The Issue Whether the Respondent committed an unlawful employment practice?
Findings Of Fact At all times relevant, Petitioner, Mr. Simmons, was an employee of Respondent. Mr. Simmons was employed as a "ramp serviceman" in Tallahassee, Florida. His responsibilities included loading and unloading passenger baggage from airplanes. Mr. Simmons is black. On the evening of June 17, 1986, Mr. Simmons was working a shift which began at 5:00 p.m. and ended at 1:00 a.m. on June 18, 1986. While unloading passenger baggage from a plane in the early evening of June 17, 1986, Mr. Simmons and a coworker, Mr. Curtis, found a blue jacket. Mr. Wilkowsky, another coworker, took the jacket to Respondent's office in the terminal building and hung it up. Respondent has a policy for dealing with found property which requires that the person finding property complete an "Article Lost Found Report." If the person finding the property cannot complete the Report, the shift manager or another supervisor will complete the Report. In this case, a Report was not completed regarding the blue jacket. Who had responsibility for completing the report cannot be determined from the evidence presented at the hearing. Later that evening, Mr. Gibbons, an operations manager with Respondent, heard Mr. Simmons and Mr. Wilkowsky taking in an adjacent room about how something fit each of them. When Mr. Gibbons looked in the room, Mr. Simmons was wearing a dark blue, double-breasted jacket which seemed to fit. Around midnight on the night of June 17-18, 1986, Mr. Simmons went looking for his supervisor, Mr. Stillwell, the shift manager. Mr. Simmons was going to tell Mr. Stillwell that he was going to take the blue jacket to get it cleaned. Mr. Simmons did not find Mr. Stillwell. Mr. Simmons, without informing any of Respondent's employees, took the jacket with him when he left work. The next morning, Mr. Simmons took the jacket to the cleaners and returned the jacket to Respondent at approximately 1:30 p.m. on June 18, 1986. Respondent has a policy prohibiting the unauthorized removal of Respondent's property or a customer's property from Respondent's premises. Prior to removing a customer's property from the premises, an employee must receive written authorization from a member of management. In June 1986, and for a number of years prior to 1986, employees removing property from Respondent's premises without authorization were subject to immediate dismissal, regardless of seniority, prior record, or position within the company. Respondent's policy concerning unauthorized removal of property from Respondent's premises had been extensively disseminated to all employees. The dissemination consisted of a statement contained in the Employee Handbook which all new employees receive, of memorandums posted in bulletin boards, and of memorandums mailed or hand delivered to all of Respondent's employees. When Ms. Bell, Respondent's station manager in Tallahassee in June 1986, found out that a customer's jacket had been reported missing and that Mr. Simmons had taken the jacket off the premises, she initiated an investigation to determine what had happened. After completing the investigation and determining that Mr. Simmons had not left a note nor informed any of Respondent's employees that he was taking the jacket, Ms. Bell decided to discharge Mr. Simmons for violating the company's policy regarding the unauthorized removal of customer's property. Mr. Simmons was discharged on June 20, 1986. Charles Updegraff, a white employee with Respondent was discharged after being reprimanded six times due to customer complaints. His discipline was handled under Respondent's progressive discipline policy, and none of Mr. Updegraff's infractions were of the type subject to immediate discharge. Mr. Curtis, a black employee with Respondent made a large number of unauthorized long distance calls. He was not discharged but was required to pay the Respondent for the telephone calls. Under Respondent's policies, this infraction may result in a discharge, but it is not an infraction for which immediate discharge is mandated.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission of Human Relations issue a Final Order dismissing the Petition for Relief filed in this case. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4236 The Respondent submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Respondent's Proposed Findings of Fact Respondent's Paragraph Number Ruling and Recommended Order Paragraph Number 1. Accepted. RO2 2. Accepted. RO1 3. Accepted. RO4 4. Accepted. RO7 5. Accepted. RO9 6. Accepted generally. RO8,9 7-8. Supported by competent evidence but unnecessary to the decision reached, except for last sentence which is Accepted. RO10 9. Accepted. RO6 10-11. Accepted generally. RO11,12 12. Accepted generally. RO13 13. Accepted RO13 14-15. Supported by competent evidence but unnecessary to the decision reached. COPIES FURNISHED: Dennis S. Simmons 4400 Bright Drive Tallahassee, Florida 32303 Michael F. Coppins, Esquire Douglas, Cooper, Coppins & Powell 211 East Call Street Tallahassee, Florida 32302-1674 Donald A. Griffin Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Sherry B. Rice, Clerk Human Relations Commisson, 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue in this case is whether Respondent, Just 1 More Bar and Grill (hereinafter the "Bar"), discriminated against Petitioner, Mildred R. Smith, by refusing her entry into the Bar due to her race, African-American.
Findings Of Fact Petitioner is an African-American woman. The Bar is a Florida sole proprietorship which operates as an establishment selling alcohol for consumption on the premises. Despite its name, there is no grill or food service at the Bar. The Bar is owned by Kerry Winkler, a Caucasian male. On or about May 8, 2011, Petitioner was going to meet a male friend at an establishment across the street from the Bar. Petitioner could not remember the exact date, but thought it was in April or May. Petitioner was accompanied by a female friend. Petitioner and her female friend had just left church, and it was approximately three or four o'clock on a Sunday afternoon. Upon arrival at the male friend's establishment, no one was there. Petitioner decided to go into the Bar to have a beer while she waited. Her companion did not join her. Petitioner recounts that as she started to enter the Bar, a man stood in the doorway, held out his hand, and said, "You can't come in here." Nothing more was said. The man was a large white man and wearing a "biker's jacket" with a rag on his head. He had a large mustache. Petitioner says that she could see into the Bar and that all the patrons in the Bar were white. She turned around and walked back to her car. As she crossed the parking lot, a man sitting on a motorcycle said, "Man, that was quick." Petitioner concluded that she had been discriminated against because of her race. She believed she had been denied admission to the Bar because she is African-American. She filed a complaint with the Florida Commission on Human Relations about the incident. In her verified complaint, Petitioner said that she "was met by a white female (Kerry Winkler) who told me I could not enter the building and that I was not welcome there." Under oath at the final hearing, Petitioner said that she could not explain her verified statement to the Commission, because she remembers being met by a large white male, not a woman. She did not know why the name Kerry Winkler was in her signed statement. Kerry Winkler, the owner of the Bar, is, in fact, a Caucasian male. At the final hearing, Petitioner was introduced to Kerry Winkler; she said he was not the man who met her at the door of the Bar. No one associated with the Bar knows who the man was that Petitioner met at the front door. There are no employees fitting his description and neither the owner, nor patrons at the Bar, recognized the person Petitioner described. Several regular patrons of the Bar testified at final hearing. Each of them was an African-American male. Each affirmed the Bar's open policy of allowing all people to come into the Bar. None of them had ever witnessed any discriminatory behavior at the Bar, especially by the owner who they all knew and respected. Neither the owner, nor his wife (who was likely operating the Bar on the day in question), could identify the person that Petitioner described. No one by that description is an employee or otherwise affiliated with the Bar. Neither the owner, nor his wife, was aware that Petitioner had allegedly been denied admission into the Bar until several months after the fact. They received notice of the allegation from the Commission well after the fact. Petitioner did not contact the Bar after the fact to make a complaint or report the alleged incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Mildred R. Smith in its entirety. DONE AND ENTERED this 8th day of August, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 8th day of August, 2011. COPIES FURNISHED: 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 Mildred R. Smith Post Office Box 4158 Lake Wales, Florida 33859 Robert H. Grizzard, II, Esquire Robert H. Grizzard, II, P.A. Post Office Box 992 Lakeland, Florida 33802-0992
The Issue The issue presented is whether Respondent Community Education Partners, d/b/a Emerald Bay Academy, engaged in an unlawful employment practice as to Petitioner Adam Killick, and, if so, what relief should be granted to Petitioner, if any.
Findings Of Fact On October 3, 2005, the Commission filed with the Division of Administrative Hearings Petitioner's Petition for Relief. On that same date, an Initial Order was entered by the assigned Administrative Law Judge requesting certain information for the scheduling of the final hearing in this cause. Due to the parties' failure to comply with that Order, venue rights were deemed waived. On October 14, 2005, a Notice of Hearing was entered scheduling this cause for final hearing on December 19, 2005. An Order of Pre-Hearing Instructions was entered that same day requiring the parties to disclose to each other no later than seven days before the final hearing the names of their witnesses and further requiring them to exchange copies of their exhibits by that same deadline. That Order further provided that failure to timely disclose could result in exclusion of that evidence at the final hearing. On December 12 Respondent filed its Motion for Continuance of the final hearing. On December 13 Respondent filed correspondence advising that Petitioner had agreed to the continuance, that Petitioner would be out of the country the entire month of January 2006, and that Petitioner and Respondent had agreed to certain dates for re-scheduling the final hearing. One of those dates was February 17, 2006. On December 14, 2005, an Order Granting Continuance and Re-Scheduling Hearing was entered, scheduling this cause for final hearing on February 17, 2006, validating any served subpoenas for the new date, and incorporating the provisions of the first Notice of Hearing and the Order of Pre-Hearing Instructions. On January 26, 2006, Respondent filed its Agreed Motion for Leave to Present Testimony Telephonically, requesting that a witness who lives in New Mexico be allowed to testify telephonically at the final hearing on February 17, 2006. The Agreed Motion clearly set forth Petitioner's agreement to allow the telephonic testimony of that witness at the final hearing. On January 27, 2006, that Agreed Motion was granted, subject to Respondent making the necessary arrangements and subject to compliance with Florida Administrative Code Rule 28-106.213(5), which, inter alia, requires a notary public to be physically present with the witness to administer the oath. On February 3, 2006, Respondent filed its Notice of No Opposition advising that it did not oppose Petitioner's request for a continuance of the February 17, 2006, final hearing date. Petitioner's Motion for Continuance was filed on February 9, 2006. By Order Granting Continuance entered February 9, 2006, Petitioner's motion was granted, the final hearing scheduled for February 17, 2006, was cancelled, and the parties were afforded up to and including February 28, 2006, to advise the undersigned as to the status of this matter, as to the length of time required for the final hearing, and as to several mutually- agreeable dates for re-scheduling the final hearing. That Order further provided that failure to timely comply would result in the conclusion that this matter had been amicably resolved and the file of the Division of Administrative Hearings would be closed. Neither party filed any document or pleading on or before February 28, 2006. On March 3, 2006, Petitioner filed his first Request for Discovery and sent a letter to the Clerk of the Division requesting subpoenas and indicating that he would accommodate a hearing date convenient to the undersigned and to Respondent. The letter also advised that after he had received all materials, he needed time to prepare. The letter did not provide dates for re-scheduling the final hearing in compliance with the February 9, 2006, Order. Subpoenas were issued to Petitioner pursuant to his request in that letter. The Order Re-Scheduling Hearing entered March 6, 2006, recited the provisions of the prior Order giving a deadline for providing mutually-agreeable dates for re-scheduling the final hearing and the failure of the parties to comply with that Order. It also recited that despite the earlier Order providing for the automatic closure of the Division's file if the parties failed to timely provide dates, since Petitioner had filed documents subsequent to the deadline, it was assumed that the case had not been amicably resolved. The Order re-scheduled the final hearing in this matter to be held on March 24, 2006, validated any served subpoenas for the new date, and incorporated the provisions of the first Notice of Hearing and the Order of Pre-Hearing Instructions. On March 14, 2006, Petitioner filed a Motion to Compel Discovery and a Motion for Rehearing. The Motion for Rehearing is confusing: it asks for reconsideration of his discovery request (no ruling had previously been requested or made); it complains about the December 2005 hearing date having been continued; it withdraws Petitioner's prior agreement to allow a witness to testify by telephone (which agreement had been subsequently ordered); it specifically states that Petitioner is not requesting another continuance but then speaks of requiring time to prepare that would extend well beyond the scheduled final hearing date. On March 16, 2006, Respondent's Response to Petitioner's Motion to Compel Discovery and Motion for Rehearing was filed, opposing the granting of Petitioner's pending motions. Petitioner's motions were heard telephonically on March 20, 2006. The manual he wanted produced, which Respondent agreed to give him, was ordered produced, but the remainder of Petitioner's requests were denied. An Order on Pending Motions was entered that same day to memorialize the rulings announced during the telephonic hearing. The Order specifically provided that Petitioner's request for a postponement of the final hearing was denied, a ruling made and discussed during the telephonic hearing. On March 17, 2006, Respondent filed its witness list, together with a cover letter advising that Respondent had provided Petitioner with its witness and exhibits lists in December. Petitioner has not filed any witness list in accordance with the Order of Pre-hearing Instructions entered October 14, 2005. On March 22, 2006, Respondent filed a Motion to Quash Subpoenas, together with a request that a hearing be held on the Motion that same day. A telephonic hearing was conducted on March 22, 2006, and an Order Granting Respondent's Motion to Quash Subpoenas was entered. During the course of that telephonic hearing, Petitioner indicated that he might not come to the hearing. In response to that statement, the undersigned explained to Petitioner that it was up to him whether he attended the hearing, dismissed his petition for relief, or withdrew his request for a hearing. The undersigned explained to the parties that the hearing would go forward as scheduled, that Petitioner had the burden of proof in this proceeding, and that not appearing or presenting evidence would prevent him from meeting his burden of proof. After normal business hours on March 22, 2006, and therefore on March 23, 2006, Petitioner filed a Facsimile Letter to Judge Rigot. Although somewhat confusing, the Letter appears to re-argue points previously argued and memorialize Petitioner's understanding (and misunderstandings) of what transpired during the telephonic hearing on March 22, 2006. At 9:30 a.m., on March 24, 2006, Respondent's attorney and its witnesses were present for the scheduled final hearing. The undersigned waited for 35 minutes before opening the record and almost 10 minutes more before closing the record, with no appearance by Petitioner or anyone on his behalf.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed to meet his burden of proof and dismissing his Petition for Relief. DONE AND ENTERED this 29th day of March, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 29th 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 Adam Killick Post Office Box 18331 Panama City, Florida 32417 M. Brenk Johnson Winstead Sechrest & Minick, P.C. 1201 Elm Street, Suite 5400 Dallas, Texas 75270
The Issue Whether the Petitioner's claim should be dismissed.
Recommendation Based on the foregoing, it is RECOMMENDED that the Commission enter a Final Order dismissing this cause. DONE AND ENTERED this 19th day of March, 2008, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 19th day of March, 2008. 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 Elizabeth Coke, Esquire Richeson & Coke, P.A. Post Office Box 4048 Fort Pierce, Florida 34948 Dawn Shook Post Office Box 341 Scottsmoor, Florida 32775
Findings Of Fact Respondent is 37 years old. At all times material, she held a continuing contract of employment with the Broward County, Florida School Board. She has been a teacher for fourteen years and has been training in psychology to better her teaching skills and to become a counselor. At all times materials she was assigned by Petitioner School Board as a third grade teacher at Wilton Manors Elementary School. Respondent remained a third grade teacher on continuing contract until she was suspended without pay from her duties at the close of the workday on April 14, 1984. Effective February 2, 1984, Respondent entered upon formal disability leave with full approval of her principal and the Petitioner School Board. Representations by Petitioner's Counsel that the foregoing problems and disability leave was drug related is not evidence and there is no competent substantial evidence admitted at formal hearing to establish a relationship between Respondent's February 2, 1984 request for disability leave and drug dependency. Respondent's testimony by way of deposition is that she sought disability leave for an anxiety problem. A medical report attached to this deposition reveals that she was hospitalized for depressive reaction from February IS to February 19, 1984. Respondent had previously received therapy in connection with a divorce in 1979. On or about March 2; 1984, Respondent was living at 1421 South Ocean Boulevard Apartment 406, in Pompano Beach, Florida. She shared this apartment from 1983 until that date with Tony Trevathan and her brother. The apartment lease was not in her name. Respondent knew at least two other people who had keys to the apartment besides herself. She also felt the manager, the manager's wife, and various repairmen had had keys. Edward C. Wolff, a police officer for the City of Pompano Beach, was working with officer Canner during the night shift of March 2, 1984, and was called to the residence of the Respondent on that evening with reference to a disturbance call. At approximately 1:30 a.m., the police officers arrived in the lobby of Respondent's apartment complex, and came into contact with Mr. Trevathan. He identified himself as one of the people they were there to see, so Officer Canner talked to him in the lobby while Officer Wolff went up to the apartment. When Officer Wolff knocked on the apartment door, he identified himself as a police officer of the City of Pompano Beach and stated that he was there for a disturbance call. At first Respondent questioned his identity but after verification from the Pompano Beach Police Department she invited Officer Wolff into the apartment to talk about the problem. Respondent directed Officer Wolff to have a seat at a table located in a joint living and family room, and she sat directly across from him. While Officer Wolff was talking to Respondent he observed a clear plastic baggie on the table about one and a half feet directly in front of him. Inside the bag was a large number of white tablets. Based on his training, education, and experience as a police officer with specialized training in narcotics; he surmised that the tablets were methaqualone tablets which a later laboratory report confirmed to be the case. After Officer Wolff saw the bag with the methaqualone tablets he continued to seek information related to the disturbance call. The Respondent appeared to him to be impaired. She was unsteady on her feet and began a second sentence before finishing a previous sentence. Officer Wolff noted that there was no smell of an alcohol beverage on her breath. He felt her behavior was consistent with people who are taking cocaine or methaqualones. Officer Wolff looked at the tablets and noticed that they were marked "Lemon 714," which in his experience is a common designator for methaqualone tablets. At that point he took physical control of the tablets and advised Respondent that she was being detained for further investigation due to the narcotics he found. He radioed Officer Canner to tell him to bring Mr. Trevathan upstairs and informed him of the possible narcotics violations. Officer Wolff counted a total of sixty-seven (67) tablets in the baggie. From where he stood, officer Wolff could see clearly into the kitchen area. He saw a brown woman's shoulder bag on the counter. He testified that there were several white plastic baggies sticking out of the bag. As Officer Wolff approached the bag to look closer and determine what the white powder was, Respondent exclaimed, That's my bag". Officer Wolff removed the baggies from the purse. There were a total of eleven baggies which appeared to be filled with cocaine, which a later laboratory report confirmed to be the case. Respondent maintained that the brown bag was not a shoulder bag but a molded bag which she had thrown in the kitchen trash can earlier in the day. She stated that when she discarded it the bag was empty; but there is apparently no dispute concerning what was found in it by Officer Wolff. On top of a stove, approximately three to four feet away from the purse Officer Wolff found a couple of other clear plastic baggies that had white powdery residue which later tested as cocaine. On top of a dresser in the bedrooms Officer Wolff saw a single tablet which appeared to be the same colors shape, and form of methaqualone tablets that he had already taken. That tablet tested as methaqualone. Respondent admits that this had been her bedroom up until the day in question but that she was in the process of moving out throughout the day. She testified she had not cooked in the kitchen for a week and had slept in the living room for a week on the sofa. She had packed clothes in the bedroom earlier in the day. Officer Wolff observed the make-up mirror in the bathroom area that had a Publix check cashing card along with some white powder on it. He took the mirror and saw that the Publix check cashing card was in the name of Kathy R. Shumney. This powder subsequently tested as cocaine. Officer Wolff asked Mr. Trevathan if he was aware of the drugs and the response was in the affirmative. He did not ask Respondent and Mr. Trevathan's statement is not construed as an admission against interest by her. He then arrested Respondent and Mr. Trevathan for possession of narcotics i.e. controlled substances. Detective Deborah Pollack, the Identification Technician for the Pompano Beach Police Department, arrived at the scene in response to Wolff's radio call and was instructed to take pictures throughout the apartment. She took a total of eight pictures (Petitioner's Composite 5A through H) which portrayed the substances in their places of discovery the two persons arrested, and the general condition of the apartment. Officer Pollack testified that she arrived on the scene at approximately 1:41 a.m. Except that the first baggie had been replaced on the table the photographs substantially support Officer Wolff's testimony. Respondent testified that she had packed most of her belongings to leave the apartment for good earlier in the day. She then went to the Galleria Mall with Tony Trevathan to buy clothes. She had been in the apartment about 15 minutes when Officer Wolff arrived. At that time Trevathan was, so far as Respondent knew, removing packages of purchases from his car. The photographs by Officer Pollack confirmed that packing, unpacking, or heavy cleaning had been going on. On March 30, 1984, Respondent presented herself to Dr. Daniel H. Goldwin, M.D. Between that day and her release on April 4, 1984 she underwent urinalysis and a number of other tests which resulted in a diagnosis of anxiety, depressions and increased alcohol abuse, but she tested as having no narcotics in her system. In giving her medical history to this doctors Respondent admitted trying cocaine on occasion, but saying it made her nervous. These tests were approximately 30 days after the arrest for drug possession. Linda Marable has been Principal at Wilton Manors Elementary School for five years and supervised Respondent during the 1983-1984 school term. It is not clear whether she had observed or supervised Respondent before that term. She testified that in her opinion, Respondent's effectiveness as a teacher would be impaired as a result of the charges lodged against her because the community and faculty are aware of the drug charges lodged against Respondent due to newspaper reports. Some children in the school also had mentioned it to Principal Marable. Ronald Steven Wright, Petitioner's Director of Non- instructional Personnel, also testified that Respondent's effectiveness was impaired but Mr. Wright's opinion, backed by no specific predicate of what opportunity he has had to examine the knowledge and the reactions of others in the educational community, is not of significant weight. Both Mr. Wright and Ms. Marable conceded that innocence of the charges would affect their opinions. Neither educator felt arrest without proof of wrongdoing should be the controlling factor in effectiveness. However, Ms. Marable felt the mere notoriety of the arrest would be significant on a case by case basis. On April 24, 1984, Linda Kay Marable, Principal of Wilton Manors Elementary School, reported to Petitioner's "Personnel Services" that four months before, on 11/01/83 and 11/02/83, Respondent was tardy in arriving at school. How late after 8:00 a.m. Respondent arrived was not established by any competent evidence in the record. She also reported on that date that on 11/29/83 Respondent was absent and did not call for a substitute until 7:45 a.m., which was considered "late" pursuant to establishment of the official school day. In connection with the foregoing Respondent had received a memorandum dated November 30, 1983 advising her that further such situations would result in formal charges of dismissal for "willful neglect of duties". Principal Marable also reported on April 24, 1984, that on some occasion not specified Respondent had been late in handing in lesson plans that her students' papers were not graded, that the MBS test was not up-to-dated and that Respondent had an above average number of problems with classroom control. The record reveals no specificity of date or incident being proved-up for these problems. The principal further reported to "Personnel Services" that Respondent was tardy in arriving at school after 8:00 a.m., on 2/02/84, but how late Respondent arrived was never established. Until Respondent was subsequently arrested on March 2, 1984 for drug possession, none of these earlier problems were reported to Petitioner. The April 24, 1984, Memorandum of Report mentioned these incidents and drug charges together and recommended either not rehiring Respondent for the next term (1984- 1985) or returning her to annual contract. Respondent has never been formally charged with unsatisfactory performance except as it might relate to her arrest on March 2, 1984. Petitioner has urged a number of proposed findings of fact based upon a plea to certain criminal charges lodged against Respondent arising out of the March 2, 1984 arrest, which plea was entered June 22, 1984. For the reasons set forth in the following conclusions of law the undersigned rejects these proposals and specifically makes no findings of fact in connection with that plea. By a letter to the Hearing Officer filed with the Division of Administrative Hearings September 12, 1985, which at Respondent's request has been deemed a Motion for Rehearing, Respondent represented that she did not attend the formal hearing in this cause on June 17, 1985 because she "was a patient at Humana Hospital Biscayne in the Alcohol and Substance Abuse Program." As a pleading this letter/motion is part of the record herein.
Recommendation Accordingly, upon the foregoing findings of fact and conclusions of law, it is , RECOMMENDED: That the School Board of Broward County, Florida enter a Final Order rescinding its suspension without pay of Respondent, reinstating her as a continuing contract teacher as part of its instructional personnel, and reinstating all back pay and benefits subject to any appropriate mitigation by consideration of disability leave or physical inability to work. DONE and ORDERED this 10th day of January, 1986, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1986.
The Issue The issue is whether Respondent committed employment discrimination against Petitioner.
Findings Of Fact Petitioner is a Peruvian South American Indian and Hispanic. He is also a Spanish speaker, although he speaks English fluently. Respondent owns and operates a chain of grocery stores. Petitioner worked at Respondent's store in Fort Lauderdale from December 1992 until he was terminated in August 2005. Petitioner started as a produce clerk and, at the time of his termination, he had worked his way up to produce manager. He had been employed as a produce manager of the Fort Lauderdale store since April 2002. Petitioner enjoyed a good reputation among his coworkers. He was fair and a good manager. He enjoyed good rapport with customers and employees. Petitioner's employment record was unblemished except for one incident prior to the subject incident. On February 17, 2005, Petitioner received an Unsatisfactory Work Warning for misuse of Respondent's email system and inappropriate communication. Petitioner was one of several employees disciplined at this time for this offense. Under well-established and uniformly enforced rules, Respondent maintained a policy of terminating any employee who received any discipline within six months after receipt of an Unsatisfactory Work Warning. On August 3, 2005--which is within six months of February 17, 2005--Petitioner was approached by an employee whom he supervised. The employee asked Petitioner for an evaluation. Petitioner complied, informing the employee that his work merited a raise, but no money was available at the time for raises. The employee took his request to Petitioner's supervisor, who conducted a meeting with the employee and Petitioner. During the meeting, she explained Respondent's policy about raises, correcting the mistaken understanding of Petitioner that raises were not presently available. She approved the employee for a raise. The meeting was amicable and ended in this fashion. Later in the day of the meeting, Petitioner approached the employee, playfully tapped him with a small bundle of wire wraps used to bind produce, and asked him, jokingly, why he was trying to get Petitioner into trouble. The employee felt intimidated about the incident and reported it to Respondent's supervisor. Respondent has no tolerance for workplace behavior that may be perceived as intimidating to its employees. Based on this policy, Respondent determined that it was necessary to discipline Petitioner for the incident with the employee. But for the prior incident involving the company email system, Respondent would not have terminated Petitioner. However, because the second incident occurred within six months of the earlier warning, Respondent, consistent with its policy, terminated Petitioner. There is no evidence whatsoever that Respondent terminated Petitioner due to his race or national origin. Although the reason for terminating him does not withstand much scrutiny, it is abundantly clear that the cited reason for termination does not mask an unlawful basis for termination.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 7th day of June, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 7th day of June, 2007. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Alan D. Jimenez 820 Northeast 19th Terrace Fort Lauderdale, Florida 33304 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jennifer L. Price, Esquire Stearns, Weaver, Miller, Weissler Alhadeff & Sitterson, P.A. 200 East Las Olas Boulevard, Suite 2100 Fort Lauderdale, Florida 33301
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2008),1 by discriminating against Petitioner based on her color and/or her age.
Findings Of Fact The Town is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner was hired by the Town in November 2004 as an administrative assistant to Mayor Anthony Grant. Petitioner is a dark-skinned African-American woman who was 51 years of age at the time of the hearing. Petitioner was interviewed and hired by a committee appointed by Mayor Grant. The committee included town clerk Cathlene Williams, public works director Roger Dixon, and then- chief administrative officer Dr. Ruth Barnes. Mayor Grant did not meet Petitioner until the day she started work as his administrative assistant. The mayor's administrative assistant handles correspondence, filing, appointments, and anything else the mayor requires in the day-to-day operations of his office. For more than two years, Petitioner went about her duties without incident. She never received a formal evaluation, but no testimony or documentary evidence was entered to suggest that her job performance was ever less than acceptable during this period. In about August 2007, Petitioner began to notice a difference in Mayor Grant's attitude towards her. The mayor began screaming at her at the top of his lungs, cursing at her. He was relentlessly critical of her job performance, accusing her of not completing assigned tasks. Petitioner conceded that she would "challenge" Mayor Grant when he was out of line or requested her to do something beyond her job description. She denied being disrespectful or confrontational, but agreed that she was not always as deferential as Mayor Grant preferred. During the same time period, roughly July and August 2007, Petitioner also noticed that resumes were being faxed to the Town Hall that appeared to be for her job. She asked Ms. Williams about the resumes, but Ms. Williams stated she knew nothing and told Petitioner to ask the mayor. When Petitioner questioned the mayor about the resumes, he took her into his office and asked her to do him a favor. He asked if she would work across the street in the post office for a couple of weeks, to fill in for a post office employee who was being transferred to the finance department; as a team player, Petitioner agreed to the move. While she was working as a clerk at the post office, Petitioner learned that the mayor was interviewing people for her administrative assistant position. She filed a formal complaint with the Town. For a time after that, she was forced to work half-time at the post office and half-time in the mayor's office. On or about October 22, 2007, Petitioner was formally transferred from her position as administrative assistant to the mayor to the position of postal clerk in the post office. Her salary and benefits remained the same. At the hearing, Mayor Grant testified that he moved Petitioner to the post office to lessen the stress of her job. Based on his conversations with Petitioner, he understood that Petitioner was having personal or family problems. He was not privy to the details of these problems, but had noticed for some time that Petitioner seemed to be under great stress. The post office was a much less hectic environment than the mayor's office, and would be more amenable to her condition. Ms. Williams, the town clerk, testified that the mayor told her that Petitioner was stressed and needed more lax duties than those she performed in the mayor's office. Mr. Dixon, the public works director, testified that Petitioner had indicated to him that she was under pressure, but she did not disclose the cause of that pressure. He recalled that, toward the end of her employment with the Town, Petitioner mentioned that she felt she was being discriminated against because of her skin color. Petitioner denied ever telling Mayor Grant that she was feeling stressed. She denied telling him anything about her family. Petitioner stated that the only stress she felt was caused by the disrespect and humiliation heaped upon her by Mayor Grant. Petitioner's best friend, Gina King Brooks, a business owner in the Town, testified that Petitioner would come to her store in tears over her treatment by the mayor. Petitioner told Ms. Brooks that she was being transferred to the post office against her will, was being forced to train her own replacement in the mayor's office,3 and believed that it was all because of her age and complexion. Mayor Grant testified that he called Petitioner into his office and informed her of the transfer to the post office. He did not tell her that the move was temporary. He did not view the transfer from administrative assistant to postal clerk as a demotion or involving any loss of status. Mayor Grant testified that an additional reason for the change was that he wanted a more qualified person as his administrative assistant. He acknowledged that Petitioner was actually more experienced than her eventual replacement, Jacqueline Cockerham.4 However, Petitioner's personal issues were affecting her ability to meet the sensitive deadlines placed upon her in the mayor's office. The mayor needed more reliable support in his office, and Petitioner needed a less stressful work environment. Therefore, Mayor Grant believed the move would benefit everyone involved. Mayor Grant denied that Petitioner's skin color or age had anything to do with her transfer to the post office. Petitioner was replaced in her administrative assistant position by Ms. Cockerham, a light-skinned African- American woman born on October 17, 1961. She was 46 years of age at the time of the hearing. Documents introduced by the Town at the hearing indicate the decision to hire Ms. Cockerham was made on March 26, 2008. Ms. Williams testified that she conducted the interview of Ms. Cockerham, along with a special assistant to the mayor, Kevin Bodley, who no longer works for the Town. Both Ms. Williams and Mayor Grant testified that the mayor did not meet Ms. Cockerham until the day she began work in his office. Petitioner testified that she knew the mayor had met Ms. Cockerham before she was hired by the Town, because Mayor Grant had instructed Petitioner to set up a meeting with Ms. Cockerham while Petitioner was still working in the mayor's office. Mayor Grant flatly denied having any knowledge of Ms. Cockerham prior to the time of her hiring. On this point, Mayor Grant's testimony, as supported by that of Ms. Williams, is credited. To support her allegation that Mayor Grant preferred employees with light skin, Petitioner cited his preferential treatment of an employee named Cherone Fort. Petitioner claimed that Mayor Grant required her to make a wake-up call to Ms. Fort every morning, because Ms. Fort had problems getting to work on time. Ms. Fort was a light-skinned African-American woman. Under cross-examination, Petitioner conceded that Mayor Grant and Ms. Fort were friends, and that his favoritism toward her may have had nothing to do with her skin color. Petitioner claimed that there were other examples of the mayor's "color struck" favoritism toward lighter-skinned employees, but she declined to provide specifics.5 She admitted that several dark-skinned persons worked for the Town, but countered that those persons do not work in close proximity to the mayor. As to her age discrimination claim, Petitioner testified that a persistent theme of her conversations with Mayor Grant was his general desire for a younger staff, because younger people were fresher and more creative. The mayor's expressed preference was always a concern to Petitioner. Petitioner testified that she felt degraded, demeaned and humiliated by the transfer to the post office. She has worked as an executive assistant for her entire professional career, including positions for the city manager of Gainesville and the head of pediatric genetics at the University of Florida. She believed herself unsuited to a clerical position in the post office, and viewed her transfer as punitive. In April 2008, Petitioner was transferred from the post office to a position as assistant to the town planner. Within days of this second transfer, Petitioner resigned her position as an employee of the Town. At the time of her resignation, Petitioner was being paid $15.23 per hour. Petitioner is now working for Rollins College in a position she feels is more suitable to her skills. She makes about $14.00 per hour. The greater weight of the evidence establishes that there was a personality conflict between Petitioner and Mayor Grant. Neither Petitioner nor Mayor Grant was especially forthcoming regarding the details of their working relationship, especially the cause of the friction that developed in August 2007. Neither witness was entirely credible in describing the other's actions or motivations. No other witness corroborated Petitioner's claims that Mayor Grant ranted, yelled, and was "very, very nasty" in his dealings with Petitioner.6 No other witness corroborated Mayor Grant's claim that Petitioner was under stress due to some unnamed family situation. The working relationship between Mayor Grant and Petitioner was certainly volatile, but the evidence is insufficient to permit more than speculation as to the cause of that volatility. The greater weight of the evidence establishes that, due to this personality conflict, Mayor Grant wanted Petitioner transferred out of his office. He may even have used the subterfuge of a "temporary" transfer to exact Petitioner's compliance with the move. However, the purpose of this proceeding is not to pass judgment on Mayor Grant's honesty or skills as an administrator. Aside from Petitioner's suspicions, there is no solid evidence that Mayor Grant was motivated by anything other than a desire to have his office run more smoothly and efficiently. Petitioner's assertion that the mayor's preference for lighter-skinned employees was common knowledge cannot be credited without evidentiary support. Petitioner's age discrimination claim is supported only by Petitioner's recollection of conversations with Mayor Grant in which he expressed a general desire for a younger, fresher, more creative staff. Given that both Petitioner and Ms. Cockerham were experienced, middle-aged professionals, and given that Mayor Grant had nothing to do with the hiring of either employee, the five-year age difference between them does not constitute evidence of discrimination on the part of the mayor or the Town. Petitioner was not discharged from employment. Though Petitioner perceived it as a demotion, the transfer to the post office was a lateral transfer within the Town's employment hierarchy. Petitioner was paid the same salary and received the same benefits she received as an administrative assistant to the mayor. A reasonably objective observer would not consider working as a clerk in a post office to be demeaning or degrading.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Town of Eatonville did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 17th day of February, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 2009.
The Issue Whether the Respondent engaged in employment practices in violation of Chapter 760, Florida Statutes.
Findings Of Fact The Petitioner, Lakeyta Givens, is a black female, and was first employed by the Respondent on February 6, 2001. The Petitioner had no experience in the business of re- financing real property; however, the Petitioner was trained by the Respondent, and was given one promotion and a pay-raise. She became sufficiently knowledgeable and productive that she was tasked to train other employees. After she had been with the company for nearly two years, her supervisor wanted to step down for personal reasons. This opened up a position with greater responsibility and increased pay. The Respondent was a closely held corporation owned and operated by Anthony and Rachel Catanzeriti. Anthony Catanzeriti was the manager of the office and was there daily. His wife, Rachel, was the president of the corporation and was not there on a daily basis. She did, however, exercise primary control over the company. Anthony Catanzeriti asked the Petitioner if she would be interested in moving into the supervisor's position at a salary of $15.00 per hour, a raise of $5.00 per hour. The Petitioner indicated that she would be pleased to make the move. Mr. Catanzeriti indicated that his wife would have to approve the promotion, and that he would talk to her about the promotion. There was no action on the promotion for a long time. The Petitioner was concerned about the status of her promotion. The Petitioner heard during this time that Rachel Catanzeriti had stated that she "would not have a nasty nigger work in the company." The Petitioner asked to speak about her promotion with Mr. and Ms. Catanzeriti, but because of various mutual indispositions a meeting was delayed. On February 3, 2003, Rachel Catanzeriti came in to do some personnel work, and a meeting was arranged at which Mr. Catanzeriti was not present. From the content and progression of this meeting, it was clear that the Petitioner was concerned that she was not being promoted because of her race. The Petitioner immediately confronted Ms. Catanzeriti about the purported racial slur. Ms. Catanzeriti denied having made such a remark; however, she immediately became angry. The meeting never addressed the promotion because of Ms. Catanzeriti's anger. In an effort to de-escalate the situation, the Petitioner walked out of the office. Ms. Catanzeriti followed the Petitioner out of the office and between buildings continuing the heated exchange. The Petitioner asked her to discuss the racial epithet, and Ms. Catanzeriti, replied, "Let's talk about your big fat ass." Very shortly after this comment and within the same argument, Ms. Catanzeriti fired the Petitioner. Subsequently, the supervisor's position was filed by a white female, whom the Petitioner had previously trained. The Petitioner's work record was good, and her attendance was regular. She was unable to find employment until April 2004. After the Petitioner had been fired, U S Mortgage, Inc., was closed by the Office of the State's Attorney. The Petitioner reported that Mr. Catanzeriti was currently imprisoned out of state, and Ms. Catanzeriti was living in Texas.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That FCHR enter its final order directing that the Respondent desist from discriminatory employment practices and awarding the Petitioner $4,800.00 in damages for lost wages. DONE AND ENTERED this 6th day of May, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lakeyta Givens Post Office Box 293 Sanderson, Florida 32087 U S Mortgage, Inc. 28 West Macclenny Avenue, Suite 14 Macclenny, Florida 32063 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment practice in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Petitioner was employed for approximately five years with Respondent as a salesman. RF Group, LLC, is a limited liability company, doing business as Respondent, McGowan's Heating and Air Conditioning, and is a company engaged in the heating and air conditioning business. Petitioner was a successful salesman for four and one- half years with the company until a new salesman was hired. According to Petitioner, the new salesman was given most of the sales leads and Petitioner was cut out. Eventually, Petitioner's salary was reduced due to a decrease in his sales performance. He attributes his decrease in sales production to Respondent choosing the new salesman over him. Although he claimed age discrimination in his initial complaint, Petitioner offered no evidence or testimony that he was not given the sales leads due to his age and that the younger salesman received the leads because Respondent considered Petitioner too old to conduct his business. Petitioner resigned his position with Respondent because he was not making enough salary. After his resignation, Petitioner went to work with Total Air Care, but his employment was terminated due to company lay-offs in October 2010.
Recommendation it is Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations issue a final order finding Respondent not guilty of the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 11th day of August, 2011, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 G. Alan Howard, Esquire Milam, Howard, Nicandri, Dees & Gilliam, P.A. East Bay Street Jacksonville, Florida 32202 Luis G. Arias 3526 Laurel Leaf Drive Orange Park, Florida 32065 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
