The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was subjected to an unlawful employment practice based upon her disability or based upon retaliation, in purported violation of Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner was employed as a Training Specialist II in the staff development department of the Sunland facility of the Department of Children and Families. (Now the Agency for Persons With Disabilities.) At times relevant hereto, in October 2003, the Petitioner, Constance Gatewood, was employed by "Sunland Marianna" (Sunland). The Respondent Department of Children and Family Services is an agency of the State of Florida charged, as pertinent hereto, with implementing statutes, rules, and policies concerning persons with disabilities who are within its custody or otherwise. A meeting was conducted with Sunland's management and the Petitioner on October 8, 2003, in which the Petitioner provided documentation from a physician confirming that she suffered from a condition triggered by exposure to certain chemicals or perfumes. This condition was described as "potentially life threatening." The condition apparently primarily involved the Petitioner's respiration. Sunland sought to accommodate this condition by instructing attendees to training sessions conducted by the Petitioner to refrain from using perfumes, colognes, etc., which might aggravate the Petitioner's condition. There is no dispute that the Petitioner has a disability of this nature. Sunland also provided each new employee who came for training with the Petitioner with a separate similar notification. Sunland also posted the notification in and around the staff development building, the Petitioner's primary work place. Sunland also relocated the Petitioner's office and ordered alternative non- irritating cleaning supplies in order to accommodate the Petitioner's condition. Despite these accommodations the Petitioner's condition still sometimes became symptomatic. In an effort to minimize her exposure to perfumes or other chemicals the Petitioner on occasion would teach from her doorway, rather than standing in her accustomed place in front of the class. On occasion she would have to teach her class with all the doors opened, which sometimes created an uncomfortable draft in cold weather. On other occasions she would send students out of her class in the belief that they were wearing a perfume, cologne, or other chemical agent which was irritating her respiratory condition. On one or more occasions she had to rely on a co-worker to perform a cleaning task for which she was responsible. The Petitioner received a performance evaluation in March of 2004, which contained an overall rating of 4.33, a score which reflects that her performance exceeded expectations. On performance expectation number one, however, she received a grade of three rather than the four she had received the prior year. This was based upon a decline, in her employer's view, of her performance related to team work and respect for others. Because of this reduction from a four to a three on this category of her performance evaluation the Petitioner filed a Career Service Grievance. She contended that her performance had been based upon "confidential information," despite her supervisor's assurances that it was based on her supervisor's perception of problems the Petitioner had in the areas of cooperation with co-workers and respect for class attendees. Upon investigation, the Career Service Grievance was denied by a memorandum of April 8, 2004. Dr. Clemmons, the superintendent of the Respondent's facility, continued efforts to accommodate the Petitioner and her disability. He offered the Petitioner a job in an open position as a social worker on or about April 1, 2004. This position would have no deleterious effect on the terms, conditions, privileges, or benefits of the Petitioner's employment. The Petitioner was apparently pleased to have the job transfer to the new position and, in fact, volunteered to begin the position prior to the customary two week notice period. The Respondent has continued to attempt to accommodate the Petitioner and her disability as she has raised issues regarding her disability upon assuming her new position. The Petitioner, however, did not identify in advance any accommodation-related issues to her employer prior to beginning work in her new position.
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 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 1st day of April, 2005, 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 1st day of April, 2005. COPIES FURNISHED: Constance Gatewood Post Office Box 262 Campbellton, Florida 32426 Amy McKeever Toman, Esquire Agency for Persons With Disabilities Sunland Center 3700 Williams Drive Marianna, Florida 32446 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 issue is whether Respondent committed an unlawful employment action against Petitioner by discriminating against her based on her disability in violation of Section 760.10, Florida Statutes (2005).
Findings Of Fact Respondent is a 120-bed skilled nursing home. Respondent is licensed by the State of Florida and certified by Medicare and Medicaid. Petitioner is and has been a Certified Nurse Assistant (CNA) since 1975. In January 2005, Petitioner worked for Elder Care, sitting with one of Respondent's resident's from 7:00 a.m. to 3:00 p.m. Toward the end of the month, she began looking for another job because her hours as a sitter were being cut back. Petitioner learned that Respondent had an opening for a floor technician (floor tech). Petitioner had experience cleaning floors, so she applied for the job on January 31, 2005. Petitioner gave her application to Respondent's receptionist. Respondent then sent the application, to Teresa Engram, Respondent's Assistant Director of Housekeeping. The application included a health checklist/assessment. Petitioner indicated on the form that she suffered from high blood pressure, back pain, and asthma. Ms. Engram reviewed Petitioner's application, and, during an interview, inquired whether Petitioner would be able to perform the necessary work. Ms. Engram explained that the person hired for the job would have to work a flexible schedule because the facility's floors could only be stripped and waxed at night when the patients were asleep. Petitioner assured Ms. Engram that she would be able to do the job. Petitioner did not reveal that she suffered from depression. Petitioner did not tell Ms. Engram that her health problems, such as asthma, would prevent her from working around the strong chemicals used in stripping floors. Petitioner told Ms. Engram she would be able to work at nights with advance notice so that she could arrange a babysitter for her grandchild. Petitioner passed the required medical test and background check. She began working on or about February 1, 2005. Her regular hours were from noon to 8:00 p.m., Sunday through Thursday, with the understanding that she would have to work scheduled night shifts. Petitioner initially trained with another floor tech, Johnnie Betsy. After a few days, Petitioner worked on one side of the facility and Mr. Betsy worked on the other. Her duties included sweeping, mopping, and buffing the floors, as well as taking out the trash. At least once a year, Respondent's floor techs strip and wax the floors in the facility. The project takes about a month from start to finish. The work is performed at night. The waxing and stripping project was already underway for 2005 when Petitioner began working for Respondent. Ms. Engram made several attempts to schedule a night shift for Petitioner so that she could train with Mr. Betsy and help him strip and wax floors. Petitioner let Ms. Engram know that she did not want to work the night shift. Additionally, Petitioner was unhappy with her salary and complained that she should be making more money. Ms. Engram discussed Petitioner's complaints with Rhonda Cheney, Respondent's Director of Laundry and Housekeeping. Eventually, Petitioner learned that Respondent had an opening for a CNA position. Petitioner told Ms. Engram and Ms. Cheney that Petitioner was going to apply for the CNA position because it involved fewer hours, two days on and four days off. At some point in time, Petitioner received Social Security disability benefits. There is no competent evidence to show what disability Petitioner had that entitled her to disability benefits. Apparently, Petitioner lost her disability benefits before she started working for Respondent because she made too much money at a prior job. Petitioner wanted the new CNA position even though she would make less money than a full-time floor tech. Petitioner believed she could reestablish her disability benefits if she earned less money. Sometime during the first week of March 2005, Ms. Engram advised Petitioner that she would have to work the night shift beginning 9:00 p.m. on March 6, 2005, till 5:00 a.m. on March 7, 2005. Petitioner agreed to work as scheduled, with the understanding that she and Mr. Betsy would strip and wax hall floors. Petitioner testified that she told Ms. Engram that she should have an ambulance present on the night of March 6, 2005, in case Petitioner had an asthma attack from the strong chemicals used to strip the floors. Petitioner's testimony in this regard is not persuasive. The greater weight of the evidence indicates that Petitioner never verbally discussed her mental or physical health problems with Ms. Engram. On March 3, 2005, Petitioner learned from Mr. Betsy that there was not enough wax to complete the job planned for the evening of March 6, 2005. Even without the wax, Petitioner and Mr. Betsy had plenty of work to do stripping floors. The floors did not have to be waxed the same night they were stripped. Petitioner decided to work her regular hours on March 6, 2005, from noon to 8:00 p.m. Petitioner made this decision without Ms. Engram's knowledge or approval. Mr. Betsy worked alone on the March 6, 2005, night shift. He spent the evening stripping floors, using the wax that was available to polish a small area, and performing other routine tasks. On March 7, 8, and 9, 2005, Petitioner worked her regular hours. Ms. Engram did not discover that Petitioner had not worked her scheduled shift on March 6, 2005, until Ms. Engram made a routine check of the time cards on or about March 9, 2005. Petitioner was still hoping to get the new CNA position on March 9, 2005. That evening, Petitioner was working as a floor tech when she noticed that Sid Roberts, Respondent's interim administrator, was working late. Petitioner approached Mr. Roberts to tell him about her application for the CNA position and why she needed the new job. During that conversation, Petitioner told Mr. Roberts that she suffered from depression and that she had previously received disability benefits for that condition. On or before March 10, 2005, Ms. Engram consulted with Ms. Cheney about Petitioner's decision not to work her scheduled shift on March 6, 2005. Ms. Engram and Ms. Cheney did not discuss Petitioner's alleged disability or health problems. Ms. Engram was not aware that Petitioner had any health problems that needed to be accommodated. Ms. Cheney was not aware that Petitioner had any health problems at all. After consulting with Ms. Cheney, Ms. Engram made the decision to terminate Petitioner's employment. Ms. Engram took this action because Petitioner did not work from 9:00 p.m. on March 6, 2005, to 5:00 a.m. on March 7, 2005, as agreed, but unilaterally and without Ms. Engram's knowledge, decided to work her regular hours on March 6, 2005. Subsequently, Mr. Roberts attended a meeting with Ms. Cheney. Inquiring about Petitioner's employment status, Mr. Roberts learned that Ms. Engram already had terminated Petitioner. Mr. Roberts did not have any part in the decision to hire or fire Petitioner. Mr. Roberts did not tell Ms. Cheney or Ms. Engram about his conversation with Petitioner on the evening of March 9, 2005, until after Ms. Engram terminated Petitioner's employment. Mr. Roberts' knowledge that Petitioner suffered from depression did not contribute to the decision to terminate Petitioner's employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 30th day of November, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2005. 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 Barbara Martin 635 West Hubbard Avenue Deland, Florida 32720 Kelly V. Parsons Cobb and Cole Post Office Box 2491 Daytona Beach, Florida 32115-2491
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Cavalier is in the business of providing various types of telephone services including landline communications, DSL, and Internet TV. They have as many as 150 employees in the Pensacola area and have offices in other locations. Cavalier acquired Talk America, Inc., a predecessor corporation, on April 20, 2006. Ms. Smith began working for Cavalier as a sales representative in December of 2006. As a sales representative for Cavalier, Ms. Smith called potential customers and attempted to sell them services and products provided by Cavalier. She was very successful at this work and was considered to be an excellent employee. Her sales were high, and she was awarded bonuses. On April 19, 2007, Ms. Smith suffered a mini-stroke and was absent from her work until May 2, 2007. At that time, she assumed that she had recovered and reported for work. Her supervisor, Floor Manager Cassandra Pressley, and fellow employees were happy to see her return. To celebrate her return, Ms. Pressley and other employees contributed money that was used to buy flowers for Ms. Smith. As the day progressed, Ms. Pressley noticed Ms. Smith slumped over in her chair and was concerned. Ms. Pressley offered her extra breaks, but Ms. Smith refused her entreaties. Eventually, Ms. Smith became clearly unwell, and with Ms. Pressley's encouragement, she departed with a co-worker who followed her home. On May 2, 2007, Ms. Smith learned from her doctor that she would have to take, or continue with, medical leave. When Ms. Pressley became aware of this, she caused Ms. Smith to communicate with Suzanne Altare, Cavalier's director of human relations for the southeast area. Ms. Altare explained Cavalier's company leave policy. Ms. Altare informed Ms. Smith that she was ineligible for leave pursuant to the Family Medical Leave Act because she had been employed with the company for less than a year. Nevertheless, Ms. Altare told Ms. Smith that she could have eight weeks of unpaid discretionary leave. This leave became effective May 2, 2007. Ms. Altare's actions complied with Cavalier's Employee Handbook. The Employee Handbook requires equal treatment of all employees. Subsequent to May 2, 2007, Ms. Pressley and Ms. Altare both checked in with Ms. Smith by telephone on more than one occasion to see how she was doing and inquired if her doctor was going to provide her with a release so that she might return to work at the end of the eight-week leave. On or about July 5, 2007, in the ninth week of her absence, both Ms. Pressley and Ms. Altare communicated with Ms. Smith by telephone. Ms. Smith informed them that her doctor had not released her for return to employment. Since she could not provide an estimated time of return, she was terminated. Because Ms. Smith was an especially valued employee, Ms. Altare informed her that she would process her termination as voluntary so that when she was physically able, she could return to work at Cavalier. This coincided with what Cavalier had done with other employees who had to stop working temporarily due to an illness. At least one of those had in fact returned upon receiving a release from her doctor. No evidence was adduced by any witness that Ms. Smith either complained of discrimination or requested an accommodation. In September 2007, Ms. Pressley was asked by a person identified as Ms. Smith's husband to help Ms. Smith at a check- cashing facility that was located close to the Cavalier workplace. Ms. Pressley went with him to the check-cashing facility. Ms. Smith approached Ms. Pressley and hugged her. Ms. Pressley inquired as to when Ms. Smith would return. She told Ms. Pressley that she had not been released by her doctor. Ms. Smith testified that she received "disability payments" until December 16, 2007, when her doctor informed her that she could go back to work. Ms. Smith testified, "I figured they would rehire me, anyway, because of my good sales, yes, sir." However, at least up until the time of the hearing, Ms. Smith had not asked to return to her job.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief filed by Sarah L. Smith. DONE AND ENTERED this 28th day of July, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lori Y. Baggett, Esquire Carlton Fields 4221 West Bay Scout Boulevard Post Office Box 3239 Tampa, Florida 33607 Sharon Glover, Esquire 2134 West Laburnum Richmond, Virginia 23227 Sarah L. Smith 513 North Reus Street Pensacola, Florida 32501 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Petitioner was subject to an unlawful employment practice by Respondent, Meals on Wheels, Etc., Inc., on account of his race and disability, as a result of Respondent's maintenance of a hostile work environment, or as retaliation to his opposition to an unlawful employment practice, in violation of section 760.10, Florida Statutes.
Findings Of Fact As its name implies, Respondent is a non-profit charitable organization engaged in the business of providing free meals, transportation services, and related assistance to senior citizens in the Sanford, Florida, area. Petitioner is a 64-year-old black male of Jamaican origin. He worked as a driver for Respondent from August 13, 2012, until October 23, 2014, when he was discharged for violating a company policy. As a condition of employment as a driver, Petitioner was required to submit a medical fitness form regarding his current medical condition. In the form filed on July 30, 2012, he denied having any medical issues except non-insulin dependent diabetes, which is controlled by diet. See Ex. 21. An updated form was submitted on August 25, 2014, reflecting no change in his medical condition. Id. No other medical records were submitted to substantiate any other medical condition. When he interviewed for the position, Petitioner did not tell Respondent that he needed an accommodation for his diabetes or that he had any work restrictions. As such, management never considered Petitioner to have a disability. Petitioner also provided a post-employment medical questionnaire on August 8, 2012, which stated that he had diabetes but that it was controlled by diet. Id. No other injuries, illnesses, or health abnormalities were reported. As a driver, Petitioner was expected to adhere to Respondent's safety rules. To ensure compliance with the rules, shortly after being hired, Petitioner was required to read, and then sign a statement acknowledging that he understood, the organization's General Policies. See Ex. 1, p. 4. He was also required to acknowledge receipt of its Employee Handbook containing the Safety Policies and Procedures. See Ex. 3. In addition, Respondent's Transportation Coordinator, Mark Taylor, conducted periodic refresher training sessions with all drivers, including Respondent. One of Respondent's most significant safety rules, if not the most significant, is a rule that requires drivers to provide door-to-door service. It provides in relevant part that "[u]pon arrival at a client's home, [a driver must] go to [the] door and knock. If the client needs help, you will be right there to assist." Ex. 1, p. 1, ¶ 6. This rule is intended to promote client safety and to ensure, to the extent possible, that Respondent will not face legal exposure because, for example, a client falls down while walking unassisted to or from the vehicle. To comply with the above rule, drivers are required to get out of the van, go to the front door, knock, and then assist the client walking to the van. This is because the clients are elderly, some use walkers, and they need assistance from the driver while getting to and from the van. On August 21, 2014, Petitioner signed another statement acknowledging that he understood the policy, he agreed to follow it at all times, and he understood that "[t]ermination will result in not following this important safety rule." Ex. 7. As a corollary to the above safety rule, drivers are instructed that they should never honk the vehicle's horn when they arrive at a client's home. Instead, they should get out of the vehicle and go to the front door of the residence. Petitioner was specifically told about the no-honking rule at two safety meetings. The incident underlying Petitioner's discharge occurred on the morning of October 23, 2014. Petitioner was told to pick up Angelo Rosario and transport him to an appointment. The client is in his 80s, suffers from Alzheimer's disease, and uses a walker. He resides in a mobile home-type community with his daughter; and the driveway in front of the mobile home is unpaved with exposed roots making it easy to trip or fall. Although Mr. Rosario was not one of his regular clients, Petitioner had picked him up at least 12 times in the previous 30 days and was familiar with his condition and the area in which he lived. The testimony describing the incident is conflicting. However, the accepted testimony shows that Petitioner arrived at the Rosario residence while Petitioner was on a personal cell phone call to his sister. When he finished the call, Petitioner blew the horn to alert the client that he was there. The honking was loud enough to annoy Rosario's neighbor who approached Petitioner's vehicle complaining about the noise. Suspecting that the neighbor's concern might cause a problem, Petitioner immediately telephoned Mr. Taylor and told him that he had blown the horn and anticipated that someone might be calling him with a complaint. Mr. Taylor told Petitioner that honking the horn was inappropriate, it violated an important safety rule, and he could not just sit in the van waiting for the client. Petitioner admits that during the telephone call, he shouted at Mr. Taylor and claimed he was unaware of the rule. After Mr. Taylor instructed Petitioner to go to the front door to pick up the client, Petitioner exited the vehicle and escorted the client to the van. After speaking with Petitioner, Mr. Taylor immediately telephoned the client's daughter to get her version of events. Mr. Taylor learned that honking had recently occurred rather frequently at the client's home, and he believed that Petitioner was the responsible driver, as Petitioner had transported the client at least 12 times during the previous 30 days. Mr. Taylor immediately reported the incident to the Executive Director, Sherry Fincher, who evaluated the matter, and then decided to terminate Petitioner for violating the organization's most important safety rule. Notwithstanding Petitioner's claim to the contrary, it is the Executive Director alone, and not Mr. Taylor, who makes the decision to terminate an employee. A memorandum was prepared by Ms. Fincher that day indicating that Petitioner was being terminated "due to not following agency policies regarding door-to-door pick up of clients[,] . . . one of the most important policies to ensure the safety of all clients." Ex. 20. This was consistent with Respondent's policy, and one that Petitioner clearly understood. Petitioner's race and diabetic condition played no role in the decision. Petitioner's Employment Charge of Discrimination was filed one month later. Prior to that time, there is no competent evidence that Petitioner had ever complained to Taylor or Fincher about any discriminatory practices by the organization. Since the inception of this case, Petitioner has contended that he has a disability within the meaning of the law. At hearing, however, he acknowledged that his diabetic condition does not affect any major life activity. To support his disability discrimination claim, he testified that on an undisclosed date in 2014, he asked Mr. Taylor if he could eat meals or snacks at designated times because of his diabetic condition but was told he could not. The accepted testimony shows, however, that Mr. Taylor advised him that he could eat whenever necessary, as lunch and break hours are not set in stone. To avoid a drop in his blood sugar, Petitioner was told that he was free to eat or drink something at any time, or even bring a bag lunch with him while driving his routes. Even assuming arguendo that Petitioner had a disability, which he does not, the contention that a disability formed the basis for an unlawful employment practice must fail. Petitioner also contended that Belinda Stum, a white female lead driver, was treated differently than he and was given more "leeway" when she violated a rule. However, the only evidence concerning a rule violation by Ms. Stum involved a different rule. After a client accidentally slipped while being assisted out of the van, Ms. Stum immediately reported the incident to Mr. Taylor and then filed a completed incident report. Other than Ms. Stum, Petitioner was unable to specifically identify any other similarly-situated employees outside his protected class (or even ones within his own class) who were allegedly treated differently than he. Although a client testified at hearing that on several occasions she had observed Ms. Stum sitting in her van when picking up clients, even if this is true, the client admitted that she never reported this to anyone at Respondent's organization so that the alleged violation could be investigated and disciplinary action taken, if appropriate. Petitioner also contends he was subjected to a hostile working environment due to his race and disability. He claimed that Mr. Taylor, a white male, called him "boy," required him to answer "yes sir," and would gesture a "cut throat" sign towards him, threatening him to keep his mouth shut. This assertion was not corroborated by any other evidence, and Mr. Taylor denied the charge. The testimony of Mr. Taylor is accepted as being more credible on this issue. Assuming arguendo that he had a disability, there is no evidence whatsoever that Petitioner was subjected to a hostile working environment due to his diabetic condition. Finally, there is no evidence regarding the charge that Petitioner was terminated in retaliation for engaging in a protected activity. Indeed, Petitioner submitted no credible proof that he complained to management regarding any discriminatory practices that precipitated the alleged retaliation, other than "standing up for his rights" on the day he was terminated, and Taylor and Fincher credibly testified that they were unaware of any such complaints. Complaints made at hearing that he is still owed money and was never paid for training are not germane to this dispute. Petitioner is now working part-time as a driver for a retirement center in the Sanford area. He says he is also employed as a substitute teacher for the Seminole County School Board. Both jobs equate to full-time employment. According to evaluations and testimony at hearing, Petitioner was considered a "good worker," "likeable," and someone who "did a pretty good job." While his evaluations showed he met expectations, his last evaluation noted that he needed improvement in following orders. Except for being "written up" one time for being late to work, Petitioner had no other disciplinary action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief, with prejudice. DONE AND ENTERED this 24th day of November, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 November, 2015.
The Issue The issue is whether Respondent, Michael’s Store, Inc. (“Michael’s”), committed an unlawful employment practice against Petitioner (“Mr. Hughes”) by discharging him.
Findings Of Fact Michael’s operates a store in Clermont, Florida. During all times relevant to the instant case, Amy Wsol was the manager of the Clermont store. Mr. Hughes was the Clermont store’s operations manager and subordinate to Ms. Wsol. Elisa Griffin was a cashier at the Clermont store. In April of 2015,1/ Ms. Griffin notified Michael’s human resources department that Ms. Wsol was not enforcing or not complying with Michael’s procedures regarding e-mail captures and other cashier practices.2/ Michael’s conducted an investigation during the summer of 2015 and concluded in August or September of 2015 that no action would be taken. Michael’s notified all employees interviewed during the course of the investigation that there would be no retaliation against Ms. Griffin. Nevertheless, immediately after the investigation’s conclusion, Ms. Wsol mandated that the other managers in the Clermont store document all of their interactions with Ms. Griffin and place those documents (“the allegedly retaliatory documents”) in Ms. Griffin’s personnel file. Mr. Hughes had the additional task of using an in-store surveillance system to monitor Ms. Griffin during her shifts. Mr. Hughes felt that Ms. Wsol’s orders regarding the monitoring of Ms. Griffin were contrary to Michael’s directive that Ms. Griffin was to suffer no retaliation because of the investigation. Mr. Hughes also felt that Ms. Wsol’s orders were immoral and unethical. The stress associated with complying with those orders had an adverse effect on Mr. Hughes’ health. Mr. Hughes is an insulin dependent diabetic, and his blood sugars became unmanageable. At one point, his endocrinologist advised him that hospitalization may be necessary if his condition did not improve. In December of 2015 or January of 2016, Mr. Hughes applied for an assistant manager position at a store that Michael’s was about to open in Orlando, Florida. While the position in the Orlando store would have been a lateral move for Mr. Hughes, it appealed to him because the Orlando position would be salaried, and Mr. Hughes was an hourly employee at the Clermont store. In January of 2016, Mr. Hughes reported Ms. Wsol’s orders regarding the allegedly retaliatory documents to Michael’s Human Resources Department. At this time, he also made copies of the documents so that he would have evidence that Ms. Wsol violated the directive that Ms. Griffin was to suffer no retaliation. Mr. Hughes did not have any authorization from Michael’s to copy the contents of Ms. Griffin’s personnel file. In February of 2016, Mr. Hughes met at the Clermont store with Dennis Bailey, one of Michael’s district managers, regarding Mr. Hughes’ allegations about Ms. Wsol. Mr. Bailey told Mr. Hughes that his allegations were being investigated. As for his request to be transferred, Mr. Bailey told Mr. Hughes that he would not be forced by a complaint to transfer Mr. Hughes to a different location. While Mr. Bailey did not completely rule out the possibility of transfer, he stated that Mr. Hughes would probably have to accept a demotion and a loss of benefits. In March of 2016, Ms. Wsol went on medical leave, and Mr. Hughes ran the Clermont store until April Skidmore arrived in April of 2016 to serve as acting store manager. At the end of May 2016, Ms. Griffin asked Mr. Hughes how she could obtain a copy of her personnel file. Mr. Hughes told her that she could request a copy from Ms. Skidmore or from Michael’s Human Resources Department. On June 14, 2016, Mr. Hughes received a call from Leah Frye, who worked in the Human Resources Department. Ms. Frye asked Mr. Hughes if Ms. Griffin had approached him about obtaining a copy of her personnel file. Mr. Hughes responded affirmatively and relayed that he had instructed Ms. Griffin on how she could obtain a copy of her personnel file. Mr. Hughes did not tell Ms. Frye that he had made a copy of the allegedly retaliatory documents in January of 2016. After Ms. Griffin received a copy of her personnel file, she stated to Mr. Hughes on June 15 or 16, 2016, that certain documents were missing. Ms. Griffin made that statement because she had expected to see documentation of compliments paid to her by customers. Ms. Griffin was also expecting to see documentation regarding the investigation of Ms. Wsol. However, none of those documents were in her personnel file. Mr. Hughes then examined Ms. Griffin’s personnel file, and discovered that the allegedly retaliatory documents were not there. Mr. Hughes then told Ms. Griffin about the missing documents and stated that he would transmit a copy of them to her upon receiving a request from her attorney. Mr. Hughes received such a request on June 17, 2016. At that point, Mr. Hughes elected to make a copy of his own personnel file because he was worried that its contents would be altered in an effort to retaliate against him. Accordingly, Mr. Hughes asked Mary Pearman, one of the other assistant managers at the Clermont store, to watch him copy his personnel file and sign a statement indicating that the documents he copied represented its complete contents. On June 29, 2016, Mr. Hughes received a call from Chad Romoser, the Director of Michael’s Human Resources Department. Mr. Romoser asked Mr. Hughes if he had made a copy of his personnel file and if he had asked a coworker to witness him doing so. Mr. Hughes responded affirmatively and stated that he copied the contents of his personnel file because the allegedly retaliatory documents had disappeared from Ms. Griffin’s file. Mr. Hughes then asked Mr. Romoser why the allegedly retaliatory documents were not transmitted to Ms. Griffin after she requested a copy of her personnel file. Mr. Romoser responded by stating that Michael’s Human Resources Department had no knowledge of the documents. Mr. Hughes then inquired about the status of the investigation pertaining to his report about the allegedly retaliatory documents. Mr. Romoser stated that after Mr. Bailey had met with Mr. Hughes in February of 2016, Mr. Bailey reported that Mr. Hughes was a “whiny individual” attempting to force Michael’s to give him a promotion. On June 29, 2016, Michael’s initiated an investigation of Mr. Hughes. Mr. Hughes was suspended with pay and required to relinquish his keys to the Clermont store. On July 6, 2016, Michael’s discharged Mr. Hughes. Mr. Hughes learned through a telephone conversation with Mr. Romoser that he had been discharged from Michael’s for intimidating Ms. Pearman3/ and for lying to the Human Resources Department. Mr. Hughes did not learn until filing his Charge of Discrimination with the Commission that Michael’s also discharged him for releasing personal and confidential information. Mr. Hughes was a credible witness. The undersigned finds that his testimony reflected his best recollection of the events pertinent to this case. However and as discussed below, even if all of Mr. Hughes’ testimony were to be accepted as true, Mr. Hughes has failed to present a prima facie case of retaliation under the Florida Civil Rights Act.
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 Thomas C. Hughes’ Petition for Relief from an unlawful employment practice.5/ DONE AND ENTERED this 19th day of October, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 19th day of October, 2017.
The Issue Whether Respondent, Terry Hammer d/b/a Park Drive Apartments, violated the Fair Housing Act, Chapter 760.20- 760.37, Florida Statutes, by failing to provide a handicapped parking space for Petitioner, Janice Ayers Petty.
Findings Of Fact Respondent, in her Proposed Recommended Order, concedes that Petitioner is "a person with a disability." While there is scant actual evidence to support the determination that Petitioner meets the definition of "handicap" in Subsection 760.22(7)(a), Florida Statutes, Petitioner attended the final hearing in a wheelchair and testified that her automobile license plate indicated that she was handicapped; it appears that Petitioner does qualify as a definitional person who "has a physical or mental impairment which substantially limits one or more major life activities " Respondent is the owner of a 30-unit apartment complex in Indian Harbour Beach, Brevard County, Florida. The apartment complex was built in 1963. In late December 2000, Petitioner and her husband, entered into a 12-month lease with Respondent for a ground floor apartment, unit number 24. It is unclear whether Petitioner requested a disabled parking place as an accommodation for her disability when she entered into the lease or shortly thereafter. Petitioner believed that a disabled parking place required a light blue outline and a sign indicating that the parking place was reserved for disabled permit parking. Respondent responded to Petitioner's request for accommodation by notifying residents of the apartment complex that the parking space immediately in front of Petitioner's unit number 24 was reserved for Petitioner. It is a measured 16 feet from the front of the parking space to Petitioner's front door and is the closest parking space to Petitioner's apartment. The parking space immediately in front of Petitioner's unit, while unpainted and without a sign, was generally available for Petitioner.
Recommendation Based of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner has failed to prove that Respondent did not make reasonable accommodations for her handicapped condition; Petitioner's Petition for Relief should be dismissed. DONE AND ENTERED this 30th day of January, 2003, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 2003. COPIES FURNISHED: Wayne L. Allen, Esquire 700 North Wickham Road Suite 107 Melbourne, Florida 32935-8865 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Janice Ayers Petty 1337 South Patrick Drive Satellite Beach, Florida 32937 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed the unlawful employment practices alleged in Petitioner's charge of discrimination and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is now, and has been since June 2008, employed as a "per diem" switchboard operator at Holy Cross Hospital. She was employed as a part-time switchboard (PBX) operator in University's PBX Department from July 25, 2005, until she resigned on October 26, 2008.6 As a University switchboard operator, Petitioner was responsible for answering and appropriately handling and routing, with dispatch, incoming calls (including "codes," which are emergency calls) to University's switchboard during her shift. The manager of University's PBX Department when Petitioner was hired was Eleanor Dingus. At no time did Ms. Dingus have occasion to discipline Petitioner, nor did Ms. Dingus ever receive any complaints from other operators about Petitioner's "performance on the switchboard." Gloria Gonzalez replaced Ms. Dingus as the PBX manager in July 2006, and has held that position ever since. At all times material to the instant case, directly under Ms. Gonzalez in the chain of command in University's PBX Department was Cathy Hudson, the PBX supervisor. Reporting to Ms. Hudson were three switchboard operators who served as "team leaders," one of whom was Miriam Reyes. At the bottom of the chain of command were Petitioner and approximately three other non-"team leader" switchboard operators. The PBX Department provided switchboard services on a 24-hour per day, seven-days a week, basis. At all times, there was either one operator or two operators (each using separate "consoles") taking calls. When there were two operators on duty, one operator's not picking up calls, or "staying on a call for an unusually long amount of time," would result in the other operator's having "more calls to pick up." Petitioner primarily worked the evening shift. "Sometimes she worked alone," and sometimes she worked a shift with another operator. In August 2007, Petitioner received a merit pay increase to $11.90 per hour (from $11.55 per hour) based upon an annual performance appraisal Ms. Gonzalez had completed on July 10, 2007. The appraisal contained the following "Evaluation Summary": Evaluation Summary Strengths/accomplishments: Gladys is a good operator. Very responsible and always on time. Areas for growth: Gladys needs to [acc]ept our Departmental changes in a much more positive manner and not get caught up with the small stuff or negativity in our Dept. This was the last annual performance appraisal that Petitioner received prior to her resignation on October 26, 2008, notwithstanding that, pursuant to written University policy, University employees were supposed to "receive an evaluation at least annually, normally twelve months from their anniversary date (date of hire) or last change of position date (promotion, lateral move, and demotion) . . . in order . . . to monitor adherence to performance standards to manage, develop and motivate individual performance." Prior to her 2007 annual evaluation of Petitioner, Ms. Gonzalez had started receiving complaints about Petitioner's performance from operators who had shared shifts with Petitioner. Over time, the complaints became more numerous. According to what the operators had told Ms. Gonzalez, Petitioner had been "slow answering [calls]"; kept "the switchboard on busy"; "take[n] her time getting to the switchboard at times"; and on occasion, "stay[ed] [on] too long with a caller." These were things that Ms. Gonzalez herself had personally observed. Initially, Ms. Gonzalez just verbally counseled Petitioner about these issues. Petitioner "would sometimes get upset" during these counseling sessions. In November 2007, Petitioner was formally disciplined for "unsatisfactory performance regarding receiving calls." The discipline she received was in the form of a "written warning" contained in a Notice of Corrective Action prepared by Ms. Hudson (the PBX supervisor and Ms. Gonzalez's second-in- command) and approved by Ms. Gonzalez. Petitioner was given a 30-day (probationary) period to improve her performance. The decision to place Petitioner on probation was made jointly by Ms. Gonzalez and Jennifer Lindsey, University's human resources operations manager. Ms. Gonzalez monitored Petitioner's performance on the switchboard during her probationary period and determined that it had improved sufficiently to warrant Petitioner's return to non-probationary status, without the imposition of any further disciplinary action. Unfortunately, Petitioner's performance deficiencies subsequently "resurfaced." On May 20, 2008, after receiving a complaint about Petitioner from Ms. Reyes (one of Ms. Gonzalez's three "team leaders"), Ms. Gonzalez prepared and gave to Petitioner a Notice of Corrective Action, reflecting that she was issuing Petitioner a "verbal warning" for "[n]ot responding to the switchboard in a timely manner." The following "details of the . . . infraction" were given in the notice: Gladys was informed that she would take over the switchboard at 4 pm on 5/12/2008 for a department meeting. She did not turn her switchboard on at that time and calls started to accumulate. Miriam asked Gladys to take over the switchboard and Gladys did not do so with a sense of urgency. The expectation going forward is that Gladys will answer the switchboard as soon as it buzzes. The notice also contained the following "Corrective Action Plan": [On] 11/21/07 [Petitioner] was given 30 days for performance improvement and although the plan was completed on 1/9/08, previous performance concerns have resurfaced with the timely answering of the switchboard. It is our expectation that within 30 days we will be able to review her performance with answering calls and be able to notice significant improvement. When presented with the notice, Petitioner wrote on it, under "Employee Comments," the following: "This was one incident on our meeting day. I do remember when it occurred." The notice had been presented to Petitioner by Ms. Gonzalez at a meeting between the two at which Ms. Lindsey had also been present. As University's human resources operations manager, it was Ms. Lindsey's responsibility to make sure that employees met the physical requirements of their position and were otherwise fit for duty. One of the physical requirements of the position Petitioner held was to "[h]ear alarm, telephone/tape recorder/normal speaking voices." During the May 20, 2008, meeting at which Petitioner was presented with the Notice of Corrective Action, Ms. Lindsey "asked [Petitioner] if [Petitioner had] heard the switchboard." Petitioner "perceived th[is] as a statement of age discrimination by Ms. Lindsey"7 (albeit one that did not "affect [her] job"). Despite what Petitioner may have believed, in making such an inquiry, Ms. Lindsey was simply seeking to find out if the reason for Petitioner's not "timely answering . . . the switchboard" was that she had a hearing problem. Petitioner responded to Ms Lindsey's question by telling Ms. Lindsey that "she did hear the calls, but that . . . the calls pile up all the time." Ms. Lindsey required Petitioner to review a Position Minimum Requirement[s] Checklist. After reviewing the document, Petitioner signed it, indicating that she believed that she met all of the requirements of her position. Some time after the May 20, 2008, meeting, Ms. Gonzalez heard from Ms. Hudson that Ms. Reyes had reported being asked by Petitioner, in a confrontational manner, whether it was Ms. Reyes who had complained about Petitioner's "[n]ot responding to the switchboard in a timely manner" on May 12, 2008. Ms. Gonzalez thereafter personally contacted Ms. Reyes to find out what had happened during this post-May 20, 2008, incident involving Ms. Reyes and Petitioner. Ms. Reyes, when contacted, told Ms. Gonzalez that Petitioner had "threatened" her. The matter was brought to the attention to Ms. Lindsey, who made the decision to suspend Petitioner for three days. The suspension was "for the purpose of conducting a fact-finding investigation" to determine whether Petitioner, in her dealings with Ms. Reyes, had violated University's Workplace Violence Policy (HR-2000-009), which provided, in pertinent part, as follows: POLICY University Hospital and Medical Center is committed to providing a safe workplace for all employees, patients, physicians and visitors. Workplace violence of any type committed by or against employees, patients, physicians or visitors will not be tolerated. PROCEDURE A. To ensure safe and efficient operations, University Hospital and Medical Center expects and requires all employees to display common courtesy and engage in safe and appropriate behavior at all times. * * * The following list of behaviors, while not all inclusive, provides examples of conduct that is prohibited. * * * Making threatening remarks; Aggressive or hostile behavior that creates a reasonable fear of injury to another person or subjects another individual to emotional distress; * * * Reporting Procedures Any potentially dangerous situation must be reported to a Supervisor, Security Department or Human Resources. Reports can be made anonymously and all reported incidents will be investigated. Reports or incidents warranting confidentiality will be handled appropriately and information will be disclosed to others on a need-to-know basis only. All parties involved in a situation will be counseled and the results of the investigation will be discussed with them. Employees are expected to exercise good judgment and to inform Security and/or Human Resources if any employee, patient or visitor exhibits behavior which could be a sign of a potentially dangerous situation. Such behaviors include but are not limited to: * * * Displaying overt signs of extreme anger, hostility, resentment or stress; Making threatening remarks; * * * e. Display of irrational or inappropriate behavior. * * * During the investigation, Petitioner submitted to Ms. Lindsey a "rebuttal" statement, dated May 29, 2008, which read as follows: This serves as notification that I am in complete disagreement with any claims made about my work performance as stated by Gigi Gonzalez. Gigi stated on 5/20/08, with Jennifer Lindsey in HR as witness, that a team leader Miriam Reyes said there were two calls backed up on the switchboard when we were changing shifts on Monday 5/12/08. She had already signed off and was abruptly leaving the office without checking if I was logged in before she signed off. Both calls were answered without problem or complaint by the callers. It is a normal occurrence when more than one call comes in at once for them to be what she referred to as "backed up." Miriam signed off the switchboard before checking if I was signed on. I received a 30 day probation disciplinary action and she did not. Per our work instruction, an operator is not to leave the position before a relief operator is available. I find the comment made by Jennifer "can you still hear the phone" a discriminatory reference to my age of 76-years-old. Furthermore, I was called at home by Jennifer Lindsey on 5/29/08 [and] put on involuntary suspension without pay for 3 days. Jennifer claimed that since I asked Miriam what she said about the incident that it was inappropriate. I was not asked about the situation. Rather I was interrogated. I have a right to know what is causing a disciplinary action . . . on my record. I also have the right to dispute or state my complaints without retaliation. Unpaid suspension without a proper investigation was undue hardship and a measure of retaliation. Since I was told I must sign the probation notice whether I agree with it or not, I request this to be in my personnel file and sign[ed] as received and reviewed by my supervisor as previously stated orally in the said meeting on May 20, 2008. This claim is unwarranted and causes undue financial hardship. Following the completion of her investigation, Ms. Lindsey determined that there was "insufficient evidence" to conclude that Petitioner had violated University's Workplace Violence Policy. Petitioner was put back on her normal work schedule and paid for the three days she had been suspended (and had not worked). Ms. Lindsey's "insufficien[cy]" determination was set forth in the following written statement Petitioner was given (and which she signed) on June 5, 2008: After an investigation was conducted on the incident that occurred on May 23, 2008, it is concluded that a discussion between Gladys and a co-worker did take place regarding Gladys' verbal warning for performance on May 20th. Gladys does admit to questioning her co-worker regarding information she may have provided to the manager of PBX regarding her performance. There is insufficient evidence to support that Gladys threatened her co-worker or that she was verbally abusive in any way. In the future Gladys will restrict her conversations with Miriam to business- related activities. This means only communication that must take place for her to perform the functions of her job. Any unnecessary communications or interactions may result in disciplinary action. In the future it is expected that Gladys will follow the Employment Dispute Resolution policy HR 2006-416 to express any disputes or state any complaints that she may have. A copy of this policy is being presented to Gladys today for reference. Gladys will be paid for the days that she was suspended in order to conduct this investigation. In late June 2008, in accordance with the "Corrective Action Plan" set forth in the Notice of Corrective Action she had given Petitioner, Ms. Gonzalez reviewed Petitioner's performance in the area of "answering calls." Ms. Gonzalez, in a document that she prepared and presented to Petitioner on or about July 18, 2008, described the "results" of that review as follows: Operator Gladys Norris has completed her performance improvement plan as of Sunday 6/29/08. In the course of the 30 days, I have been able to observe Gladys on the switchboard. Gladys has improved greatly. She has answered the board much more quickly. She did not let the board pile up. She put the callers on hold and then came back to the calls. I am confident that Gladys understands and is taking seriously her switchboard duties. She is very much aware that whenever possible, we should not let the calls pile up as emergency codes come through the switchboard. At around this same time (mid-July 2008), Petitioner learned that she needed to have emergency vascular surgery, and she so informed Ms. Gonzalez via an e-mail message, sent the evening of July 17, 2008, which read, in pertinent part, as follows: * * * . . . . But last week I had to have some tests done rather quickly and unfortunately have to have an unexpected urgent surgery performed (vascular nature). The doctor called me late this afternoon and said he has scheduled me for next Wednesday July 23rd. At this writing I cannot say how long I will be out from work but he did say at least three or four weeks for recovery. I will keep you apprised of my situation. You may have me on medical leave also. I will not be working anywhere during my recovery period so I cannot list any hours right now. Petitioner was granted leave for this "unexpected urgent surgery," as well as for her "recovery period." When she returned to work from leave, Petitioner was given her work schedule for September, which had her working the hours and days she "usually worked." Her schedule for September, however, was subsequently changed and, to her displeasure, she had to work three "overnight," Saturday night/Sunday morning shifts (from 11:00 p.m. to 8:00 a.m.) that month. She had never before, as a University employee, worked an "overnight" shift. When Petitioner asked Ms. Hudson why she had to work these "overnight" shifts, Ms. Hudson responded, "That's just the way it is." Up until September 18, 2008, throughout her employment at University, Petitioner had used a University-provided headset when working at the switchboard. On September 18, 2008, her headset and those of the other employees in the PBX Department were taken away in anticipation of their being replaced by new headsets (from Verizon). That same day, Petitioner and the other switchboard operators received the following e-mail from Ms. Gonzalez, informing them that they would soon be experiencing an uptick in call volume: Subject: Pavilion[8] Calls Ladies, Please note that starting Tuesday morning, we will be getting all the Pavilion[']s calls. There will be more Ext: 2221. Please make sure that you go over all Ext and Pavilion info. Keep in mind that call volume is going to increase. So do not spend a long time on any one call. Remember the time allowed for each call is 24 seconds per call. The Hospital wants a live person to answer at all time[s]. Also make sure that you know how to page all Pavilion calls over head. So ladies, when you clock in, and enter the PBX office, you must be ready to log in and start to work immediately. Please let me know if you have any further questions. Due to delays, it was not until November (approximately two months later) that all of the old headsets were replaced by new ones. The first new headsets came in a group of three.9 They arrived in the first half of October and were given to Ms. Gonzalez (the PBX manager), Ms. Hudson (the PBX supervisor), and Ms. Reyes (one of the three "team leaders"). On October 15, 2008, Ms. Gonzalez held a departmental meeting at which she discussed "what was going on with the headsets." Petitioner was at the meeting. From September 18, 2008, until her resignation on October 26, 2008, Petitioner had to use a "hand-held phone," instead of a headset, to answer calls coming in to University's switchboard. Approximately two weeks after she had started using the "hand-held phone," Petitioner began experiencing pain in her wrists, arms, shoulders, neck, and lower back. She visited her primary care physician, Greg Sherman, M.D., for treatment of the pain. The pain went away five or six weeks after she had stopped working at University. All told, the pain lasted no more than ten weeks. Based on what she had been told by Dr. Sherman,10 Petitioner attributed the pain she was experiencing during this period to her using a "hand-held phone" when working the switchboard at University. Despite the onset of the pain, Petitioner continued to work and perform her job duties at University for approximately three or four weeks until she felt she could do so no longer and resigned. During this period, she made her supervisors aware that she was in pain. On the morning of October 2, 2008, during a telephone conversation, she told Ms. Hudson that her "wrist, arms and neck hurt." Ms. Hudson did not ask Petitioner for any further details, and Petitioner did not provide any. Two weeks later, on October 16, 2008, at 10:34 p.m., Petitioner sent Ms. Hudson the following e-mail: Dear Cathy, Regarding my PTO [Paid Time Off] request for Nov 13, 14, 15, 16 (Thurs, Fri, Sat, Sun) I am wondering when I will know if it has been approved. Also do you know when my headset will arrive? I went to the doctor yesterday because I have had pain for a week now in my shoulders and wrists. I explained that I have been working without my headset for the past four weekends. He stated that that was likely the cause of the strain. I do hope the headset will arrive soon. A week having passed without Petitioner's having received a reply from Ms. Hudson, Petitioner, at 9:34 p.m. on October 23, 2008, sent the following e-mail to Ms. Gonzalez, to which Ms. Gonzalez never replied: Re: Waiting for an e-mail answer Hello Gigi, I sent an e-mail to Cathy regarding the headsets on Oct 14th.[11] I have not received a reply as of today. I understand a few operators have already received their headsets. Shouldn't we all have them as we work the same consoles? Working without my headset for the past 4 weekends has caused problem[s] in my wrists and shoulder/neck which I had to see a doctor [about] last week. After taking off earlier in the week because of the pain she was experiencing, Petitioner "tried to come in" to work at University on October 26, 2008, but she did not stay her entire shift. Because she did not know when she "was going to get a headset" and she had experienced "a lot of pain" working without one, Petitioner decided to resign her position at University. At 11:05 a.m. on October 26, 2008, she gave notice of her resignation by sending Ms. Lindsey the following e-mail: I hereby give notice that today, Sunday October 26, 2008 will be my last day at University Hospital. I have used a headset since the first day of employment in July 2005 when on PBX. Over the past five weeks I have been forced to work without my headset. My physical condition has been aggravated to the point I am forced to resign. Management has been uncooperative in this problem as well as many others I have addressed that have gone unanswered. Despite the pain she was experiencing at the time, Petitioner continued working, without interruption, as a switchboard operator at Holy Cross Hospital, where she had the use of a headset. To date, University has not filled the position from which Petitioner resigned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding University not guilty of the unlawful employment practices alleged by Petitioner in her charge of discrimination and dismissing the charge. DONE AND ENTERED this 12th day of April, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 12th day of April, 2010.
The Issue Whether Petitioner, Robert F. Cameron, was subjected to an unlawful employment practice by Respondent, Osceola County, based on his disability, race, or national origin in violation of the Florida Civil Rights Act. 1 All statutory references are to Florida Statutes (2020), unless otherwise noted.
Findings Of Fact Petitioner brings this action alleging that the County discriminated against him based on his disability, race (white), and national origin (Canadian). Specifically, Petitioner asserts that the County failed to provide him a reasonable accommodation to allow him to participate in the application and selection process for a County job. The County is a political subdivision of the State of Florida and under the governance of the Osceola County Board of County Commissioners. At the final hearing, Petitioner testified that he is a disabled individual with at least seven disabilities. Pertinent to this matter, Petitioner stated that he is partially deaf in one ear which limits his ability to hear.4 In addition, Petitioner relayed that his disability(ies) affect his normal life in that he has frequent medical appointments and requires an increased number of restroom breaks. On October 15, 2019, Petitioner, who is from Canada, applied for the position of Budget Analyst II (the "Analyst Position") with the County. The Analyst Position falls within the County's Office of Management and Budget Department ("OMB"). The OMB is responsible for preparing the County's 2 By requesting a deadline for filing a post-hearing submission beyond ten days after the filing of the hearing transcript, the 30-day time period for filing the Recommended Order was waived. See Fla. Admin. Code R. 28-106.216(2). 3 Petitioner filed a revised version of his post-hearing submittal on October 9, 2020, which the undersigned considered as Petitioner's Proposed Recommended Order in writing this Recommended Order. 4 At the final hearing, Petitioner initially strenuously objected to identifying his specific disability, asserting that his right to privacy protects him from having to disclose personal medical information, except as requested by a medical professional. annual budget, as well as analyzing and evaluating budget transfers for the County Commissioners. The County initiated the recruitment process for the Analyst Position by posting the opening on the website www.governmentjobs.com on October 14, 2019. Petitioner found the posting on the website and submitted his application through the same. At total of 15 individuals applied for the position, including Petitioner. The application window for the Analyst Position closed on October 21, 2019. Thereafter, the County's Human Resources Department screened the 15 applications to ensure the interested persons met the minimum qualifications for the job. Eleven applicants, including Petitioner, possessed the required qualifications. The Human Resources Department forwarded those 11 applications to the OMB for consideration. The OMB reviewed the 11 applications and selected three individuals to interview. These applicants included Petitioner (a white male), Lizette Rivera (a Hispanic female), and Sean Lower (a white male). Thereafter, the Human Resources Department set up a panel of five County employees to interview the candidates. Petitioner learned that he was being considered for the job on Thursday, October 24, 2019. That morning, the County called Petitioner at his home in Canada to inquire whether he was available for an interview the next day, Friday, October 25, 2019. Damaris Morales, an administrative assistant in the OMB, made the call. This case centers around what was said during that morning phone call. Petitioner and Ms. Morales left the conversation with vastly different impressions of what transpired. The Phone Call According to Petitioner Petitioner testified that Ms. Morales called him at a most inopportune time. His home phone rang at 8:44 a.m. At that moment, Petitioner was rushing out of his apartment to reach a 9:00 a.m. doctor's appointment. In fact, Petitioner had already started his car with an automatic starter, and it was running in his driveway. After he heard his phone ring, however, he turned back to answer the call. Petitioner answered the phone and greeted the caller. The caller identified herself as "Tamaris" from Osceola County.5 Ms. Morales then informed Petitioner that she was calling to set up an interview for the Analyst Position. Petitioner initially expressed to Ms. Morales that her call was "great" news. He then explained that he was running out the door to a medical appointment. Therefore, he asked if she would email him details about the interview, and he would respond to her as soon as he returned home. Ms. Morales informed Petitioner that the interviews would take place the next day (Friday). Petitioner was alarmed at the short notice. He explained to Ms. Morales that he was currently at home in New York state and could not travel to Florida for an in person interview the next day. Ms. Morales replied that she could arrange a telephone interview. Petitioner then asked Ms. Morales when the interview on Friday was scheduled. Ms. Morales relayed that she would email him the specific information when she obtained the time from her manager. Petitioner stated that he would "clear my schedule tomorrow for that interview." Petitioner then signed off saying, "Thank you. I do have to run. Sorry." Ms. Morales hung up the phone first. The conversation lasted 1 minute and 30 seconds. As Petitioner left for his doctor's appointment, he was under the impression that Ms. Morales would email him imminently regarding available times for the Friday telephone interview. The Phone Call According to Ms. Morales At the final hearing, Ms. Morales described a vastly different conversation with Petitioner. As further discussed below, Ms. Morales's 5 At the final hearing, Petitioner testified that he heard Damaris Morales state her name as "Tamaris." initial impressions of Petitioner from that phone call ultimately led the OMB to decide not to interview Petitioner for the Analyst Position. When Petitioner answered the phone, Ms. Morales testified that Petitioner's "aggressive" tone quite startled her. In a "loud" voice, Petitioner declared, "Yeah. What do you want? I don't have time to talk right now. I've got to be somewhere." Ms. Morales was not expecting such an abrupt and jarring reception. After a few seconds of stunned silence, Ms. Morales explained to Petitioner that she was calling about his application for the Analyst Position. Continuing in his harsh tone, Petitioner replied, "I have somewhere I need to be right now. Send me all the information via email. I am in Niagara Falls, New York." Petitioner then hung up the phone first without providing Ms. Morales his availability for a Friday interview. The whole conversation took less than 30 seconds. At the final hearing, in response to Ms. Morales's testimony, Petitioner suggested that she may have overheard an exchange between him and his son, Stewart, with whom he lives. Petitioner explained that, as he was leaving his apartment, his son called out from his bedroom asking whether the bathroom was free. Petitioner yelled back, "What do you want, Stewart? I am leaving." Petitioner explained that his phone may have malfunctioned and engaged Ms. Morales' call without him actually picking up the receiver. Petitioner strongly denied that he directed the comment "what do you want?" at Ms. Morales. Petitioner also theorized that if he spoke in a loud tone with Ms. Morales, it may have been due to his disability. As indicated above, Petitioner testified that he is deaf in one ear. Petitioner explained that Ms. Morales was talking very fast during their phone call. In responding to her questions, Petitioner was not trying to be abrupt or argumentative. However, he was in a rush to reach his appointment and was frustrated at the delay. Continuing with Petitioner's story, after the phone call, as Thursday morning progressed into Thursday afternoon, Petitioner did not receive an email back from Ms. Morales. Therefore, around 2:15 p.m., Petitioner called the County to speak with her. He was forwarded to her office phone, where he left a voicemail. In his message, Petitioner expressed that he was available for an interview any time the next day (Friday). He also left his Skype contact information. Time continued to pass on Thursday. With no response over the next two hours, at 4:14 p.m., Petitioner again called for Ms. Morales. This time, he was able to reach her. Petitioner inquired about his interview time for Friday. Ms. Morales momentarily demurred, telling Petitioner that she had to check with her manager. After several minutes, Ms. Morales came back on the line. She then told Petitioner that the Friday interviews were "full up." When Petitioner asked about an interview on another day, Petitioner claims that Ms. Morales promptly "slammed the phone down in my ear." Ms. Morales, on the other hand, testified that after she informed Petitioner that no interview times were available on Friday, Petitioner got angry and threatened her with a "legal matter." Petitioner then hung up on her. Petitioner was not content to let the matter drop. Therefore, on Friday morning at 9:47 a.m., he emailed the County Manager, Don Fisher, to complain about the County's Human Resources Department and the OMB. In his email, Petitioner summarized the events from the previous day. Petitioner focused on the fact that Ms. Morales told him that she would provide him an interview time. Then, when he contacted her Thursday afternoon, Ms. Morales informed him that the interviews were "full up," and he would not be offered an opportunity to interview for the Analyst Position. Petitioner sent Mr. Fisher follow-up emails at 10:01 a.m. and 10:03 a.m. In the first follow-up email, Petitioner stated: I am disabled and covered under the ADA Act. I make this request for accommodation under the ADA Act. At 10:10 a.m., Petitioner sent an email to another County employee, Maria Colon, the Director of the Human Resources Department and the County's Americans with Disability Act ("ADA") coordinator. In this email, Petitioner stated: You are the designated ADA Act Coordinator, but you are discriminating against me and denying my ADA rights to accommodation under the ACT and Title VII. I formally ask for this interview to be rescheduled and Oscola [sic] County to stop this discrimination. Attached to this email, Petitioner included a copy of his Ontario Disability Support Program Certificate of Disability ("ODSP Certificate"). At the final hearing, Petitioner explained that the ODSP Certificate, which was determined in 2013, is proof of his disability. Petitioner's certificate states: Your file with the Disability Adjudication Unit has been adjudicated and you have been found to be a person with a disability as defined in the Ontario Disability Support Program Act. 1997. At the final hearing, Petitioner expounded on the reasons for his request, explaining that he sought an accommodation to enable him to conduct a telephonic interview because his disability prevented him from driving from Canada to Florida to interview in person. Furthermore, as a disabled person, he needed more time to prepare and participate in the recruitment process. The specific accommodation he desired was to be allowed to interview by telephone on Monday, October 28, 2019. Not hearing a response from Ms. Colon by Friday afternoon, at 3:03 p.m., Petitioner dispatched another email to her. He again attached his ODSP Certificate. In this email, Petitioner wrote that "your staff member Tamaris" refused to schedule an interview and then "hung up the phone on me." Petitioner also repeated that he was "requesting reasonable accommodation for the Budget Analyst II position." Ms. Colon called Petitioner shortly after his second email. During this call, Petitioner informed Ms. Colon that he was disabled, and he needed a telephone interview for the County job opening. Petitioner added that he was located out of state, and he could not travel to Florida in time for an in-person interview. Petitioner further declared that the County was discriminating against him because of his disability and his national origin. Ms. Colon advised Petitioner that she would look into his concerns and get back to him. Petitioner claims that Ms. Colon ended this conversation by slamming the phone in his ear. During this call, despite Ms. Colon's request, Petitioner refused to identify his specific disability. At the final hearing, Petitioner asserted that the law protects those with disabilities from having to disclose their actual medical conditions. He said that, to safeguard their privacy, the disabled do not have to reveal their disability, except to the limited extent necessary to relate the disability to the requested accommodation. At 6:01 p.m. on Friday evening, Ms. Colon emailed Petitioner stating, "Per our phone conversation, I will look into your concerns and get back with you on Monday." By late Monday morning, October 28, 2019, however, Petitioner had not heard from Ms. Colon. Therefore, he sent her two emails. At 11:43 a.m., Petitioner wrote, "When is my interview? I am not available tomorrow." With no response to this first email, at 3:48 p.m., Petitioner wrote, "As per your reply above, you indicated my accommodation request under the ADA and interview time would be dealt with today. It is 4 pm EST. Please respond." Petitioner then signed off, "I am available for an interview 10am to 11 am tomorrow and then on Wednesday, Thursday or Friday." Petitioner received a response from Ms. Colon at 6:10 p.m., Monday evening. In her email, Ms. Colon wrote: I had the opportunity to look into your concerns. To be honest, customer service is very important in the Budget Analyst II role, and we're assessing those skills in every contact with candidates. The OMB Department had concerns about the way you handled the call and treated the employee that contacted you on October 24th for the purpose of scheduling an interview. Therefore, the Department has moved forward with other candidates. Petitioner was most displeased at Ms. Colon's email, and at 6:54 p.m., he responded: I did nothing except indicate I was available for an interview. Regardless none of this over-rides the ADA and my rights to employment and accommodation. I will be discussing your actions, the "OMB" in denying my constitutional and ADA rights, my Title VII rights with [a County attorney] tomorrow. If they fail to resolve this, then I will be suing you personally, Tamaris, the OMB and the County on a substantial indemnity basis for well in excess of $500g. Petitioner ended the email with "See you soon in court." Six minutes later, at 7:01 p.m., Petitioner sent another email to Ms. Colon. In this message, Petitioner stated: I must commend you for trying to deflect the egregious violation of my rights through trying to claim my rights to an interview are somehow superceded [sic] by this department withdrawing an interview based on race, geography, nationality and disability … in a call in which this Tamaris said and I quote – "we are full up" … . I asked her to leave my interview time through an email. If that qualifies as "poor customer service" then you have a very BIG legal problem using that as a diversion for blantant [sic] discrimination based on race, color, nationality, and disability. Petitioner ended this email with, "I will be happy to take you to Federal Court not the Courthouse right across the street. See you soon in court." Petitioner wrote Ms. Colon once more at 7:03 p.m. In this email, Petitioner accused Ms. Colon of "a blatant discrimination of interest in applying the ACT. Your superiors told you to deny me my rights under the ADA and you did so." Petitioner then declared that he was going to "sue you personally. … Trust me on that." After Monday, October 28, 2019, Petitioner never heard back from Ms. Morales or Ms. Colon regarding his application for the Analyst Position. Consequently, Petitioner claims that the County, by refusing to respond to his request for a telephone interview, denied him his rights under the FCRA and the ADA. At the final hearing, Petitioner vehemently denied that he was rude to Ms. Morales or during his call with Ms. Colon. Petitioner professed that he was perfectly polite to Ms. Morales. In addition, he asserted that Ms. Morales's testimony that he hung up the phone on her is totally false. Petitioner also contended that he did not threaten Ms. Colon with legal action as a means of intimidation. He was just exercising his rights as a disabled person. Petitioner further charged that the County's excuse for removing him from consideration was based on a misconstrued comment overheard during a brief phone call. Petitioner insists that his single utterance, "What do you want (Stewart)," cannot and should not justify the County's discriminatory action. The County ultimately hired Lizette Rivera for the Analyst Position. Petitioner alleges that the decision to hire Ms. Rivera is evidence of the County's female employees working together to eliminate white, male candidates. Petitioner maintains that Ms. Morales, a Hispanic female, favored another Hispanic (nondisabled) female (Ms. Rivera) for the Analyst Position. Consequently, Petitioner claims that Ms. Morales rigged the process and discriminated against Petitioner. At the final hearing, the County did not dispute that, while the OMB initially considered Petitioner for the Analyst Position, it quickly decided not to interview him for the job. The County also confirmed that the OMB did interview, and ultimately hire, Ms. Rivera to fill the Analyst Position. Regarding the County's decision not to interview Petitioner, after the initial phone call, Ms. Morales testified that she was quite startled by Petitioner's rude and unprofessional conduct. She immediately reported the conversation to her supervisor, Sharon Chauharjasingh, who is the Director of the OMB. Ms. Morales expressed to Ms. Chauharjasingh how shocked she was by Petitioner's behavior. Ms. Morales further relayed that because Petitioner was "in a rush," he did not provide her his availability for a telephone interview. Consequently, she had no information which would allow her to schedule him for an interview on Friday. Ms. Morales's testimony describing the telephone interaction with Petitioner was credible and is credited. Petitioner admitted to parts of Ms. Morales's versions, including that fact that he was in a rush and that he yelled, "what do you want?" Other than the two phone calls with Petitioner on Thursday, October 24, 2019, Ms. Morales was not involved in the OMB's decision not to interview Petitioner or to hire Ms. Rivera. (Those decisions belonged to Ms. Chauharjasingh.) Ms. Morales did not participate on the interview panel for either Ms. Rivera or Mr. Lower. Ms. Morales further testified that at no time during her phone calls with Petitioner did he inform her that he had a disability, or that he needed an accommodation to participate in the interview process. Ms. Chauharjasingh also testified at the final hearing. Ms. Chauharjasingh initially explained that the OMB is tasked with preparing the County's annual budget of approximately $1 billion. The person who fills the Analyst Position will work in the OMB. The duties of the Analyst Position include reviewing the budgets of the different County departments, as well as assisting those departments with budget questions and preparation related tasks. The Analyst Position will also review budgetary impacts and projections, and be prepared to personally discuss these issues with County representatives. In addition, the Analyst Position will interact daily with other staff members and occasionally contact outside companies and the public. Regarding the hiring of Ms. Rivera, Ms. Chauharjasingh disclosed that, because she oversees the OMB, she was responsible for selecting the person to fill the Analyst Position. For this opening, Ms. Chauharjasingh was the individual who narrowed down the applicants to the shortlist of three individuals including Petitioner, Ms. Rivera, and Mr. Lower. In selecting these candidates, Ms. Chauharjasingh looked at each applicant's past experience as a budget analyst, as well as their aptitude to efficiently assume the job duties. Based on their resumes, Ms. Chauharjasingh believed that each finalist was qualified for the Analyst Position. After selecting the three candidates, Ms. Chauharjasingh asked her assistant, Ms. Morales, to call each applicant and set up an interview. Ms. Chauharjasingh asked Ms. Morales to schedule the interviews for either Friday, October 25, 2019, or Monday, October 28, 2019. At the final hearing, Ms. Chauharjasingh represented that the County routinely interviews job applicants by telephone. Ms. Chauharjasingh further testified that the decision not to continue the interview process with Petitioner was hers. Ms. Chauharjasingh recounted that on Thursday morning, October 24, 2019, Ms. Morales came into her office looking "shaken up." Ms. Morales reported that she had just spoken to Petitioner, and he yelled at her and was rude and unprofessional. Ms. Chauharjasingh had never heard of a job candidate reacting the way Ms. Morales described. Ms. Morales has never complained to her about any other applicant. Based on Ms. Morales's interaction with Petitioner, Ms. Chauharjasingh immediately decided to remove Petitioner from consideration for the Analyst Position. She therefore directed Ms. Morales to "move on" from Petitioner and not to communicate with him any further. Instead, Ms. Morales was to only schedule interviews with the other two candidates (Ms. Rivera and Mr. Lower). The County's panel of five interviewers, which included Ms. Chauharjasingh, conducted an in-person interview of Ms. Rivera on Friday, October 25, 2019, at 11:30 a.m. Mr. Lower was interviewed, in person, on Monday morning, October 28, 2019, at 9:30 a.m. Following the interviews, the panel ranked the candidates, and then sent the list to Ms. Chauharjasingh. Ms. Chauharjasingh extended the offer of employment to Ms. Rivera, who was the top-ranked candidate. Ms. Chauharjasingh concluded her testimony by asserting that Petitioner's disability played no role in her decision not to interview him. Ms. Chauharjasingh explained that, at the time she decided to terminate the interview process with him, neither she nor Ms. Morales had any knowledge or information regarding Petitioner's disability. Instead, the sole basis for removing Petitioner from the shortlist was Ms. Morales' interaction with him during her initial phone call. Ms. Chauharjasingh testified that, based on the specific responsibilities of the Analyst Position, personal traits such as good communication skills, decorum, and telephone etiquette are very important. For example, the Detailed Job Posting for the Analyst Position includes a Physical Demand Requirement of "Expressing or exchanging ideas by spoken word or perceiving sound by ear." Consequently, upon hearing Ms. Morales's description of Petitioner's attitude and behavior during the telephone call, Ms. Chauharjasingh decided that the County did not need to consider Petitioner's application any further. In her testimony, Ms. Colon expressed that she had no part in the OMB's decision not to interview Petitioner. She became involved in this matter only after she received Petitioner's email, addressed to her as the County's ADA coordinator, on Friday morning, October 25, 2019. Ms. Colon stated that after she read Petitioner's email, she did not immediately respond because she first wanted to determine what exactly had transpired between Petitioner and Ms. Morales the previous day. Ms. Colon spoke with both Ms. Morales and Ms. Chauharjasingh on Friday. From these conversations, Ms. Colon heard that Petitioner was "rude" during Ms. Morales's first telephone call. Further, Petitioner was so "abrupt" that Ms. Morales was not able to offer him an interview time. Ms. Morales also informed Ms. Colon that Petitioner did not mention a disability or request an accommodation during either of their calls. Regarding her own phone call with Petitioner on Friday afternoon, Ms. Colon described an experience very similar to Ms. Morales's. Ms. Colon testified that the conversation was "not pleasant." As with Ms. Morales, Ms. Colon recounted that Petitioner was "agitated," loud," and "extremely unprofessional." During the exchange, Petitioner also threatened to sue her and the County. Regarding her email to Petitioner on Monday evening, October 28, 2019, in which she wrote that, "The OMB Department had concerns about the way you handled the call and treated the employee that contacted you on October 24th," Ms. Colon stated that the decision not to schedule Petitioner for an interview was made on October 24, 2019. Specifically, after talking with Ms. Morales and Ms. Chauharjasingh, Ms. Colon learned that Ms. Chauharjasingh had decided not to interview Petitioner immediately after Ms. Morales reported to her regarding Petitioner's rude and unprofessional interaction with her during their first phone call. As a final witness, Ms. Fatima Lozano testified regarding her participation on the interview panel for the Analyst Position. Ms. Lozano described herself as a Human Resources "generalist" with the County. Ms. Lozano has taken part in a number of interviews of applicants for County employment. She relayed that the County routinely conducts telephonic interviews. Ms. Lozano repeated that, when hiring employees, the department responsible for the position sets up the interviews and selects the winner. For the Analyst Position, the OMB selected the applicants who would interview for the job. Regarding scheduling the interviews for the Analyst Position, Ms. Lozano testified that, on October 21, 2019, she received a calendar invite requesting her availability. The interviews then took place on Friday, October 25, 2019, at 11:30 a.m. and Monday, October 28, 2019, at 9:30 a.m. While the above findings chronical the key aspects of Petitioner's discrimination claim, Petitioner also raised several other complaints against the County. Petitioner was exceedingly frustrated by the County's failure to schedule his interview through the www.governmentjobs.com website. At the final hearing, Petitioner elicited testimony from several County employees that, although the County pays a hefty annual fee to recruit employees through governmentjobs.com, the County only uses the website to solicit applications. Petitioner was "shocked" to learn that the County did not take advantage of the website's functions to schedule interviews with candidates. Petitioner was also "stunned" at the County's attempt to schedule his interview with less than one day's notice. Petitioner found the practice unprofessional and unacceptable. Petitioner represented that the standard process used by governmentjobs.com is to email a notification to the job applicant at least four to seven days prior to the agreed interview time. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the County discriminated against Petitioner based on his disability (handicap), race, or national origin. Instead, the credible evidence establishes that the decision not to interview Petitioner was made without knowledge of his disability prior to his request for an accommodation, and without regard to his race or national origin. The decision to not interview Petitioner was based solely on his own behavior, considered rude and unprofessional, effectively disqualifying him from the job. Accordingly, Petitioner failed to meet his burden of proving that the County committed an unlawful employment practice against him in violation of the FCRA.
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 Petitioner, Robert F. Cameron, did not prove that Respondent, Osceola County, committed an unlawful employment practice against him, and dismissing his Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 12th day of November, 2020, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 12th day of November, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Robert Finley Cameron 1 Churchill Street, Apartment 10 St. Catharines, Ontario, Canada L25 2-P3 C (eServed) Frank M. Townsend, Esquire Osceola County Attorney's Office 1 Courthouse Square, Suite 4700 Kissimmee, Florida 34741 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent subjected Petitioner to employment discrimination by refusing to hire Petitioner based upon Petitioner?s disability. Whether Respondent failed to make reasonable accommodations for Petitioner?s physical disabilities.
Findings Of Fact Respondent is a trucking company that has over 7,000 trucks that carry payload throughout the country. Petitioner alleges that Respondent did not hire him as a truck driver because Petitioner is disabled, or because Respondent perceived that Petitioner had a disability. Petitioner?s claimed disabilities are a skip of the heart and lower back pain. Petitioner completed his initial application for a truck driving position with Respondent on November 6, 2008, which Respondent received on December 10, 2008. In accordance with Respondent?s hiring process, once Respondent receives an initial application for a driver position, it conducts a preliminary review of the information provided by the applicant. If an applicant provides sufficient information to pass preliminary review, Respondent then sends the applicant a pre-approval letter with an attached “Pre- Training Checklist,” which sets forth a number of requirements for hiring. Respondent?s Pre-Training Checklist requires applicants to have three years of work history. Respondent uses work histories for references from previous employers to check on the background of its applicants as part of Respondent?s obligation to the public to ensure that the drivers it hires will be safe. Respondent?s pre-approval letter advises applicants that “[t]his pre-approval is contingent upon further background investigations, including motor vehicle reports and the successful completion of the hiring process.” Petitioner?s initial application contained no work history. Instead, Petitioner wrote in his application that he had lost his job because the company he was working for had gone out of business, and that he was a stay-at-home dad. Although Respondent sent Petitioner a pre-approval letter, Respondent requested Petitioner to submit additional information regarding his income and work history. Petitioner then submitted information demonstrating that he had no work history in the three years prior to his application. Thereafter, Respondent declined to hire Petitioner based upon his lack of work history. Although Petitioner claims that Respondent failed to hire him because Petitioner was disabled, the evidence submitted by Petitioner was insufficient to show that Petitioner ever informed Respondent of his alleged disability during the application process. Petitioner argued at the final hearing that tax returns and Social Security Benefit Statements submitted to Respondent as part of the application process to verify Petitioner?s earnings should have alerted Respondent to the fact that Petitioner was disabled.1/ Those returns and statements, however, standing alone, do not demonstrate that Respondent was made aware that Petitioner was claiming to be disabled, especially in light of the fact that Petitioner produced no evidence that Respondent received any other information whatsoever from Petitioner, Petitioner?s truck-driving school, or any other entity about Petitioner?s claimed disability or physical limitations, prior to making the decision not to hire Petitioner. Respondent denied receiving such information, and it is found that Respondent did not receive information from any person or entity regarding Petitioner?s alleged disability prior to making the decision not to hire Petitioner. Regarding Respondent?s alleged failure to accommodate, Petitioner testified that, in order to accommodate his disability, he would not be able to load or unload trucks, and would need to be given time to visit his doctor. Petitioner, however, failed to show that he ever requested an accommodation from Respondent. Moreover, the ability to load and unload trucks is an essential duty of the driver position for which Petitioner applied. At the final hearing, Respondent provided evidence that it employs and provides accommodations for a number of drivers with disabilities. Respondent?s evidence that it hires disabled persons is consistent with guidelines adopted by Respondent stating that Respondent “provides equal employment opportunities to all employees and applicants for employment without regard to race, color, religion, sex, national origin, age, disability, marital status or veteran status in accordance with applicable federal and state laws.” In sum, Petitioner failed to demonstrate that Respondent discriminated against him by refusing to hire him because of his disability or that Respondent failed to make reasonable accommodations for Petitioner?s disability. Rather, based upon the evidence adduced at the final hearing, it is found that Respondent decided not to hire Petitioner because he failed to provide three years of work experience required of all applicants.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint and Petition for Relief. DONE AND ENTERED this 14th day of April, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2011. 1/ The tax statements consist of forms 1040EZ for 2006 and 2007 signed by Petitioner and his wife. On both forms, the lines for “occupation” next to Petitioner's wife's signature state, “Disable/Cashier.” The occupation lines on both forms next to Petitioner's signature state, “Disable.” The Social Security Benefit Statements consist of five Form SSA-1099 Social Security Benefit Statements for years 2005 through 2007, including Petitioner's wife's 2005 statement for benefits totaling $9,494.40, Petitioner's 2006 statement for benefits totaling $7,542.00, Petitioner's wife's 2006 statement for benefits totaling $9,882.00, Petitioner's 2007 statement for benefits totaling $7,794.00, and Petitioner's wife's 2007 statement for benefits totaling $10,206.00. 2/ Unless otherwise indicated, all references to statutes or rules are to the current, 2010, versions, which have not been substantively revised since the relevant hiring decision in this case. 3/ See Finding of Fact 13, supra. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Edward Rhoades 7470 Northwest 167th Place Trenton, Florida 32693 Ignacio J. Garcia, Esquire Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 100 North Tampa Street, Suite 3600 Tampa, Florida 33602 Larry Kranert, 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 has a disability (back injury) for purposes of Chapter 760, Florida Statutes, and whether her termination was because of her race (Black) or due to excessive absenteeism and tardiness.
Findings Of Fact The Petitioner first worked for Mold-Ex Rubber Company (Mold-Ex) in November 1998. Her duties were in the extrusion department where she worked bonding rubber strips together on a "hot plate machine," hanging them to dry and then transferring them to be stored in a box for shipping. Nick Bores, Human Resources Coordinator at Mold-Ex, explained that she was responsible for transferring completed, bonded rubber strips and was responsible for moving four to five strips at a time. The weight of those strips was approximately one pound per strip. The Petitioner remained a probationary employee throughout her tenure. The probationary period for new employees at Mold-Ex is ninety days. She was never entitled to benefits and never received any because she remained on probationary status. Several weeks after she first began employment at Mold- Ex the Petitioner was in a car accident, which was unrelated to her employment. The accident occurred on December 4, 1998. Mr. Bores was unaware of the length of time required for her recovery from her car accident, but in any event her initial employment with Mold-Ex ended at some point after the car accident in December 1998. She did not return to work after that accident. In May 1999, the Petitioner submitted a doctor's note to Mr. Bores, which released her to return to work without any restrictions as of May 17, 1999. Mr. Bores was under the belief that he was under no obligation to re-hire the Petitioner because she had left her employment after the accident while still a probationary employee. Nevertheless, he re-hired her as a probationary employee in May 1999, and was given to understand by the Petitioner that, as of May 17, 1999, she was under no medical restrictions and could return to regular duties. Mr. Bores hired Ms. Prather to work at the rate of $6.00 per hour and she averaged $960.00 per month in pay. The Petitioner maintained that she was "averaging $288.00" per month in overtime. She did not present any evidence to corroborate her testimony to demonstrate her average overtime pay or that she even earned any overtime pay. Considering her short service with Mold-Ex, which was only a month in 1998 and less than two weeks in 1999, it cannot be concluded what she would have averaged in overtime pay nor can it be concluded, because there is not credible evidence, that she actually worked overtime. In any event, she worked in a department where her job duties including trimming the edges of square pieces of rubber with a sharp knife. During her second week of employment in 1999, the Petitioner left work early on May 28, 1999, to see her physician. She did not return to her job, but her next scheduled day at work was May 31, 1999. She visited her doctor again on June 2, 1999, when she obtained a physician's note (Petitioner's Exhibit A) and on June 2, 1999, gave the note to Mr. Bores. The Petitioner did not present evidence of any other doctor's note regarding medical restrictions or advice. The Petitioner had earlier submitted a note that released her to full duty as of May 17, 1999. Despite her return to health according to her doctor's note, she was unable to be at her work station on time and sometimes failed to appear for work at all. Respondent's Exhibit five reflects the Petitioner's actual "time punches" between May 17, 1999, and May 28, 1999. This exhibit reflects a pattern of tardiness and absenteeism. Mold-Ex has an attendance policy in force, shown by Respondent's Exhibit three. That policy requires its employees to be at their work stations ready to work at their scheduled time every day that their work is scheduled. Additionally, employees are expected not to leave their work stations early. Absences, tardiness and leaving early are not excused unless the supervisor has approved the time off in advance. An employee cannot be excused from absence or tardiness by calling in at the start of his or her shift. Depending on the business needs of each department, a supervisor can accept as little as 24-hours advance notice of an occurrence in order for it to be excused. The proper policy for having an excused absence or time off requires pre-approval by the employee's supervisor. Violations of this policy can lead to termination. Mold-Ex has terminated both white and black employees for attendance violations. Ms. Prather admitted that she was aware of the attendance policy contained in Respondent's Exhibit three and that she had received a copy of that policy. She agreed that if she was not at her work station at her scheduled time that was an "occurrence" or violation of the policy. Ms. Prather agreed that leaving work early also was a violation of the policy. She agreed that her shift began at 7:00 a.m., and ended at 3:30 p.m., and that she was scheduled to work five and sometimes six days per week. She agreed that to be in compliance with the attendance policy she was required to clock- in at 7:00 a.m., and clock-out at 3:30 p.m., each day when she was scheduled to work. She also agreed that unless an employee contacted the company prior to the absence or tardy occurrence that the occurrence would be unexcused and a violation of the policy. The Petitioner agreed that if she had absences or tardiness during the period that lasted from May 17, 1999 through June 4, 1999, then those occurrences would count against her under the Respondent's attendance policy. She also admitted that the company could terminate her for having too many occurrences in violation of the attendance policy. The Petitioner's absences or instances of being tardy are depicted on Respondent's Exhibit five. She was absent on May 18, 1999; late to work on May 19, 1999 and May 20, 1999. On Saturday, May 22, 1999, she was "technically absent" because she clocked in for only one minute. The next scheduled work day was May 24, 1999, and she was absent. She was also absent on the following day, May 25, 1999. She was late to her work station the next three days of that week: May 26 - May 28, 1999. She clocked out early on May 28, 1999, and would have been scheduled to be at work on May 31, 1999, and June 1, 1999, but she failed to come to work on those days. This is a total of 13 occurrences or violations of the attendance policy, which she effectively did not dispute. The Petitioner did not present evidence of any occurrence being excused under the policy. Mr. Bores did not recall the Petitioner calling in for advance approval regarding any of these occurrences. Ms. Prather suggested that she may have informed Mr. Bores that she would miss a few days after May 28, 1999, but she did not testify that she informed him prior to the shifts for which she was scheduled to work. On rebuttal she claimed that she had called the receptionist on May 28, 1999, to inform the Respondent that she would be taking a few days off and would bring in a doctor's note when she could return to work. However, she admitted that she did not speak to her own supervisor about her need for time off, which was required under the policy for time off to be excused. She had no explanation for any of her other violations of the attendance policy. She claimed that the note, Petitioner's Exhibit A, released her from work for two days. The note, however, does not reflect that any days off were advised by the physician. Rather the note merely states that "Ms. Prather has been advised to avoid repetitive overhead work, lifting over 15-20 pounds and repetitive bending." This note did not inform Mold-Ex of any necessary absences or request any excuse for missed work. The Petitioner admitted that she did not provide the note to the company until June 2, 1999, after the scheduled shifts of May 31, 1999 and June 1, 1999. Accordingly, she did not follow the policy for obtaining excused absences. The note itself, as well as Ms. Prather's admission of her failure to follow policy, shows that her contention that the note released her from work for two days is without merit. After reviewing Ms. Prather's time records on June 1, 1999, Mr. Bores decided on that day to terminate her because of her violations of the attendance policy. He identified at least nine violations of the attendance policy in less than two weeks. Mold-Ex has terminated employees with fewer attendance occurrences than Ms. Prather had accumulated at the time Mr. Bores decided to terminate her. A continuing pattern of being late, even as little as two to four minutes, is sufficient for termination under the attendance policy adopted by Mold-Ex. Her poor attendance was the only reason for her termination. Mr. Bores discussed the termination with Ms. Prather on June 2, 1999. She testified that she presented him with her doctor's note (Petitioner's Exhibit A) on June 2, 1999. Nevertheless, by June 2, 1999, Mr. Bores had already decided to terminate her for poor attendance based upon her record to that point. Mr. Bores never considered that the Petitioner had a disability. If she had not violated the attendance policy with so many occurrences of absenteeism and tardiness he would have considered her for any available work at Mold-Ex within her doctor's restrictions. Mr. Bores completed a termination form for the Petitioner on June 4, 1999. Because the form was not completed until June 4, 1999, which may have been the date she signed the form, her termination was considered effective on that date, although Mr. Bores had decided to terminate her on June 1, 1999. When terminating employees for failure of their probationary period, detailed forms are not required under Mold-Ex's regularly adopted personnel policy. The termination form that is Respondent's Exhibit four is consistent with the company policy and practice for terminating probationary employees. The company form reflects one comment describing a reason for termination: "probation." This signifies that the employee violated her probationary status and, in this case, that she failed her probationary period because of attendance violations. Failure to pass the probationary period is an issue that falls within "category 5" of the termination form. The only work restrictions placed on the Petitioner by her physician were represented by Petitioner's Exhibit A. The Petitioner agreed that she could have performed many different jobs under those restrictions. In fact, she testified that Petitioner's Exhibit A reflects restrictions that would have prevented her from working only in a "very narrow" range of jobs. Nevertheless, after being terminated from Mold-Ex, effective June 4, 1999, the Petitioner did not obtain employment until January 26, 2000, when her doctor gave her a full release to return to work. She admitted that she did not seek other employment during that period of time when she was without work. Additionally, she admitted that she could have obtained a full release to return to work prior to January 2000 if she had requested such from her doctor. Thus, it has not been proven that she acted to mitigate any damages caused by her loss of employment with the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petitioner's charge of discrimination, with prejudice, in its entirety. DONE AND ENTERED this 4th day of March, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 4th day of March, 2002. COPIES FURNISHED: Nick Bores Mold-Ex Rubber Company 8052 Armstrong Road Milton, Florida 32583 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Maldrick E. Bright, Esquire Bright Law Office, P.A. 5189 Stewart Street Milton, Florida 32570 Heather F. Lindsay, Esquire Johnston, Barton, Proctor & Powell 1901 Sixth Avenue, North, Suite 2900 Birmingham, Alabama 35203 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
