The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, by discriminating against Petitioner based on an alleged handicap.
Findings Of Fact Respondent is an employer as that term is defined in Section 760.10, Florida Statutes. Respondent employed Respondent in January 1990. Respondent reassigned Petitioner to the Division of Recreation and Parks in 1993. At the time of his dismissal in October 2003, Petitioner was working as a park ranger at the St. Marks GeoPark in Wakulla County, Florida. Petitioner is a history aficionado. He enjoys researching Florida and Civil War history. He has authored a 200-page book entitled The Civil War in and Around St. Marks, Florida. He has written an article entitled "Forts in St. Marks during the War Between the States." Petitioner enjoys participating in history interpretations for the public. Several times in the past decade, Respondent nominated him for an award for his activities in history interpretations. Petitioner has constructed colonial-era equipment and musical instruments. Although they are his personal property, Petitioner has used them in displays for the public at state parks. Petitioner researched the historical accuracy of his projects both at home and at work. Petitioner had surgery in 2000 for a cervical herniated disc. After the surgery, Respondent made accommodations for Petitioner in the form of lighter duty assignments during his recovery period in keeping with his doctor's request. In a letter dated August 28, 2000, Petitioner's doctor set forth the specific type of work that Petitioner could and could not perform. The doctor released Petitioner to perform desk work, telephone duties, and visitor services but no maintenance duties. At all times relevant here, Thomas Nobles was Petitioner's immediate supervisor. Mr. Nobles and Petitioner have known each other since high school. However, they did not have a good relationship at work. In 2001, Petitioner filed gender discrimination charges against Mr. Nobles. Respondent conducted an investigation and exonerated Mr. Nobles. Mr. Nobles wrote several counseling memoranda and one reprimand, which criticized Petitioner's work performance. Among other things, Mr. Nobles warned Petitioner not to visit a music store in Tallahassee during work hours. In a memorandum dated July 19, 2002, Mr. Nobles discussed his concern over Petitioner's work habits that allegedly caused damage to a state-owned vehicle and other property and Petitioner's inability to complete paperwork. Petitioner responded to each of Mr. Nobles' criticisms in a memorandum dated July 28, 2002. On September 20, 2002, Mr. Nobles wrote a memorandum to document an earlier conversation with Petitioner regarding Mr. Nobles' concern that Petitioner was not keeping the park neat. In the memorandum, Mr. Nobles instructed Petitioner not to bring "personal projects" to work, specifically referring to a mandolin that Petitioner had been sanding in the park office. In a memorandum dated October 22, 2002, Mr. Nobles criticized Petitioner for reading a book about musical instruments. Mr. Nobles warned Petitioner not to let personal projects take priority over the park's appearance and cleanliness. On February 25, 2003, Petitioner called his office to provide his employer with the date of his second neck surgery, which was scheduled for March 5, 2003. During the telephone call, Petitioner asserted that he required further surgery due to his work-related injury. However, Petitioner never filed a workers' compensation claim; he believed that he was not eligible for workers' compensation due to a preexisting condition. After Petitioner's March 2003 surgery, Respondent returned to work. In a letter dated April 10, 2003, Petitioner's doctor released him to work running a museum. On or about May 7, 2003, Petitioner's doctor released him to light- duty work assignments, including no more than one hour of lawn maintenance at a time. In a letter dated July 29, 2003, Mr. Nobles' doctor once again restricted Petitioner's work assignments. Petitioner was not supposed to use heavy machinery or operate mowers, edgers, or similar equipment for prolonged periods of time. The doctor recommended that Petitioner avoid repetitive gripping and lifting. There is no evidence that Respondent failed to provide Petitioner with these accommodations. In the meantime, on July 23, 2003, Mr. Nobles requested Respondent's Inspector General to investigate a posting on the eBay Internet site involving a replica of a 1800s guitar, advertised as being made of wood from the Gregory House, a part of Torreya State Park in Gadsden County, Florida. The Inspector General subsequently commenced an investigation. Petitioner posted the advertisement for the guitar under his eBay site name. Petitioner makes replica mandolins and guitars and occasionally sells them on eBay. Petitioner bragged to at least one co-worker in 2003 that he had made a lot of money selling musical instruments on eBay. One of Petitioner's friends made the "Gregory House" guitar out of discarded roof shingles. Petitioner merely posted the advertisement on his internet site because his friend did not know how to use a computer. During the Inspector General's investigation, Petitioner admitted that he had accessed eBay at work but denied he had used it for bidding. An inspection of the hard drive of the computer at Petitioner's office revealed that someone using Petitioner's eBay password had accessed eBay four times from April-July 2003. Around the general time and date of one of those occasions, someone placed an eBay bid on the "Gregory House" guitar. Additionally, the computer at Petitioner's office had been used to access numerous musical instrument and/or woodworking Internet sites other times from April-July 2003. Petitioner was at work on most, but not all, of the days. A park volunteer admitted that she sometimes used the office computer to access eBay. Respondent's policy prohibits an employee from accessing the Internet for personal use if that use adversely affects the employee's ability to perform his job. Personal use of the Internet should be "limited to the greatest extent possible." Petitioner was aware of Respondent's Internet policy. Nevertheless, he used the Internet for personal reasons at work to access eBay and sites related to his woodworking business after he had been counseled not to let personal projects interfere with his park duties. This caused him to not be available to do park business and, therefore, adversely affected his ability to do his job. Petitioner violated Respondent's Internet use policy. Respondent terminated Petitioner's employment on September 25, 2003, for alleged rule violations, conduct unbecoming a public employee, and perjury. Petitioner appealed to the Florida Public Employees Relations Commission (PERC), contending that Respondent lacked cause to discipline him. PERC appointed a Hearing Officer to conduct a hearing and issue a Recommended Order. The PERC Hearing Officer conducted a public hearing on October 28, 2003. The Hearing Officer issued the Recommended Order on November 10, 2003. In the instant case, the parties stipulated that they would not re-litigate issues previously litigated at the PERC hearing. The PERC Hearing Officer found as follows: (a) Respondent had cause to discipline Petitioner for violating the computer use policy; and (b) Respondent had discretion to discipline Petitioner by terminating his employment. On November 24, 2003, PERC entered a Final Order adopting the Hearing Officer's Recommended Order. The greater weight of the evidence indicates that Respondent did not allow employees, other than Petitioner, to read books unrelated to work during office hours. In fact, Respondent did not terminate Petitioner for any of the following reasons: (a) because he read history books at work; (b) because he might file a workers' compensation claim for a work-related injury; (c) because he filed a gender discrimination against Mr. Nobles; or (d) because Respondent intended to eliminate his position. Rather, Respondent dismissed Petitioner for using the office computer for personal reasons. Respondent has fired other employees for the same reason. At the time of his dismissal, Petitioner believed that he was physically incapable of performing the duties of his position. However, there is no evidence that Respondent failed to provide Petitioner with appropriate accommodations as requested by Petitioner's doctors.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 28th day of March, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2005. COPIES FURNISHED: Allen Gerrell, Jr. 10750 Kilcrease way Tallahassee, Florida 32305 Marshall G. Wiseheart, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32399-3000 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32399-3000
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on February 24, 2014.
Findings Of Fact Respondent operates one of the largest continuing care retirement communities in the country with about 2,400 residents and just over 1,000 employees on a single site in Fort Myers, Florida. Petitioner describes herself as "Indo-Guyanese" and testified that she is a member of the Catholic denomination. Petitioner is an articulate woman who projects an air of dignity and refinement. These qualities, when combined, can easily be interpreted by some individuals as producing an arrogant personality type. On June 6, 2013, Petitioner began employment with Respondent and was assigned to work at The Arbor, which is one of Respondent's assisted living facilities. Petitioner was employed as a hospitality care assistant (HCA) and worked on a PRN, or "as needed/on-call," basis. Petitioner's final date of employment with Respondent was May 8, 2014. Petitioner's employment relationship with Respondent ended after Petitioner refused to return to work after being cleared to do so by her authorized workers' compensation treating physician. During her employment by Respondent, Petitioner was supervised by Stacey Daniels, the registered nurse manager assigned to The Arbor. Ms. Daniels has held this position for 15 years. In her capacity as registered nurse manager, Ms. Daniels supervised seven licensed practical nurses, approximately 35 HCAs and resident care assistants, and two front-desk staff. In addition to Petitioner, Ms. Daniels also supervised Marjorie Cartwright, who works at The Arbors as a full-time HCA. Alleged Harassment by Marjorie Cartwright Petitioner, in her Complaint, alleges that she "endured on-going harassment by Marjorie Cartwright." According to Petitioner, Ms. Cartwright would tell Petitioner things like "we don't allow terrorists to have keys and [a] radio," would ask Petitioner if she is "Muslim," and referred to Petitioner as "that bitch nigger" when speaking with other staff. The Complaint also alleges that Ms. Cartwright told co-workers that she "hate[s Petitioner] to the bone." Olna Exantus and Nadine Bernard were previously employed by Respondent, and each woman worked with both Petitioner and Ms. Cartwright. Ms. Exantus testified that she witnessed an incident between Ms. Cartwright and Petitioner, during which Ms. Cartwright called Petitioner "stupid" and an "idiot" because Petitioner did not deliver to Ms. Cartwright the number of lemons that were requested. Ms. Exantus also recalled an incident where she was working with Ms. Cartwright and Petitioner when, out of the presence of Petitioner, Ms. Cartwright said that she hates Petitioner to the bone or words of similar import. Ms. Bernard testified that Ms. Cartwright referred to Petitioner as "stupid" on one occasion, and on another occasion, she called Petitioner a "bitch." Ms. Bernard also testified that she heard Ms. Cartwright state that she hates Petitioner to the bone or words of similar import. Both Mses. Exantus and Bernard testified that they heard Ms. Cartwright say that the reason why she hates Petitioner to the bone is because Petitioner thinks that "she is a rich lady" and is, therefore, better than everyone else. Neither Ms. Exantus nor Ms. Bernard testified to having heard Ms. Cartwright refer to Petitioner as either a "nigger" or a "bitch." Ms. Cartwright, who is not Indo-Guyanese, has been employed by Respondent for approximately six years as a full-time HCA. Although Ms. Cartwright testified for only a few minutes during the final hearing, she projects a personality type that can best be described as "feisty." Ms. Cartwright and Petitioner worked together approximately ten times during Petitioner's period of employment with Respondent. Ms. Cartwright testified that she never referred to Petitioner using either the word "nigger" or "Muslim." Ms. Cartwright did not deny that she referred to Petitioner as "stupid" or called her an "idiot." Ms. Cartwright also did not deny that she stated that she hates Petitioner to the bone. Petitioner was informed by Mses. Exantus and Bernard that she was disliked by Ms. Cartwright, and they suggested to Petitioner that she should take appropriate steps to protect her food items from possible contamination by Ms. Cartwright. Although Petitioner was warned to take such steps, there is no evidence that Ms. Cartwright engaged in any behaviors designed to cause harm to Petitioner. The evidence is clear, however, that Ms. Cartwright disliked Petitioner during Petitioner's period of employment by Respondent. Petitioner contemporaneously prepared personal notes as certain events happened during her employment by Respondent, including issues she claimed to have had with Ms. Cartwright. None of Petitioner's contemporaneous notes indicate that Ms. Cartwright, or anyone else employed by Respondent, referred to her as either a "nigger" or a "Muslim." The evidence does not support Petitioner's claim that Ms. Cartwright referred to Petitioner as a "bitch nigger" or as a "Muslim" as alleged in the Complaint. Stacey Daniel's Alleged Failure to Act on Complaints Petitioner alleges in her Complaint that she attempted to report Ms. Cartwright's behavior to their joint supervisor Ms. Daniels, but was told by Ms. Daniels that she "didn't have time to listen" to Petitioner's complaints. On December 13, 2013, Ms. Daniels met with Petitioner to discuss Petitioner's possible workers' compensation claim. During the meeting, Petitioner mentioned to Ms. Daniels that she was upset with her because approximately three months earlier, on or about September 4, 2013, Ms. Daniels refused to immediately meet with Petitioner to discuss the problems that Petitioner was having with Ms. Cartwright. Ms. Daniels had no recollection of Petitioner approaching her with concerns about Ms. Cartwright. Petitioner acknowledged that she only approached Ms. Daniels once to discuss her concerns about Ms. Cartwright. During the meeting on December 13, 2013, Ms. Daniels reminded Petitioner that she (Ms. Daniels) is very busy during the workday, that it may be necessary to bring matters to her attention more than once, and that she is not always able to stop what she is doing and immediately meet with employees to address work-related disputes. She apologized to Petitioner for the oversight and immediately offered to mediate any dispute between Petitioner and Ms. Cartwright. Petitioner refused Ms. Daniels' offer because Ms. Cartwright, according to Petitioner, would simply lie about her interaction with Petitioner. Petitioner never complained to Ms. Daniels about Ms. Cartwright referring to Petitioner as either a "nigger" or a "Muslim." Petitioner Complains to Karen Anderson Karen Anderson is the vice-president of Human Resources, Business Support, and Corporate Compliance and has been employed by Respondent for approximately 18 years. On November 21, 2013, Petitioner met with Ms. Anderson to discuss matters related to a workers' compensation claim. During this meeting with Ms. Anderson, Petitioner complained, for the first time, about Ms. Cartwright and the fact that Ms. Cartwright had called Petitioner "stupid" and had also referred to Petitioner as a "bitch." At no time during this meeting did Petitioner allege that she had been referred to by Ms. Cartwright as a "nigger" or a "Muslim." Additionally, at no time during her meeting with Ms. Anderson did Petitioner complain about Ms. Daniels, Petitioner's immediate supervisor, refusing to meet with her in order to discuss her concerns about Ms. Cartwright. Denied Promotion on Three Occasions In her Complaint, Petitioner alleges that she "was denied promotions to Registered Medical Assistant 3 different times" by Ms. Daniels. This allegation is not supported by the evidence. Ms. Daniels testified that Petitioner was never denied, nor did she ever seek, a transfer to the position of registered medical assistant. Ms. Daniels also testified that the only conversation that she and Petitioner had about the position of registered medical assistant occurred before Petitioner was hired by Respondent. Petitioner offered no credible evidence to refute Ms. Daniels' testimony. Retaliatory Reduction in Hours Worked In her Complaint, Petitioner alleges that "[o]ut of retaliation for complaining to Ms. Stacey about Ms. Marjorie, they cut my hours back to 2 days a week without my request." As previously noted, Petitioner worked for Respondent on an "as needed/on-call" basis. Typically, Respondent's on-call staff members are presented with a work schedule that has already been filled in with work times for the full-time staff members. Any work times not filled by full-time staff are then offered to on-call staff. In addition, on-call staff may be called at the last minute, if there is a last minute schedule change by a full-time staff member. On-call HCAs do not have set work schedules and are offered work hours on a first-come, first-served basis. After Petitioner was cleared to return to work following her alleged work-related injuries, Ms. Daniels, along with Amy Ostrander, who is a licensed practical nurse supervisor, tried to give Petitioner notice of the availability of work shifts that were open on upcoming schedules at The Arbor. Ms. Daniels encouraged Petitioner to provide her with an e-mail address in order to provide Petitioner with a more timely notice of available work shifts, but Petitioner refused to do so. E-mail communication is the most typical form of communication used by the rest of the on-call staff and serves as the most efficient and quickest way for Ms. Daniels to communicate with HCA staff. Because Petitioner would not provide an e-mail address, she was at a disadvantage, because other on-call staff members were able to learn of the availability of work shifts and respond faster to the announced openings. Because Petitioner would not provide an e-mail address and indicated that she preferred to receive the notice of work shift availability by mail, Ms. Daniels complied and sent the schedule of availability to Petitioner by U.S. mail. The evidence establishes that any reduction in the number of hours worked by Petitioner resulted exclusively from her own actions and not as a result of any retaliatory animus by Ms. Daniels or Respondent.
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 Respondent, Shell Point Retirement Community, did not commit an unlawful employment practice as alleged by Petitioner, Ghanshaminie Lee; and denying Petitioner's Employment Complaint of Discrimination. DONE AND ENTERED this 23rd day of March, 2015, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 23rd day of March, 2015.
