The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was the victim of discrimination by the Respondent because of an alleged disability and whether the Respondent retaliated against the Petitioner for filing a complaint of discrimination with the Equal Employment Opportunity Commission (EEOC).
Findings Of Fact The Petitioner Gregory L. Stubbs, was employed by the Respondent Department as a maintenance yard Welder for approximately five and one-half years. In 1993, he suffered a back injury on the job, resulting in chronic pain. On January 28, 1997, the Petitioner accepted a position with the Department's Office of Motor Carrier Compliance (MCC) as a Weight Inspector. The Weight Inspector position accepted by Mr. Stubbs was an open, advertised position at the time, for which the Department accepted applications and conducted interviews, including that of Mr. Stubbs. He applied for the position, was interviewed and selected for the position. When Mr. Stubbs was offered the Weight Inspector position, he was advised that appointment to the position would amount to a demotion from his current position with the Department, in the sense that he would have to accept a base rate of pay of 5 percent less than he had been earning. He voluntarily accepted that position and the reduction in pay. The pay for the position was set when the position was released for hire and was not changed because Mr. Stubbs elected to apply for the position and became the selected candidate hired for the position. Weight Inspectors work at fixed-scale weigh stations where trucks are weighed. Mr. Stubbs was assigned to the "Northbound scales" on Interstate 95 near Yulee, Florida in Nassau County. Weight Inspectors are responsible for enforcing the motor vehicle weight laws, writing citations for violations, as well as writing citations for fuel tax violations and enforcing the dimensional limits on motor vehicles. The job involves weighing and measuring vehicles, writing citations, answering the telephone, operating a computer and checking vehicle tags and registration numbers. The job does not involve any heavy lifting, loading or any physically demanding tasks. Weight Inspectors employed by MCC work alone at the scale houses, except when a new inspector is present for training. Mr. Stubbs was able to perform these duties and, when present for work, performed them well. Mr. Stubbs was supervised by Sgt. Robert Bryan. Sgt. Bryan participated in interviewing Mr. Stubbs and in selecting him for the position. During the interview process Sgt. Bryan informed Mr. Stubbs of the Weight Inspector's job duties. Mr. Stubbs never informed Sgt. Bryan that he would have any trouble performing the job duties. Mr. Stubbs also did not tell Sgt. Bryan, at that time, that he had trouble with his back or that he would have trouble reporting for work on time. Sgt. Bryan later learned that Mr. Stubbs had trouble with his back, but did not consider the problem to restrict Mr. Stubbs' ability to perform the Weight Inspector job. Weight Inspectors are required to report for work on time. The failure to report for work timely, results in closure of the scale facility. When a Weight Inspector has to be late or is unable to report for work before the beginning of a shift, he is required to advise the supervisor before the scheduled time for the shift. This requirement is contained in the Department's published Conduct Standards. Copies of the Department's published Conduct Standards are provided to all Weight Inspectors that work for MCC, including the Petitioner. Department employees are advised that unexcused tardiness or absences will be grounds for disciplinary action and the Petitioner was so informed. On October 19, 1997, Sgt. Bryan counseled Mr. Stubbs about failing to notify him of an absence from work. Sgt. Bryan stressed the need for Mr. Stubbs to contact him as soon as he became aware that he would not be able to timely report for work. On October 12, 1998, Sgt. Bryan counseled Mr. Stubbs for failing to report to work on time. Sgt. Bryan again stressed the need for Mr. Stubbs to timely report to work. On December 31, 1998, Mr. Stubbs acknowledged receipt of a Memorandum from Lt. Vicki D. Thomas concerning tardiness and the use of leave. Lt. Thomas is the Jacksonville Field Office supervisor for MCC and is Sgt. Bryan's immediate supervisor. Lt. Thomas' Memorandum requires Weight Inspectors to contact both the main MCC office and the inspector who they are scheduled to relieve whenever they will be tardy or absent. On January 13, 1999, Sgt. Bryan again counseled Mr. Stubbs about failing to report to work as scheduled In 1998, Mr. Stubbs filed a grievance through his union, the American Federation of State, County and Municipal Employees (AFSCME). The subject of the grievance was the reduction in pay Mr. Stubbs' sustained by accepting employment with MCC. He sought re-instatement of the pay he had received as a Welder. Lt. Thomas received the AFSCME grievance on August 17, 1998, and responded to it by noting that the grievance was untimely and that Mr. Stubbs had voluntarily accepted the Weight Inspector position and attendant reduction in pay. Although the grievance was unsuccessful Mr. Stubbs continued his employment with MCC. On or about February 9, 1999, the Petitioner filed a Charge of Discrimination with the EEOC alleging that the Department had discriminated against him on the basis of race and disability by reducing his pay when he accepted the Weight Inspector position. On May 13, 1999, the EEOC advised the Petitioner that it could not investigate his charge because it was not filed within the time required by law. A copy of the EEOC Dismissal and Notice of Rights was provided to the Department. A copy of the EEOC Notice was also sent to Mr. Stubbs at the Department's address. This copy was mistakenly opened by the Department and then forwarded to Mr. Stubbs. Sgt. Bryan became aware of the complaint when the letter was opened in the Department offices, but the complaint was not a factor in his supervision of Mr. Stubbs. On April 2, 1999 through June 25, 1999, the Petitioner was absent from work. He exhausted all of his sick leave and was authorized additional, unpaid leave under the Family Medical Leave Act. On June 25, 1999, Mr. Stubbs returned to his Weight Inspector assignment. He was scheduled to work on July 2, 7, 8, 9, 13 and 16, 1999. He did not report for work on those days. On July 8, 1999, he failed to advise Sgt. Bryan that he would not be reporting for work. Sgt. Bryan checked with other supervisors to see if Mr. Stubbs had advised anyone else that he would be absent, and learned that Mr. Stubbs had not contacted them. Lt. Thomas issued a written reprimand to the Petitioner for these absences. The reprimand was issued because he was absent from work without authorized leave and failed to follow the Department's rules concerning advance approval for leave. Neither the Petitioner's prior complaint to the EEOC or his back problem motivated Lt. Thomas to issue the reprimand. On July 20, 1999, Sgt. Bryan spoke with Mr. Stubbs about a cash penalty that Mr. Stubbs had collected on a "load report." Weight Inspectors who collect cash penalties are required to convert the cash funds to a money order or cashier's check within 48-hours after the date the report is issued. Weight Inspectors are allowed to use work time to convert cash penalties to money orders or cashier's checks. Sgt. Bryan asked the Petitioner about the cash because the load report involved was apparently issued six days earlier. The Petitioner told Sgt. Bryan that he had not converted the cash to a money order, that he had the cash with him and that he believed the inquiry was ridiculous. Sgt. Bryan then had to go to Mr. Stubbs's doctor's office to retrieve the cash penalty. Mr. Stubbs received a suspension for his handling of the cash penalty and related behavior. Lt. Thomas investigated the allegations contained in the suspension letter and believed them to be correct. She prepared the letter for signature. Neither Mr. Stubbs' prior complaint to the EEOC or his back problem motivated Lt. Thomas to issue the suspension. During the period from July 21, 1999 to August 6, 1999, the Petitioner was repeatedly absent and late to work. At 12:25 p.m., on August 1, 1999, the Petitioner advised Lt. Thomas that he had not worked as scheduled on July 31, 1999, and had not reported for work on the morning of August 1, 1999. On August 26, 1999, the Petitioner received a suspension for his unauthorized and excessive absences. Lt. Thomas investigated the allegations contained in the suspension letter, believed them to be correct and prepared the letter for signature. Neither the Petitioner's prior complaint to the EEOC or his back problem motivated Lt. Thomas to issue the suspension. The Petitioner was advised that any further violations of the Department's Conduct Standards would result in more severe discipline, up to and including dismissal. The Petitioner was scheduled to work from October 11 through October 15, 1999, but did not report for work on those days. He did not contact Sgt. Bryan or Lt. Thomas to advise them that he would not be at work. Lt. Thomas and Sgt. Bryan checked with other MCC supervisors and staff but were not advised that Mr. Stubbs had contacted anyone. Sgt. Bryan and Lt. Thomas did not hear from Mr. Stubbs from October 11 through October 15, 1999, and had not authorized his absences. The Department dismissed Mr. Stubbs from employment for those unauthorized absences. The Petitioner was apparently ill during that period but did not provide the Department with a doctor's note until approximately six weeks after the absences. The doctor's note does not indicate that the Petitioner was unable to call his supervisors to report his anticipated absence. The Petitioner did not establish that he was unable to report to his supervisors as required. The Department's discipline of the Petitioner and the ultimate decision to dismiss him from the Department were not motivated by Mr. Stubbs' prior complaint to the EEOC. Although some of his absences from work may have resulted from his back injury, the evidence does not establish that all of his absences were related to his injury. He was absent for material amounts of time in excess of his available leave. In 1999, he exhausted his accrued leave and used twelve weeks of unpaid leave under the Family Medical Leave Act. After returning from family medical leave, he continued to be absent for a significant period of time. There was no showing that additional leave would enable Mr. Stubbs to return to work on a regular basis. Additionally, he failed to notify his superiors in advance of his absences as required and instructed.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness 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 denying the Petition in its entirety. DONE AND ENTERED this 3rd day of October, 2002, in Tallahassee, Leon County, Florida. 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 Clerk of the Division of Administrative Hearings this 3rd day of October, 2002. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Gregory L. Stubbs 3563 North Hampton Cove Court Jacksonville, Florida 32225 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 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Petitioner has been the subject of an unlawful employment practice.
Findings Of Fact Petitioner, Howard B. Steele, a black male, has been employed with the City of Lynn Haven since October, 1981. At the time he sought employment, Petitioner applied for the position of meter reader "or any available position." A meter reader position was not available, so Petitioner accepted a position in the sanitation department, picking up garbage. Three months after his employment, Mr. Steele was transferred to the street department to work on the trash truck. The trash truck crew picks up yard trash. During the summer of 1984, Mr. Steele was selected to assist with the maintenance and upkeep of the parks during baseball season. Parks and recreation was a part of the street department, and at all relevant times, was a two-man unit. When baseball season was over, Mr. Steele and his coworker would work in the sanitation department. In 1986, Mr. Steele and another coworker were assigned to handle the parks and recreation responsibilities exclusively during the entire year. Mr. Steele was no longer required to work in the sanitation department. The City of Lynn Haven is a municipality chartered pursuant to Laws of Florida, 1951, Ch. 27685, Sec. 5. At all relevant times, Lynn Haven employed approximately 98 persons. Of the 98 employees, fifteen are black and constitute approximately fifteen percent of the City's work force. The general population of non-whites in Lynn Haven and Bay County is approximately 13.8 percent and 14.3 percent, respectively. The general population of blacks in Lynn Haven is 10.1 percent. However, the City's qualified applicant pool is significantly less than ten percent. 1/ When the City's percentage of blacks in the work force is compared to the qualified applicant pool or even to the general population figures, it is apparent the City has no hiring practices or policies that disproportionately impact on blacks. In 1979, Lynn Haven adopted a Position Classification and Pay Plan (the Plan). The Plan has been slightly modified over the past ten years. The Plan includes eight general job classifications, as follows: Administrative, Clerical, Labor, Public Safety, Equipment Operation, Refuse, Utilities, and Supervision. Each job classification has a corresponding pay range that can be adjusted in exceptional circumstances. Salary increases are obtained primarily by two methods: cost-of-living raises and merit raises. 2/ Currently, both raises are given annually to all employees. However, prior to June 1989, merit raises were given biannually. A merit increase is not automatic but is given in conjunction with an annual evaluation on the employee's anniversary date of employment. Merit raises generally range from zero to five percent within the job's pay range. Consequently, while an employee is always eligible for a cost-of-living increase, it is possible for an individual to reach the maximum salary level for his or her position and no longer be eligible for a merit increase. Additionally, under the Plan, if an employee is demoted for just cause, the demotion may be in the form of a reduction in pay or to a lesser job classification. If, however, the demotion is due to an employee's inability to perform his or her work because of health or other reasons, there is no change in the employee's pay unless recommended by the department head. Therefore, it is possible for a person to be demoted into a lower job classification and make more money than a person with more seniority already in the lower job classification. The demotion policy is facially neutral and works to the advantage or disadvantage of blacks and whites equally. In 1981, when Mr. Steele was hired, he was paid $3.35 per hour. At that time, the salary range for unskilled laborers was $2.67 to $3.74 per hour. Currently, Mr. Steele is essentially an unskilled laborer with seniority in the parks and recreation unit. He is primarily responsible for maintaining the cleanliness of the city parks. This includes mowing the grass, cutting the shrubbery, and making minor repairs. Mr. Steele also lines the playing fields before ball games. While Mr. Steele does delegate assignments and duties to his crew member, Tommy Flanders, and is sometimes required to supervise community service workers, he does not function as a department head or have the responsibilities of a foreman such as Mr. Gray or Mr. Marlowe who hold foreman positions. During his employment, Mr. Steele has received a written reprimand for falsifying a time card and has also had a well-documented problem with absenteeism spanning several years. Since his employment in 1981, Mr. Steele has been given a cost-of- living increase each year he has been employed with the City. Mr. Steele has also received the appropriate number of merit raises. None of these raises were inequitable or discriminatory. Mr. Steele received his first merit increase in July, 1982, and his second merit increase in April, 1983. Under the policy existing at the time, merit increases were given every two years. Mr. Steele, however, received an extra merit raise because of his job performance. In 1985, Mr. Steele, along with approximately 20 other white and black employees, were eligible for a merit increase. However, the City inadvertently failed to give these employees their raises. The missed raises were due exclusively to an oversight by the City and were corrected in 1986 when they were discovered. In 1986, Mr. Steele was given a 15% salary increase which included his annual cost-of-living raise and a two-step merit increase. In 1987, Mr. Steele was given a cost-of-living raise but not a merit increase. As noted above, merit increases were given biannually, and because Mr. Steele had received a two-step merit increase in 1986, he was not entitled to a merit increase in 1987. On November 3, 1988, Mr. Steele received a merit increase which raised his salary to $6.91 per hour. The following June (1989) the compensation policy was amended to permit merit raises annually. Under the new policy, Mr. Steele was eligible for a merit increase in October, 1989. Once again, the City inadvertently failed to give Mr. Steele his merit increase in 1989 but corrected the oversight retroactively. 3/ On March 10, 1990, when Mr. Steele filed his Charge of Discrimination, he was being paid $7.44 per hour. On October 29, 1990, Mr. Steele received a merit raise which brought his salary to $7.55 per hour, and on December 28, 1990, Mr. Steele received a cost-of-living raise which brought his rate of pay to $7.78 per hour. 4/ Mr. Steele has received other raises since 1990 and is currently making $8.82 per hour. It is undisputed that Tommy Flanders, Mr. Steele's white co-worker with less seniority in the parks and recreation unit, was at one time paid a higher hourly rate than Mr. Steele. Mr. Flanders was hired in April, 1981, in the fire department as a paid fireman. Mr. Flanders had been a volunteer fireman with the City since 1968. Mr. Flanders was unable to get state certification because of a vision problem, and upon denial of a fireman's certification, he was demoted to the sanitation department. He worked in this job approximately two months and then moved to Pensacola after a work-related injury. Mr. Flanders returned to Lynn Haven in August, 1985, and was hired by the City as a truck driver in the street department at a rate of $4.21 per hour. Mr. Flanders' pay was consistent with the City's pay classification system. He was promoted to Step 1 foreman in February, 1986, at a rate of $5.96 per hour. Mr. Flanders remained in the sanitation department until he was injured in another job-related accident in August, 1988. When he returned from workers' compensation leave to light duty in November, 1988, Mr. Flanders was assigned to the parks and recreation unit as a crew member with Mr. Steele. Although this was essentially a demotion, the City's demotion policy permitted Mr. Flanders to maintain the same hourly rate of pay he received as a foreman with the sanitation department. This created an unfortunate situation for Mr. Steele, who had been in the recreation unit longer and had more experience in the parks and recreation unit than Mr. Flanders. However, the pay disparity was consistent with the then-current pay and classification plan and is one reason the City began to move toward adoption of a new compensation and job classification plan. Mr. Flanders' current hourly rate is $8.45 per hour. John Barnes, a black male, is presently employed with the City as a meter reader at the rate of $9.55 per hour. Mr. Barnes was hired as a sanitation worker in 1980 at the rate of $3.35 per hour. Mr. Barnes was promoted to truck driver and then to backhoe operator. In 1987, he was encouraged by the City to apply for a firefighter's position. Mr. Barnes was hired as a firefighter. When Mr. Barnes was unable to successfully complete the state certification requirements for firefighters, he was transferred to the street department. 5/ Although this was a demotion, Mr. Barnes, like Mr. Flanders, was permitted to keep his higher pay as a fireman pursuant to the City's Compensation and Pay Plan. Mr. Barnes stayed in the street department until Sammy Oliver, a white male, encouraged Mr. Barnes to apply for a meter reader opening. Mr. Barnes filled out an application and was given the job. He has been a meter reader approximately six years during which Mr. Barnes has received job training in computerized meter reading. James Powell, a black male, worked for the City approximately 22 years before he retired in 1991. At the time of his retirement, Mr. Powell was sign foreman making $10.77 per hour. Although Mr. Powell testified he did not know he was the sign foreman, the payroll records of the City showed that Mr. Powell was classified as "sign foreman." In addition, Mr. Powell admitted on cross examination that, besides himself, numerous other blacks held position outside of the sanitation department, as follows: a black police officer, a black meter reader, a black school guard, two blacks in the recreation unit, and Charlie Smith, a black member of management working in the administrative department of City Hall. Willie Mallard is a black male working in the sanitation department. Mr. Mallard testified that he has worked for the City for ten years, and no one has ever asked him to be foreman. Mallard admitted on cross examination, however, that he had never expressed any interest in becoming foreman. Mallard further testified that the only promotion he ever sought was given to him when it came open. L. D. Marlowe is the current supervisor of the street department. He has worked for the City approximately seven years and is making approximately $11.00 per hour. His position carries greater responsibility than Howard Steele's, and he supervises a greater number of employees than Mr. Steele. Bob Gray, a white male, is the current foreman in the sanitation department. Mr. Gray has worked for the City on two occasions, the latest tenure being in 1987 when he was hired to work on the back of a garbage truck. After two years he worked his way up to foreman. Mr. Grays quick promotion was due to his work ethic and desire to work. Ralph Hester, the former city manager, approached him about the foreman position when Tommy Flanders was demoted in 1987. Mr. Gray had previously expressed to Mr. Hester interest in advancement and was more qualified than Mr. Steele for such a position. 6/ Mr. Gray testified that he is currently making $22,000 a year. However, at the time Mr. Steele filed his first Charge of Discrimination, Mr. Gray was making $8.00 per hour. In 1986, Ralph Hester, city manager at the time, appointed Tommy Flanders, a white male, to be the new foreman of the sanitation crew. Hester's decision was based upon the recommendation of the administrative assistant to the public works director, Jackie D. Cornette. Cornette's recommendation was based on the fact that Flanders was the "best worker." Although Mr. Steele did not express any interest in the position, he objected to Mr. Flanders' promotion. When the promotion was announced at a group meeting, Mr. Steele questioned why Mr. Flanders was given the job instead of other workers with more seniority. Mr. Steele did not ask that he be given the sanitation foreman's position. In 1987, the position of foreman was again open when Mr. Flanders was injured and was placed on light-duty work assignment. Although Mr. Steele did not express any interest in the sanitation foreman's job he was considered for the job, but was rejected because of his excessive tardiness, abuse of sick leave, and his inability to work unsupervised. In fact, Mr. Steele never sought the position or expressed any interest in advancing outside of the recreation unit. Mr. Steele did complain repeatedly that his current position should be better compensated; however, there was no evidence Mr. Steele ever actively sought any other position available under the City's pay and classification plan. Additionally, there was no higher position in the recreation unit under the City's pay and classification system to which Mr. Steele could be promoted. Finally, the evidence demonstrated that the City's promotion policy was based on merit rather than on seniority. However, the evidence did not demonstrate that the City's promotion policy was discriminatory. In fact, black employees who merited promotion were encouraged to seek such promotions and were promoted. The evidence was clear that Mr. Steele was not personally sought for promotion because of his excessive tardiness, abuse of sick leave and his inability to work unsupervised. Mr. Steele's lack of promotional offers had nothing to do with his race. Given these facts, Mr. Steele has failed to establish that he has been subjected to any unlawful employment practice and the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED: That a Final Order be entered by the Florida Human Relations Commission denying and dismissing the Petition for Relief filed herein. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10 day of September, 1992. DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 10 day of September, 1992.
The Issue Whether Petitioner, Norma J. Nolan, was discriminated against by Respondent, K.D.P., Inc. d/b/a Western Sizzlin Steak House, in violation of the Human Rights Act of 1977, as amended, Section 760.10, Florida Statutes, on the basis of handicap, constituting an unlawful employment practice. Whether Petitioner has established a basis for, or entitlement to, an award of damages if, in fact, the alleged unlawful employment practice occurred.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: K. D. P., Inc., operated a restaurant known as Western Sizzlin Steak House in Bradenton, Florida, which business was established prior to the alleged incident of July 1990. This business has continued in operation to the current time under the same management and with many of the same employees, although the restaurant has subsequently become known as Cattle Company Cafe. The Respondent, K. D. P., Inc., d/b/a Western Sizzlin Steak House, now known as Cattle Company Cafe (KDP), owned by Jack Parrish, has been managed by Kevin Wreford for approximately twelve years. Parrish relies on Wreford for the day-to-day operation of the business, hiring and firing decisions, and supervisory responsibility. The Petitioner was employed from December 1989 through February 1990 by Upjohn Health Care on a part-time basis as a respite worker. While she was physically able to do that job, Petitioner chose to leave that employment as it had little work available for her with that agency and Petitioner wished to work at a location closer to her home. Petitioner applied for employment with KDP by way of written application on August 2, 1990. Petitioner's employment application did not indicate any physical handicap, disability or limitation. Wreford interviewed Petitioner for the position of part-time cashier in early 1991. During the interview, Wreford discussed with the Petitioner the duties of the position for which she had applied. Those duties included taking payment from customers at the cashier's stand, overseeing the salad and sundae bar, checking the women's restroom, cleaning glass in the area of cashier's stand and watching for walkouts (walkouts being customers who walk out without paying for their meals). Petitioner advised Wreford that she was capable of performing these duties but was concerned about her lack of experience in working with cash and making change. Wreford hired Petitioner as a temporary, part-time cashier, and Petitioner began work in that capacity for Respondent on February 3, 1991. Petitioner continued in the employment of the Respondent in the capacity of part-time cashier through July 17, 1991. At the time Petitioner was hired by Respondent on February 3, 1991 there was a large wooden bar stool located behind the counter where the cashier took payments for meals. All cashiers working for the Respondent, including Petitioner, were allowed to sit on this stool at times when they were not waiting on customers (cashiers were required to stand while waiting on customers) or performing other assigned duties as set out in Finding of Fact 6. Sometime around July 1, 1991, Wreford discussed with the cashiers, including Petitioner, his concerns about the cashiers not performing their other assigned duties when they were not waiting on customers. Performing other assigned duties required the cashiers to be away from the cashier's area. At this time, Petitioner made Wreford aware of her knee problem and advised him that she may have difficulty standing for long periods of time. There had been no mention of this problem previously nor had Petitioner experienced any problem with her knee previously. Likewise, Petitioner did not experience any problems with her knee in carrying out her assigned duties during the next two weeks. In fact, both Wreford and Parrish were pleased with Petitioner's performance during this period. On or about July 12, 1991, Parrish's wife who had become involved in the management of the restaurant advised Parrish that the stool needed to be removed from the cashier area because: (a) the stool was showing its wear and tear and was aesthetically unpleasing; (b) the stool was taking up too much room resulting in the cashiers not being able to perform their duties properly, particularly looking for walkouts and; (c) to prevent a certain cashier (not Petitioner) from abusing the privilege of the stool by sitting on the stool for extended periods of time and not performing her other assigned duties. On or about July 12, 1991, Parrish removed the stool from the caahier's area and placed it in his office where it remains today because the stool has a sentimental value in that Parrish used the stool in his first restaurant. On or about July 13, 1991, when Petitioner arrived for work and noticed the stool had been removed she met with Parrish and Wreford and advised them that she could not work without the stool because of her knee. Parrish and Wreford offered to accommodate her problem by allowing Petitioner to sit at a table adjacent to the cashier area when she was not waiting on customers or performing her other assigned duties. Petitioner advised Parrish and Wreford that she could not work under those conditions but that she would stay on until a replacement was found. Parrish and Wreford accepted Petitioner's resignation but encouraged Petitioner to continue her employment until she could determine if the accommodation would be satisfactory. Petitioner continued to work for Respondent until July 17, 1991, and was able to function without any problems with her knee under the accommodations provided by Respondent. However, after Petitioner resigned she never asked to be reinstated even though she was able to function under the accommodations provided by Respondent. Although Petitioner alleged that she had a physical disability/handicap because of problems she had related to an alleged right knee replacement done some years earlier, there was no medical evidence or other documentation establishing any physical handicap or restrictions/limitations in her ability to work. There were other cashiers employed by Respondent who had conditions similar to Petitioner's conditions who were able to function with the same accommodation offered Petitioner. One of those was the person hired by Respondent to take Petitioner's position. Petitioner collected unemployment compensation after leaving Respondent's employment, as well as other forms of assistance, such as food stamps and housing assistance. Additionally, after leaving Respondent's employment Petitioner developed "female problems" and is not seeking employment even though she attended computer school. There was no evidence as to the amount of damages suffered by Petitioner. There is insufficient evidence to establish facts to show that Petitioner was discriminated against on the basis of a handicap by Respondent or that any unlawful employment practice occurred. There is competent substantial evidence in the record to establish facts to show that there were legitimate, nondiscriminatory business reasons for the action taken by Respondent in removing the stool and providing other accommodations for the cashiers, including Petitioner. There was insufficient evidence to establish facts to show that the Respondent's articulated reasons for its action were pretextual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a Final Order finding that the Petitioner, Norma J. Nolan, was not discharged due to her handicap in violation of Section 760.10, Florida Statutes, and that the Petition For Relief be dismissed. RECOMMENDED this 8th day of June, 1993, at Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3903 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. 1. Proposed Findings of Fact 1 through 13 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial or a restatement of testimony rather than presented as a finding of fact. Respondent's Proposed Findings of Fact. 1. Proposed Findings of Fact 1 through 32 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial or a restatement of testimony rather than presented as a finding of fact. COPIES FURNISHED: Norma J. Nolan, Pro Se 1109 Harvard Avenue Bradenton, Florida 34207 Donna L. Derfoot, Esquire Post Office Box 3979 Sarasota, Florida 34230 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahasse, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue in these cases is: a) whether the Department of Education is liable for attorneys' fees and costs incurred in the prosecution of the Rushton case (DOAH Case No. 89-1551) and b) if so, whether such fees and costs should include those incurred in the prosecution of a rule challenge styled, Florida Education Association/United and Florida Teaching Profession/National Education Association v. Department of Education, DOAH Case No. 88-0847R.
Findings Of Fact Petitioner Lewis Rushton is a person within the meaning of Section 760.02(5), Florida Statutes. Mr. Rushton is an individual within the meaning of Section 760.10(1). The Department of Education ("DOE") is a personwithin the meaning of Section 760.02(5). The School Board of Seminole County, Florida ("School Board"), which is also a person within the meaning of the same statute, was at all material times Mr. Rushton's "employer" within the meaning of Section 760.02(6). At all material times, Mr. Rushton was employed as a bus driver by the School Board, which removed him from this position on April 19, 1988. The reason for the School Board's action was that the continued service of Rushton, who was over 70 years of age, was contrary to Rule 6A-3.0141(a), Florida Administrative Code, which required mandatory retirement of bus drivers at age 70 years ("Rule"). The other Petitioners were similarly situated to Mr. Rushton. The only difference is that they were employed by different district school boards. The School Board gave Rushton the option to continue in employment as a bus monitor, which was a lower-paying job than bus driver. Rushton accepted this reassignment and experienced the resulting reduction in pay beginning the 1988-89 school year. At all material times, DOE, which promulgated the Rule, maintained standards affecting the ability of Rushton to engage in his occupation or trade within the meaning of Section 760.10(5). The Rule was part of these standards. On January 29, 1987, Rushton filed a Complaint of Discrimination, FCHR Case No. 88-5616, against the School Board. The Florida Commission on Human Relations dismissed this complaint on November 11, 1988. On May 3, 1988, Rushton timely filed and prosecuted a Complaint of Discrimination, FCHR Case No. 88-5703, against DOE. On September 7, 1988, the Florida Commission on Human Relations issued a Notice of Determination--Cause. The Notice of Determination names as the sole respondent the School Board, which had employed Mr. Rushton prior to requiring him to retire at age 70. After DOE filed a Request for Reconsideration on September 16, the Florida Commission on Human Relations issued on January 12, 1989, a Notice of Redetermination--Cause. The Notice of Redetermination names DOE as the sole respondent. The Notice of Redetermination states that DOE's "assertion that [the Rule] is an established 'bona fide occupational qualification' for employment has not been upheld." The quoted statement in the Notice of Redetermination is to a final order issued December 14, 1988. The final order found the Rule to be an invalid exercise of delegated legislative authority. The final order was the culmination of a Section 120.56 challenge to the Rule that had been prosecuted against DOE by two unions representing the Petitioners. This rule challenge was styled, Florida Education Association/United v. Department of Education, DOAH Case No. 88-0847R ("Rule Challenge"). The Florida Teaching Profession/National Education Association was an intervenor on the side of the petitioner in the Rule Challenge. Lorene C. Powell represented the petitioner in theRule Challenge, and Vernon T. Grizzard, of Chamblee, Miles and Grizzard, and the law firm of Egan, Lev & Siwica, represented the intervenor. As the final hearing in the Rule Challenge approached, DOE requested abatements of the pending cases in which individual bus drivers had sought relief under Section 760.10. At that time, the cases of all Petitioners except Mr. Rushton were pending in the Division of Administrative Hearings. The grounds for the abatements were that the decision in the Rule Challenge "would substantially affect the outcome" of the pending individual cases. Each case was abated. The parties in the Rule Challenge stipulated that various counties, due to the Rule, had not rehired bus drivers who would have been rehired but for the fact that they had attained the age of 70 years. The parties also agreed that Sections 760.10 and 112.0444 [sic], together with cited federal law, "do not permit an age limitation on employment with the exception of where such an age limitation is based on Bona Fide Occupational Qualification." The stipulated issues for determination in the Rule Challenge included "whether the 70-year old age barrier . . . is a [bona fide occupational qualification] and thus a valid exception to the state and federal ban on age discrimination based solely on chronological age." By memorandum dated January 11, 1989, DOE informed school board superintendents of the final order invalidating the Rule. By letter dated February 9, 1989, the School Boardnotified Mr. Rushton that DOE was no longer requiring enforcement of the mandatory retirement rule and he could return to work as a bus driver if he could meet certain lawful requirements. Each Petitioner was so notified by his respective school board. By Petition for Relief filed March 21, 1989, Mr. Rushton sought relief against the School Board and DOE, including a finding that mandating his retirement due to age was an unlawful employment practice, an award of back pay and associated benefits, and an award of attorneys' fees in the prosecution of the subject proceeding and such other proceedings as were necessary or appropriate to obtain the relief and apportioning the fees between the School Board and DOE. With the filing of the Petition for Relief on March 21, 1989, John Chamblee of the law firm of Chamblee, Miles and Grizzard entered his appearance for Mr. Rushton. Mr. Chamblee had been retained for Mr. Rushton by his union, the Florida Teaching Profession/National Education Association. On or shortly after May 1, 1989, the School Board settled with Mr. Rushton by agreeing to compensate him for back pay, interest, and other benefits constituting relief otherwise available under Section 760.10. Similar settlements between the other Petitioners and their respective school boards resulted in the dismissal of all claims against the various school boards.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitions for Relief in the above-styled cases. ENTERED this 2nd day of May, 1990, in Tallahassee, Florida. COPIES FURNISHED: John J. Chamblee, Jr. Chamblee, Miles and Grizzard 202 Cardy Street Tampa, FL 33606 Vernon T. Grizzard Chamblee, Miles & Grizzard 116 South Monroe Street Tallahassee, FL 32301 Sydney H. McKenzie III General Counsel Carl J. Zahner Assistant General Counsel Department of Education Knott Building Tallahassee, FL 32399 Lorene C. Powell, Assistant General Counsel FEA/United 208 W. Pensacola Street Tallahassee, FL 32301 Ned N. Julian, Jr. Sun Bank Building, Suite 22 Post Office Box 1330 Sanford, FL 32772 Tobe Lev Egan, Lev & Siwica P.O. Box 2231 Orlando, FL 32802 Norman Smith Brinson, Smith & Smith 1201 W. Emmett St. Kissimmee, FL 32741 ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1990. William H. Vogel, Assistant Superintendent Personnel and Administrative Services P.O. Box 1948 Kissimmee, FL 32742-1948 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird General Counsel Commission Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
Findings Of Fact Petitioner was employed by Respondent from August 26, 1986 to November 6, 1986 as a millworker cutting wood for floor joists used in the manufacture of mobile homes. His employment was terminated by Respondent on November 6, 1986 due to his inability to keep up with production. Petitioner timely filed his request for hearing with the Florida Commission on Human Relations. Respondent is an employer within the terms of the Human Rights Act of 1977, Chapter 760, Florida Statutes, and manufactures mobile homes. Petitioner is handicapped by virtue of the amputation of his left arm above the elbow due to a motorcycle accident in 1977. During the approximately two and one-half month period that Petitioner was employed by Respondent, four mobile homes per day were being produced. However, Respondent determined in late October, 1986 to increase production to five mobile homes per day and implemented this increased level of production in November, after Petitioner was terminated. All employees are evaluated within thirty days of their employment by Respondent. Petitioner's thirty day evaluation was conducted on September 23, 1986. On a five point scale, with one being excellent and five being poor, Petitioner received a rating of four in productivity. This is a low average rating. Comments by his group leader on the evaluation form state that Petitioner "needs to get a system down in order to increase productivity." Petitioner was counsel led about the need to increase his productivity at the time of this evaluation. From September 23 to October 24, 1986 Petitioner's productivity did not improve. His group leader at the time he was terminated, Frederick W. Moulder, testified that it took Petitioner 3 1/2 hours to do a job which it took Moulder 1 1/2 to 3 hours to do. Moulder also helped Petitioner finish his work since Moulder regularly finished early and Petitioner never completed his work early, even though production at the time was four homes per day and had not yet been increased to five. On October 24, 1986 Petitioner's supervisor, Tim Powers, prepared a written warning notice which stated that Petitioner "needs to improve his speed to enable him to keep up with his production . . . ." Petitioner refused to sign this warning notice to acknowledge receipt, and instead stated to Powers that his production was fast enough. Petitioner was assigned to work with Charles Rogers on the last day of his employment to show Rogers how the machines he worked with operated. Rogers replaced Petitioner after his termination. There is no evidence that Petitioner ever asked for a reassignment due to production demands of his millworker position. To the contrary, Petitioner continues to feel that he was working fast enough and was meeting production that he felt was sufficient. In any event, there is no evidence that alternative positions were available. During October and November, 1986 Respondent terminated eleven employees for slow or insufficient production, in addition to Petitioner.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued by the Florida Commission on Human Relations dismissing Petitioner's charge of discrimination against Respondent. DONE AND ENTERED this 23rd Day of November, 1987, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1987. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-3407 Rulings on Respondent's Proposed Findings of Fact: 1-3 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 1. Adopted in Finding of Fact 6. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 4. 8-9 Adopted in Finding of Fact 8. 10-11 Rejected as irrelevant and unnecessary. 12 Adopted in Finding of Fact 4. 13-16 Adopted in Finding of Fact 7. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 11. Adopted in Finding of Fact 1. COPIES FURNISHED: Joseph Scott Shepherd 108 Flores Way Auburndale, Florida 33823 Jeffrey W. Bell, Esquire 600 Peachtree At The Circle Building 1275 Peachtree Street, N.E. Atlanta, Georgia 30309 Donald A. Griffin Executive Director 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 Sherry B. Rice, Clerk 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether respondent discharged petitioner on account of his national origin? Whether respondent refused to rehire petitioner on account of his national origin and/or because he filed a complaint alleging discrimination?
Findings Of Fact Born in Uvalde, Texas, petitioner Nicasio Guadalupe Ramos, 42 years old at the time of the hearing, is an American citizen of Hispanic or Mexican race, ancestry, heritage and national origin, who, since 1971, has lived in Defuniak Springs, county seat of Walton County, Florida. Walton County's written personnel policies refer to a "PERSONNEL MANAGEMENT DEPARTMENT" and to a "personnel department . . . under the direction . . . of the personnel director," Petitioner's Exhibit No. 1, but other County employees or county commissioners themselves effectively decide before the Commission officially hires and fires. Responsibility is diffuse. E.g., T.284, 309. Hard Worker Mr. Ramos started work at the Walton County landfill on February 2, 1988, at $3.35 an hour. At first he spent most of his time picking up stray paper, opening the gate for garbage trucks, and "tripping" trailers to unload the garbage. Like other landfill employees, Mr. Ramos worked more or less steadily while the landfill supervisor, Clinton Earl "Frog" Ward was at the landfill. After three or four months, Mr. Ward, Clarence Johnson and John "Big John" Curry began teaching petitioner to use heavy equipment including the excavator or "pan," the "chipper" and the "dozer" ("how to work the blade, how to spread the dirt.") T.237. According to a co-worker, Mr. Ramos performed "different jobs like all the rest of us." T.31. When the sign maker quit, Mr. Ramos was assigned that job. If "somebody was missing on the dump truck or the garbage boxes," (T.240) he filled in there. He never turned down requests to work as a night guard, requests that sometimes came only near the end of a full day's work. He once operated the excavator every day for two successive work weeks. On September 16, 1988, he was promoted to "Landfill Equipment Operator." Petitioner's Exhibit No. 11. He became a "permanent" instead of a "temporary" employee, and his wages increased to $5.15. T.240. A cost of living increase in the fall of 1988 raised his wages to $5.35 an hour. T.258. Unfriendly Overseer With one exception, Mr. Ramos got along well with his fellow workers, none of whom was Hispanic. "Nick was one of the boys." T.44. The exception was James Ellis, the assistant landfill supervisor who had moved to Walton County from Lake Placid, Florida. Mr. Ellis once expressed the opinion that "the only thing [Mexicans are] good for is to knock their heads [off]." T.255, 280. He referred to Mr. Ramos as a "gook," a "dago" (T.85) and "that Mexican." T.96. A "long time before" (T.42) it happened, Billy Franklin Reynolds heard Mr. Ellis "say that he was going to get rid of Nick Ramos as soon as he got in a position to do that." T.42. Another co-worker, Harold Ross Daughtery, heard Mr. Ellis say that "whenever he got to be in charge . . . the first one he would fire would be Mr. Ramos." T.44. Harold Eugene Floyd heard Mr. Ellis say "if he ever got to be boss, he would run [Mr. Ramos] off." T.68, 74. Mr. Curry, who heard Mr. Ellis make such remarks (T.77-8) four or five times (T.82), "didn't figure he was joking." T.83. Unlike Mr. Curry (or Mr. Floyd who was uncertain), Messrs. Reynolds and Daughtery testified that they did not take seriously Mr. Ellis' threat to get Mr. Ramos fired. But, in this regard, events proved Mr. Ellis' sincerity. 1/ Mr. Ellis' used racial or ethnic epithets repeatedly to refer to petitioner. Perhaps that is what led Mr. Ramos to ask him one day why he did not like him. When, in the course of the same conversation, Mr. Ramos asked Mr. Ellis whether he had "ever met any Mexicans that [he] like[d]," (T.256) Mr. Ellis answered abusively, in the negative. If Mr. Ward left Mr. Ellis in charge of the landfill, many of the men loafed inside a shed while Mr. Ramos continued working, doing "the dirty stuff" (T.256) that Mr. Ellis assigned him. On such occasions, Mr. Ramos was often "the only one picking up papers or being in the pit, pulling tires out" (T.255) of garbage. T.86. At hearing, nobody except Mr. Ellis had anything unfavorable to say about Mr. Ramos' job performance. In fact, Mr. Ramos did a good job despite the unfair treatment he received at Mr. Ellis' hands. Petitioner was never disciplined, counseled or warned about his work performance even by Mr. Ellis. T. 251. Highly reliable, he "worked in the tire pit" (T.252) the day after the doctor drained his knee. On another occasion, to avoid infection, he wanted to follow his doctor's advice to take "a couple of days" (T.252) off after he had some "lumps" surgically excised. But, even though he arranged to swap shifts with Dewey Collinsworth, Mr. Ellis refused to allow the exchange, and Mr. Ramos reported for work. Reduction In Force In the summer of 1989, the Walton County Commission decided to reduce expenses by discharging County employees. T.11. It fell to Charles R. "Ronnie" Hudson who, as Walton County's public works director for the last three and a half years, reports directly to the Walton County Commission, and is responsible for (among other things) the County's landfill, to lay off landfill workers. Mr. Hudson asked Mr. Ward, the landfill supervisor, to list four employees he could do without (T.151) and to "make an evaluation on the men . . . [explaining] that there was going to probably be a layoff." T.91. The "next day probably," (T.216) Mr. Ward gave Mr. Hudson a written list and evaluation, Petitioner's Exhibit No. 2, and "told him [he] could get by with three men laid off, but . . . couldn't get by with any more than that." T.220. They talked about the three men Mr. Ward had selected. When Mr. Ward handed Mr. Hudson the list and evaluation, he understood Mr. Hudson to agree that "there needed to be three men laid off" (T.220) instead of four. On one page and a fraction of another (T.153) from a legal pad, Mr. Ward had written: Clarence Hobbs Harold Daughtry Earl Robinson NO COMPLAINT Earl Griggs ON THESE MEN John Mann KEEP THESE MEN Dewey Collinsworth Nick Ramos E.B. Phillips Billy Reynolds Clarence Hobbs truck driver Harold Daughtry operator Earl Robinson operator Earl Griggs clerk and signs maker Dewey Collinsworth clerk and sign maker John Mann operator Nick Ramos operator John Curry truck driver or Lee S. Campbell I need to keep 8 of these men until something changes need men [fo]r now Johnny Peters E.B. Phillips night guards Billy Reynolds I need to keep these men for now if I use another man to replace one of the Night Guards it will short me to[o] bad. We can let 3 men go but any more than that will short me to[o] much when something change[s] I can get by with less men Harold Floyd - operator Not dependable calls in sick a lot and has been siding around on roads and don't give notice until the day he is going to be off and won't do any thing unless we tell him to do something and don't look after the equipment at all John Curry - operator a good worker but keeps confusion between the other men and that causes lot of trouble he has already got one complaint form turned in on him Lawton Mathews - garbage truck he is a good worker and reports to work but he is old enough to retire he is failing fast he works with Clarence Hobbs on Garbage truck Petitioner's Exhibit No. 2. On what may have been the other part of the second or evaluation sheet of Petitioner's Exhibit No. 2, see Appendix A, 2/ Mr. Ward wrote: Lee S. Campbell Garbage truck he has been parked at his house on truck when he was on job it takes him to[o] long to go from box to the other and don't see after his truck to[o] good but he shows up to work good Johnny Peters - Night Guard he has had one complaint form turned in on him becuase there was about 48 or 50 gallons of Fuel went missing out of the DU cat ? on the night he was there Respondent's Exhibit No. 2. Whatever Respondent's Exhibit No. 2's origin, Mr. Ward did not give it to Mr. Hudson. Mr. Ward did not and would not have recommended Mr. Ramos' layoff, even if convinced that four men had to be laid off. If Mr. Hudson had asked him to suggest a fourth candidate for a layoff, Mr. Ward would have suggested John Scott Mann, (T.214) or so he testified at hearing. 3/ Later on, when Mr. Ramos asked, Mr. Ward told him not to worry about being laid off. Having "heard there was a layoff coming" (T.244), Mr. Ramos also spoke to Walton County Commissioner Wilson Holley, and asked him if there were vacancies on the road crew he supervises. Commissioner Holley, who had known Mr. Ramos for several years and had employed him on a road crew for about a week once, when over 16 inches of rain fell and "they needed some help," (T.242), told petitioner "that he had been checking up on [him], that [he] was doing good out there and not to worry about it." T.244. Meanwhile, without discussing the matter with Mr. Ward, Mr. Ellis also prepared and furnished Mr. Hudson a list of names and evaluations. Three of the evaluations had a familiar ring but the fourth was all Mr. Ellis' work: Harold Floyd: Not dependable. Days out of work, and when he is out, he does so without notice. In my opinion when he is at work, he don't give 100%. His work ability if fair. John Curry: He keeps confusion among the men and also between the foreman and the asst. foreman. He has also been written up once concerning the matter. His work ability is good. Nick Ramos: Was hired on as a laborer, then transferred to chipping machine, then to sign machine. He's been on the sign machine four weeks now, and he's not catching on to it very fast. I have tried him on the equipment, and he didn't catch on to it either. His work ability is fair. Lawton Mathews: He is eligible for retirement. He has talked about retiring. His work ability is fair. We may talk to him about cutting back and he may go ahead and retire. Petitioner's Exhibit No. 3. Mr. Hudson recommended that the Walton County Commission let all four men go. Mr. Ramos did not stop to pay for his coffee on his way out of the restaurant to see Ronnie Bell the morning the news broke. Like other men who were fired, Mr. Ramos first learned about the decision when he read about it in the newspaper on July 12, 1991. Not Rehired Mr. Bell, Walton County's administrative supervisor, had nothing to do with the decision to discharge Mr. Ramos, and told him as much. Mr. Ramos then left Mr. Bell's office in the courthouse annex for the landfill where Mr. Ward assured him he had not recommended his layoff. When he tried to talk to Mr. Ellis about it, "he walked off and he mumbled something." T.247. Mr. Ramos and the three other landfill employees laid off at the same time received official notification in letters dated July 13, 1989, that their employment would end on July 31, 1989. Mr. Mathews decided to retire. The letter to Mr. Ramos stated: Please be advised that if any openings become available in the future for which you are qualified, you will be one of the first considered to fill that opening. Petitioner's Exhibit No. 5. Mr. Ramos again sought out Commissioner Holley to ask for work, and also approached Commissioner W. F. "Rabbit" Miles, asking him if work was available. Some weeks after the layoff, Commissioner Holley telephoned with news of an opening for a night guard at the landfill. The next day, petitioner spoke first to Mr. Bell then to Mr. Hudson, to whom Mr. Bell referred him, about the position. Mr. Hudson said he knew nothing about an opening, but suggested Mr. Ramos check back. Mr. Ramos returned that afternoon, the next morning and every morning thereafter "for about a week." T.161, 247. Each time Mr. Hudson professed ignorance of the job vacancy, until the last time, when he told Mr. Ramos that "they had done hired Harold." T.249. Not only was Mr. Hudson in fact aware of the opening, he was actively recruiting to fill it. He offered the job to John Curry (T.184), who turned it down because he had found other, better-paying work. "Why don't you call Nick?" Mr. Curry asked Mr. Hudson at the time. "I wouldn't hire him back," was Mr. Hudson's answer. T.87. Harold Floyd got the job. T.163. Complaint Filed Mr. Ramos retained a lawyer who wrote the Walton County Commission on August 4, 1989, requesting petitioner's reinstatement, or in the alternative, a grievance hearing. Petitioner's Exhibit No. 9. (The request was never honored, although a like request by a non-Hispanic employee was.) Harold Burkett began work as a night guard on September 13, 1989. Petitioner's Exhibit No. 14. On November 8, 1989, Mr. Ramos filed a complaint with the Florida Commission on Human Relations. The number of "personnel at the landfill now [not counting prisoners assigned to work there after County employees were laid off (T.270)] is roughly fifty per cent of what it was at the time of Nick and them's layoff." T.175 But Walton County has "replaced, . . . transferred . . . [and] hired," id., employees at the landfill since then, rehiring Harold Floyd temporarily and adding Harold Burkett, Danny Burgess, Timmy Ray Jones and Russell Floyd, all "white Americans" given jobs for which petitioner is qualified, or would have been (T.257) but for his wrongful termination. Messrs. Burgess, Jones and Russell Floyd began work after County officials learned that Mr. Ramos had complained to the Florida Commission on Human Relations. Asked why petitioner was not offered the job given to Mr. Burgess, who was hired as an equipment operator, Mr. Hudson testified that there was no reason "that I know of, you know, other than - - well, no one ever said anything about Nick, you know, being interested . . . ." T.172. In fact, Mr. Hudson was well aware that petitioner wanted a job with Walton County government, as were Mr. Ellis, who succeeded Mr. Ward as landfill supervisor, Mr. Bell and more than one county commissioner. Asked why petitioner was not offered the job Mr. Russell Floyd was given, Mr. Hudson said he knew of no reason. T.173. Commissioner Miles told Mr. Ramos 4/ that Commissioner Sam Pridgen "wouldn't hire [him] back . . . since [he] had filed a complaint against the County." T.284-5. Commissioner Holley testified, "Nick has a record of suing people that he's worked for and that weighs heavy on people's mind, I would imagine." T.310. (No Walton County Commissioner ever said anything to petitioner about his race. T.285.) Lost Wages County employees got a four percent raise on October 1, 1989, another four percent raise on October 1, 1990, and a three percent raise on October 1, 1991. The County made unspecified contributions to the Florida Retirement System at all pertinent times. For single employees, the County paid monthly insurance premiums of $120.10 in 1989, $123.66 in 1990 and $132.12 ($126.62 + $5.50) in 1991. Petitioner's Exhibit No. 3. Assuming no promotions and only cost of living raises, if petitioner had continued working for the County in the same position through the date of the final hearing, he would have received pay and insurance benefits totalling $33,015.60. Instead, after Mr. Ramos lost his job, he mowed grass, cut trees down, painted houses, washed cars and did other odd jobs to make what money he could. T.251, 282. He earned about $2,000 from such jobs in the last five months of 1989. His 1990 income was more than $2,800 but less than $2,900; and his 1991 income was "three thousand." T.282. He has been unable to find regular employment, but has "never been on food stamps or any kind of assistance." T.251. Before the final hearing began, one of petitioner's two attorneys, Mary Koch Polson, had reasonably expended 14.95 hours, Petitioner's Exhibit No. 16, pursuing this claim, and costs aggregating $234.49 had reasonably been incurred. Petitioner's Exhibit No. 17. Ms. Polson bills her time at $125 an hour, and the reasonableness of this rate was not called into question. (Mr. Ramos paid his first attorney $1500, but the reasonableness of this fee was not stipulated and has not been established by evidence.) Aside from the first attorney's fees, prehearing costs and fees aggregate $1868.75.
Recommendation It is, accordingly, RECOMMENDED: That the FCHR enter a final order (a) directing respondent to rehire petitioner as soon as an opening arises that he is qualified to fill that pays at least $5.95 an hour plus benefits; (b) awarding back wages (net of offsets) in the amount of twenty-five thousand, two hundred fifteen dollars and fifty- nine cents ($25,215.59) plus interest; (c) awarding costs and fees in the amount of eighteen hundred sixty-eight dollars and seventy-five cents ($18,868.75); and (d) awarding such additional amounts as are necessary to compensate him for lost wages including interest until he returns to work with the County or spurns a suitable offer, plus attorney's fees and costs reasonably incurred since the final hearing began. DONE and ENTERED this 24th day of April, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1992.
Findings Of Fact Martin Marietta Corporation is a multi-state, multi- national defense contractor. Respondent functions as one of its primary divisions/operations in Orlando, Florida. The Petitioner, Frank Maggio was born on April 3, 1914. Petitioner was employed by Respondent on June 16, 1981 in the position of Quality Control Fabrication Inspector A (Fate A Inspector) at Respondent's Orlando facility. Respondent's primary role within the overall corporate operation is the production of highly sophisticated, high-tech missile systems. The development and production of these weapons is maintained under tight security due to the involvement of the national defense effort. Because of Respondent's participation in military and defense programs, the manufacturing process is constantly reviewed and critically inspected by governmental agencies. The Respondent utilizes "state-of-the-art" machines and equipment on its advanced, technical and highly complex defense projects. Petitioner's responsibilities as a Fab A Inspector included checking the first piece of hardware off of the machines, qualifying the tape that runs the machine with his stamp and checking the dimensions of the first layout. This procedure is referred to as a set-up and, once "bought off" "accepted) by the "A" inspector, it establishes the critical reference point or benchmark for the sophisticated, state-of- the-art-manufacturing processes of the Respondent. Respondent's operations involve the manufacture or production of weaponry or weapons systems that require tolerances The Petitioner was given a warning that another similar incident might result in further disciplinary action, up to and including discharge and specifications which are not found or even known in consumer oriented production plants. Certain pieces of equipment used will drill and measure within one one-thousandth of an inch (1/1,000"). The integrity of the highly integrated and closely coordinated production procedures depends upon the correct initial setting, which "commits" the production process. If the initial setting is off or in error, nonconforming parts or items will be manufactured. If the nonconforming parts cannot be reworked or brought into tolerances, they are regarded as scrap and represent a loss to the company. The Petitioner functioned as the only Fab A Inspector on the second shift with very little, if any, supervision. "B" and "C" Inspectors were present, but not performing in a capacity that could provide a backup for Petitioner. In February, 1983, Petitioner functioned under the direct supervision of Charles Holley, Chief Quality Inspector. Although both men worked on the second shift, Petitioner performed as a Fab A inspector and was responsible for making the initial, critical decisions on "set-up" tapes for the second shift production operations. On April 5, 1983, while on his second shift assignment, Petitioner "bought off" on a first piece inspection in order to qualify a newly released tape. On April 7, 1983, the first shift rejected a piece on that particular tape because the dimensions were out of tolerance. Subsequently, after a second inspection of the piece by the senior tool inspector, it was determined that the part was non-conforming and out of tolerance. This error lead to the production of approximately 180 pieces of "scrap" and a loss of about $100,000. As a result of this incident, Mr. Holley, Petitioner's superior, completed a Significant Incident Report (S.I.R.) dated April 18, 1983, which was placed in Petitioner's personnel file. Pursuant to routine procedure, Petitioner was counseled about the S.I.R. and given an opportunity to respond. The Petitioner was given a warning that another similar incident might result in furhter disciplinary action, up to and including discharge. Following the April, 1983 incident, Mr. Holley felt that Petitioner's work performance began to decline. Mr. Holley was dissatisfied because Petitioner often used scales for measurements at times when Mr. Holley believed that calipers should have been used. In addition, Petitioner used his lunch break to take naps, and several times he was late returning to work. Sometime in late September or early October, the Petitioner approved a piece of hardware similar to that involved in the April, 1983 incident and it too was rejected for being out of tolerance. Following this incident, Mr. Holley once again went to the Personnel and Industrial Relations Department (S.I.R.) attempting to have another S.I.R. placed in Petitioner's file. However, the management in P.I.R. did not allow the report to be placed in Petitioner's file. Subsequently, Petitioner was not reprimanded or otherwise disciplined and no official record was kept of this incident. During February, 1984, a "set-up" error by Petitioner on a secret laser tracking missile project know as "Hell-Fire" caused unusable parts to be manufactured and a financial loss to Respondent. Prior to submitting an S.I.R., Mr. Holley met with management in the Personnel and Industrial Relations Department to discuss the Petitioner's situation. It was at this time that Mr. Thomas Mallis, supervisor of employee relations, seized upon the idea of Petitioner's upcoming 70th birthday on April 3, 1984 as a way in which to be rid of Petitioner. Mr. Mallis reasoned that rather than attempting to terminate Petitioner for cause, Petitioner's 70th birthday would provide a point where Petitioner could be "gracefully retired" under Martin Marietta Corporation's corporate retirement policy. Martin Marietta Corporation has a nationwide corporate retirement which requires retirement at age 70. Generally, the company does not enforce this requirement at facilities which are located in states where such a policy violates age discrimination laws. Likewise, Respondent does not generally enforce the corporate wide retirement policy at its Orlando facility because it is subject to Florida state law concerning age discrimination. As of April 4, 1984, Respondent employed approximately 11,000 employees. Approximately 5,017 of those employees were 40 years of age and a small number were over 70. Although the company's age 70 retirement policy is not generally enforced at Respondent's Orlando facility, the retirement plans provided by the company and the benefits package negotiated by the union with the company for retirement pay focus on age 70 as the point at which retirement benefits mature or "top out." After age 70, no further benefits accrue under the retirement plan. Thus, as a matter of established practice and/or expectation on the part of the employees, virtually all workers have retired or plan to retire on or before their 70th birthday. Therefore, Mr. Mallis believed that having respondent "retire" at age 70 would be an easy non-confrontational way to terminate Petitioner's employment. As a member of the United Aerospace Workers local bargaining unit, Petitioner would have had the right to object and file a grievance concerning any proposed termination for cause by Respondent. By "retiring" Petitioner under the corporate policy, Mr. Mallis believed that a "bitter challenge" under the union's often cumbersome grievance/arbitration procedures could be short-circuited. Under the Respondent's progressive discipline system, generally employees are given 3 to 5 S.I.R.'s or written warnings before any stronger action is taken. At the time of his involuntary retirement by Respondent on April 4, 1984, the Petitioner was not vested under the company's retirement program and was not entitled to any benefits thereunder.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that a Final Order be entered finding that the Respondent is guilty of a violation of Section 760.10, Florida Statutes and awarding the Petitioner attorney's fees. It is further RECOMMENDED that the Petitioner be reinstated to his former position. The Respondent may seek to institute proceedings within 30 days from the date of the final order to terminate Petitioner for cause based on his work performance up to April 4, 1984. If the respondent is barred from attempting to terminate Petitioner for cause based on those past incidents for whatever reason, if Respondent chooses not to institute termination proceedings, or if the Respondent successfully defends any termination proceedings, then the Petitioner shall be entitled to back pay for the statutory maximum of two years. DONE and ORDERED this 18th day of August, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1986. COPIES FURNISHED: Joseph Egan, Jr., Esquire Post Office Box 2231 Orlando, Florida 32802 Thomas C. Garwood, Jr., Esquire 57 West Pine Street, Suite 202 Orlando, Florida 32801 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner (None submitted) Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 2. Adopted in Findings of Fact 1 and 3. Partially adopted in Findings of Fact 14 and 16. Matters not contained therein are rejected as misleading. Partially adopted in Finding of Fact 15. Matters not contained therein are rejected as misleading. Adopted in Finding of Fact 5. Adopted in Findings of Fact 4, 5, and 6. Adopted in Finding of Fact 7,/ Partially adopted in Finding of Fact 8. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 9. Matters not contained therein are rejected as subordinate. Rejected as subordinate. Partially adopted in Findings of Fact 10 and 11. Matters not contained therein are rejected as unnecessary and subordinate. Partially adopted in Findings of Fact 13, 14, 16, and 17. Matters not contained therein are rejected as not supported by competent substantial evidence and/or subordinate. In particular, the finding that the "Petitioner under normal circumstances, should have been discharged for his pattern of poor performance and the associated financial impact upon the company" is rejected as not supported by competent substantial evidence. Partially adopted in Finding of Fact 19. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Rejected as argumentative and/or subordinate. ================================================================ =
Findings Of Fact Petitioner McGowan was dismissed from his position as State Trooper by Respondent by letter dated 31 January 1978 (Composite Exhibit 1) which recites that the action in dismissing Petitioner is based upon Petitioner's violation of General Order No. 43 2.1C, Insubordination, third offense, and Rule 22A- 7.10(7)(a) Florida Administrative Code. McGowan was advised of his right to file a grievance pursuant to the agreement between Florida and the PBA or appeal the dismissal to the Career Service System. McGowan opted for the former and during the course of that hearing raised the issue before the Arbitrator that G.O.'s 40 and 43 were rules and invalid because not promulgated as required by Chapter 120 Florida Statutes. Respondent contested the jurisdiction of the Arbitrator to resolve this question, the parties stipulated that this issue be submitted to DOAH for determination, and the Petition here involved was filed. G.O. 40 relates to physical fitness of members of the Florida Highway Patrol and, after pointing out that weight control is an important part of physical fitness, provides in pertinent part: Members shall maintain control of their weight in relation to their height, age, and body build. There are several charts and tables available indicating the ideal or desirable weight based on the above factors. The maximum allowable weight by height for all ages and body builds for the members of the Florida Highway Patrol shall be those used by the Federal Bureau of Investigation. See G.O. 41, Appendix A. Exception to the maximum limits may be made for members who have a large amount of muscle weight (without excessive fat) and a physician certifies that the individual is not overweight due to excess fat. Failure to comply with the maximum weight limits will result in a low rating for personal appearance on the employee evaluation form and disciplinary action may be taken for violation of this regulation, as provided in G.O. 43. G.O. 43 contains guidelines for establishing standards of disciplinary actions and for appeals to the Career Service Commission. Guidelines for disciplinary actions are contained in Section 2.1 of G.O. 43 which provides in pertinent part: C. Guidelines: The following guidelines are established to insure that all supervisors are being reasonably consistent in taking disciplinary actions against employees involved in similar situations. These guidelines may be expanded or modified from time to time to meet changing conditions and to make their use more effective. They shall be followed generally; however, it is realized that some of the offenses and deficiencies will be more frequent in some cases, and the supervisor may take or recommend another course of action. In no case will these guidelines be binding on the Department as the disciplinary action it shall take. G.O. 43 goes on to provide in the recommended table of Disciplinary Actions following the above quoted provision that for the third offense of insubordination the offender may be dismissed. By letter dated August 10, 1976 (Composite Exhibit 1) Petitioner was advised by Respondent that he was 60 pounds overweight, that his doctor had stated Petitioner's back problem is greatly aggravated and brought about by the overweight problem, and he was directed to make a concerted effort to reduce weight. By letter dated April 7, 1977 (Composite Exhibit 1), Petitioner was suspended from duty for 8 hours without pay for insubordination based upon failure to lose weight as directed in the August 10 letter. By letter dated September 28, 1977 (Composite Exhibit 1) Petitioner was suspended from duty for 16 hours without pay for insubordination for not conforming to weight regulations. By letter dated January 31, 1977 (Composite Exhibit 1) Petitioner was dismissed for the third offense of Insubordination for not conforming to weight regulations. On one or more occasions petitioner was granted sick leave by reason of back problems associated with being overweight.
The Issue The issue is whether Respondent discriminated against Petitioner Maia Fisher (Petitioner) on the basis of her gender and retaliated against Petitioner because of her pregnancy in violation of Hillsborough County Human Rights Ordinance 00-37.
Findings Of Fact Petitioner is an aggrieved person within the meaning of Hillsborough County Human Rights Ordinance 00-37, Section 16. Petitioner is a female and filed a complaint with the Board alleging that Respondent engaged in gender discrimination and retaliation after Petitioner disclosed her pregnancy. Respondent is an employer within the meaning of Section 16. Respondent operates a printing business. Respondent is a corporation wholly-owned by Mr. John Disbrow and Ms. Angela Disbrow. Mr. and Ms. Disbrow are the principal operators and decision-makers. Respondent was Petitioner's employer. Petitioner was an employee during the relevant period. Petitioner began her employment with Respondent sometime in March 2008. Respondent terminated Petitioner’s employment on July 28, 2008. Petitioner discovered in June 2008 that she was pregnant. Petitioner informed Mr. and Ms. Disbrow. Mr. Disbrow instructed Mr. Alfred Buranda to terminate Petitioner’s employment sometime in July 2008. Mr. Buranda was the head of human resources for Respondent at that time, but has since moved on to other employment. Mr. Buranda refused to terminate Petitioner’s employment. Mr. Buranda conducted a teleconference with Petitioner in his office on July 28, 2009. Mr. Buranda telephoned Mr. and Ms. Disbrow on his office speaker phone with Petitioner present in his office. Mr. and Ms. Disbrow explained to Petitioner by speaker phone that the pregnancy was the reason for the termination of employment. Respondent owes Petitioner unpaid compensation in the total amount of $2,820.00. Respondent owes Petitioner back wages for unpaid overtime equal to $720.00. Respondent owes Petitioner unpaid commissions equal to $2,100.00. Back wages in the amount of $720.00 is the product of multiplying an hourly overtime rate of $12.00 by the total of uncompensated overtime equal to 60 hours. Unpaid commissions of $2,100.00 are composed of two parts. Petitioner made five sales under $500.00 for which Respondent owes a commission of $100.00 for each sale and a total of $500.00 for all five sales. Petitioner made eight sales over $500.00 for which Respondent owes a commission of $200.00 for each sale and a total of $1,600.00 for all eight sales. Petitioner has been living in a shelter for battered women. Contact and service on Petitioner has been problematic. The Board may require an investigator or other means to provide Petitioner with actual notice of the final order in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the final order issued in this proceeding should find that Respondent is guilty of discrimination and retaliation on the basis of gender in violation of Hillsborough County Human Rights Ordinance 00-37 and require Respondent and its principals to pay Petitioner $2,820.00 in unpaid compensation. DONE AND ENTERED this 8th day of December, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 8th day of December, 2009. COPIES FURNISHED: Maia Fischer 2302 48th Avenue West Bradenton, Florida 34207 Camille Blake, EEO Manager Hillsborough County Post Office Box 1110 Tampa, Florida 33601-1101 John Disbrow ADCO Printing 8412 Sabal Industrial Boulevard Tampa, Florida 33619
