The Issue The issue to be resolved in this proceeding is whether Petitioner was the subject of an unlawful employment practice.
Findings Of Fact Respondent is a residential facility for persons with various disabilities. It maintains several buildings to house its clients. On September 1, 2000, Petitioner, who is female, began her employment with Respondent. She was employed as a consumer adviser. In that position she was responsible for transporting clients to and from appointments, picking up various medications and some clerical duties as needed. Initially, she was assigned to work the 7:00 a.m. to 3:00 p.m. shift at one of the Respondent’s facilities. Sometime around August 26, 2000, Petitioner was reassigned to the night shift because, through a miscommunication, Respondent’s director believed Petitioner had cancer and was undergoing chemotherapy. The director thought the nightshift would be less stressful during this time period. However, the evidence showed that it was Petitioner’s father who had cancer and was undergoing chemotherapy. The manager’s belief that it was Petitioner who had cancer was genuine and the shift change was made in order to help Respondent. Indeed, at the time Respondent never complained that the change in shift was made to sexually harass her. Around September 10, 2002, Petitioner claimed she was sexually accosted by a co-worker, Tommy Moore. Mr. Moore worked the same shift as Petitioner and at the same building. Petitioner testified that while she was on the phone to her supervisor, Otelia Arnold, Mr. Moore entered the room and began making lewd gestures of a sexual nature to her. At one point he allegedly came up behind her and rubbed his penis against her. Petitioner reported the incident to Ms. Arnold while she was on the phone with her. Ms. Arnold did not testify at the hearing and there were no corroborating witnesses to the incident. Mr. Moore denied the acts alleged by Petitioner. Petitioner did not report the incident to the executive director and did not report the incident to the police. On the other hand, Petitioner grew very emotional during the hearing while testifying about the incident. However, the totality of the evidence was insufficient to establish that Petitioner was accosted by Mr. Moore during her phone call to her supervisor. Sometime after September 10, 2002, Petitioner began to arrive at work one to three hours ahead of her scheduled work time. Petitioner claimed at the hearing that she arrived early because she didn’t like to ride the bus at night. Co-workers complained about the disruption her early arrival caused in the care of the residents. Therefore, on October 16, 2002, the director gave Petitioner a memorandum instructing her not to arrive at work more than one-half hour before her shift. At the time of the memorandum, Petitioner did not explain her reasons for arriving early to the director. Nor did Petitioner complain to the director that she felt she was being sexually harassed. There was nothing in the record that demonstrated the director’s action was done in order to sexually harass Petitioner or to maintain a sexually hostile work environment. Indeed, the first complaint of sexual harassment of which the director was aware occurred when he received Petitioner’s Charge of Discrimination from the Alachua County EEOC office sometime after November 5, 2002. That charge alleged that Petitioner had been sexually harassed by Mr. Moore as described above. The director immediately investigated the allegation and did not find any evidence that the incident had occurred. Nevertheless, the director reassigned Mr. Moore to another facility and prohibited him from having any contact with Petitioner. The evidence did not show any adverse action was taken against the Petitioner in retaliation for filing her complaint. The evidence was unclear and disjointed regarding specific events following November 5, 2002. At some point, Petitioner telephonically contacted various employees at home while she was at work. Several of these contacts caused the employees and their families to complain to the director. Because of these complaints, Petitioner was instructed not to contact co-employees at home concerning work-related matters. On July 19, 2003, Petitioner observed a resident with scrapes and bruises on his arms. The scrapes and bruises were old self-inflicted injuries from which the resident had picked the scabs. She reported the resident’s condition to the abuse hotline maintained by the Department of Children and Family Services. Dexter Miller was the staff member responsible for the care of the resident during the prior shift. Without any authority to investigate further and in violation of the director’s earlier directive, Respondent tried to call Dexter Miller at home. She spoke with Mr. Miller’s wife and told her that the director planned to blame the abuse on Mr. Miller and that Mr. Miller was required to report to work immediately. Petitioner then contacted Mr. Miller at his other job and told him that the director was going to blame him for the abuse. None of this information was true. As a result of these phone calls and misinformation, Petitioner was terminated from employment with Respondent on July 23, 2003. The basis for Petitioner’s termination was legitimate and reasonable. Finally, there was nothing in the evidence that linked Petitioner’s termination or any directives she received from the director to any sexual abuse or sexual harassment by Respondent. Likewise, there was nothing in the evidence that Respondent permitted a sexually hostile environment to exist or persist. Therefore, due to the lack of evidence, the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 7th day of October, 2004, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 2004. COPIES FURNISHED: Latanya Grimes 3204 Southwest 26th Terrace, Apartment A Gainesville, Florida 32608 Herbert Webb, Esquire 4400 Northwest 23rd Avenue, Suite E Gainesville, Florida 32602 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149
The Issue Whether Petitioner was terminated from her position with Respondent as a picker/stock keeper on or about September 26, 2001, on the basis of her race (African-American) and/or gender (female), in violation of Section 760.10(1)(a), Florida Statutes (2001).
Findings Of Fact Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by Respondent as a temporary employee to perform the job of picker/stock keeper at its Parts Distribution Center in Orlando, Florida, during the time period from September 12, 2001, to September 26, 2001, the date she was terminated. Petitioner worked a total of 14 days for Respondent. Petitioner is an African-American female, a member of a protected class. The Parts Distribution Center for Respondent in Orlando, Florida, is a facility that holds automotive parts that are then shipped to dealerships. All temporary employees at Respondent are at-will employees. Temporary employees are told during their orientation that they are at-will employees who can be terminated at any time, for any reason. Temporary employees at Respondent are only eligible to work 119 days. Most temporary employees are not offered full time permanent employment. There is no guarantee that a temporary employee will receive an offer to work as a permanent employee. Petitioner was hired to perform the job of picker/stock keeper. A picker/stock keeper takes parts off of shelves to be shipped to dealerships. Petitioner participated in an orientation, and Petitioner received the same training as every other temporary employee. Petitioner worked the night shift. Respondent maintains written Standards of Conduct to which all employees must adhere. The Standards of Conduct apply to both temporary and permanent employees. The Standards of Conduct were in effect in September 2001, when Petitioner worked as a temporary employee. All employees are given a copy of the Standards of Conduct when they are hired. Petitioner received a copy of the Standards of Conduct when she was hired, and the Standards of Conduct are posted throughout the plant. The Standards of Conduct provide that an employee's "[f]ailure or refusal to follow the instructions of supervision" is grounds for "disciplinary action up to and including discharge." The supervisors who worked at Respondent's Distribution Center during Petitioner's employment were Richard Alvarez ("Alvarez") (Hispanic male), Lenier Sweeting ("Sweeting") (Black male), and Joe Bromley (White male). Alvarez was temporary supervisor for the night shift from June 2001 until December 2001. Alvarez was Petitioner's direct supervisor. Sweeting was a supervisor in September 2001. Sweeting was chosen to become a supervisor by Hal McDougle, a Black male. Sweeting was the supervisor on the day shift when Petitioner worked at the Distribution Center. His shift ended at 3:30 p.m. but he stayed in the building to help with the transition to the night shift. Alvarez would normally walk Sweeting to the front door to discuss what had occurred during the day shift. On September 25, 2001, Sweeting was walking past the bathroom with Alvarez and heard two women talking and laughing in the bathroom. Alvarez recognized one of the voices to be that of Petitioner. Alvarez had heard rumors that Petitioner had been taking a lot of extended breaks and told Sweeting about the complaints he had been receiving. Alvarez received at least two complaints, and possibly four or five, from Petitioner's co- workers that she was taking extended breaks and not on the floor working. Alvarez wanted to wait and see how long Petitioner remained in the bathroom. Sweeting and Alvarez waited outside the bathroom until they saw Petitioner exit the bathroom with Maria Dejesus. Alvarez believes that he and Sweeting waited outside the bathroom for approximately ten to 15 minutes. Alvarez told Petitioner that she had been taking an extensive break and needed to go back to work. Sweeting witnessed Alvarez tell Petitioner to go back to work in a professional tone. Alvarez also told Petitioner that he had heard rumors that she was taking extended breaks. He told her that since he saw it first hand, he wanted to mention it to her and let her know it would not be tolerated. Petitioner asked Alvarez which bathroom she could use in a very sarcastic tone. Sweeting observed Petitioner ask this question. Alvarez told Petitioner that he did not care which bathroom she used, as long as she did not abuse the break period. Petitioner proceeded to ask Alvarez in a sarcastic tone which bathroom she could use several times throughout the night. Despite Petitioner's sarcastic tone, Alvarez answered her questions professionally. Alvarez never asked Petitioner how old she was, whether she was married or how many children she had. Sweeting asked Maria Dejesus to go back to work as well. Sweeting and Alvarez have told other employees to go back to work when they have observed employees taking extended breaks. They have spoken to employees of both genders and all racial groups. On September 26, 2001, Alvarez assigned Petitioner to the "fast rack" area. Petitioner had never previously worked in the fast rack area. Alvarez personally instructed Petitioner in how to perform the assignment. Alvarez told Petitioner to pick the parts and put them on a rack float. After Alvarez gave Petitioner her instructions, Petitioner began her assignment. Petitioner never asked Alvarez any questions about her assignment or expressed that she was having difficulty with the job. Wanda Carithers ("Carithers") saw Petitioner using the wrong equipment to complete her assignment. Petitioner was using a bin cart instead of a float to pick the items. Alvarez noticed that Petitioner's assignment was running late. Alvarez walked over to the fast rack area and asked Petitioner two questions. Alvarez asked Petitioner whether she was going to be able to pick the whole assignment using the bin cart that she was using. Petitioner did not respond to or acknowledge Alvarez. Alvarez then asked Petitioner if she was almost done with her assignment. Petitioner rolled her eyes and said, "Your first question, yes, second question, no." Alvarez was very uncomfortable with Petitioner's response and demeanor. Alvarez told Petitioner that perhaps they had gotten off on the wrong foot. Petitioner asked Alvarez something about her union rights. Alvarez saw Petitioner's co-worker, Carithers, who was a union representative, driving by. Alvarez asked Carithers to explain to Petitioner her union rights as a temporary employee. During this conversation, Alvarez tried repeatedly to talk to Petitioner and on each occasion, Petitioner cut Alvarez off and would not let him speak. When Alvarez realized that he was not making any progress with Petitioner, he asked her to go to the warehouse office so that they could talk to a senior supervisor, Al White ("White") (Black male). Alvarez hoped that they could work out their differences with White's help. Alvarez started to walk approximately ten steps. He turned back and realized that Petitioner was not moving towards the office. Alvarez walked back to Petitioner and asked her a second time to go to the office. Once again, Petitioner did not move. Alvarez told Petitioner, "This is your last chance; go to the warehouse office." Once again, Petitioner did not move. Alvarez, after asking Petitioner to go to the office three times with no response, told Petitioner that her services were no longer needed, that she should gather up her things, and that she was terminated. Alvarez terminated Petitioner for her failure to follow a direct order of her supervisor in violation of Respondent's Standards of Conduct No. 6. Petitioner refused to move even after she was terminated. Petitioner asked Alvarez to reconsider, and he said that he had made up his mind. Alvarez started to walk away. When he saw that Petitioner was still not moving, he told her that he could call law enforcement to escort Petitioner off the property. Alvarez, and ultimately Petitioner, walked to the office. White asked Petitioner if she knew why she was terminated. Petitioner never asked to have someone from the union with her in the office until after she was terminated. At that time, Alvarez and White complied with her request and paged Rodney Witt, a union official, to come to the office. Carithers observed Petitioner fail to follow Alvarez's instruction to go to the office. Carithers recalls that Petitioner told Alvarez that Petitioner did not have to listen to Alvarez. Amber McPherson heard Alvarez call Petitioner to the office several times. Petitioner did not respond to Alvarez's requests. Sweeting has never experienced discrimination from management while working for Respondent for over seven years. Sweeting has never heard Alvarez make any gender or race-related comments or slurs. Sweeting has never heard any management employee at Respondent make a gender or race related comment or slur. Alvarez did not consider Petitioner's gender or race when he made the decision to terminate Petitioner. In addition, Petitioner lied on her application to Respondent and failed to indicate that she had been terminated from a prior employment. Petitioner had been terminated from Walt Disney World Company for theft. If Respondent had known that Petitioner had lied on her application or had been terminated for theft from a prior employer, it would not have hired her. Had Respondent learned that she had lied on her application after she was hired, she would have been terminated. Petitioner had no idea why she thinks she was treated differently based upon her gender or race. She just had a "feeling" or a "hunch." Petitioner had no evidence or information that her termination was based on her gender or race. Petitioner had no idea why she was terminated. She did not believe that it was because she failed to follow a command. Petitioner had no idea whether her supervisor, Alvarez, considered her gender or race when he terminated her employment with Respondent. Petitioner bases her claims that Respondent discriminated against her on the fact that there is general racism and sexism in society. Petitioner checked the "sex" and "race" box on her FCHR Charge of Discrimination simply because she is female and African-American. Petitioner felt as though she was harassed but cannot articulate a reason for it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order which DENIES the Petition for Relief. DONE AND ENTERED this 8th day of April, 2003, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 8th day of April, 2003. COPIES FURNISHED: Stephanie L. Adler, Esquire Susan K. McKenna, Esquire Jackson Lewis LLP 390 North Orange Avenue, Suite 1285 Orlando, Florida 32801 Dorothy J. McCrimmon 5361 Commander Drive Number 304 Orlando, Florida 32822 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Darryl Royster, was subjected to employment discrimination, by allegedly being terminated on the basis of his race or disability/handicap, by denial of a promotion and training, being subjected to discriminatory terms and conditions of employment, and by retaliation.
Findings Of Fact The Petitioner was employed by Pate Steveodore Company, Inc., (Pate) at times pertinent hereto. The Petitioner is an African-American male. Pate is a licensed Stevodore Company operating at the Port of Pensacola. Pate typically handles loading or unloading of various types of cargo, including soy beans, frozen food products, and other materials from railroad cars located in the port or onto ships berthed at the port. Pate has a staff of six permanent employees, including a president, vice-president, office manager, accounting clerk, and pier superintendent, as well as a part-time payroll clerk. Depending on the amount of work available at any particular time, Pate employs from 0 to 60 longshoremen, the majority of whom are African-American. The Petitioner was first employed by Pate in September 2005, as a longshoreman, responsible for loading and unloading box cars. Scott Miller is the former supervisor of the Petitioner. In his testimony he established that, typically, two teams of three longshoremen each would be assigned to load or unload each box car. The members of such teams work together to load or unload cargo from pallets, typically completing the unloading of two cars in a morning and two cars in the afternoon. The employees typically take breaks from the work in between pallets or box cars, but are allowed to take breaks whenever they feel the need. They arrange the schedule for taking breaks among themselves and without direction from supervisors. The Petitioner was working on August 2, 2006. On that date he contends that he suffered a back injury while lifting a 110 pound sack of beans. He states that he attempted to inform his supervisor, Mr. Miller, of the alleged injury, but was instructed to either return to work that day, or to leave if he was unable to do so. Mr. Miller was apparently frustrated with the Petitioner on that day because the Petitioner had left the work area on two occasions that morning for prolonged periods of time. The first time was when he went to the main office of Pate to discuss the fact that his child support payments were being withheld from his checks and to demand that the money be returned to him. The Petitioner wanted Pate to reimburse him for the withheld amounts and Pate explained to the Petitioner that they were legally required to make the deductions from his payroll. The second time that day he went to the main office to inform Mr. Pate that he had a job interview with an insurance company and would not be returning to work that afternoon after lunch. The Petitioner told Mr. Pate that he had already informed Mr. Miller that he would not be working that afternoon. Actually, he had never told Mr. Miller he was going to be absent in the afternoon. Because Mr. Miller did not have a replacement for the unexpected absence of the Petitioner, Mr. Miller had to perform the Petitioner's job loading and unloading cargo, during both the morning and afternoon absences. Mr. Miller told Mr. Pate of his dissatisfaction with the unexcused absences and having to perform the Petitioner's work himself. Pate did not hear from the Petitioner again until August 8, 2006, when Michael Pate, the company president, and Rosalee Garrett, the office manager, received a fax from the Petitioner requesting that they pass along certain information to the company's workers' compensation carrier, so that the Petitioner could be paid for the time he had been off work. The Petitioner informed Pate that he would be retuning to work the following week and attached a note from a medical clinic asking that he be excused from work until August 14, 2006. Ms. Garrett responded to the request and forwarded the requested information to the company's workers' compensation carrier. She also requested that the Petitioner report to the office so that he could complete an accident report form so that his workers' compensation claim could be properly processed. Pate's workers' compensation carrier's coverage policy and the workers' compensation law requires that an accident report be submitted by the claimant.1/ On August 11, 2006, the Petitioner wrote to Mr. Pate and Ms. Garrett informing them that he would not be able to return to work until October 20, 2006, because he was still experiencing back pain and rectal bleeding. The Petitioner wanted to wait until he could be seen by a doctor so that he could determine the source of those two problems. The Petitioner informed Mr. Pate and Ms. Garrett that he could perform light-duty work that did not involve bending or heavy lifting, such as running errands for the company, supervising other employees, and that he could also do work on the computer. Thereafter, on August 28, 2006, the Petitioner came to Pate's main office, again requesting light-duty work. There was no such work available, however, and Mr. Pate so informed the Petitioner. At that point the Petitioner became very upset and belligerent and began cursing Mr. Pate. Mr. Pate regarded that as threatening behavior and insubordination and was unwilling to tolerate such conduct. Mr. Pate escorted the Petitioner out of the office to converse with him outside, away from the other employees, because of his behavior, but was unsuccessful and thereupon terminated him. He told him to leave the premises, but ultimately had to call the port security office to have the port security personnel escort the Petitioner off the premises and outside the secure area of the Port of Pensacola. The testimony of Ms. Garrett corroborates that of Mr. Pate in establishing that the Petitioner was terminated because he became threatening, argumentative, and insubordinate toward Mr. Pate. In terms of his claim regarding racial discrimination, based upon allegedly different terms and conditions of employment imposed upon him, the Petitioner claims that he and other African-American employees were not allowed to take breaks or to train for and become forklift operators. The testimony of three witnesses, however, established that African-American employees are granted the same breaks as white employees and are otherwise treated the same with respect to the terms and conditions of their employment. The Petitioner was allowed to, and did take breaks during his employment with Pate. Moreover, contrary to the Petitioner's position, it was established, by persuasive, credible testimony, that in terms of the alleged issue concerning African-American employees not being allowed to become forklift drivers, that Pate conducted training so that such employees could become forklift drivers. Some employees took advantage of that training and became forklift drivers. In fact, the majority of Pate's forklift drivers are African-American. The Petitioner also contended that he was discriminated against in terms of his race for failure of Pate to promote or train him or other African-American employees. According to the preponderant, persuasive testimony and evidence presented at the hearing, however, there was no open position available at Pate, during the Petitioner's employment time there, to which he could have been promoted, nor had he ever applied for a promotion position. There was no denial of training opportunities because there was no training offered to any employee during the period of time of the Petitioner's employment with Pate and there was no evidence to show that the Petitioner ever requested training for any position at Pate. As found above, before the Petitioner became employed there, Pate did offer training for forklift drivers and trained some employees as forklift drivers, the majority of whom were African-American.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 19th day of March, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 2008.
The Issue Whether Petitioner was terminated from her position with the Respondent as a Certified Nurses Assistant (CNA) on or about July 1, 1995, on the basis of her race (white), in violation of Section 760.10(1)(a), Florida Statutes (1995).
Findings Of Fact The Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by Respondent as a CNA at Park Lake Nursing and Rehabilitation Center during the relevant period of time from April through July, 1995. Petitioner is a white female and a licensed CNA. Kay Vermette (“Vermette”), a white female, was the Director of Nursing at Park Lake and the department head over the entire nursing staff during Petitioner’s tenure. Vermette hired Petitioner as a CNA on April 18, 1995. Petitioner worked as a CNA at Park Lake for less than ninety (90) days when she was terminated by Vermette for verbal abuse of a resident on July 1, 1995. Joyce Donahue (“Donahue”), Assistant Director of Nursing at Lake Park during Petitioner’s tenure, was the second in charge of the entire nursing staff. Donahue, a white female, has been a Registered Nurse (RN) since April, 1990. On June 29, 1995, Mary Taylor (“Taylor”), a Licensed Practical Nurse, reported to Donahue she heard a loud voice and crying coming from the room of resident Matteye Samuels (“Samuels”). Taylor is black. Samuels was a black female and an elderly resident at Park Lake who needed assistance to perform all normal activities of daily living (ADL) and could not walk without assistance. As Donahue and Taylor approached Samuels’ room, they overheard a loud voice which they recognized as Petitioner’s and loud crying coming from another person. When Donahue and Taylor entered the room, they heard the resident crying in the bathroom area, where she sat on the toilet with only a robe draped over her, crying and trembling. Petitioner was very excited and pacing and was talking in a rapid, jarring, and incoherent fashion. Donahue and Taylor dressed Samuels and took her to the nurses’ station. Petitioner told Donahue that Samuels had thrown her around the room. Petitioner yelled at Samuels, “[y]ou are not a Nigger. I am not a Honky. Those aren’t really Jews. Those aren’t irate Indians,” while in Samuels’ room. When Donahue entered, Petitioner was pacing back and forth by the bed saying, “Nigger, Honky, Jews . . . this is enough of this.” Donahue told Petitioner to leave the room and wait in the employee break room. Donahue reported this incident to her superior, Vermette. Due to the severe nature of the incident, it was investigated immediately. Petitioner was placed on administrative leave, pending the investigation’s outcome. During the investigation, several witnesses came forward with information confirming the verbal abuse. Each witness provided a statement concerning her recollection. As an eyewitness to the verbal abuse of Samuels by Petitioner, Taylor and Sterling Brown, CNA, provided a written statement detailing her knowledge of the events. Donahue reported her findings to her supervisor, Vermette, both verbally and in writing. Vermette prepared a three-page, hand-written report which included the findings of her investigation, all of which confirmed the verbal abuse of Samuels by Petitioner. Verbal harassment of a resident is a Category I violation of Respondent’s disciplinary code. It subjects an employee to immediate suspension, followed by investigation. When an investigation confirms that a Beverly employee commits a Category I offense, the employee is subject to immediate termination. Petitioner received and signed the June 29, 1995, Associate Memorandum, which reflects that she was suspended while Respondent investigated the verbal abuse claims. The allegations of verbal abuse were investigated by Donahue, a white female, among others. The findings of the investigation and the proposed discipline (termination) were approved by Malley, the white female administrator. Petitioner was terminated by Vermette, a white female, who was the person who had, in fact, hired her. The three individuals who investigated the allegations of verbal abuse are white, as Petitioner. Petitioner’s statement regarding her treatment prior to the incident on June 29, 1995, and her version of the events that occurred on June 29, 1995, are not credible.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief. DONE AND ENTERED this 18th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 COPIES FURNISHED: Jayne E. Griffith, pro se 2018 Gairloch Street Orlando, Florida 32817 Deborah Gibson, Esquire Jackson Lewis 390 North Orange Avenue Suite 1285 Orlando, Florida 32801 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997. Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue Whether Petitioner was discriminated against by Respondent, based upon his race in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is an African-American male. As such, he is a member of a protected class. Petitioner was employed as a co-manager at a Delchamps grocery store in Destin, Florida. The Destin store was a high- volume operation. In January 2001, Bruno's, Inc., acquired the Delchamps' Destin store and converted the store to a Bruno's supermarket. Petitioner was retained in the co-manager position while Bruno's conducted a full assessment of the staff and store. Under the Bruno's assessment, the company found several employees, including white employees, underperforming pursuant to Bruno's goals for high volume stores. Petitioner was one of the individuals found to be underperforming at the Destin store. On November 4, 2001, Bruno's moved Petitioner as a co- manager to a lower volume store in Niceville so that he would have a better opportunity to grasp management protocol under the Bruno's umbrella and develop professionally. During the same time period, another employee at the Destin store, Steve Aaron, who is Caucasian, was transferred to another store for the same reason. Petitioner’s duties and work conditions at the new store did not materially change. As before, all managers in the store, including himself, regardless of race, had the same hours, had the same working conditions in the store and closing the store, had the discretionary authority to hire additional staff as needed, and had an opportunity to use their discretionary authority in managing and operating the store. Petitioner’s pay and benefits at the new store, also, did not change. The transfer was abrupt since Petitioner was told to and did report to his new store immediately. The reason for the transfer was not fully explained to him. However, other than to inquire about the reason for the transfer, Petitioner did not complain about or object to the transfer even though he was aware of Bruno’s policy against racial discrimination and the various mechanisms to report such activity. There was no evidence that Petitioner’s transfer was based on Petitioner's race. Neither the abruptness nor the lack of explanation supports a finding that the transfer was based on Petitioner’s race since the transfer was part of Bruno’s review and adjustment process for the stores it had acquired, and other employees who were not members of Petitioner’s protected class were also transferred. Indeed, the evidence showed that employees of all races were and continue to be transferred from one store to another under Bruno's operations for business reasons, such as the reason that precipitated Petitioner’s transfer. Such employee development and training are legitimate, non-discriminatory reasons for the transfer of Petitioner to another store. Petitioner offered no evidence that demonstrated the reason for his transfer was pretextual. Moreover, Petitioner's first complaint based on race regarding his transfer was filed on January 14, 2003, more than a year after his transfer and is therefore time barred. In June 2002, Bruno's Supermarkets received separate complaints from four female employees at the Niceville store that Petitioner had subjected them to unwelcomed touching, rubbing, massaging and/or kissing. The complaining employees were Dawn Lawson, Christina Gore, Donna Ermilio, and Erin Epperson. None of the young women that placed complaints against Petitioner were at risk of losing their job nor did they have anything to gain in placing the complaints against Petitioner. Dawn Lawson was an assistant deli bakery manager and subordinate of Petitioner. She complained that while at work Petitioner would rub her arms, massage her shoulders, and kissed her once while she was on the phone. All the aforementioned was unwelcomed by Ms. Lawson and made her feel uncomfortable. Petitioner did not deny these actions, but thought he was making an effort to comfort Ms. Lawson who was experiencing some personal problems. Ms. Lawson also accused Petitioner of spending an inordinate amount of time in the deli area of the store. However, the evidence demonstrated that Petitioner had been instructed to closely monitor the deli operation because it was below the standards Bruno’s expected of its deli operations. Ms. Lawson also complained that while at work, Petitioner gave her several gifts of alcohol and a card in which Petitioner wrote, "Know you are a very special someone" and drew several ‘X’s and ‘O’s. Petitioner admitted to giving the alcohol and card to Ms. Lawson, but again thought he was being friendly and trying to comfort her. Petitioner denied drawing the ‘X’s and O’s on the card. However, Petitioner’s denial is not credible since the drawing is in the same type of ink as the writing and the letters are similar to the handwritten portions of the card. Additionally, on New Year's Eve, December 31, 2001, Petitioner gave Ms Lawson a miniature bottle of Southern Comfort. Later, Petitioner called Ms. Lawson twice at her home in the early morning between 1:30 a.m. and 3:00 a.m. Ms. Lawson felt very uncomfortable regarding these calls. Clearly, the kiss, the late night phone calls, and the note violated Bruno’s anti-harassment policy. More importantly, at the same time Petitioner gave Ms. Lawson the Southern Comfort, he gave Erin Epperson, a co- worker of Ms. Lawson, a miniature bottle of alcohol. Petitioner knew Ms. Epperson was 19 years old and under the age at which she could legally possess or drink alcohol. Petitioner denied giving Ms. Epperson any alcohol. However, given the demeanor and candor of the witnesses, Petitioner’s denial is not credible. Providing alcohol to a minor was in violation of state law, could have caused the store to lose its liquor license or incur other penalties, and violated the store's policy of not providing alcohol to minors. This act alone justified Petitioner’s termination. Donna Ermillio, a cashier, utility clerk, and a subordinate of Petitioner similarly complained that while she was at work Petitioner would rub her arms, massage her shoulders, compliment her arms, feet and hands and tell her she was beautiful and too much "of a woman to be as young" as she was. All the aforementioned was unwelcomed by Ms. Ermillio and made her feel uncomfortable. Again, Petitioner thought that he was trying to soothe Ms. Ermilio, who was clearly nervous around him. He noticed others’ hands and feet because he had a friend who was a hand and foot model. However, Ms. Ermilio’s complaints are consistent with the other complaints received by Bruno’s and show a pattern of intrusive behavior on Petitioner’s part. Christina Gore, a cashier, customer service representative, and subordinate of Petitioner complained that Petitioner rubbed her, massaged her, and kissed her while she was at work. All the aforementioned was unwelcomed by Ms. Gore and made her feel uncomfortable. Petitioner admitted kissing Ms. Gore because she had graduated from high school. The kiss occurred after her boyfriend had walked away and Petitioner, jokingly, told Ms. Gore that he couldn't have kissed her while her boyfriend was around. Again, Petitioner’s actions were overly intrusive. In response to these complaints, the company conducted a timely and thorough investigation. The investigation included interviews and statements from Petitioner, Ms. Ermillio, Ms. Lawson, Ms. Gore, and Ms. Epperson. The evidence did not demonstrate any deficiency in the investigation. At the conclusion of the investigation, the investigator, the district manager, the store manager, a representative from the legal department, and the human resources director met and reviewed the investigation and evidence. After all the aforementioned parties assessed all the evidence, the team unanimously decided to terminate Petitioner’s employment. Bruno's terminated Petitioner because he violated the company's anti-harassment policy and gave alcohol to a minor employee. There was no evidence that Bruno’s did not consistently apply these policies to other employees in its organization. The only evidence Petitioner presented regarding the consistent application of these policies was that a Danny Johnson allegedly sexually harassed Dawn Lawson and was not terminated and that a Dan Gaston also allegedly sexually harassed "someone." However, Dawn Lawson never complained to the company regarding Danny Johnson and testified that Mr. Johnson had never harassed her. Petitioner had no personal knowledge about Mr. Gaston's alleged harassment and could not provide any details. The human resources director for the store testified that no one had ever made a sexual harassment complaint against Mr. Gaston. Therefore, Petitioner failed to present evidence showing a similarly situated employee that allegedly committed the same acts as Petitioner and was not terminated. Based on the evidence, Petitioner had legitimate, non- pretextual reasons for terminating Petitioner, and this action should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing this action. DONE AND ENTERED this 16th day of June, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Robert L. Young, Jr. 409 Elaine Avenue Fort Walton Beach, Florida 32548 Dan Burchfield Bruno's Food World 800 Lakeshore Parkway Birmingham, Alabama 35211 Faye R. Rosenberg, Esquire Corporate Counsel Bruno's Food World 800 Lakeshore Parkway Birmingham, Alabama 35211 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent subjected Petitioner to an unlawful employment practice on the basis of religion; or in retaliation to his engagement in a lawful employment activity, in violation of section 760.10, Florida Statutes.
Findings Of Fact Respondent, Escambia County, is a political subdivision of the state of Florida that is authorized to carry out county government, pursuant to section 125.01, Florida Statutes (2016). Escambia County is an employer as that term is defined by the Florida Civil Rights Act 1992. Petitioner, Mr. Love, was employed by Blue Arbor, Inc., a staffing agency. Blue Arbor had a contract with Escambia County for temporary labor services. Blue Arbor assigned Mr. Love to a temporary job with Escambia County, Public Works Department, Office of Engineering and Construction, as an engineering project coordinator. The assignment was for one year. Petitioner was assigned to the job from May 26, 2014, until his termination. On January 26, 2015, Escambia County terminated Petitioner’s temporary employment contract. Petitioner was an employee of Escambia County as that term is defined by the Florida Civil Rights Act of 1992. Mr. Love is a Christian. Petitioner timely filed a complaint with the Commission alleging Respondent engaged in an unlawful employment practice by terminating Petitioner on the basis of his religion. As an engineering project coordinator, Petitioner’s job responsibilities included: management of complex projects, ability to prioritize work, and ability to exercise good interpersonal skills with co-workers, supervisors, and the public. Mr. Love earned a Bachelor of Science in Engineering Technology and Construction degree in December 2013. Mr. Love had no prior drainage or roadway experience before working for Escambia County. Mr. Love began working for Escambia County following a storm that was declared a disaster. Due to the disaster, staff was expected to be flexible and able to perform job duties without refusal or hesitation. Respondent asserts that it terminated Petitioner’s contract due to his inability to perform job responsibilities without objection or hesitation, work performance, and disruptive behavior. Mr. Love had multiple supervisors during his eight month tenure at Escambia County. While working at Escambia County, Mr. Love’s supervisors had issues with his work performance and his behavior. Mary Bush, a construction manager, supervised Mr. Love in 2014. Ms. Bush had issues with Mr. Love’s file storage practices and behavior. Ms. Bush testified that Mr. Love saved all his work on a personal computer and was told several times to save his work in the shared folder. Mr. Love refused to save his work on the shared drive on the basis that the documents were his work. During the time Ms. Bush supervised Mr. Love, she experienced two incidents with Mr. Love involving outbursts. On one occasion, Mr. Love was in Ms. Bush’s office seeking review of Mr. Love’s work. Mr. Love stated in a raised voice, “you need to review the report so I can do my job.” On another occasion, Ms. Bush directed Mr. Love to identify his documents using a certain description and explained the importance of the practice. Mr. Love objected on the basis that the practice was an asinine process. Mr. Love was reassigned to another supervisor due to the outbursts involving Ms. Bush. At no point did Mr. Love state that his objection to following directions was based on his religion. Chris Curb, an engineering manager for stormwater, also supervised Mr. Love during his tenure at Escambia County. Despite the direction from Ms. Bush, the file-sharing issue continued. On December 30, 2014, Chris Curb notified Mr. Love by email that his file saving was a “problem.” Mr. Curb advised Mr. Love that his file folder was not a standard subfolder and he needed to save all files in the proper shared subfolders. He explained that file sharing is important so Escambia County could comply with state regulations and records requests. He further explained that Mr. Love was not the sole owner of a project record because other employees would need access to the work. He concluded his email with instructions for Mr. Love to use designated file folders. A third supervisor, Jim Duncan, also had issues with Mr. Love’s work performance and behavior. Similar to his practice under prior supervisors, Mr. Love refused to save his files to the shared file folder. Mr. Love also repeatedly refused to attend mandatory meetings without a direct command. For example, on multiple occasions Mr. Love’s supervisor had to locate and direct him to attend the weekly department meetings. Mr. Love testified that he was reluctant to attend the meetings because he believed they “were unproductive and take up too much time.” Similar to other supervisors, Mr. Love engaged in an outburst with Mr. Duncan. Mr. Duncan was a construction manager when he supervised Mr. Love and thus, was responsible for directing Mr. Love to advance projects from conception to completion. One such project was ENG Flood 414-85, which was also referred to as the Beulah Road at Helms Intersection project (“Beulah-Helms project”). Mr. Love was the project coordinator for the project. In October 2014, Roads, Inc., a construction company, submitted a bid for the Beulah-Helms project. Brett Moylan is the vice-president and chief operating officer of Roads, Inc. The project was a pricing agreement contract. Pricing agreement contracts are contracts where prices are established for a period of one year and are adopted by the Escambia County prior to the award of any specific pricing agreement contract. Pricing agreements have a blackout period and bidding process that also takes place prior to acceptance of the pricing agreement. In December 2015, Mr. Love was in the final stages of the procurement process for the Beulah-Helms project. Roads, Inc. was the lowest bidder on the project. Mr. Love corresponded with Mr. Moylan regarding the documents necessary to approve the project. Mr. Love requested a construction schedule and MOT plan for the project before the work order could be approved. Mr. Moylan asserted in an email that the construction schedule would begin after the purchase order is issued. Mr. Moylan later submitted the MOT plan and signed the work order. On January 22, 2015, Mr. Love sent an email to Mr. Moylan requesting the construction schedule and another signed work order with the appropriate dates. Mr. Love advised Mr. Moylan that he would not begin the project until Mr. Moylan submitted the construction schedule. Although Mr. Moylan explained that he usually did not submit a construction schedule, he ultimately provided the construction schedule to Mr. Love indicating that the project would begin the following Monday and “be substantially complete within 60 days of commencement, and have a completion date within 90 days.” The construction schedule provided by Mr. Moylan was an acceptable schedule. For a reason that was not addressed at hearing, Mr. Love asked Mr. Moylan for the construction schedule again, despite receiving it. Mr. Moylan advised Mr. Love to accept the next lowest bidder. As a result of the email exchange with Mr. Moylan, Mr. Love planned to send Mr. Moylan a follow-up email about accepting the next highest bidder, which would purportedly cost Escambia County an additional $20,000 for the project. Before Mr. Love drafted the email, he called Mr. Moylan to discuss the issues referenced in the email. Mr. Love testified that before he called Mr. Moylan he “drove around the block a couple of times, before he could call Mr. Moylan because [he] knew that the conversation was going to get heated.” Mr. Love described the conversation as heated, and they “cut each other off” during the conversation. Mr. Moylan contacted Mr. Duncan to complain about Mr. Love’s behavior related to the Beulah-Helms project. Mr. Duncan approached Mr. Love to discuss the exchange between Mr. Love and Mr. Moylan. Mr. Duncan directed Mr. Love to award the Beulah-Helms project to Roads, Inc. Mr. Love objected to awarding the contract to Roads, Inc. He testified that his objection was based on his religion because “[he] had an obligation to utilize his moral and ethical judgment which is inherent to [his] religion.” Mr. Love stated that the religious accommodation was based on his request for additional information before he could feel comfortable awarding the project to Roads, Inc. Mr. Love testified that he told Mr. Duncan that he refused to award Roads, Inc., without the construction schedule “based on a matter of principal.” Mr. Love did not say he refused to approve the project based on his religion. He did not say he needed an accommodation for his religion. Mr. Duncan directed Mr. Love not to take any further action until they discussed Mr. Love’s objection with the department manager, Joy Jones. During the conversation, Mr. Love became angry and yelled at Mr. Duncan. Sharon Johnson, a project coordinator, witnessed the exchange between Mr. Love and Mr. Duncan. Specifically, Ms. Johnson observed Mr. Love and Mr. Duncan having the discussion about the Beulah-Helms project. Ms. Johnson described Mr. Love’s demeanor as unhappy and upset. She testified that he raised his voice and yelled at Mr. Duncan. At the same time, Mr. Duncan attempted to calm Mr. Love. Ms. Johnson could not recall the substance of the discussion, but she testified without hesitation that Mr. Love did not mention anything about his religion. Ms. Johnson’s testimony is found to be credible. On January 26, 2015, Escambia County terminated Petitioner’s contract. Joy Jones, the Engineering Department manager, made the final decision to terminate Mr. Love’s contract. Although Ms. Jones did not directly supervise Mr. Love, she was aware of the issues concerning his work performance and behavior through complaints from her staff who directly supervised Mr. Love. After several complaints of angry outbursts, difficulty meeting deadlines, failure to save critical documents to the shared drive, inability to move projects in the process without reluctance, and inability to work with several supervisors, Ms. Jones made the decision to terminate Mr. Love’s contract. Based on the evidence, Respondent has demonstrated that Mr. Love’s termination was based on a legitimate business decision due to poor work performance and disruptive behavior. Approximately one year after his termination, Mr. Love sent an email to the Escambia County Administrator, Jack Brown. The email complained of perceived damage to Mr. Love’s reputation, credibility, and career. Mr. Love did not mention any complaint of religious discrimination or retaliation. In his response to Mr. Love, Mr. Brown explained that “in the project coordinator position staff must examine and thoroughly understand applicable process. Refusal and hesitation to perform job duties affect production, grant reimbursement deadlines, and citizen expectations.” Mr. Love did not explicitly mention anything about his religion or religious discrimination to any of his supervisors before he was terminated from Escambia County.
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 dismissing Petitioner’s discrimination complaint and Petition for Relief consistent with the Findings of Fact and Conclusions of Law of this Recommended Order. DONE AND ENTERED this 24th day of May, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Benjamin David Love Post Office Box 1132 Gonzalez, Florida 32560 (eServed) Meredith D. Crawford, Esquire Escambia County Board of County Commissioners Suite 430 221 Palafox Place Pensacola, Florida 32502 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Mary Harrison's charge of discrimination dated August 4, 1995, alleges that Jodan, Inc., doing business as Manpower (Jodan), discriminated on the basis of her race and for retaliation by constructively discharging her, giving her verbal and written reprimands and a poor performance rating, by denying her training and by intimidating her. The issues for disposition in this proceeding are whether the alleged discrimination occurred, and if so, what relief is appropriate.
Findings Of Fact Jodan, Inc., is a family owned franchise of Manpower Temporary Services. Jodan provides temporary staff to its clients. It has six offices in Central Florida: two in north Orlando; one in south Orlando; and one each in Deland, Daytona, and Melbourne. Dan Gavin, president, is responsible for the day to day operations; John Gavin, his brother, is a co-owner. In March 1994, Margaret Jones was Jodan's district manager for the north Orlando (Maitland) and south Orlando (Sand Lake Road) offices. She recruited and hired Ms. Harrison to work as a service representative in the Maitland office. Shortly before that time John Gavin had asked her to recruit specifically for a minority employee as it would be helpful for the office to have a more diverse staff to serve its clients. Ms. Harrison is an African-American woman. At the time that she was hired by Ms. Jones in March 1994, her substantial work experience was in real estate and property management. Service representatives at Jodan perform the intake process with temporary employees (application, interview and testing); they take orders from clients and place temporary employees with those clients. Jodan provides a detailed training program for its employees, including its service representatives. Upon the commencement of her employment with Jodan, Ms. Harrison began a training program known as Professional Service 1 (PS-1) under the supervision of Margaret Jones. PS-1 is a self study course where the employee learns the policies and procedures of a Manpower franchise through tapes and other training materials. It is the responsibility of the employee to keep track of and complete PS-1. Normally it takes between three and six months for an employee to complete PS-1; however, it can take longer, depending on the employee's office work load at the time. Disgruntled and upset by what she perceived as criticism of her management and hiring decisions, Ms. Jones left the employ of Jodan on or about August 1, 1994. Prior to that time, Ms. Harrison had completed all but three or four minor details in the PS-1 training. Ms. Harrison was satisfied by her training under Ms. Jones and she admits that no one at Jodan attempted to prevent her from completing PS-1. In September 1994, Ms. Harrison reported to Dan Gavin that her PS-1 materials were lost. He was surprised that one of his employees would lose her training materials and he assisted Ms. Harrison in looking for the materials by, among other things, looking in an off-site storage facility for them. Ms. Harrison's materials were never found and she includes the disappearance of her training materials as one of the basis for her charge of discrimination. There is no evidence that anyone took the materials but neither is there any explanation for their disappearance. Normally, when an employee completes PS-1, a checklist is sent to Manpower headquarters in Milwaukee, Wisconsin, indicating the employee has completed the training. On the checklist, the employee is required to record the dates that she completed each aspect of PS-1. Mr. Gavin contacted Manpower headquarters and obtained a new checklist. He also set up a schedule to meet with Ms. Harrison to go over the items on the checklist and verify that all of PS-1 had been completed. At their first meeting, Ms. Harrison assured Mr. Gavin that she had completed all of PS-1. Based on their conversation, he called Manpower headquarters and verbally confirmed that Ms. Harrison had completed PS-1. Manpower records indicate that she officially completed PS-1 as of December 1, 1994. Ms. Harrison's testimony at hearing with regard to whether she actually had an opportunity to finish the training was confused and unclear as she seemed to contend that there were materials that she was supposed to send to the home office, but could not, due to the lapse of time and loss of her training package. After an employee completes PS-1, the next step is to attend PS-2, which is a week-long training seminar at Manpower headquarters in Milwaukee. PS-2 reinforces what is learned in PS-1 and teaches additional marketing skills. Employees are given a list of dates during which PS-2 will be offered and, because the training requires them to be away from home for a week, they can schedule it at their convenience. Employees can schedule PS-2 before actually completing PS-1 but must have completed PS-1 before they actually attend PS-2. Ms. Harrison could have attended PS-2 any time after December 1, 1994. In January 1995, Mr. Gavin directed the area manager, Kathy Stanford, to ensure that all eligible employees, including Ms. Harrison, sign up for and attend PS-2. The PS-2 classes fill up quickly and it was a priority for Mr. Gavin to have his employees enroll. On more than one occasion, Ms. Stanford gave Ms. Harrison a list of available classes and the opportunity to attend PS-2. However, Ms. Harrison failed to sign up for PS-2. Jodan evaluates employees' performance and salaries on an annual basis. On January 30, 1995, Ms. Harrison was given her annual evaluation. Although the "Appraisal Period" on her evaluation is listed as March 21, 1994, to September 1994, the uncontradicted evidence was that this was a scrivener's error and the appraisal period was March 21, 1994, (Harrison's date of hire) through December 31, 1994. Her review was performed by Mr. Gavin, who was familiar with her performance, with input from Ms. Harrison's immediate supervisor, Gloria Michael. Ms. Stanford sat in on all evaluations done at that time, including Ms. Harrison's, because she was the new area manager and sitting in on the reviews was one way for her to become familiar with the staff and their performances. Ms. Harrison's overall score on the evaluation was a 2.66 on a scale of 1 to 5. A score of 2 means "Below Expectations" and a score of 3 means "Consistently Meets Expectations." A service representative learns all performance areas covered by the evaluation through PS-1. Although she claims that she was evaluated in areas in which she was not trained, Ms. Harrison did not raise this issue with Mr. Gavin and she did not write in any comments on the evaluation in the space provided for employee comments. Further, the uncontradicted testimony, including that of Margaret Jones, established that Ms. Harrison did receive training in all areas of her job in which she was evaluated. Ms. Harrison did not suffer any job detriment as the result of this evaluation or the unusual circumstances surrounding her PS-1 training. She received a pay increase following the evaluation and was then the highest paid service representative. On March 29, 1995, Ms. Harrison was presented with a memorandum by Ms. Michael that addressed concerns she had with Ms. Harrison's job performance. Specifically, the memorandum addressed the following areas: Failure to be responsive to customer needs; The high number of personal calls Ms. Harrison was receiving at the office; Failure to properly match an employee's skills with a client's needs; Failure to consistently enter and update employee information in the computer system each time she spoke with an employee; Failure to open the office on time in the morning; Failure to set up computer training for applicants when she opened the office in the morning. Neither Mr. Gavin nor Ms. Stanford played any role in the preparation or presentation of this memorandum. Ms. Harrison did not suffer any adverse employment action as the result of the March 29, 1995, memorandum. Ms. Michael followed up the March 29, 1995, memorandum with a memorandum on May 3, 1995, detailing Ms. Harrison's improvement in all of the areas discussed in the March 29, 1995, memorandum. On May 15-16, 1995, Ms. Harrison and Ms. Michael (who is white) failed to provide an important client with prompt and appropriate service. As a result, Ms. Stanford counseled both women and placed them both on 90 days probation. Ms. Harrison does not contend that this action was discriminatory. On July 17, 1995, Ms. Harrison submitted a letter of resignation. In the letter she stated that she enjoyed her position as service representative. She also stated that she felt she had been subjected to discriminatory treatment. Ms. Harrison's resignation and the allegations of discriminatory treatment came as a surprise to Ms. Stanford and Mr. Gavin as Ms. Harrison had never before told them she was unhappy or felt discriminated against. In her letter of resignation, Ms. Harrison offered to meet with Mr. Gavin and Ms. Stanford to discuss her resignation, but during her exit interview she refused to discuss her allegations. Although many of Jodan's temporary employees were minorities, Ms. Harrison was the only African-American service representative. There were, however, other minorities, including Hispanic-Americans. Ms. Harrison presented her case in an articulate organized professional manner. It is clear that she felt the work environment was stressful and uncomfortable. However, she did not prove that she was discriminated against or was the object of hostile or adverse employment actions. The temporary employment agency business is highly competitive. Jodan had several large corporate clients and it had to work hard to meet the needs of those clients, sometimes on short notice. This created pressure on Jordan's regular staff that was experienced by white or non-minority employees as well as Ms. Harrison.
Recommendation Based on the above, it is RECOMMENDED: that the Florida Commission on Human Relations dismiss Ms. Harrison's charge of discrimination. DONE AND ENTERED this 1st day of December, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 1998. COPIES FURNISHED: Mary A. Harrison 2356 Carborn Street Orlando, Florida 32839 Kelly T. Blystone, Esquire Moran & Shams, P.A. Post Office Box 472 Orlando, Florida 32802-0472 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of his national origin in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact No findings are made in this case. Petitioner did not appear and did not submit evidence to support findings of fact.
The Issue Whether Petitioner, a member of a protected class, was denied training, subjected to unequal terms of employment and denied promotion to three jobs including the position of Lead Custodian with the Respondent in the Physical Plant Department in 1993, on the basis of his gender (male) and race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1993).
Findings Of Fact The Respondent is an employer under the 1992 Florida Civil Rights Act. Petitioner was employed by Respondent as a custodian in the Physical Plant Department since July 1989 and during the relevant period of time including 1993 and 1994. Petitioner is a male African-American, and a member of a protected class. Petitioner applied for a promotion to three different positions at the college between August 26, 1993 and December 6, 1993. In late August, 1993, Petitioner applied for the part-time position of House Manager at the college theatre. Petitioner was not selected because his present work schedule would overlap the position at the theatre and his prior work experience was not relevant to the position. In addition, another candidate possessed better interpersonal and communication skills, and his education and work experience was more relevant to the position than the Petitioner's. In early October, 1993, Petitioner applied for the position of HVACR (heating, ventilation, air conditioning and refrigeration) apprentice. The position is a learning position which requires working with a lead mechanic. Part of the job requirement for the apprentice position was the ability to attend trade school in HVACR. During the employment interview Petitioner expressed reservations about attending the HVACR training because he was presently enrolled in night classes at Rollins College. In addition to Petitioner, two white males and a Hispanic male applied for the position. A Hispanic male was selected for the position who had better qualifications. Thereafter, the racial make-up of the HVACR Department consisted of two whites, one black and one Hispanic male. On October 14, 1993, three vacancies for the newly created position of Lead Custodian in the Physical Plant Department was advertised by Respondent. Petitioner was one of nine applicants for the position. The nine individuals who applied for the position of Lead Custodian consisted of four African-American males, three African-American females and two Caucasian females. Following the review of each persons application and file and a personal interview, two African-American males and one African-American female were selected for the positions. Petitioner was not recommended for one of the vacancies. The selection process was based on relevant work experience and work history, and was not based on improper or discriminatory race or gender considerations. Petitioner was not denied training based on his race or gender. Petitioner applied for and attended six seminars covering a variety of subjects over the last several years. Respondent's stated reasons for its promotion and training decisions were not proven to be pretextual.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief. DONE AND ENTERED this 24th day of October, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1995. APPENDIX The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner: Accepted in substance: paragraphs: none Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 1, 2, 3, 4, 5, 6. COPIES FURNISHED: Lea Ann Banks, Esquire BAKER & HOSTETLER P. O. Box 112 Orlando, Florida 32802 Mr. Ulysses B. Williams 1020 Polk Avenue Orlando, Florida 32303-4149 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Petitioner was employed by Respondent from January, 1986, until March 7, 1988. Petitioner worked as a tailor and performed alterations at Respondent's store located in Altamonte Springs. In the latter half of 1987, Mr. Pease became the manager of the Altamonte Springs store and thus became Petitioner's supervisor. As had the prior manager, Mr. Pease and Petitioner worked out a schedule that did not require Petitioner to work in violation of his religious principles. However, relations between Petitioner and Mr. Pease were not good. Shortly after becoming manager, for independent business reasons, Mr. Pease decided to reduce the amount of fitting done in the store. The effect of this decision was to reduce the amount of work available for Petitioner. At about this time, Petitioner suffered an accident unrelated to employment. The accident resulted in an extended absence from work. Petitioner received his physician's approval to return to work on February 16, 1988, but failed to do so. Without prior notice, Petitioner showed up at the store on March 7, 1988, and informed Mr. Pease that Petitioner was ready to return to work. Mr. Pease told Petitioner that the work schedule had already been arranged for the week. Mr. Pease told Petitioner that the only days he could work were Saturday, March 12, and Sunday, March 13. Petitioner told Mr. Pease that he could not work Sundays due to his religious beliefs. Mr. Pease reiterated that no other time was available that week. Petitioner told Mr. Pease that Petitioner understood that he was being fired. Mr. Pease told him that he was not being fired; rather, he was quitting if he left Respondent's employment. Two days later, Petitioner filed for unemployment compensation benefits. He never reported to work with Respondent again. Consistent with his Petition for Relief, Petitioner offered no evidence of discrimination due to national origin. Nothing in the record suggests the existence of any such discrimination. Petitioner has also failed to prove the existence of any religious discrimination. There is no evidence that Mr. Pease refused to try to accommodate Petitioner's religious beliefs with respect to work schedules after the weekend of March 12-13. The only evidence is that when Petitioner suddenly reported to work, the only days immediately available were the weekend days. The record does not even disclose whether Mr. Pease linked the two days, so as to prevent Petitioner from working the Saturday without working the Sunday. There is nothing in the record suggesting that Mr. Pease told Petitioner that if he failed to work the coming Sunday, he would lose his job. In sum, Petitioner has left it entirely to conjecture whether Mr. Pease would have failed to make reasonable accommodation for the religious beliefs of Petitioner. In fact, Mr. Pease was never presented with that opportunity. In addition, Petitioner has produced no evidence that Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. There is no evidence of the number of employees working for Respondent at the relevant time.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Petition for Relief filed by Petitioner be dismissed. ENTERED this 2nd day of May, 1989, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5689 Treatment Accorded Respondent's Proposed Findings 1-3. Adopted in substance. 4-5. (first sentence) Adopted. 5. (second sentence) Rejected as irrelevant. 6-10. Adopted. s 11. Rejected as irrelevant. COPIES FURNISHED: Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird, Esq. General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Agerton, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Weceslao Lugo Palermo 7505 Armstrong Road Lockhart, FL 32810 Richard D. Pease 590 West Highway 436 Altamonte Springs, FL 32714
