The Issue Whether Petitioner was the subject of discrimination based on her race, sex or handicap in leasing her apartment from Respondents in violation of Sections 804d and 804f of Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Act of 1988 and the Florida Fair Housing Act and Section 760.23(2)(4), Florida Statutes (2008).
Findings Of Fact Petitioner is a white female with a mental impairment. As such, she is a member of a protected class. Boardwalk Apartments (Boardwalk) is a large apartment complex owned by Blackwater Housing Corporation (Blackwater) and managed by Progressive Management of Milton, Inc. (Progressive). Boardwalk leases 6 apartments to Lakeview Center. Neither Blackwater, Progressive nor Boardwalk had any substantial contact with Petitioner. Nor were any of these Respondents involved in the lease arrangement Petitioner had with Lakeview Center. Because of this lack of involvement, Blackwater, Progressive and Boardwalk were dismissed as parties at the close of Petitioner’s case in chief. Lakeview Center leases its Boardwalk Apartments to its clients who qualify for services in its Independent Living Program. In order to qualify to lease an apartment under the Independent Living Program, a person must have a major mental illness and be homeless. The program is a therapeutic program with a housing component that is intended to help homeless, mentally-ill clients of Lakeview learn and attain independent living skills. If a person qualifies for the program, he or she enters into a contract and a lease with Lakeview Center that requires the tenant to clean and maintain the apartment he or she leases. All the apartments at Boardwalk could be leased to two clients at one time. During the time relevant to this proceeding, the Lakeview apartments at the Boardwalk Apartment complex were leased to six tenants. Like Petitioner, all six tenants were female, White, and had a mental disability. In fact, the only tenants that Lakeview can provide housing to under its Independent Living Program are homeless individuals with a mental impairment. On November 7, 2008, Petitioner applied to rent a unit through the Lakeview Center Independent Living Program and was accepted. She entered into the standard contract and lease used by Lakeview Center in its Independent Living Program. As with all of Lakeview’s tenants, the contract required Petitioner to clean and maintain the apartment. The apartment at the Boardwalk Apartment complex assigned to Petitioner was newly renovated and relatively clean. One other Lakeview client was living in the apartment. Petitioner did not provide any credible evidence to support that the apartment was filthy or that she was given or held to different terms and conditions than other residents of the Independent Living Program based on her race, sex, color or disability. Indeed, her roommate lived in the apartment under the same terms and conditions that Petitioner lived in the apartment. Petitioner did not present any evidence regarding any of the other tenants’ terms and/or conditions relative to their apartments. Petitioner, simply, did not like the condition of her apartment, refused to clean the apartment and, the next day, declined to stay in the apartment. Petitioner’s other complaint was that she did not like the way she was treated by Mr. Baldwin, who coordinates Lakeview’s Independent Living Program. She thought he was extremely rude to her. However, there was no evidence that demonstrated Petitioner was treated differently than any of the other Lakeview clients in the Independent Living Program with whom Mr. Baldwin works. Given the lack of evidence in this case and the fact that all of Lakeview’s tenants at the Boardwalk apartments were mentally handicapped and the same race and sex as Petitioner, Petitioner has failed to demonstrate that Respondent discriminated against her on the basis of her race, sex or handicap. Therefore, the Petition for Relief should be dismissed.
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 of Relief. DONE AND ENTERED this 28th day of September, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2009. COPIES FURNISHED: Susan Walters 112 Bartow Avenue Pensacola, Florida 32507 Sterling Baldwin, B.A. Lakeview Center 1813 North J Street, Building L Pensacola, Florida 32501 Dan D’Onofrio Blackwater Housing Corporation, Progressive Management of Milton, Inc. And Boardwalk Apartments 205 Brooks Street, Southeast, Suite 305 Fort Walton Beach, Florida 32548 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner when it fired her in March 2004.
Findings Of Fact Petitioner is an African-American female. Hampton Court is assisted living facility in Haines City, Florida. Its residents include elderly Medicaid recipients. Kenneth Wilder is the executive director of Hampton Court. Mr. Wilder is a white male. Mr. Wilder has approximately nine years of experience administering assisted living facilities, and at the time of the events giving rise to this proceeding, he had been the executive director of Hampton Court for approximately a year and a half. Petitioner’s immediate supervisor was Dorothy Pelemon. Ms. Pelemon, like Petitioner, is an African-American female. Petitioner was hired by Hampton Court as a Resident Care Aide in early February 2004. Her primary job duties in that position were providing direct care to Hampton Court residents. Petitioner’s salary was $7.50 per hour, and she typically worked 40 hours per week. Several weeks after she was hired, Petitioner was promoted to the position of Resident Care Manager. In that position, Petitioner still provided direct care to Hampton Court residents, but she also had some supervisory duties. Petitioner only held the Resident Care Manager position for two or three weeks. On March 10, 2004, she was demoted back to the position of Resident Care Aide for improperly transcribing medications on patient charts and for improperly assisting a patient with his medications. On Saturday, March 20, 2004, Petitioner was involved in an altercation with another employee, Ivette Rodriguez. Ms. Rodriguez is a Puerto-Rican female. She was re- hired as a Resident Care Aide at Hampton Court in early March 2004, after having been fired approximately six months earlier for excessive tardiness and absenteeism. The altercation between Petitioner and Ms. Rodriguez was the culmination of a series of disputes that the two had on March 20, 2004. According to Petitioner, the disputes started when Ms. Rodriguez got agitated with her when she took responsibility for the upstairs residents, who had fewer medications, and left Ms. Rodriguez with the downstairs residents, who had more medications. According to Petitioner, Ms. Rodriguez also got agitated with her later in the day for not taking a phone message. Petitioner also testified that she was agitated with Ms. Rodriguez for taking breaks and receiving numerous phone calls while “on the clock.” According to Petitioner, the altercation that led to her firing started when she observed Ms. Rodriguez writing in the “manager’s log” at the nursing station. Petitioner told Ms. Rodriguez that she was not allowed to write in the log and Ms. Rodriguez got upset. Petitioner and Ms. Rodriguez exchanged words, and at one point during the altercation, Petitioner told Ms. Rodriguez that “you don’t know who you’re dealing with,” or words to that effect, and she expressly threatened to send Ms. Rodriguez to the hospital. Petitioner did not follow through on the threat, and there was no physical contact between her and Ms. Rodriguez at any point during the altercation. The altercation was entirely verbal and never went beyond Petitioner and Ms. Rodriguez yelling at each other. The altercation was witnessed by other employees and by Hampton Court residents, and according to the “write-ups” given to Petitioner and Ms. Rodriguez, the altercation “created a hostile living environment for [the residents].” Petitioner and Ms. Rodriguez were separated for the remainder of the day, and there were no further incidents between the two. Neither Mr. Wilder, nor Ms. Pelemon was at the facility at the time of the altercation between Petitioner and Ms. Rodriguez. Mr. Wilder and Ms. Pelemon conducted an investigation into the altercation the following week. Based upon the investigation, they preliminarily decided that both Petitioner and Ms. Rodriguez should be fired and “write-ups” were prepared to effectuate that discipline. The “write-up” for Petitioner contains the following account of the altercation: On March 20, 2004, [Petitioner] was involved in an altercation with co-worker Ivette Rodriguez. The altercation resulted when [Petitioner] took control of the upstairs med cart instead of the one she was supposed to take control of. [Petitioner] refused to cooperate and escalated the level of aggression in the fight making threats such as, “I’ll send to you Heart of Florida Hospital!” . . . . The “write-up” for Ms. Rodriguez contains the following account of the altercation: On March 20, 2004, [Ms. Rodriguez] was involved in an altercation with co-worker [Petitioner]. The shouting and fighting took place in public areas and was witnessed by co-workers and residents. [Ms. Rodriguez] also had her brother-in-law come to the community to get involved by confronting [Petitioner]. . . . . The source of the accounts of the altercation in the “write-ups” is not entirely clear and, as a result, the findings made above regarding the altercation are based on Petitioner’s testimony at the hearing rather than the accounts in the “write- ups”. (It is noted, however, that the “write-up” given to Petitioner and her testimony at the hearing both make reference to her express threat of physical violence towards Ms. Rodriguez.) Mr. Wilder and Ms. Pelemon met with Ms. Rodriguez on March 24, 2004, to discuss the altercation. Ms. Rodriguez was given an opportunity to tell her side of the story and to explain her actions. In doing so, Ms. Rodriguez acknowledged that her actions were wrong, she expressed remorse for her role in the altercation, and she promised that it would not happen again. Based upon the remorse expressed by Ms. Rodriguez, Mr. Wilder and Ms. Pelemon agreed that Ms. Rodriguez should be suspended for one week rather than be fired. The “write-up” prepared in advance of the meeting was edited to change Ms. Rodriguez’s discipline from termination to “1 week suspension from 3/24/04 to 3/30/04.” Mr. Wilder and Ms. Pelemon met with Petitioner the following day, March 25, 2004, to discuss the altercation. Like Ms. Rodriguez, Petitioner was given an opportunity to tell her side of the story and to explain her actions, but unlike Ms. Rodriguez, Petitioner expressed no remorse for her actions and, according to Mr. Wilder, she was loud and acted aggressively during the meeting. Petitioner and Ms. Pelemon testified that Petitioner did not act aggressively during the meeting but, consistent with Mr. Wilder’s testimony, they acknowledged that Petitioner did speak in a loud voice at the meeting and that she never expressed any remorse for her involvement in the altercation with Ms. Rodriguez. Based upon the lack of remorse expressed by Petitioner regarding her role in the altercation, Mr. Wilder and Ms. Pelemon agreed that the preliminary recommendation of termination should stand for Petitioner, and her employment with Hampton Court was terminated on March 25, 2004. Ms. Pelemon testified that she fully supported the decision to fire Petitioner for her role in the altercation with Ms. Rodriguez and, consistent with Mr. Wilder’s testimony, Ms. Pelemon testified that race played no part in Petitioner’s termination. Ms. Pelemon also testified that she fully supported the decision to suspend Ms. Rodriguez rather than fire her based upon the remorse that she expressed for her role in the altercation. Petitioner started working for Wal-Mart in May 2004, and she is still working there. She is paid $15.10 per hour and she typically works 36 hours per week. Ms. Rodriguez was fired by Hampton Court in August 2004 for poor work performance.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing with prejudice Petitioner’s discrimination claim against Hampton Court. DONE AND ENTERED this 25th day of October, 2005, in Tallahassee, Leon County, Florida. S 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 25th day of October, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Kenneth Wilder Heart of Florida Care Inc., d/b/a Hampton Court of Haines City 301 South 10th Street Haines City, Florida 33844 Laurie Ann Johnson 623 Avenue O, Northeast Winter Haven, Florida 33881
The Issue The issue is whether the Respondent committed an unlawful employment practice under section 760.10, Florida Statutes (2011), by discriminating against Petitioner on the basis of race or sex, and if so, what remedy should be ordered.
Findings Of Fact Apalachee Center is a not-for-profit health center providing mental health and substance abuse services in the Big Bend region of North Florida, which employs over 15 people. One of its facilities is a 16-bed mental health residential facility in Tallahassee, Florida, primarily housing men who suffer from severe mental illness. Ms. Sandra Johnson, an African–American woman and Petitioner in this case, has been a Licensed Practical Nurse (LPN) since 1984. She began working for Respondent in 2009 as the only LPN on duty on “B Shift Days” from 7:00 a.m. to 7:00 p.m. at the Forensic Residential Program. Another LPN, Ana Degg, was a white woman who worked on the “A” shift, and was the lead forensic nurse and Petitioner’s acting supervisor, though she was not actually present during the shift Petitioner worked. Most of the residents in the facility in which Petitioner worked have been found incompetent by the criminal justice system and have been sent to the program by court order. Petitioner maintained their medications, monitored their health, and helped to ensure that they did not leave the facility. At the time she was hired, Petitioner was made aware of Apalachee Center’s policies prohibiting discrimination and had been advised to immediately report any suspected discrimination to the Human Resources Department. Ms. Candy Landry, the Human Resources Officer at Apalachee Center, is proud of Apalachee’s diversity record. Apalachee employs more African-Americans than whites. Ms. Degg had some conflicts with Petitioner immediately after they began working together, but later came to the conclusion that it was just a reflection of Petitioner’s personality. Ms. Degg said that she still continued to receive some staff complaints, mostly about Petitioner’s demeanor. She testified that Petitioner “came off as gruff.” Ms. Degg was very credible. Ms. Degg consulted Ms. Jane Magnan, Registered Nurse (RN) who was the Director of Nursing, and Ms. Jeanne Pope, the Director of Residential Services, as to the best way to handle the situation. Ms. Magnan and Ms. Pope each testified that they advised Ms. Degg to start with basic lines of communication and mentoring on a one-to-one level to see if the problem could be handled before anything went to the written stage. Ms. Degg provided some handouts on interpersonal relations and “soft skills” to Petitioner and her unit and tried to coach Petitioner on how to be a bit more professional in her interactions. Ms. Degg told Petitioner that staff was saying that Petitioner was rude and she asked her to talk to people a little differently. She said Petitioner responded by saying that that was “just the way she was.” Petitioner’s conduct did not change and complaints continued. Ms. Magnan, who had hired Petitioner, believed that Ms. Degg found it difficult to discipline Petitioner. Ms. Magnan also believed there was some resistance from Petitioner in acknowledging Ms. Degg, a fellow LPN, as Petitioner’s supervisor. Petitioner had no “write–ups” from the time of her employment at Apalachee in August or September of 2009 until January of 2011. On January 21, 2011, Petitioner was presented a memorandum dated January 7, 2011, to document a Written Supervisory Session on two incidents. First, the memorandum stated that Petitioner had been counseled for failure to give a report to the oncoming nurse who had arrived late for her shift. Second, it stated that Petitioner had been counseled for being rude and unprofessional in a telephone conversation with the Dietary Supervisor. The memorandum was signed by Petitioner and by Ms. Degg. Ms. Degg testified that in response Petitioner had denied that she had failed to give a report to the oncoming nurse, but that the other staff people had corroborated what the oncoming shift nurse had told her, so she believed it had happened. At hearing, Petitioner continued to deny that she had failed to give a report to the oncoming nurse and denied that she had been rude or unprofessional in her conversation with the Dietary Supervisor. In the months following the January “write-up,” Ms. Degg did not notice any change in Petitioner’s demeanor and continued to receive complaints. She noted that she did not personally consider Petitioner’s behavior to be rude, but others did, and she could understand why. On May 18, 2011, Petitioner was presented a memorandum dated May 10, 2011, to document another Written Supervisory Session. The memorandum indicated that Petitioner had been unprofessional in communications to a Mental Health Assistant (MHA) whom Petitioner supervised. It stated that Petitioner had used phrases such as “shut up” and “get out of my face” to the MHA and that Petitioner had previously been counseled regarding this issue. The Memorandum was signed by Petitioner and by Ms. Magnan and Ms. Pope. Ms. Magnan and Ms. Pope offered Petitioner training and assistance. On the memorandum, Petitioner wrote that she did not agree with the statement and that she was willing to learn. On May 27, 2011, Petitioner’s Employee Performance Evaluation for the period April 23, 2010, through May 15, 2011, was presented to Petitioner. It indicated “Below Performance Expectations” or “Needs Improvement” in several areas, including supervision of MHAs, training of staff, unit management, acceptance of responsibility, and attitude. Hand-written notes by Ms. Magnan and Ms. Dianne VanZorge, the RN supervising the forensic unit, commented on difficulties in communicating with staff, compromised staff morale, and lack of leadership. The report noted that various employees had brought Petitioner’s attitude to the attention of the Program Director and Director of Nursing. The evaluation was signed by Petitioner, Ms. Magnan, and Melany Kearley, the Chief Operations Officer. In conjunction with this unfavorable Employee Performance Evaluation, and in accordance with Apalachee policy, Petitioner was placed on a Corrective Action Plan, a 60-day period of Conditional Probationary Status. The memorandum advising Petitioner of this action explained that Petitioner should immediately take action to maintain a friendly and productive work atmosphere, demonstrate respect and courtesy towards clients and co-workers, and demonstrate initiatives to improve Petitioner’s job and the program. The memorandum advised that any further non-compliance could result in disciplinary action or termination of employment. Petitioner’s supervisor was changed to Ms. VanZorge. Petitioner knew Ms. VanZorge because they had worked together many years earlier. Petitioner was advised in the Corrective Action Plan that Ms. VanZorge would meet with her on a weekly basis to provide any needed assistance. At the time Petitioner was placed on probation, Ms. Magnan testified that Petitioner became angry. Petitioner asked if they wanted her to quit. Ms. Magnan encouraged Petitioner not to quit, telling her that that “we are going to work this out.” Ms. Magnan and Ms. VanZorge testified that they made sure that Petitioner acknowledged that resources and coaching were available to help her. Petitioner testified that leadership, nursing management, and supervisory resources were not subsequently provided to her as promised. On June 29, 2011, Mr. Alphonzo Robinson, an African-American MHA who worked under Petitioner’s supervision, submitted complaints about Petitioner to Ms. VanZorge and Ms. Pope. Ms. VanZorge and Ms. Pope then met with Petitioner regarding these complaints. A memorandum documenting the meeting with Petitioner, prepared the same day, states that an MHA reported that Petitioner had eaten a resident’s lunch. The MHA alleged that the resident had gone out on a morning community pass, asking staff to save his lunch for him until he returned. The memorandum states that when the resident returned, the MHA went to get his lunch for him, only to find Petitioner eating the last of the resident’s food in the staff kitchen. The MHA indicated that Petitioner denied eating the resident’s lunch, saying that it had been thrown away, and directed the MHA to give the resident another patient’s meal instead. Only an empty tray without food was found in the garbage. The MHA noted that another patient’s lunch could not be substituted because the first resident was diabetic and had special dietary needs. The memorandum also indicates that several other complaints were made against Petitioner by the MHA and discussed with her at the meeting. It was alleged that the Petitioner was continually rude to staff, asked residents to run errands for her, left the commode dirty with urine and feces, and used her hands to get ice from the ice machine. The memorandum noted that at the meeting, after an initial denial, Petitioner finally had admitted that she had eaten the resident’s lunch. It also noted that Petitioner had admitted that “a while back” she had asked residents to get Cokes for her, but that now she drank water. The memorandum concluded by noting that the expectations on Petitioner’s Corrective Action Plan had been reviewed, and that it was further discussed that Petitioner was not to eat any resident meals or ask them to perform errands. Petitioner had been instructed to buy a meal ticket or bring her own, clean up after herself, and adhere to infection control policy and universal precautions. At hearing, Ms. VanZorge testified that during the meeting Petitioner admitted having eaten the resident’s lunch, but stated she had not done that for a long while prior to that. Ms. VanZorge stated that Petitioner also admitted she had gotten ice with her hands once. Ms. Pope testified that Petitioner had initially denied eating the resident’s food, but then later during the course of the meeting had admitted that she had eaten it, and also admitted that she had sent residents to run errands for her. MHA Kim Jenkins, a white woman and the second MHA under Petitioner’s supervision, testified that she knew nothing about the allegations that Petitioner ate a resident’s lunch. She testified that the bathroom was a unisex bathroom and that Petitioner did leave it in an unsanitary condition almost every time she used it, although she had been too embarrassed for Petitioner to ever discuss that with Petitioner. Ms. Jenkins said she did try to discuss all of the other recurring issues with Petitioner. She testified that Petitioner was rude on a daily basis. She testified that she had seen Petitioner going through other staff members’ mail and opening it. She testified that Petitioner did get ice with her bare hands on several occasions. On cross-examination, Ms. Jenkins stated that she did not document any of these incidents and could not remember dates on which they occurred. Pressed to provide dates, Ms. Jenkins testified that the only approximate date she could remember was the time that Petitioner sent a client with a staff member to get two hot dogs for Petitioner and the client had ended up paying for the hot dogs. Ms. Jenkins said that she knew this occurred in October because Ms. Jenkins had been assigned to the unit for only about two weeks when it happened. Ms. Jenkins testified that she clearly remembered when this occurred because Ms. Jenkins had been “written up” by Petitioner shortly afterwards for stopping at a McDonald’s drive–through on the way back from a client’s doctor’s appointment to allow the client to buy some ice cream. Ms. Jenkins testimony was very credible. Petitioner testified at hearing that the allegations in the June 29, 2011, letter of Alphonzo Robinson were not true. She testified that she did not eat a patient’s food, never asked patients to buy sodas or candy for her, never left urine and feces on the toilet seat, and that he never caught her sleeping on the job. She testified that it was a public bathroom, and noted that anyone could have left it in that condition. She also stated that someone should wonder, “[W]hy was Alphonzo Robinson in ladies’ bathroom watching toilet seats? Apparently he needs to be monitoring the patient and not the lady bathroom.” Petitioner noted that in all of the allegations against her, “[I]t is their word against mine.” In a memo dated July 1, 2011, to Ms. Kearley, Ms. Pope recommended the termination of Petitioner’s employment with Apalachee Center. Ms. Magnan, Ms. VanZorge, and Ms. Pope were unanimous in this recommendation. On or about July 6, 2011, Ms. Pope accompanied Petitioner to the office of Ms. Candy Landry, the Human Resources Officer, where Petitioner was informed that her employment was terminated. Ms. Landry testified that Petitioner had violated policies of Apalachee and that the disciplinary process and termination of employment with respect to Petitioner had followed standard procedures. Ms. Landry testified that Petitioner’s replacement was also African-American. Petitioner filed a complaint with the Florida Human Relations Commission (Commission), alleging that Apalachee Center had discriminated against her based upon her race and sex on August 15, 2011. Her complaint alleged that non-African- American employees had never been disciplined without reason, as she had been. Her complaint stated an employee had made unwelcome comments that she was “fine,” “sexy” and “beautiful.” On December 20, 2011, Petitioner filed a Petition for Relief, which was referred to the Division of Administrative Hearings. At hearing, Petitioner presented no evidence regarding similarly situated white employees. Petitioner presented no evidence that anyone ever made comments that she was “fine,” “sexy” or “beautiful.” She did testify that she made a note on June 20, 2011, regarding Alphonzo Robinson. Her testimony was as follows: Okay. Ready for Alphonso Robinson. This is what he states, “I’m looking for a wife. Bring your friend down here so I can look at her.” I informed Robinson to sit in day room with client. Let Kim Jenkins come from back there with the men. He states, “I don’t want to deal with the men. When I worked at Florida Hospital, we punish inmate.” I told him we don’t do that here. Social Service case managers do that. Group coordinator recommend –- group coordinators recommend treatment, member, nurse, case manager, and Ms. Pope. Robinson state, “I used to be a man that – that – I used to be a man that a husband was having problem with sex, I took care of his wife.” I stopped talking to him and just restrict everything to work only with Mr. Alphonzo Robinson. I gave this note to Ana Degg. I asked her please to address it with Ms. Pope. I never heard anything else about that. I did my job as I was told. I went by the instructions what the facility asked me to do. Petitioner testified that she prepared the note with this information on June 20, 2011, and gave it to Ms. Degg. This would have been a bit more than one week prior to Mr. Robinson’s complaints about her performance. Under cross-examination, Mr. Robinson denied that he had been sleeping on the job or had made inappropriate sexual remarks. He denied that he made the allegations against Petitioner because he was fearful he would be terminated and was attempting to get Petitioner fired first: Q You said – you made sexual statements, you told me that you had a new lady, that her husband had problems with sex, and you took care of the lady. After that I learned that, to stay out from around you, because I am a married lady. I have been married for 37 years. I don’t endure stuff like that. So after that, then later on you was in the room and you made a sexual comment. You – I said that is inappropriate, that’s not the kind of behavior – we do not come to work for that kind of behavior. * * * Q So Alphonzo – A Yes. Q -- after you made that comment, and then you said those statements, and then after that I approached you and told you that you cannot be sleeping at the desk, and then you decided to make these statements, to go to Dianne, Kim’s friend and all that, so they can get me fired before you get terminated, is that not true? A No, that’s not. Q You had never been sleeping at the desk? A No, I haven’t. There is no evidence that Petitioner mentioned the note or showed it to anyone at the Florida Commission on Human Relations in connection with her complaint of discrimination. She did not provide a copy of the note to the Division of Administrative Hearings or to Respondent prior to hearing. Petitioner testified that she found the note in her papers when she went through them. Ms. Degg was no longer Petitioner’s supervisor on June 20, 2011. Ms. Degg testified that she could not recall Petitioner ever complaining about anyone in the workplace sexually harassing her. Ms. Degg testified that she had received a written complaint about MHA Jenkins, but that she had never received any written complaint about MHA Robinson. Ms. Degg’s testimony that she did not receive the note was credible, and is accepted as true. Ms. VanZorge testified that Petitioner never complained to her about any type of sexual harassment by Mr. Robinson. Ms. Pope testified that Petitioner never complained to her about any sexual harassment. Ms. Candy Landry, the Human Resources Officer, testified that Petitioner never complained to her that she had been subjected to sexual harassment. She further testified that she was never aware of any allegations of sexual harassment of Petitioner from any source. The facts do not support the conclusion that Respondent discriminated against Petitioner on the basis of race or sex.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaint. DONE AND ENTERED this 10th day of April, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2012. COPIES FURNISHED: Sandra Johnson 284 Centerline Road Crawfordville, Florida 32327 Thomas A. Groendyke, Esquire Douberley and Cicero 1000 Sawgrass Corporate Parkway, Suite 590 Sunrise, Florida 33323 tgroendyke@dc-atty.com Chris John Rush, Esquire Rush and Associates 1880 North Congress Avenue, Suite 205 Boynton Beach, Florida 33426 cjrushesq@comcast.net Lawrence F. Kranert, Jr., Esquire Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 kranerl@fchr.state.fl.us Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 violet.crawford@fchr.myflorida.com
The Issue Whether Respondent wrongfully failed or refused to hire Petitioner because of her physical handicap, obesity, if she was otherwise qualified, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner, Rose E. Blake, at all time relevant, is a Certified Nurses Assistant in the State of Florida. In the summer of 1991, Petitioner was a 45 year old female, whose height was 5 feet, 4 inches and she weighed in excess of 250 pounds. Respondent, Sunset Point Nursing Home, is a health care facility that provides nursing home care for patients, and employs more than five employees. On March 11, 1991, Petitioner completed an application for the position of Nurses Aide at Respondent's facility. Petitioner's employment application made no claim of "handicap" of obesity or otherwise. Prior to being interviewed, Petitioner withdrew her name from consideration, and accepted a position at another health care facility. On July 11, 1991, Petitioner contacted Respondent's personnel department, and asked that her application for the nurse's aide position be reactivated. They did so and Petitioner was interviewed for a position on July 15, 1991. On July 15, 1991, she was informed that she was accepted for the position of nurse's aide, but would be required to undergo pre-employment orientation and a physical examination before she could start work in the next few days. On July 16, 1991, she went through a two hour orientation training at Respondent's facility which was conducted by Respondent's staff. On the same day, July 16, 1991, Petitioner underwent a physical examination at the office of a Dr. Johnson, a physician that Petitioner was referred to at Lakeside Medical Center. On the following day, after receiving a message from the physicians office, Helen Mills, Respondent's Assistant Director of Nursing, talked with Dr. Johnson on the telephone. After performing a physical examination, he recommended against hiring Petitioner on the basis that she was susceptible to developing low back problems, due to her obesity. Based on this conversation alone, Mills called Petitioner, and withdrew her offer of employment at Respondent's facility as a CNA. The position of CNA is physically very demanding. A CNA is required to lift patients, transfer them from bed to chair, bed to bathroom, bed to wheelchair. There is a great deal of stooping, bending, and lifting involved throughout a CNA's shift. A CNA is also required to feed patients, turn and position them in their beds. A CNA is also required to be on their feet constantly throughout her shift. Petitioner had successfully performed the functions of a CNA for 27 years, with the last ten years having been certified by the State of Florida. During this period of time, Petitioner has weighed in excess of 200 pounds, and her weight has not impaired her functioning successfully as a CNA. There was no expert medical evidence offered to establish whether Petitioner's obesity is endogenous (metabolic) or exogenous (caused by overeating). There was no competent evidence offered upon which to find Petitioner's obesity is physiological in origin or that it is permanent. Petitioner did not offer evidence to show damages.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered holding that: The Petitioner was discriminated against on the basis of her handicap when Respondent failed or refused to hire her; The Petitioner receive any damages she has suffered in accordance with applicable law. Respondent be ordered to cease and desist said discriminatory practices. DONE and ENTERED this 29th day of December, 1992, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Neither party submitted proposed findings of fact or conclusions of law. COPIES FURNISHED: Ronald W. Stutzman Qualified Representative Vice President for Human Resources Harborside Healthcare 470 Atlantic Avenue Boston, Ma. 02210 Ms. Rose E. Blake P.O. Box 616 Dunedin, Florida 34698 City of Clearwater Legal Department P.O. Box 4748 Clearwater, Florida 34618-4748 Dana Baird, Esquire Commission on Human Relation 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4113
The Issue The issue is whether Petitioner was the subject of housing discrimination based on her race in violation of Sections 760.20 through 760.37, Florida Statutes (2009), Florida Fair Housing Act ("the Act").
Findings Of Fact Petitioner is an African-American female. At all times relevant here, Petitioner was a single mother with a one-year- old child. Petitioner is unemployed but receives disability benefits from the Social Security Administration. At all times relevant here, Respondent was a Florida non-profit corporation. In April 2009, Respondent operated an apartment complex located in Lake City, Florida. In April 2009, Petitioner signed a lease for Unit No. 203 in the apartment complex. She gave Respondent a $400 money order for the first month's rent on the one-bedroom apartment. Petitioner was not required to pay any other deposit. At that time, Respondent's office was located on or near the apartment complex premises. The lease stated that three individuals could occupy the premises. It also prohibited the use or possession of any illegal controlled substance. Petitioner bought some furniture for the apartment. She also bought a 52-inch television. After paying her rent in May 2009, Petitioner began letting a male friend named Von Powell live with her in the apartment. Petitioner testified that Mr. Powell, who was mentally challenged, had just been expelled from a group home. Mr. Powell had been living with Petitioner for about two weeks when he took the keys to a car belonging to Petitioner's sister. Because Mr. Powell was driving recklessly in the apartment complex, someone called 911. When the police arrived, Mr. Powell ran back upstairs to Petitioner's apartment. The police followed Mr. Powell to Unit No. 203. When they arrived, they asked if they could search the apartment because they said that they smelled marijuana and believed Mr. Powell was dealing drugs. Petitioner denied that they could smell marijuana in her home. She denied that there were any illegal drugs in the apartment. However, she allowed the police to perform a search. The police left after not finding any illegal drugs. Harley Saradini, a Caucasian, was in charge of maintenance for the apartment complex. Mr. Saradini told Petitioner that Mr. Powell would have to move out of the apartment. Petitioner subsequently took Mr. Powell to his grandmother's home Gainesville, Florida. A few days later, Mr. Saradini came back to talk to Petitioner, asking her to move out for not following the rules relating to the use and/or possession of illegal drugs. Petitioner refused, stating that she had paid her rent and wanted to talk to the landlords, Samuel Taylor and Anthony Raburn, both of whom were Caucasian. On or about May 26, 2009, Petitioner and her son went to an out-of-town doctor's appointment. While she was gone, Mr. Saradini and two other men entered Petitioner's locked apartment and started removing her personal property. A neighbor named Bernard Owens, an African-American male, told Mr. Saradini that he should not be in Petitioner's apartment when she was not at home. Mr. Saradini replied that Petitioner did not live there anymore and that he was just following orders. Mr. Saradini also stated that a family of five needed the larger apartment. Mr. Owens then watched as Mr. Saradini and the men gave some of Petitioner's food away and shoved her furniture, including the television, down one flight of stairs to the ground floor. Petitioner's belongings were piled in Unit No. 104, a smaller, one-bedroom apartment that had never been cleaned after the last residents vacated it. During this moving process, Petitioner's couch lost a leg. Additionally, her 52-inch television was dented and damaged, resulting in a diminished picture. When Petitioner returned home, she could not get in her old apartment, she also had no key to Unit No. 104, and she and her child became hysterical. Petitioner eventually called the police who talked to Mr. Saradini. After that conversation, Petitioner was told that she could leave her belongings in Unit No. 104 for the night. The next day, Respondent's office staff apologized to Petitioner, telling her that she could stay and pay rent to live in Unit No. 104. Petitioner then began cleaning up the new apartment. Respondent subsequently moved the Caucasian family into Petitioner's former apartment, Unit No. 203. Petitioner did not pay rent after the May 2009 payment. When Petitioner asked Respondent's staff about paying her rent, she was told to hold it. Petitioner understood that she could pay her rent in cash only and that someone would be coming to collect it. Respondent's staff told Mr. Owens and another neighbor to take their rent, cash only, to Respondent's new office located in another part of town. When Mr. Owens and the neighbor took money orders to pay their rent at Respondent's new office, Respondent's staff would not accept the money orders. Instead, Mr. Owens and the neighbor were told that the staff had to leave and would be back in a few minutes. Mr. Owens and the neighbor left when the staff did not return in a reasonable amount of time. In August 2009, the same people who had worked for Respondent told the tenants that everyone would have to sign new leases because Respondent was going out of business and the apartment complex was starting over with a clean slate. The record is not clear as to the name of the alleged new landlord(s) in August 2009. Petitioner signed a new lease for Unit No. 104, but paid no rent. This was the last time that Petitioner had contact with Respondent's staff. Petitioner admitted during the hearing that she never felt that Respondent's staff was prejudiced against her. In August 2009, Petitioner and her child began living in another county with the father of Petitioner's child. She left her personal belongings in Unit No. 104 and kept the door locked. After the tenants signed new leases, several unnamed people came to collect rent in cash. Even the man that ran the carwash business across the street claimed to have authority to collect rent. In November 2009, Petitioner and her child returned to live in Unit No. 104. She paid to have the utilities turned back on, but paid no rent. In December 2009, Respondent's former staff informed the tenants that Respondent no longer existed and that everyone would have to move out. Petitioner moved out around the second week in December 2009. She moved into an apartment at another location in Lake City. While Petitioner lived in the apartment complex, three of the eight units were occupied by African-Americans, including Petitioner and Mr. Owens. Five of the apartments were occupied by Caucasians, including Mr. Saradini and the family of five.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 3rd day of February, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 2010. COPIES FURNISHED: Camekco Webb 910 Southeast 6th Street Lake City, Florida 32054 Paul Mabile The Community Mercy Center 1120 Southwest Hope Henry Street Lake City, Florida 32024 Lloyd E. Peterson, Jr., Esquire 905 Southwest Baya Drive Lake City, Florida 32025 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent is guilty of an unlawful employment practice by failing to hire Petitioner on the basis of age or in retaliation.
Findings Of Fact On February 24, 1994 (amended March 10, 1994), Petitioner filed a Charge of Discrimination, based on age and retaliation, with the Florida Commission on Human Relations. That charge listed the most recent discrimination as October 18, 1993 and alleged that Petitioner had been rejected for a post in Panama City; that Respondent, through a Ms. Retherford, had denied Petitioner access to other applicants' records for ten days; and that Ms. Retherford, Ms. Jenkins, and Ms. Ciccarelli of Respondent's District 2, had made sure everyone in their District knew Petitioner's name and to avoid hiring him. To further specify his charges, Petitioner attached a December 16, 1993 memorandum from Ms. Radigan to Mr. Clary. (See below, Finding of Fact No. 56). The Charge of Discrimination then concluded, "the specific job for which I applied was set in Marianna and closed on 18 October; though I had been referred to that job by Karen Dalton, an HRS specialist at HRS headquarters, I never had a chance at that job." (P-2) By a "Determination: No Cause", dated March 20, 1995, the Commission advised Petitioner that he could file a Petition for Relief within thirty-five days, pursuant to Section 760.11 F.S. On April 22, 1995, Petitioner filed his Petition for Relief, which was referred to the Division of Administrative Hearings for a formal evidentiary hearing, pursuant to Section 120.57(1) F.S.. That timely Petition for Relief alleged both age and retaliation discrimination by Respondent's failure to hire Petitioner for a number of posts, none of which the Petition specifically named by position number or date. The retaliation allegation was based on Petitioner's "causing trouble," not due to his filing any prior formal complaints with the federal Equal Employment Opportunity Commission or Florida Commission on Human Relations or upon his participation in these types of litigation on behalf of anyone else. Although the subject matter jurisdiction of the Division of Administrative Hearings is bounded by the Charge of Discrimination, the Petition for Relief, and Chapter 760 F.S., the parties were permitted to present some historical information. Even so, the parties' presentation of evidence did not always clearly correlate Respondent's dated employment advertisements for named, numbered, or described positions to specific applications of Petitioner and/or specific interviews or hirings of other persons. Respondent agency demonstrated that as of October 13, 1993, it was employing at least one employee older than Petitioner, at least one in her sixties, others in their fifties, and hundreds who were over 39 years old. However, none of this information is particularly helpful in resolving the issues in this case. While Respondent's figures may speak to longevity of employees or duration of their employment with Respondent, they are silent as to each employee's age as of the date Respondent first hired each one. (R-9) Petitioner is a white male who at all times material was 63-65 years of age. Petitioner repeatedly applied for job vacancies advertised by Respondent agency and was not hired for any of them. Every position for which Petitioner applied required, at a minimum, that applicants have a bachelor's degree from an accredited college or university plus three years' professional experience in one or more of the following employments: abuse registry; developmental services; law enforcement investigations; licensed health care; children, youth, and family services; child support enforcement; economic services; aging and adult services; licensed child day care; mental health; or elementary or secondary education. Specific types of bachelor's degrees or any master's degree could substitute for one of the three years' required experience in the named programs. Specific types of master's degrees could substitute for two years of the three years' required experience in the named programs. However, no matter how many or what type of college degrees an applicant had earned, Respondent still required applicants to have at least one year of specialized experience. (P-1, R-1, R-2, R-4, R-5, and R-7). In fact, Petitioner met the foregoing requirements at all times material. "In the late summer of 1992," Petitioner first responded to one of Respondent's advertisements for a Protective Investigator position in Panama City. (P-1, P-14) He was turned down without an interview for that position by a letter dated September 22, 1992. (P-1). Feeling that he was qualified for the foregoing position and that he should have at least been given the opportunity to interview, Petitioner made an appointment with Ms. Charlie Retherford, who had advertised the position. The contents of Ms. Retherford's explanation about ten days later is not of record, but Petitioner remained dissatisfied. Petitioner next made a request pursuant to Chapter 119 F.S., The Public Records Act, to view the records of other applicants. Petitioner felt he was "hassled" over this request, but admitted that Respondent provided the records within two weeks. Petitioner did not elaborate upon why he felt "hassled," only stating that he felt two weeks was an "unreasonable delay." Petitioner analyzed the records and formed the opinion that "there was good reason to believe" Respondent did not interview him because he was over 60 years old. Petitioner testified that those applicants selected by Respondent for interviews averaged 29 years old, but Petitioner did not offer in evidence the records he had reviewed so as to substantiate his assertion. In correspondence and interviews which occurred after September 22, 1992, Petitioner revealed his age to various employees of Respondent. (See Findings of Fact 14, above, and 24, 41, and 45 below). However, an applicant's age or birth date is not required on Respondent's standard employment application form, and on Petitioner's September 5, 1992 application received by Respondent September 9, 1992 (P-14), Petitioner had left blank the "optional" line for date of birth. Therefore, it was not established that the Respondent knew, or even how the Respondent could have known, Petitioner's age prior to its September 22, 1992 failure to hire him. Despite Petitioner's testimony as to the average age of interviewees, the mean age of all the applicants up to September 22, 1992 was not established, so it is not clear whether any twenty-nine year olds or persons younger than Petitioner also were not interviewed as well as Petitioner, who was not interviewed and who was in his sixties. Additionally, no nexus between any other applicant's qualifying credentials and Petitioner's qualifying credentials was put forth. Therefore, it is impossible to tell if those applicants who were interviewed prior to September 22, 1992 were more or less qualified than Petitioner, or if there was any pattern of Respondent refusing to interview applicants of any age. By a November 24, 1992 letter, Respondent turned down Petitioner's application as a Protective Investigator with its Aging and Adult Services Unit in Chattahoochee. (P-4). By a November 24, 1992 letter, Respondent turned down Petitioner's application as a Protective Investigator in Panama City. (P-5) By a January 22, 1993 letter, Respondent turned down Petitioner's application as a Protective Investigator in Panama City. (P-6) By a January 27, 1993 letter, Respondent turned down Petitioner's application as a Protective Services Abuse Registry Counselor after he was interviewed. (P-3, P-7) (See Findings of Fact 24 and 41, below. By a February 25, 1993 letter, Respondent turned down Petitioner's application for Research Assistant Position No. 05396 at Florida State Hospital. (P-8) Petitioner did not offer in evidence any of his applications corresponding to the Respondent's refusals to hire him between September 22, 1992 and February 25, 1993. 1/ For the period of September 22, 1992 through February 25, 1993, Petitioner's only evidence of age or retaliation discrimination was his subjective personal conviction that age was a factor in Respondent's refusal to hire him and the Radigan memorandum issued ten months later and discussed in Findings of Fact 56-65, below. Affording Petitioner all reasonable inferences, the undersigned infers that due to Petitioner's post- September 22, 1992 interview with Ms. Retherford, Respondent's District 2 hiring personnel could have been aware of Petitioner's age from late September 1992 onward. However, there was no evidence presented by which it can be affirmatively determined that between September 22, 1992 and February 25, 1993 that Respondent knew the age of all other applicants before deciding which ones to interview or that there was a pattern of only interviewing persons under a certain age. 2/ Further, in an August 12, 1993 letter, Petitioner stated to the Secretary of Respondent agency that he had, in fact, been interviewed by Respondent in January 1993. (P-3) (See below, Finding of Fact 41.) It also must be inferred from that information that Respondent did not systematically exclude Petitioner from the interview process on the basis of age or retaliation at least through January 1993. Petitioner's last application before October 14, 1993 which was admitted in evidence is dated April 8, 1993. It was stamped "received" by Respondent on April 9, 1993. It also does not give his age or date of birth. It specifies that Petitioner was applying for a Protective Investigator position closing April 12, 1993. (P-15). In April 1993, Brenda Ciccarelli, an official in Respondent's District 2, requested Karen Dalton, a recruitment coordinator in Respondent's Personal Services Section, to review Petitioner's employment application to determine if he met the minimum requirements for employment in the advertised position. Ms. Dalton's testimony is not altogether clear as to which application or applications she reviewed in April 1993, but from the evidence as a whole, it is inferred that she reviewed Petitioner's September 5, 1992 (P-14) and/or his April 8, 1993 (P-15) applications or applications by Petitioner which were substantially similar. Ms. Dalton analyzed Petitioner's application(s) and determined that Petitioner did not meet Respondent's minimum requirements. She satisfied herself that she had made a correct analysis by conferring with Mr. Joe Williams of the Department of Management Services. By a May 7, 1993 letter, Respondent turned down Petitioner's application as a Protective Investigator in Panama City. (P-9) Ms. Retherford for Respondent advertised Protective Investigator/8308, Position No. 48210 in Port St. Joe, Gulf County from May 24, 1993 to June 7, 1993. (R-1) Respondent readvertised Protective Investigator/8308, Position No. 48210 in Port St. Joe, Gulf County from June 21, 1993 to July 26, 1993. (R-2) Effective August 6, 1993, Respondent hired Jack Connelly, then 45 years old, for Position No. 48210 in Port St. Joe, Gulf County. (R-3) Respondent introduced a tabulation of the ages of the applicants for Position No. 48210 which was completed as of the effective date the position was filled. It included columns listing birth dates of applicants, if known; a column indicating applicants' handicaps, if any; a column indicating whether an applicant was eligible; and a column indicating which applicants were interviewed. (R-3) Mr. Connelly, the successful applicant, was interviewed, as were eleven other applicants. Ten applicants, among them Petitioner, were not interviewed. (R-3) The applicants who were interviewed were respectively forty-five, fifty, forty-six, forty-one, thirty-seven, fifty-eight, one unlisted, forty- four, forty-one, forty-four, and thirty-one years of age. The ages of those not interviewed were fifty, one unlisted, forty-five, Petitioner's age also was unlisted, thirty-six, thirty-one, twenty-three, thirty-three, forty-nine, and thirty-two. (R-3) There is nothing in the record to show that the qualifications of the applicants interviewed or those of Jack Connelly, who was hired, were lower than Petitioner's qualifications. There is no discernible pattern of excluding anyone by age. 3/ Ms. Retherford for Respondent advertised Protective Investigator/8308, Position No. 50968 in Panama City, Bay County from May 17, 1993 to May 31, 1993. (R-4) Respondent readvertised Protective Investigator/8308 Position No. 50968 in Panama City, Bay County from June 21, 1993 to July 6, 1993. (R-6) By a July 20, 1993 letter, Respondent turned down Petitioner's application for Protective Investigator in Panama City. (P-10) Effective August 6, 1993, Respondent hired Edward Bonner, then fifty- three years old, for Position 50968. He was one of the applicants interviewed. (R-6) Respondent presented another columnar tabulation completed as of the effective date Mr. Bonner was hired. It showed that the interviewed applicants were ages fifty-three, fifty, forty-six, forty-one, twenty-seven, fifty-eight, one unlisted, forty-six, forty-one, forty-four, and thirty-one, respectively. The uninterviewed applicants were fifty, one unlisted, forty-five, Petitioner's age also was unlisted, thirty-six, thirty-one, twenty-three, thirty-three, forty-seven, and thirty-two respectively. (R-6) Again, there is no discernable pattern of excluding anyone by age. 4/ There is nothing in the record to show that the qualifications of the interviewees or of Edward Bonner were lower than Petitioner's qualifications. On August 12, 1993, Petitioner wrote the agency Secretary, Mr. H. James Towey, complaining that he had been discriminated against because of his age, which he then gave as This letter listed the dates of discrimination as 9/22/92, 11/24/92, 11/24/92 again, 1/22/93, 1/27/93, 2/25/93, 5/7/93/ and 7/20/93. Therein, Petitioner admitted that Respondent had interviewed him approximately January 1993 for a System Abuse Registry Counselor position and that the interview had gone very well from his point of view. (P-3) Respondent advertised Protective Investigator/8308 (anticipated vacancy) Position No. 04385 in Panama City from June 21, 1993 to July 6, 1993. (R-7) Effective September 3, 1993, Respondent hired Johnnie A. Knop (female), DOB unlisted, for Position No. 04385. Respondent's tabulation completed on the effective date of hiring Ms. Knop showed that not counting Ms. Knop, whose age does not appear, the interviewees were thirty-eight, fifty, forty-six, forty-one, thirty-three, fifty-eight, forty-four, forty-one, forty- four, and thirty-one years of age, respectively. The non-interviewees were fifty, one unlisted, forty-five, Petitioner's age also was unlisted, thirty-six, thirty-one, twenty-three, thirty-three, forty-nine, and thirty-two years of age. (R-8) Once more, there is no discernible pattern of excluding anyone by age. Moreover, it is not possible to tell whether or not Respondent hired someone older or younger than the Petitioner. 5/ There is nothing in the record to show that Johnnie Knop's qualifications were lower than Petitioner's. In September, 1993, Ms. Dalton had a conversation with Petitioner which lasted approximately ninety minutes. Based upon the contents of Petitioner's Exhibit 13, it is found that this conversation occurred on September 13, 1993 in response to letters of complaint written by Petitioner on May 20 and August 12, 1993. The Petitioner's May 20 letter is not in evidence, but it is inferred that the August 12 letter referenced in P-13 was Petitioner's complaint to Secretary Towey (P-3) concerning age discrimination and discussed above in Finding of Fact 41. During their conversation, Ms. Dalton discovered that some of Petitioner's remote job experiences were useful for certifying him qualified. Together, Petitioner and Ms. Dalton worked through a list of Respondent's job openings, and Ms. Dalton sent one of Petitioner's applications on to Cheryl Nielsen who was hiring for a position in Marianna. At formal hearing, Ms. Dalton explained credibly that she had not originally categorized Petitioner as meeting the professional experience requirement in the "elementary or secondary education" category because she misunderstood his prior application(s) which she had reviewed. Where the September 5, 1992 application had related Petitioner as employed as "a teacher at Dozier School for Boys (Washington County Program at Dozier)" and the April 8, 1993 application listed him as " a teacher at Dozier School for Boys" for eleven months in 1990-1991, Ms. Dalton previously had understood that his employment merely constituted "shopwork, independent living", which is literally part of what Petitioner had written. Ms. Dalton previously had not equated that phraseology with professional teaching experience in an elementary or secondary school. Ms. Dalton also credibly explained that she had the erroneous perception of Petitioner's past experience listed as "supervisor, driver education" at Parks Job Corps Center as being solely employment in a private driver's education school. Petitioner had written "vocational training center," to describe the Center's function. Less understandable but unrefuted was Ms. Dalton's testimony that she had not equated Petitioner's teacher status for eight years in the Oakland County, California Public Schools as "teaching" because of the way Petitioner's application(s) had presented that prior employment which had occurred in the late sixties and early seventies. Despite both applications clearly stating this was public school teaching, Ms. Dalton had once again erroneously assumed that Petitioner had worked in a driver education school, when he had, in fact, been teaching a regularly scheduled minor course curriculum of driver's education in the standard curriculum of a public high school. Apparently, she had given less emphasis to this and had become confused by the explanatory material that Petitioner had added to explain the other things he had done besides teaching. She also gave less emphasis to other employments involving several years even if they included the word "teacher" because they were remote in time. (P-14 and P-15; compare P-16). After their clarifying interview, Ms. Dalton considered Petitioner qualified for the position(s) applied for, even though his qualifications previously had not been apparent to her from his written application(s). Convinced that Petitioner's application style did not present him to best advantage, Ms. Dalton advised Petitioner how to re-do his application to emphasize the factors significant to Respondent and maximize his employment opportunities with Respondent. On the basis of their conversation alone, Ms. Dalton sent a September 15, 1993 letter to Petitioner, and copied Ms. Jenkins and Ms. Ciccarelli, both employed in Respondent's District 2, to the effect that Petitioner met the eligibility requirements for the Protective Investigator classification. (P-13) Petitioner revised his application to detail that some of his school activities which were remote in time actually involved teaching. He submitted the rewritten application to Ms. Dalton approximately October 14, 1993. (P-16). After the revision, Ms. Dalton credited Petitioner with three years and nine months of "teaching in an elementary or secondary school" based only on his teaching during the 1960's. She also forwarded the revised application to Marianna and Ms. Nielsen. A review of the Petitioner's only three applications in evidence (September 5, 1992 at P-14; April 8, 1993 at P-15; and October 14, 1993 at P-16) reveals that Petitioner's original application style is so detailed and thorough that some portions September 1992 and April 1993 applications are less than clear as to what entity employed him and what his title was. For instance, he frequently used job titles that were more administrative, like "program manager", than educational, like "teacher". While a thorough reading of either of the applications in Petitioner's original style would probably reveal that he had, indeed, been employed in public school teaching positions approximately 30 years before, Petitioner's original applications require much more concentrated reading than does his revision in order to sort through the material matters and exclude extraneous and cumulative material that had no significance to Respondent's application process. The unrevised applications are not clear that he actually "taught" for a total of three years and nine months in public elementary or secondary schools as understood by Respondent's assessment system. According to Cheryl Nielsen, the position in Marianna for which Petitioner was certified eligible by Ms. Dalton and which closed October 18, 1993 was a temporary position. It existed solely because the individual holding the permanent position had been on workers' compensation leave. When it became apparent to Ms. Nielsen that the injured job holder would not be returning permanently, she decided not to continue the hiring process for the temporary position. Instead, she decided to advertise and fill the position in Marianna as a permanent position once the appropriate waiting period ran out. This was a reasonable decision because it would require six weeks' training before any hiree would be useful and because by going directly to the hiring of permanent personnel, Ms. Nielsen could avoid having to repeat the training process with a different person in a short period of time. No one was interviewed or hired for the temporary position for which Petitioner applied. There is no evidence in this record to tell the undersigned if Petitioner applied for Miss Nielsen's permanent position. Indeed, there is no evidence that Petitioner applied for any positions with Respondent after October 14, 1993. On November 26, 1993, Petitioner wrote Mr. Clary, Respondent agency's Deputy Secretary for Administration. The "Re:" line of this letter states that the letter refers to "'contracts' which cost HRS a fortune but serve no legitimate purpose." A fair reading of Petitioner's letter is that he was complaining concerning a letter from Dr. James Henson of Tallahassee Community College (TCC) which constituted a reply to Petitioner's inquiry concerning a TCC job vacancy announcement. Neither Petitioner's letter to Dr. Henson nor Dr. Henson's reply letter to Petitioner are in evidence to further explain what was actually going on. In his November 26, 1993 letter to Respondent's Deputy Secretary Clary, Petitioner characterized Dr. Henson's letter to him as "condescending" and "elitist" and stated Petitioner's opinion that Respondent should not have contracted with TCC to recruit field instructors because it was a waste of money. Petitioner's letter is entirely coherent, but its tone is agitated and vituperative. It attacks the agency's expenditure of funds to Dr. Henson and TCC and their qualifications. It does not mention Petitioner's age or job applications to Respondent in any way. (P-12) Apparently as a result of yet another of Petitioner's letters dated November 19, 1993, which November 19, 1993 letter is not in evidence, Ms. Radigan, Respondent's Assistant Secretary for Children and Family Services, wrote the following December 16, 1993 memorandum to Deputy Secretary Clary, copying Secretary Towey and the Assistant to the President of TCC. I wanted to give you some feed back on this issue. Mr. Sondel has written many such letters across the last six to eight years. He is very well known by the recruitment and personnel professionals in the Tallahassee area, in both the private and public sectors. Bob Roberts discussed this issue with Mr. Marshall Miller, special assistant to Dr. Henson at Tallahassee Community College (TCC). Mr. Miller suggested that DHRS [Respondent agency] should make no response to or take any action pertinent to the letter. Dr. Henson would prefer that he or his attorney make any response as he sees proper. The field instructor position in question is one of twenty new contracted professionals being recruited state wide that will be located in each district to provide clinical expertise, technical assistance, job coaching and staff training for a four unit staff in the Children and Family Services Program. Due to the nature of the job tasks that will be assigned to the new contracted professionals, the Districts expect that they will have relevant professional training and work experience in public child welfare systems. Please let me know if you have any questions, or wish to have additional information. Emphasis and bracketted explanatory material supplied. (P-11)57. The language emphasized above was not emphasized in Ms. Radigan's original memorandum, but has been characterized in Petitioner's testimony as "the smoking gun" upon which Petitioner relies to demonstrate that Ms. Radigan, via "retaliatory slander", had prevented Respondent agency from hiring Petitioner throughout 1992- 1993. He attributed her remarks to be the result of his letters to the Respondent complaining of age discrimination. Petitioner testified credibly and without refutation that he had never applied for employment with Respondent before the summer of 1992 and that he was first denied employment by Respondent on September 22, 1992. This is accepted. At the time of Ms. Radigan's memorandum, Petitioner had filed no formal charges of discrimination against Respondent. Therefore, it is impossible for any retaliation by Respondent between September 22, 1992 and October 18, 1993, if it existed, to have been based upon formal charges by Petitioner. Petitioner's subjective reading of the Radigan memorandum to the effect that it presents him as a "kook who should not be taken seriously" is one possible interpretation, but otherwise, Petitioner's interpretation is flawed. The Radigan memorandum is dated well after Respondent's last failure to hire Petitioner. That alone is not conclusive to show that its contents did not affect Respondent's hiring process between September 22, 1992 and October 18, 1993 because it could relate back to Respondent's prior retaliatory non- hiring practices. However, a clear reading of the memorandum itself does not permit such an interpretation. First, the memorandum refers to a letter by Petitioner dated approximately a month after the Respondent's last failure to hire Petitioner. Although Petitioner claimed that the Radigan memorandum refers to Petitioner's complaints of age discrimination, that was not proven. Since the Petitioner's November 19, 1993 letter, which the Radigan memorandum addressed, is not in evidence, it is impossible to determine precisely which of Petitioner's complaints Ms. Radigan's memorandum addressed, but even if Petitioner's November 19, 1993 letter had complained of age discrimination, that complaint was made after Petitioner had ceased to apply with Respondent. Therefore, retaliation at that point could not relate backwards to hiring practices already concluded. The letters of Petitioner over six to eight years to which the body of the memorandum refers apparently include his letters to private sector entities as well as government agencies other than Respondent agency. Therefore, the fact that Petitioner had only been applying to Respondent for two, not six or more, years (see Finding of Fact 58, above) does not establish any intentional misstatement of fact by Ms. Radigan. If these letters and Petitioner's November 19, 1993 letter to Respondent all contained complaints of age discrimination, then it was appropriate for Ms. Radigan to report that fact, but there simply is insufficient evidence in this record to determine if that is what happened here. Ms. Radigan's memorandum says nothing to the effect that Respondent should not hire Petitioner, that TCC should not hire him for itself, or that TCC should not recruit him for a position with Respondent. Nothing in the memorandum permits the inference that Ms. Radigan did anything except investigate the situation existing between Petitioner and TCC and report back to her superior all available information, including gossip about Petitioner from both the public and private sectors. Gossip is always reprehensible, but people talking about unspecified letters Petitioner wrote without more does not constitute retaliatory discrimination or age discrimination. Whether the situation between Petitioner and TCC had to do with TCC's failure to recruit Petitioner or with Petitioner's complaint about the cost of Respondent's contract with TCC to do its recruiting is unclear in this record. (P-12) (See Finding of Fact 55 above). If anything, the latter is more likely since in his Charge of Discrimination (P-2), even Petitioner described the Radigan memorandum as addressing "a matter only tangentially related to my employment possibilities." Therefore, no retaliation discrimination for raising the issue of age discrimination has been clearly proven.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying and dismissing the Petition for Relief. RECOMMENDED this 14th day of December, 1995, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1995.
The Issue Whether Respondent committed the unlawful employment practice alleged in the employment discrimination complaint Petitioner filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a software engineer with almost 30 years of experience in the industry. From 2001 until August of 2006, Petitioner was employed by ITT Industries (ITT). Petitioner's employment with ITT came to an end when he was involuntarily terminated. Following his termination, Petitioner filed an employment discrimination complaint with the federal Equal Employment Opportunity Commission (EEOC) alleging that ITT had discriminated against him because he suffered from Tourette's syndrome (which caused him to have vocal tics and to stutter). Petitioner did not take any action to pursue these allegations of employment discrimination beyond filing this complaint against ITT with the EEOC. Petitioner has been unable to obtain a "permanent job" as a software engineer since his termination by ITT. Respondent is a defense contractor that "make[s] [military] simulation and training equipment." In early 2008, Respondent was looking to fill a temporary software engineer position. Edge Dynamics was one of the outside employment agencies that Respondent used to assist it in the hiring process. On January 9, 2008, Edge Dynamics provided Petitioner's resume to Edward Kaprocki, a senior principal software engineer with Respondent. Mr. Kaprocki was responsible for interviewing applicants for the position and making hiring/rejection recommendations. After reviewing Petitioner's resume, Mr. Kaprocki "thought [it] looked interesting enough where it would worth talking to [Petitioner]," and he so advised Sandra Asavedo, his "point of contact" at Edge Dynamics. Ms. Asavedo made the necessary arrangements to set up a face-to-face interview between Mr. Kaprocki and Petitioner. The interview took place in Mr. Kaprocki's office on January 14, 2008. It lasted about 45 minutes to an hour. Petitioner seemed to Mr. Kaprocki to be "a little bit nervous," but Petitioner did not do or say anything to cause Mr. Kaprocki to believe that Petitioner suffered from any disability. During the course of the interview, Petitioner showed Mr. Kaprocki his personal website, which contained information about and pictures of "some of the projects that [Petitioner] had worked on." Based on the interview, Mr. Kaprocki determined that Petitioner did not have the skill-set that was needed for the position Respondent was seeking to fill. Immediately following the interview, Mr. Kaprocki went to his supervisor, Steve Preston, whose office was "right down the hall," and recommended that Petitioner not be hired to fill the position. Mr. Kaprocki then telephoned Ms. Asavedo to let her know that Petitioner was not going to be hired so that she could inform Petitioner. Mr. Kaprocki's decision to recommend against hiring Petitioner had nothing to do with Petitioner's suffering from Tourette's syndrome or his having filed an EEOC complaint against ITT. Indeed, at the time he made his decision, Mr. Kaprocki did not even know that Petitioner had Tourette's syndrome or had filed an EEOC complaint against ITT. Mr. Kaprocki first learned of these matters only after Petitioner had filed his Complaint in the instant case. After being told that he would not be hired for the position, Petitioner telephoned Mr. Kaprocki several times, pleading with Mr. Kaprocki to "reconsider hiring him." Mr. Kaprocki told Petitioner "that the decision had been made" and would not be reconsidered. Mr. Kaprocki felt that Petitioner, by making these telephone calls, was "badgering and harassing him." To satisfy his own personal curiosity (and for no other reason), Mr. Kaprocki looked online to find out more about the person who was subjecting him to this "badgering and harass[ment]."2 Mr. Kaprocki did not discover, as a result of his online search, that Petitioner had Tourette's syndrome or that Petitioner had filed an EEOC complaint against ITT. His search, however, did reveal certain comments Petitioner had made in an online forum that Mr. Kaprocki considered to be "extremely unprofessional." After reading these comments, Mr. Kaprocki was even more confident than he had been before he began his search that he had made the right decision in not recommending Petitioner for employment. Petitioner was never offered a position with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding Respondent not guilty of any unlawful employment practice alleged by Petitioner and dismissing Petitioner's employment discrimination complaint. DONE AND ENTERED this 14th day of May, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2009.
The Issue Is Respondent employer guilty of an unlawful employment practice, pursuant to Section 760.10, F.S., for discrimination on the basis of handicap, to wit: diabetes?
Findings Of Fact At all times material, Petitioner was employed part-time at Respondent Jackson County Hospital as an x-ray aide. In this position, he transported patients to and from the x-ray department. Petitioner had diabetes when he was hired by Respondent. He disclosed his diabetes on his initial health information sheet. The employer was aware of Petitioner's diabetes when he was hired. However, on his initial health information sheet Petitioner also represented his health status as "excellent" and denied having any physical condition which impaired his body as a whole. He further represented that he had no defect "which may prevent your performance in the job. . . ". Accordingly, the employer did not know that he had a handicap, if any, when it hired Petitioner. While he was employed as an x-ray aide, Petitioner had two "reactions" on the job due to his diabetes, and he was laid off immediately prior to having a third "reaction." Petitioner did not describe the nature of his diabetic "reactions", and no other record evidence revealed their symptomatology. Nonetheless, Petitioner felt that he did his job well and got along well with everyone. This testimony was unrefuted. Indeed, both of Respondent's witnesses acknowledged that Petitioner performed his job duties acceptably. Petitioner went to Respondent hospital's emergency room as soon as he had these reactions. He assumed that some of the x-ray technicians whom he worked with in the hospital x-ray department talked to Wayne Austin, the head of the x-ray department, about his situation. No other witnesses supported his assumption. No forms reporting either of Petitioner's "reactions" were received by Jim L. Treglon, Respondent hospital's assistant administrator. Wayne Austin knew of Petitioner's diabetes but had no knowledge of either of Petitioner's "reactions" prior to laying him off. When Mr. Austin laid Petitioner off on August 15, 1994, he told Petitioner that it was due to the hospital's economic restructuring. Petitioner believed, upon the basis of conversations with other employees who were not called to testify, that he was laid off due to his diabetes. According to Mr. Treglon and Mr. Austin, the employing hospital underwent a personnel restructuring process by reduction of work force for financial reasons, and Petitioner was laid off as part of the larger financial conservation scheme. Petitioner had the least seniority and was a part-time employee, so his position was eliminated. There is no evidence that Petitioner's position was ever recreated or refilled. At the same time Petitioner's position was eliminated, another x-ray aide with more seniority was allowed to work weekends only, thereby reducing the hours for which that aide was paid. It is possible, but not proven, that this other aide's hours were eventually increased or restored when the hospital's economic situation improved. At the same time Petitioner's position was eliminated, the x- ray department's clerk-secretary was allowed to resign, and that position was not filled. As part of the employer's restructuring process, a total of 17 employees were eliminated from the employer's total work force based only upon seniority at approximately the same time Petitioner's position was eliminated. Mr. Treglon testified that as of the date of formal hearing, the employer employed at least 40 people who have disclosed disabilities. The definition of "disability", as used in his testimony, was not given.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief herein and determining that Petitioner recover nothing thereby. DONE and ENTERED this 26th day of March, 1996, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1996.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on June 25, 2007.
Findings Of Fact Petitioner is an African-American male who was hired by Respondent in approximately September 2006. When hired, the name of the facility was Greenville Hills Academy. The nature of Respondent’s business was a residential facility which housed boys under an apparent contractual arrangement with the Department of Juvenile Justice. Petitioner was hired by Respondent as a tester, teacher of life skills, and also was assigned library duties. On December 5, 2006, Petitioner received a memorandum from George Hare, Lead Teacher, entitled “Areas of Concern.” The memorandum addressed Respondent’s areas of concern regarding Petitioner, including problems with administering intake and exit tests to clients, as well as Petitioner’s attitude with co- workers. At some point, Petitioner was placed in a welding class. It is his understanding that, in the context of his teaching certificate, he is not permitted to teach outside his field. Petitioner was not certified in welding. Because of that, he refused to teach the welding class or to give grades to students in the class. On March 21, 2007, Petitioner received another memorandum from Mr. Hare. The memorandum notes that the grades in question were not welding grades but grades for the life skills portion of the welding class. The memorandum concludes by placing Petitioner on suspension for two days for failure to perform a duty or to follow instructions. On March 26, 2007, Petitioner received a Memorandum from Jeff McSpaddin, Director of Grants and Projects, notifying him that his employment was being terminated for insubordination and continued nonperformance of assigned duties and responsibilities. Petitioner asserts that he was not properly trained by Respondent and that white employees were properly trained. Other than Petitioner’s general statements, there is no specific evidence in the record as to who these other employees were, their positions, or what type of training they may have received that he did not. Petitioner also asserts that he was not provided with another staff person who could cover for him when he went to the restroom. Because of the nature of the facility, teachers were not permitted to leave students in a classroom even while going to the restroom, and needed a staff person to cover in that instance. As a result, Petitioner could not go to the restroom when needed. He does not know, however, if other teachers were assigned staff to assist them in this regard. Other than the general allegations that he believed white employees received training that he did not and were generally treated better than he was, Petitioner did not identify any similarly situated employees of Respondent outside of his protected class who were treated more favorably. Moreover, there is no evidence that anyone of another race replaced him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 9th day of May, 2008, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 May, 2008.
