The Issue Whether Respondent Al Packer Ford, Inc. terminated the employment of Petitioner Woodrow Samuel on the basis of race, which is an unlawful employment practice pursuant to Section 23.167 (1)(a), Florida Statutes.
Findings Of Fact Petitioner was discharged from his employment on August 8, 1978 and believes that his discharge was because he is black. Petitioner was hired on April 4, 1978 by the Service Manager for Respondent corporation who had been his supervisor at Dominion Chevrolet in Richmond, Virginia. Petitioner was employed as a quick service mechanic and worked for approximately three (3) monthe. During that time Petitioner's Production was low and at least on two (2) occasions made serious errors in servicing customers automobiles. Once he failed to put in oil, and once he failed to replace brake slices. He received a warning from his employer but was not discharged. Thereafter he was transferred to the Okeechobee Road Used Car Lot as a Lot Man. There he had the opportunity to make more money under a pay plan which did not depend on mechanical work by the job. After two (2) weeks he was transferred to the Respondent's main used car lot on Military Trail under the supervision of George Mills, and his salary was increased by forty (40) dollars per week. Prior to Petitioner's discharge Petitioner's immediate supervisor, George Mills, was on vacation. During this period Petitioner took a used Cadillac for his personal use from the lot in West Palm Beach and drove it to Miami for the weekend. Petitioner had not been authorized by Mills or by anyone else to use the Cadillac, according to the testimony of Mills which is more credible then the testimony of Petitioner. Mills learned of the use of the car by Petitioner after his return from vacation and after it had been scheduled for repairs. Mills stated that Petitioner had been warned not to use vehicles for his private use and, when he learned of the use of the Cadillac, terminated his employment and told him why. Petitioner appealed to his original employer, George Hollifield, who then was the supervisor of Petitioner's direct supervisor, for reemployment but was refused. Use of vehicles from the used car lot by employees of Respondent is allowed as a general company policy only upon specific authorization. A witness, another black man, had seen Petitioner use vehicles on occasion from the lot but did not know whether the use was authorized. About 10 percent of the employees of Respondent are Hispanic or Black, and the stated policy of the business is to employ competent people to make money for the corporation, and race is not a factor or consideration. Petitioner Samuel and Respondent submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in or are inconsistent with factual findings in this order, they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the complaint and petition he dismissed by the Florida Commission on Human Relations. DONE and ORDERED this 1st day of October, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Franklin G. Callas, Esquire 125 Worth Avenue, Suite 308 Palm Beach, Florida 33480 Norman A. Jackson, Executive Director Florida Commission on Human Relations Suite 100, Montgomery Building 2652 Executive Center Circle, East Tallahassee, Florida 32301 Thomas E. Kingcade, Esquire Post Office Box 2755 Palm Beach, Florida 33480 Mr. Al Packer Al Packer Ford, Inc. 1530 North Military Trail West Palm Beach, Florida 33403
The Issue Has Respondent violated the Human Relations Act of 1977 with regard to Petitioner by an unlawful employment practice?
Findings Of Fact In the course of hearing several motions and rulings were made which arose out of the prehearing procedural background of the case, which of necessity now become findings of fact. This cause commenced by "Transmittal of Petition" from the Florida Commission on Human Relations for hearing de novo upon a Petition for Relief filed by Petitioner Leroy McDuffie Jr. from that agency's determination of "no cause" to believe that an unlawful employment practice had occurred in regard to Petitioner and Respondent's employment relationship. Included with that transmittal were copies of all pleadings and jurisdictional papers previously filed with the Commission. On or about October 25, 1984 Respondent filed with the Division of Administrative Hearings a Motion to Dismiss Petition for Relief from Unlawful Practice for Failure to State a Cause of Action Upon Which Relief May Be Granted, and/or Motion for More Definite Statement. On or about October 29, 1984 the Commission on Human Relations transmitted to the undersigned a handwritten notice from Petitioner of a change in his mailing address from "159 9th Street, Winter Haven, Florida 32787" to "1600 W. Washington St., Orlando, Florida 32805 PH. No. 425-1851." The undersigned determined that certificate of service on Respondent's pending Motion to Dismiss recited only Petitioners old address of "159 9th Street, Winter Garden, Florida 32787" and entered a November 5, 1984 Order requiring re-service of the Motion upon Petitioner at his new address and requiring Respondent to initiate a formal hearing on the motion. The parties were encouraged to use a telephonic conference call. Due to typographical error, a Corrected Order was entered November 8, 1984. The original order was mailed to Petitioner at "1600 W. Washington Street, Orlando, Florida 32805" and the Corrected Order was mailed to Petitioner at "1600 West Washington Street, Orlando, Florida 32805." Neither was returned to the undersigned by the U.S. Postal Service. The Motion was re-served by mail to the new address of "1600 W. Washington Street, Orlando, Florida 32805," but Respondent was unable to complete connections for a telephone conference call on a number of occasions, so on December 28, 1985, the undersigned issued a Notice of Motion Hearing to the parties for a date and time certain requiring Petitioner to contact Respondent and for Respondent's attorney to initiate such a call. This Notice was sent to Petitioner at "1600 West Washington Street, Orlando, Florida 32805." It was not returned to the undersigned by the U.S. Postal Service. At the time scheduled for the telephonic conference call (1:00 p.m., January 9, 1984) Respondent's attorney represented that he had had no contact from Petitioner and had, himself, been unable to reach him by phone. Since in excess of the time permitted by rule for filing of a response by Petitioner had passed, and since notice of the hearing was apparently complete with no response by Petitioner, argument was heard without Petitioner on the line. An order was entered January 23, 1985 denying Respondent's Motion to Dismiss but requiring that Petitioner file a more definite statement within 30 days. This Order reflects it was mailed to "Leroy McDuffie, Jr., 1600 West Washington Street, Orlando, Florida 32802." Also on January 23, 1985, the undersigned entered a Notice of Hearing for 11:00 a.m., April 5, 1985 and standard Pre- Hearing Order with detailed instructions cutting off discovery, requiring exchange of witness and exhibit lists, and requiring pre-hearing stipulation or statements by the parties. The Pre- Hearing Order indicates it was mailed to Petitioner at "1600 West Washington Street, Orlando, Florida 32802" and "159 Ninth Street, Winter Garden, Florida 32787." The Notice of Hearing indicates it was mailed to Petitioner at "1600 West Washington Street, Orlando, Florida 32802" and "129 Ninth Street, Winter Garden, Florida 32787." However, based on recollection and standard business procedure in the office of the undersigned, it appears that duplicates of the Order for More Definite Statement and Notice of Hearing and Pre-Hearing Order all of the same date of January 23, 1985 were all mailed to Petitioner together in envelopes addressed to both addresses as set out above. There was no return from either address by the U.S. Postal Service. Petitioner did not timely comply with the January 23, 1985 Order requiring more definite statement and on March 1, 1985 Respondent moved for entry of sanctions, including but not limited to dismissal. This Motion was served on Respondent at "1600 West Washington Street, Orlando, Florida 32802." Petitioner did not timely file a response in opposition to the March 1, 1985 motion but by Order of the undersigned dated March 15, 1985, dismissal was still not granted and the sanctions specifically requested were not granted. The only sanctions imposed by the undersigned in response to the general prayer of Respondent's Motion were that to prevent unfair surprise to Respondent due to lack of a More Definite Statement, Petitioner would not be permitted to call at formal hearing any witnesses other than himself and would not be permitted to submit at formal hearing any documentary evidence; further, Respondent was relieved of filing the Pre-Hearing Statement previously mandated by the Pre-Hearing Order. Petitioner was further ordered to show cause in writing by March 26, 1985 why his failure to comply with the January 23, 1985 Order requiring More Definite Statement should not be deemed an admission there were no disputed issues of fact and why a Recommended Order of Dismissal ought not to be entered accordingly. This Order was mailed to Petitioner at "1600 W. Washington Street, Orlando, Florida, 32802" and "129 Ninth Street, Winter Garden, Florida 32787." It was not returned to the undersigned by the U.S. Postal Service from either address. Petitioner did not timely show cause why this action should not be dismissed. Petitioner did not timely file a unilateral Pre-Trial Statement as required by the January 23, 1985 Pre-Hearing Order, which portion had not been rescinded by subsequent orders. Nonetheless, in what may have been an overabundance of caution, the undersigned did not enter a Recommended Order of Dismissal at that point nor did she cancel the hearing scheduled for April 5, 1985. At the time and place appointed for final formal hearing, Petitioner appeared on his own behalf. Before proceeding into final formal hearing on the merits, the undersigned inquired why the Petitioner had failed to comply with all prior orders and requested he show cause orally why the action ought not to be dismissed. It was Petitioner's explanation that although he received his mail at "1600 West Washington Street, Orlando, Florida 32805" he had never received any orders or correspondence or papers from the undersigned at that address. Upon inquiry as to how he knew to be at the formal hearing scheduled at that particular time and place, Petitioner said he had only received a phone call from his former residence in Winter Park that morning and so he arrived only at the last moment. The undersigned observed Petitioner arrived some 10 minutes before Respondent's attorney. Petitioner conceded that with the exception of the last digit of the zip code all orders and Notices had been correctly addressed to "1600 West Washington Street, Orlando, Florida" but maintained he had received none. He permitted the undersigned to examine the papers he had brought with him and indeed no pleadings or orders were included. Petitioner indicated he normally got no mail at the old address but sometimes he had his children pick up his mail there and deliver it to him which would explain why the items mailed to Winter Garden were not returned to the undersigned. Further, by his own admission, someone at the old Winter Park address appears to have opened duplicate mail there and relayed him messages about it. Petitioner apparently does not physically reside at either address, but does intend to receive all his mail at the West Washington Street address. However, Petitioner had no explanation why the items were not delivered to him or alternatively returned to the undersigned from the 1600 West Washington Street address. Petitioner stated that he had received phone calls and mail from the Respondent's attorney at the old address. Respondent's attorney stated with one exception everything sent by his office had been sent to "1600 West Washington Street, Orlando, Florida 32802 and nothing had ever been returned to him by the U.S. Postal Service. In light of all of the foregoing, the undersigned ruled that she must conclude that a last digit zip code error was not sufficient to indicate Petitioner had not timely received all pleadings and orders at the 1600 West Washington Street address, and that having received them and having failed to comply, the sanctions previously imposed would stand. However, the undersigned also ruled that in light of Petitioner appearing for the hearing, and obviously indicating a controversy of some kind, she would proceed with the formal hearing and allow him to present his own testimony and at the conclusion of his testimony, so as to prevent any surprise to Respondent, the hearing would be continued to allow Respondent to prepare a defense and present it at a subsequent date by bifurcated hearing. This would be done because the Petition had never set out even the disputed issues of material fact and no More Definite Statement had corrected that deficit. Petitioner refused to be sworn, refused to indicate the issues of material fact in dispute, refused to give testimony and refused to present any evidence at all. The undersigned explained to Petitioner that the burden of proof was his, that if he put on no case whatsoever he could not prevail and she would have no choice but to enter a Recommended Order of dismissal upon all grounds raised by Respondent, upon failure to prosecute, and upon failure to carry the burden of proof. Petitioner stated he did not care as long as he had an appeal and could get a lawyer to "write it out" and "tell somebody what was going on here." The undersigned explained that after entry of a Recommended Order she would lose jurisdiction, that the Florida State Commission on Human Relations would then enter a Final Order which might accept, reject or diverge from the Recommended Order and then an appeal could be had to a District Court of Appeal, but that it was in Petitioner's interests to proceed now. Petitioner moved for a continuance so that he might hire a lawyer, stating he had the money to hire one now that he was working. The undersigned observed that Petitioner had had notice of this hearing since late January and had not hired a lawyer. Petitioner said he had consulted a lawyer who told him to get his papers together but had never gone back to hire that lawyer. The gist of Petitioner's argument on continuance was that a previous continuance had been granted to Respondent by an internal hearing officer or investigator for the Florida Human Relations Commission prior to commencement of this de novo proceeding pursuant to Section 120.57, Florida Statutes. The undersigned concluded Petitioner had had opportunity to hire an attorney if he chose and denied a continuance. Petitioner again refused to be sworn or to put on any evidence. Respondent renewed all previous motions and it was stipulated that rulings thereon and the rulings made at the hearing would be incorporated in this Recommended Order.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Human Relations Commission enter a Final Order dismissing with prejudice the Petition herein. DONE and ENTERED this 26th day of April, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 26th day of April, 1985. COPIES FURNISHED: Leroy McDuffie, Jr. 1600 West Washington Street Orlando, Florida 32805 Charles M. Rand, Esquire 10th Floor, CNA Building Post Office Box 231 Orlando, Florida 32802 Commission on Human Relations c/o Suzanne Oltman, Clerk 325 John Knox Road, Suite 240 Tallahassee, Florida 32303 Donald A. Griffin, Executive Director 325 John Knox Road, Suite 240 Tallahassee, Florida 32303
The Issue Whether this case is properly before the Division of Administrative Hearings.
Findings Of Fact On or about April 2, 2004, the Florida Commission on Human Relations (Commission) forwarded a packet of papers, as more fully described below, to the Division of Administrative Hearings (Division). At the request of the parties, a disputed- fact hearing was scheduled for June 30, 2004 through July 1, 2004. The Charge of Discrimination in this cause bears a signature date of April 23, 2002. It states that the most recent alleged discrimination occurred in December 2001, and alleges race, color, and religious discrimination and retaliation. The copy of the Charge sent to the Division in the Commission's referral packet bears a Commission date-stamp of December 2, 2002. However, Respondent has provided a copy of the Charge, showing that it was first filed with the Commission on November 19, 2002, and the parties are in agreement that November 19, 2002, was the date of actual filing of the Charge with the Commission. The Charge filed with the Commission was accompanied by a cover letter dated November 14, 2002, and a "confidential" affidavit also dated November 14, 2002. On December 6, 2002, Respondent received the Commission's Notice of Petitioner's Charge of Discrimination. Thereafter, Respondent submitted its position statement with attachments to the Commission. The parties subsequently engaged in settlement discussions but were unable to come to terms.1/ On November 20, 2003, the law office representing Petitioner notified the Commission that settlement was not possible and that Petitioner's attorney wanted to be advised of the Equal Employment Opportunity Commission (EEOC) case number assigned to the same allegations of discrimination by the EEOC, pursuant to the Commission's work-sharing agreement with that Federal agency. On January 21, 2004, Petitioner's attorney's law office again wrote to the Commission requesting the EEOC case number and stating, "[W]e may take our client's issues up in the judicial arena."2/ Petitioner filed with the Commission on February 10, 2004, an Election of Rights signed by her attorney on February 9, 2004, on which the following option had been checked: More than 180 days have elapsed since I filed my charge of discrimination. I wish to withdraw my charge and file a Petition for Relief to proceed with an administrative hearing as provided for under Florida Statutes Section 760.11(4)(b) and (8). On February 16, 2004, the Commission sent a letter to Petitioner's attorney confirming its receipt of the Election of Rights on February 10, 2004, and reciting the foregoing reason stated therein. The Commission attached to its letter a blank petition for relief with instructions that the petition should be completed and returned to the Commission within 20 days. Twenty days from the Commission's February 16, 2004, letter would have been March 8, 2004. By a letter dated March 16, 2004, Petitioner's attorney wrote the Commission advising that for purposes of the EEOC claim, "March 23, 2002," should be used as the last date of discrimination. March 23, 2002, is a date four months after the date alleged in the Charge of Discrimination which had been filed with the Commission. (See Finding of Fact No. 3.) Apparently, the Commission filed the EEOC complaint with that federal agency on March 18, 2004. By a March 18, 2004, form letter, the Commission advised Petitioner, via her attorney, that the EEOC claim had been filed and given a number. The Commission's form advises that Petitioner need do nothing with the EEOC until the Commission has made its final findings in the case before the Commission. The March 18, 2004, EEOC complaint is virtually identical in all respects to the Charge filed by Petitioner with the Commission on November 19, 2002, except for the date of alleged discrimination. (See Finding of Fact No. 9.) On March 29, 2004, Petitioner's attorney signed a second Election of Rights, checking the same reasons as were given in the February 10, 2004, Election of Rights. (See Finding of Fact No. 7.) The second Election of Rights was filed with the Commission on March 31, 2004. On April 1, 2004, the Commission sent a second letter to Petitioner via her attorney, confirming receipt of Petitioner's second Election of Rights dated March 29, 2004, and stating that it had been filed on March 30,[sic] 2004. This Commission letter again reiterated the option requested by the Petitioner. (See Finding of Fact Nos. 7 and 13.) The April 1, 2004, letter from the Commission attached a second blank petition for relief for Petitioner to complete, and further advised: The initial letter dated February 16, 2004 included the Petition for Relief to be filed with the Commission within 20 days of the dated letter. We have not received the Petition for Relief to date; therefore I am enclosing another Petition for Relief to be completed. Forward the original Petition for Relief to the Division of Administrative Hearings and mail a copy to the Division. The Election of Rights Form will be forwarded to the Division of Administrative Hearings for case assignment as requested. On April 1, 2004, the Commission filled out a Transmittal of Petition form, which it forwarded to the Division, attaching only the Commission's April 1, 2004, letter to Petitioner's attorney, a copy of the original Charge of Discrimination incorrectly date-stamped as filed with the Commission on December 2, 2003 (see Finding of Fact No. 3), and a copy of Petitioner's Election of Rights, dated March 29, 2004, which had been signed by her attorney. (See Finding of Fact No. 13.) Petitioner admits that at no time within 20 days of either the Commission's February 16, 2004, letter or the Commission's April 1, 2004 letter, did Petitioner file a Petition for Relief either with the Commission or the Division. Not until after Respondent had moved to dismiss before the Division on June 15, 2004, did Petitioner file a Petition for Relief. On June 24, 2004, that Petition for Relief was filed with the Division, without prior leave of an Administrative Law Judge of the Division. The Petition was not on a Commission form. As of June 25, 2004, the date of oral argument on the Motion to Dismiss and Response thereto, the free-form Petition for Relief had only been filed with the Division and had never been filed with the Commission. On the basis of the record before the Division, it appears that Petitioner has never filed with the Commission a Petition for Relief, also known as a request for administrative hearing. It is undisputed that no Petition for Relief or request for administrative hearing was filed by Petitioner with the Commission within 215 days of filing the Charge of Discrimination with the Commission, which would have been 180 days plus 35 days; nor within 35 days of February 16, 2004, the date of the Commission's first letter advising Petitioner to timely file a Petition for Relief with the Commission; or within 35 days of April 1, 2004, the date of the Commission's second letter advising Petitioner to timely file a Petition for Relief with the Commission.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss this case, which exists only by the Charge of Discrimination, and a late-filed petition before the Division of Administrative Hearings. DONE AND ENTERED this 29th day of July, 2004, 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 29th day of July, 2004.
The Issue Whether the Respondent committed unlawful employment practices as alleged in the Petition for Relief served by mail March 20, 1987. Ten subparagraphs of that Petition address individual allegations, each of which are discussed fully in the following conclusions of law.
Findings Of Fact Petitioner Brahim Derder is a citizen of Algeria with permanent resident status in the United States. At all times relevant, he was an adult male resident of the State of Florida, classified by his employer as "Black." Petitioner is a person within the meaning of Section 760.02(5), Florida Statutes. Petitioner graduated from the University of Miami with a Bachelor's Degree in Industrial Engineering in 1980. Prior to his employment with Respondent American Telephone and Telegraph Information Systems (ATTIS), he was employed from 1981 to 1983 by another subsidiary (Southern Bell) of Respondent's parent company, American Telephone and Telegraph (AT&T), as a marketing representative in Miami, Florida. Respondent ATTIS is in the business of selling and leasing data and voice terminal equipment. Petitioner became an employee of ATTIS in 1984. Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. Petitioner was terminated by Southern Bell as a result of his alleged failure to pass one of its required training courses. He was subsequently reinstated as a result of a complaint resolution pursuant to Southern Bell's own internal affirmative action program, also known as an equal employment opportunity (EEO) complaint resolution. Thereafter, Petitioner continued to be uneventfully employed by Southern Bell for about a year. Approximately August 1983, AT&T began preparation for court-ordered divestiture. Divestiture required the separation of the Bell operating companies from AT&T. Petitioner was assigned to a division within ATTIS in Miami due to the divestiture and its resulting reorganization. Once within ATTIS, Petitioner successfully protested through internal ATTIS-EEO channels a "limited contribution" performance rating given him upon his exit from Southern Bell, and obtained a change to "not rated," which rating, in turn, resulted in a modest pay increase. The subsidiaries of AT&T, like their parent company, had established formalized but voluntary internal EEO/Affirmative Action programs. At no time prior to Petitioner's termination by ATTIS in November 1985, did Petitioner file any charges of discrimination with any external governmental agency, including but not limited to the Federal Equal Employment Opportunity Commission or the State of Florida Commission on Human Relations. In 1984, ATTIS downsized its work force and Petitioner's position was "surplused." Petitioner was offered a position with ATTIS in Atlanta, Georgia but rejected it and located a job at ATTIS' Data Systems operation in Orlando, Florida. Once at ATTIS in Orlando, Petitioner worked under the supervision of four different managers in the course of approximately two years until his involuntary termination on November 18, 1985. This was a period of ongoing reorganization for the AT&T subsidiary and personnel changed frequently. Also, normal employee review and appraisal procedures were not always followed to the letter. Nonetheless, none of the four different ATTIS supervisors for whom Petitioner worked in that period of time found Petitioner's job performance to be satisfactory. Petitioner worked under Lowell Rogers' direct supervision from approximately April 1984 until the end of that year. Because Mr. Rogers accepted a position in New Jersey, he was not always available on ATTIS' Orlando jobsite even though he technically continued to have an office there until well into 1985. The written performance appraisal prepared for Rogers' signature reads in pertinent part: Based upon his exposure to training in the areas listed above, his performance has not been what would normally be expected within the given time frames. * * * Mr. Derder must devote both the time, motivation, and sincere desire to learn and adapt to both technical and development tasks which would allow him to be a more productive employee. It appears that other factors (relocation and job classification issues, etc.) consume far too much time and as a consequence, his training and productivity has suffered to date. (P-3, P-4) The appraisal was not, however, wholly negative. Steve Holmes, Petitioner's second supervisor, showed Rogers' appraisal to Petitioner approximately April 22, 1985 without Rogers' signature thereon (P- 3), and Petitioner made the cognitive leap without any valid foundation, that Holmes (not Rogers) had negatively rated Petitioner for discriminatory reasons only. Rogers did not physically sign this negative appraisal until May 16, 1985 (P-4). Petitioner's confusion concerning Rogers' negative appraisal is reasonable because the appraisal had been signed first by Rogers' supervisor, the District Manager, on January 22, 1985, before being returned for Rogers' signature and Petitioner had received a merit increase on his year's employment anniversary in April 1985 based on his 1984 service, but no discriminatory motivation or act was proven with regard to Rogers' evaluation. Steve Holmes was Petitioner's supervisor at ATTIS in Orlando from January 1985 until May 16, 1985. His exit evaluation of Petitioner was also negative as follows: Brahim has been substantially distracted from the performance of his job by an almost obsessive belief that he has been unfairly treated with regard to his transfer into AT&T-IS ... Brahim needs to treat deadlines with more urgency. He needs to plan his work more effectively so as to identify possible problem areas and develop remedies before they become overwhelming. He needs to double check his work for errors in data (typo's) and information ... (P-12) Petitioner's work for Holmes was to gather data for a report on the Integrated Services Digital Network (ISDN) project. The project involved conversion of several small lines and switches to bigger ones at many locations nationwide. The information gathered was generated from numerous sources geographically scattered throughout the United States. Although component information changed daily as the actual switchovers progressed, the overall intent behind the report was to assemble data, collate it into meaningful graphic tables and verbal explanations, and present it as a finished printed report which could be published monthly and presented to higher levels of management so that the past month's progress could be assessed and future planning decisions could be wisely made. Petitioner's view was that a computer/word processor was necessary to complete his task, whereas management felt Petitioner's input prior to typing of the report could be done with paper and pencil or possibly with paper and pencil and a calculator. Petitioner was nonetheless permitted to use an IBM-PC computer assigned to a peer employee. Petitioner felt his ISDN report had to be rewritten entirely each time there were any data changes whatsoever because the different sections within the report were interdependent. Management had contemplated that because the report would be published monthly, at some point each month Petitioner would reconcile all available data for that month and publish the report. Although Petitioner submitted many draft versions of the ISDN report, which was intended to be published monthly, a final version of the report was never completed by Petitioner to Holmes' satisfaction over at least four months of report drafts. Mr. Holmes felt that the Petitioner was not properly assessing the interdependent sections and relating them to one another so as to give an accurate overview for any single month. Early in their association, Holmes called these problems to Petitioner's attention. Holmes had contemporaneously provided Petitioner with an analysis of his May 1985 ISDN submission, pointing out over 300 alleged errors by Petitioner. At formal hearing, Holmes expressed his concerns with regard to several months' submissions by showing one mathematical error of $300,000 on one of Petitioner's submissions, and by indicating that such an error was one example of several similar significant errors made repeatedly by Petitioner. Holmes indicated that the $300,000 error illustrated how the interdependence of rapidly changing data had not been accounted for by Petitioner, who apparently changed data entries piecemeal, as the data became available, without reconciling data as of one single given date each month. Holmes made distinctions between Petitioner's errors of omission, which Holmes had called to Petitioner's attention and which Petitioner often could rectify, and Petitioner's errors of internal contradiction within the reports which Petitioner seemed unable to comprehend. Simply stated, Petitioner always had some part of the report "out of sync" with another or other parts. Petitioner incorrectly attributes Holmes' criticisms of this and all of his ISDN report submissions to mere cosmetic or stylistic opinions or to Holmes' unawareness of the most up-to-date data. Holmes eventually would not accept Petitioner's relying on ISDN project delays (field implementation delays not attributable to Petitioner) as excuses to cover up ISDN report delays which clearly were attributable to Petitioner. Holmes described Petitioner's problem with the entire project as one of Petitioner's inability to conceptualize the project as opposed to Petitioner's unwillingness to do the project. In assessing the two witnesses' respective approaches to the report, Mr. Holmes' explanations are less emotional, more reasonable, more detailed, and more credible than are Petitioner's. Petitioner used ATTIS' internal EEO procedures to protest his performance appraisals by Rogers and Holmes and to object to the paygrade assigned to him when he came to work with Orlando ATTIS. Once in Orlando, Petitioner had discovered that the maximum of his paygrade range at Orlando ATTIS was lower than the maximum of his paygrade range at Miami ATTIS had been. Petitioner showed no reason management should correct Petitioner's inadvertent error but claimed Holmes blocked attempts which otherwise would have been successful to upgrade Petitioner's paygrade. Holmes denies it, stating he had no such authority. Concerning Petitioner's paygrade adjustment request, there is no space on the form requiring anyone in Holmes' position to approve it. Apparently, a higher superior named Ron Phillips signed the request for a concurrence by David L. Oertle and then signed "R.E. Phillips for David L. Oertle" [emphasis supplied] in the space wherein Mr. A Oertle's concurring signature was required (P-10). Why the paygrade adjustment did not go through under these peculiar circumstances or if there were other management considerations why it was not consummated is anybody's guess, but discrimination or interference by Mr. Holmes with regard to the paygrade adjustment request was not proven. Holmes admits he became aware of an internal EEO investigation of himself requested by Petitioner with regard to the failed pay adjustment request as set out infra. The paygrade adjustment was never a "promotion" as characterized by Petitioner. Mr. Holmes does not deny that he was aware in December 1984 that Petitioner had filed two previous internal EEO complaints at Southern Bell and at Miami ATTIS. He discussed these with Petitioner when Petitioner first joined his workforce because one complaint was ongoing and Holmes was afraid it would detract from some of Petitioner's work time. Early in 1985, Holmes noted these concerns in a personal journal he used to record many different kinds of events at his office. Petitioner acknowledged that he threatened Holmes with an EEO complaint at Orlando ATTIS if Holmes would not sign off on the paygrade adjustment request (TR 91). Holmes, already leery of Petitioner, and increasingly dissatisfied with Petitioner's job performance, gradually began to record in his personal journal reminders relating to Petitioner's job performance. In approximately April, 1985, upon suggestions from internal EEO personnel, Holmes began to more carefully document in his journal his confrontations with, and performance-related concerns about, Petitioner. When Petitioner discovered that portions of Holmes' journal relating to him had been circulated by Holmes to upper management, Petitioner perceived Holmes' actions as purely retaliatory for his EEO involvement and prepared by Holmes solely to get Petitioner fired for discriminatory reasons attributable to racial, ethnic, and national bias. I find that although Holmes' journal includes references to Petitioner and Petitioner's EEO involvement, the entries taken as a whole are reasonable under the circumstances and anticipatory of future need to document employee problems rather than evidence of discrimination against an employee for that employee's exercise of EEO involvement. Petitioner's allegations that Steve Holmes was improperly and unlawfully motivated for this journal are not adequately substantiated. Holmes declined Petitioner's request to sign his AB-36 form (P-19) so as to permit Petitioner to transfer divisions within ATTIS because Holmes felt Petitioner's past job performance for him did not merit the transfer to another job in the international or out-of-state geographic areas and in the substantive areas Petitioner had requested and because Petitioner presented the form to him simultaneously with Petitioner's move to another workforce within the same district. Also, the jobs listed were not necessarily open. In that new workforce, Petitioner was supervised by his third supervisor, Gus Schulties, for what was admittedly a very short period of time, approximately three months, one month of which Petitioner was on vacation. The credible evidence as a whole does not establish that Petitioner was transferred due to any belief in the truth of Petitioner's charges against Rogers or Holmes, but that it was in the nature of diffusing a bad situation created by Petitioner and giving Petitioner an opportunity to perform better. Around August 20, 1985, Schulties was reassigned and replaced by Barbara Wayne. Schulties' evaluation of Petitioner includes the following commentary: I think he should have been able to do more on his own effort. I do not believe he has the initiative to get deeply involved. * * * This employee needs development in many aspects of the data communications environment. (P-32) Schulties' written evaluation was signed by Petitioner's next supervisor, Barbara Wayne, because Schulties had been relocated on the date it was due. Later, Schulties concurred in the decision to terminate Petitioner. Mr. Schulties was present when Ms. Wayne fired Petitioner on November 18, 1985. Petitioner had worked for Wayne for approximately three months. While working for Ms. Wayne, Petitioner was orally counselled several times concerning his inability to conceptualize job assignments so as to achieve results, and these sessions were contemporaneously documented by Wayne, whose testimony at hearing was consistent and credible. Petitioner never achieved the objectives which directly applied to his job and which were set for him by Ms. Wayne. While working under Holmes, Schulties, and Wayne, Petitioner produced a number of what might be termed "self-assigned projects" of cosmetic or internal employee relations value, but these projects were not always directly related to the Petitioner's job or his employer's project objectives. While Petitioner established that ATTIS management would not approve all of the company training he wanted, his requests for such training were not always reasonable in relation to the subject matter of projects to which he was assigned, nor were his requests always reasonable in relation to management standards of cost-effectiveness and the employer's need for Petitioner's presence on the job. All of management's denials or non-approvals of training were reasonable in the context of balancing of costs against expected productivity to be gained from the training. Petitioner was, in fact, approved for, and attended, several training courses, and was paid overtime when he taught himself computer programs on nights and weekends, even though the use of the computer was nonessential to his job duties from management's perspective. Petitioner never established by direct credible evidence that other employees in similar circumstances at ATTIS Orlando were given the training he was denied or that his job truly required the training which he was denied. Petitioner speculated that certain employees resented him because he had a Bachelor's Degree which they did not have, but "college graduate" is not a statutorily protected classification. Several employee witnesses had at least some college courses. A college degree was not necessary for employment or promotion at ATTIS. Employee resentment that Petitioner did not meet deadlines and avoided necessary tasks he felt were below him did exist. Petitioner's initial internal (P-15, P-16) and external (P-40, P-41) complaints did not raise an issue of verbal slurs of national or racial tone, but his Petition for Relief does. At hearing, Petitioner initially accused supervisors Wayne and Holmes, and a coworker, Shipp, of making ethnic jokes and derogatory comments about Petitioner's race and national origin. However, Petitioner conceded that neither Schulties nor Rogers were ever out of line and that Wayne had very little conversation with Petitioner about his ethnic background or race. Petitioner testified that his relationship with Mr. Shipp was satisfactory except that Mr. Shipp repeatedly made comments and jokes concerning Petitioner's light skin and not being as black as a typical African; wanted to know about Petitioner's wife when Petitioner told Mr. Shipp that he had married a black woman; made some discriminatory comments concerning Petitioner's education and schooling in Africa; referred to Petitioner's family as "zebras" and "camel drivers," and suggested Petitioner had bought his University degree. As might be expected, all ATTIS personnel denied making any racial or ethnic slurs. Giving Petitioner every benefit of the doubt that some hurtful, biased comments may have been made by Shipp and Holmes, Shipp was only Petitioner's team leader for a short period of time when Petitioner was assigned to Barbara Wayne, and he was essentially Petitioner's peer. Shipp, like other employees, had input to Wayne's final evaluation, but he was not the sole source of Wayne's displeasure with Petitioner's performance, and Shipp never evaluated Petitioner. Petitioner was transferred away from Holmes' supervision in response to Petitioner's internal EEO complaints against Holmes, which complaints apparently were never verified by EEO and which complaints apparently never alleged any record of ethnic or racial slurs by Holmes. Petitioner concedes that he did not wish to make much of the comments and jokes around him and also took offense at most of his coworkers declining his invitations to coffee and lunch. Shipp did occasionally eat and take breaks with him. There apparently was little socializing in this workforce and Petitioner seemed to misunderstand that. It was also clearly established that the Respondent employer has in place an aggressive internal anti-discrimination grievance and affirmative action policy and procedures which Petitioner had free access to and which repeatedly gave him the benefit of the doubt. It was also affirmatively put forth by Petitioner that he made a point of confronting Mr. Schulties, Ms. Wayne, and Mr. Shipp and of telling each of them that he had had successful internal EEO actions, and/or that he had complained about Holmes before any one of them had any significant contact with him. (TR 176-177, 242, 251-252). Petitioner also affirmatively put forth that he "begged" Schulties and Wayne not to be prejudiced against him almost upon first meeting with each. I conclude that this overly aggressive and hypersensitive behavior on Petitioner's part resulted in his misconstruing some conversations and constituted a non- pretextual reason for Wayne to carefully document each meeting with Petitioner. Petitioner showed that one employee (Karnes) was negatively rated by Ms. Wayne for the first time but was permitted additional time to improve his performance without immediate termination, but Karnes' single negative evaluation does not correlate to Petitioner's negative ratings from four successive supervisors so as to demonstrate unequal treatment of Petitioner. Petitioner perceives all criticisms of, or negative comments about, his job performance as incorrect and without merit but the accuracy of his perception has not been adequately substantiated in this proceeding, and I find that his poor job performance was his employer's and supervisors' primary motivation in terminating Petitioner's employment. Petitioner's charges of discriminatory treatment are based largely on his perception or conjecture that there could be no nondiscriminatory reason for management's actions since he had the academic qualifications to do the job and the willingness to do it. However, his repeated failure to timely complete projects to his employer's specifications is sufficiently documented in the record. Petitioner's education and ability notwithstanding, Petitioner's performance was unacceptable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Human Relations Commission enter a Final Order dismissing Petitioner's Petition for Relief. DONE and RECOMMENDED this 25th day of February, 1988, 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 25th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1258 The following constitute rulings pursuant to section 120.59(2), Florida Statutes, upon Petitioner's and Respondent's respective proposed findings of fact (PFOF). Petitioner's PFOF 1-2. Except as subordinate or unnecessary covered in FOF 1. 3-4. Irrelevant. Except as irrelevant, covered in FOF 1. Rejected as not supported by the greater weight of the credible competent evidence but see FOF 22. 7-18. The only relevant and material history of Petitioner's relationship with Southern Bell is set forth in FOF 3. To the extent these proposals are not covered there, they are irrelevant or immaterial to any dispositive issue in this cause. 19. Covered in FOF 6. 20-23. Except as covered in FOF 6-7, rejected as immaterial. Covered in FOF 8. Not supported by the greater weight of the credible competent evidence as set forth in FOF 8. Job descriptions are not dispositive of any material issue in this cause. Petitioner received oral and written job descriptions at appropriate times. Covered in FOF 9. Covered in FOF 9-10. 28-29. Rejected as not supported by the greater weight of the credible competent evidence which resulted in the FOF 12-13. Had uppermost management approved the change, it would have gone through and there is insufficient proof it was justified just because Petitioner inadvertently accepted a lower pay grade and meant to accept a higher pay grade or that Petitioner interpreted a lateral transfer as being lateral in all respects including salary, when it was not. Peripherally, see the conclusions of law (COL). 30-32. Subordinate and unnecessary but it is noted that Petitioner's PFOF 31-32 admits receipt of a job description in this position and workforce. See peripherally FOF 11. Covered in FOF 11. Immaterial. 35-40. The proposals are mostly mere recitations of part of Petitioner's testimony as opposed to statements of ultimate or even material fact. Additionally, as stated, these proposals are not supported by the greater weight of the credible evidence as a whole. See FOF 11. 41-42 and 44. Immaterial and not dispositive of any issue at bar. 43 and 45. Covered in FOF 10-11, and 22. Rejected as not supported by the greater weight of the credible evidence as a whole. Moreover, Petitioner admits elsewhere in the record that if being told why and how his job performance needed improvement was counselling, the counselling occurred. The Hearing Officer recognizes that "counselling," "criticism," and "harassment" are all subjective words and has considered both the credibility and perspective of all witnesses' testimony and has considered all the documentary evidence in making these findings of fact. Covered in FOF 11. 49. Rejected as not supported by the greater weight of the credible evidence and as related in FOF 11. 48, 50-52. Except as subordinate and unnecessary, covered in FOF 8- 10. Except as subordinate and unnecessary, covered in FOF 19. Covered in FOF 12-13. Covered in FOF 10. There was some overlapping of supervisory- authority as found in FOF 7-12. However, the minimum inconsistencies in testimony and documentation recited by Petitioner's proposal are accounted for due to early failure to document, the on-again, off-again supervision of Mr. Rogers, and Petitioner's mid-year transfer to Mr. Schulties' supervision. Petitioner's proposal is therefore not consistent with the record as a whole, is immaterial, and is not dispositive of any material issue at bar. 56-72. FOF 13-14 cover relevant facts as supported by the greater weight of the credible competent evidence as a whole. Petitioner's proposals are not consistent among themselves and are mostly recitations of Petitioner's testimony concerning his own internal but unsubstantiated perceptions of events, and are rejected for those reasons and in certain respects, as demonstrated by the facts as found in FOF 13-14 and FOF 22, are not supported by the record as a whole. Other rejected material is rejected as subordinate or unnecessary as is also demonstrated by the ultimate facts as found in the recommended order. Rejected as not supported by the greater weight of the credible evidence as a whole. See FOF 11. Most of this proposal is rejected as subordinate and unnecessary. The remainder is rejected as not supported by the record as a whole. See facts as found in FOF 12- 15, and 20. Covered in FOF 20. 76 and 78. Subordinate and unnecessary and not dispositive of any issue at bar. 77. Rejected as not supported by the greater weight of the evidence as a whole except as covered in FOF 18. 79. Covered In FOF 17. 80-81. To the extent supported by the greater weight of-the credible competent, substantial evidence of record, these PFOF are covered in FOF 15-16; otherwise rejected as not so supported. 82, 86, 87. Rejected as not supported by the greater weight of the credible evidence as a whole and as not dispositive of any issue at bar; Petitioner received a job description under a different title plus considerable oral explanation. If Wayne did not reply in writing to every memorandum, it is immaterial. 83-85. Rejected as-covered in FOF 18. Petitioner did not establish that employees in similar circumstances were given more or different training than he was denied. 88-99. Again these are largely recitations of Petitioner's testimony rather than statements of ultimate fact. None are necessary or dispositive of a material issue at bar. The requests for additional work are immaterial since Petitioner was consistently being told he was not satisfactorily completing his basic assignments. See FOF 16, 20, and 22. Petitioner's PFOF 97 and 98 are also immaterial in that Petitioner appropriated all team credit to himself and passed off all personal inadequacies onto the team. See FOF 17 and 22. Except as set out supra, the PFOF 88-99 are subordinate and unnecessary. 100. Subordinate and unnecessary, but see FOF 16 and 17. 101-104. Except as subordinate and unnecessary or as not supported by the greater weight of the credible evidence, covered in FOF 19-20. 105-107. Rejected as stated because they are misleading of the record as a whole. Subject matter covered in FOF 15-16 and 20. 108-114. Except as subordinate or unnecessary or as not supported by the greater weight of the evidence, covered in FOF 15-16. 115. Unnecessary. Respondent's PFOF 1,3. Covered in FOF 1. 2. Covered in FOF 2-6. Covered in FOF 7, 15-16. Covered in FOF 1-6. 6-8. These proposals are generally rejected because they consist of many paragraphs, sentences, footnotes, and quotations which are not appropriately divided out and numbered pursuant to Chapter 120, Florida Statutes, and Rules 22I-6.24 and 22I-6.31, Florida Administrative Code, and instructions contained in the post-hearing order and authority cited therein, and which contain lengthy and burdensome recitations from documentary exhibits and of testimony rather than statements of ultimate facts to be found. Further, they contain large quantities of subordinate and unnecessary material interspersed with mere argument of counsel. Where they could be accepted, they are covered in FOF 7- 22. COPIES FURNISHED: Donald A. Griffin, Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Vidal Marino Velis, Esquire 2100 Coral Way, Number 300 Miami, Florida 33145 Sherryll Martens Dunaj, Esquire 501 City National Bank Building 25 West Flagler Street Miami, Florida 33130
The Issue The issue is whether the Petition for Relief should be dismissed as untimely because it was received by the Florida Commission on Human Relations (Commission) more than 35 days after the date of the Commission's "no cause" determination.
Findings Of Fact The following facts, which are assumed to be true for purposes of considering Respondent’s motion to dismiss,” are contained in the Petition and the related documents referred by the Commission to the Division: 1. On or about October 1, 1999, Petitioner filed a charge of discrimination with the Commission. 2. The charge alleged that during the course of her employment with Respondent, Petitioner was "subject to a racially and sexually hostile work environment" and that she was “subject to disparate treatment in terms of scheduling, job assignments, work conditions, promotions and disciplinary actions." The charge further alleged retaliation by Respondent as a result of Petitioner's complaints regarding the discriminatory treatment. 3. The Commission staff investigated the charge, and based upon that investigation, the Executive Director of the Commission issued a "no cause" determination on August 27, 2002. On that same date, notice of the determination was sent to Petitioner by U.S. Mail. 4. The notice stated in relevant part: NOTICE OF DETERMINATION: NO CAUSE PLEASE TAKE NOTICE that a Determination has been made in the above-referenced complaint that there is no reasonable cause to believe that an unlawful employment practice has occurred. A copy of the Determination is attached. [Petitioner] may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE. * * * If [Petitioner] fails to request an administrative hearing within 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992). (Emphasis supplied) . 5. Included with the notice was a blank Petition for Relief form, which Petitioner completed and sent to the Commission. 6. The Petition, like the charge of discrimination, alleges that Petitioner “was subject to a racially and sexually hostile work environment." 7. The Commission received the Petition on October 16, 2002, as shown by the date-stamp on the Petition. 8. There are no allegations in the Petition which explain the delay between the Commission's determination and the filing of the Petition. However, at the telephonic hearing on the motion to dismiss, counsel for Petitioner stated that the late filing of the Petition resulted from Petitioner’s mistaken assumption that weekends and holidays were not to be included when calculating the 35-day deadline for filing the Petition. 9. There is nothing to suggest that either the Commission or Respondent contributed in any way to Petitioner’s mistaken assumption regarding the calculation of the 35-day deadline. 10. Petitioner was apparently not represented by counsel at the time she filed the Petition.
Conclusions For Petitioner: Joseph P. Hoffman, Esquire 1415 Dean Street, Suite 110 Fort Myers, Florida 33901 For Respondent: Gordon R. Leech, Esquire Wiederhold, Moses & Rubin Brandywine Center II, Suite 240 560 Village Boulevard West Palm Beach, Florida 33409
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief with prejudice. _ | ; DONE AND ENTERED this / | day of April, 2003, in Tallahassee, Leon County, Florida. a, Ee To fod wore & T KENT WETH@RELL, Administrative Law guage Division of Administrative Hearings The DeSoto Building 1220 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 Pt Administrative Hearings this [ st day of April, 2003.
The Issue The issue for determination is whether Petitioner was subjected to discrimination in the work environment by the Department of Children and Families (DCF) due to Petitioner's race, sex, and martial status in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner Lince Musgrove Favors, a single African- American female (who has since married), began working for DCF as a Human Services Counselor III with the Aging and Adult Services Program in DCF's Panama City, Florida, office on October 3, 1988. In this capacity, Petitioner occupied Department Position Number 50790. Petitioner's duties involved services designed to help elderly persons remain in the community. One of her colleagues, fellow Human Services Counselor III Rebecca Schwetz, had the duties of implementing the Home Care for the Elderly and Home Care for the Disabled Programs, which focused on finding residential placements for the elderly and disabled in adult living facilities and adult family homes. In September 1995, due to budget cuts and the transfer of certain functions from DCF to the Department of Elder Affairs, a memorandum issued from DCF state headquarters announcing that 134 positions in DCF's Aging and Adult Services Program would be eliminated. District II of DCF, the District in which Petitioner worked, would eliminate 11 of these positions. George Benner, then the Operations and Program Administrator over the Aging and Adult Services Program in one portion of District II, had the responsibility of eliminating four of these positions. Benner, in making this difficult decision, sought to minimize the adverse impact on workers occupying these positions. Accordingly, he selected those positions which were already vacant or which were about to be vacated. As a consequence, Benner’s four choices of positions to be eliminated were the following: a) the position of Sydney Canaday, a white female clerical worker whose position was deemed to be less essential than others; b) the position of John Johnston, a white male who had indicated an interest in finding another position; c) the position of Petitioner who had expressed to Benner and others in the office, inclusive of her immediate supervisor, that she intended to marry and leave District II to find other employment; and d) a vacant position. While Petitioner, in the course of her testimony at hearing, denied saying that she intended to leave her position after her impending marriage, the testimony of her immediate supervisor and Benner that Petitioner intended to get married around the beginning of 1996 and leave District II to live with her new husband, was direct, candid, and credible. The testimony of Petitioner on this point is not credited. Petitioner made numerous attempts to find employment in DCF's District I during the months of October and November 1995. On October 13, 1995, Benner wrote a letter to the district program manager in District I recommending Petitioner for employment there. Benner also telephoned the district program manager with a recommendation for Petitioner. At this time, Benner still believed that Petitioner intended to leave District II and seek employment within District I. On October 31, 1995, DCF notified Petitioner in writing that the effective date of the deletion of her position would be December 29, 1995. The notification letter advised her of her right to request reassignment or demotion. Petitioner submitted a Request for Reassignment or Demotion on November 6, 1995. A Personal Interest Form submitted by Petitioner the same day specified that she was seeking employment in Okaloosa, Santa Rosa, Walton, and Escambia Counties. As the effective date of the position deletion drew near, DCF continued to search for a position for Petitioner. On December 1, 1995, DCF offered Petitioner a Human Services Counselor III position in the Developmental Disabilities Program in the Panama City, Florida, office. Petitioner declined this position because it involved different skills and a different clientele. Petitioner did not explain why she felt that it would be unacceptable to be required to acquire new knowledge and skills. As the December 29, 1995, deadline approached and Petitioner still had no other employment prospects, DCF took unilateral action to preserve Petitioner's employment and reassigned her, effective December 22, 1995, to a Health Services Representative position at the Bay County Public Health Unit. Petitioner received the same pay in the new position as she did in the Human Services Counselor III position. DCF continued to let Petitioner know that it would assist her in finding another position either in District II or elsewhere if she so desired. There is no evidence that Petitioner ever attempted to avail herself of this assistance. Due to legislatively mandated reorganization in the executive branch, the Department of Health was created and Petitioner's position at the Bay County Public Health Unit became a position within the Department of Health at some point subsequent to her reassignment to that position. In July 1999, Petitioner was still employed as a Health Services Representative with the Department of Health. At this time, the Department of Health informed Petitioner that her duties would now include drawing blood samples from the Health Department’s clientele. The Department of Health offered Petitioner training in how to safely draw blood, but she decided to resign instead. She was convinced that she would not be able to safely perform these tasks after receiving training in the proper technique, but she was able to offer no reasons at the hearing to support this belief. Petitioner submitted her resignation on July 19, 1999, effective August 5, 1999. The Department of Health accepted the resignation on July 20, 1999, and Petitioner voluntarily left her employment with the State of Florida on August 5, 1999. No evidence of any kind, direct or inferential, testimonial or documentary, was introduced to establish that DCF or any of its personnel were motivated negatively by concerns of race, sex, or marital status with regard to Petitioner. No pleading has identified with any specificity the type of relief sought. No evidence was introduced at the final hearing to establish what remedy would be required to make Petitioner whole relative to back pay, benefits, or other forms of relief.
Recommendation Based on the foregoing on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered dismissing the Petition for Relief. DONE AND ENTERED this 31st day of May, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway Suite 100 Tallahassee, Florida 32301 John R. Perry, Esquire Department of Children and Families 2639 North Monroe Street Building A, Suite 104 Tallahassee, Florida 32399-2949 Cecile M. Scoon, Esquire Peters & Scoon 25 East 8th Street Panama City, Florida 32401 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Suite 100 Tallahassee, Florida 32301
The Issue Whether or not Petitioner, Cynthia C. Barber, was harassed, and suffered constructive or retaliatory discharge from employment by Respondent, Modern Plumbing Industries, Inc. ("MPI"), as a result of racial and gender discrimination in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is a black female who, at all times material to the allegations of discrimination in the case, was employed as a plumbing apprentice by Respondent. Respondent is a Florida corporation which operates a commercial plumbing business. At any given time, Respondent may have 20-30 commercial plumbing jobs in Central Florida. These jobs run the spectrum from small residential repair jobs to major commercial installations in shopping centers. Petitioner began working for Respondent in 1996; first as a plumbing assistant, then, after being enrolled in a formal plumbing apprentice program, as a plumbing apprentice, assisting licensed plumbers. When she began working, Respondent sent Petitioner to a wholesale tool supplier where she purchased plumbing tools she would need. Respondent advanced Petitioner the money with which to purchase the tools; this advance was being paid back by automatic withdrawals from Petitioner's pay. In September and October 1997, Petitioner was working as a plumber's apprentice at a job known as the "Oviedo Mall" job. She was one of 10-40 MPI employees on the job. Steven Lewis was the project manager for all MPI jobs. Vincent Pizzuti was the job-site supervisor for the Oviedo Mall job. Chris Bateman was a MPI employee at the Oviedo Mall job working as a plumber. Mr. Bateman had no supervisory authority. In September 1997, an incident occurred wherein Mr. Bateman, who is a white male, threw paper which had been used to wrap a sandwich and a soda can in Petitioner's hard hat. Petitioner was offended by Mr. Bateman's actions and reported the incident to her crew foreman, Mike Higdon. Mr. Higdon immediately asked Mr. Bateman to stop; after a moment, Mr. Bateman stopped. Petitioner believed that this matter was handled satisfactorily. On October 1, 1997, late in the work day, while riding on a golf cart with Mr. Higdon, Petitioner was struck in the back with a "dirt rock." When she turned in the direction the "dirt rock" had come from, she saw Mr. Bateman and another employee looking her way and laughing. Petitioner confronted Mr. Bateman. When she returned to the golf cart, Mr. Bateman threw another "dirt rock." This time the confrontation became physical, and Petitioner and Mr. Bateman had to be separated by co-employees. Petitioner then reported the incident to Mr. Pizzuti who called a co-employee/supervisor on the radio and asked that Mr. Bateman be directed to come to MPI's on-site office. Mr. Bateman had either left the job-site or wouldn't respond to the directive to report to the office; as a result, Mr. Pizzuti advised Petitioner that he would talk to Mr. Bateman the following morning. Later that same evening Petitioner called Mr. Lewis, the project manager. Mr. Lewis advised Petitioner that Mr. Pizzuti had already advised him regarding the altercation, that Mr. Bateman's conduct was unacceptable, and that Mr. Bateman would be fired the following day. The following morning (October 2, 1997), Mr. Bateman was standing outside the job-site office when Petitioner arrived. During a discussion with a co-employee, Petitioner heard Mr. Bateman referring to her as a "bitch" and a "nigger." This resulted in another confrontation. Petitioner then went into the MPI job-site office and reported this incident to Mr. Pizzuti. Mr. Pizzuti then radioed Mr. Bateman's supervisor and directed that Mr. Bateman report to the office. After a few minutes, when Mr. Bateman had not reported to the office, Petitioner advised Mr. Pizzuti that she "could not work under these conditions" and left the job-site. Later that same day, Petitioner received a telephone call from Mr. Lewis who asked her "to come back to the job site, that something would be done" about Mr. Bateman. She told Mr. Lewis that the atmosphere was "too hostile." On October 2, 1997, shortly after Petitioner left the job-site office, Mr. Pizzuti met with Mr. Bateman about his conduct and attitude; an incident report authored by Mr. Pizzuti reflects that Mr. Bateman "became aggravated and stormed out of my [the] office in the middle of the conversation." At this point, Mr. Pizzuti terminated Mr. Bateman. Two days after being terminated, Mr. Bateman was rehired because he "begged for his job back"; MPI was desperate for help; and Petitioner was no longer working at the job-site. Approximately one week after leaving her job, Petitioner attempted to collect her last pay check. She was advised by Mr. Lewis that she had no pay coming because the money advanced for tools had not been paid back. He further advised her that she could be paid if she returned to work and the automatic deduction from her pay continued. During this discussion Mr. Lewis advised Petitioner (quoting Petitioner's testimony) that she "would not have to work with Chris Bateman," apologized for what happened, and assured her "this won't happen again." Petitioner elected to return to work and was assigned to a MPI job-site at Walt Disney World. Mr. McCandless was her job-site supervisor. Although the Walt Disney World job-site was not as convenient to her home as the Oviedo Mall job-site, Petitioner did not make any complaint to MPI management about the re-location. After she started working at the Walt Disney World job-site, Petitioner requested a Friday day-off for child- related reasons; her request was granted. The following Sunday, Petitioner called the MPI answering service to determine what job-site to report to the next day. This was a procedure that was normally used to determine where to report for work. The answering service advised that she was scheduled "off" for Monday. She repeated the process on Monday night and was again advised that she was scheduled "off" for Tuesday. On Tuesday morning, Petitioner telephoned the MPI office and asked to speak to Mr. Lewis and was advised that Mr. Lewis was on vacation. Petitioner then asked to speak to the owner of MPI; she was advised that the owner was not available. Petitioner did not telephone or visit the MPI office following the Tuesday morning telephone call. She did not attempt to call her job-site supervisor, Mr. McCandless. Petitioner just stopped working at MPI.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief herein should be dismissed with prejudice. DONE AND ENTERED this 9th day of August, 2002, 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 9th day of August, 2002. COPIES FURNISHED: Cynthia C. Barber 1704 Hawkins Avenue Sanford, Florida 32771 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Amanda J. Green, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues are (1) whether the Petition for Relief filed by Petitioner was timely under Section 760.11(7), Florida Statutes, and (2) whether Respondent engaged in an unlawful employment practice in violation of the Florida Civil Rights Act of 1992 when it terminated Petitioner's employment as a retail sales associate in May 1998.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties Petitioner is an African American female. During the period of time at issue in this proceeding (i.e., January through May 1998), Petitioner was 49 years old. Respondent is a retail department store chain with stores located throughout Florida, including a store in Oviedo, Florida. Respondent is an employer subject to the Florida Civil Rights Act of 1992. Petitioner's Employment With Respondent On or about January 30, 1998, Petitioner was hired by Respondent to work as a retail sales associate in Respondent's Oviedo store. She was originally assigned to work in the women's clothing department. Petitioner was interviewed and hired by Heidi Jensen, a white female. Ms. Jensen was the assistant sales manager responsible for the women's clothing department, and was Petitioner's direct supervisor throughout the course of Petitioner's employment. Petitioner was hired as a part-time employee at a rate of $9.00 per hour. As a part-time employee, she worked approximately 20 hours per week. Petitioner's schedule was flexible; she worked eight hours on some days and four hours or less on others. She was typically scheduled on the closing shift (i.e., nights), rather than the opening shift. On February 7, 1998, Petitioner signed a certification indicating that she had read and agreed to abide by Respondent's work rules and policies. Those rules include the following directive, hereafter referred to as "Work Rule 10": Associates must exhibit positive behavior toward their job, Management, supervisors, and co-associates in all of their actions and speech. Customers must always be treated courteously. Anything to the contrary will not be tolerated. On February 8, 1998, Petitioner attended a general orientation at which the work rules and policies were discussed. That orientation was also attended by other recently-hired employees, including non-African American employees. Petitioner received additional training from Respondent throughout her employment, including customer service and sales training and direction for handling merchandise returns. That training was also provided to other employees, including non- African American employees. Petitioner never received formal training on how to "open" the store. However, as noted above, Petitioner typically worked during the closing shift rather than the opening shift. Slightly more than a month into her employment, Petitioner's co-workers began complaining about her unprofessional behavior. The complaints alleged that Petitioner yelled at co-workers; that she initiated arguments with co- workers in front of customers regarding who should get credit for the customer's purchases; that she referred to the customers in the woman's department (which caters to larger women) as "fat pigs"; that she stole customers from her co-workers; that she referred to some of her co-workers as "vultures" and others as "bitches" or "wolves," often in front of or within "earshot" of customers; and that she generally upset or harassed co-workers through her attitude and derogatory comments. The complaints came from eight different co-workers, at least one of whom was an African American female. The complaints were made in writing by the co-workers, typically through signed, hand-written statements given to Ms. Jensen or the store manager. Petitioner denied making any of the statements or engaging in any of the conduct alleged in the complaints. In response to the complaints, she took the position that she was being "singled out" by her co-workers because her aggressive tactics made her a more successful salesperson than most of her co-workers. Despite Petitioner's denials, Ms. Jensen determined that disciplinary action was appropriate based upon her investigation of the complaints. Ms. Jensen gave Petitioner a verbal warning "concerning using a positive attitude towards merchandise and customers" on March 7, 1998, and she gave Petitioner a formal written warning for her lack of positive attitude towards customers and co-workers on March 19, 1998. Both warnings cited Work Rule 10 as having been violated. Despite the warnings, Petitioner's conduct continued to generate complaints from her co-workers. She received another verbal warning from Ms. Jensen on April 17, 1998, and she received a formal written warning from the store manager on April 22, 1998. Again, the warnings cited Work Rule 10 as having been violated. Petitioner continued to deny any wrongdoing. She again claimed that she was being "targeted" by her co-workers because of their "jealousy and envy" over her success as a salesperson. The April 22, 1998, written warning stated that "[i]f there is one more report of negativity or verbal abuse of customers or associates, [Petitioner] will be terminated." It also enumerated Respondent's "expectations" with respect to Petitioner's conduct, including a requirement that Petitioner "never confront an associate in front of a customer" (emphasis in original). At some point after the April 22, 1998, written warning, Petitioner was transferred from the women's department to the casual department to give her a "clean slate" with her co-workers. Despite the transfer, Petitioner's co-workers continued to complain about her behavior. The complaints were of the same nature as the complaints discussed above, e.g., stealing sales from other co-workers and initiating confrontations with co-workers over customers in the customer's presence. On May 22, 1998, Petitioner and a co-worker, Brenda Ross, "had words" over a customer. When confronted about the incident by Ms. Jensen, Petitioner "was loud and aggressive" towards her. As a result of this incident and the prior warnings, Ms. Jensen recommended that Petitioner's employment be terminated. The store manager accepted Ms. Jensen's recommendation, and, Petitioner was terminated on May 22, 1998. Thus, the term of Petitioner's employment with Respondent was less than four months. After she was fired, Petitioner returned to her work station to retrieve her belongings. While doing so, she confronted Ms. Ross and called her a "lying bitch" (according to Petitioner's own testimony at the hearing) or something similarly derogatory.1 There are no videotapes of the incidents described above. None of the co-workers who reported the incidents testified at the hearing. Nevertheless, the co-worker's contemporaneous hand-written reports of the incidents which were received into evidence (Respondent's Exhibits 21-30) are found to be credible based upon their general consistency and the corroborating testimony of Ms. Jensen at the hearing. By contrast, Petitioner's testimony regarding the incidents was not credible. There is no credible evidence to support Petitioner's allegations that she was denied the opportunity to file complaints against her co-workers. Nor is there any credible evidence that Petitioner did file complaints (alleging discrimination or anything else) which were ignored by Respondent's management. By all accounts, Petitioner was a good salesperson; her sales per hour were high and, on several occasions, they were the highest in the department where she was working. Ms. Jensen complemented Petitioner on at least one occasion for her high level of sales. Petitioner was also punctual and had a good attendance record. She was on track to receive a pay increase at her next review. However, as a result of the unprofessional behavior detailed above, she was fired prior that review. Petitioner is currently unemployed. She has not held a job since she was fired by Respondent in May 1998. However, she has only applied for four or five other jobs since that time. Petitioner's Discrimination Claim Petitioner first contacted the Commission regarding her allegation that Respondent discriminated against her on or about June 29, 1998. On that date, she filled out the Commission's "intake questionnaire." On the questionnaire, she indicated that she had sought assistance from attorney Anthony Gonzales, Jr. (Attorney Gonzales) regarding the alleged discrimination by Respondent. Petitioner also listed Attorney Gonzales as her representative on the "intake inquiry form and complaint log" completed on or about July 10, 1998. Petitioner consulted with Attorney Gonzales in April 1998, prior to her termination. Although Petitioner claimed at the hearing that Attorney Gonzales did not agree to represent her beyond the initial consultation, Petitioner provided the Commission a copy of Attorney Gonzales' business card and a copy of the check by which Petitioner paid Attorney Gonzales' consultation fee with the Commission's intake documents. Based upon those documents, the Commission apparently (and reasonably) assumed that Attorney Gonzales was Petitioner's attorney because it subsequently directed various letters to Petitioner "c/o Anthony Gonzales, Jr., Esq." at Attorney Gonzales' address. Petitioner filed her formal charge of discrimination on November 9, 1998. The charge did not reference Attorney Gonzales. Nevertheless, on December 7, 1998, the Commission sent a letter to Petitioner "c/o Anthony Gonzales, Jr., Esq." at Attorney Gonzales' address confirming receipt of the charge of discrimination. The record does not include any correspondence from Attorney Gonzales to the Commission in response to the December 7, 1998, confirmation letter. However, Attorney Gonzales continued to receive correspondence from the Commission regarding Petitioner's charge of discrimination after that date. On February 2, 1999, the Commission sent a letter to Petitioner "c/o Anthony Gonzales, Esq." at Attorney Gonzales' address indicating that Petitioner's charge of discrimination had been pending for over 180 days and identifying the options available to Petitioner. The letter was accompanied by an "election of rights" form which was to be completed and returned to the Commission. Attorney Gonzales apparently forwarded the form to Petitioner because Petitioner completed and signed the form and returned it to the Commission on June 17, 1999. This strongly suggests that there was an attorney-client relationship between Attorney Gonzales and Petitioner at the time. Indeed, if there was no attorney-client relationship, either Petitioner or Attorney Gonzales would have informed the Commission in connection with the return of the form that Attorney Gonzales was not representing here. However, neither did. The record does not include any additional communications between the Commission and Petitioner and/or Attorney Gonzales between June 1999 and August 2001. Notably absent from the record is any notice to the Commission that Attorney Gonzales was no longer representing Petitioner. On August 31, 2001, the Executive Director of the Commission issued a "no cause" determination on Petitioner's charge of discrimination. On that same date, the Clerk of the Commission sent notice of the determination to Petitioner "c/o Anthony Gonzales, Jr., Esq." at Attorney Gonzales' address. The notice stated that "[c]omplainant may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE" (emphasis supplied and capitalization in original), and further stated that the claim "will be dismissed" if not filed within that time. Attorney Gonzales contacted Petitioner by telephone after he received the notice of determination. The record does not reflect the date of that contact. However, Petitioner testified at the hearing that Attorney Gonzales informed her during the telephone call that the deadline for requesting a hearing had not yet expired. Accordingly, the contact must have occurred prior to October 5, 2001, which is 35 days after August 31, 2001. Despite the notice from Attorney Gonzales, Petitioner did not immediately file a Petition or contact the Commission. She did not contact the Commission until October 16, 2001. On that date, she spoke with Commission employee Gerardo Rivera and advised Mr. Rivera that Attorney Gonzales was not representing her. Mr. Rivera indicated that the Commission would send an "amended" notice directly to her. An "amended" determination of no cause was issued by the Executive Director of the Commission on October 26, 2001. On that same date, an "amended" notice of determination was mailed to Petitioner. Included with the "amended" notice was a blank petition for relief form. Petitioner completed the form and mailed it to the Commission. The Petition was received by the Commission on November 28, 2001,2 which is 33 days after the date of the "amended" determination, but 89 days after the date of the original August 31, 2001 determination. Mr. Rivera's affidavit (Exhibit P1) characterized the mailing of the original determination to Attorney Gonzales as "our [the Commission's] error" and a "mistake." The preponderance of the evidence does not support that characterization. Specifically, the record reflects that it was Petitioner who gave the Commission the impression that Attorney Gonzales was representing her, and neither Petitioner nor Attorney Gonzales did anything to advise the Commission otherwise during the two and one-half years that the Commission investigated Petitioner's charge of discrimination and sent letters to Attorney Gonzales on Petitioner's behalf. Indeed, Petitioner testified at the hearing that the October 16, 2001, conversation with Mr. Rivera was the first (and only) time that she informed the Commission that Attorney Gonzales was not representing her.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief. DONE AND ENTERED this 31st day of December, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 31st day of December, 2002.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Sylvester Brown, was subject to discrimination in employment for the reasons alleged in the Petition.
Findings Of Fact The Petitioner, Sylvester Brown, was terminated from his position as Laborer, position number 51343, within the Facilities Operation and Maintenance Department of Florida State University (FSU) on October 7, 1999, for violation of a Last Chance Agreement and absence without authorized leave. The Petitioner had been employed by FSU for 24 years. Petitioner's Disciplinary Violations Leading to Termination Attendance is a critical element of the Laborer's job because departmental productivity depends on the reliable availability of employees. The Petitioner received a copy of Rule 6C2-4.070, Guidelines for Disciplinary Action, Rules of the Florida State University Administrative Code on January 29, 1988, which provided notice to the Petitioner of FSU's standard of conduct and the associated penalties for violation. The Petitioner was cited for numerous disciplinary infractions prior to his dismissal. The Petitioner's work history documents a consistent trend of absences which grew progressively worse over time. A list of documentation in evidence, exhibiting disciplinary action taken by FSU against the Petitioner includes: A three day suspension for Absence Without Authorized Leave (AWOL) and Excessive Absences, dated January 3, 1997. A written reprimand for Excessive Absences and AWOL, dated August 6, 1996. An oral reprimand for excessive absences, dated April 26, 1996. 1996. A written reprimand for AWOL, dated February 29, A written reprimand for AWOL, dated August 14, 1991. A written reprimand for excessive tardiness, dated June 5, 1989. A written reprimand for excessive tardiness, dated February 22, 1989. A written reprimand for excessive tardiness, dated July 8, 1988. A written reprimand for AWOL, dated May 25, 1988. The Petitioner was cited for excessive tardiness in an official written reprimand dated July 8, 1988, and the Petitioner was again reminded that his performance hindered the department's ability to perform its function. An oral reprimand for excessive tardiness, dated January 28, 1988. An oral reprimand for misuse of state property and equipment, dated July 11, 1985. A written reprimand for misuse of state property and equipment dated March 21, 1984. A written reprimand for excessive absences, dated February 7, 1984. A written reprimand for AWOL and misuse of state property and equipment dated, January 25, 1983. A three day suspension for AWOL, dated July 27, 1981. A written reprimand for AWOL, dated July 13, 1981. The Petitioner was directed in an August 14, 1991, written reprimand to phone his supervisor as close to 8:00 a.m. as possible on days he would be unable to report to work. The Petitioner was reminded in the February 29, 1996, written reprimand of the policy requiring employees to provide supervisors with advanced notice or documentation for leave to be authorized. The Petitioner was informed on April 26, 1996, that his absences, both excused and unexcused, exceeded established attendance and leave standards. Specifically, from January through April, the Petitioner used 33 hours of annual leave, 31 hours of sick leave, and 29 hours of leave without pay. FSU notified the Petitioner that his absences and sick leave totaling 33 hours during the period from April 26, 1996 to August 6, 1996, were deemed excessive and in contravention of departmental standards. The Petitioner was also cited for six hours of being absent without authorized leave. The Petitioner's chronic absenteeism did not improve. The period from August 6, 1996 through January 3, 1997, witnessed 46 hours of sick leave or unauthorized leave on the Petitioner's part. An inventory of the Petitioner's absences following his suspension from January 7-9, 1997 until August 22, 1997, catalogued 56 hours of sick leave, 16 hours of leave without pay and two hours of absence without authorized leave. This amount of leave was "considered to be excessive and completely unacceptable." [Id.] Further, the university did not receive any medical excuses for the Petitioner's use of sick leave during this period. [Id.] Counseling was provided to the Petitioner by FSU regarding the use of sick leave on August 17, 1998. An examination of the Petitioner's attendance revealed that he used 63 hours of sick leave from February 20, 1998 through August 6, 1998. [Id.] The university's standard for the same period of time was 33 hours of sick leave. [Id.] The Petitioner was further advised by FSU that he would not be compensated for three consecutive absences or three absences within a 30-day period without proper medical documentation. FSU assessed the Petitioner's attendance from January 8, 1998 through August 6, 1998, by comparing the standard allocated for sick leave to the Petitioner's actual use of sick leave. The sick leave standard for employees for the period under review was 44.16 hours whereas the Petitioner expended 67 hours of sick leave. [Id.] The record establishes that the Petitioner was warned 17 times in writing through reprimands, memorandums, and counseling notices dating back to 1981 that absenteeism was punishable under university employee disciplinary standards. Tardiness and absenteeism are, in fact, grounds for dismissal under the FSU Handbook for Employees. The Petitioner was warned twice in writing that failure to rectify his recurring absenteeism could result in his dismissal. Petitioner's Termination The FSU's Guidelines for Disciplinary Action are based on the concepts of progressive and cumulative discipline. The Disciplinary Guidelines outline standards to apply for punishable offenses to ensure similar treatment. Ms. Susannah Miller, Manager of Employees Relations at FSU, testified that the Petitioner's personnel file revealed the worst case of absenteeism she has seen at FSU. Excessive absences is defined in the Guideline for Disciplinary Action as "an attendance record of recurring absences, even though all or a majority of the absences were necessary and excused." Dismissal is allowed as proper punishment for an employee's fourth violation of the excessive absence rule. FSU notified the Petitioner of its intention to terminate him for excessive absences, effective on or shortly after October 12, 1998. In lieu of firing the Petitioner, FSU elected to allow the Petitioner to enter into a "Last Chance Agreement" (LCA) with FSU to avoid dismissal. Ms. Miller stated that Last Chance Agreements allow a final opportunity for employees to improve their performance. Ms. Miller further testified that to her knowledge FSU has never retained any employee that violated a Last Chance Agreement. The Last Chance Agreement required the Petitioner to (1) obtain prior written approval of requests for annual leave or leave without pay; (2) follow departmental policy and call-in between 8:00 and 8:30 a.m. and speak personally with his supervisor or proper designee if he was sick and unable to report to work; and (3) agree that violation of any LCA provision would result in immediate termination for cause. The Petitioner violated the Last Chance Agreement when he did not report for work on August 27, 1999, because he neither obtained prior approval for the absence nor followed the call-in procedure. The Petitioner also failed to provide any documentation justifying his absence. The Petitioner was in violation of the Last Chance Agreement on August 31, 1999, when he was tardy without permission and failed to follow the call-in procedure. The Petitioner's breach of the Last Chance Agreement is even more egregious because he collected his paycheck prior to work and could have easily informed his supervisor or the designee that he needed leave that day. In addition to violating the terms of the Last Chance Agreement, the Petitioner was also AWOL on August 27 and August 31, 1999. AWOL is "failure to obtain approval prior to any absence from work" and is punishable by dismissal for the third occurrence. The Petitioner admitted that he violated the Last Chance Agreement. On September 15, 1999, FSU informed the Petitioner of its decision to terminate him for violating the Last Chance Agreement and absence without authorized leave. The Petitioner was dismissed on October 7, 1999. Petitioner's Step One Grievance was denied on December 13, 1999. FSU's decision to terminate the Petitioner for violation of the Last Chance Agreement and absence without authorized leave was upheld by the State University System of Florida in its Step Two Grievance decision. Petitioner's Injury The Petitioner's Position Description reveals that lifting is an integral part of a laborer's duties. The Petitioner's 1995 Position Description allocates 85 percent of the job's essential function to lifting, moving and arranging university property and requires that the laborer be able to lift 30 pounds. The Petitioner sustained a back injury at work on September 4, 1997. The Petitioner's job duties changed as a result of the injury and he was tasked with inspecting fire extinguishers from September 10 through November 12, 1997. A physical capacity assessment performed on the Petitioner indicated that he was capable of performing at a medium demand level. The Department of Labor defined medium demand as capable of lifting 50 pounds and pushing and pulling 50 pounds. The Petitioner was temporarily re-assigned to the Grounds Section of the Facilities, Operations and Maintenance Department on December 23, 1997. The Petitioner testified that his job function involved re-cycling. The Petitioner's assignment in the Grounds Section was light duty and he was informed that his job duties could be modified after his physician reviewed the physical capacity assessment. Dr. Alexander, the Petitioner's physician, declared the Petitioner fit for medium demand duty with a 35-pound lifting limit on March 24, 1998. Robert Pullen, American Disabilities Act Coordinator at FSU, was directed by Carolyn Shackleford, under the University's Reasonable Accommodation Policy, to ensure that the Petitioner's job activities with the Grounds Section did not exceed the 35p-pound lifting threshold. The Petitioner never contacted Mr. Pullen's office regarding reasonable accommodation. Mr. Pullen determined that the Petitioner's duties did not violate the lifting restriction and were in full compliance with the accommodation policy. The Petitioner testified that he could lift 35 pounds repetitively. The record reflects no evidence of age discrimination committed by the Respondent against the Petitioner. The record indicates no evidence that the Petitioner was terminated due to his race. The Petitioner presented no evidence or testimony regarding retaliation by FSU.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
