The Issue The issues are whether Respondent, Parkland Rehabilitation and Nursing Center (Parkland), committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, when it terminated the employment of Petitioner, Ardel Hannah, and whether it subjected Petitioner to disparate treatment on the basis of his national origin.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Parkland is a rehabilitation and nursing center located at 1000 Southwest 16th Avenue, Gainesville, Florida. It is an employer as that term is defined in Section 760.02(7), Florida Statutes. Petitioner is a black male of American national origin. Although his actual date of employment is not of record, the evidence reflects that Petitioner had been employed by Parkland's maintenance department for more than ninety days when he was suspended on August 24, 2007, and then formally terminated by letter dated September 7, 2007. His primary job assignment was to repaint residents' rooms at the facility after the rooms were vacated. Petitioner's supervisor was Arthur Ellesten, Director of Maintenance, who is originally from Jamaica but is now a United States citizen. Although Mr. Ellesten has authority to hire employees in that department, he does not have authority to terminate employees. Two other workers on the maintenance staff, including Vichaun Palmer, were of Jamaican national origin. Michael Rau was the Administrator of the facility and its most senior employee. Mr. Rau has the authority to hire and terminate employees. He is of American national origin. On August 21, 2007, Mr. Ellesten verbally counseled Petitioner based on his unsatisfactory job performance. Petitioner became hostile towards Mr. Ellesten during this counseling session and swore at Mr. Ellesten. Petitioner was informed that he would be formally written up if his performance did not improve. Prior to August 24, 2007, Mr. Rau verbally counseled Petitioner on at least two occasions for his poor job performance, based on his slow progress at assigned tasks and fraternizing with female staff members for long periods of time during regular working hours. An incident occurred on August 24, 2007, which, when coupled with his prior unsatisfactory job performance, culminated in Petitioner's suspension and termination. Although the testimony regarding the incident is conflicting in many respects, the following facts are found to be the most credible. On that date, Petitioner arrived at work around 8:00 a.m. and confronted Mr. Ellesten in the courtyard of the facility. Petitioner requested Paid Time Off (PTO) for that day, which is paid leave accrued by full-time employees. Petitioner was told that he would have to request a form from Mr. Rau. Believing that Mr. Ellesten had provided PTO forms to the other Jamaican maintenance workers, Petitioner became angry and began swearing at his supervisor. Seeking to avoid a physical confrontation, Mr. Ellesten left the courtyard to return to his office on the second floor. Petitioner followed Mr. Ellesten up the stairs to the office where Petitioner verbally threatened to kill him. After Petitioner refused to leave the office, Mr. Ellesten called security, who telephoned the police department. Mr. Ellesten then departed his office, and as he was walking down the stairs, Petitioner pushed him. However, he was not injured. Petitioner left the premises a few minutes later and returned to an apartment complex where he lived. After security contacted the police department, Officer Moore was dispatched to Parkland. Mr. Ellesten requested that Officer Moore not file criminal charges against Petitioner but only give him a trespass warning. Officer Moore then went to Petitioner's apartment and issued a verbal trespass warning. This is evidenced by an Incident/Investigation Report prepared by Officer Moore. Petitioner later returned to Parkland the same day where he met with Mr. Rau to discuss the incident. During their conversation, Petitioner alleged that Mr. Ellesten had physically attacked him that morning. After Officer Moore arrived a few minutes later and joined the two, Petitioner did not repeat the allegation. Pending a further investigation of the matter, Mr. Rau suspended Petitioner. Petitioner never filed a complaint with the police department against Mr. Ellesten, and he never filed a complaint or grievance with anyone at Parkland alleging that Mr. Ellesten had attacked him, as alleged in his Petition for Relief. Also, he never informed Mr. Rau that he was treated different or unfairly by Mr. Ellesten, other members of the maintenance department, or other employees of Parkland. Finally, he never complained that the other two workers in the maintenance department were treated more favorably than he. Violence against a co-worker or supervisor is considered unacceptable conduct and by itself is a basis for termination by Mr. Rau and Parkland. As a part of his investigation, Mr. Rau questioned Mr. Ellesten about the events on August 24, 2007, obtained a written statement from Mr. Ellesten, spoke with Petitioner on August 24, 2007, and reviewed the Incident/Investigation Report prepared by Officer Moore. On September 7, 2007, Mr. Rau sent Petitioner a letter formally terminating his employment with Parkland based on the August 24, 2007, incident and "past issues related to [his] performance and conduct." There is no evidence, direct or circumstantial, that national origin was considered at any point during Petitioner's employment or that national origin played a part in his termination. Further, no credible evidence, direct or circumstantial, was submitted to show that he was otherwise subjected to disparate treatment because he was an American.
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 finding that Parkland did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 22nd day of October, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 22nd day of October, 2008. COPIES FURNISHED: Denise Crawford, Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 200 Tallahassee, Florida 32399-4857 Ardel Hannah 996 Southwest 16th Avenue Apartment 904 Gainesville, Florida 32601-8483 Lauren M. Levy, Esquire Levy & Levy, LLC 4230 South MacDill Avenue, Suite 230 Tampa, Florida 33611-1901 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32399-4857
The Issue Whether Petitioner, a member of a protected class, was denied training, subjected to unequal terms of employment and denied promotion to three jobs including the position of Lead Custodian with the Respondent in the Physical Plant Department in 1993, on the basis of his gender (male) and race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1993).
Findings Of Fact The Respondent is an employer under the 1992 Florida Civil Rights Act. Petitioner was employed by Respondent as a custodian in the Physical Plant Department since July 1989 and during the relevant period of time including 1993 and 1994. Petitioner is a male African-American, and a member of a protected class. Petitioner applied for a promotion to three different positions at the college between August 26, 1993 and December 6, 1993. In late August, 1993, Petitioner applied for the part-time position of House Manager at the college theatre. Petitioner was not selected because his present work schedule would overlap the position at the theatre and his prior work experience was not relevant to the position. In addition, another candidate possessed better interpersonal and communication skills, and his education and work experience was more relevant to the position than the Petitioner's. In early October, 1993, Petitioner applied for the position of HVACR (heating, ventilation, air conditioning and refrigeration) apprentice. The position is a learning position which requires working with a lead mechanic. Part of the job requirement for the apprentice position was the ability to attend trade school in HVACR. During the employment interview Petitioner expressed reservations about attending the HVACR training because he was presently enrolled in night classes at Rollins College. In addition to Petitioner, two white males and a Hispanic male applied for the position. A Hispanic male was selected for the position who had better qualifications. Thereafter, the racial make-up of the HVACR Department consisted of two whites, one black and one Hispanic male. On October 14, 1993, three vacancies for the newly created position of Lead Custodian in the Physical Plant Department was advertised by Respondent. Petitioner was one of nine applicants for the position. The nine individuals who applied for the position of Lead Custodian consisted of four African-American males, three African-American females and two Caucasian females. Following the review of each persons application and file and a personal interview, two African-American males and one African-American female were selected for the positions. Petitioner was not recommended for one of the vacancies. The selection process was based on relevant work experience and work history, and was not based on improper or discriminatory race or gender considerations. Petitioner was not denied training based on his race or gender. Petitioner applied for and attended six seminars covering a variety of subjects over the last several years. Respondent's stated reasons for its promotion and training decisions were not proven to be pretextual.
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 which DENIES the Petition for Relief. DONE AND ENTERED this 24th day of October, 1995, in Tallahassee, Leon County, 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 24th day of October, 1995. APPENDIX The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner: Accepted in substance: paragraphs: none Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 1, 2, 3, 4, 5, 6. COPIES FURNISHED: Lea Ann Banks, Esquire BAKER & HOSTETLER P. O. Box 112 Orlando, Florida 32802 Mr. Ulysses B. Williams 1020 Polk Avenue Orlando, Florida 32303-4149 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
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 Department of Corrections (Respondent or the Department) violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discharging Petitioner Theresa Williams (Petitioner) in retaliation for her participation as a witness during the investigation of an alleged discrimination claim brought by another employee.
Findings Of Fact The Department of Corrections is a state agency as defined in chapter 110, Florida Statutes, and an employer as that term is defined in section 760.02(7), Florida Statutes. At all times material, Petitioner was employed as a nurse at the Department's Lake Correctional Institution (“the Institution”) in Clermont, Florida. She was hired by the Department as a Licensed Practical Nurse effective July 12, 2007. Petitioner was terminated from her position with the Institution in May 2013. At the time of Petitioner's termination, her official title was “Senior Licensed Practical Nurse.” Prior to her termination, the Department provided Petitioner with a letter dated April 16, 2013, advising her of her proposed dismissal and scheduling a meeting (“termination conference”) with the Institution's Warden to discuss the reasons why Petitioner was being considered for termination. The letter was excluded from evidence because it was not timely disclosed as an exhibit by the Department as required in the Order of Prehearing Instructions in this case. Nevertheless, Respondent testified that she attended the termination conference and that, during the termination conference, she was provided, and they discussed, three incident reports against her that she had previously seen. The termination conference was attended by the Institution's Warden, the Assistant Warden, and Dr. Virginia Mesa, the Institution's Chief Health Operator. The incident reports discussed at Petitioner's termination conference included Petitioner's alleged violation on February 8, 2013, of the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) for which Dr. Mesa recommended Petitioner’s dismissal; Petitioner's alleged failure on February 8, 2013, to carry out an assignment to log walking canes provided to inmates; and an alleged argument on February 18, 2013, with a supervisor regarding Petitioner's reassignment to process transferred inmates known as "new gains." There is no indication that the termination conference changed the Department's proposed decision to terminate Petitioner. At the final hearing, Petitioner testified and presented evidence designed to prove that the incidents outlined above did not occur. However, following her termination in 2013, Petitioner timely filed a career service system appeal with the State of Florida, Public Employees Relations Commission (PERC), contesting her termination. Following an evidentiary hearing and a PERC hearing officer's recommended order in that proceeding, PERC entered a final order on November 6, 2013, providing in its pertinent part: The relevant facts found by the hearing officer relate three separate incidents that led to [Theresa] Williams' dismissal. On February 8, 2013, Dr. Virginia Mesa observed Williams showing Captain Reed, who was the security officer-in-charge of the shift, something in a green file. A green file is the type of medical file kept for each inmate. The green file was open in Williams' hand and Reed and Williams were looking into it. Mesa observed Williams flipping through the file with Reed in the public hallway. The Agency's policy and federal law strictly prohibit prison medical personnel from allowing non-medical staff to see inmate medical records. That same day, Debra Elder, who was a senior health services administrator and new manager, asked Williams to record various information about canes that were issued to inmates and to label each cane with an identifying mark. Williams turned to a co- worker and told her to do it. Elder considered Williams' attitude insubordinate and wrote an incident report as soon as she returned to her office. On February 18, Williams was assigned to be the "sick call" nurse when she reported for her shift at 6:45 a.m. However, she was informed that, if the prison received a significant number of "new gains," she would be re-assigned to assist the two nurses doing that work. "New gains" is the Agency's term for the processing of inmates transferred to the institution from another facility. Around 8:00 a.m., Williams' supervisor, Joyce Isagba, arrived at work. Isagba reviewed the assignments and directed a subordinate to assign Williams to new gains that day. Williams believed Isagba, a relatively new supervisor, had a pattern of changing her assignment from sick call nurse to new gains and did not like it. Williams approached Isagba and questioned why she was being reassigned. Williams and Isagba became loud and argumentative. Other nurses were present in the room. The conversation lasted some time and Williams repeatedly stated that the change of her assignment was unfair and repeatedly wanted to know why she was being reassigned. Isagba told her she was more qualified to do that work and that she did not have to give her reason for her decisions. The dispute lasted several minutes and Williams reluctantly assisted with new gains. Later that day, Williams was sent to sick call to finish that duty. Isagba considered Williams to have been insubordinate and wrote an incident report. Based on these factual findings, the hearing officer concluded that the Agency had grounds to discipline Williams for poor performance, violating the Agency's medical information privacy, and insubordination in violation of Florida Administrative Code Rule 60L-36.005. He recommended that [PERC] adopt his recommended order and dismiss Williams' appeal. * * * Upon review of the complete record, including the transcript, we conclude that all of the hearing officer's facts are supported by competent substantial evidence received in a proceeding that satisfied the essential requirements of law. Therefore, we adopt the hearing officer's findings. § 120.57(1)(l), Fla. Stat. Furthermore, we agree with the hearing officer's legal analysis of the disputed legal issues, his conclusions of law, and his recommendation. Accordingly, the hearing officer's recommendation is incorporated herein and Williams' appeal is DISMISSED. The hearing officer's Recommendation and PERC's Final Order in the PERC Proceeding, Williams v. DOC, 28 FCSR 284 (2013), were submitted by both parties and received into evidence without objection in this case as Exhibits P-4 and P-5, respectively, and Exhibits R-B and R-C, respectively. The PERC Proceeding involved the same parties as in this case and the allegations in the incident reports discussed at Petitioner's termination conference were actually litigated and determined in the PERC Proceeding. In other words, whether the incidents outlined in those incident reports occurred and are sufficient to support the Department's decision to terminate Petitioner's employment has already been determined.2/ Moreover, Petitioner failed to show, in this case, that the incidents did not occur. Although Petitioner testified that she did not show Captain Reed the inmate's medical chart in violation of HIPAA and introduced Captain Reed's written statement stating that Petitioner did not show him the chart, the evidence adduced at the final hearing showed that when she met with Captain Reed during the incident, she was flipping through papers with the medical chart in her hand. As found in the PERC hearing officer's Recommended Order: Williams violated the Agency's privacy policy when she held an open inmate medical file so a security staff officer could see the inmate's writing and signature. This was not a reasonable procedure to accomplish the task of notifying the officer of a potential security threat to other inmates. There was a real possibility that the sick call slip had been forged. It was unnecessary to show Captain Reed an inmate's medical file to determine if the slip was forged. Williams could have done that herself with the same accuracy as Reed, since neither is a handwriting expert. Williams v. DOC, 28 FCSR 284 (Recommended Order, 08/26/13). Dr. Mesa's testimony in this case was consistent with the hearing officer's finding and is credited. Regarding the other two incident reports, while Petitioner denied asking another to perform her assigned task of logging inmates' canes, she admitted that she delayed performing the task. Petitioner also admitted that she questioned her supervisor, Ms. Insagba, as to why she was being assigned "new gains," that during the incident Ms. Insagba raised her voice, and that they "were both talking at the same time and I guess she was trying to get a point across and I was just trying to ask her why." In addition to the incidents addressed in the three incident reports, during cross examination in this case, Petitioner revealed that she was also disciplined twice in 2012. In August 2012, Petitioner received a record of counseling for insubordination. And in December 2012, Petitioner received a written reprimand for failure to follow instructions. In sum, the record supports a finding that, by May 2013, the Department had cause to terminate Petitioner. Although it has been determined that the Department had cause to terminate Petitioner's employment at the Institution, in this case Petitioner asserts that the real reason for her dismissal was her participation as a witness in a discrimination charge brought by another employee against the Department and Dr. Mesa. The disciplinary incidents supporting Petitioner's dismissal occurred in February 2013, and before. The investigation in which Petitioner participated began in March of 2013 and Petitioner provided testimony in that investigation on April 23, 2013, after Dr. Mesa had already recommended Petitioner’s dismissal and after Petitioner had been notified by the Department that she was being considered for dismissal. Petitioner was dismissed in May 2013. In finding probable cause, the Commission stated in its summary of the Investigative Memorandum: Complainant did not demonstrate that she was harassed or disciplined because of participation in the internal investigation. Complainant provided no evidence of harassment, and she was not disciplined after her protected activity occurred. Respondent admitted that Complainant was disciplined for the alleged HIPAA violation, but this occurred prior to her protected activity. Based on the information received during the investigation, it does appear that Complainant was terminated in retaliation for her participation in the internal investigation. If the alleged HIPAA violation was a true terminable offense, Complainant should have been terminated in February of 2013 when it occurred. Instead, Respondent waited nearly three months to terminate her, which was about three weeks after her protected activity. Additionally, Respondent has a progressive disciplinary policy which it did not follow. The alleged HIPAA violation is Complainant's only documented incident. Respondent also claimed that Complainant was terminated after she was disciplined several times prior to the HIPAA event, yet it could provide no evidence that she had a disciplinary record prior to February of 2013. Unlike the limited information available to the Commission in its probable cause determination, the evidence in the de novo proceeding conducted in this case demonstrated that Petitioner had a number of disciplinary offenses in February that were found by PERC to support her dismissal, and that Petitioner had been written up for two other disciplinary infractions in 2012. Moreover, the showing necessary for a probable cause determination is less than Petitioner's burden to prove discrimination. While there was a delay in Petitioner's termination, the evidence showed that Dr. Mesa recommended Petitioner for dismissal when she wrote up the incident report for the HIPAA violation in February 2013. Although it is evident that management, including the Warden and Dr. Mesa, was generally aware that Petitioner had participated as a witness in another employee's discrimination claim in April of 2013, Petitioner did not show that she was terminated because of that participation. And, while the Department's delay in dismissing Petitioner remained unexplained at the final hearing,3/ that delay, in light of the other facts and circumstances of this case, including Petitioner's numerous disciplinary infractions outlined above, is an insufficient basis to support a finding that Petitioner was terminated in retaliation for her participation in a protected activity.
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 Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 30th day of June, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSotoBuilding 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2015.
The Issue Whether Respondent, AAR Airlift Group, Inc. (Respondent), committed the 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, Gabriel C. Gaudio (Petitioner), be granted.
Findings Of Fact Petitioner is a male over 50 years of age. On or about May 9, 2009, a company located in North Carolina hired Petitioner to work as a Technical Publications Clerk. Petitioner was over 40 years of age at the time of his employment. Prior to March 2012, Petitioner relocated to Florida to continue employment with the company that then became known as AAR Airlift Group, Inc. Respondent does business in Melbourne, Brevard County, Florida, and has over 15 employees, one of whom was Petitioner. At all times material to this matter, Respondent employed Steve Lane (Lane) and Melvin Zahn (Zahn) as supervisors with the company. At all times material to the allegations of this case, Respondent had policies that prohibit discrimination on the basis of age, disability, and any other reason prohibited by law. Any employee who believed discrimination had occurred was directed to report to the local Human Resources Department or to the Corporate Vice President of Human Resources. Respondent’s employees are considered “at will.” Respondent reserves the right to involuntarily terminate any employee for any reason or for no reason unless to do so would violate law. Petitioner maintains he was terminated in retaliation for a complaint he submitted because of his age, or because of his disability. All of the actions complained of occurred between March 2012 and June 2012 (when Petitioner was terminated). It is undisputed that Petitioner’s age would establish he is a member of a protected class. It is undisputed that Petitioner was terminated after he submitted a complaint against his co-workers. Although Petitioner asserted he is disabled, Petitioner presented no evidence to establish the nature of his disability or that Respondent required him to perform tasks contrary to his physical or mental limitations. There is no evidence that Respondent failed to accommodate any claimed limitation Petitioner might have had. In April 2012, Respondent issued a Performance Improvement Plan (PIP) to Petitioner to outline areas of his job performance that needed improvement. It was anticipated that Petitioner would address the areas of concern and make improvement within 90 days. Upon receipt of the PIP Petitioner filed a claim of hostile work environment with the company’s human resources office. More specifically, Petitioner claimed two employees, Zahn , technical publications manager, and Rachel Grygier (Grygier), a technical publications librarian, had disparaged him regarding his age and disability. To address Petitioner’s complaint, Respondent initiated an internal investigation of the claim. As part of the investigation process, Respondent directed Petitioner not to disclose or discuss the accusations of his claim with anyone. Respondent sought to resolve the matter without having the allegations discussed among employees before individual statements could be taken. Contrary to the directive, Petitioner discussed his complaint against Zahn and Grygier with at least one other employee. That employee (Barnett) e-mailed support for Petitioner to JoAnne Paul (Paul), Respondent’s human resources compliance manager. When Paul confronted Petitioner as to whether he had discussed his complaint with Barnett, Petitioner falsely denied knowing Barnett. Paul took Petitioner’s failure to maintain confidentiality regarding his complaint to Lane, Respondent’s director of quality assurance and internal evaluations. Together, Paul and Lane decided to terminate Petitioner. The basis for the termination was two-fold: the failure to follow a directive not to discuss the complaint; and the lack of truthfulness when asked about knowing Barnett. Petitioner maintains that his termination was in retaliation for his complaint against Zahn and Grygier and that the company wanted him out. Petitioner presented no evidence that after his termination he was replaced with a younger employee. Even though Petitioner did not establish the nature of his disability, Petitioner presented no evidence that he was replaced by a non-disabled person or that his handicap caused Respondent to terminate him. Further, Petitioner did not establish that any area of concern noted in his PIP related to his disability. Neither Zahn or Grygier had anything to do with Petitioner’s termination. Finally, Petitioner failed to present credible evidence that filing a complaint against Zahn and Grygier was the genesis for his termination. Petitioner was a long-time employee with the company. He had started in North Carolina and moved to Melbourne with the company. Had Respondent wanted to terminate him for any reason it could have done so prior to the move or after the move. Petitioner’s claim that his complaint against Zahn and Grygier caused the termination is not supported by the weight of persuasive evidence.
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 his employment discrimination complaint. DONE AND ENTERED this 31st day of May, 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 31st day of May, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Gabriel Gaudio 259 Abernathy Circle, Southeast Palm Bay, Florida 32909 Chelsie J. Flynn, Esquire Ford and Harrison, LLP Suite 1300 300 South Orange Avenue Orlando, Florida 32801 Michelle Wilson, Executive Director Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding is whether Petitioner was the subject of an unlawful employment practice based on his age.
Findings Of Fact Currently, Petitioner is a retired, 68-year-old male. He retired from Respondent at the age of 66. Petitioner began his employment with Respondent as a truck driver. The position of truck driver, involves many long hours of driving (sometimes over 56 hours) various interstate and intrastate truck routes, along with some lifting and exposure to diesel fumes. Petitioner attributed a variety of illnesses and health problems to his work as a truck driver. Some of the illnesses and health problems are hypertension and heart blockage and failure, which resulted in the implantation of a pacemaker, carpal tunnel syndrome, polyneuropathy, muscular and autonomic system problems and pathological hyper-insomnia. Petitioner offered no evidence that any of these conditions resulted from his employment with Respondent. Prior to September 9 or 10, 2000, at the age of 64, Petitioner was hospitalized for heart problems. Around September 9 or 10, 2000, Petitioner was released from the hospital. Upon his return to work, he gave his employer a physician’s note indicating that his work duties be limited to 40 hours a week. Petitioner met with Respondent’s transportation manager regarding whether less lengthy routes were available or whether his schedule or work duties could be adjusted. The employer did not have the ability to adjust the length of the routes, but added a second driver to ride and help with the driving on any route that Petitioner drove. Petitioner inquired about office work and was told that if he was interested in such work he needed to apply at the main office to see what was available. In part, because Petitioner liked driving and in part because the lesser number of hours involved in office work would cause Petitioner to earn less, Petitioner elected not to pursue and did not apply for such office work. No adverse employment action was taken against Petitioner, and Petitioner continued to work for Respondent. At some point during this meeting, Petitioner alleges that the transportation manager said, “Why don’t you just retire.” Petitioner offered no specific context for this statement other than it was a general conversation about his health and closeness to retirement age relative to the adjustments that could be made to his driving duties. One isolated statement such as the one above does not demonstrate any intent to discriminate on Respondent’s part based on Petitioner’s age, especially since no adverse employment action was taken against Petitioner and Petitioner continued to work for Respondent. Around January 1, 2001, for medical reasons, Respondent approved a Leave of Absence with pay for Petitioner. In June or July, 2002, Petitioner filed his first workers compensation claim with Respondent. Petitioner’s claim was turned over to Respondent’s workers' compensation insurer, Kemper Insurance Company. Petitioner did not offer any evidence that Kemper was under the direction or control of Respondent in any decisions Kemper made regarding paying or litigating Petitioner’s claim. In any event, Petitioner’s claim was contested. The main reason the claim was contested was that Kemper alleged that Petitioner’s “injuries” were not work-related. Over the years, Petitioner has amended his claim to include, among other health claims, the health problems listed above. Kemper has maintained its defense. During a mediation session on December 11, 2002, at which the employer was not present and in response to an inquiry regarding Kemper’s defense, Kemper’s representative stated that except for the carpal tunnel claim, all of Petitioner’s medical conditions were due to the natural aging process. Petitioner claims this statement demonstrates an intent on his employer’s part to discriminate against him based on his age. Such an isolated statement does not demonstrate such an intent especially since such conditions can be age related, there was no expert medical evidence demonstrating the cause of Petitioner’s health problems, the statement did not come from the employer, and there was no evidence that the insurer was under the direction or control of the employer regarding decisions to litigate or the factual basis for the defenses that the insurer would raise. The workers' compensation litigation continues to date. In the interim, Petitioner remained on a leave of absence with pay until January 1, 2003. He retired thereafter. There was no evidence that Respondent discriminated against Petitioner or that Petitioner suffered any adverse employment action based on his age. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the 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 14th day of April, 2005, 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 14th day of April, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relation 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Glynda Copeland Qualified Representative Tree of Life, Inc. Post Office Box 410 St. Augustine, Florida 32095-0410 Robert C. Johnson 560 Florida Club Boulevard, Suite 112 St. Augustine, Florida 32084
The Issue : The issue to be resolved in this proceeding concerns whether Petitioner has a disability, whether she was discriminated against based upon the disability, whether there was a reasonably requested accommodation which was refused by the Respondent employer, and whether it maintained a hostile working environment.
Findings Of Fact This cause arose upon the filing of a Charge of Discrimination and ultimately a Petition for Relief by the above-named Petitioner against the Respondent, Principal Senior Living Group, d/b/a Benton Village (Benton Village or Respondent). The Petitioner was an employee at the Respondent's assisted living and memory care facility, located in Panama City, Florida. That facility employs approximately 28 to 30 employees and had 53 residents as of the time of hearing. The Respondent has an equal employment opportunity policy in place which precludes discrimination on the basis of any protected status including handicap or disability as to any employees, customers, vendors, or applicants for jobs. The Petitioner signed a document indicating that she had received a copy of that policy when she began employment on or about January 29, 2007. The Respondent, enforces the policy against discrimination and harassment and encourages employees to bring any such discrimination or harassment issues to the Respondent's attention so that it can take necessary steps to correct the situation. The Petitioner received a handbook at the beginning of her employment period that outlined the Respondent's benefits, practices, and policies. The Equal Opportunity Policy is restated in that handbook. On page 18 of the handbook under the title "Discourtesy or Disrespect," the Respondent stated a rule as follows: We expect all employees to be courteous, polite and friendly to our residents, vendors, and to their fellow employees. No one should use profanity or show disrespect to a resident or co-worker, or engage in any activity that could harm the company's reputation. The Petitioner began working for the Respondent in early February 2007 as a personal care assistant (PCA). Her general job description included assisting residents with personal care and activities of daily living and performing daily housekeeping tasks. Mr. Alan Williams is the Respondent's executive director. His duties involve resident care staffing including evaluation for promotion and administering discipline and managing the facility's budget. Mr. Williams was responsible for evaluating the Petitioner's job duties and performance. The Petitioner's immediate supervisor was Tiffany Sims who was the Resident Services Director while the Petitioner was employed at the Respondent's facility. The Petitioner is hearing-impaired and wears a hearing aid that allows her to hear within a normal range and follow normal conversations. She does have difficulty hearing when people speak in a low voice and at times has to request them to speak louder. The Petitioner acknowledged that her hearing aid allowed her to perform her job without any special treatment. Moreover, she was able to attend training course, which involved listening to a lecturer in a classroom, and did not request or need any special accommodation to understand the lecturer. When the Petitioner was hired by the Respondent, she did not tell anyone she had a disability that prevented her from performing the job duties in her job description. She received the same training as the other employees and did not request or receive accommodations for her alleged hearing impairment during the training process. She acknowledged that she did not request special treatment because she did not need special treatment. During her testimony at hearing she admitted that she had never requested an accommodation of her employer. During less that three months of employment she was disciplined once by Ms. Sims and on two separate occasions by Mr. Williams. The Petitioner admits receiving corrective action admonishments from Ms. Sims on or about February 8, 2007. The corrective action document informed the Petitioner that there had been several resident complaints regarding the Petitioner's resident care and the care with meal assistance. The corrective action also embodied an instruction to the Petitioner that within 30 days she should show significant improvement with care of residents, with no resident complaints or she could be subject to termination. Mr. Williams disciplined the Petitioner on February 26, 2007. He was notified on that occasion by Supervisor Sandy Simon and his Assistant Director Renee Rhodes, that the Petitioner had been observed watching television by herself in the Alzheimer's ward. Mr. Williams went to an office where he could view a security monitor and personally observed the Petitioner watching television by herself. Mr. Williams accordingly executed a corrective action form or memorandum to the Petitioner, which the Petitioner admits receiving. Mr. Williams administered discipline to the Petitioner on a second occasion on Tuesday, April 3, 2007. Mr. Williams had learned that the Petitioner had been involved in an altercation with a resident that involved raising her voice, yelling and engaging in disruptive behavior. Mr. Williams informed the Petitioner that this was unacceptable behavior and reflected badly on the Respondent. The Petitioner admitted the occurrence to Mr. Williams when he questioned her. There is a dispute over whether the Petitioner quit or was terminated as a result of this discussion. Mr. Williams established that, under the duly-adopted policy, arguing with a resident can be a terminable offense. Mr. Williams' testimony is deemed credible and is accepted. It was thus established that the Petitioner became angry and informed Mr. Williams that she was quitting her employment during the course of this discussion. One other incident occurred with Mr. Williams when he terminated an employee because the employee had yelled or cursed at a coworker. The employee who was terminated did not have any sort of disability of which Mr. Williams was aware. Mr. Williams' undisputed testimony shows that the Petitioner's hearing impairment did not play any role in the decision to discipline for the television incident, nor in the decision to speak to her about the altercation with the resident or with any other employment decision he made with regard to the Petitioner. The Petitioner admitted that Mr. Williams never made any negative comments to her about her hearing or hearing impairment. The Petitioner contended that some co-workers made fun of her hearing impairment during the course of her employment. The Petitioner acknowledged, however, that she never complained of this to the Human Resources manager or to Mr. Williams, even though she had received a copy of the company's policies against harassment and discrimination.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject petition in its entirety. DONE AND ENTERED this 15th day of May, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 2008. COPIES FURNISHED: Demetrice Worthy Post Office Box 121 Panama City, Florida 32401 Scott E. Wood, Esquire 990 Hammond Drive, Suite 910 Atlanta, Georgia 30328 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 is whether the claim of employment discrimination contained in the Petition for Relief must be dismissed due to Petitioner's execution of a release of all claims.
Findings Of Fact On June 29, 2012, Petitioner's employment with Respondent was terminated. On July 24, 2012, Petitioner filed a Charge of Discrimination alleging that he was subjected to discrimination. On August 18, 2012, Petitioner signed an agreement. Under the agreement, Respondent agreed to pay Petitioner $5,000.00, net several items, provided Petitioner did not exercise his right to revoke the agreement within the seven days following execution, as provided in the agreement. Petitioner did not revoke the agreement, and Respondent discharged all obligations under the agreement. In exchange, Petitioner agreed to release Respondent from all claims, damages, suits, complaints, damages, losses and expenses, of every nature, legal or equitable, whether known or unknown, which Olascoaga ever had, now has, or may claim to have, upon or by reason of the occurrence of any matter, cause or thing whatsoever . . . . This release specifically includes, but is not limited to, a release of any and all claims under the Florida Civil Rights Act . . . . There is no contention that Petitioner was not acting knowingly or voluntarily when he executed a release of claims.
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 Carlos Olascoaga's Petition for Relief from employment discrimination for lack of jurisdiction. DONE AND ENTERED this 11th day of April, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 11th day of April 2014.
The Issue The issue is whether Respondent, Higbee Company, d/b/a Dillard’s (“Dillard’s”), discriminated against Petitioner based upon his national origin or disability, in violation of section 760.10, Florida Statutes (2016).2/
Findings Of Fact Dillard’s is an employer as that term is defined in section 760.02(7). Dillard’s is a department store chain. Petitioner, a Mexican male, was hired as a sales associate in the men’s department of Dillard’s store at Tallahassee’s Governor’s Square Mall on May 13, 2014. Petitioner’s job was to sell men’s fragrances directly to customers at the store. Allen Gustason was manager of the Dillard’s store at Governor’s Square Mall during the time Petitioner was employed there. Dee Thomas was the assistant store manager. Mark Kronenberger, who testified at the final hearing, was the men’s department sales manager and was Petitioner’s direct supervisor during the entire time that Petitioner worked at Dillard’s. Petitioner started at a salary of $12.00 per hour as a sales associate. His job performance and pay increases were assessed primarily on the basis of sales. On January 6, 2015, Petitioner received a raise to $12.60 per hour. On April 14, 2015, Petitioner was promoted to the position of fragrance specialist and received a raise to $14.50 per hour. Petitioner’s promotion did not change his basic duties, i.e., direct sales to customers. Petitioner’s employment at Dillard’s ended on November 28, 2015. Dillard’s did not dispute Petitioner’s testimony that he was a good and effective salesperson. Petitioner developed a regular clientele of Spanish-speaking customers who liked his ability to communicate with them in their native language. At the time of his hiring, Petitioner received, read, and agreed to abide by Dillard’s Associate Work Rules and General Policies, which among other things forbade insubordination by sales associates. “Insubordination” was defined to include failure to follow lawful instructions from a supervisor and engaging in contemptuous or taunting conduct that undermines the authority of management. As noted in the Preliminary Statement above, Petitioner claims that he is a Mexican male with a disability. The claimed disability is the human immunodeficiency virus (“HIV”). Dillard’s did not dispute that Petitioner has HIV. Petitioner claims that he was harassed by fellow employees because of his Mexican national origin. Petitioner claims that he complained to his supervisors, Mr. Kronenberger and Mr. Gustason, about the harassment. Petitioner claims that no effective action was taken to curb the harassment. Petitioner described a pervasive sense of discrimination at Dillard’s of which he became conscious only after about a year of working there. He testified that he is from California and had no real concept of being discriminated against because of his Mexican heritage. It took some time for him to realize and acknowledge to himself that it was happening. However, Petitioner was unable to describe many specific instances of discriminatory behavior by fellow employees. People were “mean,” or “picked on me,” or “didn’t like me,” but few of Petitioner’s complaints pointed toward racial discrimination as opposed to personal dislike. He complained that co-workers planned parties and get-togethers away from work but never asked him along, even for Mr. Kronenberger’s birthday party, but could only speculate as to the reason for his exclusion. Petitioner testified that he was an aggressive and successful salesperson. While its salespeople are assigned to specific departments, Dillard’s allows them to cross-sell in other departments. Several of the incidents described by Petitioner began when he took customers to other departments to sell them something. The undersigned infers that at least some of the bad feelings toward Petitioner were due to his perceived “poaching” of sales from other sections of the store. Petitioner testified that an employee named Carol would yell at him, apparently without provocation, so consistently that he went out of his way to avoid crossing her path. Petitioner stated that one day Carol screamed that he was good-for-nothing and was a “damn Mexican,” in front of customers and co-workers. Petitioner testified that he had no idea why she did this because he had done nothing to provoke her. He walked away, covering his ears from her abuse. Petitioner testified that he went upstairs and spoke to Mr. Gustason about the incident but that nothing was done. Petitioner stated that he returned to the sales floor. Other employees told him that Carol had worked for Dillard’s for many years and was a friend of Mr. Gustason and that he should not expect anything to be done about her behavior. Petitioner testified that an employee named Eric, who worked in the men’s department, made fun of his accent, particularly Petitioner’s difficulty in pronouncing “Saturday.” Petitioner testified that another fellow employee, a white woman named Amber who also worked in fragrance, was constantly rude and mean to him. In front of customers, Amber would say that she did not know why Petitioner was there, that he was only good for cleaning the counters. Petitioner repeatedly complained to Mr. Kronenberger about Amber. Mr. Kronenberger told him to continue doing a good job and not to focus on Amber. Petitioner stated that Mr. Kronenberger directed Amber to stay away from Petitioner’s counter, but she ignored the order and continued to harass him. Petitioner stated that matters came to a head when he was helping some female customers and went to Amber’s counter one day. He reached behind her to get the fragrance the customers wanted and Amber struck him with her elbow. The customers were aghast and complained to Dillard’s management despite Petitioner’s entreaties that they let the matter drop. Petitioner and Amber were called to the office to meet with Mr. Kronenberger and Yami Yao, the manager of women’s cosmetics. Amber denied everything. The supervisors told Petitioner and Amber to get along. They told Amber to stay away from Petitioner’s counter. Petitioner testified that Amber ignored the instruction and continued to harass him. Petitioner testified that on another day he was approached by a customer who wanted to pay Petitioner for a pair of shoes. Petitioner testified that he asked Mr. Kronenberger about it, because he did not want to steal a sale or anger anyone. Mr. Kronenberger told him that he was there to sell and that cross-selling was fine. As Petitioner was completing the sale, an older white man working in the shoe department threw a shoe at Petitioner and said, “You damn Mexican, I’m going to raise hell against you.” Petitioner testified about an altercation with Risa Autrey, a fragrance model who worked in Dillard’s and who Petitioner stated was another longtime friend of Mr. Gustason. One day, Ms. Autrey approached Petitioner--again, with zero provocation, according to Petitioner--and began berating him, saying that she had no idea why Dillard’s kept Petitioner around. This occurred in front of co-workers and customers. The customers went upstairs and complained to Mr. Gustason, who followed up by admonishing Petitioner to stop telling people to complain to him because nothing was going to come of it. Petitioner testified that a day or so after the incident with Ms. Autrey, he met with Mr. Gustason and Mr. Thomas.4/ During the course of this meeting, Petitioner disclosed his HIV status. Petitioner testified that Mr. Gustason’s attitude towards him changed immediately, and that Mr. Gustason had him fired two weeks later on a pretextual charge of stealing and insubordination. Petitioner testified that he got sick a few days before Black Friday, which in 2015 was on November 27. When he returned to work on November 25, he attempted to give Mr. Gustason a doctor’s note that would have entitled Petitioner to paid leave, but Mr. Gustason would not talk to him. Petitioner worked a long shift on Black Friday. On Saturday, November 28, 2015, he was called to Mr. Thomas’s office about an altercation he had on November 25 with Ms. Yao, the woman’s cosmetics manager. Mr. Kronenberger was also in the office. Petitioner testified that Mr. Thomas accused him of stealing, as well as insubordination to Ms. Yao, and fired him. Two mall security officers, the Dillard’s security officer, and Mr. Kronenberger escorted Petitioner out of the store. Petitioner testified that he was given no paperwork to memorialize his firing or the reasons therefor. Mr. Kronenberger testified at the final hearing. He testified that Petitioner constantly complained about someone not liking him or picking on him. Petitioner never gave him specifics as to what happened. Mr. Kronenberger stated that Petitioner never complained about racial slurs or that any of his alleged mistreatment had a discriminatory element. It was always, “This person doesn’t like me.” Petitioner had issues with tardiness and absenteeism throughout his employment with Dillard’s. Mr. Kronenberger testified that there would be days when Petitioner simply would not show up for work, or would send a text message to Mr. Kronenberger saying that he had things to do or someone he had to meet. Employment records submitted by Dillard’s supported the contention that Petitioner was frequently late for, or absent from, work. Mr. Kronenberger testified that Petitioner was erratic in his communications. Petitioner would send a text message saying he could not come in. Then he would send a text telling Mr. Kronenberger how happy he was to have the job. Mr. Kronenberger recalled once receiving a text from Petitioner at midnight that read, “I know I’ve been bad.” In November 2015, Petitioner had six unexcused absences, including four consecutive days from November 21 through 24. Mr. Kronenberger testified that Petitioner finally admitted that he needed to cut his hours in order to qualify for some form of public assistance. Mr. Gustason told Petitioner that something could be worked out to cut his hours, but that just not showing up for work was unfair to Mr. Kronenberger and the other employees. Mr. Kronenberger testified that Dillard’s would normally terminate an employee with six unexcused absences in one month under the heading of job abandonment. He stated that Mr. Gustason bent over backward to work with Petitioner and keep him on the job. When Petitioner was absent, Mr. Gustason would leave messages for him, asking him to call and let him know what was going on. During the string of November absences, Mr. Kronenberger phoned Petitioner, who said that he was afraid to come into work for fear that Mr. Gustason would fire him. Mr. Kronenberger assured Petitioner that Mr. Gustason had no such intent, but that in any event no one would have to fire him because he had not been to work in a week. Petitioner was effectively “firing himself” by abandoning his position. Petitioner showed up for work on November 25, 2015, at 4:50 p.m. He had been scheduled to come in at 9:45 a.m. Mr. Kronenberger testified that he was not present for Petitioner’s altercation with Ms. Yao, but that Ms. Yao reported she had attempted to counsel Petitioner about gifts with purchases. The promotional gifts were to be given away only with the purchase of certain items, but Petitioner was apparently disregarding that restriction and giving the gifts with non-qualifying purchases. Ms. Yao told Mr. Kronenberger that Petitioner quickly escalated the counseling into a shouting match in front of customers and co-workers. He yelled, “You’re not going to talk to me that way.” Ms. Yao told Petitioner that she worked in another department and did not have to deal with his antics. She told him that she was going to report the matter to Mr. Kronenberger and Mr. Thomas.5/ Mr. Kronenberger testified that his conversation with Ms. Yao was brief because there was no need to give many particulars. He was used to getting reports of employee run-ins with Petitioner and did not need much explanation to get the gist of what had happened. Mr. Kronenberger decided not to raise the issue with Petitioner on Black Friday, the busiest day of the year at the store. On the next day, November 28, Petitioner was called into the office to meet with Mr. Kronenberger and Mr. Thomas. Mr. Kronenberger testified that this meeting was not just about the incident with Ms. Yao but also Petitioner’s absences. In Mr. Kronenberger’s words, “[I]t was to follow up with the incident with Yami, and it was to follow up with, ‘Hey, you’ve just missed a week, you’ve been back a day, and you’re having this blow-up with a manager on the floor.’ Like, ‘What’s going on?’” Mr. Kronenberger testified that neither he nor Mr. Thomas went into this meeting with any intention of terminating Petitioner’s employment. However, two minutes into the conversation, Petitioner was on his feet, pointing fingers, and shouting that he knew what they were trying to do and he was not going to let them do it. He was quitting. Petitioner walked out of the office. Mr. Thomas asked Mr. Kronenberger to walk Petitioner out of the store so that there would be no incidents on the floor with the other employees. Mr. Kronenberger accompanied Petitioner to the fragrance area, where Petitioner retrieved some personal items, then walked him to the door. They shook hands and Petitioner left the store. Mr. Kronenberger was firm in his testimony that no security personnel were involved in removing Petitioner from the store. Petitioner was not accused of stealing. His parting with Mr. Kronenberger was as cordial as it could have been under the circumstances.6/ After Petitioner left his office, Mr. Thomas prepared a “Separation Data Form” confirming Petitioner’s dismissal for “violation of company work rules.” The specific ground stated for Petitioner’s dismissal was violation of the Associate Work Rule forbidding insubordination. Mr. Kronenberger testified that in his mind the “insubordination” included not just the scene with Ms. Yao, but the explosion Petitioner had in the meeting with Mr. Thomas. At the time of Petitioner’s dismissal, Mr. Kronenberger was unaware of Petitioner’s HIV status. Mr. Kronenberger credibly testified that Petitioner’s HIV status had nothing to do with his dismissal from employment at Dillard’s. Mr. Gustason, who apparently was aware of Petitioner’s HIV status, was not at work on November 28, 2015, and was not involved in the events leading to Petitioner’s dismissal. Mr. Thomas, the assistant store manager, made the decision to treat Petitioner’s situation as a dismissal for cause.7/ Mr. Kronenberger’s testimony is credited regarding the circumstances of Petitioner’s dismissal and as to the general tenor of Petitioner’s employment at Dillard’s. Petitioner was constantly in the middle of conflicts, but never alleged until after his termination that these conflicts were due to his national origin or disability. Petitioner’s demeanor at the hearing was extremely emotional. He cried frequently and seemed baffled that Mr. Kronenberger was disputing his testimony. The undersigned finds that Petitioner’s version of events was genuine in the sense that it conveyed Petitioner’s subjective experience of his employment as he recollected it. However, the undersigned must also find that Petitioner’s subjective experience did not conform to objective reality. However, Petitioner internalized the experiences, it is not plausible that Dillard’s employees were yelling at Petitioner without provocation, hitting him, throwing shoes at him, and calling him a “damn Mexican” in front of customers. It is not plausible that Petitioner’s superiors would ignore such flagrant discriminatory behavior when it was brought to their attention. Petitioner’s feelings about the motives of his co-workers and superiors cannot substitute for tangible evidence of unlawful discrimination. Petitioner offered the testimony of two Dillard’s customers, neither of whom saw behavior from Petitioner’s co- workers that could be attributed to anything beyond personal dislike or sales poaching. Santiago Garcia testified that he noted other Dillard’s employees rolling their eyes at Petitioner, but he thought the reason might be that Petitioner talked too loud. Mr. Garcia also saw “bad looks” from other employees and believed that the atmosphere among Dillard’s employees was “tense,” but did not offer a reason for the tension. Claudia Pimentel testified, through a Spanish language interpreter, that she always went directly to Petitioner because she speaks only Spanish and Petitioner was able to help her. Ms. Pimentel noted that a female Dillard’s employee got mad at Petitioner because he sold Ms. Pimentel a cream from her counter. During the years 2015 and 2016, the Dillard’s store in Governor’s Square Mall terminated two other sales associates for insubordination. Neither of these sales associates was Mexican. One was a black female and the other was a black male. Neither of these sales associates had a known disability at the time of termination. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reason given by Dillard’s for his termination. Petitioner offered no credible evidence that Dillard’s stated reason for his termination was a pretext for discrimination based on Petitioner’s national origin or disability. Petitioner offered no credible evidence that Dillard’s discriminated against him because of his national origin or his disability in violation of section 760.10.
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 that Higbee Company, d/b/a Dillard’s, did not commit any unlawful employment practices, and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 24th day of October, 2017, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 24th day of October 2017.
The Issue The issue is whether Respondent, City of Ocala (“the City”), retaliated against Petitioner, Nyleah Jackson (“Petitioner” or “Ms. Jackson”), for exercising her right to file a claim of employment discrimination against the City pursuant to section 760.10, Florida Statutes (2018).1/
Findings Of Fact The City is an employer as that term is defined in section 760.02(7). Petitioner, an African American female, was hired by the City as an Administrative Specialist II on May 2, 2016. She worked in that job position until her resignation on February 7, 2018. Petitioner initially worked in the City’s Electric Utility Department and then transferred to the Public Works Department. Her duties were primarily secretarial, clerical, and administrative. Petitioner testified that when she started in Public Works, her direct supervisor was Tom Casey, but that at some point Judy Wade appeared to take over at least some of those supervisory duties. In her telling, Petitioner never recognized Ms. Wade as her direct supervisor except as to specific tasks delegated by Mr. Casey. Ms. Wade was the Fiscal Administrator for Public Works. She testified that Tom Casey and Darren Park are her superiors in Public Works. Ms. Wade credibly testified that she was Petitioner’s direct supervisor for the entire time that Petitioner worked in Public Works. Ms. Wade’s supervisory duties included monitoring Petitioner’s attendance at work and her leave requests. Petitioner’s testimony that she was unaware Ms. Wade was her direct supervisor for all purposes is not credited. On or about August 25, 2017, Petitioner presented a formal grievance to the City alleging that she had been discriminated against because of her race when she was not hired for a vacant Administrative Assistant III position. On or about August 31, 2017, Human Resources and Risk Management Director Jared Sorensen spoke with Petitioner and asked her to clarify whether she was pursuing a formal grievance under the City’s Collective Bargaining Agreement (“CBA”) with the International Brotherhood of Electrical Workers or under the City’s Employee Handbook. Petitioner responded that she wished to file her grievance under the CBA. On September 13, 2017, Petitioner sent an email to Mr. Sorensen, with copies to Mr. Casey and Mr. Park. The email stated as follows, in relevant part: Both the City of Ocala Employee Handbook and Collective Bargaining Agreement allows [sic] a response in writing within 10 business days of receipt of the grievance. I spoke with Tom Casey and Darren Park as well as sent my grievance, via interoffice to Human Resources, on August 25, 2017. From my meeting, I gathered that classification matters, discriminatory/biased hiring decisions and equal pay issues is [sic] in the Human Resource jurisdiction. I received a call last week from Jared stating that the target response date was September 8th, 2017 but I would have a definitive response by September 11th, 2017. I plan to hold my employer/HR accountable and liable to this deadline as promised. It is now September 13th with no response. The email concluded with a demand for a response regarding Petitioner’s remedies no later than September 14, 2017. The record evidence indicates that the City’s response was delayed for two reasons. First, Petitioner had indicated that she wished to pursue her grievance through the CBA, and Mr. Sorensen’s conversations with Petitioner’s union representative led him to believe that Petitioner’s grievance was going to be refiled to clearly establish a starting date for the CBA process. Second, Hurricane Irma had just passed through the state, causing significant damage in Marion County and delaying the City’s ability to respond to non-emergency matters such as Petitioner’s grievance. Of greater significance to this retaliation case, Petitioner’s direct supervisor, Ms. Wade, was not copied on any of the correspondence regarding Petitioner’s discrimination claim or her grievance. The only way Ms. Wade would have known of these matters was through word-of-mouth in the office. Ms. Wade credibly testified that she was unaware of any of these matters at the time they were occurring. Petitioner believed that Ms. Wade knew of her complaints, but provided no direct evidence of Ms. Wade’s knowledge. One week after her email to Mr. Sorensen, on September 20, 2017, Petitioner interviewed for an open position in the City’s Fleet Department. The Fleet Department is separate from Public Works and is located in a different building. Ms. Wade testified that Petitioner did not inform her that she would be absent from the Public Works office or that she would be interviewing for a position in the Fleet Department. Ms. Wade stated that she checked Petitioner’s office and saw that she was not present. Ms. Wade asked a co- worker about Petitioner’s location and was informed that Petitioner was out at a job interview. Petitioner testified that she told Ms. Wade that she would be out of the office. She did not tell Ms. Wade why she was going out. Petitioner testified that she believed Ms. Wade was not her supervisor and had no reason to know that she was going out on a job interview. Petitioner stated that she told Mr. Casey why she would be out of the office. Petitioner did not call Mr. Casey as a witness to corroborate her version of events. As indicated above, the undersigned does not credit Petitioner’s assertion that she did not believe Ms. Wade was her direct supervisor. When Petitioner returned to the office, Ms. Wade informed her that she was required to use paid time off (“PTO”) for personal business such as job interviews. Ms. Wade sent a request through “Kronos,” the City’s payroll software system, to dock Petitioner for 30 minutes of PTO for the time she was not in the office. Within a few days of making the Kronos request, Ms. Wade discussed the matter with Mr. Sorensen, who told her that City policy provided that employees could interview for other open positions within the City without using any PTO. The time used for such internal interviews was to be treated as regular work time. Evidence produced at the hearing indicated that Petitioner had gone out on such internal interviews previously and not been charged with PTO. Ms. Wade, having learned that she was mistaken regarding City policy, took steps to restore Petitioner’s PTO. On September 26, 2017, Ms. Wade submitted a payroll correction to adjust Petitioner’s pay to her full regular hourly rate. On October 3, 2017, Ms. Wade informed Petitioner of her mistake and that she had reversed the docking of Petitioner’s PTO. Petitioner contended that Ms. Wade’s docking of her pay was in retaliation for her complaint of discrimination and filing of a grievance. Petitioner stated that Ms. Wade’s reversal of the PTO decision was due solely to the fact that Petitioner contacted her union representative about the matter. Petitioner conceded that the only evidence connecting her discrimination complaint to Ms. Wade’s action on September 20, 2017, was their proximity in time. Ms. Wade credibly testified that she did not know about Petitioner’s discrimination complaint on September 20, 2017, and that no one working for the City ever instructed her to take any adverse action against Petitioner. On October 2, 2017, the FCHR received Petitioner’s initial Employment Complaint of Discrimination. The FCHR sent a Notice of Filing of Complaint of Discrimination to the City. The Notice was dated October 3, 2017, but was not received by the City until October 6, 2017. Ms. Wade testified that she was unaware of any potential claim of discrimination by Petitioner prior to October 6, 2017. Petitioner claimed that Ms. Wade was aware of Petitioner’s intention to file the discrimination complaint when Ms. Wade originally docked Petitioner’s PTO in September 2017. To support this claim, Petitioner first testified that one of the emails she sent regarding her potential discrimination complaint was copied to Ms. Wade. When the actual emails were produced by the City and showed that Ms. Wade was not copied on any of them, Petitioner testified that she had told Ms. Wade of her discrimination complaint at a meeting that included Ms. Wade and Mr. Park. Ms. Wade credibly testified that she had no memory of discussing the discrimination complaint with Petitioner at a meeting. Petitioner did not produce Mr. Park as a witness to corroborate her testimony regarding a meeting. Ms. Wade’s testimony is credited on this point. Petitioner failed to demonstrate that Ms. Wade’s actions on September 20, 2017, were in retaliation for Petitioner’s discrimination complaint. On November 20, 2017, the City hired Erica Wilson as the new Administrative Specialist III to work in Public Works. She assumed the duties of the previous Administrative Specialist III, Melinda Day, who had retired. Petitioner and Ms. Day had worked cooperatively in preparing payroll reports for Public Works. Petitioner would summarize the payroll cards for the stormwater division, and Ms. Day would summarize the payroll cards for the streets and traffic divisions. Once the summaries were completed, either Petitioner or Ms. Day would transmit them by email to the Payroll Department. Petitioner and Ms. Day alternated the task of sending the email to Payroll, with each employee transmitting the information every other week. After Ms. Day retired, Public Works was shorthanded for a time. During this period, Petitioner began summarizing all of the payroll cards for the stormwater, streets, and traffic divisions, and transmitting all of that information to Payroll on a weekly basis. After Ms. Wilson was hired at Public Works, Petitioner continued to perform her new duties while Ms. Wilson came up to speed on her new job. In January 2018, Ms. Wade convened a meeting with Petitioner and Ms. Wilson to discuss the transition for Ms. Wilson to take over the payroll duties formerly performed by Ms. Day. At the conclusion of the meeting, Ms. Wade announced that Ms. Wilson would be in charge of sending all the emails to Payroll and Petitioner would continue summarizing all of the pay cards for all three divisions of Public Works.2/ In other words, the work would be divided more or less as it was before Ms. Day retired. At the meeting with Ms. Wade and Ms. Wilson, Petitioner voiced no dispute or concerns with the division of duties ordered by Ms. Wade. Neither Ms. Wade nor Ms. Wilson recalled Petitioner’s being upset by or objecting to the plan outlined by Ms. Wade. Petitioner herself conceded that she said nothing to indicate her disagreement with the re-assignment. Petitioner contends that Ms. Wade’s decision to take some of Ms. Day’s former duties from her and assign them to Ms. Day’s successor was a retaliatory reduction of her job duties. Again, Petitioner’s only evidentiary support for her contention is that the alleged retaliatory action occurred after she made her discrimination complaint with the FCHR. Ms. Wilson testified that she considered the entire matter of payroll duties to be a minor part of her job. Ms. Wade testified that her only intention in redistributing duties was to restore the status quo ante from before Ms. Day retired. Also in January 2018, another event caused Petitioner to believe that Ms. Wade was retaliating against her. Petitioner alleged that Ms. Wade further reduced her job duties by forbidding her to contact vendors used by the City or to contact City employee John Long, who was the City’s Vendor Relations Manager. The specific issue concerned Petitioner’s contacts with UniFirst, the vendor who laundered uniforms for every department of the City. Petitioner’s routine job duties included taking delivery of uniforms for Public Works employees from UniFirst drivers. She discussed with those drivers any issues regarding the number of uniforms delivered, the condition of the uniforms, and the amount of the invoice. Petitioner had no responsibility for dealing with UniFirst’s management on behalf of the City as a whole. In April 2017, Petitioner inserted herself into a quality of service dispute with UniFirst. Uniform shirts were coming back from UniFirst in a soiled and threadbare condition. At first, Petitioner followed protocol and addressed her complaints to Mr. Long, who conveyed them to Jeff Peterson, UniFirst’s district service manager. However, after some back- and-forth between Mr. Long and Mr. Peterson, Petitioner elected to send an email of her own to Mr. Peterson. Ms. Wade considered this action unprofessional and counseled Petitioner about it. Ms. Wade did not believe further discipline was necessary because the situation was unlikely to recur. However, in January 2018, a similar quality control issue arose with UniFirst. Mr. Long and Petitioner exchanged emails that indicated Mr. Long believed Petitioner was the City’s point person regarding UniFirst, based on her handling of the previous issue in 2017. However, Ms. Wade directed Petitioner not to contact UniFirst management directly because the City employed Mr. Long to handle citywide vendor relations. Petitioner alleged that Ms. Wade had instructed her to have no contact with anyone from UniFirst, and that this instruction amounted to a retaliatory reduction of her assigned duties. At the hearing, Ms. Wade made it clear that her order was meant only to stop Petitioner from contacting UniFirst’s management, an action that was never in Petitioner’s scope of duties. Petitioner was still expected to deal with the UniFirst driver who delivered uniforms to Public Works. Her job duties were unchanged. Petitioner alleged that Ms. Wade retaliated against her by denying her leave to which she was entitled. On February 5, 2018, Petitioner requested that she be allowed to use 2.5 hours of accrued “safety time”3/ that afternoon, and her “floating holiday”4/ on the following day, February 6, 2018. Ms. Wade denied the request. Petitioner nonetheless left work early on February 5, 2018, and did not come into work on the following day, missing 10.5 hours of work in total. The City applied Petitioner’s accrued PTO time, 6.2 hours, to the time she missed work. For the remaining 4.3 hours, Petitioner was charged for leave without pay. Ms. Wade testified that she denied the leave request because the Public Works Department has a written policy stating that if an employee is requesting fewer than five days off, the request should be made no less than 48 hours prior to the employee’s absence.5/ Ms. Wade stated that the policy’s purpose was to ensure that enough employees were present to perform needed work. Supervisors have discretion to deviate from the policy, but only where the employee shows good cause for the failure to provide sufficient notice. In this case, Petitioner provided Ms. Wade with no reason for her request. Petitioner testified that she was never made aware of the policy, and suggested that the City invented the policy after the fact as a response to her claim of discrimination. Petitioner presented documents showing that she had previously been allowed to take time off with less than 48 hours’ notice. Ms. Wade reviewed Petitioner’s documents at the hearing. She did not recall the specific details of any particular leave request, but testified as to her general practice in granting leave with less than 48 hours’ notice. Ms. Wade stated that in some cases, Petitioner had likely made an oral request more than 48 hours prior to the leave, but did not submit the written request into the Kronos system until later. In such cases, Petitioner’s leave request would have been granted. In other cases, Petitioner had likely presented Ms. Wade with extenuating circumstances justifying the short notice. Ms. Wade demonstrated her department’s even-handed application of the policy by producing contemporaneous records showing that other Public Works employees had been denied the use of safety hours and floating holidays when they failed to give 48 hours notice to their supervisors. Petitioner failed to establish that Ms. Wade’s denial of her leave request was retaliatory. Petitioner offered evidence on two issues that were beyond the scope of her Employment Complaint of Discrimination regarding retaliation. First, she claimed that the City retaliated against her by denying her the ability to use “flex time” to work an extra hour on February 1, 2018, so that she could leave an hour early on February 2, 2018. Petitioner claimed that this denial was in derogation of the City’s policy and prior practice. Second, Petitioner claimed that the City retaliated against her by denying her request to attend a training class. The City objected to Petitioner’s presentation of this evidence because these matters were not covered in Petitioner’s second Employment Complaint of Discrimination regarding retaliation. Petitioner conceded that these matters were not mentioned in her retaliation complaint, but maintained that she had submitted materials on these issues to, and discussed them with, the FCHR. She also raised the issues in her subsequent Petition for Relief. The undersigned allowed Petitioner to present her evidence because of the ambiguity of the procedural situation. It appears that during its investigative phase, the FCHR accepted evidence from Petitioner as to issues outside the four corners of Petitioner’s retaliation complaint. However, the FCHR ultimately issued no finding as to probable cause. Thus, it is unclear which issues the FCHR formally considered. While finding persuasive the City’s argument that Petitioner should be held to the issues raised in her Employment Complaint of Discrimination, the undersigned decided that if he were to err, it would be on the side of allowing Petitioner to present all of her evidence at the hearing. As to the first issue outside the Employment Complaint of Discrimination, Petitioner testified that, on February 1, 2018, she requested that she be allowed to work an extra hour and then use the “flex time” to take an hour off work the next day. Petitioner presented an email chain between Ms. Wade and her regarding this request. Ms. Wade ultimately denied the request on the ground that the City does not allow employees to “flex ahead,” i.e., work extra time now in anticipation of taking time off later. Ms. Wade told Petitioner that she would be allowed to flex an hour on February 1, 2018, and then work through her lunch hour on February 2, 2018. Petitioner testified that the City had always allowed her and other employees to flex ahead, and that the denial in this instance could only be explained as retaliation by Ms. Wade for her discrimination complaint. Petitioner did not offer evidence of the City’s written policy on flex time or evidence that the City even had such a policy. She offered exhibits purporting to demonstrate that she and other employees had been allowed to work extra time on one day to take time off on a later date. However, the coding on these documents was not clear and Petitioner did not adequately explain them. The City declined to offer evidence on this issue because of its contention that it was outside the scope of Petitioner’s Employment Complaint of Discrimination. Petitioner failed to establish that Ms. Wade’s stated view of the City’s flex time policy was incorrect or that Ms. Wade deviated from past policy and practice by declining to allow Petitioner to flex ahead on February 1, 2018. As to the second issue outside the Employment Complaint of Discrimination, Petitioner testified that on October 12, 2017, she submitted a request to Ms. Wade to take two training courses being offered by the City: “Attitude Means Everything” and “Communicating with Diplomacy and Tact.” Ms. Wade gave Petitioner permission to take the first class but denied her permission to take the second. Ms. Wade testified that the “Communicating with Diplomacy and Tact” course was designated as a “leadership” course, meaning that only supervisors are generally approved to take it. Petitioner’s position with the City was not supervisory. Petitioner showed Ms. Wade a document that Petitioner stated was a list of employees who had attended the “Communicating with Diplomacy and Tact” course. Petitioner asked Ms. Wade whether all of the listed people were supervisors. Ms. Wade testified that she could not answer the question because she did not know the people on the list, none of whom were employed by Public Works. Petitioner herself did not identify the employees on the list. In the absence of any evidence to demonstrate that Ms. Wade did anything more than follow City policy on training course participation, it cannot be found that Ms. Wade retaliated against Petitioner by denying her request to take the “Communicating with Diplomacy and Tact” course. On February 7, 2018, Petitioner voluntarily resigned her employment with the City. Petitioner alleged that her resignation was a “constructive discharge” due to the City’s denial of paid leave time for February 6, 2018, as well as the other allegedly adverse retaliatory actions taken by the City since the filing of her discrimination complaint. Petitioner offered no credible evidence that the City retaliated against her for engaging in protected activity. The only employee specifically cited by Petitioner as allegedly retaliating against her was her direct supervisor, Ms. Wade. The evidence established that Ms. Wade became aware of Petitioner’s discrimination complaint no earlier than October 6, 2017, after she allegedly retaliated against Petitioner by requiring her to use PTO for an internal job interview. Additionally, Ms. Wade rectified the situation as soon as Mr. Sorensen corrected her understanding of City policy. None of the later allegations of retaliation were credible. In January 2018, Ms. Wade gave Petitioner some minor Administrative Assistant III duties at a time when Public Works was shorthanded, then gave those duties back to the Administrative Assistant III position after the new person was hired and learned the job. There was no reason for Petitioner to take offense at this routine reshuffling of minor job duties. Also in January 2018, Ms. Wade directed Petitioner not to contact UniFirst’s management regarding citywide vendor performance issues. Such contacts were not part of Petitioner’s job duties and Ms. Wade had already counseled Petitioner against taking it upon herself to send emails to UniFirst’s management. Petitioner’s actual job duties in relation to UniFirst’s delivery of uniforms to the Public Works Department never changed. Ms. Wade’s denial of Petitioner’s February 5, 2018, leave request was in keeping with the express policy of the Public Works Department that leave requests be made at least 48 hours prior to the employee’s absence from work. The evidence established that this was not a rigid policy, but Petitioner failed to show that she presented Ms. Wade with the kind of extenuating circumstances that historically have been the basis for granting leave requests less than 48 hours before the employee’s proposed absence. There was nothing retaliatory about Ms. Wade’s following the stated policy of Public Works. Petitioner was allowed to raise two issues that were not included in her Employment Complaint of Discrimination regarding retaliation. As to these issues, Petitioner failed to offer proof sufficient to establish that either Ms. Wade’s denial of her request for flex time or Ms. Wade’s denial of Petitioner’s request to attend a “leadership” training course was an incident of retaliation. Petitioner failed to prove any incidents of retaliation. Because she voluntarily resigned her position with the City, Petitioner did not establish that the City took an adverse employment action against her in any form.
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 that the City of Ocala did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 28th day of May, 2019, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 28th day of May, 2019.
