The Issue Whether Respondent, Superior Optical Shop (Respondent), violated the Florida Civil Rights Act of 1992, Sections 760.01– and 509.092, Florida Statutes, by subjecting Petitioner, Janice Jennings (Petitioner), to discrimination in employment and by discharging Petitioner in retaliation for Petitioner’s opposition to Respondent’s discriminatory employment practices.
Findings Of Fact Petitioner is an African-American female. Respondent is a corporation with its corporate headquarters located in Ocean Springs, Mississippi. Respondent operates an optical shop in a Veteran’s Administration (V.A.) Hospital located in Lake City, Florida. At its Lake City location, Respondent fills prescriptions written by eye physicians at the V.A. Hospital, assists patients with choosing frames, and fits patients with their prescription eye glasses. Respondent’s optical shop in Lake City is fast-paced, with a constant stream of patients, averaging 50-to-60 patients a day. If the optical shop is running behind schedule, it is problematic because often physicians at the V.A. Hospital are waiting to see the patients served by the optical shop. In 2009, Petitioner interviewed for a position at Respondent’s optical shop in Lake City, Florida. During her interview, Petitioner advised Respondent that she had competent computer skills and significant experience working in an office environment and with eye doctors. On May 27, 2009, Respondent hired Petitioner as a part- time clerk at the optical shop. Petitioner was terminated prior to working 90 days for Respondent. When Petitioner was hired, two full-time employees worked at the optical shop: office supervisor, Jean Hartup, and optician, Kathleen Denton. Ms. Hartup has been employed with Respondent for approximately five years. Ms. Denton has been with the optical shop for approximately two and a-half years. As office supervisor, Ms. Hartup can be distant with employees and “hard” at times. She can also be “direct” when speaking to employees. Ms. Hartup demonstrates these traits with all of the employees at the optical shop. Ms. Hartup has written up Ms. Denton in the past and the two have had personality conflicts. Both Ms. Hartup and Ms. Denton assisted with training Petitioner. Evidence indicated that Petitioner received adequate training to perform the tasks she was assigned to perform as a clerk. She often had to be re-trained on the same tasks. Respondent’s optical shop in Lake City is a very small room, approximately ten-feet by ten-feet square inside the V.A. Hospital. There are two small desks in the shop and it is very crowded. Petitioner was aware of the small working environment at the time she accepted employment with Respondent as a part- time clerk. Past and present employees at the optical shop have had to share desk space. Sometimes work has to be performed in the hallway because of the small office space. All new hires for Respondent are subjected to a 90-day probationary period. As explained in Respondent’s “Employee Handbook of Office Policies and Benefits,” of which Petitioner was aware: There will be a 90-day probationary period during which time the employer may terminate the employee at any time for any reason or for no reason regardless of any other provision of these policies. Sick leave and personal days are accrued but cannot be used during this period. Respondent’s Employee Handbook of Office Policies and Benefits also provides: [Respondent] does not and will not tolerate any employee discriminating against their work peers for any reason i.e., race, color, religion, sex, national origin or handicap. Any known verifiable discrimination will be grounds for immediate termination. Once on the job, Petitioner was not proficient on the computer and, despite repeated training, failed to show any improvement and was slow in performing her job duties. Because of this, service to patients at the optical shop slowed down and the optical shop was frequently behind, resulting in physicians having to wait for patients being served by the optical shop. Ms. Hartup became frustrated with Petitioner’s unsatisfactory job performance and the resulting delays. In addition, Petitioner began to show a lack of interest in her job and even stated that she “didn’t really need a job; she just wanted to be out of the house.” Despite repeated training and opportunities to improve her work performance, Petitioner failed to improve. Petitioner was given a notebook with information from the American Board of Opticians for review but she failed to read it or return it to Respondent. Prior to the end of her employment with Respondent, Petitioner called Respondent’s corporate headquarters in Mississippi and spoke to Mary Walker. Petitioner complained to Ms. Walker that Ms. Hartup was being too hard, was impatient, and was expecting too much of her. Petitioner did not raise concerns with Ms. Walker that she was being discriminated against based on her race, or that she had been subjected to a hostile work environment because of her race. In fact, there is no evidence that Petitioner ever complained of race discrimination or a hostile work environment based on race discrimination while she was still employed by Respondent. During that first telephone conversation with Petitioner, Ms. Walker suggested to Petitioner that she should talk to Ms. Hartup about the problems. Petitioner assured Ms. Walker that she would. Two days later, Ms. Walker called Ms. Hartup and inquired whether Petitioner had discussed her concerns with Ms. Hartup. Petitioner, however, had not spoken to Ms. Hartup about her complaint. Ms. Walker gave Ms. Hartup the authority to run the optical shop at Lake City, including making hiring and firing decisions. Ms. Walker did not discipline Ms. Hartup because of Petitioner’s complaints. Rather, Ms. Walker told Ms. Hartup to handle the situation regarding Petitioner’s complaints. Ms. Hartup then met with Petitioner and they spoke about Petitioner’s concerns that Ms. Hartup was being too harsh and about Petitioner’s poor work performance. As a result of that meeting, Ms. Hartup felt the situation had been resolved. Petitioner subsequently advised both Ms. Denton, as well as Ms. Walker at Respondent’s headquarters, that the conversation with Ms. Hartup had gone well and that their issues had been resolved. Petitioner’s work performance, however, did not improve. Prior to the end of her 90-day probationary period of employment, Respondent terminated Petitioner from employment for poor work performance, for failing to reach her capabilities as an employee, and because her poor work performance was a detriment to Respondent’s Lake City optical shop. Petitioner testified that, from her point of view, she truly felt as though she had been discriminated against because of her race. That testimony, however, was without further support and was unpersuasive, especially in view of the fact that there is no evidence that Petitioner ever mentioned to anyone during her employment with Respondent that she believed she was being discriminated against. There was otherwise no evidence presented at the final hearing that would support a finding that Respondent’s decision to terminate Petitioner was in retaliation for Petitioner’s complaint against Ms. Hartup. Further, the evidence produced at final hearing does not support a finding that either the manner in which Petitioner was treated during her employment with Respondent, or her termination from that employment, was based on Petitioner’s race. Respondent filled the position of part-time clerk left vacant after Petitioner’s termination by hiring a Native- American male.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 29th day of July, 2010, 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 29th day of July, 2010.
The Issue Whether the Petitioner, a member of a protected class, was terminated from his employment with the Respondent in the Hospitality Department at the Grand Floridian Hotel on or about March 18, 1993 on the basis of his national origin (Hispanic-Dominican Republic), in violation of Section 760.10(1)(a), Florida Statutes (Supp. 1992).
Findings Of Fact The Respondent is an employer under the Florida Civil Rights Act of 1992. The Petitioner was employed by the Respondent at its Grand Floridian Hotel as a valet/greeter/bellman in the Hospitality Department during the relevant period of time, including March of 1993. The Petitioner is of Hispanic origin from the Dominican Republic and is a member of a protected class. In approximately October of 1988, the Petitioner began his employment with the Respondent at the Contemporary Hotel as a valet/greeter. In April of 1989, the Petitioner received a written reprimand for not logging in a piece of luggage. The Petitioner did not grieve the April 1988 written reprimand. In May of 1989, the Petitioner transferred to the Respondent's Grand Floridian Hotel, where he was a valet/greeter/bellman. In February of 1990, the Petitioner received an oral reprimand for three separate incidents of improperly logging luggage. 9. The Petitioner could not recall if he grieved the February, 1990 oral reprimand. In August of 1990, the Petitioner again received an oral reprimand, this time for mixing up luggage while loading it into vehicles. The luggage had to be mailed to each rightful owner at the Respondent's expense and caused an inconvenience to the guests. The Petitioner could not recall if he grieved the August 1990 oral reprimand. In December of 1991, the Petitioner mishandled luggage by failing to tag all of a guest's bags. In May of 1992, the Respondent's management discussed with the Petitioner his failure to tag a piece of luggage. In July of 1992, the Petitioner received a verbal reprimand for failing to log in a guest's luggage. The Petitioner's verbal reprimand in July of 1992 was the result of a direct complaint by a guest, who was required to search for a piece of his own luggage in the Hotel's storage room. The Petitioner could not recall if he grieved the July 1992 verbal reprimand. In September of 1992, the Petitioner received a verbal reprimand for approaching a guest to discuss splitting a tip with a bellman, an impermissible practice. The Petitioner was not suspended for this incident. In December of 1992, the Petitioner received a written reprimand for failing to follow proper procedures regarding a guest's luggage on two separate occasions. The Petitioner did not grieve the December 1992 written reprimand. The Respondent decided not to consider the two incidents in December of the Petitioner's luggage-mishandling as separate incidents for progressive discipline purposes, even though such action was permissible under the collective bargaining agreement. The Respondent's decision not to consider the two December 1992 incidents separately for progressive discipline purposes was based upon the Petitioner's length of service and his good performance in other areas. The Petitioner had a good attitude, had good people skills, and had received good guest comments during the course of his employment. In December of 1992, the Petitioner understood that he was in the progressive discipline process. In January of 1993, the Respondent met with the Petitioner and offered to remove him from the responsibility of handling luggage by putting him in a non-tipped, dispatcher position. Also, in January of 1993, the Respondent and the Petitioner's union representative were working together to preserve the Petitioner's job. The Petitioner was reminded by his union representative about his previous reprimands and that one more incident would cause his termination. The Petitioner was told by his union representative that the purpose of moving him to a dispatcher position was to get him away from the luggage-handling area. The Petitioner was told that if he remained free of similar reprimands for one year, he could return to the tipped position of valet/greeter with no loss of seniority. After initially refusing the dispatcher position, the Petitioner accepted. The Petitioner was given the shift that he requested when he was transferred to the dispatcher position. In February of 1993 while on duty as a dispatcher, the Petitioner received a three-day suspension, without pay, for using poor judgment. He interrupted a valet while the valet was servicing a guest. The Petitioner did not grieve the February 1993 suspension. The Petitioner's action as a dispatcher of interrupting a valet was grounds for the valet to grieve such actions to the union. The suspension in February of 1993 for the Petitioner's poor judgment as a dispatcher was not the basis for his termination. The Petitioner requested a reclassification back to valet/greeter/bellman position. The Petitioner understood that one more incident of any kind would result in his immediate termination. The Petitioner requested the change from dispatcher back to valet/greeter/bellman for personal financial reasons; and his union representative also advised him that if one more incident of any kind occurred, he would be terminated. On March 16, 1993, the Petitioner mishandled luggage. The Petitioner did not properly log in a guest's luggage (a garment bag). 35. The Petitioner was terminated on March 18, 1993 for poor job performance. The progressive discipline which the Petitioner received was consistent with the union contract. The contract provides that an employee can be terminated for the next offense following a single written reprimand. The Petitioner had the opportunity to grieve all of the reprimands he received, and his union representative was aware of the actions taken in connection with the Petitioner's employment. The Petitioner grieved his termination, and that grievance was denied. The Petitioner failed to provide evidence of any similarly-situated employee who was not terminated for mishandling luggage on as many occasions as he had. The Petitioner failed to provide evidence regarding any discrimination against other Hispanic employees, other than his own belief, speculation or conjecture. The Petitioner understood that the Respondent's management was closely checking into everyone's performance. Management asked all of the employees at the Grand Floridian Hotel to help the Hotel earn a five-star rating. The Petitioner was never part of the Respondent's management and did not attend manager meetings. During the course of his employment, the Petitioner was chosen to train other employees because he knew the proper procedures for his valet/bellman/greeter position. The Petitioner knew the proper procedures for handling luggage received from guests. The Petitioner knew the proper procedures for logging in and handling bags. The Petitioner received copies of the Respondent's policies and procedures for a valet/bellman, including luggage handling. The Petitioner did not report many of the alleged discriminatory actions of his co-workers to management. The Petitioner conceded that on those occasions when he did make reports to management, these alleged actions stopped. The Petitioner received the overtime and schedules which he requested because of his seniority. The number of minorities employed at the Respondent's Orlando, Florida, work site has increased from 1993 to 1996. The number of minorities employed at the Respondent's Grand Floridian Hotel has either remained the same or increased from 1992 to 1995. In January of 1993, the number of minorities in the Grand Floridian Hotel's Hospitality Department was 14, of which 11 were Hispanic; and there were four Hispanics in the valet/greeter classification. In February of 1996, the number of minorities in the Grand Floridian Hotel's Hospitality Department (including valets, bellmen, greeters and dispatchers) was 16, of which 12 were Hispanic; and there were four Hispanics in the valet/greeter classification. The Petitioner failed to produce any evidence of an overall plan by the Respondent's management to eliminate minorities, including Hispanics, from employment at the company. The Respondent allows employees to review their employment records at any time upon request. The Petitioner presented only his own beliefs, speculation or conjecture as a basis for his claims of national origin discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which denies the Petition for Relief. DONE AND ENTERED this 19th day of April, 1996, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3990 The following constitute my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. The Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by the Respondent: Accepted in substance: paragraphs 1-20, 22-31, 33-39, 41-61. Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 21, 32, 40. COPIES FURNISHED: Mr. Jorge V. Jimenez 2716 FDC Grove Road Davenport, Florida 33837 Myrna L. Galligano, Esquire Garwood, McKenna & McKenna, P.A. 731 North Garland Avenue Orlando, Florida 32801 Dana C. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Respondent unlawfully terminated the employment of Petitioner, because of his age in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes. Whether Respondent retaliated against Petitioner by terminating him on October 3, 2005, after Petitioner filed a complaint with human resources alleging a hostile work environment.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Leviton Manufacturing Corporation manufactures electrical equipment and components. It is a New York corporation licensed to do business in the State of Florida. Inter allia, Respondent employs a sales force that covers the entire State of Florida. Respondent is an employer as defined by the Florida Civil Rights Act of 1992 ("FCRA"). Respondent has implemented an employee handbook aimed at fostering a work environment that is free from harassment, discrimination and retaliation. Respondent's policies contain reporting and investigation procedures that encourage employees to report any and all incidents of perceived discrimination or harassment, and ensure that all reported incidents are investigated. Petitioner was employed with Respondent from June 1995 until November 2003, and from July 2004 through October 3, 2005. At the time of his termination, Petitioner was 49 years old. Petitioner first began working for Leviton in 1995 as a Service Representative. He received merit pay raises and promotions until November 2003, when Respondent laid-off 150 people in the retail division, including Petitioner. Petitioner was rehired in July 2004, as a Sales Representative. Upon rehire, Petitioner was supervised by District Manager Scott Robbins ("Robbins"). Petitioner presented the testimony of three of Respondent's managers, one retired, who supervised Petitioner for various periods of Petitioner's nine and one-half year career with Respondent. Each of them testified that Petitioner was dedicated and professional in which ever position he was assigned, including two assignments as a manager. Scott Robbins, Petitioner's supervisor immediately prior to Goodman, recommended Petitioner for re-hire as a Sales Representative following a lay-off, and was satisfied with his work in that position. Petitioner also presented the testimony of 12 customers of Respondent, in the territory that he covered between July 2004 and October 2005. Each of them expressed their opinion that Petitioner was an honest, diligent, and professional sales representative for his employer. Respondent presented the testimony of one customer who was not satisfied with Petitioner's performance as a sales representative. In January 2005, District Manager Warren Goodman ("Goodman") replaced Robbins and assumed his territories as well as his role as Petitioner's supervisor. At the time Petitioner was terminated, Goodman was 48 years old. Goodman supervised, and currently supervises, at least, 12 Sales Representatives, the majority of whom are over the age of 40, to wit: Name Age Name Age Roy Boykin 59 Mickey Ferrell 49 Don Yeager 59 Jose Monzon 40 Michael O'Reilly 56 Duane Bishop 38 Dave Lenoir 37 Kevin Bouton 34 Ken Davis 54 Paul Dube 41 Brad Taylor 10. When Goodman 52 took over as District Manager, it became readily apparent that Goodman's management style was distinctly different from Robbins. Goodman is demanding, blunt and aggressive, and closely manages his sales representatives. He expected prompt and accurate responses to his requests from his sales representatives. Petitioner was required to fulfill the same job expectations that were demanded of all other Sales Representatives. It included, but was not limited to, the timely submission of complete and accurate paperwork, client follow up, and travel to specific areas within his designated territory. Petitioner's area extended from Lakeland, Florida, to Thomasville, Georgia. Goodman expected Petitioner to visit customers in his territory at least every three weeks, staying at least two to three days on each trip at each location. Goodman's job as District Manager is to oversee his sales force and to enforce Leviton's guidelines, as he interprets them. Moreover, Goodman is charged with measuring his employees' compliance with Leviton's policies and procedures. Over the course of his tenure, Petitioner failed to abide by company rules and policies, as well as the terms of his employment, as understood by Goodman. On more than one occasion, Petitioner failed to provide expense reimbursements in an appropriate and timely manner. He also failed to travel with the frequency required by his sales position. Additionally, on numerous occasions, Petitioner failed to verify the accuracy of orders he placed for customers. On May 2, 2005, Goodman sent Petitioner an email addressing the importance of administrative responsibility and consistency. Goodman had just reviewed Petitioner's expense reports and noted that they covered a ten-week period, clearly in violation of the requirement that they be submitted within 30 days. Goodman also noted that the expense reports reflected no travel over a two-month period to the Thomasville/Tallahassee area, which composed a large portion of Petitioner's territory. Goodman requested that, thereafter, Petitioner forward his itinerary weekly, attaching as an example a copy of itineraries submitted by Petitioner's colleagues. Petitioner responded, apologizing for the late expenses. He attributed his tardiness in part to a change in his cellular telephone carrier. Petitioner set forth all his travel dates within the northern portion of his territory since his re-hire. The dates provided demonstrated that he was not in compliance with the travel requirements established for all Sales Representatives. Goodman responded and reminded Petitioner of the importance of adhering to guidelines for travel and paperwork submission. He encouraged Petitioner to improve his performance and to do what was necessary to satisfy Goodman's expectations of the proper skills necessary to do his job effectively. On May 9, 2005, Petitioner sent Goodman an email indicating his car was being repaired. The repair estimates attached to the email evidenced that Petitioner had been driving a 12-year-old vehicle, which was not within Respondent's car policy guidelines. Petitioner had reviewed and signed the car policy guidelines on January 12, 2005, and began receiving monthly payments (including retroactive payments), effective February 11, 2005. On May 18, 2005, Petitioner received and signed an Employee Warning. Significantly, Petitioner signed the Employee Warning indicating that he read and understood it. The Employee Warning cited violations for substandard job performance and violations of company policies or procedures, with specific reprimands for: (1) failure to timely submit expense reports; (2) failure to travel as specified and agreed to; (3) sloppy submission of paperwork; (4) lack of involvement with customer; and (5) failure to maintain a proper company vehicle in accordance with company policy. Shortly thereafter, Petitioner purchased a new truck for the purpose of meeting the company vehicle policy. On May 31, 2005, Goodman reviewed numerous quotes submitted by Petitioner for review and renewal. Goodman informed Petitioner that upon review, the quotes prepared by Petitioner were inaccurate and required various revisions and corrections. Some quotes were priced higher than stock; different prices were entered for the same item in a different color (when there should have been no price difference); there were items on quotes that were never purchased; and there was no increase in items ordered/quoted. In August 2005, Goodman advised Petitioner that his sales goals were not ambitious enough and that Petitioner needed to re-evaluate and re-consider his year-end goals. Petitioner indicated that he would do as instructed. In mid-August 2005, Petitioner once again submitted an incomplete quote to Goodman for approval. When brought to Petitioner's attention, he added the items missing from the quote, offering no explanation for this oversight. On August 30, 2005, Petitioner submitted order adjustments to Goodman's administrative assistant for completion. When the request was forwarded to Goodman, he immediately reminded Petitioner that all changes were required to be submitted to him, not his assistant. Moreover, the requested changes contained errors. Goodman requested that Petitioner review the complete order and re-submit it when it was accurate. Three days later, Petitioner still had not acknowledged or responded to Goodman's request. Goodman completed and submitted Petitioner's performance review on July 25, 2005. Due to the fact that no prior goals or skills development were accomplished by Petitioner, his review was deferred until the end of 2005. Based upon his seven-month assessment of Petitioner, Goodman felt that Petitioner only partially met expectations. Rather than precluding a merit increase in salary, Goodman gave Petitioner an opportunity to improve his performance by deferring his review for several months. Petitioner signed this July review, indicating that Goodman discussed the review and appraisal with him. On September 5, 2005, (Labor Day, a holiday) Goodman sent an email to all of his Sale Representatives, which required a response to specific inquiries no later than 5:00 p.m. Petitioner did not respond until September 7, 2005, at 4:15 p.m. This was clearly past the deadline. Goodman reprimanded Petitioner in his responsive email, specifically advising Petitioner that his continued employment was in jeopardy. He invited Petitioner to call Goodman the next day to discuss Petitioner's lack of diligence and timeliness. Only after a telephone call on the morning of September 9, 2005, did Petitioner, for the first time raise the issue of unfair treatment, but he did not raise age as a factor. Petitioner requested, via email, that Goodman assist Petitioner in filing a complaint against Goodman with Leviton's Human Resource Department for creating a hostile work environment. In this same email, Petitioner informed Goodman that Petitioner had involved clients in his grievance by requesting that the clients evaluate Petitioner's performance and provide their input to Respondent. Based upon the preceding client involvement, Goodman advised Petitioner on September 12, 2005, that he was suspended immediately, with pay, pending the outcome of Respondent's investigation regarding Petitioner's inappropriate conduct. Petitioner was therefore instructed to maintain contact with only the Human Resources Department (HR) until further notice. Thereafter, Petitioner corresponded, via email, with Shephard. On September 13, 2005, Petitioner forwarded his May 5, 2005, email exchange with Goodman to Kimberly Shephard, Respondent's Corporate Human Resource Manager. On that same day, Petitioner sent another email to Shephard containing a list of items that were still incomplete and required follow up. In forwarding this lengthy "to do" list, Petitioner demonstrated his inattention to detail and inability to complete administrative tasks. On September 16, 2005, Shephard drafted Petitioner's allegations in memorandum format, the accuracy of which Petitioner verified and signed on September 20, 2005. Goodman was given a copy of the allegations and provided a written response on September 19, 2005, refuting each of Petitioner's allegations. Meanwhile, HR conducted interviews with a random selection of Goodman's employees in the district and noted each employee's assessment of Goodman. Goodman was determined by each of the interviewed employees to provide equal treatment to all employees. The employees interviewed ranged in age from 35 to 58. On or about September 20, 2005, Shephard completed her investigation of Petitioner's complaint and determined that there was no basis that Goodman created an unlawful hostile work environment. Rather, it was determined that Goodman set the same standards for all of his employees; treated them all the same; and that accordingly, there was no basis to conclude Petitioner was singled out. Petitioner was ultimately terminated on October 3, 2005. The reasons cited by Respondent were based on Petitioner's unsatisfactory job performance. The specific reasons given for Petitioner's termination were: (1) his inability to perform the tasks associated with the Sales Representative position; (2) his failure to develop end-users sufficiently; (3) his administrative inadequacies; (4) his failure to meet deadlines and failure to follow instructions; and (5) his choosing to enlist customers in an internal company matter pertaining to Petitioner's poor job performance. Although Respondent determined that Petitioner's involvement of customer's in an internal dispute was grounds for immediate termination, Respondent determined it would investigate Petitioner's complaint prior to taking other action, since it occurred at the same time as the allegations of improper conduct by Goodman. At no time was Petitioner's age raised as a factor in any of the terms and conditions of his employment by Respondent. Nor was it a factor in any work related complaints regarding his deficiencies. Petitioner never informed any member of Respondent's management that he believed he was treated differently during his employment because of his age, or that he had been terminated due to his age. After Petitioner was terminated, Respondent did not hire anyone to replace him. Rather, Respondent re-assigned Petitioner's territory to existing salesmen. Paul Dube ("Dube"), aged 41, inherited the majority of Petitioner's territory. Goodman did not require that Dube travel to, or invest time in customers that only did a nominal amount of business with Respondent. Petitioner attempted to establish that he was unable to respond to several of Goodman's inquiries in a timely manner, or at all, because Petitioner's computer was being repaired by Respondent's IT department. Nevertheless, Petitioner had access to his work email via Respondent's webmail program during this period. Petitioner failed to prove by a preponderance of the evidence that he was terminated by Respondent because of his age. Respondent failed to prove by a preponderance of the evidence that he was subject to retaliation after he filed a hostile work environment complaint with Respondent's HR department.
Recommendation Based upon the above Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order denying Petitioner's Petition for Relief and dismissing his charge with prejudice. DONE AND ENTERED this 13th day of August, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2007.
The Issue Whether Petitioner, Kurt Shannon, was subject to an unlawful employment practice by Respondent, Amalgamated Transit Union, Local 1593, based on his race in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is a former bus operator for the Hillsborough Area Regional Transit (“HART”). Petitioner worked for HART from 2006 through January 2014. At all times relevant to this proceeding, Petitioner was a member in good standing with the Union. Petitioner joined the Union in 2006 as soon as he was eligible. The Union is the bargaining unit for HART. The Union has approximately 350-600 members. The Union’s membership consists of a majority of African-American and Latino members. The Union’s executive board is also majority African-American and Latino. HART terminated Petitioner based on an incident that occurred on December 6, 2013. At the time, Petitioner was operating his bus and had stopped to allow passengers to board. A young male patron climbed onto the bus and attempted to pay his bus fare with a pass card. The patron’s pass card would not work. Petitioner questioned the patron as to whether his pass card was expired. The patron became unruly and began cursing. Petitioner admonished him and ordered him off the bus. Immediately, thereafter, Petitioner left his seat (revealing he was not wearing his seatbelt) and followed the patron off the bus. Petitioner explained that he wanted to ensure that the patron did not attempt to re-enter the bus. When he stepped off the bus, however, Petitioner recounted that the two men exchanged heated words. Without warning, the patron lunged at Petitioner and hit him in his face. Petitioner testified that he could not retreat. Therefore, he punched the patron back in an attempt to defend himself. Several bus passengers stepped in to stop the fight. One of them called the police. Upon learning of the incident, HART initiated termination proceedings. HART asserted that Petitioner should never have left his seat. Instead, once the patron exited the bus, Petitioner should have closed the bus door and proceeded on his route. HART charged Petitioner with three infractions: use of threat or force, other than self-defense (a class “A” violation which may result in termination); disorderly/inappropriate conduct by leaving his seat and following the patron off the bus (a class “B” violation); and failing to actively and properly engage in work duties/responsibilities by not having his seat belt fastened (a class “C” violation). On January 14, 2014, HART formally notified Petitioner that it was terminating his employment. HART dismissed Petitioner based on the class “A” violation. HART and the Union are parties to a collective bargaining agreement entitled Contract Between Hillsborough Area Regional Transit Authority and Amalgamated Transit Union Local 1593 (the “Bargaining Agreement”). The Bargaining Agreement provides a grievance procedure to process complaints by aggrieved HART employees. The grievance procedure culminates in final and binding arbitration. The Union is required to process grievances for its members. Following his termination, Petitioner requested the Union take his case to arbitration. The Union executive board agreed. The Union timely notified HART that it was initiating the grievance process to contest Petitioner’s discharge. Petitioner’s grievance culminated in an arbitration hearing which was held on December 9, 2014. The crux of Petitioner’s complaint of unlawful discrimination, as more fully set forth below, is that the Union did not provide an attorney to represent him at his arbitration hearing. Instead, then-Union President James Saunders, a non- lawyer, decided to personally represent Petitioner at the arbitration. Unfortunately for Petitioner, his arbitration was not decided in his favor. Petitioner testified at the arbitration and asserted that his actions were simply self-defense. The Arbitrator agreed that Petitioner did not commit the alleged class “A” violation of assault because the evidence failed to show that Petitioner had placed the patron in fear of imminent harm. However, the Arbitrator concluded that Petitioner did commit two class “B” violations by leaving his seat and exiting the bus, and by gesturing in a provocative manner towards the patron. Moreover, the Arbitrator found Petitioner’s testimony to be less than credible because his version of events was inconsistent with his prior statements and other relevant evidence. Under the Bargaining Agreement, Article 74, Section 1, the penalty for two class “B” violations in close proximity includes discharge. Consequently, on or about March 13, 2015, the Arbitrator issued an opinion denying Petitioner’s request for relief and upholding the termination. At the final hearing, Petitioner asserted that he lost his grievance proceeding because of inferior representation at the arbitration hearing. Petitioner complained that President Saunders did a very poor job of defending him. Petitioner thought President Saunders was ineffective and unprepared, and made no effort on his behalf at the hearing. Petitioner complained that President Saunders did not offer any substantive comments and failed to present Petitioner’s primary defense to the Arbitrator--that Petitioner was not the aggressor and did not initiate the confrontation. As an example, Petitioner claimed that President Saunders did not offer the police report into evidence which would have supported his version of the incident.2/ Neither did President Saunders contest HART’s witnesses’ testimony or argue for a more appropriate punishment based on similar incidents. At the final hearing, Petitioner insisted that he had a good case. He asserted that he would have prevailed at the arbitration if he had an attorney representing him.3/ Petitioner claims that the Union deliberately decided not to provide him an attorney based on his race. Petitioner testified that the Union obtained attorneys to represent other Union members at their arbitration hearings. Petitioner did not believe that the Union took his case seriously. President Saunders was not present at the final hearing. Henry Marr, the Union’s financial secretary, testified regarding why President Saunders represented Petitioner instead of an attorney. Mr. Marr explained that the Union is not required to retain an attorney to represent its members in grievance proceedings. It is only required to provide representation. Mr. Marr relayed that the Union has conducted many hearings with non-lawyer representatives.4/ Mr. Marr recounted that in Petitioner’s grievance proceeding, after the Union agreed to take the case to arbitration, President Saunders decided that Petitioner’s matter did not warrant an attorney. Mr. Marr expressed that the Union felt comfortable with President Saunders’ decision to represent Petitioner himself. President Saunders had significant experience advocating for Union members. The Union had arranged for President Saunders to receive training from the George Meany Institute in Maryland on how to advocate for employees in arbitrations. President Saunders had also participated in many arbitration hearings on behalf of Union members. Mr. Marr believed that President Saunders’ decision to represent Petitioner himself was appropriate because Petitioner’s grievance did not present any technical questions and did not involve the application or interpretation of Florida Statutes. In 2015, following Petitioner’s arbitration decision, President Saunders resigned from his post with the Union. The Union replaced him with its vice-president, Daniel Silva. At the final hearing, President Silva testified regarding President Saunders’ decision to represent Petitioner. President Silva opined that President Saunders was sufficiently knowledgeable and experienced to present Petitioner’s case. President Silva also relayed that financial concerns factor into the Union’s decision on whether to provide private legal counsel to represent members. The Bargaining Agreement states that each party “shall bear the cost of preparing and presenting its case.”5/ The Union is conscious of the need to conserve its funds whenever possible, including attorneys’ fees. At the final hearing, Petitioner presented the names of three other Union members for whom the Union provided legal counsel at arbitration hearings. Petitioner did not provide details regarding the circumstances of HART’s employment actions or whether the underlying facts of each matter were substantially similar to his incident. At the final hearing, the Union conceded that for most arbitration hearings it offers its members the services of an attorney. However, President Silva testified that President Saunders represented at least one other white Union member at an arbitration in November 2014. This member, Robert Rackham, did not prevail at his arbitration.6/ President Silva and Mr. Marr testified that Petitioner’s race had no bearing in President Saunders’ decision not to assign an attorney to represent Petitioner at his arbitration hearing. Rather, President Saunders made his decision because he believed he could competently represent Petitioner on his own. Mr. Marr testified that he is not aware of any decision the Union has made based on a member’s race. Based on the evidence and testimony presented at the final hearing, Petitioner did not demonstrate, by a preponderance of the evidence, that the Union discriminated against him based on his race in violation of 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 finding that Respondent, the Union, did not commit any unlawful employment practice against Petitioner and dismiss his Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 2nd day of December, 2016, 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 2nd day of December, 2016.
Findings Of Fact The Respondent, Mr. Joseph Hatfield, owns and manages an rental complex at 1839 Portland Avenue, Tallahassee, Florida 32303, also known as Astoria Hills Town Houses. The complex consist of two (2) buildings, each of which contains four (4) town house apartments. The Respondent occupies one of these apartments. Astoria Hills Town Houses are located within the city limits of the City of Tallahassee in the area of the city commonly known as Astoria Hills. The Petitioner, Craig Fletcher, leased on June 29, 1991 from the Respondent one of the town house apartments located in the building opposite from the building occupied by the Respondent. The lease was until June 30, 1992. The rent was due on the fifth day of each month, and the Petitioner occupied the leasehold on July 5, 1991. The Petitioner lived in the leasehold until May, 1994, during which time he and his wife maintained a social relationship with the Respondent, as well as a landlord/tenant relationship. They were guests in his apartment, and he was a guest in their apartment. The Petitioner was in the Respondent's apartment when calls came in on the Respondent's telephone answering machine. The Respondent listened to the calls and stated to the Petitioner that he used the machine to screen calls, and he did not call Blacks back because he did not desire to rent to them. The Respondent is over 70 years old, suffers from physical/medical problems as the result of an automobile accident, to include chronic pain as a result of the accident. The Respondent is known by the tenants to be irascible and to hold views on racial matters which are repugnant to most people. The Respondent has declared to the Petitioner and others that his automobile was struck by an uninsured vehicle driven by "niggers." As a result of the accident, the Respondent's attitude towards Blacks is, at best, uncharitable. The Petitioner testified that the Respondent told him that he hated Blacks because of the injuries he suffered in the automobile accident. When angry, the Respondent made statements and comments about Blacks which were racially offensive. The Respondent stated that he did not want Blacks on his property and did not desire to rent to Blacks. The Respondent screened telephonic inquiries about his apartment rentals and would not contact callers who he identified as black. On December 5, 1991, the Petitioner anonymously contacted the City of Tallahassee Fair Housing Office and complained about the Respondent's alleged discrimination in refusing to rent to Blacks; however, he would not initiate a formal complaint. The Respondent inquired of the Petitioner on several occasions whether he had seen Blacks in the vicinity of the complex or entering apartments at the complex. The Respondent indicated, during these exchanges, that he did not like Blacks even visiting the complex. After the first such exchange, the Petitioner, who had previous entered his apartment through the back door with his black guest, entered with them through his front door. In January, 1992, upon learning from the Petitioner that he had had Blacks over, the Respondent commented, "I try to keep a nice, clean place around here and now you are doing this. I just don't know what I am going to do." The last such conversation between the Petitioner and the Respondent was in April, 1992. In January, 1992, the Petitioner again contacted the City of Tallahassee Fair Housing Office regarding allegations of racial discrimination by the Respondent. As with the previous contact, the Petitioner did not make a formal complaint. On May 8, 1992, the Respondent went to the Petitioner's apartment and demanded the rent that he had not received for May. The Petitioner explained that he was without funds; however, he expected a tax refund check which was over due and would soon be able to pay the rent. In the ensuing discussion, the Petitioner advised the Respondent that he would not be renewing his lease at the end of the term because of the differences he had with the Respondent about Blacks. The Petitioner testified that the Respondent accepted the Petitioner's proposal to use his rental deposit as partial payment of the rent, plus a check for $25, and $10 in cash for the late fee. On May 18, 1992, the Respondent delivered to the Petitioner a letter which referenced the terms of the lease requiring payment by the fifth of each month, rejected the tender of the rental deposit as payment of the rent due, and made demand for payment of the rent then due. The Respondent was accompanied by his maintenance man, Mr. Frisbee, and requested access to the Petitioner's apartment for purposes of inspecting it. The Respondent wanted to know when the Petitioner would be leaving and threatened to take the Petitioner to court for the rent then due. The Petitioner pointed out that the Respondent had agreed to accept the deposit as partial payment of May's rent previously, and he denied this. Mr. Frisbee, who had been there on May 8th, reminded the Respondent that he had agreed to accept the deposit. At this point, the Respondent became angry; and the Petitioner angered him further by reminding him of their discussion of their differences regarding racial issues. The Respondent became livid and said that he wanted the Petitioner out. Mr. Frisbee had to encourage the Respondent to leave because he was so upset. Mr. Frisbee could not confirm the Petitioner's testimony that the Respondent told the Petitioner that he would not rent to Blacks and that the Respondent would have to move out. Not even the Petitioner reported that the Respondent had told him he had to move out because of his black guests. On May 19, 1992, the Petitioner contacted the City of Tallahassee Fair Housing Office a third time and was advised how to write a letter to the Respondent advising him that the Petitioner was leaving. The Petitioner followed up his letter to the Respondent, dated May 21, 1992, filing a formal complaint on May 26, 1992 with the Fair Housing Office. On June 5, 1992, the Petitioner paid the Respondent one month's rent. The Petitioner asserts that this was payment for the month of June. On June 9, 1992, the Petitioner vacated the leasehold and returned the keys to the Respondent on June 17, 1992. A copy of the lease and lease application was introduced into evidence as Exhibit 11. No evidence was introduced that the Respondent confronting the Petitioner over his overdue rent was unusual. To the contrary, that conduct by the Respondent was consistent with the picture painted of him by the tenants. A statement of the Petitioner's expenses was submitted with his post- hearing filing. These are considered as part of the evidentiary record. The costs involved in this litigation are as follows: Photocopies (300x$.05) $ 15.00 Photocopies-FCHR 3.60 Notary costs (5x$5.00) 25.00 Subpoenas 123.20 Postage 13.22 Mileage 77.80 Paper, envelopes, etc. 2.00 $259.82
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered enjoining the Respondent from screening potential tenants; and That the Petitioner be awarded costs in the amount of $259.82. DONE and ENTERED this 16th day of June, 1994, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-5540 The parties submitted proposed findings of fact, which were read and considered. The following states which facts were adopted and which were rejected, and why: Petitioner's Findings Recommended Order Paragraph 1,2 Paragraph 1,2 Paragraph 3-9 Irrelevant Paragraph 10 Paragraph 3 Paragraph 11 Subsumed in 6,7 Paragraph 12,13 Paragraph 6,7 Paragraph 14 Paragraph 8,10,16 Paragraph 15 Paragraph 6,7 Paragraph 16 Subsumed in 6,7 Paragraph 17 Irrelevant Paragraph 18,19 Paragraph 11,12 Paragraph 20 Paragraph 13 Paragraph 21 Rejected as argument Paragraph 22,23 Irrelevant Paragraph 24 Subsumed in 15 Paragraph 25,26 Paragraph 16 Paragraph 27 Paragraph 17 Paragraph 28,29,30 Irrelevant Respondent's Findings Recommended Order Paragraph 1,2 Paragraph 1,3 Paragraph 3 Paragraph 16 Paragraph 4 Paragraph 17 Paragraph 5 Subsumed in Paragraph 11 Paragraph 6 Subsumed in Paragraph 12 Paragraph 7-12 Rejected as Argument Paragraph 13,14 Subsumed by Paragraph 5,6,7 Paragraph 15 Irrelevant Paragraph 16 Paragraph 5 Paragraph 17-19 Rejected as contrary to more credible evidence Paragraph 20-24 Rejected as Argument Paragraph 25,26 Paragraph 18 Paragraph 27 Rejected as Argument Paragraph 28 Paragraph 17 Paragraph 29-32 Rejected as Argument COPIES FURNISHED: Mr. Craig Fletcher HC2, Box 7281 Tallahassee, FL 32310 Barrett G. Johnson, Esq. Johnson & Associates P.O. Box 1308 Tallahassee, FL 32301 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esq. General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
Findings Of Fact Petitioner is a black female. At all times material, Petitioner was employed by Respondent corporation in one of its general retail merchandise stores in Ocala, Florida. Petitioner was hired by Respondent's white male store manager, Mr. John Sasse, on October 20, 1992, as a stock clerk in the shoe department. Petitioner was terminated on January 10, 1993, within the ninety day probationary period published in Respondent's employee handbook. In making the foregoing finding of fact, it is recognized that Petitioner attempted to show that the probationary period for new employees was only sixty days. However, she only showed that the sixty day period was applicable in a different time frame than is material here. On October 31, 1992, while working in a stock room, Petitioner's back and neck were injured when a box fell on her. Supervisors called an ambulance, and Petitioner was transported to the emergency room of a local hospital. She was treated but not hospitalized. Respondent duly filed the "Notice of Injury" as mandated by Chapter 440 F.S., "The Florida Workers' Compensation Act," and began to pay Petitioner's medical expenses. Prior to her injury, Mr. Sasse considered Petitioner to be only a marginal employee. Petitioner was released by hospital doctors for return to work as of November 6, 1992. At that time, she had no work restrictions imposed by a doctor, so Mr. Sasse reassigned Petitioner to her usual duties. Petitioner worked at the tasks she felt she could do until November 11, 1992, when she returned to the hospital. She was examined and medicated. Later that same day, as is standard procedure with workers' compensation injuries wherein the employer pays for an injured worker's medical care and as a result has the legal right to specify which doctors attend the employee, Mr. Sasse ordered Petitioner to go to "Care One," a "walk-in" medical facility specializing in occupational medicine. Petitioner went to Care One, where she was again examined and medicated. Petitioner was released for work the same day with written work restrictions from the Care One doctor. Petitioner's resentment against Respondent that she had been injured in the first place apparently was a motivating force in her actions after she returned to work the second time. Petitioner's candor and demeanor while testifying, as well as her persistence in returning her testimony to the circumstances surrounding the box falling upon her in the storeroom, made it very clear that she considered it discriminatory, or at least unfair, that Respondent had "forced" her or anyone to work under the cluttered stock room conditions that had resulted in her initial accident or injury. In Petitioner's mind, at least, the fact that an accident or injury had occurred in the first place was sufficient to establish "dangerous working conditions" and "an unlawful employment practice." After November 11, 1992, she persisted with these complaints to the employer. However, no competent evidence established a nexus between Petitioner's race and her pre-injury job assignments, and no evidence demonstrated that after her accident, the Respondent-employer handled her workers' compensation medical care any differently because she was black. On November 11, 1992, Care One's written restrictions provided: Restricted Employee should avoid movements of the upper body and neck that would place undue stress on the neck, such as strenuous pushing and pulling, heavy lifting, and working above the shoulders. Employee should avoid lifting > 20 pounds, avoid frequent bending and twisting of the back, and avoid strenuous pushing and pulling. Mr. Sasse and his subordinate supervisors assigned Petitioner tasks consistent with Mr. Sasse's interpretation of Petitioner's written restrictions, as modified over time by subsequent information. On November 11, 1992, a position was created for Petitioner in the soft goods department. At this time, Petitioner became the only black clerk in the soft goods department. Initially, Mr. Sasse told her she was not to reach above her shoulders or bend to pick up anything below her knees. Petitioner complained that these tasks constituted too much physical exertion for her due to her physical condition. Petitioner continued to complain about the accident and her pain. The employer and insurance carrier continued to refer her back to Care One. There was a short delay with regard to some medical services requested by Petitioner or by referring and consulting doctors under the workers' compensation medical care delivery system, but the employer/insurance carrier in due course authorized physical therapy, a consultation with an orthopedic specialist, and magnetic resonance imaging (MRI) for further diagnosis. Derrick Proctor, a black male employee and Petitioner's friend, presented as a credible witness, even though he claimed to have been fired by Mr. Sasse under what Mr. Proctor termed "suspicious circumstances" and at the time of formal hearing had some type of action pending against this employer. Mr. Proctor described Petitioner as "embittered" against the employer because of the employer's refusal or delay in dealing with Petitioner's medical concerns and stress. However, it appears that Petitioner's problems, if any, were common disputes and communication delays inherent in the workers' compensation medical care delivery system. For instance, when asked, the doctors reported directly to the employer, insurance carrier, and store manager concerning the Petitioner- employee's medical condition, consultant treatment, and recovery progress. On December 10, 1992, Mr. Sasse told Petitioner that he had received an oral report on her December 9, 1992 MRI results and that they were negative. This conversation occurred before any of the doctors had reported the MRI results to the Petitioner, and Petitioner inferred therefrom that information was being withheld from her. Later, on December 22, 1992, Petitioner learned, during a reprimand and counselling session for insubordination and failure to work up to her capacities, that the employer had been informed much earlier that she could return to work with no restrictions. (See Findings of Fact 32-36) Although Mr. Sassy and others had told her this before December 22, 1992, the events of December 22, 1992 triggered a belief in Petitioner that the employer was "out to get" her. Notwithstanding the extreme light duty assigned her, Petitioner complained about the work assigned and was uncooperative about helping supervisors find a job description she felt she could perform. Although Petitioner may not have known about it until November 25, 1992, on November 20, 1992 Care One deleted the prior restrictions on lifting items over 20 pounds, bending, and strenuous pushing and pulling, and narrowed her restrictions to the following: Restricted. Employee should avoid movements of the upper body and neck that would place undue stress on the neck, such as strenuous pushing and pulling, heavy lifting, and work above the shoulders. In December 1992, Mr. Proctor was required to close his department, hardware, every night, and Petitioner closed the soft goods department some nights. Petitioner considered being required to close some nights to be discrimination against her since she was the only black employee in the soft goods department at that time and the white female employee in soft goods had been switched to the day shift in Petitioner's place. The greater weight of the evidence shows that the whole store's evening hours increased from midnight to 1:00 a.m. due to the Christmas season, and on December 6, 1992, Petitioner was assigned to work nights so that she could go to daytime medical and physical therapy appointments. The employer's accommodation of Petitioner's situation in this respect was comparable to the accommodation given a white female employee in soft goods. Beginning November 23, 1992, that white female employee, Ms. Audrey, had been assigned to a daylight shift so that her husband, who had bad night vision, could drive her to and from work. Race was not a factor in the accommodation rendered Ms. Audrey or Petitioner. Who closed the store during December 1992 depended upon who worked the evening shift, not race. It is not entirely clear on the record whether, on December 3, 1992, Petitioner withdrew from physical therapy because she could not do the weight training assigned her or was rejected by the physical therapist as a client because she would not cooperate in weight training. Petitioner testified that she returned to physical therapy thereafter for ultrasound treatment. It is clear that Petitioner believed she was rejected by the therapist because she could not lift the heavy weights assigned her by the therapist as part of Petitioner's planned recovery. It is also clear that the decision to end the weight phase of Petitioner's treatment did not have employer input. By December 5, 1992, Petitioner's personally professed physical limitations and complaints about Mr. Sasse's treatment of her had resulted in Mr. Sasse accommodating her by creating a "make-work" job description. Under it, she was asked to push a cart that other employees had hung clothes on; she was not required to load the car with clothes. She was required only to pick up single articles of clothing that were left in the women's dressing rooms and return them to the racks. She was told only to bend if an occasional article of clothing was found on the floor. She was also told to open dressing room doors for customers and, if requested, fetch more clothes for them to try on while they remained in the dressing room. Petitioner was permitted to wear her softly padded neckbrace at all times, even though she presented no written doctor's instructions to do so. Petitioner described it as an "agony" imposed on her by the employer when, on December 5, 1992, Mr. Sasse ordered her not to sit continuously on the sales floor in a chair she had removed from the women's dressing room. Petitioner had previously complained because she had been required to sit for long hours on a very hard chair Mr. Sasse had provided for her, and this time she had gotten a different chair herself. On December 5, 1992, Mr. Sasse told her she must leave the dressing room chair in the dressing room for the customers, that she was not permitted to sit all the time on the sales floor where customers could see her, and she must not just sit without doing any work, until all her work was done. He told her to do a variety of the tasks of which she was capable, including but not limited to sitting while pricing goods. Petitioner considered these orders to be contrary to her doctor's limitations and to constitute "physical abuse." Petitioner repeatedly requested time off with pay so that she could recover completely through bed rest. Mr. Sasse would not allow her time off for medical reasons without a doctor's written approval. Petitioner considered this condition imposed by management to be "abusive." Petitioner described Mr. Sasse as being rude to her on December 6, 1992, when he refused to discuss her accusations of "physical abuse" and her request for time off in the presence of other employees and customers in the public buffet area of the store, and walked off, leaving her there. Petitioner referred to this incident as at least part of her "opposition to unlawful employment practices" which she believed resulted in her termination. Petitioner presented no evidence that a doctor had ever recommended that she stay at home and do nothing so that she could heal. From all the evidence, it is inferred that as a probationary employee, Petitioner had no accrued sick leave to expend for this purpose. Ms. Gardner was a long-time white female employee who had her doctor's approval for knee surgery and who required a month of bed rest at home afterwards. The employer allowed Ms. Gardner to use earned compensatory time as sick leave for that purpose during the month of December 1992. By mid-December, 1992, Mr. Sasse was frustrated because Petitioner refused to do every job he devised, even the "make work" ones, and he believed that she only pretended to be busy when he was watching her. Mr. Sasse had told Petitioner that she could do normal work again and she would not accept this from him without hearing it also from her doctor. Mr. Sasse decided to discipline Petitioner for not working up to her limitations as he understood them and for insubordination. He directed the soft goods manager trainee, Ms. Lynn Tyler, a white female, to "write up" Petitioner. Ms. Tyler and the assistant store manager, Ray Harding, a white male, met with Petitioner on December 22, 1992 to discuss the contents of the prepared memo. One of the supervisors' concerns at the time Petitioner was "written up" was that they could not get Petitioner to do anything at all without an argument, even after pointing out various light work job duties on a walk around the whole store. They were also concerned that without Petitioner doing some tasks, the employer had to pay other employees overtime to accomplish what Petitioner was not accomplishing in her regular shift hours. It was stipulated that Petitioner was never asked to work overtime. Petitioner refused to sign the December 22, 1992 memorandum of reprimand because she did not agree with it and because Tyler and Harding were, in her opinion, "grudgeful." Petitioner was informed later on December 22, 1992 by her Care One doctor that he had, indeed, released her for normal work activities effective December 16, 1992. His December 16, 1992 report which had been previously received by the employer read: Please note employee's current duty status is as follows: Regular May return to normal work activities full time. After her accident, Petitioner was observed by Derrick Proctor doing some of the same types of physical exertion the employer had required that she do before the accident, including reaching above her head to put clothes on and take them off clothes racks and picking clothes up from the floor, but he never knew her medical restrictions other than what she told him. He also observed her in agitated conversations with Ms. Tyler and Mr. Sasse while she was wearing a neck brace. On January 7, 1993, he saw Ms. Tyler "very out of sorts" when talking to the Petitioner. At first, he stated that he did not consider Petitioner to be rude or insubordinate on these occasions because the topic was working conditions, but later he admitted that he could not overhear what was actually said on all these occasions. Mr. Proctor also observed that, "Mr. Sasse rode everybody pretty hard," including white workers. It was "his way of getting things done." Mr. Proctor once observed Petitioner hiding in another department, behind racks, to avoid management. Petitioner acknowledged and described her "hiding out" at that time to Mr. Proctor as due to her "feeling mistreated" and "avoiding management." In her formal hearing testimony, Petitioner described it as "opposing unlawful work practices and abusive treatment." After learning on December 22, 1992 of her release from all medical restrictions, Petitioner continued to be uncooperative with management. Petitioner's testimony conceded that she had understood that all doctors had released her with no restrictions as of December 28, 1992 and that she had still refused to reach and bend in the stock room when ordered to do so by Mr. Sasse and Ms. Tyler on January 7, 1993. After evaluating Petitioner's continued failure or refusal to perform even the lightest of duties, Mr. Sasse decided to terminate Petitioner before her ninety days' probationary period ended. Mr. Sasse, who was terminated by Respondent-employer sometime later in 1993 and who, at the time of formal hearing, was litigating an unemployment compensation claim against Respondent, had no reason to fabricate information or testify favorably for the Respondent-employer. He was credible to the effect that the decision to terminate Petitioner in January 1993 was his unilateral decision and that he made his decision without reference to, or motivation by, Petitioner's race. Specifically, it was Mr. Sasse's foundational assessment that Petitioner could physically do the light work he assigned her after reasonable accommodation for a temporary disability but that she would not do the work assigned by him that caused him to terminate her. Petitioner testified that she was replaced by a white female. In fact, a white female was hired approximately one or two weeks prior to Petitioner's January 10, 1993 termination, with a due date to report to work on January 11, 1993, which subsequently turned out to be the day immediately following Petitioner's termination. The employer did not hire this white female with the intent of replacing Petitioner, but she was ultimately placed into the soft goods department. Mr. Proctor testified that other blacks worked in soft goods after Petitioner's termination. Within four weeks of Petitioner's termination, three new employees were hired. None of these were assigned to the soft goods department. Mr. Standley Gillings, a black male, was originally employed in another of Respondent's Ocala stores. In October 1993, Mr. Gillings was demoted with a loss of pay and transferred to the store from which Petitioner had been fired ten months earlier. His new immediate supervisor in that store was also black. Respondent continued to employ Mr. Gillings under the black supervisor until Mr. Gillings found another job and quit.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing the Petition for Relief. RECOMMENDED this 25th day of August, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1994.
Findings Of Fact By letter dated January 26, 1989, Respondent denied Petitioner's application for certification as a Disadvantaged Business Enterprise on the grounds that its majority owner does not meet the requirements of a socially and economically disadvantaged individual. Dariush Ghaffarpour is the sole shareholder of Petitioner. Mr. Ghaffarpour, who is almost 22 years old, came to the United States with his parents in 1977. The family came from Iran, which they had had to leave as a result of serious unrest in the country. Mr. Ghaffarpour's parents were born in Iran, which adjoins Pakistan. They spoke the predominant language of Iran. Mr. Ghaffarpour currently has no family in Pakistan. However, his grandparents were Pakistanis, who left the country for Iran prior to the birth of their child, who is Mr. Ghaffarpour's parent. The grandparents, who are no longer living, spoke Pishtu, which is the national language of Pakistan. Mr. Ghaffarpour has never lived in Pakistan. His only visit there was for about two weeks. He does not speak Pishtu. Mr. Ghaffarpour does not belong to any Pakistani social groups. He is a member of a loose-knit group of Asian Americans, but this group is not geared toward persons from Pakistan or Iran. In applying for permission to immigrate to the United States, Mr. Ghaffarpour's family stated that their nationality was "Iran."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Transportation enter a Final Order denying Petitioner's application for certification as a Disadvantaged Business Enterprise. DONE and ENTERED this 30th day of June, 1989, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1989. COPIES FURNISHED: Dariush Ghaffarpour, pro se Sun State Land Development, Inc. 2014 South Dean Road Orlando, Florida 32825 Ruth B. Dillard Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Petitioner was employed by VOTRAN from June 6, 1977, until his discharge on January 19, 1982. He started as Serviceman; was promoted to Mechanic B on October 31, 1977; to Night Leadman on August 7, 1978; to Mechanic A on January 13, 1980; and to permanent Night Leadman on November 30, 1981. He was the senior mechanic in the maintenance department and, prior to December, 1981, was Leadman on the day shift. Effective November 30, 1981, the position as Leadman on the day shift was abolished and these duties were absorbed by the Maintenance Superintendent, Owen Davis. Pursuant to the Union contract in effect at VOTRAN, available jobs are bid by seniority and go to the most senior qualified man seeking the position. When the Day Leadman position was abolished, Petitioner bid on the Night Leadman position and, as senior mechanic, was awarded the job. Working days (or nights) for the Night Leadman are Tuesdays through Saturdays, with Sundays and Mondays off. This was known to Petitioner at the time he submitted his bid and was awarded this position. After a short time as Night Leadman, Petitioner requested leave on Saturday to attend an uncle's funeral in Georgia. Davis told Petitioner this would leave them shorthanded. Petitioner then told Davis that he did not like working on Saturday and wouldn't come in. Davis reported this incident to the General Manager, Kenneth Fischer. Late in December Petitioner met with Fischer, at which time Petitioner told Fischer he was unable to handle the job of Night Leadman. Fischer offered Petitioner the option of swapping jobs with a Mechanic A on the day shift but that job paid less and Petitioner turned it down. On another occasion, Fischer learned Petitioner had called in and said he could not come to work on Saturday because he had to move furniture. That resulted in a memo of January 12, 1982 (Exhibit 3) memorializing the December 29, 1981, meeting between Petitioner and Fischer in which Fischer repeated his warning to Petitioner against calling in sick on Saturdays unless his illness could be documented. This memo was delayed getting into Petitioner's box and was not received by him until the following Friday. Fischer was off Saturday, Petitioner was off Sunday and Monday, and on Tuesday, January 19, 1982, Petitioner met with Fischer. After Fischer had entered his car in the parking lot around 6:00 p.m. preparing to go home, Petitioner approached the car and told Fischer he would like to speak to him. Fischer got out of his car, they walked back into the building, Fischer unlocked his office, and they entered. Petitioner tossed the memo of January 12, 1982, on the desk complaining that he thought he was being discriminated against and that if the rules respecting sick leave of less than three days were being changed they should apply to all employees and not just to Petitioner. The meeting quickly escalated into a confrontation with Petitioner telling the younger Fischer that Petitioner was a 40-year-old man with a family, and that Fischer was not man enough to fire him. Whereupon Fischer told Petitioner to "hit the door." Petitioner then told Fischer that he would get VOTRAN's "shit" together and for Fischer to get Petitioner's "shit" together, and Petitioner left. Petitioner's voice immediately prior to his departure was sufficiently loud to be heard by two employees from 200 feet down the hall from Fischer's office. Petitioner's testimony conflicted with the above finding of what went on at the fateful meeting of January 19. Petitioner testified that he remained calm during the meeting, that he never told Fischer that the latter was not man enough to fire him, that he told Fischer they should discuss the matter like grown men, that he used the word "shit" to indicate personal property, and that Fischer is the one who got angry and told Petitioner to "sit down" before he told Petitioner to "hit the door." Petitioner also testified that during the little ever a month he was Leadman on the night shift he missed one or two Saturdays, that the memo of January 12 made him feel he was being treated differently from others, and that he and Fischer had at least three conferences before January 19, 1982, when he was fired. VOTRAN is a publicly owned transportation company subsidized by Volusia County and originally financed by the Federal Government. While funded by the Federal Government VOTRAN was subject to and in compliance with all federal laws proscribing discrimination. Of the 83 employees of VOTRAN, 20 are black. In Volusia County blacks constitute approximately 13 percent of the population. While employed at VOTRAN, Petitioner attended three schools to improve his training and VOTRAN paid the tuition. Although there was a discrepancy between Petitioner's testimony that he was the only black mechanic employed by VOTRAN, and VOTRAN's testimony that there were two blacks employed as mechanics, the evidence was unrebutted that following Petitioner's discharge another black mechanic was hired by VOTRAN. To further support his claim that he was fired because of his race, Petitioner testified that as a Leadman he was never issued a white shirt, that white shirts and blue pants were provided supervisors (including leadmen) by VOTRAN, and that blue shirts were issued to other workmen except in the bodyshop where the workers were issued white pants and shirts. Petitioner mentioned this difference to one of the shop's stewards who told Petitioner that if he felt wronged he should file a grievance. Petitioner never filed a grievance and neither the Superintendent nor the Director of Maintenance was asked by Petitioner to provide him with a white shirt. Other witnesses testified that some leadmen wore white shirts, others wore blue shirts, and it was generally left to the choice of the leadman which color shirt he wore. One witness called by Petitioner testified that he once overheard a Fischer and Davis conversation at which the phrase "dumb niggers" was used. Both categorically denied ever making such a racial slur. No other witness testified to any incident which could lead to a conclusion that Fischer was in any manner prejudiced or racially discriminatory. His reputation among the bus drivers is that he "goes by the book." As another ground to support his charge of racial discrimination, Petitioner testified that while he was Night Leadman he was not provided a key to the Superintendent's desk which other night leadmen had been provided; and that when it was necessary to get into the desk for special tools kept there, it was necessary to call the Superintendent, who would come down and unlock the desk. The Superintendent, Davis, confirmed that Petitioner had not been issued a key because a short time before Petitioner started the night shift too many keys had been issued, all of these keys had been called in, and, when he found his presence was frequently required at night to open the desk, he reissued a key to the Night Leadman. By this time Petitioner had been terminated. The contract between VOTRAN and the Teamsters Union provided for arbitration of grievances. This document also provides that neither employer nor Union will discriminate against any individual with respect to recruitment, hiring, training, promotion, or other employment practice for reasons of race, etc. (Exhibit 1, Article 9). When Petitioner told the shop's steward (also black) that he had been fired, he did not indicate he was fired by reason of race. Petitioner was advised by the shop's steward that he could file a grievance with the Union and his firing could go to arbitration if not settled prior to that step. Petitioner was not a dues-paying member of the Union, and, although covered by the contract, did not feel he would get a sympathetic ear from the Union. The General Manager, William Barrett, who preceded Fischer, was called as a witness by Petitioner. Barrett was General Manager when Petitioner was hired, approved the various training programs taken by Petitioner at VOTRAN's expense, and found Petitioner to be a good and reliable employee. Barrett further testified that it was necessary to maintain discipline in order to operate effectively and that if an employee challenged his authority he would have no choice but to fire the employee immediately.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was discriminated against by being terminated, allegedly on account of her race, and in retaliation for filing a claim concerning discrimination.
Findings Of Fact Tammy King, the Petitioner, became employed by the Respondent in June of 2000. She was employed as an operations manager, supervising the cleaning service work for various customer accounts as well as the people employed to perform the cleaning service work for those accounts. She was employed by the Respondent for approximately one year. The owners of the Respondent company are Linda and Daniel Coley. On October 18, 2000, Ms. King was evaluated by her evaluator and supervisor Christopher Stettner and received an excellent evaluation, which was apparently co-extensive with the end of her probationary period. Gene Janushanis also was in a supervisory capacity over the Petitioner. Mr. Janushanis, in his supervisory role, is the primary focus of the Peititoner's complaint of discriminatory conduct concerning his conduct and attitude toward her. The Petitioner contends, in essence, that Mr. Janushanis refused to allow the Petitioner to discipline black employees and treated her more harshly, with harassment, including cursing at her, and otherwise interfered with her performance of her job. She stated that he treated black employees, including black supervisors in similar positions to the Petitioner, more favorably, as to disciplinary or job performance issues, than he treated the Petitioner. The Petitioner maintains that she had no problems, disciplinary or otherwise, in the performance of her job before Mr. Janushanis was hired as her supervisor and that their numerous altercations commenced shortly thereafter. However, she also developed a difficult relationship with Christopher Stettner, the supervisor who gave her the excellent evaluation at the end of her probationary period. Apparently, their relationship deteriorated soon thereafter and became quite hostile. In fact, Mr. Stettner filed an internal complaint or grievance against the Petitioner concerning alleged harassment of him by the Petitioner. This resulted in the Respondent's scheduling additional "anti-harassment training" for the Petitioner and other employees thereafter. Thus, a hostile relationship with abrasive arguments ensued between the Petitioner and Mr. Stettner, as well as between the Petitioner and Mr. Janushanis, starting in the late part of 2000 and through the first half of the year 2001. Cassey Clark, the Human Relations Director for Respondent, witnessed a number of "very harsh arguments" between Tammy King and office employees or supervisors Dwayne Coley, Chris Stettner, and Gene Janushanis. Both owners and employees witnessed very hostile, violent arguments between Mr. Janushanis and the Petitioner on a number of occasions, sometimes in the presence of customers of the company and generally in the presence of other employees or owners. These altercations included instances where the Petitioner refused to perform directions of her supervisor. Additionally, a substantial number of employees had verbal altercations with the Petitioner concerning receiving credit for, and payment for, the hours they had worked. On a repetitive basis the Petitioner failed to submit correct hours for the payroll and in one case got into a verbal altercation with an employee, Sonya Ross, chased the employee out in the parking lot, and refused to give her her last paycheck, telling her that she would mail the check to her, which was against company policy. The Petitioner exhibited a hostile, threatening attitude and conduct toward employees concerning hours worked and other aspects of her opinion of the way they were performing their jobs, as well as concerning payroll issues. Such instances occurred with at least nine employees. This hostile, threatening attitude and failure to comply with the payroll policies of the Respondent, as well as the several instances of the Petitioner failing to perform as directed by her supervisors, constituted misconduct under the regular policies of the Respondent. These instances of misconduct occurred on a frequent basis through the first half of 2001, including an instance where an employee called to state that she had to be out for two days because her baby was sick with a high fever. The employee followed company policy and provided documentation from the physician involved concerning her need to be off from work. She then called Tammy King to say that she had to go back to the hospital with her child, and Ms. King told her that she would be terminated. The employee then called the owner, Linda Coley, to inform her of the problem because she was afraid of losing her job. Ms. Coley then spoke with Ms. King and reminded her that it was against company policy to terminate an employee if he or she brought proper documentation from the physician or hospital, which was the case. This also was a clear violation of company policy concerning employees and supervisors. These instances of misconduct and the very hostile verbal altercations between the Petitioner and Mr. Janushanis, her branch manager, continued until June of 2001. The Respondent counseled with both the Petitioner and Mr. Janushanis about their conduct and attitude between themselves and toward other employees. Ultimately the decision was made in mid-June 2001 to terminate the Petitioner and Mr. Janushanis as well. On June 22, 2001, the Petitioner was terminated, as was Mr. Janushanis, on the same date. On June 20, 2001, the Petitioner had filed a complaint with the EEOC, by letter, and informed the Respondent of that fact. The decision to terminate the Petitioner, however, had been made prior to the filing of the complaint with the EEOC. The Petitioner has failed to establish that any actions taken by the Respondent toward her were related to her race. The supervisor complained of by the Petitioner was of the same race, white, and there is no persuasive evidence that shows any intent by the owners or management of the company to treat similarly-situated members of another race more favorably. In fact, there was preponderant and substantial evidence of misconduct on behalf of the Petitioner which established a legitimate, nondiscriminatory reason for her termination. Although her initial performance was rated as excellent in the initial months of her employment, the Petitioner failed to continue that level of performance. In fact, her misconduct on the job, including the instances enumerated in the above findings of fact shows that the Petitioner's conduct and performance had deteriorated so that she was not properly performing the various requirements of her employment position, when viewed in the context of regularly- adopted company policy. Upon the Respondent's becoming aware of these conduct shortcomings, and failure to properly perform in her position, as well as the improper conduct by her supervisor, the Respondent did not condone the Petitioner's level of conduct nor that of her supervisor, Mr. Janushanias. Rather, the Respondent sought to assist them in improving their conduct and performance. When these efforts were not successful, the Respondent ultimately terminated both of them.
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 for Relief in its entirety. DONE AND ENTERED this 3rd day of December, 2003, 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 3rd day of December, 2003. COPIES FURNISHED: K. Jeffrey Reynolds, Esquire 924 N. Palafox Street Pensacola, Florida 32501 Banks T. Smith, Esquire Hall, Smith & Jones Post Office Box 1748 Dothan, Alabama 36302 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 Suite 100 Tallahassee, Florida 32301
The Issue Did Respondent engage in unlawful employment practices against Petitioner on the basis of race, and if so, what remedies are available to redress the wrong? Sections 760.10 and 760.11, Florida Statutes.
Findings Of Fact Petitioner meets the definition of "person" in Section 760.02(6), Florida Statutes, entitled to assert claims for relief under the Florida Civil Rights Act. It was not disputed that Respondent is an "employer" within the meaning Section 760.02(7), Florida Statutes. Based upon the record it is inferred that Respondent is an employer subject to the Florida Civil Rights Act in the conduct of its employment practices. Respondent is a corporation with three shareholders who each have a one-third interest in the business. In the corporation the shareholders are Vehad Ghagvini and his brothers. Vehad Ghagvini is the president of the corporation and responsible for the day-to-day operation. Vicki Goodman serves as the Human Resources Administrator for the company and is responsible for matters associated with claims of discrimination by company employees. At times relevant Larry Smith was a supervisor for Respondent. On two separate occasions Petitioner worked for Respondent. The first occasion was from November 8, 1999, through June 7, 2000. His position with the company was that of a laborer. When he separated from employment on June 7, 2000, it was based upon his own decision. At that time it was indicated in his personnel record that Petitioner would be subject to being rehired and it was commented that Petitioner was considered to be a hard worker and reliable. The personnel records show the signature of Larry Smith as supervisor when Petitioner terminated his employment with Respondent on June 7, 2000. Petitioner returned to employment with Respondent in October 2000, and was involuntarily terminated on December 5, 2000, from his position of a laborer. According to the papers describing his separation from employment on December 5, 2000, he was terminated for "failure to attend job responsibilities; excessive absences on Saturdays." The form indicated that his work evaluation was poor. It was indicated that Respondent did not intend to rehire Petitioner beyond that date. Other comments in the discharge indicated that Petitioner "was a reliable and diligent worker during previous employment with the company but failed to work to same standards this time around." Petitioner was required to work on Saturday. He did not work on October 7, 2000, a Saturday, the Saturday of the week of October 9, 2000, the Saturday of the week of October 23, 2000, the Saturday of the week of October 30, 2000, the Saturday of the week of November 13, 2000, and Saturday, December 2, 2000. During this time frame Petitioner worked as a service truck operator with duties that included fueling Respondent's equipment on road construction jobs that were ongoing on the Saturday dates that Petitioner missed. Before his termination Petitioner had been counseled on October 17, 2000, and in November 2000 concerning his absences on Saturdays. Petitioner's testimony that he was only required to work on Saturday on a voluntary basis and that meant that he only needed to work one Saturday in his more recent employment is not accepted. Attached to Respondent's Exhibit numbered 5 is an EEO summary from Respondent pointing out that employees of various races had been subject to termination in a pattern that does not discriminate based upon race. Petitioner's termination on December 5, 2000, is in keeping with that practice. Petitioner has portrayed his dismissal from employment with Respondent as originating with his mistreatment by his supervisor, Larry Smith, not his absence from the job. As Petitioner describes it, about a week or two before he was terminated in December 2000, Larry Smith approached Petitioner and told Petitioner that he did not want Petitioner having conversations with females on the job. Petitioner is an African-American. At that time there were two Caucasian females working at the same location Petitioner worked. In particular, one of the females on the job asked Petitioner to take her position directing traffic on the roadway while she went to the restroom. Before she returned Mr. Smith pulled up and saw Petitioner holding the flag for directing traffic. Mr. Smith asked Petitioner why he was holding the flag. Petitioner explained that he was helping the female employee while she went to the restroom by directing traffic until she returned. Later Mr. Smith came back and told Petitioner that he did not want Petitioner having conversations with that female employee. Petitioner surmised that the reason that Mr. Smith had for Petitioner not speaking to the female employee was in relation to the difference in their races, Petitioner's race and that of the female employee. This opinion was reinforced in Petitioner's mind because a similar conversation about not speaking to the female employee occurred three times. Mr. Smith stated his position in such a manner as to have his comments pertain to both female employees on the job. Mr. Smith's remarks were not stated in a manner where he literally said that he did not wish Petitioner to speak to the female employees because Petitioner was an African- American or Black and that the other persons were Caucasian or White. Another incident described by Petitioner was one in which an African-American employee of Don Olsen Tire Company came to repair a tire on a piece of equipment belonging to Respondent. One of the female employees asked for a ride with that individual in his truck back to another location where her van was located. Petitioner, the Don Olsen truck driver, and the female employee rode in the tire repair truck. This was observed by Mr. Smith. Mr. Smith approached the female employee and told her that he did not appreciate that she was disrespecting him and his wife by being in the truck with two black guys. Later that day, a Friday, Mr. Smith approached Petitioner and stated that he did not want Petitioner having a conversation or anything to do with females on the job. The following Monday Petitioner was terminated. Petitioner believes that he was terminated because of the circumstances with the female employees of another race that have been described. Mr. Smith also told the Don Olsen employee that he did not want that individual back on the job site fixing anything because the white female employee had been in that individual's truck. There was no showing that Petitioner made Respondent's upper level managers aware of Mr. Smith's comments concerning conversations which Petitioner had with Caucasian females on the job. According to company records, at one time Petitioner had been informed by Respondent concerning the procedures for making complaints about employment practices related to issues of alleged discrimination. At the time that Petitioner was terminated, Mr. Smith pulled up beside him on the job site and commented to the effect "I don't need you no more." That was the only reason given at a subsequent time when Petitioner spoke to Mr. Ghagvini concerning Petitioner's termination. Mr. Ghagvini said that he had heard from Superintendent Smith and that he was going to leave it at that. Petitioner presented no evidence concerning his claim that Whites were allowed to stand around and talk and that black employees were not allowed to do so, or that black employees were in any manner worked harder than white employees. Notwithstanding the prospect that Mr. Smith's motives when telling Petitioner not to speak to female employees on the job was racially motivated, the reason for Petitioner's dismissal was in relation to his failure to attend his duties on Saturday at various times. That explanation was not created as a pretext to divert attention from racial discrimination. After his termination from Respondent, Petitioner filed for unemployment and received those unemployment payments until his eligibility ran out. In that time period he looked for jobs. Eventually Petitioner obtained a position as a pipe layer with Sayaler Utility. He began employment with that company in October 2002, and the employment was continuing at the time of the hearing. Petitioner receives $8.00 an hour for his work and works on an average 35 hours a week. When he was dismissed from his employment with Respondent, Petitioner was receiving $8.50 an hour and was working an average of 35 hours a week.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by FCHR dismissing Petitioner's Petition for Relief in all respects. DONE AND ENTERED this 14th day of February, 2003, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 14th day of February, 2003. COPIES FURNISHED: Lonnie Jennings Post Office Box 782 Greenville, Florida 32331 Vehad Ghagvini, President Vicki Goodman, Personnel Representative Sandco, Inc. 2811 Industrial Plaza Drive Tallahassee, Florida 32310 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
