The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered?
Findings Of Fact This case came before the Division of Administrative Hearings based upon the filing of a complaint alleging employment discrimination filed with the Florida Commission on Human Relations (The Commission). The Commission transmitted the complaint on March 27, 2008, for the assignment of an administrative law judge. The case was originally assigned to Administrative Law Judge Diane Cleavinger, and the matter was set for hearing to be held June 3, 2008. On May 21, 2008, Respondent filed a Motion to Continue based upon the unavailability of a key witness. The motion alleged that Petitioner had been contacted, but "prefers to state whether he has any objection to this motion in writing." On May 28, 2008, Judge Cleavinger granted the Motion to Continue and rescheduled the hearing for July 24, 2008. On June 3, 2008, Petitioner wrote a letter requesting to be heard on the request for continuance. Because his correspondence did not indicate that counsel for Respondent had been served, a Notice of Ex Parte Communication was filed. On June 12, 2008, a pre- hearing conference was conducted by telephone, and on July 14, 2008, Petitioner filed a Request for Recusal, which was granted July 16, 2008. The case was reassigned to the undersigned and on July 24, 2008, the case proceeded to hearing as previously scheduled. At the outset of the hearing, counsel for the Department made an appearance. However, Petitioner was not present in the hearing room. At the request of the administrative law judge, a representative for the Department checked the Division lobby to see whether Petitioner was present. A recess was taken to afford Petitioner an opportunity to appear. During the recess, the clerk's office was consulted to confirm that staff had received no contact from Petitioner indicating he was on his way to the hearing. After a twenty-five minute recess, the hearing was reconvened. Petitioner did not appear.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's complaint of unlawful discrimination. DONE AND ENTERED this 30th day of July, 2008, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 30th day of July, 2008. COPIES FURNISHED: J. Yvette Pressley, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Elleton R. Collins, Jr. 4768 Woodville Highway, No. 412 Tallahassee, Florida 32305 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 central issue in this case is whether the Respondent denied Petitioner employment opportunities in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Petitioner was employed by the Respondent as a part-time employee on or about March 10, 1981. At the time of her employment Petitioner executed a statement acknowledging that the Respondent did not guarantee weeks or hours of employment and that her employment was dependent, in part, upon the demands of the business. Petitioner's job title throughout her employment with Respondent was "warehouse worker." At all times material to this case, Petitioner was assigned to the Orlando distributing center that serves as a warehouse for items shipped to and for Respondent's retail system. During her employment with Respondent, Petitioner received acceptable work evaluations but was not elevated to full-time employment status when job openings occurred. For the first year of her employment, Respondent utilized an employee review form which rated Petitioner on a scale of 1 to 7; the lower number indicated unsatisfactory, the higher number indicated distinguished performance. For that review period, Petitioner received all 4s on her review. The 4 rating evidenced that Petitioner's performance had been consistently good and had met the requirements of the job to which she was assigned. For the review period ending April 1, 1985, the Petitioner received four 4s and one 3. The 3 rating was in the category "working relations" and found her performance to be fair. The 3 rating indicated that for the period reviewed Petitioner's performance was generally satisfactory, but sometimes fell below an acceptable level. Later in 1985, the Petitioner filed an EEOC complaint against the Respondent and alleged that the company had treated her unfairly on account of her sex. Petitioner did not prevail on that complaint. The Petitioner's employee performance review issued on June 10, 1986, the next evaluation after her EEOC complaint, evaluated her performance at all 3s with one 4 in the category of job knowledge. Petitioner did not challenge this review and did not, at that time, allege that the less favorable review had been issued by the company in retaliation for the EEOC complaint. Subsequent to the 1986 review, Respondent's evaluation form was amended to compute an employee's performance on a scale of 1 to 5 with 1 being the unacceptable end of the scale and 5 indicating distinguished performance. For the review period ending April 12, 1988, Petitioner received all 3s which established that her overall performance again met the employer's expectations. Throughout her tenure with the Respondent, Petitioner sought to increase her work hours. Petitioner complained to the company that work assignments were given unfairly. In June, 1987, Mr. Maupin, manager of the center, issued a notice regarding a change in the scheduling practices for part- time employees. That notice advised employees that the length of service with the company would no longer be the determining factor in assigning part-time hours. The notice provided: "Other factors such as performance, availability when needed and work experience (such as driving skills) will also be considered when determining who will be scheduled." Petitioner continued to be scheduled for work and, in 1988, received the second highest number of hours worked for the center's part-time employees. Petitioner did not receive full-time employment with the Respondent. Two employees who had not worked in the warehouse as long as Petitioner were placed in full-time positions. Petitioner did not offer evidence as to the qualifications of those individuals to perform the work requested of them. The employment history of the individuals chosen by the employer, together with the training, skills and aptitudes of such individuals are all unknown. Petitioner's assertion that she had performed the work in the past and, therefore, was the better qualified to receive the full-time job has not been deemed credible or, in itself, sufficient to prove affirmatively that others chosen by the employer were less worthy of the jobs for which they were selected. To the contrary, the Respondent posted full-time job openings and allowed interested parties to apply for same and be reviewed for employment based upon individual merit.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petitioner's claim against this Respondent as Petitioner has failed to establish that the employer discriminated against her in retaliation for a prior assertion of discrimination. RECOMMENDED this 13th day of August, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5133 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 3 are accepted. Paragraph 4 is rejected as contrary to the weight of credible evidence or irrelevant. Paragraph 5 is rejected as irrelevant the petition filed in this cause does not allege Petitioner was unfairly disciplined. Paragraph 6 is accepted. The first sentence of paragraph 7 is accepted. The balance of the paragraph is rejected as argument, hearsay not corroborated by direct evidence, or contrary to the weight of credible evidence. Paragraph 8 is rejected as irrelevant; it is undisputed that Petitioner perceived a bias against her, the evidence in this case does not, however, establish that such bias did exist. An employer's assessment that an employee has a poor attitude does not, of itself, lead to the conclusion that employer will, consequently, unlawfully discriminate against that employee. The first sentence of paragraph 9 is accepted. The balance of the paragraph is rejected as hearsay unsupported by direct evidence presented in this case or unsupported by the weight of credible evidence. Paragraph 10 is rejected as unsupported by direct evidence presented in this case. Paragraph 11 is rejected as contrary to the weight of the credible evidence. Paragraph 12 is rejected as contrary to the weight of the credible evidence. Paragraph 13 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 14 is accepted. Paragraph 15 is rejected as contrary to the weight of the credible evidence. Paragraph 16 is rejected as speculative, not supported by the evidence in this case. Paragraph 17 is accepted. Paragraph 18 is accepted. Paragraph 19 is accepted to the extent that the record reflects Petitioner retained an attorney to represent her; otherwise rejected as irrelevant or not supported by the record. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 9 are accepted. With regard to paragraph 10, it is accepted that all of Petitioner's annual evaluations rated her work as acceptable. Paragraph 11 is rejected as inaccurate or contrary to the weight of the evidence. While Petitioner's reviews remained substantially the same, the forms and evaluation system did change. Important was that Petitioner's work was always deemed acceptable. With regard to paragraph 12, it is accepted that Petitioner worked forty days within the period described. Otherwise rejected as not supported by the record in this case. Paragraph 13 is accepted. Paragraph 14 is accepted but incompletely refers only to the delivery job; Petitioner had expressed an interest in two other jobs available. Paragraph 15 is rejected as contrary to the weight of the credible evidence or an incomplete statement of fact. Petitioner did seek full-time employment with the Respondent. COPIES FURNISHED: Heather Morcroft 2431 Aloma Avenue Suite 285 Winter Park, Florida 32791 William E. Curphey Parker, Johnson, McGuire & Michaud 1300 Barnett Plaza 201 South Orange Avenue Orlando, Florida 32801 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Ronald M. McElrath Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue The issue in this case is whether Respondent is guilty of discriminating in employment against Petitioner on the basis of her race.
Findings Of Fact Respondent hired Petitioner, who is black, as an inspectress on April 11, 1988. An inspectress supervises the work of maids, who are responsible for cleaning the hotel rooms. On July 3, 1988, the housekeeper, Mr. Douglas Knight, who supervised Petitioner, informed her that, due to an excess of personnel, she was no longer needed as an inspectress. He offered her a position as a maid. The record does not reveal whether the change in duties would have resulted in less pay. Petitioner apparently declined the position. When she did so, Respondent terminated her. Although Respondent had received no warnings concerning unsatisfactory job performance, the work of the maids had clearly been unsatisfactory up to the time of her offered reassignment. The white woman who allegedly replaced Petitioner as an inspectress was Mrs. Triplett, who was married to the head maintenance manager of the hotel. Shortly after losing her job elsewhere, she was hired by Respondent around June 9, 1988, to replace the assistant housekeeper, who was on maternity leave until July 6, 1988. Mrs. Triplett was reassigned to the position of inspectress around June 18, 1988, and later promoted to housekeeper about two weeks after Petitioner's departure. Mr. Knight, who hired Mrs. Triplett, was friends with Mr. Triplett and later terminated for inefficiency in performing his work.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief. DONE and ORDERED this 16th day of March, 1989, in Tallahassee, Florida. ROBERT D. 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 16th day of March, 1989. COPIES FURNISHED: Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird General Counsel Commission Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Latricia W. Dukes 4189 Tatum Street Orlando, FL 32811 Gale Brandy Ramada Main Gate Resort 2950 Reedy Creek Boulevard Kissimmee, FL 32741
The Issue The issue in this case is whether Limited Edition Interiors, Inc. (Respondent), committed an act of unlawful employment discrimination and an act of retaliation against an employee, Arlene Matvey (Petitioner), in violation of Pinellas County Code sections 70-53(a) and 70-54(1).
Findings Of Fact At all times material to this case, the Respondent was an interior furnishings retailer located in Largo, Florida, and owned by William S. Miller (Mr. Miller) and Judith L. Miller (Mrs. Miller), a married couple. Mrs. Miller was the president of the company. Mr. Miller was the secretary/treasurer of the company. Both Mr. and Mrs. Miller were generally present at the business. The Respondent was an "employer" pursuant to the definition of the term set forth within the applicable Pinellas County Code provision. On October 31, 2005, the Respondent hired the Petitioner to work as the office manager and bookkeeper in a full-time, salaried position. The Petitioner's duties included tracking various accounts, preparing sales invoices, preparing the payroll, preparing certain tax records, and general office filing. The Petitioner, a single mother, had been unemployed for an extended period prior to being hired by the Respondent. Both Mr. and Mrs. Miller knew that the Petitioner needed the financial support provided by her job. Mr. Miller was the Petitioner's supervisor. Their work areas were in relatively close proximity, with Mr. Miller occupying an office space with a door and the Petitioner occupying a workstation immediately outside Mr. Miller's office. There was a second workstation also located outside Mr. Miller's office, and, on occasion, a third employee was present in the area. A few months after the Petitioner began employment at the Respondent, Mr. Miller began to make remarks about the Petitioner's physical appearance, particularly her "derriere." The remarks were frequent and were heard by other employees. The Petitioner was offended by the remarks and routinely told Mr. Miller to stop. On more than one occasion, Mr. Miller asked the Petitioner to sit on his lap. The Petitioner objected to Mr. Miller's requests and told him so. On at least one occasion, the exchange between Mr. Miller and the Petitioner was overheard by another employee. At various times, Mr. Miller called male employees and the Petitioner into his office to view sexually-suggestive photographs on his computer, some of which were described as pornographic. The Petitioner and other employees objected to the display of photographs and told him that they objected to his showing them the photos. At other times, Mr. Miller called the Petitioner into his office and showed her pornographic images on his computer screen. She felt disturbed by his behavior and told him of her objection. At times during the Petitioner's employment by the Respondent, Mr. Miller made purposeful and inappropriate physical contact with the Petitioner's body. Such contact included attempts to grab the Petitioner by her waist and to rub his clothed genital area against the Petitioner's clothed buttocks. The Petitioner consistently objected to Mr. Miller's behavior and told him of her objections. Other employees observed Mr. Miller's conduct and the Petitioner's objections to his behavior. On one occasion, Mr. Miller called the Petitioner into his office and told her a joke that included his displaying the outline of his penis through his pants, at which time the Petitioner voiced her objection to Mr. Miller. In September 2007, Mr. Miller appeared at the Petitioner's home, and, while there, he exposed his penis to the Petitioner and attempted to entice the Petitioner into sexual activity. He had not been invited to come to her home, and he left the premises when she directed him to do so. At various times during her employment, Mr. Miller asked the Petitioner to expose her breasts to him, and she objected and declined to do so. She eventually complied with the request on one occasion, because she feared losing her job if she refused. Subsequently, Mr. Miller told a male employee that the Petitioner had acceded to his request to see her breasts. The male employee relayed the conversation to the Petitioner, who felt humiliated by the incident. There was no evidence presented at the hearing to suggest that the Petitioner invited or encouraged Mr. Miller's inappropriate behavior. To the contrary, the evidence establishes that the Petitioner routinely told Mr. Miller of her objections to his conduct at the time it occurred. Because the Petitioner had been unemployed prior to being hired by the Respondent and was afraid of losing her job, she did not complain to Mrs. Miller about Mr. Miller's conduct. At the beginning of 2008, the Petitioner advised Mr. Miller that she felt he was "sexually harassing" her. Mr. Miller thereafter began to engage in a pattern of verbal harassment directed towards the Petitioner's job performance. He began to assign tasks to the Petitioner unrelated to her prior bookkeeping or office manager duties. She was assigned to monitor the store inventory, prepare sales tags and attach them to floor samples, dust the store, and clean the kitchen. Mr. Miller routinely criticized the Petitioner's work skills, argued with her about the performance of her duties, and called her "stupid." Prior to January 2008, neither Mr. nor Mrs. Miller had expressed any significant dissatisfaction with the quality of the Petitioner's work as office manager or bookkeeper. There was no credible evidence presented at the hearing that the Petitioner was unable or unwilling to perform the office manager and bookkeeper tasks for which she was hired. Indicative of Mr. Miller's general attitude towards the Petitioner, he used a parrot that was kept at the store to intimidate the Petitioner, who was afraid (perhaps irrationally) of the bird. Mr. Miller clearly knew that the Petitioner was fearful of the bird, yet he would stand behind the Petitioner while she was working and hold the bird near the Petitioner's head, terrifying her. In early 2009, Mr. Miller again called the Petitioner into his office and showed her pornographic images on his computer screen. She again advised him of her objection to his conduct. Prior to 2009, the Petitioner had not talked with Mrs. Miller about her husband's conduct, because the Petitioner remained concerned about losing the job. However, in February 2009, while the two women were both in the store's lunchroom area, the Petitioner advised Mrs. Miller of Mr. Miller's conduct and asked Mrs. Miller to intervene. Mr. Miller had been out of the store for much of February 2009. He returned to work on February 23, 2009, and the Petitioner testified that he left her alone for a few days after his return. However, on March 2, 2009, the Respondent terminated the Petitioner's employment as a salaried, full-time employee, transferred her into an hourly wage position, and reduced her employment hours. She was partially relieved of her bookkeeping responsibilities and was assigned additional store tasks such as moving old boxes and cataloging their contents. The Respondent asserted that the March 2, 2009, action was the result of deteriorating business conditions. The Respondent asserted that the store revenues had declined and that they were required to reduce payroll costs by reducing personnel. The Respondent failed to provide any credible evidence supporting the assertion that deteriorating sales and income were the rationale behind the alteration of the Petitioner's work responsibilities. After March 2, 2009, Mr. Miller routinely continued to criticize the Petitioner's work performance. On July 23, 2009, Mr. Miller and the Petitioner became engaged in a heated discussion in the office area, during which he referred to her as a "fucking c-nt." Although Mr. Miller testified that he did not intend for the Petitioner to hear his insult, he said it loudly enough to be overheard by another employee who was also in the office area. Mr. Miller had previously used the same phrase to refer to other women, including Mrs. Miller. The Petitioner immediately reacted, screaming at Mr. Miller that he could not use the phrase and stating that she would be filing "a complaint" against him. The Petitioner left the office area and went into the store area, loudly protesting Mr. Miller's insult and intending to advise Mrs. Miller of the incident. Because there were customers in the store at the time, Mrs. Miller focused more on calming the Petitioner and not disrupting the store. After speaking briefly with Mrs. Miller, the Petitioner returned to the office area to collect her possessions. Mr. Miller approached the Petitioner and placed his hands in the area of her neck, which caused the Petitioner to feel physically threatened. The Petitioner took her possessions and left the store. The Petitioner next returned to work on July 27, 2009, at which time she was told that she was no longer the office manager and bookkeeper. At the hearing, Mr. Miller testified that the Petitioner was removed from the office because the situation had become volatile. Mrs. Miller testified that, because the Petitioner was argumentative, a decision had been made to remove her from the office. On July 27, 2009, when the Petitioner asked Mrs. Miller why she was no longer the office manager, Mrs. Miller said the Petitioner's job had been changed "because of Bill," meaning Mr. Miller. As of July 27, 2009, the Petitioner had no further office management responsibilities and retained only janitorial and store tasks. The Petitioner was also directed to call the store before coming in to see if she was needed on that day. On some days, the Petitioner was told there was no work for her. On August 14, 2009, the Respondent terminated the Petitioner's employment. There was no credible evidence presented at the hearing that the termination of the Petitioner's employment was related to dissatisfaction with her performance as the Respondent's office manager and bookkeeper, or to the performance of the other tasks that were subsequently assigned. The Respondent asserted that economic conditions caused them to terminate some employees, including the Petitioner, but there was no credible evidence presented to support the assertion. The evidence presented during the hearing established that employees who were terminated were fired for non-performance of their job duties. There was no credible evidence presented at the hearing that the Petitioner's termination or the reduction in her work hours was related to the Respondent's economic condition. At the hearing, employees (both current and former) described Mr. Miller's treatment of women as degrading and humiliating. Employees who worked for the Respondent concurrently with the Petitioner were aware that she was being humiliated by Mr. Miller's behavior. In addition to the Petitioner, Mr. Miller previously assigned janitorial duties to an employee whom he disfavored when he wanted the employee to quit. After the Petitioner's employment was terminated by the Respondent, the Petitioner attempted to obtain another job. During the period of unemployment, the Petitioner received $300.00 per week in unemployment compensation benefits. As of November 9, 2006, the Petitioner earned a bi- weekly salary of $1,600.00 from the Respondent. As of February 1, 2006, the Respondent provided health insurance coverage for the Petitioner as a benefit of her employment and continued such coverage after her termination and through December 31, 2009. As of April 29, 2010, the Petitioner became employed by Gentry Printing Company as a full-time bookkeeper earning $15.00 per hour and working a 40-hour week. On July 17, 2010, the Petitioner received a raise from Gentry Printing Company to $16.00 per hour for the 40-hour week. Gentry Printing Company withholds $22.50 from the Petitioner's weekly income as her contribution to the medical insurance program. At the hearing, the Petitioner presented testimony related to damages. The evidence established that the Petitioner was entitled to an award of $32,745.00 in back pay. The Respondent presented no corresponding evidence or testimony related to damages.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the Respondent violated Pinellas County Code sections 70-53 and 70-54 and ordering the Respondent to pay the sum of $32,745.00 plus interest at the prevailing statutory rate to the Petitioner. DONE AND ENTERED this 22nd day of September, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 22nd day of September, 2011. COPIES FURNISHED: William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756 Robert G. Walker, Jr., Esquire Robert G. Walker, P.A. 1421 Court Street, Suite F Clearwater, Florida 33756 Sherri K. Adelkoff, Esquire 1159 South Negley Avenue Pittsburgh, Pennsylvania 15217 Leon W. Russell, Director/EEO Officer Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756 Peter J. Genova, Jr., EEO Coordinator Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756
The Issue The issue is whether Respondent committed an unlawful employment act against Petitioner pursuant to Chapter 70 of the Pinellas County Code, as amended, and Title VII of the U.S. Civil Rights Act of 1964, as amended.
Findings Of Fact Petitioner, a black female, is a member of a protected group. Respondent is an employer as defined in the Pinellas County Code, as amended, and Title VII of the Civil Rights Act of 1964, as amended. Respondent hired Petitioner as a telemarketer on December 8, 1997. Petitioner's job required her to call the telephone numbers on a list furnished by Respondent. After making the call, Petitioner was supposed to solicit the booking of vacations in time-share rental units by reading from a script prepared by Respondent. The script included an offer to sell potential customers three vacations in three locations for $69. When Respondent hired Petitioner, she signed a copy of Respondent's "New Employee Policy and Procedures" manual. Petitioner admits that this manual required her to book 25 vacations each pay period after a two-week training period. She also admits that the manual required her to only use the prepared script, including preplanned rebuttals to customer questions when talking over the telephone. Petitioner understood that during the two-week training period, she would be required to book 14 vacations or be terminated. She knew that Respondent's supervisors would monitor her sales calls. Petitioner sold four vacation packages in her first week at work with no complaints from her supervisors. In fact, one of Respondent's supervisors known as Mike told Petitioner, "You got the juice." On December 15, 1997, Mike monitored one of Petitioner's calls. Petitioner admits that she did not use the scripted rebuttals in answering the customer's questions during the monitored call. Instead, she attempted to answer the customer's questions using her own words. According to Petitioner, she used "baby English" to explain the sales offer in simple terms that the customer could understand. After completing the monitored call on December 15, 1997, Mike told Petitioner to "stick to the shit on the script." Mike admonished Petitioner not to "candy coat it." Petitioner never heard Mike use profanity or curse words with any other employee. Before Petitioner went to work on December 16, 1997, she called a second supervisor known as Kelly. Kelly was the supervisor that originally hired Petitioner. During this call, Petitioner complained about Mike's use of profanity. When Kelly agreed to discuss Petitioner's complaint with Mike, Petitioner said she would talk to Mike herself. Petitioner went to work later on December 16, 1997. When she arrived, Mike confronted Petitioner about her complaint to Kelly. Petitioner advised Mike that she only objected to his language and hoped he was not mad at her. Mike responded, "I don't get mad, I get even." When Petitioner stood to stretch for the first time on December 16, 1997, Mike instructed her to sit down. Mike told Petitioner that he would get her some more leads. Mike also told Petitioner that she was "not the only telemarketer that had not sold a vacation package but that the other person had sixty years on her." Petitioner was aware that Respondent had fired an older native-American male known as Ray. Respondent hired Ray as a telemarketer after hiring Petitioner. When Petitioner was ready to leave work on December 17, 1997, a third supervisor known as Tom asked to speak to Petitioner. During this conversation, Tom told Petitioner that she was good on the telephone but that Respondent could not afford to keep her employed and had to let her go. Tom referred Petitioner to another company that trained telemarketers to take in-coming calls. Tom gave Petitioner her paycheck, telling her that he was doing her a favor. During Petitioner's employment with Respondent, she was the only black employee. However, apart from describing the older native American as a trainee telemarketer, Petitioner did not present any evidence as to the following: (a) whether there were other telemarketers who were members of an unprotected class; (b) whether Petitioner was replaced by a person outside the protected class; (c) whether Petitioner was discharged while other telemarketers from an unprotected class were not discharged for failing to follow the script or failing to book more than four vacations during the first ten days of employment; and (d) whether Petitioner was discharged while other telemarketers from an unprotected class with equal or less competence were retained. Petitioner was never late to work and never called in sick.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the City's Human Relations Review Board enter a final order dismissing Petitioner's Complaint. DONE AND ENTERED this 16th day of November, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2001. COPIES FURNISHED: Bruce Boudreau Vacation Break 14020 Roosevelt Boulevard Suite 805 Clearwater, Florida 33762 Donna Conway 3156 Mount Zion Road No. 606 Stockbridge, Georgia 30281 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Stephanie Rugg, Hearing Clerk City of St. Petersburg Community Affairs Department Post Office Box 2842 St. Petersburg, Florida 33731
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Julie Wells is the principal of AccuStaff.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief filed by Van Gandy be dismissed. DONE AND ENTERED this 10th day of December, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Julie Wells AccuStaff 5710 North Davis Highway, Suite 5 Pensacola, Florida 32503 Van Gandy 8580 Vickie Street Pensacola, Florida 32514 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent Employer is guilty of an unlawful employment practice against Petitioner Employee.
Findings Of Fact On or about November 17, 2006, Petitioner filed an Employment Complaint of Discrimination (formerly known as a "Charge of Discrimination") on the basis of disability/handicap and national origin with the Florida Commission on Human Relations. On June 15, 2007, the Commission entered a Determination: No Cause. On or about July 2, 2007, Petitioner filed a Petition for Relief with the Commission. On or about July 5, 2007, this case was referred by the Commission to the Division of Administrative Hearings. On July 18, 2007, a telephonic conference was held to schedule a final disputed-fact hearing date. The hearing date agreed upon was October 1, 2007, and a Notice of Hearing and Order of Pre-hearing Instructions issued on July 18, 2007. Neither party complied with the Order of Pre-hearing Instructions. At the time noticed for October 1, 2007, Respondent appeared for hearing. In the Joint Response to Initial Order, filed July 16, 2007, and in a subsequent Motion filed September 26, 2007, Respondent referred to itself as "Wal-Mart Stores, East L.P. (incorrectly referred-to in the caption as Wal-Mart Stores)," but made no motion to correct the style of this cause. Respondent acknowledged in its pleadings, and its counsel acknowledged orally at hearing, that it was the appropriate Respondent in this cause, regardless of the case's style. After waiting 30 minutes, Petitioner still had not appeared for hearing. The undersigned made diligent inquiry to ensure that Respondent had done nothing to discourage Petitioner from appearing, and closed the hearing.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Employment Complaint of Discrimination and a Petition for Relief. DONE AND ENTERED this 3rd day of October, 2007, in Tallahassee, Leon County, Florida. S ___ ELLA JANE P. DAVIS 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 3rd day of October, 2007. 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 Amy Harrison, Esquire Lindsay A. Connor, Esquire Ford & Harrison 225 Water Street, Suite 710 Jacksonville, Florida 32202 Catrina Soriano 1826 Nekoma Court Tallahassee, Florida 32304
The Issue Whether Respondent, the Agency for Persons with Disabilities (Respondent or the Agency), violated the Florida Civil Rights Act of 1992, as amended, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Sharon Douse (Petitioner), during her employment with the Agency and then by terminating her employment, based upon her disability, marital status, sex, color, race, age, and the national origin of her spouse, and by illegally retaliating against her.
Findings Of Fact Sunland Center in Mariana, Florida, is operated by the Agency as an intermediate-care facility for developmentally- disabled individuals. Connally Manor is a residential setting within Sunland Center for 16 developmentally-disabled individuals with significant behavioral and medical involvement. Petitioner began her employment with the Agency on July 15, 2011, until her dismissal on January 5, 2012. During her employment, she was classified as career-service employee, Human Services Worker II, assigned to provide direct care for residents in Connally Manor. As a career-service employee, Petitioner was required to serve a one-year probationary period, during which she was subject to termination at will. While employed with the Agency, Petitioner had a number of performance deficiencies and conflicts with her co-workers and supervisors. On July 22, 2011, Petitioner attended training for the treatment and care of residents. Shortly thereafter, however, Petitioner mishandled residents on at least two occasions. As a result, Joe Grimsley, a senior human services support supervisor for the Agency, suspended Petitioner from working independently with residents, and asked Petitioner to work closely with her peers to learn appropriate care procedures. On August 25, 2011, because of excessive absences and failure to perform duties in a timely manner, Petitioner received counseling from Mr. Grimsley and Agency behavior program supervisor Scott Hewett. Petitioner was counseled for excessive absences because, from July 18 through August 22, 2011, Petitioner took a total of 48 hours of leave time, which was greater than the Agency's policy of no more than 32 hours in a 90-day period. Although Petitioner discussed most of those absences with her supervisor prior to taking the time off, as a result of her absences, Petitioner missed some of her initial training, including professional crisis management training. During the August 25, 2011, counseling session, Mr. Grimsley and Mr. Hewett also discussed other issues of concern with Petitioner, including resident care, following chain of command, team work, proper parking, and data collection sheets. As a follow-up, on the same day as the August 25th counseling, Petitioner received some in-service training regarding proper log book documenting, proper use of active treatment sheet, and unauthorized and excessive absences. Mr. Grimsley permitted Petitioner to go back to her duties of working directly with residents after she received additional training on August 27, 2011. On September 8, 2011, Petitioner's supervisors once again found it necessary to counsel Petitioner regarding resident care, chain of command, teamwork, parking, and data collection, as well as to address two incidences of unsafe handling of residents, and Agency policy regarding food in the bedrooms, and class and work schedules. Because of Petitioner's continued performance deficiencies, on October 5, 2011, Mr. Grimsley wrote an interoffice memorandum to his supervisor, Agency residential services supervisor, Julie Jackson, recommending Petitioner's termination. The memorandum stated: Mrs. Jackson: I am writing to you in regard to Mrs. Sharon Douse HSW II Second Shift Connally Manor Unit 3. Mrs. Douse came to us July 15, 2011, since then she has had three employee documented conferences, due to poor work habits, resulting in corrective action, including retraining. These deficiencies include and are not limited to data collection, excessive absences, and unsafe handling of residents. This past week she was insubordinate to her immediate supervisor by refusing to answer the phone after being requested to do so twice, and being directed that it is part of her job. [Mr. Hewett] as well as my self [sic] has made every effort to help Mrs. Douse achieve her performance expectation; however these attempts have been met with resistance as Mrs. Douse openly refuses to take direction from her supervisors and also to seek the assistance of her peers, who have many years of experience working with the Connally Manor population. Mrs. Douse has not met probationary period. Her continual resistance to positive mentoring and her confrontational attitude and demeanor towards her supervisors and coworkers is creating an increasingly difficult work environment, not only on Connally Manor, but also on the other houses within the unit. It is apparent that Mrs. Douse lacks the willingness to improve her overall poor work performance. I am formally requesting Mrs. Douse to be terminated from her employment here in Unit 3. Mr. Grimsley's testimony at the final hearing was consistent with the above-quoted October 5, 2011, interoffice memorandum, and both his testimony and memorandum are credited. Upon receiving Mr. Grimsley's memorandum, Ms. Jackson submitted a memo dated October 26, 2011, to the Agency's program operations administrator, Elizabeth Mitchell, concurring with the request for Petitioner's termination. In turn, Ms. Mitchell agreed and forwarded her recommendation for termination to Sunland's superintendent, Bryan Vaughan. Mr. Vaughan approved the recommendation for termination, and, following implementation of internal termination proceedings, Petitioner was terminated on January 5, 2012, for failure to satisfactorily complete her probationary period. Petitioner made no complaints to Mr. Grimsley or anyone else in the Agency's management until after Mr. Grimsley's October 5, 2011, memorandum recommending Petitioner's termination. Petitioner's Charge of Discrimination filed with the Commission on March 29, 2012, after her termination, charges that she was "discriminated against based on retaliation, disability, marital status, sex, color, race and age." The evidence adduced at the final hearing, however, failed to substantiate Petitioner's allegations. In particular, Petitioner's Charge of Discrimination2/ alleges that Mr. Grimsley discriminated against her because of her age by "not providing [her] with the same training as offered the other employees -- [professional crisis management training] was offered to the younger employees who were hired at or around the same time [as Petitioner]." The evidence at the final hearing, however, showed that Petitioner was scheduled for, but missed professional crisis management training, because of her absences early in her employment. The evidence also showed that professional crisis management training was not necessary for the position for which Petitioner was hired. Nevertheless, the evidence also demonstrated that, if Petitioner had not been terminated, the Agency intended to provide her with that training. Petitioner's Charge of Discrimination also asserts that Mr. Grimsley discriminated against her by "[n]ot allowing [her] to have . . . scheduled time off . . . [and taking away her] scheduled time off August 12th & 13th and [giving it to a] Caucasian female." The evidence did not substantiate this allegation. Rather, the evidence demonstrated that Petitioner had extraordinary time off during her first two months of employment. Next, Petitioner's Charge of Discrimination states that Mr. Grimsley did not follow up on her written concerns and verbal complaints to the "depart[ment] head" regarding the welfare of the disabled residents. Petitioner alleges that she was terminated as a result of her complaint that Mr. Grimsley "sat in the kitchen and baked cookies with the staff who were neglecting disabled residents." Petitioner, however, failed to present any evidence at the final hearing with regard to this allegation. Rather, the evidence showed that, while employed, Petitioner never reported any instances of abuse, neglect, or exploitation to the Florida Abuse Registry, as required by her training. And, there is no evidence that she reported any such concerns to any outside agency prior to her Charge of Discrimination. Petitioner otherwise presented no evidence suggesting that she was terminated in retaliation for engaging in any protected activity. Petitioner's Charge of Discrimination further states that she was discriminated against on the basis of her disability because Mr. Grimsley did not allow her to be properly monitored by her physician, and that when she would bring in her doctor's notes, Mr. Grimsley would refuse to put them in her personnel file. The only support for this claim were two medical reports on Petitioner, one prepared in April 2011, and one prepared in October 2011. According to Petitioner, she gave the reports to someone at the Agency's human resources office. She could not, however, identify the person to whom she gave the reports. Also, according to Petitioner, it was in November 2011, after she was recommended for termination, that she gave her medical reports to the Agency to be filed. Considering the circumstances, the undersigned finds that Petitioner's testimony regarding this allegation is not credible. In addition, the evidence did not show that Petitioner ever asked the Agency for an accommodation for her alleged disability. Rather, based upon the evidence, it is found that Petitioner never advised the Agency, and the Agency was unaware, that Petitioner had a disability. It is also found that Petitioner never asked the Agency for an accommodation for her alleged disability. Petitioner, in her Charge of Discrimination, further contends that part of the employee counseling session documented on employee-documented conference forms dated August 25, 2011, and all of the counseling session documented in a September 8, 2011, employee-documented conference form, were held without her, and that some of the concerns expressed on those documents were fabricated. There were two forms documenting discussions from the August 25th session that were submitted into evidence — - one was signed by Petitioner, the other was not. The employee-documented conference form from the September 8, 2011, session was signed by Petitioner's supervisors, but not Petitioner. Mr. Grimsley, who was present for all of the counseling discussions with Petitioner documented on the forms, testified that the documented discussions occurred, but that he just forgot to get Petitioner's signatures on all of the forms. During the final hearing, Petitioner acknowledged most of the documented discussions, including two incidents of mishandling residents and the resulting prohibition from working with residents imposed on her until she received additional training. Considering the evidence, it is found that all of the counseling discussions with Petitioner documented on the three forms actually took place, and that they accurately reflect those discussions and the fact that Petitioner was having job performance problems. Petitioner's Charge of Discrimination also alleges that a fellow employee discriminated against her because of her age and race based on an incident where, according to Petitioner, a co-worker screamed and yelled at her because Petitioner had not answered the house telephone. At the hearing, Petitioner submitted into evidence affidavits regarding the incident from the co-worker and another worker who observed the incident. Neither of the affidavits supports Petitioner's contention that she was discriminated against. Rather, they both support the finding that Petitioner had trouble getting along with co-workers and accepting directions from Agency staff. Further, according to Petitioner, after she talked to Mr. Grimsley about the incident, he spoke to both Petitioner and the co-worker, and their conflict was resolved. The incident occurred after Mr. Grimsley had already recommended that Petitioner be terminated. Finally, Petitioner alleges in her Charge of Discrimination that Mr. Hewett discriminated against her based upon her marital status, race, and the national origin of her spouse. In support, Petitioner contends that Mr. Hewett "made rude comments about art work on my locker that Scott knew my husband had drawn[,]" asked, "[do] blacks like classical music?" and, upon seeing Petitioner's apron that was embroidered with a Jamaican flag, Mr. Hewett said, "You can't trust things from overseas," when he knew that her husband was Jamaican. Petitioner also stated that Mr. Hewett "bullied her" about answering the telephone. While Petitioner testified that she wrote to Agency management regarding these comments and the alleged bullying by Mr. Hewett, she did not retain a copy. The Agency claims that Petitioner never complained about these alleged comments or Mr. Hewett's alleged bullying while she was an employee. Considering the evidence presented in this case, and Petitioner's demeanor during her testimony, it is found that Petitioner did not raise these allegations against Mr. Hewett until after her termination from the Agency. It is further found that if Mr. Hewett made the alleged comments, as described by Petitioner during her testimony, Mr. Hewett's comments were isolated and not pervasive. Further, Petitioner's testimonial description of Mr. Hewett's comments did not indicate that his comments were overtly intimidating, insulting, or made with ridicule, and the evidence was insufficient to show, or reasonably suggest, that Mr. Hewett's alleged comments made Petitioner's work environment at the Agency hostile or intolerable. In sum, Petitioner failed to show that the Agency discriminated against Petitioner by treating her differently, creating a hostile work environment, or terminating her because of her disability, marital status, sex, color, race, age, or her spouse's national origin. Petitioner also failed to show that the Agency retaliated against her because of any complaint that she raised or based upon Petitioner's engagement in any other protected activity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 7th day of February, 2013, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 7th day of February, 2013.
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
