Findings Of Fact Petitioner, Clarence E. Burtoft, was hired by respondent, Southern Linen Service, in November, 1982 as assistant general manager at its Daytona Beach plant. Prior to this employment, he had back surgery performed in Augusta, Georgia but the effects of such surgery did not interfere with his job duties. After being on the job for approximately three days, he was told by the regional manager that labor costs needed to be reduced, and that one employee must be laid off. He was also told to shift two female employees from one department to another. There is a dispute between the parties as to what the actual instructions were, and whether they were in fact carried out by Burtoft. Nonetheless, the employer construed Burtoft's actions as not complying with its instructions, and Burtoft was accordingly terminated the following day and told he was not the right man for the job. The back surgery was not related in any respect to the termination and Burtoft himself acknowledged as much. Burtoft's complaint is that his job records at Southern Linen Service contain a notation that he was fired for refusing to follow instructions. He only wants that adverse information removed. 1/ He is not contending that his employer unlawfully discriminated against him, or requesting that his job be reinstated with full back pay. Indeed, it was only after he visited the State employment office that he filed this complaint upon that office's encouragement. At no time was he ever told by any Florida Commission on Human Relations representative that its jurisdiction extended only over certain employment practices, and that any complaint must necessarily be founded on some form of discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition for relief filed by Clarence E. Burtoft be DENIED. DONE and ENTERED this 2nd day of March, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER 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 2nd day of March, 1984.
Findings Of Fact Petitioner was a lead operator on the first shift of the data entry section of Respondent company. Mr. John Goolsby was also a lead operator but on the second shift in the data entry section. Petitioner was discharged due to elimination of the position of lead operator and Mr. Goolsby was not. During the period encompassing the elimination of Petitioner's job, Respondent reduced its staff from 73 to 57 people and the data entry staff was reduced from 12 to less than 8 people. The decision as to which lead operator in the data entry section would be released from employment was based upon a decision to keep the most productive employee on the basis of quality and quantity of work. Although both the Petitioner and Mr. Goolsby were satisfactory employees, the most productive individual was identified through a series of evaluations by interviewing management personnel to Mr. Christman, Respondent's Executive Vice-President. Probably the most significant- input in the decision-making process was from Sandra Howell, immediate supervisor of both Petitioner and Goolsby, and the tabulations and comparisons of data were done by Walter E. Wilfong, Operations Manager. They all identified John Goolsby as the most productive individual and the decision to release Petitioner was made by Mr. Christman. At the time she was released, the company had no alternative position to offer Petitioner. She has since been offered reemployment in a different position. Petitioner was unable to establish that in making their recommendations to Mr. Christman either of the middle managers gave special or undue consideration to Mr. Goolsby's school schedule. Petitioner never received any written complaints or warnings or reprimands about her work performance and it was unrebutted that her job performance was satisfactory. Petitioner testified that the comparison of production between herself and Mr. Goolsby was invalid because Mr. Goolsby worked the night shift and Petitioner worked the day shift. Witnesses for the Respondent conceded that the night shift was generally not as productive as the day shift. However, the immediate supervisor of both the Petitioner and Mr. Goolsby both before and Mr. Goolsby after Petitioner's termination testified that Mr. Goolsby's work quality and quantity was superior to that of the Petitioner. This testimony was unrebutted. In addition, it was unrebutted that Mr. Goolsby had been nominated for company-wide awards for his quality as an employee on several occasions both before and after the Petitioner's termination and the Petitioner had never been nominated. Although there is some indication in Mr. Wilfong's testimony that Mr. Goolsby had the "edge" with him because Wilfong wanted someone who could communicate with Wilfong for liaison between various shifts, the evidence falls short of establishing this consideration was a deciding factor or that any edge was given Goolsby in the evaluation reports. Further, Wilfong attempted to compensate for Goolsby's showing greater productivity due to the "less people- more work" element of the night shift by reviewing Petitioner's productivity records from then she had previously been on the night shift, which did not compare favorably with Goolsby's for quantity. There is no competent evidence that Respondent terminated Petitioner on the basis of her gender, female, by the ruse of eliminating her position. Further, at the date of formal hearing, Mr. Goolsby's supervisor remained female (Sandra Howell) and there are 6 female/6 male supervisors and a higher female to male ratio of the total 57 retained employees.
Recommendation It is recommended that the Human Relations Commission enter a final order dismissing the Petition/Complaint herein. DONE AND ENTERED this 4th day of November, 1986, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2866 All of the Respondent's Proposed Findings of Fact are accepted. All are adopted, as modified to conform more closely to the record in this cause. COPIES FURNISHED: Ms. Terri Tibble 3040 Aloma Avenue, Apt. J-9 Winter Park, Florida 32791 Thomas R. Pepplar, Esquire Graham, Clark, Pohl & Jones 369 New York Avenue Post Office Drawer 1690 Winter Park, Florida 32790 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32299-1570
The Issue Whether Respondent is guilty of an unlawful employment practice, to wit: constructively discharging Petitioner on the basis of handicap discrimination without reasonable accommodation.
Findings Of Fact Respondent Lake County Sheriff's Office (LCSO), constitutes an "employer" as defined in Chapter 760, Florida Statutes. Chris Daniels took office as the elected Sheriff of Lake County, Florida, in January 2005. He had been with Respondent LCSO for 18 years. The sheriff is the chief law enforcement officer for Lake County; operates the Lake County Jail for the Board of County Commissioners; and manages security and bailiffs for the Lake County Courthouse. His responsibilities also include providing final approval for staffing levels at the Lake County Jail. In 2005, Petitioner had been employed as a detention officer at the Lake County Jail for 16 years. He is a certified corrections officer. Corrections/detention officers assigned to the inmate housing/security areas at the jail work 12-hour shifts from 6:00 a.m. to 6:00 p.m. They are assigned to either "A," "B," "C," or "D" Squads. The squads rotate from day to night, and from night to day, shifts every four months. Officers assigned to inmate security are not normally assigned permanent shifts. Petitioner was such an officer. Working on rotating shifts is an essential function of working in the inmate housing area of the jail, as detailed in the job description for corrections officers as follows: . . . ensures a timely transmission of pertinent information and materials to other correctional personnel assigned to the same and/or the next shift. Petitioner understood at the beginning of his employment with LCSO that he was expected to work rotating shifts, and he did, in fact, work rotating shifts until 1996. Other corrections officers assigned to laundry, the jail kitchen, inmate transportation and other administrative functions permanently work days from 8:30 a.m. to 5:00 p.m. Monday through Friday, without shift changes. Such positions with permanent day shifts have become available over the years. However, Petitioner last sought such a position in 1997 or 1998. Petitioner was working as a detention/corrections officer for Respondent when he was diagnosed with diabetes in 1996. Petitioner's diabetes causes tingling in his hands and feet, impotence, floaters in his eyes, dizziness, profuse sweating, frequent urination, a weakening immune system and occasional outbreaks of boils. Petitioner’s Exhibit 4 reveals that he takes multiple oral medications and that each kind of medication ideally should be taken at the same time of day, each day, but there are instructions on how to compensate if a dose is missed. With the exception of working rotating shifts, Petitioner was able at all times to perform the essential functions of a corrections officer for Respondent. The Veterans’ Administration pays Petitioner $218.00 per month because it believes his diabetes was induced by Agent Orange he encountered while in Viet Nam. At Petitioner's request, Respondent allowed Petitioner to work a permanent day shift from 1996 to June 30, 2005, when he retired. Petitioner testified he has worked in the past as a military medic and as a physician's assistant in correction facilities, so he is knowledgeable about the horrific, and sometimes fatal, effects of uncontrolled diabetes. Petitioner expected to live a normal life so long as he controlled his diabetes. Petitioner claims to have explained over the years to all his superiors that he needed to consistently take his medications at the same time of day. However, he did not offer any evidence in the present proceeding to explain why he could not take his medications consistently on a 24-hour clock, e.g. during nights, as opposed to during days. There have been periods when he experienced problems with his diabetes while working a permanent day shift. His medications have been adjusted several times since 1996. All witnesses agreed that Petitioner spent 18 months alone in a permanent day position in the third-floor control room. Petitioner claimed that he was assigned this long period of duty on the third-floor as “punishment” for being allowed to permanently work a day shift. He maintained, without any supporting evidence, that being assigned to a single position for more than a few months this way was unusual. However, although Respondent assigned Petitioner to the third-floor control room alone for a duration of 18 months, Respondent also assigned a non-diabetic employee alone there for about one year. Petitioner speculated, again without any supporting evidence, that the non-diabetic employee was also being punished for something. Both Petitioner and the non-diabetic employee experienced being confined to the control room without a restroom. Having to urinate when no other officer could stand- in for them created a hardship on both men. On one occasion, the non-diabetic employee urinated in a garbage can. At the date of hearing, Gary Borders had been with LCSO for 17 years and served as its Chief Deputy.1/ On the date of hearing, and at all times material, Chief Borders’ duties included responsibility for the day-to-day operations of the Lake County Jail and the Lake County Courthouse and for training. Petitioner claims to have frequently protested to many superiors about not having a restroom on the third-floor and not being allowed to bring food in for his diabetes. He also claimed to have specifically asked Chief Borders to be transferred from service on the third-floor, but Chief Borders did not recall more than one vague conversation concerning Petitioner’s complaint about how long Petitioner had been posted there and that he had told Petitioner he, Borders, had no problem with Petitioner’s being transferred elsewhere in the jail. It is not clear when, precisely, this 18 month-period occurred. Because Petitioner was on a permanent day shift from 1996-1997 to 2005 (eight years), and Petitioner testified his 18-month posting on the third-floor was "over" and was from 2003-2005, his time on the third-floor was not affirmatively shown to have occurred within the 365 days immediately preceding the filing of his Charge of Discrimination with FCHR on December 8, 2005. When Sheriff Daniels took office in January 2005, Chief Borders advised him that because the date for the squads to rotate shifts (see Finding of Fact 4) was due to occur on May 1, 2005, the number of persons assigned to permanent shifts was affecting Chief Borders' ability to make assignments. When corrections officers working in inmate housing of the jail are assigned permanent shifts, staff shortages can occur on other shifts. Chief Borders further advised the new sheriff that he, Borders, was receiving additional requests for permanent shifts. While discussing why there were so many employees assigned permanent shifts, and not subject to the standard four months' rollover of the squads from day-to-night and night-to- day shifts, Sheriff Daniels and Chief Borders concluded that LCSO needed a formal method of differentiating between those employees who genuinely needed a permanent day or night shift and those employees who merely wanted a permanent shift assignment. To determine which employees needed a permanent shift as an accommodation for their specific condition or situation, Sheriff Daniels instructed Chief Borders to send a memorandum to the 12-14 employees assigned to permanent shifts, requiring those employees to provide medical evidence of their need for a permanent shift assignment. On March 25, 2005, Chief Borders sent all employees assigned to permanent shifts the following memorandum: There is a requirement for rotating shift work for Detention Deputies, Auxiliary Detention Deputies and Deputy Sheriffs at the Lake County Sheriff's Office. Please ask your physician to review the Job Description for Detention Deputy (or Auxiliary) and ask if you can perform all the job requirements. If you are cross- sworn, also have your physician review the Deputy Sheriff job description and ask if you can perform all of the job requirements for that position. When your job description(s) have been reviewed, bring your physician's letter and all related supporting material (diagnosis, prognosis, treatment notes, test results and any other documents that would assist the agency in evaluating your request) to me so that our agency physician can review them for possible accommodation. Because shift changes will take place on May 1, 2005, you must have your documents to me no later than 5:00 P.M. on Friday, April 15, 2005. If I do not hear back from you by Friday, April 15, 2005 at 5:00 P.M., I will take it that you are available for rotating shift work assignment. The process envisioned by the Sheriff and Chief was that when an employee, who wanted an accommodation, provided the requested information from his own treating physician, that employee's supervisor would pass the information along to LCSO's physician, and an interactive process would begin. As of the date of hearing, LCSO had employees working in modified jobs, including job sharing, and an accommodation had been made for a person in a wheelchair. In 2005, LCSO also fully intended to accommodate those employees who provided proof from their physicians of their need for other accommodations. Petitioner testified that he did not want to repeatedly roll over from day-to-night shifts every four months because past experience had taught him that each time his shift changed, it took him at least two weeks to properly regulate and space his intake of food, liquids, and medications, in such a way that his diabetes was controlled and he felt alert and capable. In response to receiving the March 25, 2005, memorandum, Petitioner presented Chief Borders with a note from Petitioner's primary physician, Dr. Gelin, written on a prescription pad, stating: brittle diabetic pt needs to work day shift only. Petitioner did not present any other written information in response to Respondent LCSO’s detailed request. Petitioner testified that he discussed Dr. Gelin’s note with Chief Borders to the extent that he told Borders that if anyone on behalf of LCSO phoned Dr. Gelin, Dr. Gelin would discuss or fax further information to that person; Chief Borders does not recall this conversation. Chief Borders is a diabetic himself, but he had never heard the term, "brittle diabetic." It is Petitioner's position that because, in Dr. Gelin's private conversations with Petitioner, Dr. Gelin had told Petitioner that “any doctor” should know the sequelae and effects of "brittle diabetes," all Petitioner’s LCSO superiors needed to do was pass on Dr. Gelin’s prescription note to LCSO’s consulting physician in order for Petitioner to be accommodated. Petitioner believed it was his superiors' duty to make Dr. Gelin submit the written materials they wanted. Sheriff Daniels generally distrusted the information that physicians submitted on prescription pads, because, in his experience, when the employee or physician was pressed for details, there was often no supporting information forthcoming. Therefore, he did not believe the information on Petitioner's prescription slip, as described to him by Chief Borders, was sufficient to begin the interactive process with LCSO’s Human Resources Department or its consulting physician. Neither Sheriff Daniels nor Chief Borders presented Petitioner's prescription slip to them. It was decided between the Sheriff and the Chief, that Chief Borders would try to get more detailed information from Petitioner. Petitioner testified that he tried to get more information from his primary physician, Dr. Gelin, but Dr. Gelin would not provide in writing the detailed information requested by LCSO’s March 25, 2005, memorandum. On April 22, 2005, Chief Borders wrote Petitioner that Dr. Gelin's prescription pad note was insufficient and that Petitioner would not be reassigned to a permanent day shift position, stating: I have reviewed the information provided by your physician and find there is insufficient evidence presented to justify a permanent shift assignment. As such, your request is denied. You will rotate day/nights with your assigned shift during the normal rotation. None of the 12-14 employees assigned to permanent shifts, had submitted the requested information, so all of them, including Petitioner, were assigned to a rotating shift. The Sheriff and Chief received no report of complaints from any employee. However, on April 26, 2005, Petitioner received a memo stating that effective May 4, 2005, he would be assigned to "C" squad. "A" Squad, where Petitioner was then assigned, was scheduled to rotate from day shift to night shift on May 1, 2005, and "C" Squad was due to rotate from the night shift to the day shift on the same date. Accordingly, LCSO’s purpose in transferring Petitioner to “C” Squad was to provide him with four more months (until September 1, 2005) to obtain the required medical opinion and detailed supporting documentation from his treating physician. The "A" to "C" Squad change also would have allowed Petitioner to remain on a day shift, without interruption, and allow him an additional four months in which to gather medical information from any appropriate source to support his request to indefinitely remain on a permanent day shift. In fact, Petitioner was regularly seeing Dr. Flores, at the Veterans’ Administration, as well as Dr. Gelin. Dr. Flores coordinated oversight of Petitioner's medical condition with Dr. Gelin, who is Petitioner's private physician. However, Petitioner did not approach Dr. Flores, and he did not go back to Dr. Gelin, until after Petitioner retired. Petitioner had hoped to work another six years before retiring, but on May 13, 2005, while still assigned to the day shift, Petitioner submitted a letter of resignation, hoping that someone in his chain of command would try to talk him out of leaving. He expected his supervisors to "workout" a permanent day shift for him, instead of permitting him to retire.2/ Petitioner's resignation letter stated: Regrettable [sic] I am submitting my letter of resignation effective June 30, 2005. Your recent decision denying me permission to remain on the day shift in spite of my doctor's recommendation to remain on the day shift because of my medical condition (brittle diabetic) has forced me to retire earlier than I had planned to. There is no other way that I can regulate my medication switching from days to nights . . . Respondent never required Petitioner to work the night shift, and he never did work the night shift after 1996-1997. Petitioner gave notice of his retirement in May 2005, rather than work in "C" Squad on the day shift until September 1, 2005, or continue to try to obtain additional medical information that would allow him to indefinitely remain on a permanent day shift. Petitioner elected to retire effective June 30, 2005, because, upon advice of “Retirement” he believed it was more financially beneficial for him to retire in June 2005, rather than wait until January 2006.3/ Since January 1, 2006, Petitioner has been employed managing real property in Florida and Costa Rica. Petitioner testified that when he retired, he could perform all the duties required by his detention/corrections officer job description, and perhaps other duties as well, except for the rotating shifts. He believes, but offered no supporting documentation, that rotating shifts are counter- productive and are on their way out in most jails. He further testified that he could probably even work the rotating shifts required by this employer but he believed that to do so would have put him in a health crisis due to his diabetes and multiple medications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 25th day of January, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. 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 25th day of January, 2007.
Findings Of Fact Based on the evidence received at the hearing, the following facts are found: The City of Madison employs approximately 60 full time employees who serve under the general supervision of the City Manager, who has identical fringe benefits as all other employees. The City Commission employes the City Manager and is the ultimate authority and decision making body. The City Commission is composed of elected officials who serve without compensation. A representation petition was filed seeking a certificate of representation by Local Union 2865, AFL-CIO as the exclusive bargaining agent for all full time employees of the City of Madison except for professional employees, managerial employees and confidential secretarial employees. The Public Employer refused to grant the request. A consent election was rejected. A Motion to Dismiss and/or Strike Petition for Certification was entered into evidence over the objection of the Petitioner and a Motion to Quash said Motion to Dismiss and/or Strike Petition for Certification was denied. Testimony was taken as to whether there was such solicitation by managerial employees to initiate the showing of interest. Testimony was taken and final action on the Motion is referred to PERC for action. If the Motion to Dismiss is denied, the determination must be made as to whether the hereinafter enumerated job positions as set forth in Exhibit 3 should be considered managerial and excluded from the unit. No agreement was reached on such employees. Each employee whose job description is set forth in Exhibit 3 works a standard 8:00 a.m. to 5:00 p.m. five day work week, but each is expected to get their respective job done and in the event of an emergency work overtime. The City Commission sets the wages and each reports directly to the City Manager. Each has the same fringe benefits except those who need a truck and radio are furnished one for job use only. Each such employee hears grievance matters on those under him and if the problem cannot be worked out, the parties go to the City Manager who acts as final arbitrator and who acts on a recommendation for termination. Each such employee submits a budget and then sits with the City Manager in making up the budget and keeps with the administration of the budget. Each of the following persons have been funded with the job description and entered in Exhibit 3 and testimony from the City Manager indicates that a meeting for clarification and explanation was planned and thereafter a meeting of these nine employees on a monthly basis. The City Manager stated that in the event of a bargaining situation he would call together these employees for indirect and direct input but that he would prefer not to try to negotiate a contract himself inasmuch as this would put him in conflict with employees and that he would rely on these persons for input and any mollification of policy or procedures. (a) Special Project Supervisor. This work involves the direction of a maintenance or construction crew performing road and utility construction and maintenance work. This employee may hire, promote, demote and assign work and is responsible for directing a crew of skilled and unskilled workers in routine maintenance or construction of streets, roadways and utilities. Duties include inspecting equipment and machinery used to ensure proper operation and checking street and roadway utilities for defects or problems. At times this employee may serve as relief equipment operator. He may also perform other duties as required by the City Manager. Four persons work under the Special Project Supervisor but he may obtain help from other departments when necessary. (h) Fire Chief. This employee is directly responsible for protection against fire and for firefighting activities within the jurisdiction. This employee may hire, promote, demote or assign work and is responsible for directing and supervising skilled and unskilled firefighters in the routine maintenance of facilities and equipment. He coordinates the activities of firefighters, inspects station house and equipment, responds to fire alarms and other rescue activities. This employee may also perform other duties as required by the City Manager. (c) Construction Supervisor. This employee directs one or more departments and/or construction crews engaged in the construction of city streets, roadways, bridges and related facilities. The employee may hire, promote, demote and assign work. The work involves the supervision of several types of heavy equipment operators as well as the skilled and unskilled labor activities. The employee may perform other duties as required by the City Manager. (d) Executive Secretary. Excluded as managerial employee. (e) Gas Supervisor. This employee directs the maintenance and construction crew performing gas and utility maintenance and construction. The employee may hire, promote, demote, assign work and is responsible for directing and supervising a crew of skilled and unskilled workers in the routine maintenance of gasolines, services and utilities. Duties include inspecting equipment and checking for defects and when necessary serving as relief operator and supervising the moving of right of ways. This employee may perform other duties as required by the City Manager. (f) Sewage Plant Supervisor. This employee directs the maintenance and construction crew performing sewage plant lines and utility maintenance. The employee may hire, promote, demote, assign work and is responsible for directing and supervising a crew of skilled and unskilled workers in the routine maintenance or construction of sewer or water related facilities. Other duties include inspecting the equipment and machinery used to ensure proper operation and checking for defects or other problems. This employee may perform other duties as required by the City Manager. (g) Water Supervisor. This employee directs the maintenance and construction crew performing water, sewer and utility maintenance. The employee may hire, promote, demote, assign work and is responsible for directing and supervising the crew of skilled and unskilled workers in the routine maintenance and construction of water and sewer facilities and ocher utility services. Duties include inspecting equipment, serving as relief operator when necessary, supervising the moving of right of ways. The employee may perform other duties as required by the City Manager. (h) Grounds Keeper. This is work directing small crews engaged in the care and maintenance of grounds and yards. The employee may hire, promote, demote, assign work and is responsible for the overall maintenance of the grounds and yards in the City. The employee may perform other duties as required by the City Manager. (i) Shop Superintendent-Mechanic. Excluded as a non-managerial employee. (j) Warehouse Supervisor. This employee is involved in the record keeping, inventory control and the operation of the purchasing department. The duties are in general, a bookkeeper and storekeeper. He performs other duties when required by the City Manager. (k) Police Chief. This employee is responsible for the direction and administration of law enforcement activities. He may hire, promote, demote, assign work and is responsible for directing and supervising skilled and unskilled police officers and other activities involved in law enforcement. He is responsible for inspection of the stationhouse and equipment. He responds to calls for assistance. Other duties may be required by the City Manager or Mayor in case of Marshall Law. In accordance with Florida Statute 447.307(3)(a), and Florida Administrative Rule 8H-3.23, no recommendations are submitted. DONE and ENTERED this 30 day of April, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard Cox, Esquire Michaels and Patterson 2007 Apalachee Parkway Tallahassee, Florida 32301 David Bembry, Esquire Davis, Browning and Hardee Post Office Box 652 Madison, Florida Ben Patterson, Esquire Michaels and Patterson 2007 Apalachee Parkway Tallahassee, Florida 32301 Edward B. Browning, Jr., Esquire Davis, Browning and Hardee Post Office Box 652 Madison, Florida Chairman Public Employee Relations Commission Suite 300, 2003 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Petitioner, a member of a protected class, was terminated from his position with the Respondent in retaliation for reporting an unlawful employment practice that occurred in June 1995.
Findings Of Fact Respondent is an "employer" within the definition found in Section 760.02(6), Florida Statutes. Petitioner was an "employee" of the Respondent as defined in Section 760.02, Florida Statutes, and was employed by Respondent for approximately two years. Aaron Rents, Inc., is a national furniture rental and sales company which does business in some locations, including locations in Florida, as Aaron's Rental Purchase. Petitioner, Jerome Carter, was employed by the company at an Aaron's Rental Purchase store in Kissimmee, Florida, from approximately August 2, 1993, until August 19, 1995. Petitioner was initially hired as a delivery driver and progressed to Assistant Credit Manager, Credit Manager, and finally Sales Manager of the Kissimmee store. In August 1995, Petitioner's immediate supervisor was Store Manager Steven Liberti. Liberti reported to District Manager Leonard Alonzo, who was supervised by Florida Regional Manager Joseph Fedorchak. As the Sales Manager, one of Petitioner's most important job duties was greeting and interacting with customers. He typically had the first contact with each customer as they walked into the store, and his demeanor, as he greeted them, influenced whether they felt comfortable and were likely to make a purchase. Petitioner, however, was not appropriately welcoming and friendly. Petitioner's attitude was withdrawn and not very cordial. Petitioner himself admitted that he "never look[s] happy." Petitioner's sullen demeanor was the topic of numerous discussions with his supervisors. In an effort to address the Petitioner's concerns and improve his work performance, the District Manager initiated a conversation to elicit any complaints the Petitioner might have. Petitioner expressed dissatisfaction with his position as a Credit Manager and the length of time since his last raise. As a result, Alonzo transferred the Petitioner to the Sales Manager position and gave him a pay increase. After the transfer, however, Petitioner's demeanor did not brighten. Concerned, the District Manager again inquired about the cause of the Petitioner's apparent unhappiness. Petitioner merely acknowledged that his attitude needed improvement and promised that he would "straighten up" and "be more outgoing." Each time they had that discussion, however, Petitioner's behavior would improve for only a short time, then return to his previous melancholy. The Store Manager also talked to Petitioner at least twice about his attitude toward his job, telling him that he needed to smile more often. Although the Petitioner's behavior would temporarily change after these discussions, Liberti observed that the improvement lasted only about 24 hours. In August 1995, sales at the Kissimmee store were at an all-time low. Petitioner's supervisors attributed the location's failure to meet its sales goals at least in part to the Petitioner's inability to interact with customers and make sales. After their repeated discussions with him did not result in lasting improvement, the Managers felt they had no choice but to terminate Petitioners employment. Fedorchak concurred that, because the Petitioner could not seem to display an appropriate attitude and demeanor for a Sales Manager, his services were no longer needed. Petitioner admits that when he was discharged, the reason that he was given was that he "did not look happy." Approximately two months before Petitioner left the Kissimmee store, one incident with racial overtones was brought to the Store Manager's attention. In June 1995, store employees Mark Mars and/or Jesus Rivera reported to Liberti that another store employee, Michael Flowers (who is white), had used the term "nigger" during a discussion with store employee Kenny Tatum (who is black). Liberti informed Alonzo about the complaint and an investigation was conducted. When the Managers spoke with Tatum, he explained that Flowers had used the expression "nigger, please," which was slang for "you've got to be kidding," during a conversation between the two men. He assured them that he had not been offended. Nevertheless, because Alonzo and Liberti felt it was highly inappropriate for Flowers to use such language in the store, they gave him a reprimand and warning. In his deposition testimony, Petitioner recalled learning about the occurrence from several other employees. Petitioner did not personally witness it or hear Flowers use the offensive term, but merely claimed to have reported to Liberti what he had been told. According to Petitioner, Liberti responded to this information by affirming that such behavior would not be tolerated. Petitioner admits that he was never told, and had no reason to believe, that Aaron's authorized, encouraged, or instructed Flowers to use racially derogatory language in the store or that he had done so on Aaron's behalf. When Petitioner allegedly reported the occurrence to Liberti, he only believed that a co-employee had made an inappropriate comment at work. The incident involving Flowers and Tatum was unrelated to Petitioner's discharge. None of the three individuals involved in the decision to discharge Petitioner associated him with the incident or any opposition to it. Liberti does not recall discussing the incident with Petitioner, and neither Alonzo nor Fedorchak knew that Petitioner even claimed to have had some involvement in reporting it until after he was discharged. Moreover, none of the conversations among the three about their decision to terminate Petitioner included any reference to Flowers' comment or the subsequent events. No one who opposed the incident suffered any adverse consequences. Rivera and/or Mars reported the comment, and neither of them experienced any unfavorable employment actions as a result.
Recommendation Based upon the testimony and evidence submitted on the record in the formal hearings on this matter and by application of the relevant or governing principles of law to the findings of facts established on such record, it is RECOMMENDED: That the Florida Commission on Human Relations issue a Final Order which dismisses the Charge of Discrimination. DONE AND ENTERED this 13th day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1998. COPIES FURNISHED: Jerome L. Carter, Sr. 2188 McClaren Circle Kissimmee, Florida 34744 Daniel F. Piar, Esquire Kilpatrick Stockton LLP 1100 Peachtree Street, Suite 2800 Atlanta, Georgia 30309-4530 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue Whether Respondent engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact Graham is a black male. He filed an employment application with Pier 1, a "chain retailer," on August 23, 1999. The application indicated that he applied for a position as a sales associate but in fact he was to be employed as a stockroom assistant. His employment application included a block denominated, "Work Availability." Graham completed this block indicating that he was available to work between 6:00 a.m., and 12 p.m., Monday through Saturday. The employment application stated in the block denominated, "Work Availability," the following: "Although an effort will be made to accommodate individual work schedule preferences and availability, work schedules such as start time, number of daily or weekly hours and assigned work days are subject to change at any time. Availability to work on weekends is required. Number of hours may vary based on business necessity and could change an individual's employment status." Graham was hired on August 30, 1999, as a full-time employee. He worked primarily in the back stockroom. A meeting of store personnel was scheduled at the store on Sunday, November 17, 1999, at 6:30 p.m. Graham was aware of the meeting. He was 20 minutes late because he was participating in a church service at Macedonia Primitive Baptist Church. As a result of his tardiness he was presented with an Associate Corrective Action Documentation, which is a confidential Pier 1 form. The form noted that this was his first "tardy." The form as completed took no action such as suspension or loss of pay. It merely informed him that further instances of tardiness could lead to disciplinary action. Graham testified that he was treated differently from a white woman employee, one Christy Musselwhite, who did not attend the meeting, because Musselwhite did not receive a counseling form. However, Graham's personal knowledge of Musselwhite's situation was insufficient to demonstrate that Musselwhite was treated differently from Graham because of race or gender. Graham felt humiliated because he received the Associate Corrective Action Documentation form. Graham resigned from Pier 1 effective November 12, 1999, so that he could begin employment with the Florida Department of Children and Family Services at a rate of pay in excess of that which he received at Pier 1.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission Human Relations enter a final dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 15th day of November, 2001. COPIES FURNISHED: Russell D. Cawyer, Esquire Kelly, Hart & Hallman 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Kenneth Terrell Graham 2811 Herring Drive Tallahassee, Florida 32303-2511 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ronni Morrison Pier 1 Imports Post Office Box 961020 Fort Worth, Texas 76161-0020
Findings Of Fact Petitioner was employed as a part-time store clerk from January 11, 1983 until January 14, 1986 at Respondent's 7-Eleven Store No. 1413-25564 located at 2990-16th Street, North, St. Petersburg, Florida. Respondent is an employer within the terms of the Human Rights Act of 1977, Chapter 760, Florida Statutes. Upon employment by Respondent, employees must sign an Awareness Form which provides, in pertinent part, that "consumption or possession of alcoholic beverages or illegal drugs while on company property (this includes the parking lot and rear of the store)" is grounds for dismissal. Petitioner signed this Awareness Form, and thereby acknowledged having been informed of Respondent's disciplinary policies set forth on said form. On December 25, 1985, at approximately 1:15 a.m. Petitioner and coworker Debbie Meany consumed one bottle of champagne in 7-Eleven Store 1413- 25564 after closing-up the store at 1:00 a.m. Meany had purchased the champagne during their shift on the evening of December 24, and then drank it with Petitioner "because it was Christmas Eve." Meany testified that she became drunk while she and Petitioner drank the bottle of champagne. Petitioner's testimony at hearing that the champagne he drank with Meany was nonalcoholic is specifically rejected based upon Meany's testimony, the fact that nonalcoholic champagne was not sold in this 7-Eleven store at the time, and the fact that he referred to the champagne as "booze" in a letter written to Fred Nichols, Respondent's personnel manager, on January 10, 1986. Meany was fired along with Petitioner for consumption of alcoholic beverages on the premises, and has no apparent motive to be untruthful in her contention that the champagne was alcoholic. Due to an audit of 7-Eleven Store 1413-25564 which revealed a merchandise shortage of approximately $1300, polygraphs were ordered for all store employees. Meany's polygraph was on January 6, 1986, and it was during her examination by Robert Rathbun that she admitted to consuming the bottle of champagne with Petitioner. She signed a statement, which she confirmed at hearing, indicating Petitioner opened the bottle, and they drank the champagne together. Petitioner was polygraphed on January 10, 1986, after executing a consent form, and during the course of his examination, he showed deception in his answers to questions about the use of alcohol on the job. When he was confronted with this indication of deception and with Meany's statement, he admitted to drinking champagne with Meany in 7-Eleven Store 1413- 25564 after they had closed at 1:00 a.m. on December 25, 1987. Thereafter, Petitioner met with Mike McKenzie, field manager, and Larry Good, district manager, on January 13, 1986 to discuss the results of the polygraph. McKenzie and Good also met with Meany. Petitioner was terminated on January 14, 1986 for consumption of an alcoholic beverage in the 7-Eleven store at which he worked. Petitioner did not disclose any handicap or physical condition which would prevent him from performing the job of store clerk on his initial application for employment, or on an application he completed and submitted to Respondent on May 27, 1986, subsequent to his termination. There is no evidence that Petitioner ever informed McKenzie or Good of his handicap. However, Petitioner's immediate supervisors Watley and Egge, store managers, did know of his handicap, and did not require him to "front shelves." This is a normal part of a store clerk's duties by which merchandise is brought forward to the front of a shelf to take the place of products that have been purchased. It has been established that Petitioner is physically handicapped due to the injury of both his knees while in the Army. He was discharged from the Army due to his disability. This handicap makes it very difficult for him to bend down, and therefore the accommodation which Watley and Egge provided was reasonable and appropriate under the circumstances. Respondent does hold Christmas parties at which alcoholic beverages are consumed in its district office. However, the district office is a separate office building and there is no 7-Eleven store located at said office. Since the district office is not a store licensed to sell alcoholic beverages, the consumption of alcohol at that location is not a violation of Respondent's policy about the consumption of alcohol set forth on the Awareness Form. A review of Petitioner's personnel file indicates prior warnings for writing bad checks, and making unacceptable advances on a female coworker.
Recommendation Based on 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 10th day of March, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1988. APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 9. Rejected as not based on competent substantial evidence. Rejected as irrelevant, unnecessary and as simply a summation of testimony which is not persuasive. Rejected in Findings of Fact 4, 6, 7 and 12. Rejected in Finding of Fact 4. Rejected as irrelevant. Rejected in Finding of Fact 4. Rejected as not based on competent substantial evidence. Rejected in Findings of Fact 5 and 6. Rejected in Finding of Fact 6. Rejected in Finding of Fact 12. Rejected as not based on competent substantial evidence. Rulings on Respondent's Proposed Findings of Fact: Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 1. 3-5. Adopted in Finding of Fact 3. 6-7. Adopted in Finding of Fact 4. 8-10. Adopted in Finding of Fact 5. 11-13. Adopted in Findings of Fact 4 and 6. 14-15. Adopted in Findings of Fact 4 and 7. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 4. 18-19. Rejected as unnecessary. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. 22-24. Adopted in Finding of Fact 8. 25. Adopted in Findings of Fact 7 and 8. COPIES FURNISHED: WINSTON S. MCCLINTOCK 475 - 41ST AVENUE, NORTH ST. PETERSBURG, FLORIDA 33703 E. JOHN DINKEL, ESQUIRE POST OFFICE BOX 1531 TAMPA, FLORIDA 33601 DONALD A. GRIFFIN EXECUTIVE DIRECTOR FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BLDG. F, SUITE 240 TALLAHASSEE, FLORIDA 32399-1925 SHERRY B. RICE, CLERK HUMAN RELATIONS COMMISSION 325 JOHN KNOX ROAD BLDG. F, SUITE 240 TALLAHASSEE, FLORIDA 32399-1925
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of his age, as stated in the Charge of Discrimination, in violation of Section 760.10(1), Florida Statutes. Preliminary Statement Petitioner, Alton Saunders, filed a Charge of Discrimination with the Florida Commission on Human Relations ("Commission") on May 10, 2000. The Commission did not make a determination regarding Petitioner's charge of discrimination within 180 days as required by Section 760.11(3), Florida Statutes. On December 27, 2000, Petitioner filed a Petition for Relief and thereby requested an administrative hearing. On March 2, 2001, the Commission referred the matter to Division Of Administrative Hearings to conduct an administrative hearing. On March 22, 2001, a final hearing was set for May 9-11, 2001, in Orlando, Florida. The final hearing was reset for June 6-8, 2001. On March 27, 2001, Respondent filed a Motion to Dismiss alleging that Petitioner "failed to timely request an administrative hearing with the Florida Commission on Human Relations as required by Section 760.11(6), Florida Statutes." On May 17, 2001, an Order Reserving Ruling on Respondent's Motion to Dismiss was entered, reserving ruling until the matter was reconsidered after the close of evidence at the final hearing. At the onset of the final hearing, Petitioner requested a continuance, which was denied. In support of his request for continuance, Petitioner presented a letter from Robert Wheelock, an Orlando attorney, which was made a part of the record as Petitioner's Exhibit A, but not received into evidence. Petitioner presented James "Jan" Saunders, Hugh Paton, Brett Saunders, Doris Dixon, Debra Sweeney, and himself as witnesses. Petitioner offered two exhibits, 1 and 2, which were received into evidence. Respondent presented Debra Sweeney and two additional witnesses, Richmond Taylor and Karl D. Fillauer, by deposition. Respondent offered 13 exhibits; 1-8 and 14-17 were received into evidence. Respondent's exhibit 11 was not admitted into evidence. The Transcript of proceedings was filed on July 23, 2001. Respondent filed a Proposed Recommended Order on August 20, 2001. Petitioner did not file a proposed recommended order.
Findings Of Fact Petitioner was born on August 16, 1922, is 79 years old, and is a member of a protected class. Respondent, Hanger Prosthetics and Orthotics, Inc. ("Hanger"), employed Petitioner at the time of the alleged discrimination. Hanger is engaged in the manufacture, service, and sale of prosthetics and orthotic devices around the country, including in Central Florida. Petitioner and his family have also been engaged in the prosthetics and orthotics industry throughout Central Florida for many years, operating under a variety of different business names. From approximately 1985 through 1997, Petitioner was employed as a general office employee by Amputee and Brace Center, a prosthetics and orthotics company owned by Petitioner's sons, Jerome and Jan Saunders. In 1997, Amputee and Brace Center was acquired by NovaCare, a competitor in the prosthetics and orthotics industry. As part of the sale, members of the Saunders family, including Petitioner, became employees of NovaCare. Shortly after the acquisition of Amputee and Brace Center by NovaCare, several members of the Saunders family left NovaCare's employ to work for competing prosthetics and orthotics companies. For example, Scott Saunders, Petitioner's grandson, left NovaCare's employ and opened a competing company, ABC Prosthetics and Orthotics, Inc. across the street from NovaCare's facility on Gore Street in Orlando. In July 1999, NovaCare was acquired by Hanger, previously another competitor of NovaCare. Following the merger of NovaCare and Hanger, Petitioner became an employee of Hanger and remained at the facility located on Gore Street in Orlando. As a result of the merger, numerous personnel changes occurred at the Gore Street facility. For example, Debra Sweeney, a longtime Hanger employee, was transferred to the Gore Street facility as the Clinical Operations Director. In December 1999, the title of Clinical Operations Director was changed to Area Practice Manager. Ms. Sweeney was the individual ultimately responsible for the Gore Street facility where Petitioner was then employed. On March 8, 2000, a misdirected envelope and its contents arrived with the rest of the mail at the Gore Street facility. The envelope was addressed to Dr. Steven Goll, a significant source of patient referrals for Hanger. The return address on the envelope was the return address of ABC Prosthetics and Orthotics, Inc., the company owned by Petitioner's grandson, Scott Saunders, and Hanger's biggest competitor in Central Florida. The envelope was routinely opened by a member of Hanger's office staff and then delivered, along with its contents, to Debra Sweeney. The envelope addressed to Dr. Steven Goll contained a solicitation letter bearing Petitioner's signature seeking business referrals on behalf of a new company, Anatomically Correct Cosmetic Restorations ("Anatomically Correct"). The envelope also contained Petitioner's business card and a trifold marketing piece which explained the types of products and services offered by Anatomically Correct. According to the trifold, Anatomically Correct offered prosthetic and orthotics services and devices which were identical to significant services and devices being offered by Hanger. Upon receiving the marketing materials, Debbie Sweeney immediately recognized the return address on the envelope and trifold marketing piece as the return address for Hanger's competitor, ABC Prosthetics and Orthotics, Inc. ABC Prosthetics and Orthotics, Inc., Hanger's competitor, had given Petitioner permission to use the business address of ABC Prosthetics and Orthotics, Inc., as well as ABC Prosthetics and Orthotics, Inc.'s envelopes in distributing the Anatomically Correct marketing materials. Petitioner's granddaughter-in-law, the wife of the president of ABC Prosthetics and Orthotics, Inc. designed the marketing materials for Anatomically Correct. Upon examining the contents of the envelope, Ms. Sweeney suspected that Petitioner was engaged in improper competition with their employer, Hanger. On March 9, 2000, a meeting was held among Ms. Sweeney, Petitioner, and Rose DeLucia, the branch manager of the Gore Street facility, during which time Ms. Sweeney presented Petitioner with an opportunity to explain the contents of the envelope that had arrived at Hanger's Gore Street facility the previous day. During the March 9, 2000, meeting, Petitioner admitted that he had developed the marketing materials, signed them, and distributed them. Additionally, Petitioner admitted that he had mailed the solicitation materials out to physicians practicing throughout the Orlando area who referred patients to Hanger for the purpose of seeking patient referrals from them for his new business. Petitioner had not solicited business from Hanger's referring physicians during the time that he was actively working for Hanger, i.e., 8:00 a.m.-5:00 p.m. Petitioner acknowledged that he had not advised Hanger that he intended to start Anatomically Correct and engage in business. Petitioner's conduct was a violation of Hanger policy as well as the policy of Petitioner's former employer, NovaCare, which merged with Hanger. As a result of the discussion and Petitioner's acknowledgment of production and distribution of the solicitation materials, Ms. Sweeney advised Petitioner that his employment was terminated for conduct in conflict with his obligations to Hanger, specifically competing with Hanger while employed by Hanger. Petitioner's employment was terminated for his improper competition with his employer, Hanger, and was unrelated to Petitioner's age. In his March 10, 2000, application for unemployment compensation benefits with the State of Florida Department of Labor, Petitioner indicated that he had been informed that he was being terminated because his "outside work is in conflict with their type of work." In a July 1999, conversation involving overstaffing at the Gore Street facility, Wallace Faraday, a Hanger executive, suggested, "Isn't it time for Al [Respondent] to resign, maybe one of his sons will hire him," or words to that effect. On April 27, 2000, Petitioner signed and dated a Charge of Discrimination. The Charge of Discrimination was filed with the Commission on May 10, 2000. Section 760.11(3), Florida Statutes, requires that the Commission determine whether there was reasonable cause for the Charge of Discrimination within 180 days of the date Petitioner filed his Charge of Discrimination. The last day the Commission could have issued its determination of reasonable cause was November 6, 2000. The Commission failed to issue an order determining reasonable cause. When the Commission failed to determine reasonable cause, Petitioner had 35 days from November 6, 2000, or no later than December 11, 2000, to request an administrative hearing in accordance with Sections 760.11(4), (6), (7), and (8), Florida Statutes. Petitioner executed an Election of Rights form indicating his desire to withdraw his Charge of Discrimination and file a Petition for Relief to proceed with an administrative hearing on December 27, 2000. Petitioner did not file his request for administrative hearing within 35 days of November 6, 2000. Petitioner's claim is barred. Section 760.11(6), Florida Statutes, expressly provides, in pertinent part: "An administrative hearing pursuant to paragraph 4(b) must be requested no later than 35 days after the date of determination by the commission."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order granting Hanger's Motion to Dismiss finding that Petitioner's Election of Rights and request for an administrative hearing was not timely filed, finding that Hanger did not discriminate against Petitioner, and denying Petitioner's Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 12th day of September, 2001, in Tallahassee, Leon County, Florida. JEFF B. 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 12th day of September, 2001. COPIES FURNISHED: Lisa H. Cassilly, Esquire Ashley B. Davis, Esquire Alston & Bird, LLP One Atlantic Center 1201 West Peachtree Street Atlanta, Georgia 30309-3424 Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Alton M. Saunders Jerome Saunders 418 Seville Avenue Altamonte Springs, Florida 32714 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issues are whether Petitioner timely filed her Petition for Relief, and if so, whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her race.
Findings Of Fact At all times material to this proceeding, Respondent operated a convenience store (the store) in Havana, Florida. In July 1998, Respondent hired Petitioner, a black female, as a midnight shift cashier for the store at $5.50 per hour. Charles Nichols, the store manager, made the decision to hire Petitioner. In addition to Petitioner and the store manager, Respondent employed five or six other cashiers--one American Indian female, one Hispanic male, two white females, and one or two white males. Petitioner was Respondent's only black employee. As part of her work orientation, Mr. Nichols furnished Petitioner with a copy of a cashier's job duties, which she signed and dated July 8, 1998. Mr. Nichols also provided Petitioner with other hiring and orientation information, including but not limited to, an employee handbook explaining Respondent's anti-discrimination policies. Mr. Nichols was responsible for the day-to-day operations at the store. Petitioner admits that Mr. Nichols was the best boss she ever had, at least until September 7, 1998, when Respondent terminated her employment. Shortly after she was hired, Petitioner's payroll check failed to include some overtime work. Mr. Nichols advanced or loaned Petitioner the correct amount out of his own pocket until the mistake could be corrected. On another occasion, Petitioner intentionally left her midnight shift (11:00 p.m. to 7:00 a.m.) two hours early, leaving a new trainee (Jason Smith) in charge of the store. While such conduct was unacceptable, Mr. Nichols decided to counsel Petitioner instead of terminating her. Petitioner complained about working the midnight shift due to her family responsibilities. Mr. Nichols attempted to accommodate Petitioner by scheduling her to work the evening shift (3:00 p.m. to 11:00 p.m.) when possible. Respondent hired Jason Smith to work at the store as a cashier shortly after Petitioner began her employment. In early September 1998, Mr. Nichols and Respondent's regional manager, Clev Mathias, promoted Jason Smith to assistant store manager. An assistant store manager has many of the same day- to-day duties and responsibilities as the store manager. The assistant store manager acts as store manager when the manager is not present. Accordingly, the assistant store manager's duties include being responsible for the entire store operations, supervising employees, and directing the cashiers in the performance of their duties. The assistant manager does not make final decisions related to personnel matters. Instead, an assistant manager may recommend that the store manager take disciplinary action, including termination. Generally, only one employee is on duty during the evening and day shifts at the store. Respondent assigns two employees to work the midnight shift. However, during busy times, like Friday and Saturday nights, Respondent assigns a floor person (which is an additional employee) to the evening shift to assist with some of the cleaning duties. In 1998, Respondent insisted that its employees keep the store clean and presentable to customers. The company's mission statement was "selling fresh products in a clean and bright store." The mission statement meant that the store should sparkle and shine as much possible. In order to ensure compliance with its cleanliness policy, Respondent used mystery shoppers to conduct "Pride Ride" inspections. Employees received awards for clean stores, which usually resulted in better sales. Therefore, it was "imperative" that every employee working on every shift, including the store manager, perform basic cleaning duties. In fact, one of the essential job duties of a cashier was to "maintain the cleanliness and appropriate image of entire store, inside and out." At a minimum, Respondent expected its employees to mop the high traffic areas, keep the food counters and fountains clean and presentable to customers, keep the Parrot Ice machine operational and clean, and keep the cooler stocked and cleaned. These were basic cleaning duties which did not have to be posted on the store's bulletin board as special cleaning duties. If an employee working on one shift failed to perform the basic cleaning duties, the employee on the next shift would have to do the work, creating "double cleaning" duties for the new shift. Employees were not supposed to leave the premises after a shift until the store met the cleanliness standard. The evening shift was generally busier than the midnight shift at the store. The average sales volume for an evening shift was between approximately $300 to $500 per hour. On Sunday nights, the average volume would be approximately $200 to $400 per hour. However, during a busy time, the evening shift may have a sales volume of approximately $500 to $700 per hour. On Sunday, September 6, 1998, Petitioner was assigned to work the evening shift for the store. She was the only employee assigned to work that shift. The employees that were assigned to the subsequent midnight shift and who would be relieving Petitioner were Rodney Smith (Jason Smith's father) and Marie Sargent. Rodney Smith usually showed up early for his assigned midnight shift. He arrived at the store at approximately 10:00 p.m. on September 6, 1998, and observed that the store was not clean. As Rodney Smith began filling and cleaning the Parrot Ice machine, he noticed that Petitioner appeared to be socializing with a male at the counter for an extended period of time. Accordingly, Rodney Smith paged the assistant manager, Jason Smith, so that he could see the condition of the store. Jason Smith worked the day shift at the store on September 6, 1998. When he finished his shift and when Petitioner began her shift at 3:00 p.m., the store was clean. Jason Smith remained in the store's office for a while after his shift ended. On two occasions, Jason Smith's use of the office phone caused a delay in Petitioner's ability to operate the credit card machine. The first time, Petitioner stepped to the office door and asked Jason Smith to hang up the phone. The second time, Petitioner yelled from the cash register telling Jason Smith to hang up the phone. Jason Smith agreed but told Petitioner the she should not yell. At approximately 7:30 p.m. on September 6, 1998, Jason Smith's girlfriend picked him up for a date. The store was clean when he left the store. Jason Smith was leaving the home of his girlfriend's parents when he received the page from Rodney Smith at approximately 10:07 p.m. After receiving the page, Jason Smith proceeded immediately to the store. When Jason Smith arrived at the store, he also noticed that Petitioner was behind the counter talking to a male. Jason Smith checked with Rodney Smith to make sure there was no emergency (such as a robbery, fire, etc.) and was told to look at the condition of the store. Jason Smith then proceeded to inspect the convenience store and noticed that the condition of the store was unacceptable. Specifically, Jason Smith noticed the following: That the floor, especially in the high traffic areas, had not been mopped and was very dirty. That the drink fountain had not been cleaned and there was ice on the floor and counter. That the hot dog machine had not been cleaned and the hot dogs that were in the machine had burned. That the Parrot Ice machine was beeping which indicated that it had not been filled with liquid and also, because the machine had been left on, the Parrot Ice liquid had continued to dispense the product onto the machine and then onto the floor. That the cooler had not been stocked. The condition of the store at the time Jason Smith inspected it on the night of September 6, 1998, was in violation of Respondent's policy regarding cleanliness and store image. Jason Smith also noticed that Petitioner continued to lean on the counter talking to the male while he inspected the store. Jason Smith then called Mr. Nichols to let him know about the unacceptable condition of the store. Jason Smith wanted Mr. Nichols's advice as to the appropriate response to the situation. Mr. Nichols instructed Jason Smith to run an X-2 report from the cash register. The purpose of running the X-2 report was to determine the volume of sales for the store in the last hour. If the volume of sales was unusually high, it would mean that Petitioner had been too busy with customers to perform the regular shift cleaning duties. A high volume of sales would have explained the unacceptable condition of the store. As instructed by the store manager, Jason Smith ran the X-2 report which indicated that the store had only $50 of sales during the last hour on the evening shift. This small amount of sales during the past hour would not have prevented Petitioner from performing the basic cleaning duties required for that shift. When Jason Smith first attempted to run the X-2 report, Petitioner immediately became belligerent and hostile and was very upset that Jason Smith was trying to run this type of report on the register. She then called Mr. Nichols to complain about the situation. Jason Smith communicated the result of the X-2 report to Mr. Nichols. The store manager then informed Jason Smith that he should instruct Petitioner to perform the basic shift duties necessary to clean the store and to get the store in acceptable condition before she left her shift that night. Based on the instruction from the store manager, Jason Smith gave Petitioner verbal instructions to perform certain basic cleaning duties of a cashier, including filling the Parrot Ice machine and mopping and sweeping the high traffic areas. Since his initial inspection of the store, Jason Smith noticed that beer bottles had spilled and were broken in the cooler which created an additional mess. Therefore, his instruction to Petitioner included stocking and cleaning the cooler. To ensure that there was no confusion about the instructions, Jason Smith provided Petitioner specific written instructions to perform these basic duties. When Petitioner received these verbal and written instructions, she once again became very agitated and belligerent. Petitioner was loud and obnoxious to Jason Smith, using profane language in front of customers and another employee. In response to Petitioner's hostile reaction, Jason Smith confirmed to Petitioner that she would have to perform these basic duties before she left the store that night. Jason Smith left the written instructions in the store's office. On the reverse side of the list, Jason Smith wrote Mr. Nichols a note regarding Petitioner's hostile attitude. Jason Smith then left the store because his presence seemed to aggravate Petitioner. After Jason Smith left the store, Petitioner continued to complain about Jason Smith in front of customers. She wrote Mr. Nichols a note stating that she wanted a transfer to another store because she would not work under Jason Smith anymore. She did not perform the duties that were specifically assigned to her by Jason Smith before she left her shift that night. The next day, on September 7, 1998, Mr. Nichols reviewed the handwritten note from Jason Smith indicating that Petitioner refused to perform the duties. Mr. Nichols also confirmed with Rodney Smith that these events had occurred as described. Mr. Nichols then had a discussion with Jason Smith to determine how to handle the situation with Petitioner. According to Respondent's policy, Petitioner's conduct on September 6, 1998, was such that termination was appropriate. Recognizing that any employee could have a bad day, Mr. Nichols and Jason Smith decided that they wanted to give Petitioner an opportunity to explain her conduct on September 6, 1998. Therefore, Mr. Nichols called Petitioner to come to the store and talk with them about the situation and her conduct on September 6, 1998. Upon arriving at the store to meet with Jason Smith and Mr. Nichols, Petitioner continued to respond in a hostile and belligerent tone. She refused to provide them any explanation for her conduct on September 6, 1998. Specifically, Petitioner did not explain the following: (a) her refusal to perform the assigned duties; (b) her refusal to follow a direct order from the assistant manager; and (c) her belligerent and hostile attitude against the assistant manager in front of customers and other employees. Based on Petitioner's conduct on September 6, 1998, and her further refusal to provide an adequate explanation for her conduct, Jason Smith recommended to Mr. Nichols that Respondent terminate Petitioner. Mr. Nichols agreed with the recommendation, terminating Petitioner's employment based on her insubordination and refusal to perform job duties. Respondent's regional manager approved Mr. Nichols's decision to terminate Petitioner. Mr. Nichols and Jason Smith prepared and signed an employee conference summary report on September 7, 1998. When they presented the report to Petitioner, she refused to sign it. Mr. Nichols also prepared and signed a final personnel action record on September 7, 1998. The personnel action record documents Petitioner's termination effective September 7, 1998, for "insubordination, refused to perform duties."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 19th day of September, 2002, in Tallahassee, Leon County, Florida. COPIES FURNISHED: J. Steven Carter, Esquire Henry, Buchanan, Hudson, Suber & Carter, P.A. Post Office Drawer 1049 Tallahassee, Florida 32302 SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 2002. Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Georgia A. Miller Post Office Box 156 Calvary, Georgia 39829 Cecil Howard, Esquire Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact In April, 1975 Mrs. Wright, an inspector assigned to the District Office in Panama City inquired of her supervisor regarding outside employment and was told she had to obtain permission from Tallahassee. She subsequently telephone Jack Pelham in Tallahassee who advised her the department would have no objection if it did not interfere with her state duties, but she would have to send a request in writing stating the details of her outside employment. On April 25, 1975 she submitted a letter (Exhibit 4) stating she had accepted outside employment on weekends at an amusement park starting at 6:00 P.M. on Friday afternoon, and requested she be advised if the employment constituted a conflict of interest. No response was received indicating objection on behalf of the Department. Some time in early June Petitioner commenced working on week days in addition to weekends. No request for authority to so work was submitted by Petitioner. Department regulations and policy require prior approval for outside employment. During the period from June 6, 1975 through June 27, 1975 time sheets certified by Mrs. Wright showed she worked from 8:00 to 12:00 and 1:00 to 5:00 Mondays through Friday. Time sheets on June 30 and July 1st showed work hours from 8:00 to 12:00 and 12:30 to 4:30. On July 2 and 3 time sheets showed work from 8:00 to 12:30 and annual leave for 3 hours on July 2 and 8 hours on July 3rd. From July 7 through 10 time sheets showed hours worked from 7:15 to 12:15 and 12:45 to 3:45. From July 14 through 17 time sheets showed hours worked from 7:30 to 12:00 and 12:30 to 4:00. Time sheets from Miracle Strip Amusement Park showed that on June 6, 9, 12, 18, 20, 23, 25, 26 and 30 Mrs. Wright commenced work at 4:30 and on July 7, 8, 9, 10, 11, 16, and 17 she commenced work at 2:45 P.M. Copies of Department policy manual and personnel rules and regulations are available in the District Office out of which Mrs. Wright worked, but she was not furnished a copy of the policy manual until October, 1975 after the incidents herein involved. Testifying in her own behalf Petitioner contends that she signs most of the time sheets in blank and the secretary filled in the hours for her the same as she did for the other inspectors. She further contends that she was unaware that she needed approval for changing the hours of outside employment from the weekend to include weekdays; that she had worked overtime on many occasions for which she had not made a claim; that her supervisor told her he had no objection to her working outside so long as she put in 8 hours for the state; and that she could work early hours if she desired. Except for about 4 days in July she contended that each day she worked the full 8 hours required by the Department. With respect to those 4 days in July for which attendance sheets show less than 8 hours per day worked, she contends she asked if she could take leave and was told it wasn't necessary. Her supervisor has no recollection of such a request and no leave slips were presented to him for approval.
