The Issue Whether Respondent, Department of Economic Opportunity (DEO or Department), discriminated against Petitioner, Georgie Breville, in violation of the Florida Civil Rights Act of 1992 (the Act), sections 760.01–760.11 and 509.092, Florida Statutes, based upon her national origin, age, disability, or in retaliation.
Findings Of Fact Petitioner is a 64-year-old female from Mauritius, a French island nation off the coast of Africa. As such, she falls within a protected class based on age and national origin. Respondent, DEO, is the successor State agency to the former Agency for Workforce Innovation (AWI) with the responsibility to implement the FloridaWorks program. FloridaWorks is organized into Regional Workforce Boards which oversee the delivery of employment services in their local jurisdictions. Employment services delivered at local One-Stop Centers include job searches, job counseling, and resume drafting, among others. Petitioner was employed at the FloridaWorks Alachua County One-Stop Career Service Center in Gainesville, Florida, from 2001 through 2010. At all times relevant hereto, Petitioner was an employee of AWI in the position of Customer Service Specialist. In her capacity as Customer Service Specialist, Petitioner met with job seekers, assessed their needs, and referred them for assessment testing and community services. She also conducted workshops on resume writing, interviewing skills, and job search skills. In February 2009, Betty Holmes, an AWI employee, became Petitioner’s supervisor. By letter dated September 17, 2010, Petitioner was terminated from her employment with AWI effective October 1, 2010. The termination letter was hand delivered to Petitioner on September 20, 2010, by Ms. Holmes in her office at the One-Stop Center. The letter stated that Petitioner’s termination was due to loss of funding for the Regional Workforce Board. On October 22, 2010, Petitioner filed a Charge of Discrimination with the Commission alleging that Florida Management Solutions, Inc. (FMS), had discriminated against her on the basis of her national origin, age, and in retaliation by giving her unfair negative evaluations, harassing and demeaning her, assigning her a larger workload than other employees, and ultimately unfairly terminating her.3/ The Commission issued a Determination of No Cause on May 16, 2011, finding there was no cause to find that Respondent had committed an unlawful employment action. Petitioner timely filed with the Commission a Petition for Relief against FMS, which was forwarded to DOAH for assignment of an administrative law judge (ALJ) to conduct a fact-finding hearing. Following an evidentiary hearing on the matter, the ALJ entered a Recommended Order finding that FMS was not Petitioner’s employer during the time period in which the alleged acts of discrimination occurred. Rather, the ALJ found that AWI was Petitioner’s employer. The Recommended Order was entered on September 14, 2011. On September 29, 2011, Petitioner filed a Complaint of Discrimination against AWI alleging unlawful employment discrimination on the basis of her race, national origin, age, and in retaliation. Again, the Commission issued a Determination of No Cause and Petitioner filed a Petition for Relief, which was forwarded to DOAH and assigned to the undersigned for conduct of an evidentiary hearing. Petitioner’s Complaint of Discrimination alleges that she was discriminated against by being assigned a larger caseload and being held to different performance standards than similarly situated non-classified employees; denied training; given unmerited negative performance evaluations; harassed, demeaned, and threatened, resulting in negative health issues; and unlawfully terminated, resulting in loss of benefits and future employment opportunities. As such, Petitioner’s complaint raises both individual discrete acts of discrimination, as well as an ongoing hostile work environment. Petitioner’s complaint and testimony are largely focused on the treatment she received from Ms. Holmes, her supervisor from February 2009 to October 1, 2010. Petitioner alleges that when Ms. Holmes became her supervisor, Ms. Holmes removed Petitioner from her usual duties and assigned Petitioner a caseload of 150 cases in a program with which she was not familiar. Petitioner argues that the assignments were unreasonable and, perhaps, even unauthorized by the agency. Petitioner further alleges that Ms. Holmes was critical of Petitioner’s inability to complete the cases in a timely manner, and that Petitioner was denied the training she requested to better perform on the job. Ms. Holmes’ assignment of job duties to Petitioner, as well as Petitioner’s request for training, occurred more than 365 days prior to the date on which Petitioner filed her Complaint of Discrimination. Petitioner alleges that the employee evaluations Ms. Holmes performed, completed, and signed in April 2009 and April 2010 were unmerited.4/ The evaluations complained of were completed more than 365 days prior to the date on which Petitioner filed her Complaint of Discrimination. Petitioner alleges that Ms. Holmes unnecessarily contacted 9-1-1 on May 18, 2010, when Petitioner fainted in Ms. Holmes’ office, and allegedly told the paramedics that Petitioner was acting erratically prior to fainting, allegations which Petitioner denies. The incident during which Petitioner fainted and was taken to the hospital by the paramedics occurred more than 365 days prior to the date on which Petitioner filed her Compliant of Discrimination. Petitioner alleges that Ms. Holmes spoke harshly to her, yelled at her, told her to “shut up,” and made demeaning comments about Petitioner’s French accent. Petitioner testified that Ms. Holmes made Petitioner repeat after her, and on at least one occasion said, “This is how Americans speak.” All the statements alleged to have been made by Ms. Holmes occurred more than 365 days prior to the date on which Petitioner filed her Complaint of Discrimination. On May 26, 2010, Petitioner filed a grievance with AWI Human Resources regarding Ms. Holmes’ alleged harassment of Petitioner as well as her unmerited negative evaluation. After filing the grievance, Petitioner met with Ms. Holmes and her direct supervisor, Arelis Rosario, to discuss her performance evaluation and other issues raised in Petitioner’s grievance. A written summary of the meeting was made and signed by Petitioner, Ms. Rosario, and Ms. Holmes on June 2, 2010. Petitioner disagrees with the substance of the summary and maintains that her grievance was not satisfactorily resolved. Petitioner alleges that she was terminated, in part, in retaliation for filing the grievance against Ms. Holmes. The grievance filed against Ms. Holmes, as well as the resolution meeting between Petitioner, Ms. Holmes, and Ms. Rosario, occurred more than 365 days prior to Petitioner’s Complaint of Discrimination. Petitioner was notified of her termination on September 20, 2010, which was a Monday. At hearing, Petitioner did not testify with certainty whether, or on which days, she was absent from work following notice of her termination. Petitioner had enough accumulated leave to take the two weeks off between termination and effective date. However, Petitioner chose not to. Petitioner was uncertain about the days that Ms. Holmes was in the office during either the week of her termination or the following week. At final hearing, Petitioner seemed confused about various events she related. On the whole, Petitioner’s testimony was inconsistent and equivocal. The evidence was clear that Petitioner was assigned no work during the period of September 20, 2010, through October 1, 2010. Petitioner had little, if any, interaction with Ms. Holmes during that same time period. She testified that her co-workers avoided her and barely spoke to her. Petitioner spent most of her time cleaning out her office and packing her belongings. In what must have been an awkward situation, Petitioner gave away many of her personal belongings to her co-workers during the time period between September 20, 2010, and October 1, 2010. Petitioner gave Ms. Holmes a vase from her office as a gift, although the exact date was not established. Petitioner introduced no evidence of any discrete acts of discrimination by Ms. Holmes, or any other AWI employee, between September 29, 2010, and October 1, 2010. Petitioner has been diagnosed with breast cancer and has been under treatment for several years. Petitioner did not take sick leave when employed at AWI. Instead, she took annual leave for her treatments or attended doctor’s visits during her lunch hour. The evidence did not support a finding that her employer knew of either her diagnosis or treatment.
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 Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 26th day of September, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 26th day of September, 2013.
The Issue The issue in this case is whether, on the basis of Petitioner's age, Respondent (a staffing agency) unlawfully discriminated against Petitioner by having him terminated from his position with Respondent's client, in violation of the Florida Civil Rights Act.
Findings Of Fact Respondent inSync Staffing, Inc. ("inSync"), is a company that recruits for, and supplies employees to, its clients, including, as relevant here, NBTY, Inc. ("NBTY"). inSync is an "employment agency" as that term is used in the Florida Civil Rights Act of 1992 ("FCRA"). See ¶ 13, infra. inSync does not meet face-to-face with most of the candidates it places with clients. On or around August 19, 2015, a recruiter at inSync forwarded the résumé of Petitioner Adalberto Lopez ("Lopez"), then 75 years old, to NBTY in hopes that NBTY might hire Lopez to fill the position of "QA Floor Inspector – Shift 1," a job that paid $13.50 per hour. About a week later, NBTY interviewed Lopez, and, on September 2, 2015, inSync informed Lopez that NBTY was offering him the job. Lopez accepted the offer. NBTY, not inSync, made the decision to hire Lopez. At all times, inSync acted essentially as a go-between, introducing Lopez to NBTY and helping him apply for the job, informing Lopez of NBTY's training and drug test requirements for new employees, and providing him with documents that NBTY wanted completed and returned in the ordinary course of new-hire onboarding. One of the documents that Lopez was required to sign and submit was the Employment Eligibility Verification (Form I-9), which is used by the U.S. Department of Homeland Security, administrator of the federal E-Verify program, to determine whether an employee is authorized to work in the United States. The E-Verify program provided NBTY with a result of Tentative Nonconfirmation ("TNC"), meaning that there was, at a minimum, some discrepancy between the information provided in Lopez's Form I-9 and that available in other public records. A TNC does not necessarily disqualify an employee from continuing to work, but it does need to be resolved to avoid the possibility of termination. In this instance, there is no persuasive evidence that the TNC led NBTY to take any adverse action against Lopez. There is, moreover, no evidence that inSync took any adverse action against Lopez as a result of the TNC. Lopez's first day of work at NBTY was September 14, 2015. The next day, NBTY terminated Lopez's employment. Nevertheless, Lopez showed up for work on September 16 and was told, again, that he no longer had a job. There is no persuasive evidence that inSync played any role in NBTY's decision to fire Lopez. inSync did, however, communicate this decision to Lopez, telling him that he had "been terminated due to not catching on fast enough." This was the reason for the termination given to inSync by NBTY. There is no persuasive evidence that this was not, in fact, NBTY's reason for firing Lopez. There is no persuasive evidence that NBTY eliminated Lopez's job, but there is, likewise, no evidence that NBTY filled the vacant position after Lopez's termination, nor (it obviously follows) any proof regarding the age of Lopez's successor (assuming NBTY hired someone to replace Lopez). There is no evidence concerning the candidates, if any, that inSync referred to NBTY after Lopez had been fired. Ultimate Factual Determinations There is no persuasive evidence that any of inSync's decisions concerning, or actions affecting, Lopez, directly or indirectly, were motivated in any way by age-based discriminatory animus. Indeed, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of unlawful age discrimination could be made. Ultimately, therefore, it is determined that inSync did not discriminate unlawfully against Lopez on the basis of his age.
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 inSync not liable for age discrimination. DONE AND ENTERED this 26th day of October, 2017, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2017.
The Issue Whether Respondent, McDonald's Corporation, discriminated against Petitioner, Carolyn Hadley, in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (2000).
Findings Of Fact Petitioner is an African-American female who worked at the Cocoa Beach, Florida, McDonald's restaurant from October 1, 2000, until March 17, 2001. She voluntarily terminated her employment. Respondent owns and operates restaurants and is subject to Chapter 760, Florida Statutes (2000). Respondent has an extensive, well-conceived, "Zero Tolerance" policy which prohibits unlawful discrimination. This policy is posted in the workplace, is distributed to every employee at the time he or she is employed, and is vigorously enforced by management. There are published procedures which can be easily followed by an employee who believes that he or she has been the victim of unlawful discrimination. Petitioner did not avail herself of Respondent's "Zero Tolerance" policy. Petitioner complains of two isolated instances of what the evidence clearly shows to be workplace "horseplay" as the basis of her unlawful employment discrimination claim. On one occasion, a shift manager placed a promotional sticker on Petitioner's forehead. The second involved ice cream being placed on Petitioner's face. The evidence reveals that the "horseplay" complained of was typical of this workplace and not race or sex based. Practical jokes, food fights, ice down shirt backs, and similar activities, while not encouraged by corporate management, were a part of the routine at this restaurant. Petitioner was not the singular focus of the "horseplay"; it involved all employees. There is no evidentiary basis for alleging that it was racial or sexual in nature, as it involved employees of differing races and sexes. Approximately a month after the latest of the incidents complained of, on March 17, 2001, Petitioner voluntarily terminated her employment. Six months later, in September, 2001, Petitioner complained to Dexter Lewis, an African-American corporate employee who is responsible for investigating claims of unlawful workplace discrimination, about the two incidents. She claimed that she had been embarrassed by the incidents but did not suggest to him that they had been racially or sexually motivated. Mr. Lewis investigated the alleged incidents; he confirmed that the incidents had occurred and that similar incidents were widespread, but not racially or sexually motivated; he reprimanded the store manager and shift manager for their unprofessional management.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that Petitioner's Petition for Relief be dismissed. DONE AND ENTERED this 22nd day of September, 2004, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2004. COPIES FURNISHED: Carolyn Hadley 135 Minna Lane Merritt Island, Florida 32953 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cynthia Brennan Ryan, Esquire Holland & Knight, LLP Post Office Box 1526 Orlando, Florida 32802-1526 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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 in this case is whether Respondent unlawfully discriminated against Petitioner on the basis of his race in violation of the Florida Civil Rights Act, when Petitioner was an employee of Respondent.
Findings Of Fact From November 2004 until early 2008, which period includes all times relevant to this case, Petitioner Robinson Nelson ("Nelson") worked for Respondent Alutiiq-Mele, LLC ("AML") as a security guard. Nelson, who is black, alleges that on two discrete occasions, AML unlawfully discriminated against him based on race, once denying him an overtime shift which he requested, and the other time refusing to assign him "equal work hours." The first incident allegedly took place on "or about March 1, 2005." According to Nelson, he called his supervisor that day, using a telephone at his workstation, to ask that he be scheduled to work overtime on his day off. The supervisor, Nelson claims, told him that overtime had been "eliminated" and denied Nelson's request. Shortly thereafter, as Nelson tells it, the supervisor called Nelson's coworker, Nadja Abreu, and offered her the overtime that Nelson had just been denied. Nelson's story cannot be squared with AML's records, which the undersigned considers reliable and truthful and hence credits. Nelson's timesheet for the week of February 27 through March 5, 2005, shows (and it is found) that he worked all seven days that week, putting in 40 regular hours and 26 overtime hours. Ms. Abreu's timesheet for the same period shows (and it is found) that she worked four days, accruing 40 regular hours and four overtime hours. At hearing, Nelson claimed (apparently for the first time) that the telephone conversation with his supervisor regarding overtime had not occurred on or about March 1, 2005—— as he had alleged originally in his Charge of Discrimination (signed on November 20, 2005) and maintained as recently as the Joint Prehearing Stipulation (dated May 30, 2008)——but rather some two weeks later, on or about March 15, 2005. Again, however, credible contemporaneous records belie Nelson's claim. A payroll document shows (and it is found) that Nelson and Ms. Abreu each worked 40 regular hours during the week of March 13, 2005——and neither put in overtime. (Moreover, Nelson did not work on March 15 and 16, 2005, which means that, if Nelson called his supervisor on March 15, as he asserted at hearing, then he likely would not have been at his workstation at the time, which is inconsistent with his testimony that he placed the call while at work.) Regarding the second alleged incident of discrimination, Nelson claims that on Monday, October 31, 2005, shortly before 9:00 a.m., he received a telephone call at home from his supervisor, who wanted to know why Nelson had failed to report for work that morning. Nelson says he told his supervisor that he had not been scheduled to work that day, and he could not work because he was babysitting. Nelson complains that, in connection with this situation, AML "denied" him regular work hours because of his race. In addition to being facially illogical, Nelson's claim of discrimination is contradicted by reliable and persuasive documentary evidence. First, AML's payroll record shows (and it is found) that Nelson worked four hours on Sunday, October 30, and seven-and-a-half hours each day the next Tuesday through Friday, making a total 34 regular hours during the week of October 30, 2005. While this was not quite a full-time workweek, that Nelson worked fewer than 40 hours one week is not, of itself, proof that AML "denied" him six hours of work. In fact, AML did not "deny" Nelson a work opportunity, as other contemporaneous documents——not to mention Nelson's own testimony——show. In evidence are two work schedules pertaining to the week of October 30, 2005. One was printed on October 28, 2005, and the other on October 30, 2005. There are a number of differences between them; each, however, notes that "scheduled hours are subject to change as needed." On the earlier schedule, Nelson was to be off on Monday, October 31, 2005. On the subsequent schedule, he was to work from 9:00 a.m. to 4:00 p.m. that day. Had Nelson reported to work on October 31, 2005, as (ultimately) scheduled——and as he was asked to do——Nelson would have worked more than 40 hours the week of October 30, 2005. Ultimate Factual Determinations Taken as a whole, the evidence in this case is either insufficient to establish that AML discriminated unlawfully against Nelson on the basis of his race; or it proves, affirmatively, that AML did not, in all likelihood, unlawfully discriminate against him. Either way, it is determined, as a matter of ultimate fact, that AML did not violate the civil rights laws in its treatment of Nelson while he was an employee of AML.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding AML not liable to Nelson for racial discrimination. DONE AND ENTERED this 23rd day of July, 2008, in Tallahassee, Leon County, Florida. 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 23rd day of July, 2008. COPIES FURNISHED: Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141 Christine L. Wilson, Esquire Jennifer A. Schwartz, Esquire Jackson Lewis LLP One Biscayne Tower, Suite 3500 2 South Biscayne Boulevard Miami, Florida 33131 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues in this case are whether, in violation of the Florida Civil Rights Act, Respondent terminated Petitioner's employment on the basis of her race, or retaliated against her for engaging in protected activity; and whether Respondent subjected Petitioner to a hostile work environment.
Findings Of Fact Respondent Cole, Scott & Kissane, P.A. ("CSK"), is a law firm having offices throughout the state of Florida. Petitioner Latasha McCleary ("McCleary"), an African-American woman, worked for CSK in its Orlando office as a legal assistant from August 7, 2017, through July 31, 2018. However, because McCleary began taking medical leave on June 6, 2018, and never returned to work, her last day in the office was June 5, 2018. Thus, the period of time in which McCleary actually functioned as a regular CSK employee was ten months. During her tenure with the firm, McCleary provided secretarial and administrative support to several attorneys, including partner Bartley Vickers and associates Jeremy Beasley and Shawn Gibbons. McCleary's direct supervisor was the then office manager, Lilliam Hernandez. CSK regarded McCleary as a valued and high-performing employee. Although, as will be discussed, McCleary complains that she was subjected to unfair criticism during the last weeks of her time in CSK's Orlando office, she was never reprimanded, disciplined, or subjected to an adverse employment action. For the first nine months of her employment, McCleary got along well with the attorneys for whom she worked, including Mr. Vickers, and she has no complaints about their treatment of her during this period. The only noteworthy incident or incidents of relevance to have occurred in this time frame are a secretary's use, on one or perhaps more occasions, of the "n- word" in McCleary's presence. An employee's use of this racial epithet in the workplace is, of course, extremely offensive and inflammatory, to say the least, and, if unchecked, could create a hostile work environment. That did not happen here, however. The legal assistant who made the offensive remark (apparently in the presence of peers only, not supervisors or managers) apologized to McCleary when the latter expressed her discomfort. McCleary never reported the incident(s) in writing to the firm's management, as the Employee Handbook required——a fact from which the undersigned infers that she accepted her co-worker's apology——and the bad behavior stopped. The upshot is that this upsetting incident was resolved informally among the affected employees without initiating an investigation by the firm, and a nascent problem was nipped in the bud. The watershed moment in this case occurred on May 7, 2018, at the beginning of McCleary's tenth month with CSK. An expert witness retained by CSK was scheduled to conduct an on- site inspection that day but failed to appear, forcing a last- minute cancelation which caused opposing counsel to incur travel expenses that CSK had to reimburse. McCleary mistakenly had failed, on the previous business day, to confirm the expert's availability, as the firm's routine required, and thus, she bore some responsibility for the unwanted results. That said, there is no evidence that this situation was other than a relatively minor inconvenience that could be fixed, learned from, and forgotten. When the problem came to light on May 7, 2018, Ms. Hernandez, the office manager, sent an email to McCleary reminding her that the inspection "should have been confirmed" beforehand to avoid a "waste[] [of] time and money." McCleary apologized for making a "human error" and promised it would not happen again. On May 9, 2018, Mr. Vickers, the partner, sent an email to McCleary and Mr. Gibbons, the associate, telling them that "some form of confirmation is needed" "for confirming inspection dates." He added: "This is a mistake that I imagine will not happen again, and I am glad we can move past it and look to the future without these types of issues again." The only thing remarkable about these emails is how unremarkable they are. Two points of interest will be mentioned. First, as just suggested, the tone of each message was neither derogatory nor personal, but measured and professional. There was a touch of criticism, to be sure, as would be expected, but the criticism was constructive in nature, not harsh or angry in tone. Second, McCleary was not the only one called to account. Mr. Vickers's email was directed as much to the associate attorney as to McCleary. The next day, Thursday, May 10, 2018, Mr. Vickers conducted a training meeting for the legal assistants in his group, which McCleary attended. There were a number of topics on the agenda, covering a range of administrative tasks that CSK expected its litigation support staff to carry out. Although Mr. Vickers brought up that week's scheduling snafu as an example of miscommunication-driven consequences, no evidence suggests that McCleary's mistake had prompted the meeting. Further, McCleary was not identified in the meeting as having been at fault or involved in the incident. McCleary, however, complains that she was "singled out" during the meeting, "80% [of which, she maintains,] covered what happened with [her] in regards to the May 7th re-inspection." The greater weight of the evidence does not support her characterization of the training session. According to McCleary, Mr. Vickers, who had been a good boss for the previous nine months, suddenly turned into a tyrant around May 10, 2018. McCleary alleged in an email written a few weeks later, on June 1, 2018, that soon after the canceled inspection, Mr. Vickers had begun asking her "idiotic questions to be sure [she knew] her job," and been constantly micromanaging [her] with multiple emails" accusing her of making numerous mistakes. Yet, although this entire period spans just 18 business days, McCleary produced none of Mr. Vickers's alleged, accusatory emails. The greater weight of the evidence does not support McCleary's allegations concerning Mr. Vickers's treatment of her during the month of May 2018. Sometime near the end of May, McCleary sent out notices of taking deposition duces tecum that did not have the document requests attached. McCleary was not solely to blame for this oversight; the attorney handling the case should have reviewed the papers to make sure that everything was in order before service. Still, as the legal assistant, McCleary should have spotted the omission and brought it to the attorney's attention. On the morning of May 31, 2018, after the problem had been discovered, Mr. Vickers sent an email to McCleary and Mr. Beasley, the associate, admonishing them to "stay focused" when preparing deposition notices for service. Similar to the canceled inspection earlier in the month, the incomplete deposition notices were a problem that CSK obviously would rather have avoided; inattention to detail, moreover, is something any reasonable employer should want to correct. There is no evidence, however, that CSK generally, or Mr. Vickers in particular, made a big deal about this incident. Mr. Vickers told McCleary and the associate that he hoped "it would not happen again"——and that, it seems, would be that. Except it wasn't. Later that day, May 31, 2018, McCleary spoke to the office administrator, Johnson Thomas. During this conversation, McCleary complained about working for Mr. Vickers and asked to be transferred to a different group of attorneys. On Friday, June 1, 2018, McCleary again contacted Mr. Thomas, sending him the email mentioned above. This email was the first written notice that CSK received from McCleary concerning her complaints about Mr. Vickers. In the email, McCleary did not allege racial discrimination, per se, but she did include some language which clearly indicated that such a charge might be forthcoming: "I refuse to subject myself to further retaliation, oppression and disrespect from Mr. Vickers. He is creating a hostile working relationship between us. I cannot concentrate on work and am in need of immediate transfer." (emphasis added). The following Tuesday, June 5, 2018, CSK approved McCleary's request to be transferred, assigning her to the work group headed by partner Melissa Crowley. When the announcement was made, Ms. Crowley sent an email to McCleary stating, "Welcome Latasha! I look forward to working with you." McCleary never reported for duty under Ms. Crowley. Instead, she took a sick day on June 6, 2018, and applied for unpaid medical leave. Despite McCleary's having presented somewhat nonspecific reasons, such as heart palpitations and anxiety, the firm granted McCleary's application and placed her on medical leave through July 11, 2018. In mid-July, McCleary provided CSK with a note from her mental health counselor in support of a request to extend the unpaid medical leave until September 5, 2018. On July 12, 2018, the firm informed McCleary that it would not be able to keep her position open that long without hiring a replacement, but agreed to let her remain on leave until July 31, 2018. CSK made it clear to McCleary that she needed to return to work on August 1, 2018, or face dismissal on grounds of abandonment. McCleary did not return to work on August 1, 2018, and the firm terminated her employment. Ultimate Factual Determinations There is no persuasive evidence that CSK took any actions against McCleary motivated by discriminatory animus, or created (or acquiesced to the creation of) a hostile work environment. Indeed, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of unlawful racial discrimination could be made. There is no persuasive evidence that CSK took any retaliatory action against McCleary for having opposed or sought redress for an unlawful employment practice. Ultimately, therefore, it is determined that CSK did not discriminate unlawfully against McCleary on any basis.
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 CSK not liable for race discrimination, retaliation, or creating a hostile work environment. DONE AND ENTERED this 20th day of December, 2019, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2019. COPIES FURNISHED: Reshad Favors, Esquire Mosaic Law Firm Tenth Floor 1875 Connecticut Avenue Northwest Washington, DC 20009 (eServed) Robert Alden Swift, Esquire Cole, Scott & Kissane, P.A. Tower Place, Suite 750 1900 Summit Tower Boulevard Orlando, Florida 32810 (eServed) Barry A. Postman, Esquire Cole, Scott & Kissane, P.A. Second Floor 1645 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue is whether Respondent, Bar-B-Que Management, Inc. d/b/a Sonny's Real Pit Bar-B-Q (Respondent), discriminated against Petitioner, Dorine Alexander (Petitioner), based on an alleged disability and her race.
Findings Of Fact Respondent is a management company with employees at 16 franchise-owned restaurants in central and north-eastern Florida. Respondent has employment policies that prohibit discrimination on the basis of race and disability. It also has policies that provide for reasonable accommodation of employees with disabilities. Respondent's policies inform employees about the procedure to be followed in reporting perceived race or disability discrimination. The policies prohibit retaliation against employees who report perceived discrimination. Petitioner is an African-American female. Respondent employed her as a cashier in its Belleview, Florida, location from July 14, 2008, to April 5, 2009. At the beginning of her employment, Petitioner was aware of Respondent's policies relative to discrimination. Respondent provided her with a copy of its Team Member Handbook containing the policies. Petitioner's duties included working as a cashier in both the drive-thru and at the front counter. She also was responsible for stocking all takeout areas and completing side work. Initially, Petitioner's job required her to perform deck scrubbing. However, when Petitioner notified her manager that deck scrubbing made it difficult for her to breathe, she no longer had to perform that task. Petitioner never complained that she continued to have breathing difficulties even when others were performing deck scrubbing. Respondent accommodated Petitioner's alleged breathing problem even though Petitioner never provided Respondent with requested medical documentation indicating that she had asthma or any other respiratory difficulties. There is no competent evidence to show that Petitioner is disabled. In the Fall of 2008, Respondent demoted the general manager at the restaurant where Petitioner worked. The demotion was based on poor performance, including not enforcing company policies and failing to hold employees accountable for compliance with company policies and performance standards. Respondent directed the new management team to enforce company policies and to issue discipline when appropriate. The directive was communicated to the restaurant's employees. After the change in management, Petitioner received numerous disciplinary write-ups. The write-ups included the following: (a) violation of Respondent's policy against use of cell phones during working hours; (b) violation of Respondent's policy against smoking on the premises and/or parking lot while in uniform during working hours; (c) violation of Respondent's attendance policy, requiring employees to arrive at work on time and to attend mandatory meetings unless excused; (d) violation of Respondent's cash-handling policy, resulting in cash overages and shortages; and (d) violation of Respondent's work performance standards by failing to stock supplies and complete other side work duties. Non-black employees received written discipline for the same violations as Petitioner. At least one white employee was terminated for violating the cell phone usage policy. Prior to February 2009, Petitioner worked an average of 25 hours per week. The fewest number of weekly hours worked by Petitioner after February 2009 was 19 hours. Petitioner worked 19 hours for only two weeks. Petitioner asserts that she was not allowed to "pick up" extra shifts when another cashier went on vacation for five days. Scheduling requests had to be submitted by Tuesday for the next week's schedule. Petitioner failed to timely request any of the extra available shifts. Instead, she approached the scheduling manager after the schedule was already completed. Despite the lateness of her request, the scheduling manager revised the schedule to assign Petitioner one extra shift. Beginning in January 2009, Respondent's schedules were created and posted on-line through a computer program called Hot Schedules. At all times relevant here, the schedule was posted late only three times. The late posting affected all employees, not just Petitioner. Petitioner asserts that she was assigned to work the drive-thru more than white employees. This assertion is without merit as shown by the following statistics. Petitioner worked 59 shifts between January 1, 2009, and her resignation on April 5, 2009. Respondent assigned Petitioner to work in the drive-thru on 23 of those shifts, approximately 39 percent of the total shifts. Petitioner worked at the front counter for the remainder of her shifts, approximately 61 percent of the total shifts. Two white cashiers, Brittany Knaul and Sarah Liles, worked a comparable number of shifts between January 1, 2009, and April 5, 2009. During that time, Ms. Knaul worked 54 shifts, with 25 shifts or 46 percent assigned to the drive-thru. Of the 86 shifts worked by Ms. Liles, 33 shifts or 38 percent were in the drive-thru. On the other hand, Beatrice McKoy, a black cashier, worked almost exclusively at the front counter between January 1, 2009, and April 5, 2009. Petitioner sought out and spoke with Respondent's Director of Operations, Josh McCall, on several occasions during her employment. The conversations involved her requested accommodation and complaints about the disciplinary write-ups. Petitioner never reported any perceived race discrimination. On one occasion, Mr. McCall asked Petitioner if she believed she was being discriminated against based on her race. Petitioner denied that she was being treated differently from non-black employees. Petitioner submitted a letter of voluntary resignation on March 30, 2009. Her last day at work was April 5, 2009. Petitioner asserts that she was constructively discharged. However, Petitioner failed to notify Respondent of the alleged discrimination until she spoke with Respondent's Area Manager on April 6, 2009, after her resignation and last day at work. Shortly after her last day at work for Respondent, Petitioner voluntarily resigned her other job with Internet Access. Petitioner resigned that job due to a dispute with her manager. Petitioner obtained subsequent employment which ended when that company closed in June 2009. Petitioner remained unemployed until February 2010. The only employment she held in the intervening six months was occasional work assisting her sister, who is a home health aide.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 13th day of August, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2010. COPIES FURNISHED: Joanne B. Lambert, Esquire Jessica A. DeBono, Esquire Jackson Lewis LLP 390 North Orange Avenue, Suite 1285 Post Office Box 3389 Orlando, Florida 32802-3389 Dorine Alexander 307 Marion Oaks Course Ocala, Florida 34473 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues are whether Respondent committed discriminatory employment practices against Petitioner in violation of Chapter 70 of the Pinellas County Code as alleged in the Complaint, and if so, what is the appropriate remedy.
Findings Of Fact Parties Petitioner is a 44-year-old African-American male. FMS is a package delivery company that does business in Pinellas County. According to Petitioner, FMS has more than 100 employees. FMS was provided due notice of the date, time, and location of the final hearing in this case, but no appearance was made on its behalf. Petitioner’s Job Duties and Salary at FMS Petitioner started working for FMS in late 1999 or early 2000 as a “driver.” Petitioner’s primary job responsibility was to drive a delivery truck along a designated route to deliver and pick up packages. Petitioner was also responsible for loading the to- be-delivered packages on his truck in the morning and then unloading any picked-up packages from his truck in the evening. Petitioner worked Monday through Friday. His shift started at 7:00 a.m. each day. Petitioner’s gross pay was initially $650 every two weeks, but at some point Petitioner's salary was increased to $750 every two weeks.1 Petitioner did not receive health or dental insurance or other benefits. Failure to Switch Trucks as Directed (Complaint, Count III) Chronologically, the first event alleged in the Complaint as a basis of Petitioner’s discrimination claim started on the morning of Friday, February 8, 2002, when Petitioner’s boss, Tom Aliotti, directed Petitioner to switch trucks with another driver named Eddie. Later that day, Mr. Aliotti told Petitioner that he would switch the trucks over the weekend. As a result, Petitioner and Eddie did not switch the trucks on Friday. The trucks were not switched over the weekend, and on the morning of Monday, February 11, 2002, Mr. Aliotti again directed Petitioner to switch trucks with Eddie. Petitioner did not switch the trucks on Monday morning as directed by Mr. Aliotti because he was too busy preparing to run his delivery route. Petitioner testified that Eddie was equally responsible for the trucks not getting switched because he could not switch trucks with Eddie without Eddie’s participation; however, it is unclear from Petitioner’s testimony what specifically Eddie did or did not do in regard to switching the trucks. After Petitioner failed to switch the trucks on Monday as directed, he was given a written reprimand for insubordination by Mr. Aliotti. The written reprimand, which is referred to as a Counseling Sheet (see Exhibit P4), stated: “[Petitioner] will switch trucks tonite [sic] 2/11/02 or [he] will not be working 2/12/02. Day off without pay.” Petitioner testified that he did not switch the trucks even after the directive on the Counseling Sheet. It is unclear from Petitioner’s testimony whether he was suspended without pay on February 12, 2002. According to Petitioner, Eddie was not reprimanded for the incident. It is unclear from Petitioner’s testimony whether a reprimand was appropriate for Eddie because it is unknown whether Mr. Aliotti also told Eddie to switch the trucks and, as stated above, it is unclear from Petitioner’s testimony what specifically Eddie did or did not do to frustrate the truck switching. Eddie, like Petitioner, is an African-American male. Attendance Issues in March 2002 (Complaint, Counts I and II) The other allegations of discrimination in the Complaint relate to discipline imposed on Petitioner for his unexcused absences from work on several occasions in March 2002. Petitioner submitted a written request for a half-day of leave on Friday, March 1, 2002, in which he stated that he needed to “go out of town to attend a funeral” because of a “death in [his] family.” See Exhibit P1, at page 3. That request was approved, and Petitioner was expected to be back at work on Monday, March 4, 2002. Petitioner attended the funeral of his brother in Largo, Florida, on Saturday, March 2, 2002. Later that same day, he traveled to Madison, Florida, to attend funeral services for his uncle. See Exhibits P2 and P3. For reasons that are unclear in the record, Petitioner did not return to work on Monday, March 4, 2002, as he was expected to do. If a driver was going to be unexpectedly absent from work, he or she was required to let the boss know before 7:00 a.m. so that a substitute or “on-call” driver could be contacted to take over the absent driver’s route. Getting another driver to take over the absent driver's route was important to FMS because some of the packages that the company delivers have to get to the customer by 10:30 a.m. Petitioner understood the importance of this requirement. According to Petitioner, he tried to call his boss before 7:00 a.m. on Monday to let him know that he would not be coming into work, but he was not able to reach his boss until several hours after 7:00 a.m. Petitioner did not produce any credible evidence to corroborate his testimony that he attempted to call his boss prior to 7:00 a.m. on Monday, and the documents introduced by Petitioner include conflicting statements as to whether Petitioner ever called on that date.2 Nevertheless, Petitioner’s testimony on this issue is accepted. When Petitioner returned to work on Tuesday, March 5, 2002, he was suspended for the day and, according to Petitioner, his delivery route was taken away. The Warning Letter that was received into evidence (Exhibit P1, at page 1) references the suspension, but not Petitioner’s route being taken away. According to Petitioner, his delivery route was given to a white female, whose identity Petitioner did not know. Thereafter, Petitioner was given menial tasks such as sweeping the floor and taking out the trash, although he also helped load packages onto the delivery trucks in the morning. Petitioner submitted a written request for leave on March 19 and 20, 2002, because he planned to be in Kentucky on those dates. Petitioner stated in the request that “I will be back to work on the [sic] 3-21.” See Exhibit P1, at page 2. The leave requested by Petitioner was approved, and he was expected to be back at work on March 21, 2002. Petitioner got a “late start” on his drive back from Kentucky, which caused him to miss work on March 21, 2002. According to Petitioner, he used his cellular phone to call his boss before 7:00 a.m. on March 21, 2002, to let him know that he would not be coming into work, but he was not able to reach his boss until 7:30 a.m. Petitioner did not present any credible evidence, such as his cellular phone records, to corroborate his claim that he attempted to call prior to 7:00 a.m. Petitioner’s testimony on this issue was not persuasive. The record does not reflect what, if any, discipline Petitioner received for not calling prior to the start of his shift to report that he would not be coming into work on March 21, 2002. Petitioner’s pay was not reduced at any point during his employment with FMS even though, according to Petitioner, his primary job duties were changed from driving a delivery truck to sweeping the floors and taking out the trash. Petitioner continued to work at FMS until April or May 2002 when he was injured on the job while lifting a box. Petitioner’s Post-FMS Activities and Employment After his injury, Petitioner could not and did not work for approximately one year. During that period, Petitioner collected workers' compensation at the rate of $500 every two weeks.3 Approximately one year after his injury, Petitioner’s doctor allowed him to return to work on “light duty.” Thereafter, in April or May 2003, Petitioner tried to return to work with FMS but, according to Petitioner, he was told that there were no available “light duty” positions. That effectively ended Petitioner’s employment relationship with FMS. The Complaint does not allege that FMS’s failure to re-hire Petitioner was a discriminatory employment practice, nor is there any credible evidence in the record that would support such a claim. From April/May 2003 to approximately March 2004, Petitioner held only one job. He worked for approximately one week cleaning floors at a nursing home, but he left that position because of his back problems. After leaving the floor cleaning job, Petitioner did not actively look for other employment. He briefly attended a training class to become a security guard, but he did not complete the class after learning that he would not be able to be licensed as a security guard “because of his prior record.” In approximately March 2004, Petitioner was hired by a former acquaintance to work as a driver for a mortgage company. In that position, Petitioner is paid $11 per hour and he typically works 40 hours per week, which equates to gross pay of $880 every two weeks. As of the date of the hearing, Petitioner was still employed by the mortgage company. Lack of Evidence Regarding Similarly Situated Employees Petitioner presented no credible evidence regarding any “similarly situated” employees, i.e., employees who engaged in conduct that was the same as or similar to that for which Petitioner was disciplined.4 Although Petitioner testified that he “had heard” of situations where other employees had “put a manager off,” rather than immediately doing what the manager told them to do, he was not able to offer any specific examples of such insubordination. Petitioner also presented no credible evidence regarding how other employees (of any race) were disciplined for conduct that was the same as or similar to that for which Petitioner was disciplined.5
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board issue a final order dismissing Petitioner’s Complaint against FMS. DONE AND ENTERED this 27th day of October, 2004, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2004.
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 by Petitioner in her Employment Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR") on May 3, 2016; and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the record as a whole and the evidence presented, the undersigned makes the following findings of material and relevant facts: Petitioner started her employment in July 2002 with Events by Premier. The company provides exclusive catering services for the Jewish Center in Aventura, Florida.3/ Petitioner's employment in 2002 followed her marriage to Michael Pollak, a co-owner of Events by Premier. Petitioner became a full-time employee in 2013 and was assigned to the position of kitchen manager. At that point, her husband was the chef and supervised her work in the kitchen. Their work relationship continued in this manner until she was terminated from employment in late July 2015. Petitioner's performance was satisfactory, and there was no evidence to suggest that she was unable to adequately perform her duties as kitchen manager. The evidence was largely undisputed that the position of kitchen manager was created specifically to accommodate Petitioner and her husband, a co-owner of the business. There had been no prior kitchen manager positions at Events by Premier, and the title and position were not needed to operate the business. Another owner of Events by Premier, and its president, was Steven Pollak. He is the brother of Michael Pollak and was Petitioner's brother-in-law. During the weeks leading up to her termination in July 2015, her relationship with her husband, Michael Pollak, became openly strained and tense due to marital problems. Steven Pollak described the work environment between Petitioner and her husband as not a good one, and it created, as he described, a "toxic" work environment. There was screaming, hollering, and profanity exchanged between Petitioner and her husband at work. It was decided that Petitioner needed to be terminated for the best interests of the company and also due to the unprofitability of the company in the first half of 2015.4/ As a result of the poor working environment existing between Petitioner and her husband, and Respondent's unprofitable performance in the first half of the year 2015, Steven Pollak informed Petitioner on July 26, 2015, that he was letting her go.5/ After she was fired, Petitioner filed a Complaint with FCHR. The basis of her Complaint was that she was terminated because of her "marital status." At the hearing, Petitioner explained her opinion regarding the basis for her termination. She felt that her termination occurred because the company feared that she knew things about the company, including improper unemployment claims and other financial information.6/ It was clear to the undersigned that Petitioner had serious emotional and relational issues with her husband that made it difficult, if not impossible, for her to work harmoniously with him. She testified at the hearing and characterized her relationship with her husband after her termination as "out of control." Based upon the evidence presented and the record as a whole, Petitioner was not terminated because of her "marital status." Rather, the evidence demonstrated that there were legitimate and non-discriminatory business reasons for terminating Petitioner. Similarly, her termination was based upon the hostile relationship which existed between Petitioner and her husband, Michael Pollak, in the weeks and months leading up to her filing a petition for divorce--not because of her marital status (e.g., not because she was married, separated, or divorced).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief and find in Respondent's favor. DONE AND ENTERED this 4th day of May, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 4th day of May, 2017.
