The Issue Whether Petitioner's suspension in March 2004 and subsequent dismissal in March 2004 were not, in fact, imposed in consequence of her gross insubordination (which insubordination Respondent allegedly used as a pretext for the adverse employment actions), but rather were in truth retaliatory acts taken by Respondent because Petitioner had filed a charge of discrimination against Respondent.
Findings Of Fact The Order Relinquishing Jurisdiction contained a statement of undisputed material facts, which provided as follows: A. [a.] [Petitioner Diane] Scott [("Scott")] was employed as a teacher's aide in the Monroe County Public School System for approximately 13 years. The [Monroe County School] Board [(the "Board"), which is the governing body of Respondent Monroe County School District,] suspended [Scott] without pay in March 2004 pending termination for just cause. Scott timely requested a formal hearing. [b.] On August 18, 2004, Administrative Law Judge Robert E. Meale of the Division of Administrative Hearings ("DOAH") conducted a formal hearing in DOAH Case No. 04-2060 to determine whether Scott's employment should be terminated. Judge Meale issued a Recommended Order on October 25, 2004, holding, on the basis of extensive findings of fact, that Scott had "repeatedly refused to obey direct orders, essentially to allow the school system to function as an educational resource, free from her harassment of other employees trying to do their jobs." Judge Meale recommended that the Board terminate Scott's employment for just cause, i.e. gross insubordination. [c.] On November 16, 2004, the Board entered a Final Order adopting Judge Meale's Recommended Order in its entirety. Scott did not appeal the Final Order. B. [d.] In November 2004, Scott filed with the FCHR and the EEOC a Charge of Discrimination, signed November 12, 2004 (the "Charge"), wherein she alleged that the Board had retaliated against her for having filed an earlier charge of discrimination. The Charge was received by the FCHR on or about November 22, 2004, and docketed as Charge No. 150-2005-00405. [e.] In the Charge, Scott stated the "particulars" of her claim against the Board as follows: I am black. I filed a charge of discrimination under 150-2004-00146. In retaliation, Respondent placed papers in my fie [sic] that pertained to someone else and papers that were not signed by me. In further retaliation, Respondent placed me on suspension. I believe all of the above occurred in retaliation for filing the aforementioned charge in violation of Title VII of the Civil Rights Act of 1964, as amended.[1] Scott also alleged that the unlawful retaliation took place between the dates of August 18, 2004, and August 24, 2004.2 [f.] . . . Charge No. 150-2004-00146 (the "Prior Charge"), which allegedly triggered the Board's allegedly retaliatory acts, had been brought against the Board in November 2003. . . . [To repeat for emphasis,] the retaliation claim asserted in the [present] Charge is based on alleged adverse employment actions that the Board took, allegedly, in response to Scott's filing the Prior Charge in November 2003. [g.] In her Charge Scott alleged that the Board's unlawful retaliation consisted of (a) placing papers in her personnel file that didn't belong there and (b) putting her on suspension. Regarding the allegedly spurious papers, . . . [f]ive . . . are . . . documents pertaining to another teacher's aide in Monroe County whose name is "Diane M. Scott." (Petitioner Scott is also known as Diane Hill Scott but not, so far as the record reveals, as Diane M. Scott.) The papers relating to the "other" Diane Scott are: (1) an Oath of Public Employee form dated December 20, 1996; (2) an Employer's Statement of Salary and Wages dated April 24, 2001; (3) an Employer's Statement of Salary and Wages dated March 13, 2002; (4) a Civil Applicant Response dated December 20, 1996, which notes that the individual (identified as "Diane Marie Scoh") had failed to disclose a prior arrest; and (5) a copy of the school district's anti-discrimination policy, apparently signed by the other Ms. Scott on August 23, 2002. [h.] In addition to these five papers, Scott claims that her personnel file contained an unsigned copy of the school district's anti-discrimination policy, bearing the handwritten note "Diane Hill Scott refused to sign——8/24/00." Scott asserts that before last year's administrative hearing, she had never seen this particular document. Because of that, she alleges, its presence in her file is evidence of discriminatory retaliation. [i.] Regarding the alleged retaliatory suspension [on which the Charge is based in part], Scott [actually] was referring to three separate suspensions: (1) a three-day suspension in May 2003; (2) a three-day suspension in October 2003; and (3) the suspension in March 2004 that was part and parcel of the proceeding to terminate Scott's employment. It is undisputed that Scott was in fact suspended from employment on each of these three occasions. However, [by] a letter to Scott from the Director of Human Resources dated October 3, 2003, [the Board had] formally rescind[ed], as the product of "error and miscommunication," the three-day suspension Scott was to have served that month. [j.] On April 26, 2005, the EEOC issued a Dismissal and Notice of Rights on Scott's Charge against the Board. In this notice, the EEOC stated that it was unable to determine whether the Board had violated Scott's civil rights. Thereafter, on May 12, 2005, the FCHR issued Scott a Right to Sue letter. Scott timely filed a Petition for Relief ("Petition") with the FCHR on June 6, 2005. The FCHR immediately transferred the Petition to DOAH, initiating the instant action. The undersigned hereby adopts the foregoing as findings of fact. Following the principle of estoppel by judgment (discussed in the Conclusions of Law below), it is found that, prior to being suspended from employment in March 2004, Scott repeatedly had refused to obey direct orders; she had been, in other words, grossly insubordinate at work. The evidence in the record is insufficient to persuade the undersigned——and consequently he does not find——that the Board used Scott's gross insubordination as a pretext for taking adverse employment actions, namely suspension and dismissal, against Scott. The evidence is likewise insufficient to establish, and thus it is not found, that the Board in fact suspended and discharged Scott in retaliation for filing the Prior Charge. It is determined, therefore, as a matter of ultimate fact, that the Board did not unlawfully retaliate against Scott when it terminated her employment on the ground that she had been grossly insubordinate, which misbehavior constitutes just cause for firing a teacher's aide, see §§ 1012.01(2)(e) and 1012.33(1)(a), Fla. Stat., and hence is a legitimate, non- retaliatory basis for taking adverse employment action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding the Monroe County School District not liable to Diane Scott for retaliation or unlawful discrimination. DONE AND ENTERED this 11th day of May, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 11th day of May, 2006.
The Issue The issue is whether Respondent committed an unlawful employment act against Petitioner pursuant to Chapter 70 of the Pinellas County Code, as amended, and Title VII of the U.S. Civil Rights Act of 1964, as amended.
Findings Of Fact Petitioner, a black female, is a member of a protected group. Respondent is an employer as defined in the Pinellas County Code, as amended, and Title VII of the Civil Rights Act of 1964, as amended. Respondent hired Petitioner as a telemarketer on December 8, 1997. Petitioner's job required her to call the telephone numbers on a list furnished by Respondent. After making the call, Petitioner was supposed to solicit the booking of vacations in time-share rental units by reading from a script prepared by Respondent. The script included an offer to sell potential customers three vacations in three locations for $69. When Respondent hired Petitioner, she signed a copy of Respondent's "New Employee Policy and Procedures" manual. Petitioner admits that this manual required her to book 25 vacations each pay period after a two-week training period. She also admits that the manual required her to only use the prepared script, including preplanned rebuttals to customer questions when talking over the telephone. Petitioner understood that during the two-week training period, she would be required to book 14 vacations or be terminated. She knew that Respondent's supervisors would monitor her sales calls. Petitioner sold four vacation packages in her first week at work with no complaints from her supervisors. In fact, one of Respondent's supervisors known as Mike told Petitioner, "You got the juice." On December 15, 1997, Mike monitored one of Petitioner's calls. Petitioner admits that she did not use the scripted rebuttals in answering the customer's questions during the monitored call. Instead, she attempted to answer the customer's questions using her own words. According to Petitioner, she used "baby English" to explain the sales offer in simple terms that the customer could understand. After completing the monitored call on December 15, 1997, Mike told Petitioner to "stick to the shit on the script." Mike admonished Petitioner not to "candy coat it." Petitioner never heard Mike use profanity or curse words with any other employee. Before Petitioner went to work on December 16, 1997, she called a second supervisor known as Kelly. Kelly was the supervisor that originally hired Petitioner. During this call, Petitioner complained about Mike's use of profanity. When Kelly agreed to discuss Petitioner's complaint with Mike, Petitioner said she would talk to Mike herself. Petitioner went to work later on December 16, 1997. When she arrived, Mike confronted Petitioner about her complaint to Kelly. Petitioner advised Mike that she only objected to his language and hoped he was not mad at her. Mike responded, "I don't get mad, I get even." When Petitioner stood to stretch for the first time on December 16, 1997, Mike instructed her to sit down. Mike told Petitioner that he would get her some more leads. Mike also told Petitioner that she was "not the only telemarketer that had not sold a vacation package but that the other person had sixty years on her." Petitioner was aware that Respondent had fired an older native-American male known as Ray. Respondent hired Ray as a telemarketer after hiring Petitioner. When Petitioner was ready to leave work on December 17, 1997, a third supervisor known as Tom asked to speak to Petitioner. During this conversation, Tom told Petitioner that she was good on the telephone but that Respondent could not afford to keep her employed and had to let her go. Tom referred Petitioner to another company that trained telemarketers to take in-coming calls. Tom gave Petitioner her paycheck, telling her that he was doing her a favor. During Petitioner's employment with Respondent, she was the only black employee. However, apart from describing the older native American as a trainee telemarketer, Petitioner did not present any evidence as to the following: (a) whether there were other telemarketers who were members of an unprotected class; (b) whether Petitioner was replaced by a person outside the protected class; (c) whether Petitioner was discharged while other telemarketers from an unprotected class were not discharged for failing to follow the script or failing to book more than four vacations during the first ten days of employment; and (d) whether Petitioner was discharged while other telemarketers from an unprotected class with equal or less competence were retained. Petitioner was never late to work and never called in sick.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the City's Human Relations Review Board enter a final order dismissing Petitioner's Complaint. DONE AND ENTERED this 16th day of November, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2001. COPIES FURNISHED: Bruce Boudreau Vacation Break 14020 Roosevelt Boulevard Suite 805 Clearwater, Florida 33762 Donna Conway 3156 Mount Zion Road No. 606 Stockbridge, Georgia 30281 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Stephanie Rugg, Hearing Clerk City of St. Petersburg Community Affairs Department Post Office Box 2842 St. Petersburg, Florida 33731
The Issue The issue is whether the Division of Administrative Hearings has subject matter jurisdiction over the issues raised in Petitioner's Charge of Discrimination.
Findings Of Fact Petitioner's discrimination statement dated February 18, 1997, states as follows: I believe that I was discriminated against when the sheriff's department used illegally obtained information from my employer and a relative of mine working in the department, to give negative references and information to the general public. Petitioner has never applied for employment or been employed by the Suwannee County Sheriff or his office. Petitioner's claim apparently arises out of a family dispute between the Petitioner, her mother, Lotis Musgrove, and her sister, Eyvonne M. Roberson, who works for the Suwannee County Sheriff's Department. The family dispute is not related to the Petitioner's employment with the Suwannee County Sheriff.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That FCHR dismiss Petitioner's Petition for Relief. DONE AND ENTERED this 20th day of May, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1998. COPIES FURNISHED: Linda G. Bond, Esquire Powers, Quaschnick, Tischler and Evans Post Office Box 12186 Tallahassee, Florida 32317-2186 Faye Musgrove Post Office Box 657 Live Oak, Florida 32064 Charmin Christensen, Director Suwannee County Personnel 200 South Ohio Avenue Live Oak, Florida 32060 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, the appropriate relief for such action.
Findings Of Fact For purposes of this case, the Petitioner began his employment with the Respondent in July of 2007. Although the Petitioner had worked for the Respondent in prior years (at another location), he had voluntarily left the company to pursue other opportunities. When the Petitioner returned to employment with the Respondent in connection with this case, it was ten years after a heart transplant. At the time of hiring, the Respondent knew the Petitioner's medical condition and age. The Petitioner is approximately 61 years of age. The Respondent is a national corporation with several sites for engineering and manufacture of its products. The Respondent is an equal opportunity employer and maintains policies prohibiting unlawful discrimination. One of the Respondent's facilities, Sykes Creek, is located in Brevard County, Florida. The Petitioner was hired to work at the Sykes Creek facility in the role of engineering supervisor. The Sykes Creek site builds luxury power yachts ranging from 50–to-60 feet in length. The price of these yachts runs from approximately $900,000 to $2,000,000 each. Typically, the yacht is ordered and customized to the buyer's specification. The Petitioner was responsible for supervising and directing work at Sykes Creek and reported to Kevin Shaw, his immediate supervisor. Mr. Shaw in turn reported to the plant manager, Steven Fielder. The Petitioner reviewed the work and attendance of approximately 21 hourly employees. When the Petitioner was hired (2007), the Sykes Creek facility produced 116 yachts and employed approximately 575 people. Within the Petitioner's department (engineering) there were 26 people; four others like Petitioner were salaried employees. The economic crunch that struck most of the nation drastically reduced the Respondent's business. In 2008 the Respondent instituted unpaid furloughs and layoffs due to the lack of business. By 2009 the economic condition in the industry had not improved. Accordingly, the Respondent had to make additional cuts to its staff. To that end, Mr. Fielder advised Mr. Shaw that the Petitioner's department would have to be cut to reduce the number of hourly employees and one salaried employee. To determine who should be cut, the Respondent looked to the number of years of service with the company and the skill set/education they provided for the facility. The Petitioner had the shortest length of service with the Respondent except for an employee named Julie Halesma. That person was not chosen for lay-off because she was a credentialed industrial engineer. The Petitioner did not have those credentials. The Petitioner was not offered a lower, hourly paid position because he did not have the skill set to perform the work as well as the hourly employees who were already doing the jobs. A number of employees were laid off the same day the Petitioner was dismissed. The Petitioner's job position was eliminated and has not, as of the date of hearing, been restored. The Respondent has continued to lay off workers. In 2009 the Sykes Creek facility was down to 175 employees. The engineering department was down to 15 people. Absent a return to more prosperous times, it is not expected that the facility will be able to rehire employees. The job tasks that the Petitioner performed are now shared by other employees at the facility. Throughout his time at the Sykes Creek facility, the Petitioner was allowed to take time off as needed to attend to medical issues. Based upon the frequency of the medical leave, the Respondent knew or should have known that the Petitioner's medical condition required monthly treatment. The extent of the medical treatment, however, was unknown to the Respondent. As a salaried employee the Petitioner did not have to "punch the clock." The Respondent allowed the Petitioner to complete his work as he might dictate so that he was free to leave the facility to attend to his medical needs. Clearly, the Respondent knew the Petitioner had had the heart transplant at the time of hiring but that medical condition did not impede the Petitioner's ability to perform his job assignments. The medical situation required that he be absent, but there is no indication that Petitioner could not perform his job. The cost of the Petitioner's medical care was unknown to the persons charged with making the lay-off decisions. The cost of the Petitioner's medical care played no part in the decision to eliminate the Petitioner's job. Similarly, the Petitioner's age did not play a part of the Respondent's decision to eliminate the Petitioner's job. The Respondent articulated legitimate business reasons for eliminating the Petitioner's job position. Clearly the Respondent knew of the Petitioner's age at the time of hiring. The Respondent did not replace the Petitioner with a younger employee. The Respondent's explanation for whom it chose to retain in employment was not based upon an employee's age but rather legitimate business interests. Episodes during which the Petitioner required medical attention at the facility did not rise to a level to cause the Respondent to be concerned for Petitioner's medical well-being. Incidents of the Petitioner being light headed or with low blood sugar did not cause the Respondent to seek to eliminate the Petitioner's job position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of March, 2009, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 9th day of March, 2009. COPIES FURNISHED: Rolf J. Bierman 1035 Palmer Road Rockledge, Florida 32955 Brian W. Koji, Esquire Bona M. Kim, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 225 Tampa, Florida 33606 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Did Petitioner suffer an adverse employment action as a result of an unlawful discrimination by the Department of Corrections (Department) in violation of Subsection 760.10(1)(a), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. At times pertinent to this proceeding, Petitioner was employed at Brevard Correctional Institution and was considered by the Department to be qualified for the position for which he was employed. Petitioner is a male, African-American. On October 24 1994, Petitioner received a Written Reprimand for the abuse of the Department's sick leave policy, which had occurred on October 21, 1994, in that Petitioner, while on authorized sick leave on October 21, 1994, attended the Dorothy Lewis trial, without authorization from the Department. Petitioner presented no evidence to show that the Written Reprimand issued on October 24, 1994, was issued because of Petitioner's race or gender; rather it was issued based on a reasonable belief that Petitioner had abused the Department's sick leave policy by attending the Dorothy Lewis trial while out on official sick leave. Petitioner presented no evidence to support the remaining allegations contained in the Petition for Relief filed by Petitioner in this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 18th day of January, 2002, in Tallahassee, Leon County, Florida. _ WILLIAM R. CAVE 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 18th day of January, 2002. COPIES FURNISHED: Hugh F. Brockington, II 19715 Eagles View Circle Umatilla, Florida 32784 Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 Louis A. Vargas, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-6563 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent, Sanford Housing Authority (Respondent), committed an unlawful employment practice as alleged in the Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner, Jimitre Smith (Petitioner), be granted.
Findings Of Fact Petitioner is a female who was pregnant during a portion of the time events occurred related to her employment with Respondent. At the time of Petitioner’s initial employment with Respondent, the Sanford Housing Authority operated public housing complexes within its geographical area pursuant to a HUD program to provide housing assistant to low income, qualified residents. At some point, the Orlando Housing Authority stepped in to take over the management of Respondent’s properties. Due to the deteriorating condition of Respondent’s properties, residents were provided Section 8 vouchers so that they could obtain private rental opportunities. In the midst of the transition period, Petitioner’s employment with Respondent ended. Petitioner was initially hired by Respondent to replace a receptionist who was out on maternity leave. The assignment was part-time and temporary. It began on or about March 31, 2010. When the receptionist returned to work, Petitioner was offered a second part-time job as leasing clerk. Although the record is not clear when this second job started, it is undisputed that Petitioner sought and was granted maternity leave due to her own pregnancy on September 27, 2010. It was during this time period that the Orlando Housing Authority stepped in to take over Respondent’s responsibilities. Mr. Fleming, an employee of the Orlando Housing Authority, served as the Interim Executive Director for Respondent. In November 2010 residents were advised of the plan to demolish the substandard housing units. Since the units would not be leased, a leasing clerk was no longer required. Although Petitioner had been told she could return to work after her maternity leave, there was no position available for her at that time. Once the Orlando Housing Authority took over management, all of the day-to-day work was assigned to its employees. Respondent kept a handful of maintenance workers, but there is no evidence Petitioner sought and/or was denied that type of job. Petitioner claimed she should have been offered or allowed to apply for a job with the Orlando Housing Authority. There is no evidence that entity was required to hire her or that it refused to hire her because of her gender or pregnancy or that Respondent refused to recommend Petitioner for employment due to her gender or pregnancy. When Petitioner was cleared for return to work in December 2010, there was not a job to return to as Respondent did not have a position for her. There is no evidence that Respondent hired anyone during or after Petitioner’s pregnancy or that Petitioner was refused a job that she was qualified to perform. Had a suitable job been available, it most likely would have come through the Orlando Housing Authority. In January of 2011, Respondent formally eliminated Respondent’s part-time position through a reduction in workforce decision. At that time, Petitioner received a severance payment from Respondent and an offer for other job training opportunities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by Petitioner, and dismissing her employment discrimination complaint. DONE AND ENTERED this 3rd day of January, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 January, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Jimitre Rochelle Smith 804 South Bay Avenue Sanford, Florida 32771 Ricardo L. Gilmore, Esquire Saxon, Gilmore, Carraway and Gibbons, P.A. Suite 600 201 East Kennedy Boulevard Tampa, Florida 33602 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether respondents are guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, including the pleadings and argument of counsel, the following findings of fact are determined: Petitioner, Carolyn E. Simmons, is a black female. In 1990, she began employment as a cook with respondent, Inverness Inn (Inn), an employer allegedly subject to the Florida Human Rights Act, as amended. At that time, the Inn was owned by respondent, Cvetko Blazevski. On March 25, 1992, petitioner filed a charge of discrimination with the Commission on Human Relations (Commission) alleging that she was "harassed and subjected to racial terms by Mr. Cretko (sic) Blazevski, Owner, from the beginning of (her) employment until the present time." For the purpose of ruling on this motion only, the undersigned has accepted this allegation as being true. The charge of discrimination, and the petition for relief subsequently filed, did not specify the relief being sought. In April 1992, Blazevski's ownership in the Inn was terminated by a court, and the Inn later closed and went out of business. Petitioner continued to work in her position as a cook after Blazevski left the Inn and until it closed. According to petitioner's counsel, Simmons seeks only compensatory damages against respondents for their conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order dismissing with prejudice the petition for relief. DONE AND ENTERED this 27th day of October, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 27th day of October, 1993. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Kenneth S. Stepp, Esquire 305 North Apopka Avenue Inverness, Florida 34450 David L. Wilcox, Esquire 452 Pleasant Grove Road Inverness, Florida 34452
The Issue Whether Petitioner, Marlowe D. Robinson ("Petitioner"), was unlawfully discriminated against by Respondent, Broward County School District ("BCSD"), his employer, based on his disability and in retaliation for complaining about discrimination, in violation of chapter 760 of the Florida Statutes, the Florida Civil Rights Act; and, if so, what is the appropriate remedy.
Findings Of Fact Petitioner worked for BCSD for approximately 20 years prior to the termination of his employment on May 8, 2018. Petitioner is a disabled veteran. At the time of his termination, Petitioner was employed as the Head Facility Serviceperson at BCSD's office in the Katherine C. Wright Building ("KCW"). On February 5, 2016, Richard Volpi began working at KCW as the Manager of Administrative Support and as Petitioner's immediate supervisor. During Mr. Volpi's third day on the job, Petitioner told him that he was not happy that Mr. Volpi was at KCW and that KCW was "his house." He also told Mr. Volpi that he did not work because he "delegated to his crew." On February 18, 2016, Petitioner filed two internal labor grievances. In the first, he asked to have his job title changed to "Building Operations Supervisor." In the second grievance, Petitioner alleged that Mr. Volpi and Jeff Moquin, Chief of Staff, created a hostile and unclean work environment. Mr. Volpi processed the grievances by having a meeting with Petitioner on February 25, 2016. Finding no basis for the grievances in the collective bargaining agreement, Mr. Volpi denied them. On October 10, 2016, Mr. Volpi met with Petitioner to discuss a significant pattern of Petitioner coming in late, failing to notify BCSD when arriving late, staying after his scheduled shift to make up time without authorization, failing to call in as required for sick days, and failing to have pre- authorization for using accumulated leave. After the meeting, Mr. Volpi issued a written "Meeting Summary," which included counseling, based on Petitioner having come in late 24 days since August 1, 2016, and only notifying Mr. Volpi's assistant of the tardiness on three of those 24 days. The "Meeting Summary" was not considered discipline and stated, "If for any reason you need to change your shift hours to assist you in getting to work on time, please let me know." On October 19, 2016, Petitioner filed his third internal labor grievance after Mr. Volpi became his supervisor. The third labor grievance made numerous allegations against Mr. Volpi, including, but not limited to, sexual harassment, unspecified Family and Medical Leave Act ("FMLA") violations, and retaliation for filing prior grievances. On October 26, 2016, Petitioner submitted a request for intermittent leave pursuant to FMLA. The next day, Petitioner was notified that his FMLA leave request was incomplete, and was therefore denied. Petitioner was later granted intermittent FMLA leave with the agreement that he was to provide advance notification of his anticipated absences. On November 9, 2016, Petitioner was notified in writing to appear at Mr. Volpi's office on November 16, 2016, for a pre- disciplinary conference to discuss Petitioner's failure to adhere to the directive of October 10, 2016, to notify Mr. Volpi if he was going to be late, out for the day, or working outside his scheduled hours. The letter specified that Petitioner was late October 11, 13, and 17, 2016, without notifying Mr. Volpi, and that Petitioner was late and worked past his regular scheduled hours on October 21, 25, and November 7, 2016. The letter also specified that Petitioner "called out" (took time off) without notifying Mr. Volpi on October 31 and November 1, 2, 3, 4, and 8, 2016. In response, Petitioner filed a fourth grievance against Mr. Volpi alleging retaliation, bullying, and violations of the Americans with Disabilities Act ("ADA") and various policies of BCSD. On November 16, 2016, Mr. Volpi memorialized in writing that Petitioner failed to show up for the November 16, 2016, pre-disciplinary meeting. On November 21, 2016, Petitioner was notified in writing that he was to appear at Mr. Volpi's office on November 30, 2016, for a pre-disciplinary meeting to replace the original meeting scheduled for November 16, 2016. Petitioner was not disciplined for not showing up to the November 16, 2016, meeting. The meeting on November 30, 2016, went forward as scheduled and Petitioner was issued a verbal reprimand on December 5, 2016, his first discipline from Mr. Volpi, for Petitioner's ignoring the prior directive to contact his supervisor if he was going to be late, absent, or wanted to work beyond his scheduled shift. He was again reminded that he had to make such notifications and have permission in advance of working hours other than his regular shift. On January 12, 2017, Petitioner was granted a reasonable accommodation pursuant to the ADA. The accommodation granted permitted Petitioner to report to work within one hour of his scheduled work time and leave within one hour of his scheduled end time ("flex time"). Additionally, Petitioner was required to notify his supervisor in advance of using flex time. Mr. Volpi assisted Petitioner in the accommodation process. Mr. Volpi provided Petitioner the accommodation paperwork and advocated for Petitioner to be granted an accommodation. On January 26, 2017, Petitioner again came in late without providing Mr. Volpi advance notice of intent to use his flex time. On January 27, 2017, Mr. Volpi sent an email to Petitioner reminding Petitioner that he was required to notify him if he is going to be late. This was not considered discipline. On March 21, 2017, Petitioner was notified in writing that he was to appear at Mr. Volpi's office on March 27, 2017, for a pre-disciplinary meeting regarding ongoing excessive tardiness and failure to adhere to his work schedule. On March 23, 2017, Petitioner filed his fifth internal labor grievance, again alleging harassment (among other claims) against Mr. Volpi. On March 28, 2017, Petitioner filed his sixth internal labor grievance, again making harassment allegations against Mr. Volpi. On April 6, 2017, Petitioner was issued a Written Reprimand by Mr. Volpi for his nine days of tardiness in February and March and his failure to notify Mr. Volpi in advance. On April 7, 2017, Petitioner appealed the Written Reprimand. Petitioner also filed his seventh and eighth internal labor grievances alleging discrimination on the basis of disability and retaliation. Petitioner filed his Charge with the FCHR on April 13, 2017. Mr. Volpi conducted a first-step grievance hearing on April 27, 2017, and as a result of the discussion with Petitioner, who agreed to notify Mr. Volpi in advance of his inability to arrive at work as scheduled, the April 6, 2017, Written Reprimand was reduced to a verbal warning. The FCHR dismissed Petitioner's Charge with a No Reasonable Cause Determination on October 10, 2017. Between January 1 and February 15, 2018, Petitioner came to work late 14 days without providing prior notice, was absent without leave two days, and worked overtime one day without prior authorization. As a result, BCSD issued a three- day suspension on February 21, 2018. On February 22, 2018, Mr. Volpi met again with Petitioner to go over the expectations and provided a reminder memo not to work unauthorized hours without prior approval. On March 13, 2018, Mr. Volpi asked BCSD to issue a ten-day suspension to Petitioner for his ongoing failure to report to work at assigned times, unauthorized overtime, and absences without leave. In response, Petitioner filed yet another labor grievance. BCSD approved the ten-day suspension on April 10, 2018. Despite the ADA accommodation, increasing discipline, multiple counseling meetings and reminders, Petitioner continued his pattern of tardiness, unauthorized overtime, and absences. Accordingly, BCSD terminated Petitioner's employment on May 8, 2018. Petitioner's discipline and ultimate termination were not performance based, but rather, related solely to ongoing attendance issues.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing FCHR Petition 201700954. DONE AND ENTERED this 6th day of December, 2018, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 6th day of December, 2018.
The Issue Whether Petitioner was discriminated against based on retaliation for participation in a protected activity in violation of Chapter 760.10(7), Florida Statutes.
Findings Of Fact Petitioner (Holden) is an African-American female. At all times relevant to this petition, Holden was employed in a probationary status by the Florida Department of Corrections at Apalachee Correctional Institution (ACI) as a Correctional Officer. Probationary officers are not entitled to progressive discipline, but can be terminated for any reason. At the hearing, Holden withdrew her claims that the Department had discriminated against her based on her race and sex. On or about July 22, 2001, Captain Tullis Scipper responded to a call from the Medical Unit at ACI. Upon his arrival, he observed Officer Holden in front of the Suicide Watch Isolation Cell. She was cussing at the inmate with whom she had a previous confrontation. Scipper explained to her that she was not to argue or verbally abuse the inmate and that she should stay away from the cell. On at least one other occasion that night, Captain Scipper responded to the Medical Unit and observed similar actions by Holden. The next day, Captain Scipper received a call from Warden Adro Johnson, who inquired as to what had happened in the Medical Unit the night before. Warden Johnson had received a complaint from Nurse Carla Weeks that Officer Holden had been cussing the inmates and he was checking into the complaint. Warden Johnson asked Captain Scipper to bring Officer Holden to his office. The purpose of the meeting was not to ascertain whether Officer Holden had been cussing at inmates. The Warden had two eye-witness, staff accounts of her behavior. When confronted, she advised Warden Johnson that she had become angry and had cussed the inmate. Warden Johnson counseled Holden about her behavior. Warden Johnson testified that he felt that Holden was unreceptive to his counseling and that she was argumentative. He believed that she was not displaying the attitude that a good officer displays when he/she is being counseled by a warden. Holden also was upset and crying, and, as a result, Warden Johnson informed her that she needed to adjust her attitude and come back to see him the next day. Warden Johnson testified that he had not made up his mind as to what action he would take against Holden for her actions with the inmate. After the meeting with Warden Johnson, Captain Scipper observed Officers Holden and Shiver arguing with each other. Holden testified that she had asked Shiver about why her tour was changed, and this led to the incident observed by Scipper. In Scipper’s opinion, Holden was the “aggressor” because she continued to advance on Shiver, even though Shiver had his hands in the air and was stating words to the effect that he did not have anything to do with whatever they were arguing about. Knowing that Holden had just had a counseling session with the Warden, Scipper was surprised that Holden would almost immediately be involved in an altercation with a staff member. He relieved Holden of her duties for the rest of her scheduled shift. The next day Holden met as scheduled with Warden Johnson. Captain Scipper did not attend this meeting. Johnson had been informed of the previous day’s incident between Officers Holden and Shiver. He asked Holden if she was willing to change her attitude. He had not determined prior to the meeting if he would take any action at all against Holden. Johnson felt that Holden's response to him was disrespectful, and that she did not have the right attitude. Johnson terminated Holden based on what he perceived to be her poor attitude. He knew that Holden was approaching the end of her probationary status and that if he wanted to terminate her before she attained career service status with its attendant protections, he needed to do so at that time. Petitioner complained in an incident report filed before the Warden the first time that Captain Scipper refused to listen to her when he counseled her about a prior staff altercation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 24th day of September, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2003. COPIES FURNISHED: Kimberly Holden 2103 Vista Road Marianna, Florida 32448 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent.
Findings Of Fact Petitioner is a Black male. Respondent is a staffing company that contracts with third party employers. Over 80 percent of Respondent’s employees are Black. After Respondent matches a candidate with a job opening, the third-party employer interviews the candidate for employment. If the candidate is employed by the third party, the employee must abide by the third-party employer’s policies as well as the employment policies of Respondent. Petitioner was hired by Respondent some time in January 2008. Respondent requires all employees to notify Respondent of his or her absence prior to that employee’s scheduled report time for their employment. Respondent also requires that all employees report to work at their scheduled report time. Failure to either call in or show up for work is known as a ‘no call/no show’. The employment policies of Respondent reflect that a “no call/no show” is grounds for termination. Petitioner received a copy of Respondent’s employee handbook, which included the “no call/no show” provision. He was also aware of Respondent’s “no call/no show” policy. Around January 14, 2008, Respondent successfully matched Petitioner with a position at BR Williams Trucking Company (BR Williams). Like Respondent, BR Williams maintains a policy of termination when an employee fails to show up for work or does not call in prior to the start of the work day to report their absence. Petitioner’s scheduled report time for BR Williams was 7:00 a.m. On March 3, 2008, Petitioner contacted Respondent’s Regional Sales Manager, Diane Jarrett, to report that he had overheard a racial slur that a White employee, Harry Hingson, had made to another employee. Like Petitioner, Mr. Hingson had been placed at BR Williams by Respondent and was an employee of both Respondent and BR Williams. Ms. Jarrett sent Respondent’s Human Resources Assistant, Annis Herndon, to BR Williams to terminate Mr. Hingson for having made the racial slur. She met with Mr. Wilkinson, BR Williams’ manager. Mr. Hingson was terminated from BR Williams. Neither Ms. Jarrett nor Ms. Herndon disclosed that Petitioner had reported Mr. Hingson’s racial slur to her. After the termination, Mr. Wilkinson mentioned to a group of employees, including Petitioner, that he hated to fire Mr. Hingson because “everybody needs a job.” The evidence did not demonstrate that Mr. Wilkinson said that “once he found out who did this, they will pay.” Petitioner felt that Mr. Wilkinson was talking to him or targeting him because Mr. Wilkinson looked him in the eyes during the meeting. Mr. Wilkinson did not testify at the hearing. As a consequence, there is no competent evidence regarding Mr. Wilkinson’s intent showing any look he may or may not have given Petitioner. On March 24, 2008, Petitioner worked his regular shift at BR Williams. On the evening of March 24, 2008, Petitioner was arrested for driving while intoxicated (DUI) and was held in jail overnight. He was released two days later on March 26, 2008. On March 25, 2008, Petitioner was scheduled to begin his shift at 7 a.m. Petitioner did not report to work as scheduled because he was in jail. Petitioner also did not call Respondent to report his absence prior to the beginning of his shift or during the morning of March 25, 2008. Mr. Wilkinson called Respondent around 9:00 a.m. and reported that Petitioner was not at work and had not called in. He did not know where Petitioner was. Respondent could not locate Petitioner at his home. Mr. Wilkinson instructed Respondent that if he or Respondent did not hear from Petitioner before noon, Petitioner was terminated for not showing up at work and not calling in. About 1:00 p.m., after Petitioner was terminated by BR Williams, Petitioner called Respondent collect from jail. He was advised that he had been terminated from BR Williams. After speaking with Petitioner, Respondent called BR Williams to report that Petitioner had called in after noon and that she had told him that he had been terminated from BR Williams. Respondent did not tell Petitioner that he was terminated from Cardinal Staffing. BR Williams’ decision to terminate Petitioner was not based on his race or his complaint regarding Mr. Hingson’s racial slur. Indeed, there was no competent evidence to suggest that Petitioner was terminated from BR Williams for any reason other than he was in jail, and did not report to work as scheduled. Petitioner was not terminated from Cardinal Staffing. Petitioner left a message on Respondent’s answering machine on March 27 or March 28, 2008. Return calls by Respondent could not be left at the numbers that Respondent had for Petitioner. He did not contact Respondent again until August 2008, at which time there were no positions available for him. Importantly, Petitioner was not terminated from Respondent. As with all Respondent’s employees, Petitioner had the responsibility of calling Respondent as often as possible to check if other employment opportunities were available. If Petitioner had contacted Respondent to seek placement during April–June, 2008, and if a placement for which Petitioner was qualified had been available, Respondent would have sent him for an interview with the prospective employer. Indeed, it was Petitioner’s lack of action that caused him to miss any employment opportunities that may have been available to him during April – June, 2008. After August 2008, Petitioner did not contact Respondent to seek other employment opportunities. Petitioner identified two non-minority employees that were terminated from their third-party employer jobs and received new assignments with another of Respondent’s clients. The two employees were Jason Whibble and Sherita Cheshire. Neither of these employees was similarly situated to Petitioner. Mr. Whibble was terminated for having a felony conviction involving multiple traffic tickets. Ms. Cheshire was terminated because she could not perform her job duties. After termination, both employees called in on a daily or weekly basis to check to see if any job openings were available. In this case, Petitioner was terminated for a very different reason from BR Williams. Petitioner also did not frequently call Respondent to check for job openings that might be available to him. Indeed, Petitioner has not identified any similarly situated non-Black employee of Respondent’s who was terminated from an employment assignment on the basis of an employer’s “no call/no show” policy and was treated more favorably than Petitioner. The evidence was clear that Petitioner was not terminated from Cardinal Staffing and failed to maintain frequent contact with them. Clearly, Respondent did not discriminate against Petitioner. Given these facts, 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 for Relief with prejudice. DONE AND ENTERED this 29th day of May, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 2009. COPIES FURNISHED: Walter Jan Pietruszka, Esquire Shumaker Loop & Kendrick 101 East Kennedy Boulevard, Suite 2800 Tampa, Florida 33602 Melvin Lee Butler 40 Jack Scott Road Quincy, Florida 32351 Robert E. Larkin, III, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 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
