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 issues are whether Petitioner received notice of the August 19, 2005, administrative hearing, and if not, whether Respondent discriminated against Petitioner based on his race.
Findings Of Fact Petitioner is an African-American male. In the fall of 2004, Petitioner's cousin, Barry Walker, worked for Respondent as a cook. Mr. Walker recommended that Respondent hire Petitioner as a dishwasher. James Pigneri, Respondent's owner, interviewed Petitioner and decided to hire him as a dishwasher on a trial basis. Petitioner began washing dishes for Respondent in September 2004. In October 2004, Petitioner began a 90-day probationary period as Respondent's dishwasher. At that time, PMI Employee Leasing (PMI) became Petitioner's co-employer. PMI has a contractual relationship with Respondent. Through this contract, PMI assumes responsibility for Respondent's human resource issues, payroll needs, employee benefits, and workers’ compensation coverage. On October 10, 2004, Petitioner signed an acknowledgement that he had received a copy of PMI's employee handbook, which included PMI's policies on discrimination, harassment, or other civil rights violations. The handbook states that employees must immediately notify PMI for certain workplace claims, including but not limited to, claims involving release from work, labor relation problems, and discrimination. The handbook requires employees to inform PMI within 48 hours if employment ceases for any reason. PMI's discrimination and harassment policies provide employees with a toll-free telephone number. When an employee makes a complaint or files a grievance, PMI performs an investigation and takes any corrective action that is required. The cook-line in Respondent's kitchen consist of work stations for all sauté and grill cooks. The cook-line runs parallel to a row of glass windows between the kitchen and the dining room and around the corner between the kitchen and the outside deck. Customers in the dining room and on the deck can see all of the cooks preparing food at the work stations along the cook-line. On the evening of December 18, 2004, Respondent's business was crowded with customers in the dining room and on the deck. On December 18, 2004, Petitioner was working in Respondent's kitchen. Sometime during the dinner shift, Petitioner was standing on the cook-line near the windows, talking to a cook named Bob. Petitioner was discussing a scar on his body. During the discussion, Petitioner raised his shirt, exposing his chest, arm, and armpit. The cook named Bob told Petitioner to put his shirt down. Erin Pigneri, a white male, is the son of Respondent's owner, James Pignari. As one of Respondent's certified food managers, Erin Pigneri must be vigilant about compliance with health code regulations when he works as Respondent's shift manager. Erin Pigneri has authority to recommend that employees be fired, but his father, James Pigneri, makes the final employment decision. On December 18, 2004, Erin Pigneri, was working as Respondent's manager and was in charge of the restaurant because his father was not working that night. When Erin Pigneri saw Petitioner with his shirt raised up, he yelled out for Petitioner put his shirt back on and to get off the cook-line. Erin Pigneri was alarmed to see Petitioner with his shirt off on the cook-line because customers could see Petitioner and because Petitioner's action violated the health code. Petitioner's reaction was immediately insubordinate. Petitioner told Erin Pigneri that he could not speak to Petitioner in that tone of voice. Erin Pigneri had to tell Petitioner several times to put his shirt on, explaining that Petitioner was committing a major health-code violation. When Petitioner walked up to Erin Pigneri, the two men began to confront each other using profanity but no racial slurs. Erin Pigneri finally told Petitioner that, "I'm a 35- year-old man and no 19-year-old punk is going to talk to me in that manner and if you don't like it, you can leave." Erin Pigneri did not use a racial slur or tell Petitioner to "paint yourself white." After the confrontation, Erin Pigneri left the kitchen. Petitioner went back to work, completing his shift without further incident. Petitioner did not have further conversation with Erin Pigneri on the evening of December 18, 2004. Erin Pigneri did not discuss Petitioner or the shirt incident with any of the waiters or any other staff members that night. On Monday evening, December 20, 2004, Erin Pigneri was in the restaurant when Petitioner and his cousin, Mr. Walker, came to work. Petitioner was dressed in nicer clothes than he usually wore to work. Mr. Walker approached Erin and James Pigneri, telling them that they needed to have a meeting. Erin and James Pigneri followed Petitioner and Mr. Walker into the kitchen. The conversation began with Mr. Walker complaining that he understood some racist things were going on at the restaurant. Mr. Walker wanted talk about Erin Pigneri's alleged use of the "N" word. Erin Pigneri did not understand Mr. Walker's concern because Mr. Walker had been at work on the cook-line during the December 18, 2004, shirt incident. According to Petitioner's testimony at the hearing, Mr. Walker had talked to a waiter over the weekend. The waiter was Mr. Walker's girlfriend. Petitioner testified that the waiter/girlfriend told Mr. Walker that she heard Erin Pigneri use the "N" word in reference to Petitioner after Erin Pigneri left the kitchen after the shirt incident on December 18, 2004. Petitioner testified that neither he nor Mr. Walker had first- hand knowledge of Erin Pigneri's alleged use the "N" word in the dining room. Neither Mr. Walker nor the waiter provided testimony at the hearing. Accordingly, this hearsay evidence is not competent evidence that Erin Pigneri used a racial slur in the dining room after the "shirt incident." During the meeting on December 20, 2004, Erin Pigneri explained to Petitioner and Mr. Walker that the incident on December 18, 2004, involved Petitioner's insubordination and not racism. Mr. Walker wanted to know why Erin Pigneri had not fired Petitioner on Saturday night if he had been insubordinate. Erin Pigneri told Mr. Walker that he would have fired Petitioner but he did not want Respondent to lose Mr. Walker as an employee. Apparently, it is relatively easy to replace a dishwasher but not easy to replace a cook like Mr. Walker. Erin Pigneri asked Mr. Walker and another African- American who worked in the kitchen whether they had ever heard him make derogatory racial slurs. There is no persuasive evidence that Erin Pigneri ever made such comments even though Petitioner occasionally, and in a joking manner, called Erin Pigneri slang names like Cracker, Dago, and Guinea. Petitioner was present when Mr. Walker and Erin Pigneri discussed the alleged racial slurs. Petitioner's only contribution to the conversation was to repeatedly ask whether he was fired. Erin Pigneri never told Petitioner he was fired. After hearing Mr. Walker's concern and Erin Pigneri's explanation, James Pigneri specifically told Petitioner that he was not fired. James Pigneri told Petitioner that he needed to talk to Erin Pigneri and that they needed to work things out, man-to-man. After the meeting, Mr. Walker began his work for the evening shift on December 20, 2004. Petitioner walked around talking on his cell phone, telling his mother that he had been fired and she needed to pick him up. James Pigneri told Petitioner again that he was not fired, that Petitioner should go talk to Erin Pigneri, and that Erin Pigneri was waiting to talk to Petitioner. Erin Pigneri waited in his office for Petitioner to come in to see him. Petitioner never took advantage of that opportunity. During the hearing, Petitioner testified that James Pigneri made an alleged racial slur in reference to Petitioner at some unidentified point in time. According to Petitioner, he learned about the alleged racial slur second-hand from a cook named Bob. Bob did not testify at the hearing; therefore, there is no competent evidence that James Pigneri ever made a racial slur in reference to Petitioner or any other employee. Contrary to PMI's reporting procedures, Petitioner never called or informed PMI that he had been harassed, discriminated against, fired, terminated, or ceased working for Respondent for any reason. On December 22, 2004, PMI correctly concluded that Petitioner had voluntarily terminated or abandoned his employment. When Petitioner filed his Employment Complaint of Discrimination on January 11, 2005, Petitioner listed his address as 6526 Lance Street, Panama City, Florida, which is his mother's residence. On April 18, 2005, FCHR sent the Determination: No Cause to Petitioner at 6501 Pridgen Street, Panama City, Florida, which is the address of one of Petitioner's friends. When Petitioner filed his Petition for Relief on May 25, 2005, Petitioner listed his address the same as his mother's home. FCHR transmitted the petition to the Division of Administrative Hearings, indicating that Petitioner's address of record was the same as his friend's home. Therefore, the June 9, 2005, Notice of Hearing, and the July 12, 2005, Order Granting Continuance and Re-scheduling Hearing were sent to Petitioner at his friend's address. During the hearing, Petitioner admitted that between January 2005 and August 2005, he lived back and forth between his mother's and his friend's residences. When he lived with his friend, Petitioner did not check his mail at his mother's home every day. However, Petitioner admitted that he received the June 9, 2005, Notice of Hearing, scheduling the hearing for July 18, 2005, and the July 12, 2005, Order Granting Continuance and Re-scheduling Hearing for August 19, 2005. Petitioner testified that he knew the first hearing was rescheduled to take place on August 19, 2005. According to Petitioner, he misplaced the "papers" identifying the location of the hearing at the Office of the Judges of Compensation Claims in Panama City, Florida. Petitioner asserts that he went to the county courthouse on August 19, 2005, based on his erroneous belief that the hearing was to take place at that location. After determining that there was no administrative hearing scheduled at the county courthouse on August 19, 2005, Petitioner did not attempt to call FCHR or the Division of Administrative Hearings. On December 1, 2005, the undersigned sent Petitioner a Notice of Hearing, scheduling the hearing after remand for January 25, 2005. The December 1, 2005, Notice of Hearing was sent to Petitioner at his mother's and his friend's addresses. The copy of the notice sent to his friend's home was returned as undeliverable. During the hearing on January 25, 2005, Petitioner testified that he used one of the earlier notices (dated June 9, 2005, and/or July 12, 2005) to locate the hearing site for that day. This was necessary because Petitioner had misplaced the December 1, 2005, Notice of Hearing. All three notices have listed the hearing site as the Office of the Judges of Compensation Claims, 2401 State Avenue, Panama City, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 23rd day of March, 2006, 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 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 March, 2006. COPIES FURNISHED: 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 Gary R. Wheeler, Esquire McConnaughhay, Duffy, Coonrod Pope & Weaver, P.A. Post Office Box 550770 Jacksonville, Florida 32255-0770 Marlow Williams 6526 Lance Street Panama City, Florida 32404
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, the appropriate relief for such action.
Findings Of Fact For purposes of this case, the Petitioner began his employment with the Respondent in July of 2007. Although the Petitioner had worked for the Respondent in prior years (at another location), he had voluntarily left the company to pursue other opportunities. When the Petitioner returned to employment with the Respondent in connection with this case, it was ten years after a heart transplant. At the time of hiring, the Respondent knew the Petitioner's medical condition and age. The Petitioner is approximately 61 years of age. The Respondent is a national corporation with several sites for engineering and manufacture of its products. The Respondent is an equal opportunity employer and maintains policies prohibiting unlawful discrimination. One of the Respondent's facilities, Sykes Creek, is located in Brevard County, Florida. The Petitioner was hired to work at the Sykes Creek facility in the role of engineering supervisor. The Sykes Creek site builds luxury power yachts ranging from 50–to-60 feet in length. The price of these yachts runs from approximately $900,000 to $2,000,000 each. Typically, the yacht is ordered and customized to the buyer's specification. The Petitioner was responsible for supervising and directing work at Sykes Creek and reported to Kevin Shaw, his immediate supervisor. Mr. Shaw in turn reported to the plant manager, Steven Fielder. The Petitioner reviewed the work and attendance of approximately 21 hourly employees. When the Petitioner was hired (2007), the Sykes Creek facility produced 116 yachts and employed approximately 575 people. Within the Petitioner's department (engineering) there were 26 people; four others like Petitioner were salaried employees. The economic crunch that struck most of the nation drastically reduced the Respondent's business. In 2008 the Respondent instituted unpaid furloughs and layoffs due to the lack of business. By 2009 the economic condition in the industry had not improved. Accordingly, the Respondent had to make additional cuts to its staff. To that end, Mr. Fielder advised Mr. Shaw that the Petitioner's department would have to be cut to reduce the number of hourly employees and one salaried employee. To determine who should be cut, the Respondent looked to the number of years of service with the company and the skill set/education they provided for the facility. The Petitioner had the shortest length of service with the Respondent except for an employee named Julie Halesma. That person was not chosen for lay-off because she was a credentialed industrial engineer. The Petitioner did not have those credentials. The Petitioner was not offered a lower, hourly paid position because he did not have the skill set to perform the work as well as the hourly employees who were already doing the jobs. A number of employees were laid off the same day the Petitioner was dismissed. The Petitioner's job position was eliminated and has not, as of the date of hearing, been restored. The Respondent has continued to lay off workers. In 2009 the Sykes Creek facility was down to 175 employees. The engineering department was down to 15 people. Absent a return to more prosperous times, it is not expected that the facility will be able to rehire employees. The job tasks that the Petitioner performed are now shared by other employees at the facility. Throughout his time at the Sykes Creek facility, the Petitioner was allowed to take time off as needed to attend to medical issues. Based upon the frequency of the medical leave, the Respondent knew or should have known that the Petitioner's medical condition required monthly treatment. The extent of the medical treatment, however, was unknown to the Respondent. As a salaried employee the Petitioner did not have to "punch the clock." The Respondent allowed the Petitioner to complete his work as he might dictate so that he was free to leave the facility to attend to his medical needs. Clearly, the Respondent knew the Petitioner had had the heart transplant at the time of hiring but that medical condition did not impede the Petitioner's ability to perform his job assignments. The medical situation required that he be absent, but there is no indication that Petitioner could not perform his job. The cost of the Petitioner's medical care was unknown to the persons charged with making the lay-off decisions. The cost of the Petitioner's medical care played no part in the decision to eliminate the Petitioner's job. Similarly, the Petitioner's age did not play a part of the Respondent's decision to eliminate the Petitioner's job. The Respondent articulated legitimate business reasons for eliminating the Petitioner's job position. Clearly the Respondent knew of the Petitioner's age at the time of hiring. The Respondent did not replace the Petitioner with a younger employee. The Respondent's explanation for whom it chose to retain in employment was not based upon an employee's age but rather legitimate business interests. Episodes during which the Petitioner required medical attention at the facility did not rise to a level to cause the Respondent to be concerned for Petitioner's medical well-being. Incidents of the Petitioner being light headed or with low blood sugar did not cause the Respondent to seek to eliminate the Petitioner's job position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of March, 2009, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2009. COPIES FURNISHED: Rolf J. Bierman 1035 Palmer Road Rockledge, Florida 32955 Brian W. Koji, Esquire Bona M. Kim, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 225 Tampa, Florida 33606 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner.
Findings Of Fact Petitioner is an African-American female who was employed by Respondent from October 16, 2000, until her termination on January 4, 2011. When she began her employment with Respondent, she was hired as a Food Service Specialist. Respondent, MRMC-Munroe Regional Health Systems, Inc. (Munroe or Respondent), is an employer within the meaning of the Florida Civil Rights Act. Munroe is a not-for-profit hospital located in Ocala, Florida, and comprises numerous departments, including the Nutritional Services Department. Petitioner worked for this department the entirety of her employment with Respondent. On or about October 23, 2000, Petitioner received a copy of Munroe's Employee handbook. The Employee Handbook includes an Equal Opportunity policy, an anti-harassment policy, a complaint procedure, and an open door policy. Petitioner was aware from the beginning of her employment that Respondent had written policies prohibiting unlawful discrimination and that there were procedures in place to report work-related problems, in particular unlawful discrimination. Petitioner acknowledged in October 2000, that she received copies of these policies. She also signed an acknowledgment that she was an "at-will" employee, meaning that either the employee or Munroe has the right to terminate the employment relationship at any time with or without notice or reason. As early as 2000, Petitioner was aware that one way to report unlawful discrimination was to contact the Human Resources Department. In early 2004, Petitioner sought a promotion to the position of Team Leader. Melinda Monteith was one of Petitioner's immediate supervisors at that time. Ms. Monteith recommended Petitioner for the promotion to Team Leader. Petitioner was promoted to the position of Team Leader in February 2004, and received a pay raise commensurate with that position. Ms. Monteith continued to be Petitioner's immediate supervisor until January 4, 2011, when Petitioner was discharged. Petitioner received pay increases every year from 2004 through 2010. Petitioner's former husband, Michael Pearson, believes that Petitioner's supervisor is racist because he claims she once called him a "thug" and saw her look at another black male "like she don't like black folks."1/ Mr. Pearson has never worked for Respondent and bases his personal belief that Petitioner's supervisor is racist on interactions he had with Petitioner's supervisor(s) at holiday parties. On February 6, 2009, Petitioner was disciplined in the form of a written Counseling Agreement for conduct which Respondent considered "workplace bullying." Petitioner, along with other team leaders, was asked to learn to use a computer system referred to as the C-Board System, in order to fill in when necessary for employees whose assigned duties were to use that system to correctly prepare patient meals. Petitioner was never able to operate the C-Board system. She was never disciplined by Respondent for her inability to use the C-Board system. During the time that Petitioner held the position of Team Leader, some employees complained to Ms. Monteith about the way Petitioner interacted with them. On December 20, 2010, Stephanie Smith, another Team Leader, told Ms. Monteith that Petitioner was not speaking to people and being very "sharp" with them. The next morning, Ms. Monteith asked to speak with Petitioner about what Ms. Smith had told her about Petitioner's behavior the previous day. When Petitioner responded curtly, "Is it business?," Ms. Monteith decided to speak with her later. Later that morning, Ms. Monteith was approached by Pam Knight, one of Petitioner's subordinates, who was in tears regarding Petitioner's behavior and the resulting tense atmosphere. Ms. Knight was particularly concerned with the way Petitioner was treating Ms. Smith. Ms. Monteith and Clinical Nutrition Manager Betsy DeMatto met with Ms. Knight and confirmed what Ms. Knight had told Ms. Monteith earlier regarding Petitioner's behavior: that Petitioner was not speaking to Ms. Knight or Ms. Smith at all, and that she was not responding to work-related questions. Ms. Monteith and Ms. DeMatto decided that Petitioner should be counseled in writing for her unprofessional behavior toward coworkers. On December 21, 2010, Petitioner was disciplined, again in the form of a written Counseling Agreement, for "behaving in an unprofessional manner [which] creates an environment of tension and discomfort." When presented with the counseling agreement, Petitioner became very angry, remarked that everything she was accused of were lies, and refused to sign the counseling agreement. Later that day, Ms. Monteith was approached by Ms. Smith who was "very pale" and who advised that Petitioner spoke with her (Ms. Smith) following the counseling meeting, and appeared to be angry. Ms. Smith informed Ms. Monteith that Petitioner stated that she was "going postal" and that if she was "going out" she was taking Ms. Monteith with her. Ms. Monteith believed what Ms. Smith told her, and relayed it to Ms. DeMatto. Ms. Monteith and Ms. DeMatto decided to report this to Human Resources (HR) Manager Vicky Nelson. Ms. Nelson has been employed by Respondent for 33 years, five of which as HR Manager. In her capacity as HR Manager, Ms. Nelson has conducted approximately 300 investigations into workplace issues, including allegations of unlawful discrimination, harassment, threatening behavior, workplace violence, and bullying. These investigations included reviewing applicable policies and procedures, referring to any prior events of a similar nature, interviewing the complaining employee and the individual against whom the complaint has been made, and reviewing the personnel files of the individual making the complaint and the individual who is accused of inappropriate behavior. In some cases, a decision is made to remove the accused from the workplace during the pendency of the investigation. Ms. Nelson interviewed Ms. Monteith and Ms. DeMatto in her office. She observed that Ms. Monteith appeared to be "visibly shaken." On the afternoon of December 21, 2010, Petitioner was called into the office of Ms. Nelson to discuss the allegations that Petitioner made this threatening comment regarding Ms. Monteith. During the December 21, 2012, meeting, Petitioner initially denied making the statement about going postal and taking Ms. Monteith with her. She later admitted that she used the word "postal," but was just joking and was not serious. At hearing, Petitioner acknowledged that she used the word "postal," but in the context that they had her in the office "trying to make me postal" and reiterated that she was just kidding in using that word. Petitioner believes that she was being accused of acting "crazy." While there is some dispute as to the context of Petitioner's use of the word "postal," it is not disputed that she did use the word "postal" in the workplace, and that employees of Respondent were extremely concerned because of it. At the conclusion of the December 21, 2010, meeting, Ms. Nelson told Petitioner not to return to work until after she (Ms. Nelson) had finished the investigation if this matter. Ms. Nelson also asked Petitioner to submit a written statement setting forth her position as to the events of December 21, 2010. Petitioner did not submit a written statement at that time, but said she would do so later. On December 22, 2010, Ms. Nelson interviewed Ms. Smith and Ms. Knight, each of whom confirmed what Ms. Monteith previously told Ms. Nelson. Based on the information available to her, Ms. Nelson determined that Petitioner's employment should be terminated. Whether or not Petitioner was just joking when she used the word "postal," it was taken seriously by her employer. Ms. Nelson based the termination decision on Petitioner's use of the word "postal" and considered it inflammatory in nature. She based her decision in part on the comment itself; the credibility of Ms. Smith, Ms. Knight, Ms. DeMatto, and Ms. Monteith; her personal observations of Petitioner's behavior and demeanor in the December 21, 2010, meeting; and the context in which the comment was made, i.e., the information she received regarding Petitioner's interaction with co-workers on December 20 and 21, and her angry reaction to being presented with the counseling agreement on December 20. Ms. Nelson contacted Petitioner on January 3, 2011, and asked to meet with her the following day. On January 4, 2011, Ms. Nelson informed Petitioner of the results of her investigation and of the decision to terminate her employment, effective that day. At the January 4, 2011, meeting, Ms. Nelson again asked Petitioner for a written statement. Petitioner did not give one to her. On January 13, 2012, Petitioner filed a written request, pursuant to Respondent's Conflict Management Program, for peer review of the circumstances surrounding her termination from Munroe. The Panel Review Request Form lists several factors for the employee making the request to "check off" as to the nature of the dispute. Petitioner checked the boxes for "race" and for "retaliation, but did not check the box for "disability." At no time during the December 21 meeting with Ms. Nelson or the time between that meeting and the January 4, 2011, meeting, did Petitioner advise Ms. Nelson that she believed that she was being discriminated against on the basis of race, color, or disability. On February 23, 2011, the Peer Review Panel recommended that Petitioner's termination be upheld and that she not be eligible for rehire.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Employment Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 11th day of December, 2012, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2012.
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 is guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: This discrimination case involves an allegation by petitioner, David Coleman, that he was denied employment by respondent, City of Jacksonville (City), because of his handicap. The City denies this allegation. A preliminary investigation by the Commission on Human Relations (Commission) found no probable cause that an unlawful employment practice had occurred. By way of background, petitioner has been employed by the City on four separate occasions, the last time as an employee in the mosquito control department in 1984. He was "released" the same year for "unacceptable leave." Since 1990, he has applied for at least twenty separate positions with the City. In conjunction with those and earlier efforts to obtain a job with the City, he has filed several job applications, including one in December 1987 and another in June 1992. Such applications are valid for a period of two years after they are signed and filed with the City. Therefore, if petitioner applied for a position with the City in March 1991, he did not have a valid job application on file. The petition for relief filed by Coleman describes the unlawful employment practice allegedly committed by the City as follows: unlawful hired or employment practice: with veteran preference that I have, and a handicap, which is alleged. The petition for relief does not describe the handicap. At hearing, however, petitioner contended he suffers from paranoia schizophrenia. Petitioner says that he applied for a job as a "traffic checker" with the City's engineering department in March 1991. City records reveal, however, that it has no such position called "traffic checker," and thus it hired no one for that job in 1991. It does have a position called "parking enforcement specialist," but since no description of the functions of that job is of record, it is unknown if the two positions are the same. Even so, City records do not show that petitioner made application for that position in March 1991. Notwithstanding this shortcoming, petitioner says that he interviewed for the position with an unidentified "supervisor," and he was told to prepare a resume, which he later gave to the interviewer's secretary. Thereafter, he made inquiry with the City's affirmative action office and learned that a veteran, not disabled, had been hired to fill the slot. Petitioner then brought this action charging the City with an unlawful employment practice. It is noted he has subsequently filed a second discrimination claim pertaining to another job application with the City. At hearing, petitioner contended that he suffers from paranoia schizophrenia. Other than his own assertion, however, no evidence was produced to confirm this disability, and as to this issue it is found that insufficient credible evidence exists to support a finding in petitioner's favor. The City admits that in one of petitioner's job applications filed with the City, petitioner attached a copy of a DD214 form reflecting that he was honorably discharged from the military. Also, the City acknowledges that in one of the applications is found a statement that petitioner had a 30 percent service related disability but the type of disability is not described. Whether the service related disability was still valid in March 1991 is not of record. Finally, petitioner's exhibit 1 is a copy of what purports to be a "statement of patient's treatment" from a VA outpatient clinic prepared in February 1985, but this document is hearsay, and in any event, is so dated as to have no probative value in this case. The more credible evidence shows that petitioner did not apply for the position of "traffic checker" or parking enforcement specialist in 1991. Moreover, petitioner had no valid application on file at that time, and there is no credible evidence as to who, if anyone, was hired to fill the position or what were the qualifications of the person hired. Even if one assumes an application was filed, the record is silent as to why petitioner's application may have been denied or, assuming he had a handicap, whether he could adequately perform the essential functions of the job. Given these considerations, and the lack of evidence to establish that petitioner is disabled with a handicap, it is found that the City did not commit an unlawful employment practice.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 9th day of May, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5926 Respondent: Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commissioin Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esquire Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Mr. David Coleman 1071 Ontario Street Jacksonville, FL 32205 Brian M. Flaherty, Esquire 600 City Hall 220 East Bay Street Jacksonville, FL 32202
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was unlawfully discriminated against due to her age, with regard to her termination from employment on June 19, 1996, and, collaterally, whether her claim is barred by the doctrine collateral estoppel because of Findings of Fact and Conclusions of Law entered by a hearing officer in an unemployment compensation appeals proceeding also related to her termination from employment.
Findings Of Fact Roberta McCabe, the Petitioner, was employed by the Respondent, Woodland Towers, Inc., as a dining room manager from October 22, 1991, through June 19, 1996. During her employment with Woodland Towers that entity employed more than fifteen employees. Ms. McCabe's initial date of employment was August 19, 1991, but she began her capacity as dining room manager on October 22, 1991. She served in that capacity until her termination date of June 19, 1996. She was terminated on that date against her will. Ms. McCabe was born on June 3, 1935, and at the time of her termination she was sixty-one years of age. After her termination, on June 21, 1996, the Petitioner filed a claim against Woodland Towers with the Florida Department of Labor and Employment Security, Division of Unemployment Compensation. In that claim she first raised the issue that she had been discharged due to her age. That claim was filed, of course, before a different state agency, with a different jurisdiction, although the parties were the same. The legal issues were not established to be the same, however, with the exception that in that case, as in this one, the Petitioner raised the question of discharge due to age discrimination. The statutory standards for liability for unemployment compensation, however, were not shown to be co-extensive and identical to those statutory standards and statutory-based legal issues which prevail in the instant case before a different state agency. While the issue of age discrimination may have been the reason offered by the Petitioner in the employment compensation case for her separation from employment, as opposed to what was ultimately found (discharge for misconduct) that legal concept was not shown to have the same definition under the Unemployment Compensation statutes involved in that proceeding, nor was it shown that those statutes support the same or similar actions and remedies as does Chapter 760, Florida Statutes, under which the instant proceeding arises. Therefore it cannot be determined that the legal issues or, for that matter the factual issues in the instant proceeding, are substantially identical to those extant in the unemployment compensation proceeding. In any event, Ms. McCabe timely filed a charge involving age discrimination with the Florida Commission on Human Relations, on or about August 26, 1996. The matter ultimately came on for hearing before the undersigned judge. Ms. McCabe testified at hearing that the only act of discrimination she contends occurred with regard to her termination from employment, on June 19, 1996, occurred on that date and involved discrimination on account of her age. She did not, however, establish that anyone at Woodland Towers ever actually made any discriminatory comments or remarks regarding her age. Ms. McCabe essentially inferred from her status as an older employee, and the fact that she was terminated, the conclusion that Woodland Towers had terminated her on account of her age. She offered no testimony other than her own to support her claim of age discrimination. Conversely, Eleanor Gustavsson and Sidney Roberts both testified that age had nothing to do with their decision to terminate her. Their testimony was unrebutted by the Petitioner. The testimony supporting Petitioner's position that age discrimination or animus resulted in her termination is based solely on the Petitioner's own testimony, chiefly involving her conjectural position, without corroborating evidence, that Woodland Towers intended to terminate her because of her years of seniority which resulted in higher pay and benefits and that therefore, resultingly, her age, with attendant higher pay and benefits, in her position, caused her to be terminated in a discriminatory way, predicated upon her age. Moreover, the Petitioner failed to describe any other co-employee who committed a similar infraction but who was treated more favorably than the Petitioner and did not show that there was any other employee of a younger age who was treated more favorably after committing a similar infraction. The Petitioner did produce the testimony of two fellow employees and offered to produce others to testify that another employee was rude and hostile to the Petitioner. This is insufficient, however, to establish that she was discriminated against because of her age. It was not shown that that employee was in a supervisory position over the Petitioner and merely being rude and hostile to a fellow employee does not rise to the level of Ms. McCabe's infraction. It is therefore unpersuasive to show that Ms. McCabe was the subject of disparate treatment because of her age. Uncontradicted evidence was presented at hearing which establishes that the Petitioner was allowing employees under her supervision, in her capacity as dining room manager, to report for duty before normal working hours and begin work without compensation for the extra time. It was established that she was aware of and indeed responsible for these employees "working off the clock" or before "punching-in." The evidence establishes that she was aware that this was contrary to federal law and Woodland Towers' policy. She was also aware that she was responsible for supervising those offending employees and enforcing the law and policy concerning hours of employment. The Petitioner took full responsibility for the law and employment policy violation in this regard and admitted during the hearing that her actions violated Woodland Towers' employment hours policy. Additionally, Woodland Towers presented credible evidence that Ms. McCabe was terminated solely for reasons of violation of that federal law and policy concerning hours of employment. Woodland Towers' evidence establishes that her age was not the reason for her termination, but rather that her violation of federal law and employment policy concerning the working hours of her employees was that reason. That showing was not rebutted.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and argument of the parties, it is RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by the Petitioner herein. DONE AND ENTERED this 5th day of April, 1999, in Tallahassee, Leon County, Florida. 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 5th day of April, 1999. COPIES FURNISHED: Robert W. Lloyd, Esquire Cobb, Cole and Bell Post Office Box 2491 Daytona Beach, Florida 32115 Roberta McCabe 701 North Ocean Street Jacksonville, Florida 32201 Sharon Moultry, Clerk Florida Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue for determination in this proceeding is whether Respondent retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, based upon her complaints about a coworker’s conduct perceived by Petitioner to be sexual harassment.
Findings Of Fact Based on the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made: Petitioner, a female, was employed as a server with Respondent from May 6, 2011, through September 29, 2012. Respondent, Stavro's Pizza, Inc., is a restaurant located in New Smyrna Beach, Florida. Respondent employs more than 15 individuals at any given time and therefore is subject to the Florida Civil Rights Act of 1992. §§ 760.01-760.l1, Fla. Stat. Early on the morning of Friday, September 27, 2012, it was reported to Martha Trimble, long-time General Manager of Respondent, that a "weird conversation" took place between Petitioner and another employee, Brian Hayes, the previous evening.2/ During this conversation, Mr. Hayes allegedly told Petitioner that “he knew everything about her, including where she lived, and that her favorite color was blue.” Mr. Hayes also allegedly told Petitioner that he was soon to be the new manager of the restaurant. Ms. Trimble approached Petitioner later that day about the alleged incident with Mr. Hayes, and while Petitioner admitted she had had a strange conversation with Mr. Hayes, she denied that she was upset by it. Nonetheless, Ms. Trimble told Petitioner she would investigate the matter and that she took it seriously. Later that same day Ms. Trimble also questioned Mr. Hayes, who denied making the reported comments. And while Ms. Trimble was aware that Petitioner had voluntarily given Mr. Hayes her address,3/ out of caution, Ms. Trimble placed Mr. Hayes on leave while she continued her investigation. The following day, Saturday, September 28, 2012, there was a mandatory meeting for all employees of Respondent. The meeting was mandatory because Ms. Trimble had been made aware of horseplay among some employees, and was concerned that staff training had been inadequate. Notice of the meeting was conspicuously posted in the restaurant for two weeks prior to the meeting. The notice explained that the meeting was mandatory and that all employees were to attend unless they contacted Ms. Trimble prior to the meeting to be excused. Petitioner did not attend the Saturday meeting and was not excused in advance. Four other employees contacted Ms. Trimble ahead of time and explained that they would be unable to attend due to schedule conflicts. Those employees were excused. When Ms. Trimble contacted Petitioner later in the day, Petitioner told Ms. Trimble that she had been ill, and in bed all day. That evening Ms. Trimble also reviewed the security camera video of the one hour period the previous Thursday during which Petitioner and Mr. Hayes had been alone in the restaurant, and during which the suspect comments had reportedly been made. In reviewing the video, Ms. Trimble specifically watched for physical contact, lingering conversations, and body language. At hearing, Ms. Trimble related her observations from the restaurant video as follows: So I watched the tape. Brian basically stayed back in the kitchen. Uh, we have side work we do. We make garlic bread. We make boxes. We do little oil containers for to-go salads. And Brian was back doing that almost the entire time. Once I saw him go up to the waitress station and get a beverage and bring it back. Amanda basically was at the register. She would come back every once in a while, hang a ticket, kind of stand there and chitchat until, uh – until, uh, a salad was given to her or something like that. So, um, but mainly they were both in their own areas. I did not see anything that indicated that there was anything improper going on. Following her review of the surveillance video Ms. Trimble concluded that there was no basis to believe that Mr. Hayes had engaged in any form of sexual harassment against Petitioner. The following day, Sunday, September 29, 2012, Ms. Trimble met with Petitioner regarding her absence from the mandatory meeting the day before. At this meeting Ms. Trimble informed Petitioner that because she failed to attend the mandatory meeting without being excused, and had failed to even call Ms. Trimble to explain she was ill and would be unable to attend, her employment was terminated. A former employee of Respondent, Lindsey Yauch, testified on behalf of Petitioner. Ms. Yauch testified that she had once missed a mandatory meeting called by Ms. Trimble but had not been fired as a result. However, on cross-examination Ms. Yauch could not remember the purpose, date, or any other details surrounding the meeting. Ms. Trimble’s testimony regarding the meeting that Ms. Yauch missed was more precise. Ms. Trimble recalled that it was a “safe-staff meeting”, which is a food-handler’s course that all employees must take. Because all 27 of Respondent’s employees were required to take the class, it was offered on two separate dates, and employees were permitted to choose which session they would attend. Ms. Yaugh had chosen to attend the first session, but overslept and missed the class as a result. Since a second class offering was still available, Ms. Yaugh was permitted to attend the second session, which she did. There is no credible evidence in this record that Petitioner was treated differently than other similarly situated employees when she was terminated for missing a mandatory meeting. At hearing Ms. Trimble testified that Petitioner's termination had nothing to do with her gender or the alleged comments made by Brian Hayes. Rather, Petitioner’s termination was the result of her missing a mandatory staff meeting without excuse. This testimony is credible. To his credit, in his closing statement counsel for Petitioner candidly acknowledged that, even if true, the comments made by Mr. Hayes would not constitute sexual harassment.
The Issue The issue for determination is whether Respondent committed an unlawful employment practice against Petitioner on the basis of sexual harassment and retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Recommendation Based on the foregoing Finding of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying Benjamin Bullard's Petition for Relief. S DONE AND ENTERED this 3rd day of December, 2012, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2012. COPIES FURNISHED: Benjamin Bullard 12211 Park Drive Hollywood, Florida 33026 Spencer D. West, Esquire Stephen N. Montalto, Esquire Mitchell & West, LLC 3191 Coral Way, Suite 406 Miami, Florida 33145 Denise Crawford, Agency Clerk 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
Findings Of Fact Petitioner was employed by Respondent from January, 1986, until March 7, 1988. Petitioner worked as a tailor and performed alterations at Respondent's store located in Altamonte Springs. In the latter half of 1987, Mr. Pease became the manager of the Altamonte Springs store and thus became Petitioner's supervisor. As had the prior manager, Mr. Pease and Petitioner worked out a schedule that did not require Petitioner to work in violation of his religious principles. However, relations between Petitioner and Mr. Pease were not good. Shortly after becoming manager, for independent business reasons, Mr. Pease decided to reduce the amount of fitting done in the store. The effect of this decision was to reduce the amount of work available for Petitioner. At about this time, Petitioner suffered an accident unrelated to employment. The accident resulted in an extended absence from work. Petitioner received his physician's approval to return to work on February 16, 1988, but failed to do so. Without prior notice, Petitioner showed up at the store on March 7, 1988, and informed Mr. Pease that Petitioner was ready to return to work. Mr. Pease told Petitioner that the work schedule had already been arranged for the week. Mr. Pease told Petitioner that the only days he could work were Saturday, March 12, and Sunday, March 13. Petitioner told Mr. Pease that he could not work Sundays due to his religious beliefs. Mr. Pease reiterated that no other time was available that week. Petitioner told Mr. Pease that Petitioner understood that he was being fired. Mr. Pease told him that he was not being fired; rather, he was quitting if he left Respondent's employment. Two days later, Petitioner filed for unemployment compensation benefits. He never reported to work with Respondent again. Consistent with his Petition for Relief, Petitioner offered no evidence of discrimination due to national origin. Nothing in the record suggests the existence of any such discrimination. Petitioner has also failed to prove the existence of any religious discrimination. There is no evidence that Mr. Pease refused to try to accommodate Petitioner's religious beliefs with respect to work schedules after the weekend of March 12-13. The only evidence is that when Petitioner suddenly reported to work, the only days immediately available were the weekend days. The record does not even disclose whether Mr. Pease linked the two days, so as to prevent Petitioner from working the Saturday without working the Sunday. There is nothing in the record suggesting that Mr. Pease told Petitioner that if he failed to work the coming Sunday, he would lose his job. In sum, Petitioner has left it entirely to conjecture whether Mr. Pease would have failed to make reasonable accommodation for the religious beliefs of Petitioner. In fact, Mr. Pease was never presented with that opportunity. In addition, Petitioner has produced no evidence that Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. There is no evidence of the number of employees working for Respondent at the relevant time.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Petition for Relief filed by Petitioner be dismissed. ENTERED this 2nd day of May, 1989, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5689 Treatment Accorded Respondent's Proposed Findings 1-3. Adopted in substance. 4-5. (first sentence) Adopted. 5. (second sentence) Rejected as irrelevant. 6-10. Adopted. s 11. Rejected as irrelevant. COPIES FURNISHED: Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird, Esq. General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Agerton, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Weceslao Lugo Palermo 7505 Armstrong Road Lockhart, FL 32810 Richard D. Pease 590 West Highway 436 Altamonte Springs, FL 32714
