The Issue In her charge of discrimination Ms. Alexander alleges that her employer created a hostile work environment and unfair conditions of employment when it singled her out as a thief of a stolen purse, denied her overtime, disciplined her for the size of her earrings, and made insulting statements about African Americans. The issues in this proceeding are whether that discrimination occurred, and if so, what relief is appropriate.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the FCHR enter its final order dismissing the complaint by Felicia A. Alexander against Dynair. DONE AND ENTERED this 2nd day of August, 2000, in Tallahassee, Leon County, Florida. MARY CLARK 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 August, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Felicia A. Alexander Post Office Box 549 Sanford, Florida 32772-0549 Gabriel G. Marrero, Administrator Dynair Services, Inc. Two Red Cleveland Boulevard, Suite 205 Orlando-Sanford International Airport Sanford, Florida 32773 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether the petition for administrative determination of the invalidity of a proposed rule was filed within the time Section 120.54(4)(b), Florida Statutes (1987), prescribes for instituting challenges to proposed administrative rules?
Conclusions The time limit Section 120.54(4)(b), Florida Statutes (1987) sets for filing petitions which seek determinations of invalidity under Section 120.54, Florida Statutes (1987), before proposed rules ever take effect, is jurisdictional Department of Health and Rehabilitative Services vs. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979); Organized Fishermen of Florida vs. Marine Fisheries Com'n, No. 88-3821R (DOAH; Sept. 14, 1988); City of Gainesville vs. Florida Public Service Com'n., 3 FALR 2448-A (DOAH 1981). Contra, Florida Medical Center vs. Department of Health and Rehabilitative Services, No. 88- 3970R and consolidated cases, Nos. 88-4018R and 88-4019R (DOAH; Nov. 1, 1988). If a petition challenging a proposed rule is not filed within 21 days of the notice initiating rulemaking which Section 120.54(13)(b), Florida Statutes (1987) requires agencies to publish, those seeking invalidation are relegated to rule challenge proceedings under Section 120.56, Florida Statutes (1987), unless they are parties to the rulemaking, and take timely stems to secure judicial review of the agency action adopting the rule. See City of Key West vs. Askew, 324 So.2d 655 (Fla. 1st DCA). Substantially affected parties who fail to file a Section 120.54 challenge in time are not without an administrative forum in which to litigate both whether the substance of a rule is authorized by statute and whether the manner of its adoption was lawful. Since the petition alleges no constitutional infirmity in the rule, nothing petitioners have pleaded here would be foreclosed from consideration in a Section 120.56 proceeding. See Department of Environmental Regulation vs. Leon County, 344 So.2d 297 (Fla. 1st DCA 1977). On appeal from an order invalidating an existing rule which had been challenged pursuant to Section 120.56, Florida Statutes (1987), the court in Department of Administration vs. Herring, 530 So.2d 962 (Fla. 1st DCA 1988), while rejecting the hearing officer's conclusions, considered the propriety of the procedures employed in rulemaking. Challenges to existing rules on grounds of inadequacy of economic impact statements are other instances in which rulemaking procedures have been tested in Section 120.56 proceedings. See Department of Health and Rehabilitative Services vs. Delray Hospital Corp., 373 So.2d 75 (Fla. 1st DCA 1979). Even where an agency makes no claim that it has followed any of the procedures required for rulemaking, challengers must ordinarily file under Section 120.56, Florida Statutes (1987). See State, Department of Administration vs. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977). The petition in the present case may be read as alleging that DER published notice of proposing a mitigation rule in June of 1987, although the Florida administrative Weekly reflects publication on May 1, 1987. But it is clear from the petition that more than a year elapsed, after publication, before the present petition (or the earlier petition dismissed July 21, 1988) was filed. This makes the petition untimely under Section 120.54, Florida Statutes (1987) It is, accordingly, ORDERED: The petition for administrative determination of the invalidity of a proposed rule is dismissed, without prejudice to the filing of a petition pursuant to Section 120.56, Florida Statutes (1987). DONE and ENTERED this 15th November, 1988, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1988. COPIES FURNISHED: Peter B. Belmont, Esquire 511 31st Avenue North St. Petersburg, FL 33704 David A. Crowley, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399 Janet E. Bowman, Esquire P.O. Box 1876 Tallahassee, FL 32302 James S. Alves, Esquire Thomas T. M. DeRose, Esquire P.O. Box 6526 420 First Florida Bank Building Tallahassee, FL 32314 Lawrence E. Sellers, Jr., Esquire P.O. Drawer 810 Tallahassee, FL 32302 Cindy L. Bartin, Esquire P. O. Box 271 Tallahassee, FL 32302
The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race, age, sex, or as retaliation in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, a 56-year-old African- American female, as a Food Support Worker at Florida State Hospital in Chattahoochee, Florida, at all times relevant to these proceedings. Petitioner was promoted to the position of Food Service Worker on May 10, 2002, with probationary status until May 10, 2003. On February 12, 2003, Petitioner was terminated from her employment for failure to satisfactorily complete her probationary period in the career service. In the course of her employment with Florida State Hospital, Petitioner was aware of the strict safety guidelines implemented by Respondent to protect employees from injury. Petitioner also knew that violation of the safety rules could result in dismissal of an erring employee. Violations of these policies had resulted in dismissal of both non-minority and minority employees in the past. On February 9, 2003, due to an unsafe act and violation of Respondent’s safety rules, Petitioner proceeded to cut the tip of her left thumb in the process of slicing cabbage. Petitioner was not using a cutting glove, a mandatory requirement of the safety rules. As a result of this rule violation, Respondent terminated Petitioner’s employment on February 12, 2003. At final hearing, Petitioner admitted the cutting injury to her finger, but contended that termination of employment had not been effected for other younger white employees for similar offenses in the past. These allegations of Petitioner were non-specific and uncorroborated; they are not credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 3rd day of November, 2004, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 2004. COPIES FURNISHED: Annette Carroll 10202 Northwest Third Street Bristol, Florida 32321 Kathi Lee Kilpatrick, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000 Jacqueline H. Smith, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was wrongfully terminated from his position as a janitor with Respondent because of his handicap, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner, Lee, was hired by Respondent in August 1994 as a custodial worker at the Tallahassee Mall in Tallahassee, Florida. As a janitor Petitioner's duties included bending, stooping, and lifting. He was assigned to zone 3 in the Mall. Up until 1996, when Petitioner was injured, Petitioner received good evaluations on his job performance. Indeed Petitioner was very proud of the quality of his work and took special care to do his job well. Sometime prior to May 20, 1996, Petitioner, while at work and in the scope of his employment, stepped on a set of stairs which were not properly attached to a stage in the Tallahassee Mall. The steps slipped causing Petitioner's feet to come out from under him. Petitioner fell flat on his back. As a consequence Petitioner suffered a permanent back injury for which he received workers' compensation. The injury impairs his ability to work and therefore is a handicap. Around May 20, 1996, Petitioner was released by his doctor and was given orders for light duty with no bending, stooping, or heavy lifting. Petitioner gave these orders to his supervisor, Mr. Navin, when he returned to work on May 20, 1996. Respondent had light duty work available which Petitioner was qualified to perform. However, Respondent did not assign Petitioner to light duty work, but changed his work area from zone 3 to zone 1. Zone 1 is located at the front entrance to the mall and requires more work to maintain. Petitioner attempted to perform his duties but could only work for 3 1/2 hours before being overcome by pain from his injury. Petitioner could not work the next four working days because of the aggravation of his injury. On May 28, 1996, after returning to work, Petitioner was again given full duty work. Petitioner attempted to perform his custodial duties for about 2 weeks. However, the pain from his injury was so severe he again requested light duty work. Petitioner's supervisor asked Petitioner to bring him another notice from his doctor. Petitioner's doctor faxed the supervisor a second notice and Petitioner was placed on light duty work. Once Petitioner was placed on light duty work, the mall manager, Mr. Renninger, followed Petitioner around the mall watching him all the time while he worked. On July 8, 1996, prior to the mall opening for business, Petitioner was helping one of the mall store owners with a problem. Such aid was part of Petitioner's job. The mall manager walked up to Petitioner and began to yell at him in a very rude and disrespectful manner. The manager would not listen to Petitioner's explanation of the event. The manager gave Petitioner a written disciplinary notice for his aid to the mall store owner. The manager continued to follow Petitioner around the mall while he worked. Sometime around August 15, 1996, the mall manager advised the mall's employees that they should take their respective vacations prior to October. Petitioner thought it would be a good time for him to take the 4-day vacation time he had accumulated during his employment with the mall. He could use the time to allow his back to heal more. On August 15, 1996, Petitioner requested vacation leave and vacation pay for the period beginning September 3, 1996 and ending September 9, 1996. Initially, the request was denied. Petitioner's supervisor felt he had missed too much work and been late too often. However, Petitioner had only been absent or late in relation to his back injury. Petitioner explained that fact to his supervisor. His supervisor agreed and approved Petitioner's vacation. Petitioner returned to work on August 10, 1996. An argument with the administrative assistant occurred when she refused to recognize that Petitioner was entitled to be paid for his vacation time. She was not going to turn in any time for him so that Petitioner could get paid while on vacation. Getting a paycheck was a serious matter to Petitioner, and Petitioner, understandably, became gruff with the administrative assistant. Petitioner only raised his voice at the administrative assistant. He was not abusive and did not curse at her. In fact, the administrative assistant yelled at Petitioner when he raised the subject of his pay "Now, before you start bitching." Petitioner called the headquarters of Respondent and confirmed he had vacation time and pay accrued. After this incident Petitioner was fired ostensibly for mistreating the administrative assistant. The administrative assistant, who was incorrect, was not terminated. The reason appears to be a pretext. Petitioner's pay was $5.35 per hour and he worked a 40-hour-work-week. After his termination, Petitioner actively sought employment but could not find any until September 1, 1997. At that time he began work for Tallahassee Community College as a custodial worker with light duties at a higher rate of pay. Petitioner's search for work was reasonable.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding Respondent guilty of an unlawful employment practice against Petitioner and awarding Petitioner backpay in the amount of $11,770.00. DONE AND ENTERED this 27th day of October, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2000.
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 issue is whether Respondent engaged in an unlawful employment practice by subjecting Petitioner to gender discrimination and retaliation in violation of the Florida Civil Rights Act.
Findings Of Fact Southgate is a student housing and dining facility located in Tallahassee, Florida, near the campuses of Florida State University, Florida A&M University, and Tallahassee Community College. On September 16, 2004, Southgate hired Petitioner Devon Rozier as a dishwasher in the cafeteria dish room. The cafeteria is open seven days a week and currently employs approximately 34 employees, some part-time and some full-time. Petitioner had just turned 16 years old when Ken Mills hired him based upon a long-standing relationship with Petitioner's father, who had worked at Southgate for many years and was an exemplary employee. Petitioner worked as a part-time employee on the night shift, 3:30 p.m. until 8:00 p.m., for a total of 20-25 hours per week. Petitioner later received a promotion out of the dish room to the grill, and also worked other positions such as attendant and greeter. Petitioner also worked in various positions to assist as needed, as did other employees in the cafeteria. At the beginning of his employment, Petitioner exhibited good performance. As time progressed, Petitioner's performance began to decline, and he openly disrespected management. Various disciplinary techniques were employed by his supervisors in efforts to improve his performance, but the improvements always proved to be short-lived. On April 30, 2009, Petitioner and his supervisor, Rasheik Campbell, had an altercation, and Petitioner left the facility. Mr. Campbell warned Petitioner before he left the facility that such action would constitute job abandonment. Despite Mr. Campbell's warning, Petitioner left the facility. Mr. Campbell took the position that Petitioner abandoned his employment with Southgate. Petitioner was no longer placed on the schedule. On May 4, 2009, Southgate sent Petitioner a letter confirming his resignation. As months passed, Petitioner made attempts to regain his position with Southgate by calling his supervisors Mr. Campbell and Mr. Jason McClung. When his attempts were met with resistance by his supervisors, Petitioner bypassed them and went directly to Ken Mills, Southgate's General Manager and Petitioner's former supervisor. Petitioner presented his case to Mr. Mills in July and August 2009, regarding his desire to return to work. Mr. Mills had previously intervened on Petitioner's behalf, out of respect for Petitioner's father, to help him keep his job when difficulties with management had arisen. This time, Mr. Mills instructed Petitioner that Mr. McClung and Mr. Campbell were his direct supervisors and that they had ultimate responsibility regarding his desired return to work at Southgate. In August 2009, at the request of Mr. Mills, once again doing a favor for Petitioner based upon the long-standing work history of Petitioner's father at Southgate, Mr. Mills, Mr. McClung, and Mr. Campbell met with Petitioner and his mother, Jennifer Rozier. At the meeting, they discussed Petitioner's request to return to work at Southgate. During the meeting, Mr. McClung and Mr. Campbell did not feel that Petitioner exhibited any improvement in his behavior and respect for authority. As a result, Mr. McClung and Mr. Campbell chose not to re-hire Petitioner. Petitioner claims the following conduct he witnessed while working at Southgate was discriminatory: a) females were allowed to sit down at tables and eat while on the clock; b) females were allowed to use the computer while on the clock; and c) Petitioner was required to perform the females' work when they failed to show up or wanted to leave early. Petitioner further claims that his firing was retaliatory based upon one complaint he made to Mr. Campbell in February 2009 about having to perform the tasks of others who failed to come to work. Other employees, including Jodece Yant, Petitioner's girlfriend, and Darnell Rozier, Petitioner's own brother, testified that both males and females could be seen eating or using the computer while on the clock, and all were told to perform others' tasks when they failed to come to work or left early. Petitioner conceded that on occasion he engaged in the same behaviors he alleges to be discriminatory. Petitioner obtained a full-time job at Hobbit American Grill on January 21, 2010, and, as of the date of the hearing, continued to work there. His rate of pay at Hobbit American Grill is currently $7.25 per hour, and he testified he is better off there than at his former employer, Southgate. Petitioner is currently earning the same hourly wage ($7.25) as he was earning when employed at Southgate. Southgate had policies and procedures in force that prohibited, among other things, discrimination on the basis of gender or any other protected characteristics. Southgate's policies and procedures also prohibited retaliation. Petitioner received a copy of the employee handbook, which contained Southgate's anti-discrimination policies and was aware that Southgate had such policies in place.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of November, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2010. COPIES FURNISHED: Desiree C. Hill-Henderson, Esquire Littler Mendelson, P.C. 111 North Magnolia Avenue, Suite 1250 Orlando, Florida 32801 Micah Knight, Esquire 123 North Seventh Avenue Durant, Oklahoma 74701 Devon A. Rozier 7361 Fieldcrest Drive Tallahassee, Florida 32305 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent subjected Petitioner to an unlawful employment practice based on Petitioner’s race, in violation of section 760.10, Florida Statutes (2016)1/; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Aaron Pittman, a black male, was at all times relevant hereto employed at Sunland Center (Sunland) by the Agency for Persons with Disabilities (APD). Sunland Center is an assisted-living facility operated by APD in Marianna, Florida, serving clients with intellectual and developmental disabilities. Petitioner was first employed at Sunland on August 7, 1987, as a Maintenance Mechanic. Petitioner’s full-time job was to maintain wheelchairs for use by residents. According to Petitioner, the work was very steady, with continuous repairs to footrests, wheels, seats, and many other parts of well-used wheelchairs throughout the facility. Petitioner remained in that position for 17 years. In 2007, Petitioner was promoted from Maintenance Mechanic to Electronics Tech II. The duties of the Electronics Tech II include installation of televisions, cleaning fire detection and other safety equipment, conducting fire drills, and repairing all manner of electronics. After Petitioner was promoted to Electronics Tech II, an employee with the last name of Moss was assigned to wheelchair maintenance. Apparently Mr. Moss was not capable of performing the duties of wheelchair maintenance and requested Petitioner’s assistance with those duties. Mr. Moss left Sunland sometime in 2010. When Mr. Moss left, John Kramer, Maintenance Supervisor, asked Petitioner to help out “temporarily” with the wheelchair maintenance. Petitioner testified that he agreed to resume wheelchair maintenance “temporarily” because Mr. Kramer was “a nice man and [Petitioner] wanted to help him out.” Petitioner first worked overtime on a night shift to complete the wheelchair maintenance work. However, Petitioner did not request prior approval for the overtime and was instructed to take time off to compensate for the overtime. Clarence Holden, Sr., a black male, was employed at Sunland for 40 years. Mr. Holden began in an entry-level position, but was promoted to a supervisory position. Mr. Holden supervised Petitioner during Mr. Holden’s last five years of employment in the position of Telecommunication Specialist. Mr. Holden also supervised Keith Hatcher, the only employee other than Petitioner in the Maintenance Department. Mr. Hatcher retired sometime before Mr. Holden. Mr. Holden retired in 2014, leaving Petitioner as the only employee in the Maintenance Department. Petitioner testified that he “took over [Mr. Holden’s] duties” when Mr. Holden retired, but was never compensated for essentially working two jobs. Petitioner never supervised any employees at Sunland. Petitioner did not have any authority to hire or fire other employees or perform evaluations of other employees. After Mr. Holden’s retirement, Petitioner asked Allen Ward (whose position in the chain of command was not identified) about applying for the Telecommunication Specialist position. Petitioner was told management was “holding” that position. Petitioner testified that Mr. Ward advertised and filled the position of Telecommunication Specialist “while [Petitioner] was out.” Petitioner admitted that the position of Safety Specialist3/ was eventually advertised, and that Petitioner did not apply for the position. Amanda Johnson, former Employee Relations Specialist at Sunland, met with Petitioner sometime in 2012 regarding his complaint about working two positions without additional compensation. In June 2013, Petitioner received a ten-percent salary increase “for additional duties and responsibilities for maintaining resident wheelchairs and electric/mechanical hospital beds.” Petitioner seeks back pay for performing duties of two positions beginning in 2010. Petitioner separately complains that he was subject to harassment based on his race and Respondent failed to do anything about it. Petitioner testified that there used to be an employee who used the “N word,” and under a previous administration the supervisor would “take care of it,” but that under the current administration “nothing happens.” Petitioner indicated that other employees used to “make postings about lynching.” Petitioner did not identify any specifics of those incidents--when they occurred, who made the posting, or whether there were consequences to those employees. Petitioner complained that a fellow employee once wrote “Trump” on a dirty work truck. However, when the incident was reported, the manager washed the truck. Petitioner complained that white employees sit around and talk with each other for extended periods without any consequence, but that if he sits to talk with a fellow employee for 15 minutes “people complain.” Petitioner has never been disciplined by Respondent. Respondent is managed by a black Superintendent and black Deputy Superintendent. Sunland employs a number of black mid-level managers and supervisors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief from an Unlawful Employment Practice filed by Petitioner against Respondent in Case No. 201700575. DONE AND ENTERED this 30th day of March, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 30th day of March, 2018.
The Issue The issues are as follows: (a) whether this case should be dismissed due to Petitioner's failure to file a timely Petition for Relief as required by Rule 60Y-5.008, Florida Administrative Code; and if not, (b) whether Respondent discriminated against Petitioner based on her handicap by creating a hostile work environment, failing to accommodate her disability, and causing Petitioner's constructive discharge contrary to Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is a white female. She applied for a cashier's job at Respondent's store in Defuniak Springs, Florida, on March 30, 2000. Petitioner's job application indicated that she was available to work on any shift and any day of the week, including days, evenings, nights, Saturdays, and Sundays. As a general rule, Respondent hires people that are available to work on an as needed basis. However, there is no persuasive evidence that Respondent always refuses to hire people who are not available to work at all times. On April 13, 2000, Petitioner began working for Respondent as a part-time cashier. She only worked a few days before she suffered two heart attacks on the same day, neither of which occurred while she was at work. Her medical records indicate that she began having heart problems in 1996 and that a stent was implanted in an artery of her heart on April 21, 2000. On April 23, 2000, Petitioner requested a medical leave of absence, expecting to return to work on or about June 1, 2000. Respondent granted this request. On May 1, 2000, Petitioner's doctor certified that Petitioner had a diagnosis of "S/P Inferior Wall Myocardial Infarction." The doctor stated that Petitioner could return to work and resume normal activity pending a follow-up evaluation on May 30, 2000. On June 13, 2000, Petitioner's doctor certified that Petitioner could anticipate returning to work on July 17, 2000. Petitioner was scheduled to repeat a heart catheterization on July 14, 2000. Medical records indicate that Petitioner underwent a stent-implant in an artery of her heart at that time. On July 21, 2000, Petitioner tendered her resignation because she did not expect to return to work. Respondent accepted Petitioner's resignation, indicating on the exit interview form that she was eligible for rehire. The exit interview form also indicates that Petitioner had qualified for supplemental security income (SSI) benefits due to her heart condition. Petitioner recovered from the surgery and applied for re-employment with Respondent on September 9, 2000. Petitioner sought a full-time position, indicating on her second employment application that she was available to work at any time. She specifically requested as many hours as Respondent could give her. Petitioner confirmed her availability to work with no job restrictions during her job interview. On October 26, 2000, Petitioner completed a Form 8850, Pre-screening Notice and Certification Request for the Work Opportunity and Welfare-to-Work Credits. On this form Petitioner certified that she had advised Respondent of her receipt of SSI benefits for any month ending within the last 60 days. Respondent rehired Petitioner to work as a peak-time (part-time) cashier beginning on October 30, 2000. Petitioner accepted the position even though she knew that working as a cashier involved a lot of stress and would require her to lift items as heavy as 50 pounds. Shortly after being re-hired, Petitioner actively sought more work hours in addition to her regular schedule. Respondent accommodated Petitioner's request by letting her work on the floor as a stock clerk, as well as a cashier. Approximately two weeks after returning to work, Petitioner required hospitalization again due to a heart attack. She was discharged from the hospital on November 27, 2000. Petitioner's doctor instructed her to rest and limit her activity, including walking, heavy exercise, and/or lifting more than five pounds, resuming normal activity on the second day as "tolerated." On December 2, 2000, Petitioner was admitted to the emergency room again after work. Petitioner's doctor recommended that Petitioner not return to work until she was evaluated again on December 11, 2000. Petitioner's doctor released her to return to work on December 12, 2000. Respondent's employees and management were aware of Petitioner's heart condition but they were not aware that Petitioner had a disability requiring accommodation. The doctor's release-to-work contained no medical restrictions. During December 2000, Petitioner worked as a cashier and on the customer service desk receiving items returned by customers. The latter job occasionally required Petitioner to handle heavy items. On January 9, 2001, Respondent gave Petitioner a performance appraisal. The appraisal indicated that Petitioner worked well with others, assisted in raising funds for charity, and participated in associate functions. Respondent's performance standards include "below," "meets," or "exceeds" expectations. Petitioner's performance appraisal indicates that she "met" performance expectations in all areas except one area of productivity. She received a "below" expectations rank as to the number of items she scanned per hour. Based on the overall appraisal, Petitioner received a pay raise commensurate with the "meets" expectation criteria. On February 6, 2001, Petitioner's doctor excused her from work for a week due to illness. The doctor indicated that Petitioner could return to work on February 9, 2001, if she was feeling well. Otherwise, Petitioner would need another medical evaluation before she returned to work. On February 12, 2001, Petitioner's doctor excused her from work until February 14, 2001. Petitioner's medical records indicate that Petitioner had bronchitis, asthma, and flu-like symptoms. Around the middle of February 2001, Petitioner requested that she be scheduled to work the night shift only two nights per week. Respondent's associate schedules, which were computer-generated weeks in advance of the scheduled work, show that Respondent granted her request. Petitioner was scheduled to work after 6:00 p.m. as follows: (a) two times from February 24, 2001, to March 2, 2001; (b) one time from March 3, 2001, to March 9, 2001; (c) one time from March 10, 2001, to March 16, 2001; and (d) two times from March 17, 2001, to March 23, 2001. Respondent posts daily or weekly schedules to make corrections to the computer-generated schedules. Two such undated handwritten schedules indicate that Petitioner was scheduled to work a day shift on two days. Petitioner actually worked after 6:00 p.m. as follows: one time from February 10, 2001, to February 23, 2001; one time from February 24, 2001, to March 9, 2001; and no times from March 10, 2001, to March 23, 2001. On or about February 20, 2001, Petitioner told her supervisor that she planned to resign on March 1, 2001. In a subsequent handwritten note dated February 27, 2001, Petitioner advised Respondent that she intended to quit work on March 23, 2001. The note states that she was leaving due to illness but wanted to return when she was well. On or about March 8, 2001, a customer in an express checkout lane, limited to 20 items, made a written complaint to Petitioner's supervisor that Petitioner had been rude. Specifically, the customer alleged that Petitioner had expressed her objections to the customer having more than 20 items when the customer had exactly 20 items. The customer claimed that Petitioner's comments were embarrassing. Petitioner's supervisor gave Petitioner a verbal coaching. The supervisor reminded Petitioner of Respondent's policy that the customer was always right. During the hearing, Petitioner stated that she agreed with this policy. Under protest, Petitioner complied with the supervisor's request for Petitioner to write an apology to the customer. The written apology stated that Petitioner was sorry if she hurt the customer's feelings and asked the customer to please go to Petitioner's checkout line again. The supervisor also wrote an apology to the customer. On March 12, 2001, Petitioner underwent a medical examination at Doctors Medical Center of Walton County due to chest pains radiating into her right arm. The medical history taken at that time indicates that Petitioner's medical history included two heart attacks and five stents in her heart arteries. Petitioner's doctor wrote an excuse for Petitioner missing work on March 13, 2001. The note states that Petitioner could return to work on the following Monday, March 19, 2001. On March 21, 2001, Petitioner had an altercation with a customer service manager. The incident occurred because Petitioner and another cashier were scheduled for breaks about the same time. The manager allowed the other cashier to go on break before Petitioner because the co-worker's line was empty and Petitioner had customers in her line. Raising her voice, Petitioner protested that she was due a break before her co-worker. The manager told Petitioner to stop harassing him. Petitioner subsequently complained to her supervisor. Petitioner admitted during the hearing that she got "sassy" with the customer service manager on March 21, 2001. The morning after the altercation with the customer service manager, Petitioner told her co-workers that she intended to have the store manager fired because she was having him investigated. As a result of her comments, Petitioner was invited to the rear office where she spoke to the regional personnel manager on the phone. During that conversation, the personnel manager told Petitioner she could call him at home if she felt more comfortable doing so. The personnel manager excused Petitioner from work for the next two days with pay through March 23, 2001, the effective date of her resignation. Petitioner's final exit interview is dated March 22, 2001. On the exit interview form, Petitioner indicated that she quit her job because she did not like the way the store manager ran the store and due to her health. Petitioner indicated that the termination was voluntary due to her health. After Petitioner signed the exit interview form and left the store, Respondent's staff had further conversation with the regional personnel manager and completed a section on the form reserved for the employer. This section indicates that Petitioner had a bad attitude and, if she had not resigned, Respondent would have terminated Petitioner. Competent evidence shows that Petitioner did have a bad attitude after being rehired. She always took the position that she was right and did not want to communicate with certain managers. Petitioner understood that she could only work for six months without losing her SSI benefits. Her resignation on March 23, 2001, occurred just prior to the end of the six-month period. Due to her health problems, Petitioner has not worked since she resigned her job with Respondent. She has not looked for work and does not intend to do so because she continues to receive SSI. During the hearing, Petitioner discussed several incidents in support of her allegations of discrimination based on her disability. However, Petitioner admitted that her memory was bad and that she could not recall the specific dates involved. On several occasions, Petitioner complained to Respondent's district manager about the way the store manager ran the store. For example, Petitioner complained that someone was selling Avon products in a fitting room. The district manager determined that there was no merit to this allegation. On another occasion, Petitioner complained to Respondent's district manager that the store manager had made an inappropriate religious comment to Petitioner. Upon subsequent investigation, the district manager determined that the store manager had made one such comment to another employee but not to Petitioner. The store manager was advised to refrain from making such comments in the future. Petitioner testified that if an employee was not a member of the store manager's "holy roller" church, the employee was nothing in the opinion of the store manager. Petitioner's testimony that she was treated differently from other employees because she would not "suck up" to the store manager and because she was not a member of his clique is not persuasive. Petitioner told the district manager that she did not like the way the store manager criticized employees in the office. However, Respondent's policy is to provide praise in public and constructive criticism in private. Respondent has a policy to send employees flowers when they are hospitalized. Petitioner complained to Respondent's district manager that the store did not send her flowers when she was in the hospital. According to Petitioner, the store manager told her at some point in time that she was going to die and where she was going to be buried if she did not quit her job. The greater weight of the evidence indicates that the store manager did not make this statement. Petitioner presented testimony that Respondent's managers called her a whiner. Petitioner also presented testimony that the assistant store manager stated that she would not baby-sit dummies (retarded people). The most persuasive evidence indicates that Respondent's managers never made these comments. To the contrary, Respondent does not have a policy against hiring people with disabilities. In fact, at the time of the hearing, Respondent had another disabled person working at the store in Defuniak Springs, Florida. Sometime after Respondent rehired Petitioner in October 2000, she began to experience chest pains while she was working as a cashier. Petitioner's co-workers were aware of Petitioner's problem but there is no competent evidence that Respondent's managers were aware of her specific symptoms. In fact, none of Respondent's managers who testified at the hearing could remember Petitioner complaining of chest pains while she was working as a cashier. When Petitioner requested permission to leave work due to illness, she was told to wait for relief, then to close her register and go to the office to check out. The process took about 20 minutes. At the time in question, Petitioner drove herself to the doctor's office. She did not request anyone to drive her and no one offered to do so. After being examined by her doctor, Petitioner 's doctor recommended that she travel to the hospital by ambulance. Petitioner refused this recommendation and elected to call a friend to take her to the hospital in Defuniak Springs, Florida. Eventually, Petitioner was placed in intensive care and transferred to a hospital in Pensacola, Florida, where she underwent the replacement of a stent due to its collapse. There were times when Petitioner was not allowed to leave her register before a break to take her medication; however, she was allowed to have water at her register so that she could take her medication at her workstation. On the one occasion that Petitioner could not locate her nitroglycerine prescription, she was told to finish with a customer before going to the store's pharmacy to obtain a new prescription. During the hearing, Petitioner testified that she was not allowed to operate machinery while taking some of her prescribed drugs. Therefore, Petitioner did not take those medications when she went to work. There is no evidence that Respondent was aware that Petitioner was not taking prescribed medications in order to work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
The Issue The issues to be resolved in this proceeding concern whether the Petitioner has been the victim of discrimination based upon his race and upon retaliation regarding his termination (lay-off) from employment with the Respondent and with regard to his allegation that he was denied overtime by the Respondent.
Findings Of Fact The Petitioner was a laborer and carpenter's helper for the Respondent, a construction company, at times pertinent to this case. The two construction projects involved in this proceeding are known as the Oceans Grande Project, a 20-story high rise condominium in Daytona Beach Shores and the Salida Del Sol project in Daytona Beach Shores. The first was commenced in construction in January 2004, and the Salida project in December 2004. They are still ongoing. Sometime in 2004 the Petitioner applied at the Respondent's Oceans Grande worksite asking for a wage rate of $14.00 per hour. He filled out an application and left and had no more contact with the Respondent employer for two or three months. He returned after that period of time and spoke with Grady Johnson, the project superintendent for the Respondent. He ultimately took a job at $12.00 per hour with the Respondent as a carpenter's helper/laborer. He was thus employed initially at the Oceans Grande project. The Petitioner was employed at that location from June 21, 2004 until early March 2005, when he was transferred to the Salida Del Sol project. Prior to that transfer, in November 2004, at the Oceans Grande site the Petitioner suffered an on- the-job injury. He was provided medical care by the Respondent, and had been placed on light duty by his physician. In early March 2005, the Oceans Grande project no longer had any light duty work available. It was the understanding of the superintendent, Grady Johnson, that at all times after November 15, 2004, the Petitioner had been on light duty status. He was aware of three specific letters that the company received from the physician. The latest one, advising that the Petitioner must remain on light duty, was received in March according to Mr. Johnson; however, rather than lay-off the Petitioner, the Respondent transferred the Petitioner to the Salida Del Sol project. That project was just getting underway at that time and light duty work was available. Two other employees were also transferred to that project. Thus, the Petitioner's employment at Salida Del Sol consisted of light duty work. Superintendent Getz of that project re-affirmed that the transfer to his project was because of a lack of a need for one such as the Petitioner on light duty at the Oceans Grande project, as well as the fact that his project at this time had light duty work. The transfer to the Salida Del Sol project occurred on March 7, 2005. At the time of the Petitioner's transfer to the Salida job site there were only two Yates employees, including the Petitioner, who were employed there, aside from supervisory personnel. On or about April 12, 2005, an employee of a subcontractor referred to the Petitioner with a racial slur, and made other unkind, argumentative comments toward him. The Petitioner made no mention of it initially, but on the very next day was working in that area and realized that one of the female employees was quite angry because of her awareness of the racially derogatory comment that the subcontractor's employee had made toward the Petitioner. This co-employee made a complaint about the matter to Rick Getz, the project superintendent at the Salida job. Mr. Getz immediately investigated the matter and confronted the employee of the subcontractor ("Dominick") and told him in no uncertain terms that such conduct was not to be tolerated on that job, regardless of whom he worked for. Subsequently Mr. Getz, along with the assistant project superintendent Rick Bilodeau, met with the subcontractor's employee, Dominick, as well as his employer and reiterated to both of them that this type of conduct would not be condoned and there would be no further incidents like this. There were no more complaints thereafter by the Petitioner or any other employee of the Respondent. In a conversation shortly after this meeting, Mr. Bilodeau informed the Petitioner that the matter had been resolved, at which point the Petitioner made a statement to the effect that he wanted to know the name and address of Dominick's employer because "my people like people with big mouths and lots of money." In any event, the Respondent's action remedied the situation and stopped any further racially derogatory incidents. The Petitioner has also complained of being denied overtime. This stems from Friday, April 29, 2005, when the Petitioner learned that the other two employees on his job site were going to work overtime the next day, Saturday. He claims he knew nothing about it and was not told by his employer and concluded therefore that he was denied overtime. The Respondent, however, offered preponderant evidence that there was overtime available on Saturday April 30, 2005, and that no effort had been made to exclude the Petitioner. Rather, overtime is voluntary and because of the small number of employees superintendent Getz had announced to all employees near the end of the workday on Friday that work was available for anyone who wanted to work on Saturday. It was Mr. Getz's impression that this had been made known to the Petitioner, but if the Petitioner had not heard the announcement at a gathering at the end of the day, it was not through any intentional effort by the Respondent to exclude him from an overtime opportunity. This was confirmed by Assistant Superintendent Billodeau in his testimony to the effect that it was customary on the job site on Friday to announce to everyone congregated in the afternoon whether they were going to work on Saturday or not. It was Billodeau's impression also that the Petitioner was present on that occasion. So all employees were told as a group that there was work to be done on Saturday. It is also true that numerous occasions had arisen on this and the Oceans Grande project in which the Petitioner was asked to work overtime but declined for various reasons, as the Petitioner himself has conceded. Finally, the Petitioner complains concerning his lay- off from the Oceans Grande project on May 6, 2005. In fact, efforts were made to avoid laying the Petitioner off, and to find him available work at the Salida project. Additional efforts were also made to contact the Petitioner for re-call purposes even after he was laid-off from the Oceans Grande project. This belies any intention on the part of the Respondent to retaliate against the Petitioner for complaining about the racial comment incident by denying him overtime or laying him off. On May 2, 2005, the Salida Del Sol project had reached a stage in which there was very little work to do. The project was waiting for a work permit and for the installation of a tower crane. Therefore there was no work for a laborer, the Petitioner, or for the two carpenters, Felix Hernandez and Otillo Toledo. Rather than lay them off, however, Superintendent Getz called the project Superintendent, Mr. Johnson, at the Oceans Grande project to see if there was any work for the three employees. Mr. Johnson told him that he might have work for perhaps a week and therefore the Petitioner and the other two employees were transferred to the Oceans Grande project. Both Hernandez and Toledo were skilled carpenters, as opposed to the Petitioner, who was a laborer/carpenter's helper. When this transfer occurred it left only two traffic control employees, who were females, at the Salida job site, along with the tower crane operator. On May 6, 2005, the Petitioner was laid-off from the Oceans Grande project. There was simply no further work for a laborer at that job site so Mr. Mecker, the foreman, explained to the Petitioner why he was laid-off. He also told him that the company might soon have another project starting known as the Halifax Landing project and that he might have work available there. He told the Petitioner that he should remain in contact with the Oceans Grande project supervisory personnel in case a re-call came up because of additional work becoming available. The Respondent also noted in the Petitioner's personnel file at the time of this "reduction in force" that the Petitioner was "recommended for re-hire." Mr. Johnson also testified that as far as he was concerned the Petitioner was still eligible for re-hire and that he actually liked Julian Lawrence as a person and as an employee. It is undisputed, however, that the Petitioner never contacted the Respondent and never made any inquiry as to additional work. On occasion, Project Superintendent Johnson made efforts to call the Petitioner at the only phone number he had for him, regarding re-calling him for more work. This was probably three to four weeks after the lay-off. The fact that the Respondent noted on the personnel record at the time of his lay-off that the Petitioner was recommended for re-hire belies any indication that the Petitioner was being retaliated against by the Respondent. It also significant that the decision-maker with regard to the lay-off was Grady Johnson. The Petitioner maintains that he was laid-off in retaliation for complaining about the racial epithet incident involving "Dominick" at the Salida project. Mr. Johnson however, was totally unaware of that incident at the time he made the decision to lay the Petitioner off. Thus it was not possible that he did so as an act of retaliation. Indeed the Petitioner himself did not complain regarding the racial comment incident, but rather learned of it from the female employee who had made the complaint to the Respondent's management. Equally significant, no derogatory employment action was ever taken against the female employee who complained to the Respondent regarding the incident either. Project Superintendent Johnson established, based upon his 45 years experience in the construction industry, that it is important to understand how a construction project and company operates. There are different steps and different stages. During these different steps and stages of a project different employees are required and then become un-needed at a later stage of the project. Many times much of the work at various stages is performed by subcontractors. Additionally, it is important to acknowledge that not only was Mr. Johnson unaware of the "Dominick" incident, but when asked if the lay-off of the Petitioner was in any degree an effort, to retaliate, Mr. Johnson was very adamant in denying that. He stated, "I've never done that in my life." Indeed, the testimony shows that on at least two occasions the Respondent sought to find available work for the Petitioner rather than lay him off. Mr. Johnson established that the Petitioner's employment record was marked as "eligible for re-hire" and the Respondent's attempts to reach the Petitioner after the lay-off was because the Respondent was actively trying to effect an arrangement so that the Petitioner would have work at different times with the Respondent. In Mr. Johnson's words, "We like Julian. Julian is good guy. There was no selection . . . we were trying to work it out where he could go to the other job, but that didn't work out."
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, 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 1st day of September, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Julian J. Lawrence Post Office Box 263225 Daytona Beach, Florida 32126 Taylor B. Smith, Esquire The Kullman Firm Court Square Tower 200 6th Street North, Suite 505 Columbus, Mississippi 39703-0827 Jennifer Robbins Guckert, Esquire The Kullman Firm 1640 Lelia Drive, Suite 120 Jackson, Mississippi 39216
