instructor because she had failed to include the University of South Florida on her application and had stated in her application that she had not been discharged or forced to resign from a previous position. Ms. Davis perceived that the omission of the University of South Florida from the application and the failure to indicate that she had been discharged from previous employment amounted to falsification of the application, which was a reason for disqualification from employment as clearly stated in the application form. Ms. Tucker contends that Ms. Davis was aware that she had been employed by the University of South Florida because she had included the employment on the résumé that she sent to Ms. Davis in 2005. Ms. Davis did not recall seeing the résumé and given that there was a lapse of seven months from the time that Ms. Tucker sent her résumé in 2005 until she submitted an application in May 2006 without a résumé, it is reasonable that Ms. Davis would not recall seeing the résumé or was not aware that Ms. Tucker had listed the University of South Florida on a résumé. After Ms. Tucker was advised that she would not be hired as an adjunct instructor, she wrote Dr. Spires at Chipola, stating that she had not put the University of South Florida on her employment application because she had been advised by an employment agency to omit the University of South Florida because it had a long history of illegal employment practices. Ms. Tucker does not contend that she has a particular disability which served as the basis for Chipola’s failing to hire her, and she did not inform staff at Chipola that she has a disability or identify any medical condition she has. Her claim is that she was not hired because of a history of medical problems. The evidence overwhelmingly established that Ms. Tucker was not hired because she had made misrepresentations on her application and not because of any history of medical problems. It is clear that Ms. Tucker did not include the University of South Florida on her application and did not inform Chipola that she had been discharged because she was afraid that the University of South Florida would give her a bad reference.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entering finding that Chipola College did not discriminate against Ms. Tucker and dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of November, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 2nd day of November, 2007.
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2007),2 by discriminating against Petitioner based on her national origin.
Findings Of Fact The Omni, advertised as "Omni Orlando Resort at ChampionsGate," is a golf resort located in the Orlando tourist corridor near Walt Disney World. The Omni is an employer as that term is defined in Section 760.02, Florida Statutes. Petitioner, Suhra Merdanovic, is a Bosnian female, and her first language is Bosnian. She speaks and understands English, but is more fluent and comfortable using her native language. Ms. Merdanovic was employed by the Omni from approximately August 22, 2006, to October 9, 2006. Ms. Merdanovic worked in the kitchen of the Broadway Deli, a sandwich shop located in the resort. The Broadway Deli was one of several restaurants in the Omni complex. During the brief period of Ms. Merdanovic's employment, the Broadway Deli did not have a full-time manager. Ms. Merdanovic reported to Silvio Rosalen, the sous chef at Teri's Restaurant, near the Broadway Deli in the Omni complex. Mr. Rosalen reported to Robert Fohr, the assistant food and beverage manager for the Omni. The Omni has established a policy that prohibits harassment in the workplace. The policy defines harassment as: ny unwelcome verbal, non-verbal, physical or other conduct or behavior relating to an individual's race, religion, color, sex, national origin, age, disability or any other categories protected by state, federal or local law, that is made a term or condition of employment, is used as the basis for employment or advancement decisions, or has the purpose or effect of unreasonably interfering with work or creating an intimidating, hostile or offensive work environment. The policy "strictly prohibit[s]" employees, supervisors, and members of management from harassing other employees, supervisors, or members of management. The policy directs an employee who has a complaint of harassment to report that complaint to any manager or supervisor, the human resources director, the general manager, or the regional vice president of operations. The complaint triggers a formal investigation, usually conducted by the human resources director. The Omni's harassment and equal employment opportunity policies are set forth in the Omni's Associate Handbook, which is provided to all employees. The handbook is reviewed during an orientation session that all newly hired Omni employees must attend. Ms. Merdanovic attended an orientation session on August 26, 2006, and testified that she was familiar with the harassment policy. The Omni calls the first 90 days of employment an "introductory period." The Associate Handbook describes the introductory period as follows: During this time you will have a chance to see whether you like your job and Omni Hotels will have an opportunity to evaluate your performance and suitability for your position. If Omni Hotels concludes that your job performance and/or suitability have been unsatisfactory, you may be dismissed at any time during the introductory period at Omni Hotels' complete discretion. You may also be dismissed at any time after the introductory period at the sole discretion of Omni Hotels. Both during and after the introductory period, all associates are associates at will. If an employee's manager determines within the first 90 days of employment that an employee's job performance and/or "suitability" is unsatisfactory, the manager will meet with the employee to review the manager's concerns. After this meeting, the employee's job status is "suspended pending investigation" while the manager confers with the human resources department to review the issues. If the manager and the human resources department agree that the employee should be terminated, then human resources will advise the employee of the decision. Ms. Merdanovic testified that two Hispanic co-workers, Erica Torres and Charlotte Ruiz, harassed her because of her nationality. Ms. Torres asked her what she was doing in America and refused to go into the kitchen with her. Both women made jokes and laughed about Ms. Merdanovic being from Bosnia. Ms. Merdanovic testified that her co-workers also disliked her, because she refused to give them free food from the Broadway Deli's kitchen. Ms. Merdanovic did not complain to a manager, supervisor, or any other Omni employee about the harassment she claimed to have experienced. Mr. Rosalen testified that he received numerous complaints about Ms. Merdanovic's job performance from her co- workers. The co-workers told him that Ms. Merdanovic failed to follow instructions, argued with guests and co-workers, interrupted co-workers who were trying to explain how to complete job tasks, gave guests the wrong order at least twice, and failed to comply with the posted work schedule. Mr. Rosalen personally observed Ms. Merdanovic's performance deficiencies on several occasions. The guest complaints were most significant to Mr. Rosalen. On one occasion, the guest had ordered a turkey sandwich, but was served a pastrami sandwich by Ms. Merdanovic. Rather than correcting the order immediately, Ms. Merdanovic attempted to convince the guest to keep the pastrami sandwich by telling him it was good and he would like it. On a second occasion, a guest ordered a milkshake and was served iced coffee.3 At the hearing, Ms. Merdanovic testified that she was unaware of any complaints about sandwiches. She stated that she has worked in kitchens for years and understands how to make sandwiches in a deli. She did complain that she was never trained to operate the "front of the store" equipment such as the milkshake machine or coffee machine, yet was expected to somehow be able to operate them. Mr. Rosalen orally counseled Ms. Merdanovic on multiple occasions regarding her performance deficiencies, but he never observed any improvement. Pursuant to the process for terminating employees during their introductory period, Mr. Rosalen and Mr. Fohr decided to meet with Ms. Merdanovic to discuss her performance deficiencies and to advise her not to return to work until she heard from human resources. After this meeting, Mr. Rosalen and Mr. Fohr would meet with the human resources director to discuss whether to terminate Ms. Merdanovic's employment. Mr. Rosalen and Mr. Fohr prepared a "Problem/Solution Notice" form, dated October 2, 2006, that set out the performance deficiencies and possible corrective actions for Ms. Merdanovic. This notice was intended to be the outline for discussion during the meeting with Ms. Merdanovic. Under the heading "Specific Nature of Problem" were various categories, including absenteeism, tardiness, violation of company policies, and unsafe actions. Ms. Merdanovic's problem was categorized as "Performance Below Standards." The specific performance problems were set out as follows: There have been numerous complaints about Suhra Merdanovic's job performance from several of her co-workers. These complaints include: Does not follow training of food preparation techniques and quantities. Does not follow food, coffee and drink recipes. Does not know what all the ingredients are to be able to make recipe. Looses [sic] tickets for orders. Has become argumentative with employees and guests when told that the product is wrong. Has tried to convince guests that mistakenly prepared food is good and tried to get them to take it. Does not understand the schedule after repeatedly having it explained. Interrupts employees and does not let people finish talking when trying to explain how a task needs to be completed. Is not a team player. The notice set forth the following under the heading, "Expected performance or conduct/corrective action required": Suhra must adhere to the following guidelines: Must be receptive to and accept training in all facets of Broadway Deli culinary operations with a positive attitude. Must follow all standard recipes without deviation to achieve a consistent product. Must produce orders in timely fashion in accordance to [sic] the guest's specifications. Must never become argumentative with a guest and try to force a guest to take a product they do not want. Must get along with and assist teammates with all guest needs. The notice concluded that the "disciplinary action taken" would be "Suspension/Termination." On October 2, 2006, Mr. Rosalen and Mr. Fohr met with Ms. Merdanovic in Mr. Fohr's office to review the contents of the Problem/Solution Notice. When her supervisors began reviewing her performance deficiencies, Ms. Merdanovic interrupted to argue with them. Mr. Fohr pointed out that this was the same sort of conduct that led to this counseling session in the first place. Before Mr. Rosalen and Mr. Fohr could present her with the notice and commence the formal suspension/termination process, Ms. Merdanovic began to cry in a way that Mr. Rosalen described as "almost hysterical" for several minutes. Ms. Merdanovic then walked to the kitchen of the Broadway Deli. Mr. Rosalen followed her, both to make sure she was all right and to escort her off the Omni property. Ms. Merdanovic again began crying and saying that she could not breathe. She described her condition as "couldn't breathe, couldn't think, couldn't stay." Mr. Rosalen called in the Omni's security team, which also acts as the resort's first responder in medical emergencies. The entry of the security guards threw Ms. Merdanovic into a greater panic. Eventually, at Ms. Merdanovic's request, the Omni called an ambulance service, which transported her to Florida Hospital in Orlando. Ms. Merdanovic was diagnosed with high blood pressure and discharged after an overnight stay in the hospital.4 After the incident leading to Ms. Merdanovic's hospitalization, Mr. Rosalen and Mr. Fohr met with Lisa Borde- Christie, the Omni's human resources manager, to discuss their meeting with Ms. Merdanovic, the complaints about her from guests and co-workers, and Mr. Rosalen's observations of her performance deficiencies and his previous attempts to correct them. Ms. Borde-Christie agreed that Ms. Merdanovic was not meeting the Omni's performance expectations for her position. In light of Ms. Merdanovic's failure to improve her performance despite Mr. Rosalen's several attempts at verbal counseling, Ms. Borde-Christie, Mr. Fohr, and Mr. Rosalen agreed it was unlikely that Ms. Merdanovic's performance would improve in the future. They decided to terminate her employment. On October 9, 2006, Ms. Borde-Christie and Mr. Rosalen met with Ms. Merdanovic to tell her that her employment was terminated and to review the performance deficiencies that caused her termination. When Ms. Borde-Christie attempted to review the performance issues, Ms. Merdanovic became argumentative, stating that these issues were all lies and that her co-workers did not like her. Ms. Borde-Christie testified that Ms. Merdanovic said nothing about her national origin being an issue in the workplace. Ms. Merdanovic produced no credible evidence that her language or national origin played a role in the decision to terminate her employment. The Omni's management did not become aware of her allegations of harassment due to her national origin by her co-workers until Ms. Merdanovic filed her Employment Complaint of Discrimination, more than two months after her dismissal. The evidence produced at hearing demonstrated that the reasons for Petitioner's termination all related to her job performance.
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 the Omni Hotel Resort did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 26th day of March, 2008, 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 26th day of March, 2008.
The Issue Whether Respondent subjected Petitioner to an unlawful employment practice on the basis of religion; or in retaliation to his engagement in a lawful employment activity, in violation of section 760.10, Florida Statutes.
Findings Of Fact Respondent, Escambia County, is a political subdivision of the state of Florida that is authorized to carry out county government, pursuant to section 125.01, Florida Statutes (2016). Escambia County is an employer as that term is defined by the Florida Civil Rights Act 1992. Petitioner, Mr. Love, was employed by Blue Arbor, Inc., a staffing agency. Blue Arbor had a contract with Escambia County for temporary labor services. Blue Arbor assigned Mr. Love to a temporary job with Escambia County, Public Works Department, Office of Engineering and Construction, as an engineering project coordinator. The assignment was for one year. Petitioner was assigned to the job from May 26, 2014, until his termination. On January 26, 2015, Escambia County terminated Petitioner’s temporary employment contract. Petitioner was an employee of Escambia County as that term is defined by the Florida Civil Rights Act of 1992. Mr. Love is a Christian. Petitioner timely filed a complaint with the Commission alleging Respondent engaged in an unlawful employment practice by terminating Petitioner on the basis of his religion. As an engineering project coordinator, Petitioner’s job responsibilities included: management of complex projects, ability to prioritize work, and ability to exercise good interpersonal skills with co-workers, supervisors, and the public. Mr. Love earned a Bachelor of Science in Engineering Technology and Construction degree in December 2013. Mr. Love had no prior drainage or roadway experience before working for Escambia County. Mr. Love began working for Escambia County following a storm that was declared a disaster. Due to the disaster, staff was expected to be flexible and able to perform job duties without refusal or hesitation. Respondent asserts that it terminated Petitioner’s contract due to his inability to perform job responsibilities without objection or hesitation, work performance, and disruptive behavior. Mr. Love had multiple supervisors during his eight month tenure at Escambia County. While working at Escambia County, Mr. Love’s supervisors had issues with his work performance and his behavior. Mary Bush, a construction manager, supervised Mr. Love in 2014. Ms. Bush had issues with Mr. Love’s file storage practices and behavior. Ms. Bush testified that Mr. Love saved all his work on a personal computer and was told several times to save his work in the shared folder. Mr. Love refused to save his work on the shared drive on the basis that the documents were his work. During the time Ms. Bush supervised Mr. Love, she experienced two incidents with Mr. Love involving outbursts. On one occasion, Mr. Love was in Ms. Bush’s office seeking review of Mr. Love’s work. Mr. Love stated in a raised voice, “you need to review the report so I can do my job.” On another occasion, Ms. Bush directed Mr. Love to identify his documents using a certain description and explained the importance of the practice. Mr. Love objected on the basis that the practice was an asinine process. Mr. Love was reassigned to another supervisor due to the outbursts involving Ms. Bush. At no point did Mr. Love state that his objection to following directions was based on his religion. Chris Curb, an engineering manager for stormwater, also supervised Mr. Love during his tenure at Escambia County. Despite the direction from Ms. Bush, the file-sharing issue continued. On December 30, 2014, Chris Curb notified Mr. Love by email that his file saving was a “problem.” Mr. Curb advised Mr. Love that his file folder was not a standard subfolder and he needed to save all files in the proper shared subfolders. He explained that file sharing is important so Escambia County could comply with state regulations and records requests. He further explained that Mr. Love was not the sole owner of a project record because other employees would need access to the work. He concluded his email with instructions for Mr. Love to use designated file folders. A third supervisor, Jim Duncan, also had issues with Mr. Love’s work performance and behavior. Similar to his practice under prior supervisors, Mr. Love refused to save his files to the shared file folder. Mr. Love also repeatedly refused to attend mandatory meetings without a direct command. For example, on multiple occasions Mr. Love’s supervisor had to locate and direct him to attend the weekly department meetings. Mr. Love testified that he was reluctant to attend the meetings because he believed they “were unproductive and take up too much time.” Similar to other supervisors, Mr. Love engaged in an outburst with Mr. Duncan. Mr. Duncan was a construction manager when he supervised Mr. Love and thus, was responsible for directing Mr. Love to advance projects from conception to completion. One such project was ENG Flood 414-85, which was also referred to as the Beulah Road at Helms Intersection project (“Beulah-Helms project”). Mr. Love was the project coordinator for the project. In October 2014, Roads, Inc., a construction company, submitted a bid for the Beulah-Helms project. Brett Moylan is the vice-president and chief operating officer of Roads, Inc. The project was a pricing agreement contract. Pricing agreement contracts are contracts where prices are established for a period of one year and are adopted by the Escambia County prior to the award of any specific pricing agreement contract. Pricing agreements have a blackout period and bidding process that also takes place prior to acceptance of the pricing agreement. In December 2015, Mr. Love was in the final stages of the procurement process for the Beulah-Helms project. Roads, Inc. was the lowest bidder on the project. Mr. Love corresponded with Mr. Moylan regarding the documents necessary to approve the project. Mr. Love requested a construction schedule and MOT plan for the project before the work order could be approved. Mr. Moylan asserted in an email that the construction schedule would begin after the purchase order is issued. Mr. Moylan later submitted the MOT plan and signed the work order. On January 22, 2015, Mr. Love sent an email to Mr. Moylan requesting the construction schedule and another signed work order with the appropriate dates. Mr. Love advised Mr. Moylan that he would not begin the project until Mr. Moylan submitted the construction schedule. Although Mr. Moylan explained that he usually did not submit a construction schedule, he ultimately provided the construction schedule to Mr. Love indicating that the project would begin the following Monday and “be substantially complete within 60 days of commencement, and have a completion date within 90 days.” The construction schedule provided by Mr. Moylan was an acceptable schedule. For a reason that was not addressed at hearing, Mr. Love asked Mr. Moylan for the construction schedule again, despite receiving it. Mr. Moylan advised Mr. Love to accept the next lowest bidder. As a result of the email exchange with Mr. Moylan, Mr. Love planned to send Mr. Moylan a follow-up email about accepting the next highest bidder, which would purportedly cost Escambia County an additional $20,000 for the project. Before Mr. Love drafted the email, he called Mr. Moylan to discuss the issues referenced in the email. Mr. Love testified that before he called Mr. Moylan he “drove around the block a couple of times, before he could call Mr. Moylan because [he] knew that the conversation was going to get heated.” Mr. Love described the conversation as heated, and they “cut each other off” during the conversation. Mr. Moylan contacted Mr. Duncan to complain about Mr. Love’s behavior related to the Beulah-Helms project. Mr. Duncan approached Mr. Love to discuss the exchange between Mr. Love and Mr. Moylan. Mr. Duncan directed Mr. Love to award the Beulah-Helms project to Roads, Inc. Mr. Love objected to awarding the contract to Roads, Inc. He testified that his objection was based on his religion because “[he] had an obligation to utilize his moral and ethical judgment which is inherent to [his] religion.” Mr. Love stated that the religious accommodation was based on his request for additional information before he could feel comfortable awarding the project to Roads, Inc. Mr. Love testified that he told Mr. Duncan that he refused to award Roads, Inc., without the construction schedule “based on a matter of principal.” Mr. Love did not say he refused to approve the project based on his religion. He did not say he needed an accommodation for his religion. Mr. Duncan directed Mr. Love not to take any further action until they discussed Mr. Love’s objection with the department manager, Joy Jones. During the conversation, Mr. Love became angry and yelled at Mr. Duncan. Sharon Johnson, a project coordinator, witnessed the exchange between Mr. Love and Mr. Duncan. Specifically, Ms. Johnson observed Mr. Love and Mr. Duncan having the discussion about the Beulah-Helms project. Ms. Johnson described Mr. Love’s demeanor as unhappy and upset. She testified that he raised his voice and yelled at Mr. Duncan. At the same time, Mr. Duncan attempted to calm Mr. Love. Ms. Johnson could not recall the substance of the discussion, but she testified without hesitation that Mr. Love did not mention anything about his religion. Ms. Johnson’s testimony is found to be credible. On January 26, 2015, Escambia County terminated Petitioner’s contract. Joy Jones, the Engineering Department manager, made the final decision to terminate Mr. Love’s contract. Although Ms. Jones did not directly supervise Mr. Love, she was aware of the issues concerning his work performance and behavior through complaints from her staff who directly supervised Mr. Love. After several complaints of angry outbursts, difficulty meeting deadlines, failure to save critical documents to the shared drive, inability to move projects in the process without reluctance, and inability to work with several supervisors, Ms. Jones made the decision to terminate Mr. Love’s contract. Based on the evidence, Respondent has demonstrated that Mr. Love’s termination was based on a legitimate business decision due to poor work performance and disruptive behavior. Approximately one year after his termination, Mr. Love sent an email to the Escambia County Administrator, Jack Brown. The email complained of perceived damage to Mr. Love’s reputation, credibility, and career. Mr. Love did not mention any complaint of religious discrimination or retaliation. In his response to Mr. Love, Mr. Brown explained that “in the project coordinator position staff must examine and thoroughly understand applicable process. Refusal and hesitation to perform job duties affect production, grant reimbursement deadlines, and citizen expectations.” Mr. Love did not explicitly mention anything about his religion or religious discrimination to any of his supervisors before he was terminated from Escambia County.
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 dismissing Petitioner’s discrimination complaint and Petition for Relief consistent with the Findings of Fact and Conclusions of Law of this Recommended Order. DONE AND ENTERED this 24th day of May, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Benjamin David Love Post Office Box 1132 Gonzalez, Florida 32560 (eServed) Meredith D. Crawford, Esquire Escambia County Board of County Commissioners Suite 430 221 Palafox Place Pensacola, Florida 32502 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Anna L. Elam, was not offered employment as an elementary school teacher and was therefore discriminated against by the Respondent, Flagler County Schools, on the basis of her age.
Findings Of Fact The Petitioner filed an Amended Charge of Employment Discrimination with the Florida Commission on Human Relations (“Commission”) on February 15, 2003. The Commission investigated the amended complaint and issued a determination of no cause that discrimination had occurred. The Petitioner timely requested a formal administrative hearing and the petition was duly referred to the Division of Administrative Hearings by the Commission. Upon notice, this matter was set for formal hearing on December 18, 2003, at the Flagler County Courthouse in Bunnell, Florida. Following a Motion for Continuance filed by the Respondent, the final hearing was reset for February 17, 2004, at the same location in Bunnell, Florida. The Petitioner called and spoke with Melissa Young, assistant to Administrative Law Judge P. Michael Ruff, and to Claudia Lladó, assistant to the undersigned, to inform them that she had no legal counsel and was therefore not going to appear at the February 17, 2004, hearing. Both assistants informed the Petitioner that she should attend the hearing and inform the undersigned personally as to her intention of whether to proceed. The undersigned convened the hearing in Bunnell, Florida, on February 17, 2004. Counsel for the Respondent appeared at the hearing along with approximately five witnesses for the Respondent who intended to testify. Neither the Petitioner nor anyone purporting to be counsel or a qualified representative for the Petitioner appeared at the hearing or within 45 minutes of the time scheduled for the hearing, 10:00 a.m. Neither the Petitioner nor anyone purporting to be counsel or a qualified representative for the Petitioner submitted any evidence via deposition, sworn testimony or documentary evidence prior to, at the time of, or subsequent to the hearing on February 17, 2004. Other than the calls to the assistants to the judges, neither the Petitioner nor anyone purporting to be counsel or a qualified representative for the Petitioner has contacted the undersigned or his assistant subsequent to the hearing on February 17, 2004.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, arguments of the Respondent and the fact that the Petitioner voluntarily absented herself from the hearing, it is, therefore, RECOMMENDED that a Final Order be entered by the Florida Commission on Human relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 19th day of February, 2004, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Anna L. Elam 23 Patric Drive Palm Coast, Florida 32164 Andrew B. Thomas, Esquire 1625 Lakeside Drive Deland, Florida 32720 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed the unlawful employment practices alleged in the employment discrimination complaint Petitioner filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a very well-credentialed, internationally-recognized cancer researcher who is black and a native of Cameroon. He has been granted lawful permanent residence status in the United States (with an EB-1 classification, signifying that he is an alien with "extraordinary ability"). Petitioner received his Doctor of Medicine degree in 1999 from the University of Yaounde I in Cameroon. He spent the next five years as a post-doctoral fellow at the University of Rochester Medical Center in Rochester, New York.3 He worked in the Department of Orthopaedics (under the supervision of Randy N. Rosier, M.D., Ph.D.) for the first two of these five years and the James P. Wilmont Cancer Center (under the supervision of Dr. Rosier and Joseph D. Rosenblatt, M.D.) for the remaining three years. Petitioner enjoyed a considerable amount of independence, and was "very productive," during his time at the University of Rochester Medical Center. In June 2005, Petitioner began working as a post- doctoral associate assigned to the Viral Oncology (VO) program at UM's Sylvester Comprehensive Cancer Center (Sylvester) in Miami, Florida. He remained in this position until his termination (which he claims was discriminatorily motivated) in September 2006. Sylvester "serves as the hub for cancer-related research, diagnosis, and treatment at [UM's] Miller School of Medicine" (Miller). The VO program is administratively housed in the Division of Hematology/Oncology of Miller's Department of Medicine. Dr. Rosenblatt, Petitioner's former supervisor at the University of Rochester Medical Center, is now, and has been at all times material to the instant case, the Chief of the Division of Hematology/Oncology. According to the Sylvester website, the goals of the VO program include: Investigating the mechanisms of oncogenesis and innate immune subversion in viral associated cancers including those that arise in immunocompromised patients. Devising novel and targeted therapeutic and preventive strategies for viral associated malignancies. Implementing basic and clinical international collaborative studies in developing nations that have a high incidence of these tumors. William Harrington, Jr., M.D., is now, and has been at all times material to the instant case, "in charge" of the VO program. Dr. Harrington, who is white, is a 1984 Miller graduate. He has been working for UM since his graduation 24 years ago. For the past 17 or 18 of these years, he has held positions having supervisory authority over other UM employees. As the head of the VO program, Dr. Harrington runs a "small" laboratory (Dr. Harrington's lab) staffed by a post- doctoral associate, lab technicians, and a research nurse (all of whom he directly supervises). Dr. Harrington's lab is a "hundred percent funded by [competitive] peer review grants": four from the National Institutes of Health (NIH); one from the Leukemia Society; and one from the State of Florida. It is "one of the best-funded labs" at UM. In addition to running his lab, Dr. Harrington also sees and treats patients at UM's Jackson Memorial Medical Center (Jackson Memorial). Approximately 95% of his patients are indigent, with a large number of them being of African descent (black). Dr. Harrington "specializes" in viral lymphomas, with a strong emphasis on diseases that occur predominantly in persons of African descent (certain AIDS-related lymphomas, HTLV-related lymphomas, and Burkitt lymphoma). Over the years, Dr. Harrington has had occasion to do work outside the United States, in areas where these diseases are prevalent, including the Afro-Brazilian state of Bahia, where, approximately 12 years ago, he met his wife Tanya, who is of African descent. Dr. Harrington has also "worked with colleagues in Zambia . . . on AIDS-related lymphomas and pediatric Burkitt lymphomas." Approximately seven or eight years ago, Dr. Harrington "sponsored post-doc[toral] trainees from Zambia in his lab." Dr. Harrington was introduced to Petitioner by Dr. Rosenthal. After reviewing Petitioner's "bio-sketch," Dr Harrington interviewed Petitioner and was sufficiently impressed to offer Petitioner an unadvertised post-doctoral position in his lab. Dr. Harrington hired Petitioner because Petitioner had the "skillset" Dr. Harrington was looking for. Dr. Harrington was particularly influenced by Petitioner's background, including publications, in NF-kappaB signaling, which was an "area[] of [Dr. Harrington's] interest." Moreover, Dr. Harrington thought Petitioner was a "smart capable man." At the time he hired Petitioner, Dr. Harrington was aware Petitioner was black and from Cameroon. Neither Petitioner's race, nor his national origin, played any role in Dr. Harrington's hiring decision. As a post-doctoral associate, Petitioner was the "senior lab person" working under Dr. Harrington's supervision. He was expected to assume a "higher level [of responsibility] than other staff personnel in [the] lab . . . in terms of doing a given set of experiments or [other] work." Dr. Harrington and Petitioner initially enjoyed a cordial working relationship. They had "excellent rapport" and even socialized after work hours. At Dr. Harrington's invitation, Petitioner came over to Dr. Harrington's house approximately "every other Friday" and for the Thanksgiving holiday. Although Dr. Harrington did not hire Petitioner specifically to "build[] international research programs," once Petitioner was hired, Dr. Harrington did discuss the matter with Petitioner, and he authorized Petitioner to initiate contact with cancer investigators in Cameroon to explore the possibility of their collaborating with Dr. Harrington on a project involving NF-kappaB signaling and Burkitt lymphoma. After having received Dr. Harrington's authorization, Petitioner "made contact with some of [his] mentors back in Cameroon, all [of whom were] involved in [Cameroon's] national cancer control program." On July 13, 2005, Dr. Harrington himself sent an e- mail to these Cameroonian investigators, which read as follows: Thank you Dr. Mouelsone for your response. I was considering putting together a project on Burkitt lymphomas that would principally be a study on the biology of the tumor in endemic and HIV associated cases. We would collaborate with investigators in Brazil and Africa. The study would be focused on targets that could be exploited in novel therapies as well the role of ebv [Epstein Barr virus] in different types of tumors. We already have IRB approval for collection of residual lymphoma specimens as well as protocols for the processing that would be required. A challenge in any grant is keeping the project focused and attractive scientifically for the reviewers. The participating center would have to have the capability to identify and consent patients as well as processing and storage . . . . Therefore one would need reagents, a research nurse (maybe 50%) salary and liquid nitrogen dewar as well as some support for a PI. Maybe I could send everyone the aims of a recently submitted grant to see if it would be possible. I could send our informed consent document since it broadly covers all viral associated tumors. I am attaching a recent article and I sincerely appreciate your help. I also am a fan of the Cameroon's football team the "indomitable lions." Dr. Harrington ultimately determined to collaborate exclusively with the Brazilian investigators, with whom he had a longstanding professional relationship, and not with the Cameroonian investigators, on this particular project. During the first several months of Petitioner's employment, he engaged in research involving NF-kappaB signaling. He also helped write an article (entitled, "Zidovudine: A Potential Targeted Therapy for Endemic Burkitt Lymphoma") that was published in the East African Medical Journal. When presented with the draft of the article that Petitioner had prepared, Dr. Harrington commented to Petitioner (by e-mail dated July 28, 2005), "[T]his is better than the one I wrote." Petitioner also contributed to the preparation of a successful NIH grant application submitted on September 1, 2005, by Dr. Harrington (as Principal Investigator/Program Director) seeking funding for his lab, as well as for collaborators in Brazil and at the University of North Carolina at Chapel Hill, to "investigate in primary BLs [Burkitt lymphomas] the form of EBV [Epstein Barr virus] latency and its relationship to NF- k[appa]B"; to "determine the susceptibility of primary tumor cell lines to antiviral apoptosis"; and to "investigate commonly available, inexpensive agents that are known to induce the EBV lytic cycle and potentiate phosphorylation of AZT [azidothymidine, also known as Zidovudine]." The grant application was "based on . . . work that had been done [prior] to [Petitioner's coming to work in Dr. Harrington's lab]." The following individuals were listed as the "key personnel" on the grant application: Dr. Harrington; Iguaracyra Araujo, M.D., of Brazil; Jose Barreto, M.D., of Brazil; Carlos Brites, M.D., Ph.D., of Brazil; Dirk Dittmer, Ph.D., of the University of North Carolina at Chapel Hill; and Isildinha Reis, Ph.D., of UM. The following statements were made on the grant application concerning Dr. Reis' and Petitioner's anticipated roles in the proposed project: Isidinha Reis, Ph.D. (Biostatistician) will be in charge of the statistical component of this project including periodic analysis of data pertaining to this grant. She will participate in phone conferences with Ms. Shank and Luz. She will be particularly important for the conduct of this study since she is Brazilian by birth and fluent in Portuguese. 7.5% support is requested. Valentine Andela (Post Doctoral Fellow) will be in charge of all the day-to-day laboratory aspects of Dr. Harrington's component of the project. This includes receipt of isolates shipped from Brazil and then forwarding them to Dr. Dittmer, cell culture, DNA and RNA preparation and hybridization, EMSA and immunoblot analysis, cryopreservation of samples, etc. 50% support is requested. In the fall of 2005, Dr. Harrington discussed with Petitioner an article published in a "science magazine" that reported on Epstein-Barr virus (EBV) microRNAs, which, at the time, was a relatively unexplored area of research and one in which Dr. Harrington "definitely [did] not" have any "expertise." During the discussion, Petitioner expressed an interest in studying EBV microRNAs. Dr. Harrington "agreed [this] would be an interesting project to pursue," and he "thought [Petitioner] could do a good job" on it. With Dr. Harrington's approval, Petitioner thereafter started his research of EBV microRNAs, a project that consumed most of his work time during the remainder of his employment with UM. The project included helping draft a manuscript detailing the findings of the research. The experiments that Petitioner did as part of the project were on tumor samples that had been "collect[ed]" and "intial[ly] analy[zed]" by Brazilian investigators with whom Dr. Harrington had collaborated with in the past. In November 2005, Petitioner advised Dr. Harrington that he was considering participating in a clinical residency program, and Dr. Harrington "agreed to help [Petitioner] out" in any efforts he might make to seek a residency position. At Petitioner's request, Dr. Harrington wrote a letter of reference (dated November 16, 2005), "highly recommending" Petitioner for such a position. Dr. Harrington indicated in his letter, among other things, that in the "relatively brief time" that Petitioner had worked for him, Petitioner had "exceeded [Dr. Harrington's] expectations and made novel findings in the area of lymphoma and Epstein Barr virus." In addition to writing this letter of reference, Dr. Harrington, on Petitioner's behalf, contacted Stephen Symes, M.D., who at the time was the "head of the [Jackson Memorial medical] house staff program." Dr. Symes told Dr. Harrington that the "logical thing for [Petitioner] to [first] do [was] . . . a clinical rotation" at a teaching hospital, such as Jackson Memorial (during which he would act as either an observer or as an actual member of a medical team). Petitioner had planned to participate in a two-week clinical rotation at Jackson Memorial in December 2005, but had to change his plans because, when December came, he was still immersed in the EBV microRNA research project he had undertaken and had no time to do the rotation. Dr. Harrington was pleased with the quality of the work that Petitioner was doing on the project. In an e-mail he sent Petitioner on March 6, 2006, Dr. Harrington stated that he was "really excited about [Petitioner's] work," which he described as "novel and probably the best thing to come out of [his] little lab." On or about March 20, 2006, Dr. Harrington provided Petitioner with his written annual performance evaluation. He gave Petitioner an overall rating of "exceeds standards," with Petitioner receiving an "exceeds" rating in the categories of "Job Knowledge," "Supervision Required," "Quality of Work," "Adaptability," "Customer Service," and "Safety," and a "meets" rating in the category of "Time Management." Dr. Harrington made the following handwritten comment on the evaluation with respect to the latter category: I would like him to maintain more regular hours but his work is outstanding. Dr. Harrington felt compelled to make this comment because, although he "liked the work [Petitioner] was doing," "there were issues [regarding Petitioner's] disappearing for long periods of time [from Dr. Harrington's lab without telling Dr. Harrington where he was] and [Dr. Harrington] thought that this was becoming problematic." These "unexplained absences" from the lab were becoming more frequent and Dr. Harrington felt like Petitioner was "pushing the envelope." The improvements that Dr. Harrington had hoped to see in Petitioner's attendance did not materialize, and the relationship between the two deteriorated precipitously. On March 29, 2006, following a confrontation he had with Dr. Harrington, Petitioner sent an e-mail to Dr. Harrington, in which he advised: I did not mean to be rude this afternoon and you are absolutely right in pointing out that I am tense and consequently reactive. All things considered, I am putting undue pressure on myself. I am pretty much accepted in the Master of Arts in International Administration (MAIA) program at the UM. It is a professional degree program that puts a lot of weight on a practicum of the degree candidate[']s choice. I had proposed to implement the strategy articulated in the attached manuscript, which was previously funded in 2003 by an NCI-UICC grant for international cancer research and technology transfer. I am going to commit[] to the MAIA program, get it done in a year, and then reassess. I can go on to work in international developmental aid or go on to do a residency. If I was pushing for a tenure track faculty position, it is in part because I wanted to pursue the first option, but do it gradually over 3 years under your wing. Of course, I was counting on that plan being in line with your grand scheme, i.e. developing international programs. Dr. Harrington responded that same day by sending Petitioner the following e-mail: Ok I can help you with letters etc. I understand and that sounds like a good program. I want to expand these studies to Africa and hopefully in the future we can work together. I need your help on this paper. I think you have done very nice work. Things are pretty tough in the academic arena these days. A few days later, on April 1, 2006, Dr. Harrington, upset with what he felt was Petitioner's continuing lack of respect for his supervisory authority over the operation of the lab, sent Petitioner an e-mail, in which he stated the following: I have given this some thought and I don't think that this is working out with you. I am tired to see that you have simply disappeared without even a word to me and although you do very nice work it isn't worth it to me at this point. I also did not like the way you simply dismissed the fact that I had to do the work as outlined in the grant. I have tried very hard to go out of my way to accommodate you but at this point I feel that I have no authority at all. I want you to sit down on Monday and give me all the data for this paper, raw and otherwise. I also received all the pictures from Iguarcyra and the tumors are on the way. If you don't want to finish this then I will send everything to [D]irk. It is too bad because there is a lot we could have accomplished. Later that month, on April 28, 2006, reacting to another instance of Petitioner's being away from the lab when he was expecting Petitioner to be there, Dr. Harrington sent the following e-mail to Petitioner: I have been waiting around here to look at the figures. If you don't come in you should call, or if you leave for the majority of the day, you should call. I have spoken to you about this to no avail. You are a smart guy but am sick of this. Finish your paper and find another job. You will have to leave the computer here too. I will not ask for a raise for you nor a faculty position. Dr. Harrington sent Petitioner a follow-up e-mail the next day, which read as follows: I really am disgusted. You have thrown away everything this year, both for you and me. Your unstable behavior makes me question everything you have done also and so I will have to cancel submitting this paper until Lan[4] or JC can repeat some of the work. You are throwing away your tuition benefits also and have adversely affected everyone, most of all yourself. I have contacted the appropriate ones about this. I strongly urge you to do all I have outlined below.[5] I will not consider anything else. In an April 30, 2006, e-mail to Dr. Harrington, Petitioner responded: I will let the facts speak for themselves. Prior to joining your lab, I spent over five years working in a highly interactive and competitive environment. My record is infallible. You have in fact benefited tremendously from my intellect, my experience and especially my poise. I trust you would assemble an ethics committee to probe my work. I expect a letter of termination in due form and I would transfer all of the research material accordingly. This e-mail generated the following response from Dr. Harrington, which was communicated to Petitioner later that day by e-mail: Poise, what a joke. If you walk off with the data and th[]e computer I will call security. The morning of May 2, 2006, Petitioner sent the following e-mail to Dr. Harrington: Dear Dr. Harrington: Per your request, I will transfer everything to Lan no later than next week, Monday the 8th. This was all a set up anyway, to bog me down in the lab. So I would not make a fuss about any of this. I will put this all behind me. Nonetheless, I have backed up every relevant document that exonerates me from any denigration. In a way, I should thank you for throwing me out to the world and bringing me to face my fears. So thank you. Valentine Dr. Harrington replied a little more than a hour later, stating in an e-mail to Petitioner: I have always t[h]ought that you were the smartest person that has worked for me. Your work is really beautiful and I certainly could not have done it. I am very disturbed over this and I don't see why you could not level with me. Your behavior at times was just too much, not your demeanor but the fact that you simply went on mental walkabouts and disappeared. You have to get a grip on your ego and not wear it on your sleeve. I had really thought we could have basically kicked ass in this area but I don't think that you realize the precarious nature of this business and that you have to be careful about straying into something or somebody that will leave you []no[] grant money. Valentine you can ask Joe. I spent most of my time bragging about your work to everyone. If you are smart, which you obviously are, then you don't have to go around telling that to people, they know. The most important thing is that you get along with people and when you would just not show up without even calling it really pissed me off. It was telling me that I am not even worth a phone call. I can be a real asshole, again ask Joe, and I have done myself harm from being so. But like it or not I am a lot older and more senior than you. You will far surpass me in research if you get a grip on your ego. If not there will be an ever shrinking number of people that care. I would like for you to call me on my beeper or cell. Petitioner defended himself in the following manner in an e-mail he sent to Harrington later that morning: You cannot say that I [am] an egomaniac. I give of myself and I give very generously. That is the record I left in Rochester and that is the record I have left in your lab. To say people there will be an ever shrinking number of people who care is again not true. You should know that whenever I call[ed] on a favor from Rochester, for example getting into the . . . MA in Intl Admin [program], the response was immediate and overwhelmingly positive. I never thought I was smart and never said it. This much I know, I work very hard and I have a generous heart and I will not l[]ose my way. Those are all the values I ever had and I will stick to it. God promised the path would be rough, but the landing would be safe. Again, thank you. Valentine. The final e-mail of the morning was sent by Dr. Harrington to Petitioner. In it, Dr. Harrington informed Petitioner: I am trying to get in contact with the [B]razilians and check on the id of the sa[m]ples one final time and I will try to submit the paper this week. The "paper" to which Dr. Harrington was referring in his e-mail was the manuscript (written by both Petitioner and Dr. Harrington) of the EBV microRNA research project Petitioner was spearheading (EBV microRNA Manuscript). On or about May 12, 2006, following an instance of Petitioner's not "com[ing] in [to the lab] nor call[ing] to advise [Dr. Harrington] of [his absence]," Dr. Harrington spoke with Petitioner about his "unexcused absences" and provided him with specific verbal instructions regarding his attendance and use of his work time. In a May 12, 2006, e-mail, Dr. Harrington informed Desiree Uptgrow of Sylvester's human resources office of the talk he had had with Petitioner and the directives he had given him. The e-mail read as follows: I spoke to Mr. Andela regarding his unexcused absences from work. I referred to the recent time on Friday, when he did not come in nor call to advise me of this. I also spoke to him about concentrating on work and not other activities while in the lab. I will not excuse this or any further incidents. He is expected to comply with the following: 1) arrival at work at a reasonable hour, by this I mean between the hours of 9 to 10 am and cessation of work at a reasonable hour by this I mean 5-6 pm. 2) Weekly goals will be outlined by me in terms of expected experiments to be performed (of course results may vary since the nature of research may not be predictable). 3) an attitude of collegiality in that if there is down time for whatever reason help would be offered by him to other lab personnel. 4) no unexplained long absences from the lab during the day. An expected lunch break of an hour is acceptable. Further deviations from the above will result in a second and third entry into his file whereupon he will be subject to dismissal. William Harrington MD As he put it in his testimony at the final hearing, Dr. Harrington "had no problem with [Petitioner's] going somewhere for an hour or going somewhere for a couple of hours and doing something, but [he] had problems with [Petitioner's] simply disappearing and not giving [him] . . . the courtesy of letting [him] know what was going on." On June 1, 2006, Dr. Harrington (as the corresponding author) submitted the EBV microRNA Manuscript (which was entitled, "Targeted Suppression of CXCL11/I-TAC by EBV encoded BHRF1-3 microRNA in EBV related B-Cell Lymphomas" and is hereinafter referred to as the "First Manuscript") to Blood, a medical journal published by the American Society of Hematology. Petitioner was listed as the first author in the manuscript. Among the other individuals given authorship credit were the Brazilian investigators. It was Dr. Harrington's decision to include them. He felt that "they clearly deserved to be co- authors" and that "it would have been unethical to not have included them." Petitioner disagreed with Dr. Harrington's assessment of the Brazilian investigators' entitlement to authorship credit. In a July 17, 2006, decision letter, Blood's associate editor advised Dr. Harrington that the First Manuscript had been evaluated and deemed "not acceptable for publication in Blood." On July 20, 2006, after what he considered to be further instances of insubordinate conduct on Petitioner's part, Dr. Harrington sent an e-mail to Ms. Uptgrow (as a follow-up to the May 12, 2006, e-mail he had previously sent her), in which he stated the following: There have been a couple of recent incidents which I want to submit in writing. Last week Mr. Andela called me and said that his flight from DC was cancelled or overbooked and he would be late. I replied that this was OK but he never called, emailed or showed up to work. Yesterday he came in past 11 am and also did not call. More concerning is that I had asked him to set up an experiment and later asked my lab tech to assist. When I spoke to my tech this morning he told me that Mr. Andela was not doing the experiment because he saw no reason to. I consider this to be insubordination. Later that same day (July 20, 2006), Ms. Uptgrow sent an e-mail to Nicole Lergier and Lynetta Jackson of Miller's human resources office advising of Dr. Harrington's desire for "assist[ance] in the termination of [Petitioner] based on [Petitioner's] continue[d] lack of following instructions " The afternoon of July 24, 2006, Dr. Harrington and Petitioner engaged in the following argumentative e-mail exchange, evidencing the further decline of their relationship: 1:51 p.m. e-mail from Dr. Harrington to Petitioner I asked you to do the bl-8 line and Peterson line. I don't care to hear that you chose not to do them. 2:05 p.m. e-mail from Petitioner to Dr. Harrington Sorry but I don't know what you are talking about - and it is very disconcerting. I told you we had done the BL8 line and you told Lan to send the Peterson line to Dittmer for profiling. That's where we left off on that - this was reiterated at the meeting you convened with Lisa, Lan, Julio and I. 2:10 p.m. e-mail from Dr. Harrington to Petitioner No that is not true. Lan said that you did not want to do another primary and I said repeatedly that I wanted it done. Your problem [V]alentine is that you think that you are in charge, ie I want a tenured position, I don't want to do old things etc. while I have to keep the grant money coming in. I respect your ability to do certain things and you are a s[m]art guy but clearly you would prefer to be autonomous. The question is how do you attain that. 2:44 p.m. e-mail from Petitioner to Dr. Harrington Dr. Harrington- that is hearsay - you and I had this conversation over the BL8 and the P[e]terson and I said the BL8 had been done and I would run the P[e]terson line in parallel with the dicer exp[erimen]t, once I had gotten the conditions right. I don't think I am in charge - and just how could I, when day in and day out you seek to undermine every "independent" effort I make, that's what[']s expected of a post-doctoral fellow... Every independent effort I have led has panned out - not because I am smart but because I put the time and effort to think it through. When I joined your lab, it was on a 1 year stint - and now I am starting on my second year because you[] wanted it that way. I joined your lab to work on NFkappB, which is what you are funded for and what I had some expertise in, but then you had me work on something totally novel - miRNAs - and the work is done. If I asked for a tenure track position - it is because I recognized (or I thought I did) that you needed someone permanent in the lab - furthermore I was investing too much time and effort on the miRNA work... despite my best efforts (which you do not acknowledge) this is not working out. So I am going right back to the drawing board by doing a residency - we had agreed on this back in May that I was taking a month off in August to do a rotation. I am taking off to Europe for a short vacation on the 6th of August to prepare for my 2 week clinical rotation. So to answer your question - I am giving up on any autonomy and I am going right back to doing a residency. 3:02 p.m. e-mail from Dr. Harrington to Petitioner You never told me about vacation time but ok... you said you would be out for aug (without pay) so am I to presume that aug 6th will be your last day? We don't seem to get along and that's that, no hard feelings. 3:09 p.m. e-mail from Petitioner to Dr. Harrington August 5th would be my last day. 3:17 p.m. e-mail from Dr. Harrington to Petitioner And I will try my best to make sure that happens[.] [Up] until the 5th I would appreciate it if you did run Peterson and bl-8 since they will be cleaner than the primaries. Although not obligated to do so, Dr. Harrington agreed to make sure that Petitioner was paid for the two weeks that, according to his July 24, 2006, 2:44 p.m. e-mail to Dr. Harrington, he was going to be spending doing his clinical rotation (after his trip to Europe). Petitioner left Miami on August 5, 2006, and went to Russia to participate in a two-week "short course" for which he received three credits towards his MAIA degree at UM. (He had enrolled in the MAIA degree program earlier that year.) On August 10, 2006, while he was still in Russia, Petitioner sent the following reply to an e-mail he had received from Dr. Harrington "regarding when [his] return date from the 2 week clinical rotation would be": Sorry I missed that - the 8th of September. Thanks. Petitioner returned to Miami from Russia on August 18 or 19, 2006, "exhausted" and "burned out." He stayed home to rest until returning to work on September 8, 2006. He never did the clinical rotation he told Dr. Harrington he was going to do, but he nonetheless was paid by UM (as Dr. Harrington said he would be) for the two weeks he represented he was going to be engaged in this activity. At no time during his absence from work did Petitioner tell Dr. Harrington he was, in fact, not doing a clinical rotation. He concealed this information because he "wanted to avoid a confrontation" with Dr. Harrington. Dr. Harrington, however, was not entirely in the dark about the matter. On August 22, 2006, through e-mail correspondence, he had checked with Dr. Symes to see if Petitioner had "ever showed up for a clinical rotation" at Jackson Memorial and had been told by Dr. Symes that he had "not heard from [Petitioner] at all." When Petitioner returned to work on September 8, 2006, Dr. Harrington asked him for documentation showing that he had done a clinical rotation at Jackson Memorial during the time he had been away. Petitioner told Dr. Harrington that he did not have any such documentation. Dr. Harrington understood Petitioner to "follow[] that up by saying he had done a clinical rotation in Rochester." Dr. Harrington then "asked [Petitioner] for documentation of that clinical rotation," which Petitioner was unable to produce. The conversation ended with Dr. Harrington telling Petitioner to leave the lab and go home, explaining that he would be bringing the matter to the attention of the human resources office. At this point, Dr. Harrington had decided that it was "just impossible to continue the working relationship" he had with Petitioner and that Petitioner had to be terminated. He was convinced that Petitioner had lied to him about doing a clinical rotation and that, by having been absent from work for the two weeks he was supposed to have been doing such a rotation, Petitioner had effectively abandoned his job. Moreover, Dr. Harrington felt that Petitioner had "exploited" him and was continuing to disregard his supervisory authority. Later in the morning on September 8, 2006, Petitioner sent Dr. Harrington the following e-mail: Hi Dr. Harrington This is just written confirmation that you asked me not to resume work today and to stay away until you had convened a meeting with human resources. Thanks Valentine Petitioner never returned to Dr. Harrington's lab. September 8, 2006, was his last day in the "work environment" of the lab. As he had promised he would, Dr. Harrington made contact (by e-mail) with the human resources office. He concluded the e-mail by stating: At this point, under no circumstances will I allow Mr. Andela back into my lab and he is dismissed. Lynetta Jackson of the human resources office responded to Dr. Harrington by sending him, on September 11, 2006, the following e-mail: Dr. Harrington, We're required to follow a process when terminating employees. As we discussed a few weeks ago, all terminations must be approved by Paul Hudgins.[6] I'm still out of the office for medical reasons. This matter is being referred to Nicole Lergier/Karen Stimmel for follow-up. Nicole Lergier was the human resources employee who handled the matter. Ms. Lergier met with just Petitioner on September 14, 2006. At the outset of the meeting, she informed Petitioner that there was a "request for [his] termination" made by Dr. Harrington. She explained that Dr. Harrington "was concerned that [Petitioner] had taken several weeks off to complete a clinical rotation for which [Petitioner] had been paid but [for] which [he] had never registered," and that Dr. Harrington considered Petitioner's conduct to be "job abandonment and . . . grounds for immediate termination." She then went on to tell Petitioner that the purpose of the meeting was to give Petitioner the opportunity, without Dr. Harrington's being present, to give his side of the story and "to bring forward any issues." Petitioner took advantage of this opportunity. He defended himself against the charges Dr. Harrington had made against him and countercharged that Dr. Harrington had been abusive, "manipulative[,] and unprofessional." At no time did Petitioner complain to Ms. Lergier that Dr. Harrington was "prejudiced against [him] because [he was] black or because [he was] from Cameroon." Petitioner indicated to Ms. Lergier that he "had no interest in going back to Dr. Harrington's lab," but that, among other things, he wanted the EBV microRNA Manuscript to be published. On the same day that the meeting took place, Petitioner sent the following e-mail to Ms. Lergier: This is in response to Dr. William J. Harrington's complaint that I abandoned my job functions. The attached e-mails dated Monday 7/24/2006 indicate that I was gone on leave, without pay. What[']s more, there [is] evidence of professional misconduct, manipulation and negative inputs on Dr. Harrington's part. This is not the first instance. The e-mails dated Tuesday 5/2/2006 to 4/28/2006 document another one of many such instances. The time I took off in August was not nearly enough to recover from a tremendously negative work environment where I nonetheless made many positive contributions, in ideas, manuscripts and grants. The facts speak for themselves. At this point, I do not intend to return to work with Dr. Harrington and I trust Human Resources would find a constructive solution to this problem. Approximately an hour later, Petitioner received an e- mail from Dr. Harrington, which read as follows: Your paper will be submitted with you as first author. I have 9 tumor blocks corresponding to the patients in [B]razil and a couple of new ones here that we will assay for eber, cxcl-11 (we got a new ab.) and LMP-1. Lan has repeated the rpa's on the lines (BL-5, R) and several new primaries and they look very good, cleaner than the previous ones. Once I get this done I will send you a draft prior to submission. Dr. Harrington subsequently submitted a revised version of the First Manuscript (Revised Manuscript) to Blood. The Revised Manuscript was "shorter," but not "substantially different from the [First] [M]anuscript." Petitioner was still listed as the first author, which Dr. Harrington "thought was [only] fair since . . . [Petitioner] had done most of the lab work on that article." Dr. Harrington did not believe that, in submitting an "abbreviated" manuscript with Petitioner's name on it as first author, he was doing anything that was contrary to Petitioner's interests or desires. Notwithstanding Dr. Harrington's best efforts, the Revised Manuscript, like the First Manuscript, was rejected for publication in Blood. Although listed as the first author, Petitioner had not "sign[ed] off" on, or even seen, the Revised Manuscript before its submission to Blood. He ultimately received an e- mailed copy from Dr. Harrington. The next day, upon running into Dr. Harrington on the UM campus, Petitioner told him: [Y]ou cannot put my name on a paper that I didn't write. You can't have me as a first author on a manuscript that I didn't sign off on. Take my name off that paper. I have moved on. Dr. Harrington complied with Petitioner's request. Petitioner's name was not on the version of the EBV microRNA Manuscript Dr. Harrington submitted to another medical journal, Cancer Research, "sometime in late 2007," which was accepted for publication and published in March 2008. On or about September 20, 2006, Petitioner was contacted by Ms. Uptgrow and given the option of resigning his position or being terminated. Petitioner told Ms. Uptgrow that he "wasn't going to resign." On September 25, 2006, Dr. Harrington sent Petitioner the following letter, advising Petitioner that his employment was being terminated "effective immediately": As you know, you have been counseled many times regarding your unsatisfactory performance and attendance issues. Unfortunately, these problems persist despite our counseling efforts. There have been several emails and conversations that have taken place, which you were advised that any further incidents would result in additional disciplinary action. Specifically, we had agreed you would take the weeks of August 5, 2006 - August 18, 2006- off for vacation and this would [be] followed by a 2 week clinical rotation[.] [Y]ou notified your supervisor that you would return on September 8, 2006, 3 weeks after completing your vacation. Despite all of the previous warning and effort to work with you on the problems that concerned your supervisor, it has continued. Due to your failure to adhere to University policies and procedures and ongoing problems, you have left us no alternative but to terminate you effective immediately. Any accrued vacation will be paid to you in your final paycheck. You are to return all University property issued to you upon employment to Desiree Uptgrow to expedite the processing of your final check. Please contact Benefit Administration, (305)284-6837, regarding continuation of benefits you may be entitled to. You should receive information regarding COBRA benefits from the Office of Benefits Administration in a separate letter. If you do not receive this letter, please contact the Office of Benefits Administration at (305)243-6835. Dr. Harrington's termination of Petitioner's employment was based solely on what Dr. Harrington perceived to be Petitioner's deficiencies as an employee. Neither Petitioner's race, nor his national origin, played any role in this or any other action Dr. Harrington took affecting Petitioner. On September 29, 2006, four days after his termination, Petitioner sent the following e-mail to Dr. Harrington: Hi Dr. Harrington: Dr. Symes urged me to do a 2 week clinical rotation/observership with Hem/Onc as the department of internal medicine no longer offers this. Would it be possible to do it with you, starting next week, Wednesday the 3rd of October. Thanks for your consideration. On the advice of UM legal counsel, Dr. Harrington did not respond to this e-mail. Instead of seeking other employment following his termination, Petitioner "focused" on completing the requirements to obtain his MAIA degree at UM. In accordance with UM policy, he continued to receive tuition remission benefits for the 2006 fall semester (the semester in which he was terminated), but after that semester, the benefits ceased. Petitioner believes that he has completed the requirements for his MAIA degree and is entitled to receive his diploma and final transcript, which UM has withheld. UM's records, however, reflect otherwise. They reveal that he has not yet received any credit for the Practicum in International Administration (INS 517) course that he needs to obtain his degree. This course involved Petitioner's writing and defending a thesis. In the spring of 2007, while Petitioner was working on his thesis, his car, which was parked on the UM campus, was ticketed by the City of Coral Gables police and subsequently towed by Downtown Towing Company for "safekeeping." After unsuccessfully attempting to retrieve his vehicle, he demanded that UM compensate him for his loss. UM (acting through its Assistant General Counsel, Judd Goldberg, Esquire) and Petitioner engaged in settlement negotiations. At least as early as August 8, 2007, UM insisted, as a condition of its agreement to any settlement, that Petitioner sign a full and general release reading, in pertinent part, as follows: In exchange for the promises which the University makes in this Agreement, Andela agrees to waive voluntarily and knowingly certain rights and claims against the University. . . . . The rights and claims which Andela waives and releases in this Agreement include, to every extent allowed by law, those arising under . . . the Civil Rights Acts of 1866, 1871, and 1964, . . . the Florida Civil Rights Act of 1992 . . . and any amendments to said laws. This is not a complete list, and Andela waives and releases all similar rights and claims under all other federal, state and local discrimination provisions and all other statutory and common law causes of action relating in any way to: (a) Andela's employment or separation from employment with the University which accrued or may have accrued up to the date of execution of this Agreement; and/or (b) Andela's status as a student at the University which accrued or may have accrued up to the date of execution of this Agreement. . . . On September 13, 2007, Petitioner filed his employment discrimination complaint with the FCHR (complaining, for the first time to anyone, that he had been a victim of race and national origin-based discrimination by UM, acting through Dr. Harrington). On September 22, 2007, Petitioner sent the following letter to Mr. Goldberg: I will not surrender my civil rights by signing the full and general release agreement, in order to receive a settlement for my above referenced car that was swindled. Compelling me to surrender my civil rights is an act of retaliation, based on your knowledge of an employment discrimination complaint filed against the University of Miami. As specified on page two-paragraph two- of the attached letter from the Florida Commission on Human Relations (FCHR), "the law prohibits retaliation against any person making a complaint, testifying or participating in an investigation, proceeding, or hearing on an alleged unlawful employment practice." Unless you correct this unlawful act by the end of business day - Monday 24th of October - I will notify the FCHR. Mr. Goldberg responded by sending Petitioner the following letter, dated September 24, 2007: This letter acknowledges receipt of your correspondence of September 22, 2007 addressed to myself and President Shalala. The University does not believe that the settlement and general release agreement is retaliatory. Indeed, the settlement and general release agreement was provided to you before you filed a Charge of Discrimination with the Florida Commission on Human Relations. At this juncture, the University will respond to the Charge of Discrimination filed with the Florida Commission on Human Relations when it is formally advised of the charge by the Commission.[7] If you have any further questions regarding this matter, please call my office directly as it is my office that handles all legal matters for the University. Thank you for your attention to this matter. This letter constitutes communication regarding settlement and cannot be used for any other purpose. At no time has Petitioner filed any employment discrimination complaint with the FCHR alleging that he was retaliated against for having engaged in activity protected by the Florida Civil Rights Act of 1992 (although he did make such allegations in the Petition for Relief he filed in the instant case).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding UM not guilty of the unlawful employment practices alleged by Petitioner and dismissing his employment discrimination complaint. DONE AND ENTERED this 24th day of July, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 24th day of July, 2008.
The Issue The issues are whether Respondent discriminated against Petitioner based on his race, and if so, what relief should be granted.
Findings Of Fact Respondent is a Florida corporation with its principal business location in Ormond Beach, Florida. Respondent operates a restaurant in Daytona Beach, Florida, known as IHOP 35. At all times material here, IHOP 35 had a racially-diverse workforce. Scott Studner is Respondent's President. Mr. Studner has direct supervisory authority over Respondent's management employees and ultimate supervisory authority over the non- management employees at IHOP 35. Mr. Studner is responsible for making all decisions relating to promotions and terminations of employees. Petitioner is a single African-American male with a minor son. Respondent hired him as a line cook in January 2007. At that time, Petitioner did not have any management experience. Petitioner worked as a cook on the day shift for approximately 15 months before Respondent terminated his employment. Petitioner began working 40-hour weeks for $9.00 per hour. He received at least five raises over a 12-month period, increasing his hourly wage to $10.00. Petitioner and all of the staff had to work some overtime during busy periods like "Race Week." Shortly after Petitioner began working, Mr. Studner asked Petitioner if he had any interest in a future management position. Mr. Studner routinely asks this question of all newly hired cooks. Mr. Studner told Petitioner about Chester Taylor, an African-American male, who began working for Mr. Studner as a dish washer and now owns and operates two IHOP restaurants of his own. Mr. Studner never made any representation or promise regarding Petitioner's potential advancement into a management position at IHOP 35. Shortly after he was hired, Petitioner began to demonstrate poor performance traits. He frequently arrived late to work. Occasionally Petitioner called to say that he could not work due to personal reasons. While working for Respondent, Petitioner reported several specific instances of racial hostility in the workplace to the general manager, Kathy, who tried to correct each problem as it arose. On one occasion, Petitioner discussed one incident with Mr. Studner, months after it occurred. In February 2007, Petitioner reported to Kathy that a white server named Sharon Blyler had made an inappropriate comment. Specifically, Petitioner accused Ms. Blyler of stating that she would get her orders out faster if she was black like a server named Angela. Kathy wrote Ms. Blyler up on a disciplinary form, advising her that comments about someone's race or color would not be tolerated. Mr. Studner was never informed about this incident. In April 2007, a white co-worker named Kevin called Petitioner a "monkey" several times. The name calling initially arose as a result of someone in the kitchen requesting a "monkey dish," which is a term commonly used in restaurants to describe a small round bowl for side items such as fruit. Petitioner reported Kevin's inappropriate comments to Kathy, who wrote Kevin up on a disciplinary form and suspended him for a week. Apparently, Kevin continued to work in one of Mr. Studner's restaurants but did not return to work at IHOP 35. Three or four months after Kevin was suspended, Mr. Studner asked Petitioner if Kevin could return to work at IHOP 35. When Petitioner objected, Mr. Studner said he would put Kevin on the night shift. During the conversation, Mr. Studner told Petitioner that he should have punched Kevin in the face for calling him a monkey. In the summer of 2007, there was an ordering mix-up involving a Caucasian server named Tiffany. When Tiffany became upset, Petitioner told her to calm down. Tiffany then called Petitioner a "fucking nigger." Kathy immediately had a talk with Tiffany, who then quit her job. Mr. Studner was never informed that Tiffany used a racial slur in reference to Petitioner. In August 2007, Petitioner received a formal verbal warning that was memorialized on a disciplinary form. The warning related to Petitioner's tardiness for work and for not maintaining his work area. When Kathy left her job as general manager of IHOP 35 in October 2007, there was no one person in charge of the kitchen. Petitioner and the other cooks continued to do their previously assigned jobs. On one occasion, Petitioner and another African- American male cook got into an argument. Someone at the restaurant called the police to intervene. Petitioner denies that he picked up a knife during the confrontation. At some point, Mr. Studner began working in the kitchen with Petitioner. Mr. Studner worked there for approximately five straight weeks. While Mr. Studner was working in the kitchen, he never saw any signs of racial hostility. However, Mr. Studner was aware that Petitioner could not get along with the rest of the staff. Mr. Studner realized that the staff resented Petitioner's habit of talking on his cell phone and leaving the line to take breaks during peak times. Respondent had an established and disseminated work policy that employees are not allowed to take or make cell phone or other telephone calls during work hours except in emergencies. Compliance with the policy is necessary because telephone calls to or from employees during paid working time disrupt the kitchen operation. Petitioner does not dispute that he made and received frequent calls on company time for personal reasons. Sometimes Mr. Studner would enter the restaurant and see Petitioner talking on the phone. Mr. Studner would reprimand Petitioner, reminding him that phone calls on company time were restricted to emergency calls only. Mr. Studner had video surveillance of the kitchen at IHOP 35 in his corporate office in Ormond Beach, Florida. Mr. Studner and his bookkeeper, Steven Skipper, observed Petitioner talking on his cell phone when Mr. Studner was not in the restaurant. Eventually, Mr. Studner decided to transfer Petitioner to another one of his restaurants to alleviate the tension caused by Petitioner at IHOP 35. After one day at the other restaurant, Mr. Studner reassigned Petitioner to IHOP 35 because he realized that Petitioner was unable to get along with the staff at the new location. Respondent never gave Petitioner any managerial responsibilities. Petitioner did not approach Mr. Studner or otherwise apply for the position of Kitchen Manager or any position other than cook. Respondent never denied Petitioner a promotion. In December or January 2007, Respondent hired Larry Delucia as the Kitchen Manger at IHOP 35. Mr. Delucia had not previously worked with Respondent, but he had extensive management experience at three different restaurants. When Mr. Delucia began working at IHOP 35, Petitioner and the other cooks were asked to help familiarize him with the menu and the set-up of the kitchen and coolers. They were not asked to train Mr. Delucia, whose job included scheduling and working on the computer, as well as supervising the kitchen. In February 2008, Petitioner told a white busboy named John to bring him some plates. John then told Petitioner that he was not John's boss and called Petitioner a "fucking nigger." The front-end manager, Pam Maxwell, immediately suspended John for a week but allowed him to return to work after two days. Mr. Studner was not aware of the incident involving John. Petitioner then asked Mr. Delucia and Ms. Maxwell for the telephone number of Bob Burns, the district manager for the International House of Pancakes, Inc. Mr. Studner was not aware of Petitioner's request for Mr. Burns' telephone number. Days later, Mr. Studner instructed Mr. Delucia to terminate Petitioner's employment. The greater weight of the evidence indicates that Mr. Studner decided to terminate Petitioner solely because of his continued cell phone usage on company time as observed in person and on surveillance tapes. At first, Petitioner did not realize he had been permanently terminated. During the hearing, Petitioner testified that he tried to return to work by talking to Mr. Delucia, who told him to call Mr. Studner. Mr. Studner did not return Petitioner's calls. For years, Mr. Studner has employed African-Americans to work as servers, cooks, hostesses, kitchen managers, front- end managers, and general managers. Mr. Studner owns five other restaurants, including two other IHOPs. Over the last two years, Mr. Studner has hired three African-American general managers.
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 Complaint and Petition for Relief. DONE AND ENTERED this 31st day of December, 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 <day> day of <month>, <year>. COPIES FURNISHED: Sebrina L. Wiggins, Esquire Landis, Graham French 145 East Rich Avenue, Suite C Deland, Florida 32721 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802 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
