Findings Of Fact The Respondent YWCA is a nonprofit corporation that sponsors educational, social, and recreational programs. The YWCA's purpose states that it is a "movement rooted in the Christian faith"; however, expressed belief in Christianity is not required for membership in the YWCA or for employment by the YWCA. Its membership is comprised of adult women seventeen years of age and older. The personnel policy of the YWCA expressly states that: "Equal employment opportunity and affirmative action will be applied in recruitment, hiring, compensation, fringe benefits, staff development, and training, promotion, and any other condition of employment regardless of race, color, religion, sex, handicap, age, national origin, or any other nonperformance factors." (Emphasis added.) Regarding termination, the personnel policy of the YWCA expressly states that: "Reasons for staff termination must be carefully documented. They should be based upon objective performance appraisals, which in turn are based upon job descriptions, work plans, and performance standards. Except in cases of reorganization/retrenchment or termination for cause, a probationary period for work improvement must be provided, followed by another performance appraisal." The YWCA of West Palm Beach operates three facilities: Central and Residence, the Mamie Adair Branch, and the Recreation Center. The Mamie Adair Branch primarily serves the black community in West Palm Beach and includes a day-care facility. The Petitioner, Davis, was hired as the Branch Executive of the Mamie Adair Branch of the YWCA, effective July 21, 1980, at a starting salary of $12,000.00. The Petitioner was given copies of the YWCA's personnel policy, affirmative action plan, and job description. She was not given notice of particular standards of behavior to which she was required to conform away from the job. As branch Executive she was supervised by the Executive Director, Jo Prout. The Petitioner successfully completed her initial 90-day probationary period, and her annual salary was increased by five percent to $12,600.00. In October 1981, however, the Petitioner received her annual evaluation and was again placed on three months probations due primarily to an unsatisfactory working relationship with the Branch Committee. The Petitioner had a bad attitude and was antagonistic. The Petitioner became pregnant but did not immediately disclose the fact of her pregnancy. In approximately December, 1981, the Petitioner confided to a coworker that she was pregnant and the coworker, in turn, told the YWCA's Executive Director, Jo Prout, that the Petitioner was pregnant. The YWCA's Executive Director was concerned that the Petitioner's relationship with the Branch Committee would be severely adversely affected if the Committee found out the Petitioner was pregnant and unmarried. Because of this concern, the Executive Director removed the Petitioner from her position as Branch Executive, effective December 31, 1981. The Petitioner would not have been removed from her position on December 31, 1981, but for the fact that she was pregnant and unmarried. Prior to removing the Petitioner from her position as Branch Executive, the Executive Director did not attempt less drastic alternatives such as asking the Petitioner not to discuss or disclose her marital status or asking the Petitioner to take a leave of absence. Prior to her removal, the Petitioner had not discussed the fact that she was pregnant and unmarried with members of the Branch Committee or with the YWCA membership in general. At no time had the Petitioner advocated unwed motherhood as an alternative life- style or otherwise advocated or espoused principles contrary to her understanding of Christianity. In the past, certain employees of the YWCA whose on-the-job behavior was contrary to Christian principles received job discipline but were not removed from their positions. A desk clerk at the YWCA's residence, for example, who was found to have stolen property from residence guests was not discharged. The removal of the Petitioner from her position by the YWCA because she was pregnant and unmarried was not justified by the business necessity rule because: A requirement to conduct one's life, including one's off-the-job activities, according to Christian principles, was not disclosed to the Petitioner or to other employees; The YWCA did not discipline or discharge other employees for conduct which conflicted with the YWCA's alleged requirement to conduct one's life by Christian principles; and The YWCA did not show that a requirement of all employees to conduct their lives by Christian principles has a manifest relationship to the employment in question. Then the Petitioner was removed from the Branch Executive position, she was transferred to the position of center consultant for gymnastics. The position of the center consultant for gymnastics to which the Petitioner was transferred was a demotion in that the Petitioner went from an administrative to a non-administrative position. The transfer also changed the Petitioner's employment status from full-time employee to part-time employee with a 25 percent decrease in earned income and a lunch "hour" reduced to 30 minutes. The petitioner's new position as center consultant was a temporary one designated to last no longer than five months. Petitioner was removed from probationary status as a result of the transfer. The position of center consultant to which the Petitioner was transferred was not a legitimate position. The position did not exist prior to December 31, 1981, the date the Petitioner was transferred. No job description was ever written for this position, despite the fact that the YWCA personnel policy required job descriptions. The Petitioner was verbally assigned job tasks inconsistent with her title of center consultant, including cleaning toilets at the gymnastics center. The position was eliminated on February 16, 1982, approximately six weeks after it was created, allegedly due to financial streamlining. The YWCA committed an unlawful employment act against the Petitioner, discriminating against her on the basis of sex and marital status by removing her from her position as Branch Executive because she was pregnant and unmarried. Moreover, this transfer was not justified by business necessity. Because the YWCA committed an unlawful employment act against the Petitioner, the Petitioner could be entitled to be reinstated to her former position or to a comparable position and could also be entitled to recover lost wages and fringe benefits, plus interest thereon, from the date of the wrongful act, December 31, 1981, to November 31, 1982, the date she was hired by the Lutheran Ministries, set off by any interim earnings and reduced by the Petitioner's unemployment compensation benefits plus her reasonable attorney's fees and costs. Regarding reinstatement, the Petitioner has been and is now willing and able to be reinstated to her former position as Branch Executive or to a comparable administrative position. The employer's argument that the Petitioner is not entitled to reinstatement because she was an unsatisfactory employee is rejected for the following reasons: The employer's allegations that the Petitioner will not satisfactorily perform her job if reinstated are too speculative and any doubts about the Petitioner's entitlement to reinstatement should be resolved in favor of the victim of discrimination; and In the event that the Petitioner's job performance upon reinstatement is not satisfactory, the employer may avail itself of the procedures set forth in its personnel policy to improve the Petitioner's performance or discharge her for unsatisfactory job performance. However, reinstatement may not be feasible in this case due to the fact that another employee has been placed in the Petitioner's former position. If the Petitioner is not reinstated to a comparable administrative position, then she should be compensated by the award of six months front pay in lieu of reinstatement. The Petitioner is entitled to damages in the amount of $13,551, which represents a back pay award of $11,000 plus 10 percent interest, six months front pay in the amount of $6,000, minus $1,575 for salary paid from January 1, 1982 - February 16, 1982, including two weeks severance pay and $2,974 in unemployment compensation benefits. The Petitioner is also entitled to costs of $232.65 and attorneys fees totaling $5,000.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on December 8, 2014.
Findings Of Fact Respondent has a corporate policy that prohibits its employees from engaging in acts of discrimination, harassment and retaliation. The policy provides, in part, as follows: Discrimination Resort Travel & XChange prohibits discrimination against its employees, applicants for employment, and customers on the basis of a person’s gender, ethnicity, race, color, creed, religion, sexual orientation, national origin, age, disability, marital status, military service or veteran status or any other classification protected by applicable law. Specifically with regard to its employees and job applicants, Resort Travel & XChange does not tolerate discrimination on the basis of the foregoing characteristics with respect to the terms and conditions of employment. Retaliation Resort Travel & XChange does not tolerate any form of retaliation taken against an employee who, in good faith, makes a complaint of discrimination or harassment under this policy, opposes such discrimination or harassment, or participates in an investigation of alleged discrimination or harassment. Anyone who engages in such retaliatory behavior will be subject to appropriate discipline, up to and including termination. Petitioner was hired by Respondent in March 2014 to work as an “Instructional Design & Delivery Trainer.” The written position description includes the following summary statement: [An] Instructional Design & Delivery Trainer plays an important role in making their companies more competitive by developing the skills of the workforce. They help to accelerate organizational change by developing the skills a company requires if it plans to enter new markets or needs to transform its business performance. Companies with a reputation for developing people also find it easier to recruit and retain high-caliber employees. Among the key competencies are the ability to design and deliver training, manage the learning function, measure and evaluate the results of training, and manage organizational knowledge. According to Pamela Price, Petitioner’s immediate supervisor during his term of employment with Respondent, Petitioner’s “responsibilities would have been to create, design, develop step-by-step institutional training manuals and modules, and perform classroom training of that content to new hires, as well as continuing education courses, [and] [t]o perform analytical assessments of training class participants to see at what level they were learning.” The cornerstone of Petitioner’s gender discrimination claim is his allegation that Ms. Price, on multiple occasions, made statements to Petitioner about a female worker from one of her previous jobs that performed better than Petitioner when assigned similar tasks. Petitioner offered no evidence, other than cryptic self-serving statements and conclusory allegations, which supports his allegation that Ms. Price treated him differently because of his gender. On or about September 19, 2014, Petitioner received from Ms. Price his initial six-month performance evaluation. Respondent’s employee performance evaluation rating scale ranges from “marginal” to “outstanding.” On the initial review, Petitioner received an overall rating of “marginal.” There is no evidence of record that Petitioner suffered a decrease in pay, benefits, or the loss of job-related opportunities as a consequence of having received the marginal performance rating. On or about September 22, 2014, Petitioner sent to Laura Lampkin, Respondent’s director of human resources, his response to the performance evaluation prepared by Ms. Price. In his response, Petitioner states, with respect to Ms. Price, the following: The continued push towards unrealistic deadlines and the refusal to listen or effectively address the needs and concerns expressed creates an unnecessary feeling of duress. Duress is not the inability to handle a fast paced or chaotic environment, as those are environments I thrive within. Duress, as it pertains to this example, is in the feeling to produce regardless of tangible concerns. It is, by nature, the creation of a hostile work environment which should not exist within a professional workplace. Because Petitioner expressed concern about Ms. Price’s behavior creating a “hostile work environment,” Ms. Lampkin, within a day or so of receiving Petitioner’s response, initiated an investigation to determine whether Ms. Price was in violation of Respondent’s anti-discrimination, harassment and retaliation policy. At no time prior to receiving his performance evaluation did Petitioner complain about Ms. Price creating a work environment charged with discriminatory animus. Pursuant to Ms. Lampkin’s investigation, Petitioner, in support of his allegation of the existence of a hostile work environment, informed Ms. Lampkin on September 30, 2014, of the following with respect to Ms. Price: There are a good number of situations which lend themselves to an environment that promotes an air of uncertainty, insecurity – as well as the feeling of being bullied. There is [sic] also interactions and conversations, for example when Pam refers to her co-workers or friends at United Healthcare and how they would be able to perform a function that I push back against or when she fails to consider my professional assessments for training and development, which create concerns of inequality or discriminatory undertones. I have often felt, since July, that there is a determination to replace me with a personal contact from United Healthcare – as it has been referenced repeatedly about this ‘trainer’ and what she is ‘capable of.’ To the degree, where at times, I’m given the impression that I should be as capable as this mysterious person. Perhaps, in Pam’s mind I am too young to be an experienced training professional or maybe she would prefer her previous, female, co-worker. Petitioner failed to offer any evidence, credible or otherwise, that in any way supports his allegation that Ms. Price harbored gender-based discriminatory animus towards Petitioner. At the final hearing, Petitioner cross-examined Ms. Price about myriad subjects, none of which involved issues related to gender bias. Furthermore, in his direct testimony, Petitioner stated, in conclusory terms, that Ms. Price “was discriminatory on the basis of gender because she constantly made references to me about how her other trainer at her other job could do it so much easier and I was making things more complicated than they should be.” Petitioner obviously took offense to Ms. Price’s statements, but contrary to Petitioner’s allegations, these alleged statements attributed to Ms. Price do not demonstrate discriminatory animus, but instead indicate a desire by Ms. Price for Petitioner to improve his level of performance. Petitioner alleges that on October 3, 2014, Ms. Lampkin advised him that she had informed Ms. Price of Petitioner’s claim of discrimination. According to Petitioner, Ms. Price, after learning of Petitioner’s claim, retaliated against him as follows: On October 3, 2014, after I was informed by Laura Lampkin that she had spoken to Pam Price about my claims of discrimination, I received a schedule from Pam Price which included radical changes to my standard operating schedule. I was hired as a salaried employee with a 9am-5:30 p.m. schedule with flexibility in my time and freedom to take breaks and lunch as chosen. In the schedule I received from Pam Price, I was now put into an “agents” schedule, each week working a different shift (morning, afternoon and evening) along with scheduled lunch and break times. In addition, they also moved my office onto the call center floor and set me up in a cubicle with the call center agents. When I complained that the schedule change and relocation of my office to the call center floor was a retaliatory action, the schedule was immediately retracted and I was told to revert back to my standard schedule. However, they kept me on the call center floor which was an uncomfortable position and a distraction to the other agents. I also noticed that the contact I had with other employees both in the Asheville and Orlando office changed during that time. I was no longer treated as a member of management, but now I was being treated as if I was a call center agent. When I expressed this concern to another member of our management team . . . , I was informed that there was an unwritten memo going around the Asheville and Orlando office[s] that I was to be treated as if I was an agent. According to Ms. Price, during Petitioner’s first few months of employment with Respondent, his primary responsibility was “learning” about the company. Petitioner was expected to learn about company “[p]rograms, corporate compliance, policies and procedures, introduction to his teammates, understanding their positions and their roles . . . reading materials [and] having conversations.” Ms. Price, in Petitioner’s performance evaluation, was particularly disapproving of Petitioner as it relates to him failing to take advantage of a critical learning opportunity from a member of Respondent’s staff who was sent to Petitioner’s work-site to conduct a five-week training session. According to Ms. Price, Petitioner spent as little as one to two hours a day attending the training sessions when, in her opinion, more of his time should have been allocated to attending the sessions, especially since he was new to the company. In his September 19 and 22, 2014, responses to his performance evaluation, Petitioner complained that he had “not been afforded reasonable time to learn the processes and workflows contained within the products offered,” and that in order “[t]o be a subject matter expert, which is at the core of my position, I must have the complete and full immersion into the workflows and processes that make up the related products to be able to effectively and authoritatively create training documentation and train[ing] processes.” Respondent granted Petitioner’s request for “complete and full immersion.” On October 3, 2014, Respondent implemented Petitioner’s request for complete and full immersion, which resulted, among other things, in Petitioner being assigned work hours consistent with those assigned to agents in the Orlando call center. Literally within minutes2/ of being fully and completely immersed into Respondent’s workflows and processes, Petitioner, at 2:47 p.m. on October 3, 2014, was already complaining about the immersion program, as reflected in the following e-mail exchanges between Petitioner and Laura Lampkin. Petitioner to Laura Lampkin – October 3, 2014, 2:47 p.m. Laura: While I appreciate the attention to detail given to this project for immersion into the RTX Workflow and while I have explicitly stated ‘agent like immersion’ into those workflows, this is a bit above and beyond that expectation. “In order for you to get the full spectrum of calls and types of calls, I have rotated your schedule from the AM shift, Mid-Shift and Late-shift throughout the two month period of time. In addition to your shift start/stop times, you have regularly scheduled breaks and lunch, based on the particular shift you will work for that week. As an example, for the AM shift, first break is generally at 10:00 am, lunch at 12 noon and then second break at 2:00 and so on for each of the shifts. You will have Monday’s off work on the weeks that you are scheduled to work Saturdays to assist with floor coverage due to the upcoming maintenance fee season. I appreciate your assistance with floor coverage during this busy season.” [from Pamela Price to Petitioner]. There is no reasonable, acceptable, logic to Pam’s statement. The type of calls able to be handled by an RTX Exchange Agent do[es] not change throughout the course of a day or shift. There are only so many call types available and those happen, randomly, with every inbound call – regardless of time of day. Pam did mention scheduling me into the workflows, however, that was not the interpretation I expected. I would like to get this project underway without unnecessary complications. I find the radical change to my schedule a retaliatory maneuver. As the Instructional Design and Delivery Manager, my need to be exposed to the call queue and to gain the practical knowledge to speak to the agent experience does not require the coverage of three shifts, nor does it require a deviation from my normal schedule to accommodate an eight hour workday. Even though I will be using this opportunity as a ‘live learning environment,’ and will hold myself to the highest standards in customer care, while being mindful of queue wait times – I again find it a bit overboard to dictate call per hour and follow up to the level of actual agent performance. I am not transitioning into an agent position, I am simply utilizing the live call queue as the only available method for active learning and methodology. Could you kindly level set the Pam? At this time and until the current investigation is complete, I feel it may behoove all parties involved to have monitored contact. Thank you much. Laura Lampkin to Petitioner – October 3, 2014, 3:28 p.m. Jason, There actually is a logic to your schedule arrangement, and there is a difference in callers in the AM versus the PM. The AM callers do not contain as many sales opportunities, those are more likely to be basic reservations calls. Call volume is higher in the evening, and opportunities for sales are higher in the evening. The logic behind your rotating schedule arrangement is to give you the fullest exposure possible. Given the criticality of immersion in becoming a Subject Matter Expert, the goal is [to] provide you with the best possible opportunities for exposure. This will help in role playing scenarios and variation, which you expressed were much more difficult to train on without full immersion. If the new schedule is a point of contention, we can rework it. I do want you to understand that there was a great deal of thought put into your immersion plan, all centered around what is most beneficial to you and what bests [sic] affords you the chance to become a Subject Matter Expert. With regards to your statement ‘I am not transitioning into an agent position, I am simply utilizing the live call queue as the only available method for active learning and methodology[,] this is technically correct. However, again in the name of immersion and the need to become a Subject Matter Expert, we are arranging temporarily for your work tasks, work environment and product exposure to basically mimic that of an agent for your benefit. Additionally, specific to your statement ‘I again find it a bit overboard to dictate call per hour and follow up to the level of actual agent performance[,]’ I should clarify that aligning your performance standards with that of an agent is not a main focus. Of course we want you to handle calls properly – and I have no doubt you will – but I do not anticipate any detailed comparison to agents in terms of how the calls are handled. I do believe there will be periodic confirmation of phone time, again not in comparison to agents, but to ensure that the exposure and immersion are occurring. If there are confirmations of phone time, those may be used to determine whether we have fully satisfied our goal of immersion, in terms of exposing you to the phone roles and giving you the needed active time on the phones. I feel I must stress that this immersion plan is driven significantly by your continued emphasis on its importance. I wholeheartedly agree that significant exposure (as you’ve indicated, 4-6 months dedicated time, minimum) to the product and the role is necessary to create training programs and train effectively on most possible scenarios. Because we have yet to arrange dedicated time to immersion for you, and because you’ve indicated it’s critical, we are doing it now. Once the immersion plan is completed, my understanding is that you will be a Subject Matter Expert and capable of training as one. Keeping in mind that maximum exposure has been the goal for your immersion plan and your schedule, I welcome your suggested schedule changes. Thanks. Petitioner to Laura Lampkin – October 3, 2014, 5:07 p.m. Laura: I do appreciate the thoughtfulness put into the plan that I’ve requested. I must say, that from my exposure, I find the majority of inbound calls to contain a sales opportunity and while sales is an important part of our member services and revenue generation, it is not the core of the educational process or training programs expected curriculum. It is certainly necessary to have agent exposure to speak to the experiences and topics that new hires will encounter in production. More so, it is a necessity to explain the ‘how’ and ‘why’ of processes and/or procedures that are expected of an agent. I feel very comfortable in what I have expressed to both Pam and yourself as the requirements for effectively and efficiently learning and understanding the RTX Workflow to a level which is agreeable with the creation of curriculum and the training of such curriculum. The activity of taking live calls, which unfortunately was not available sooner, without interruption, is a requirement. Subject matter expertise is built upon that foundation and will continue to fluctuate until a time comes when the systems and processes used do not change on a consistent basis. As for being held to the same standards as the agent’s in production, I can only speak to what was written and manner in which it was relayed. I stand behind my statements that effective training is necessary before the ability to create, direct or lead a training class or materials. I also stand behind my statements that the schedule change is radical, causes personal conflicts and is not a necessary requirement to achieve the level of immersion and learning that has been requested. For the sake of curiosity, was there a logic to creating a structured ‘agent’ schedule which includes my start, break, lunch and end times? As a salaried employee, I was already under my own direction, likely going to extend my hours and/or utilize unscheduled Saturday’s to afford additional learning time – as I found necessary – due to the estimated time frame I had given to both Pam and yourself by request. This package is wrapped very nicely as a thoughtful contribution to my success, but as a training professional who has interacted with the agent’s and call queue – albeit limited, and with the direct knowledge of what has been lacking in my ability to be fully developed as an employee of RTX, the delivered structure places a burden on my personal needs – which are based around my expected schedule. In addition, a rotation does not deliver nor guarantee delivery of experiences that can’t be extracted from a call within my standard scheduled hours. It would be a great assistance, if we could kindly not alter my schedule and allow me the opportunity I have needed within the confines of what has been established as my schedule expectations for the last six months. Should I find that a knowledge gap exists, I will actively adjust to correct and close such gap. Ms. Price testified as to the accuracy of the matters discussed by Ms. Lampkin in her e-mail reply to Petitioner. Additionally, the undisputed evidence is that Petitioner unilaterally withdrew from the immersion program after having been a part of the same for only two weeks. The evidence is also undisputed that Respondent did not change Petitioner’s pay, benefits, or job-related opportunities as a consequence of Petitioner entering and subsequently leaving the full immersion program. The e-mail exchange between Petitioner and Ms. Lampkin show a number of things, none of which support Petitioner’s claim of retaliation. As an initial matter, Ms. Lampkin’s e-mail to Petitioner, and the related testimony from Ms. Price, clearly establishes that Respondent knows its business operations better than Petitioner. Next, Ms. Lampkin’s e-mail to Petitioner, and the related testimony from Ms. Price, establishes that Petitioner’s immersion into Respondent’s operations was a temporary assignment scheduled to last about two months and that the planned immersion was in furtherance of Respondent’s legitimate business interests of having Petitioner to perform his job at a competence level higher than “marginal.” Furthermore, Petitioner’s correspondence of September 19, 2014, wherein he specifically requests “complete and full immersion,” when compared to his correspondence of October 3, 2014, wherein he retreats to a preferred experience of ‘agent like immersion,’ shows that Petitioner was simply trying to the game the system in an attempt to avoid “plac[ing] a burden on [his] personal needs” as repeatedly referenced in his correspondence of October 3, 2014. Petitioner offered no credible evidence that Respondent’s decision to fully immerse him, on a temporary basis, in its call center operations was done for reasons other than those related to improving Petitioner’s job performance, and concomitantly Respondent’s business operations. In other words, Petitioner failed to prove that Respondent’s decision to fully immerse him in its call center operations was done in retaliation for his having alleged that Ms. Price discriminated against him on the basis of his gender. In the Employment Charge of Discrimination, Petitioner alleges, in part, the following: I suffer from three chronic disabilities as explained to my employer when requesting reasonable accommodation to work from home, when not tasked with a training class, the call center floor and office space triggers disability-related episodes and limits my ability to concentrate and effectively focus. Respondent continues to make the process of providing me reasonable accommodations difficult and shows no desire to work with me, or my physician’s requirements, to allow me to quickly return to work and perform my job functions. The fact that Petitioner suffers from recognized disabilities is not in dispute. On or about October 30, 2014, Petitioner informed Ms. Lampkin during a telephone conference that he believed that he had one or more physical impairments that might warrant an accommodation. Specifically, Petitioner reported that the workplace lighting was bothersome and that he would work better with incandescent or natural lighting. Ms. Lampkin asked Petitioner to provide additional information about his lighting concerns so that Respondent could determine whether workplace modifications were necessary. Petitioner also informed Ms. Lampkin that he was not sure whether his lighting concerns were temporary or would be on-going. On November 3, 2014, Petitioner e-mailed Ms. Lampkin stating, in part, the following: I am unable to go into the call center and back office areas as it directly impacts my sense of well-being and heightens my medical concerns. Therefore I am unable to report to the office to conduct my required function of creating training curriculums and educational products. My physicians are preparing documentation for you as requested. Due to the nature of my core job functions, I am requesting that work from home be authorized as a reasonable accommodation. As of November 3, 2014, the only specific medical concern mentioned by Petitioner was his sensitivity to lighting. On or about November 11, 2014, Petitioner gave Ms. Lampkin a letter from his physician. The physician’s letter states, in part, that Petitioner should be allowed “to work from home when [he] is not tasked with conducting training classes” because Petitioner “will be better able to perform the essential functions of his position by working from home.” The letter goes on to state that “the work environment triggers severe panic attacks” and that Petitioner “has become increasingly sensitive to and made ill by various fragrances and fluorescent lighting, all of which would be eliminated by working from home.” The physician also notes that “[f]urther support of this request is the fact that [Petitioner’s] primary job functions can effectively be performed remotely, with the need for being present in the office relegated to those times when he must attend meetings for which teleconference is not available or to perform the training that he conducts.” The physician's letter did not indicate that Petitioner was unable to perform the essential functions of his job without a reasonable accommodation. Rather the letter stated that Petitioner would be “better able to perform the essential function of this position by working from home.” Based on the rather cryptic information contained in the physician's letter, Respondent was unable to grant Petitioner's request for a reasonable accommodation. In response to the physician’s letter, Respondent, on November 13, 2014, informed Petitioner that “[a]dditional information is necessary in order to make a determination regarding [the] request for reasonable accommodation.” The additional information requested from Petitioner’s physician is as follows: What are the environmental factors which trigger the panic attacks? When is the condition(s) expected to resolve and a return to work to occur? What about the conditions(s) prevents performing daily work tasks in the workplace, but permits conduction of classroom training in the workplace? Are there other alternatives which can be offered, outside of working from home, which allow the essential job functions to be performed? If so, what are those alternatives? The previous letter states that the primary job functions can be performed from home. What are those primary job functions which were referenced in that statement? The previous letter reference enclosures, but none were provided with the letter. Please provide any relevant enclosures for review. Each question asked by Respondent was reasonably tailored so as elicit responses that would better enable Respondent to analyze Petitioner’s request for accommodation and to explore the availability of other possible accommodations. On November 19, 2014, Petitioner wrote a lengthy message to Ms. Lampkin contesting Respondent's need for the additional information. In response to this missive, Ms. Lampkin, on November 20, 2014, informed Petitioner that his “request for accommodation has been conditionally denied pending the receipt of the required information.” On November 21, 2014, Petitioner sent another missive to Ms. Lampkin and argued therein that Respondent's request for additional information was overbroad and that in his opinion he had provided sufficient information so as to allow Respondent to grant his request for accommodation. In response to the concerns expressed by Petitioner, Ms. Lampkin provided a detailed explanation to Petitioner of why additional information was needed to evaluate his request for accommodation and encouraged Petitioner to provide the information “as expeditiously as possible so that we can move forward with granting you an accommodation.” His protestations to the contrary notwithstanding, Petitioner had not, as of November 21, 2014, provided Respondent with sufficient information to allow Respondent to determine what reasonable accommodations were necessary and available in order to address Petitioner’s mental and physical impairments. On November 24, 2014, Petitioner supplied Respondent with what is described as “supplemental documentation” from his physician. This documentation was not, however, information entirely responsive to the six points of inquiry mentioned in Respondent’s November 13, 2014, correspondence to Petitioner. Based on the supplemental information, Respondent informed Petitioner that it would modify the workplace to accommodate Petitioner’s sensitivity to light and scents. Petitioner was directed to report to work on December 1, 2014. Petitioner did not return to work on December 1, 2014, as instructed. Petitioner e-mailed Respondent on December 3, 2014, to state that he had not received the e-mail instructing him to return to work on December 1, 2014. He also indicated that he did not believe that all of his workplace concerns had been addressed. Ms. Lampkin responded on December 5, 2014, indicating that Respondent had addressed all known workplace issues and also informed Petitioner that additional information would be considered, if supplied. Specifically, Ms. Lampkin stated to Petitioner: I, too, am willing to continue to engage in this interactive process with you. The next steps in the process, should your position remain that your condition(s) warrant further accommodation including working from home, involve your supplying me with specific responses to the informational requests I have previously made. The informational requests that I made were not entirely answered by the response I received from you dated 11/21/14. I am happy to re-send you the form so that you can provide the remaining information. Please advise. On December 9, 2014, Ms. Lampkin provided Petitioner with another copy of the form setting forth the information requested on November 13, 2014. In her correspondence of December 9, 2014, Ms. Lampkin explained that “[t]he information contained in the form that you returned to me was insufficient to enable RTX to approve your request to telecommute indefinitely or to allow RTX to evaluate what reasonable accommodations other than what RTX has already offered may be available.” On December 11, 2014, Ms. Lampkin again requested that Petitioner provide her information responsive to those items enumerated in her correspondence of November 13, 2014. On December 15, 2014, Petitioner advised Ms. Lampkin that he was expecting to receive from his physician information responsive to her requests and that he would forward the same to her as soon as possible. On or about December 18, 2014, Petitioner sent Respondent a second letter from his physician. In the letter, Petitioner’s physician stated definitively that “I do not find any other accommodations available other than for the patient to be afforded the ability to work remotely when not tasked with conducting training classes which require physical presence.” Based on that statement by Petitioner's physician, Respondent agreed to grant Petitioner a reasonable accommodation and to permit him to work from home when not tasked with conducting classroom training. Petitioner was advised that January 2, 2015, would be his official return-to-work date. Respondent acted reasonably, and communicated with Petitioner appropriately, when seeking information related to Petitioner’s desire to work from home. The evidence does not support Petitioner’s contention that Respondent unreasonably delayed granting Petitioner’s request to work from home. On or about January 5, 2015, Petitioner, via videoconference, met with Ms. Price to discuss the new hire training class that Petitioner was to conduct on January 12, 2015. The following day, on January 6, 2015, Petitioner sent an e-mail to Ms. Price and Ms. Lampkin and complained therein of not having enough time to prepare for the January 12, 2015, new hire training session. Petitioner, nevertheless, assured Respondent that “it will get done” and any questions that he could not answer during the training session “will go to the parking lot while [he] obtains an answer for the students.” On Monday, January 12, 2015, the day of the new hire training session, Petitioner, at 9:52 a.m., sent the following e-mail message to Ms. Price and Ms. Lampkin: I have spent 10.5 hours within the ER on Sandlake Road and awake for over 22 hours, so I will not be in today to begin your impromptu FAC training class. I will either be in tomorrow or we can consider this my constructive discharge/resignation and I will simply limit my interaction with RTX through the ongoing investigations. The choice is yours, of course, but kindly let me know so I can plan my Tuesday accordingly. I need to rest, now. Thank you. At 6:28 p.m., on January 12, 2015, Ms. Lampkin, in response to Petitioner’s e-mail, informed Petitioner of the following: Your absence today is unexcused. You are being given the opportunity to convert today’s absence to an excused absence by presenting a doctor’s note. If today’s absence remains an unexcused absence, you are subject to discipline. We are expecting you to be present to teach the class tomorrow, and to be ready to teach at 8:00 a.m. You were to have printed the materials earlier, and we expect that you will be ready to teach at 8:00 a.m. Petitioner did not report to work on January 13, 2015, to conduct the training session. Instead, Petitioner, at 9:41 a.m. on January 13, 2015, informed Ms. Lampkin that “the curt and underhanded behavior of RTX increases my anxieties . . . [and] it has been determined by myself and my health care providers that it is to my benefit to continue with a constructive resignation.” Respondent deemed Petitioner as having voluntarily resigned his employment with the company.
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 finding that Respondent, Resort Travel and Xchange, did not commit unlawful employment practices as alleged by Petitioner, Jason L. Van Horne, and denying Petitioner's Employment Charge of Discrimination. DONE AND ENTERED this 18th day of March, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 18th day of March, 2016.
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2007),2 by discriminating against Petitioner based on her national origin.
Findings Of Fact The Omni, advertised as "Omni Orlando Resort at ChampionsGate," is a golf resort located in the Orlando tourist corridor near Walt Disney World. The Omni is an employer as that term is defined in Section 760.02, Florida Statutes. Petitioner, Suhra Merdanovic, is a Bosnian female, and her first language is Bosnian. She speaks and understands English, but is more fluent and comfortable using her native language. Ms. Merdanovic was employed by the Omni from approximately August 22, 2006, to October 9, 2006. Ms. Merdanovic worked in the kitchen of the Broadway Deli, a sandwich shop located in the resort. The Broadway Deli was one of several restaurants in the Omni complex. During the brief period of Ms. Merdanovic's employment, the Broadway Deli did not have a full-time manager. Ms. Merdanovic reported to Silvio Rosalen, the sous chef at Teri's Restaurant, near the Broadway Deli in the Omni complex. Mr. Rosalen reported to Robert Fohr, the assistant food and beverage manager for the Omni. The Omni has established a policy that prohibits harassment in the workplace. The policy defines harassment as: ny unwelcome verbal, non-verbal, physical or other conduct or behavior relating to an individual's race, religion, color, sex, national origin, age, disability or any other categories protected by state, federal or local law, that is made a term or condition of employment, is used as the basis for employment or advancement decisions, or has the purpose or effect of unreasonably interfering with work or creating an intimidating, hostile or offensive work environment. The policy "strictly prohibit[s]" employees, supervisors, and members of management from harassing other employees, supervisors, or members of management. The policy directs an employee who has a complaint of harassment to report that complaint to any manager or supervisor, the human resources director, the general manager, or the regional vice president of operations. The complaint triggers a formal investigation, usually conducted by the human resources director. The Omni's harassment and equal employment opportunity policies are set forth in the Omni's Associate Handbook, which is provided to all employees. The handbook is reviewed during an orientation session that all newly hired Omni employees must attend. Ms. Merdanovic attended an orientation session on August 26, 2006, and testified that she was familiar with the harassment policy. The Omni calls the first 90 days of employment an "introductory period." The Associate Handbook describes the introductory period as follows: During this time you will have a chance to see whether you like your job and Omni Hotels will have an opportunity to evaluate your performance and suitability for your position. If Omni Hotels concludes that your job performance and/or suitability have been unsatisfactory, you may be dismissed at any time during the introductory period at Omni Hotels' complete discretion. You may also be dismissed at any time after the introductory period at the sole discretion of Omni Hotels. Both during and after the introductory period, all associates are associates at will. If an employee's manager determines within the first 90 days of employment that an employee's job performance and/or "suitability" is unsatisfactory, the manager will meet with the employee to review the manager's concerns. After this meeting, the employee's job status is "suspended pending investigation" while the manager confers with the human resources department to review the issues. If the manager and the human resources department agree that the employee should be terminated, then human resources will advise the employee of the decision. Ms. Merdanovic testified that two Hispanic co-workers, Erica Torres and Charlotte Ruiz, harassed her because of her nationality. Ms. Torres asked her what she was doing in America and refused to go into the kitchen with her. Both women made jokes and laughed about Ms. Merdanovic being from Bosnia. Ms. Merdanovic testified that her co-workers also disliked her, because she refused to give them free food from the Broadway Deli's kitchen. Ms. Merdanovic did not complain to a manager, supervisor, or any other Omni employee about the harassment she claimed to have experienced. Mr. Rosalen testified that he received numerous complaints about Ms. Merdanovic's job performance from her co- workers. The co-workers told him that Ms. Merdanovic failed to follow instructions, argued with guests and co-workers, interrupted co-workers who were trying to explain how to complete job tasks, gave guests the wrong order at least twice, and failed to comply with the posted work schedule. Mr. Rosalen personally observed Ms. Merdanovic's performance deficiencies on several occasions. The guest complaints were most significant to Mr. Rosalen. On one occasion, the guest had ordered a turkey sandwich, but was served a pastrami sandwich by Ms. Merdanovic. Rather than correcting the order immediately, Ms. Merdanovic attempted to convince the guest to keep the pastrami sandwich by telling him it was good and he would like it. On a second occasion, a guest ordered a milkshake and was served iced coffee.3 At the hearing, Ms. Merdanovic testified that she was unaware of any complaints about sandwiches. She stated that she has worked in kitchens for years and understands how to make sandwiches in a deli. She did complain that she was never trained to operate the "front of the store" equipment such as the milkshake machine or coffee machine, yet was expected to somehow be able to operate them. Mr. Rosalen orally counseled Ms. Merdanovic on multiple occasions regarding her performance deficiencies, but he never observed any improvement. Pursuant to the process for terminating employees during their introductory period, Mr. Rosalen and Mr. Fohr decided to meet with Ms. Merdanovic to discuss her performance deficiencies and to advise her not to return to work until she heard from human resources. After this meeting, Mr. Rosalen and Mr. Fohr would meet with the human resources director to discuss whether to terminate Ms. Merdanovic's employment. Mr. Rosalen and Mr. Fohr prepared a "Problem/Solution Notice" form, dated October 2, 2006, that set out the performance deficiencies and possible corrective actions for Ms. Merdanovic. This notice was intended to be the outline for discussion during the meeting with Ms. Merdanovic. Under the heading "Specific Nature of Problem" were various categories, including absenteeism, tardiness, violation of company policies, and unsafe actions. Ms. Merdanovic's problem was categorized as "Performance Below Standards." The specific performance problems were set out as follows: There have been numerous complaints about Suhra Merdanovic's job performance from several of her co-workers. These complaints include: Does not follow training of food preparation techniques and quantities. Does not follow food, coffee and drink recipes. Does not know what all the ingredients are to be able to make recipe. Looses [sic] tickets for orders. Has become argumentative with employees and guests when told that the product is wrong. Has tried to convince guests that mistakenly prepared food is good and tried to get them to take it. Does not understand the schedule after repeatedly having it explained. Interrupts employees and does not let people finish talking when trying to explain how a task needs to be completed. Is not a team player. The notice set forth the following under the heading, "Expected performance or conduct/corrective action required": Suhra must adhere to the following guidelines: Must be receptive to and accept training in all facets of Broadway Deli culinary operations with a positive attitude. Must follow all standard recipes without deviation to achieve a consistent product. Must produce orders in timely fashion in accordance to [sic] the guest's specifications. Must never become argumentative with a guest and try to force a guest to take a product they do not want. Must get along with and assist teammates with all guest needs. The notice concluded that the "disciplinary action taken" would be "Suspension/Termination." On October 2, 2006, Mr. Rosalen and Mr. Fohr met with Ms. Merdanovic in Mr. Fohr's office to review the contents of the Problem/Solution Notice. When her supervisors began reviewing her performance deficiencies, Ms. Merdanovic interrupted to argue with them. Mr. Fohr pointed out that this was the same sort of conduct that led to this counseling session in the first place. Before Mr. Rosalen and Mr. Fohr could present her with the notice and commence the formal suspension/termination process, Ms. Merdanovic began to cry in a way that Mr. Rosalen described as "almost hysterical" for several minutes. Ms. Merdanovic then walked to the kitchen of the Broadway Deli. Mr. Rosalen followed her, both to make sure she was all right and to escort her off the Omni property. Ms. Merdanovic again began crying and saying that she could not breathe. She described her condition as "couldn't breathe, couldn't think, couldn't stay." Mr. Rosalen called in the Omni's security team, which also acts as the resort's first responder in medical emergencies. The entry of the security guards threw Ms. Merdanovic into a greater panic. Eventually, at Ms. Merdanovic's request, the Omni called an ambulance service, which transported her to Florida Hospital in Orlando. Ms. Merdanovic was diagnosed with high blood pressure and discharged after an overnight stay in the hospital.4 After the incident leading to Ms. Merdanovic's hospitalization, Mr. Rosalen and Mr. Fohr met with Lisa Borde- Christie, the Omni's human resources manager, to discuss their meeting with Ms. Merdanovic, the complaints about her from guests and co-workers, and Mr. Rosalen's observations of her performance deficiencies and his previous attempts to correct them. Ms. Borde-Christie agreed that Ms. Merdanovic was not meeting the Omni's performance expectations for her position. In light of Ms. Merdanovic's failure to improve her performance despite Mr. Rosalen's several attempts at verbal counseling, Ms. Borde-Christie, Mr. Fohr, and Mr. Rosalen agreed it was unlikely that Ms. Merdanovic's performance would improve in the future. They decided to terminate her employment. On October 9, 2006, Ms. Borde-Christie and Mr. Rosalen met with Ms. Merdanovic to tell her that her employment was terminated and to review the performance deficiencies that caused her termination. When Ms. Borde-Christie attempted to review the performance issues, Ms. Merdanovic became argumentative, stating that these issues were all lies and that her co-workers did not like her. Ms. Borde-Christie testified that Ms. Merdanovic said nothing about her national origin being an issue in the workplace. Ms. Merdanovic produced no credible evidence that her language or national origin played a role in the decision to terminate her employment. The Omni's management did not become aware of her allegations of harassment due to her national origin by her co-workers until Ms. Merdanovic filed her Employment Complaint of Discrimination, more than two months after her dismissal. The evidence produced at hearing demonstrated that the reasons for Petitioner's termination all related to her job performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Omni Hotel Resort did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 26th day of March, 2008, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2008.
The Issue Whether Petitioner has established, by a preponderance of the evidence, that Respondent is guilty of unlawful employment practices as alleged in the Petition for Relief. AUTHORITY Chapters 120 and 760, Florida Statutes, and Rule 60Q, Florida Administrative Code.
Findings Of Fact Petitioner, D. Paul Sondel, was born August 13, 1928, and was, at the time of final hearing, 65 years of age. On April 11, 1993, Petitioner saw a newspaper advertisement for the position of Analyst I with the Florida Board of Bar Examiners (FBOBE). On April 12, 1993, Petitioner went to the office of the employment agency which the FBOBE was using to locate and screen applicants. Petitioner was told that he would not be allowed to apply or take the pre- employment test for the position because he had a graduate degree and only persons who have a Bachelor's degree but no graduate degree(s) were allowed to apply. On June 1, 1993, Petitioner filed a charge of discrimination with the Florida Commission on Human Relations, in which he alleged that the FBOBE requirement that no one would be considered for the position of Analyst I who had a higher level degree than the minimum required Bachelor's degree, served the "intended purpose" of eliminating older applicants, especially those over Petitioner further alleged that the existence and implementation of such FBOBE policy was in violation of the federal Age Discrimination in Employment Act (ADEA). Respondent hired two persons to fill the April 1993 advertised position of Analyst I. One of the persons hired was 24 and the other was 23 years of age. The FBOBE is an administrative agency of the Supreme Court of Florida and charged by the court with the responsibility of evaluating the character, fitness and competence of each applicant for admission to the Florida Bar. Petitioner has established that he is a person in a protected group; that adverse employment action was taken against him; that the persons hired for the position in question were outside the protected group; and that, but for his graduate degree, he was qualified for the position in question. The FBOBE has a current staff of 29 full time employees. As of March 30, 1994, of those employees, three were 40 years or older at the time of employment. Nine of these employees are currently 40 or older. The employment application used by the FBOBE does not request any information regarding an applicant's age. The FBOBE have hired individuals in the past who were 40 years of age or older. The FBOBE uses the American Employment Agency, Inc. to advertise vacancies and to conduct preliminary screening. Kathryn E. Ressel has been employed by the Respondent for over 22 years and is currently the Deputy Executive Director of the FBOBE. Ms. Ressel is responsible for the instructions given to the employment agency concerning the qualifications for the position of Analyst I. Ms. Ressel testified that the reason for the FBOBE policy of excluding applicants with post graduate college or university degrees is not intended to restrict employment opportunities to younger persons and is not related to the age of any applicant. Ms. Ressel's testimony is that past experience in hiring persons with graduate degrees has indicated that such persons tend to stay in the Analyst positions for short periods of time and leave when an employment opportunity presents itself in the field for which the person is educated. Ms. Ressel testified that the Analyst I position is an entry level position and that the Analyst receives extensive on-the-job training to enable the newly hired employee to perform assigned duties and meet job related responsibilities in an effective and efficient manner. Therefore, according to Ms. Ressel, when Analyst I's leave the employment of the FBOBE after a short time on the job, the Respondent is unable to recoup the time, energy and expense involved in training such individuals. Ms. Ressel's testimony articulates a reasonable nondiscriminatory basis for the employment practice at issue. Ms. Ressel's testimony indicates that the employment policy at issue is age neutral in that it is applied to all individuals who apply for the position of Analyst I, regardless of age. Ms. Ressel's testimony in this regard is unrefuted. Official notice is taken that a given individual is generally older at the time such person receives a graduate degree than when the same individual receives a Bachelor's degree. It does not follow, however, and Petitioner has failed to prove (statistically or otherwise), that in any specific job applicant pool available to the Respondent to fill Analyst I positions, potential applicants with graduate degrees are older than potential applicants who possess only Bachelor's degrees. Petitioner has failed to prove by a preponderance of the evidence (statistical or otherwise) that the employment policy at issue has a disparate impact on persons 40 years of age or older. Petitioner has failed to prove, by a preponderance of the evidence, that the legitimate, nondiscriminatory reason articulated by the FBOBE as the basis for rejecting Petitioner's application is in fact a pretext and/or that a discriminatory reason more likely motivated the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the petition for relief filed in this case be denied. DONE and ORDERED this 19th day of May, 1994, in Tallahassee, Florida. JAMES W. YORK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 19th day of May, 1994.
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner based on her race in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is an African-American female. Respondent initially hired Petitioner through a temporary labor service. Petitioner worked for approximately 60 days as a temporary employee in the position of a medical transcriptionist preparing medical chronologies. At the end of the 60-day period, Respondent decided to eliminate Petitioner's position. Petitioner decided to enhance her career opportunities by applying for a position as a paralegal with Respondent. In a letter dated June 19, 1996, Petitioner expressed her interest in working for Respondent as a full-time employee. According to the letter, Petitioner had worked for over 20 years as a secretary/administrative assistant, including some experience in the areas of management and supervision. The letter, together with Petitioner's resumé, indicated that she had experience as a legal secretary. In a letter dated August 26, 1997, Respondent offered Petitioner a job as a paralegal. Petitioner accepted the offer. Randy Fischer, Esquire, explained the duties of a paralegal to Petitioner and gave her a copy of a paralegal's job description. The duties included, but were not limited to, the following: (a) drafting pleadings and correspondence; (b) drafting discovery requests; (c) organizing files and preparing file indexes; (d) investigating cases; (e) scheduling depositions; (f) attending document productions, exhibit exchanges, and pretrial conferences; and (g) assisting in legal research. Respondent gave Petitioner an employee handbook. The handbook included, among other things, information about attendance, discipline, and the firm's anti-discrimination policies and procedures. Petitioner also received a paralegal manual and billing guidelines. Respondent's anti-discrimination policy communicated to employees that sexual harassment, racial discrimination, or any other type of discrimination would not be tolerated. Respondent had an "open door" policy by which employees could report discrimination to the office manager or the office-managing partner. At all times material here, Mr. Fischer was the office-managing partner, and Janet Siefert was the office manager. Petitioner never took advantage of the opportunity to report any alleged racial discrimination to anyone on Respondent's staff. From the beginning of her employment as a paralegal, Mr. Fischer communicated to Petitioner that she would be expected to schedule, coordinate, and calendar activities for attorneys. He frequently was critical of Petitioner's performance because she failed to meet these expectations. There is no persuasive evidence that Mr. Fischer's criticisms were racially motivated. Respondent regularly provided written performance evaluations of employees. Petitioner's first review took place in December 1997. The evaluation indicated that Petitioner's attendance or dependability and teamwork were "highly acceptable." Her performance in oral expression, writing ability, decision-making ability, work product accurateness, and work product volume was "acceptable." Petitioner "needed to improve" in the following areas: (a) knowing subject matter; (b) analyzing problems; (c) obtaining information; (d) meeting deadlines; (e) performing assignments resourcefully and creatively; (f) recording billable time; (g) showing initiative; and (h) following through on assignments. Petitioner's overall rating on the evaluation was "acceptable." During the evaluation, Mr. Fischer counseled Petitioner about her job deficiencies. He particularly discussed Petitioner's need to follow appropriate guidelines for billing. This was important because Respondent routinely had to reduce Petitioner's excessive billing time in some areas. There is no persuasive evidence that Petitioner was singled out in terms of having billing time entries removed from the timesheets. In February 1998, Petitioner began having problems with her attendance and low work productivity. A written disciplinary action dated February 11, 1998, outlined the following deficiencies: (a) inattention to detail in handling files by failing to schedule the continuation of a deposition; poor performance in handling the Angela Davis file; leaving the building during work hours without proper authorization; (d) being late for work on numerous occasions; and (e) taking numerous personal absences. Regarding the Angela Davis file, Petitioner's failure to follow instructions adversely affected Mr. Fischer's handling of the file. Mr. Fischer became angry because it took Petitioner two hours to drive from Ocala, Florida, to Gainesville, Florida, with only a portion of the Angela Davis file that he had requested. However, there is no evidence that Mr. Fischer's anger was racially motivated. Petitioner admits that she occasionally left the building during her work breaks to go to the bank or for other personal reasons instead of spending that time in the employees' break room. She asserts that she did not know she had to have permission to do so and that she had to sign in and out. According to Petitioner, other employees were allowed these privileges without being reprimanded. Petitioner's testimony in this regard is not credible. Petitioner admitted during the hearing that her attendance record was problematic due to personal problems. On at least one occasion, Mr. Fischer agreed to let Petitioner make up some of the time she had lost. There is no persuasive evidence that Respondent's attendance policy was applied more rigidly to Petitioner than to any other employee. More importantly, Petitioner admitted that she was not qualified to perform all of the duties of a paralegal when she accepted the position. It is clear that she had difficulty learning "on-the-job." On February 20, 1998, Mr. Fischer wrote Petitioner and another paralegal a note regarding the importance of pulling a file together and following directions. Mr. Fischer had gone to mediation without the necessary file documents because Petitioner and her co-worker had not followed his directions. On March 12, 1998, Mr. Fischer reminded Petitioner and another paralegal about the importance of providing him with daily timesheets in a timely manner. Petitioner and her co-worker were at least a week behind in providing him with their timesheets. On March 26, 1998, Petitioner used the firm's copy machine and other supplies for personal reasons. On April 8, 1998, Petitioner was late to work due to a flat tire. In May 1998, Petitioner requested a more flexible work schedule so that she could attend class in Orlando, Florida, one afternoon each week. Mr. Fischer responded that her billing hours were already low and that she was routinely late to work. However, Mr. Fischer agreed to give her the time off for a 30-day period if she documented her time at the office, improved her productivity, and billed a minimum of 25 billed hours per week. In June 1998, Mr. Fischer had to remind Petitioner again about the importance of keeping calendars for the attorneys. Because Petitioner failed to follow instructions, no attorney from Respondent's office attended a scene viewing. In July 1998, Mr. Fischer sent Petitioner an e-mail message criticizing her for not properly issuing a subpoena and deposition notice. When he realized that Petitioner was not at fault, he promptly apologized in a subsequent message. On August 18 and 19, 1998, Petitioner received two personal facsimile transmissions at the office. On August 25, 1998, Mr. Fischer gave Petitioner a written disciplinary action and placed her on probationary status. The discipline was based on the following reasons: (a) Petitioner had been out of the office for various personal reasons 31 times in the last 90 days; (b) Petitioner had provided Respondent with inaccurate or incomplete reasons for those absences; (c) Petitioner's productivity was below office standards; (d) Petitioner had failed to properly schedule activities and calendar events for an attorney; (e) Petitioner had failed to follow repeated instructions in relation to file handling, scheduling depositions, and scheduling meetings; (f) Petitioner had used firm time to receive and review personal facsimile transmissions, to discuss personal information, and to participate in personal telephone calls; and (g) Petitioner had inappropriately used firm resources. On September 16, 1998, Mr. Fischer gave Petitioner another written disciplinary action. The memorandum outlined continued problems with Petitioner's performance. One example of Petitioner's poor performance involved her failure to properly arrange for a deposition. Other examples involved excessive billing for making summaries of records; the lack of time billed for other case activities, such as setting and noticing depositions and hearings; failure to resolve unpaid costs on a case; and modification of timesheets after they had been edited. The September 16, 1998, disciplinary action also reviewed continued problems with Petitioner's attendance and attitude. Respondent's paralegals are required to bill 100-105 hours per month. Some examples of Petitioner's billing hours are as follows: (a) March 1998, 97.3 hours; (b) April 1998, 58.9 hours; (c) May 1998, 74.3 hours; and (d) June 1998, 69.7 hours. Respondent fired Petitioner on September 25, 1998. Her termination was based on cumulative reasons, including low productivity, failure to be attentive to detail in the handling of files, and frequent absences and tardiness. During the time that Petitioner worked for Respondent, Mr. Fischer fired Robin Carr, a white female, for similar reasons that Petitioner was terminated: excessive absences, inappropriate use of personal time in the office, and excessive personal telephone calls. Mr. Fischer also fired Art Monig, a white male, for low work productivity. Ms. Carr and Mr. Monig both worked as paralegals. Petitioner testified that, on one occasion, Ms. Carr and other employees were in the employees' break room discussing the turnover of staff in the office. Petitioner testified that Ms. Carr made the statement that Petitioner did not have to worry about losing her job because she was a "token." In the Petition for Relief, Petitioner alleges that Ms. Seifert made this comment. Ms. Carr did not testify at the hearing but Ms. Seifert did testify and denies making such a statement or ever hearing it made. Similarly, Jennifer Whitehead, who was Mr. Fischer's secretary from February 1997 through May 2001, testified that she never heard anyone in the office make a statement that Petitioner was a "token" or a "quota." Nevertheless, Petitioner's testimony in this regard is persuasive. Petitioner admits that she never reported the statement allegedly made by Ms. Carr to anyone in Respondent's office. She admits that Mr. Fischer never made inappropriate racial comments in her presence. Mr. Fischer's dissatisfaction with Petitioner's performance may have caused Petitioner to be uncomfortable from time to time, but there is no evidence that his reactions to her poor performance were racially motivated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 23rd day of May, 2003, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2003. COPIES FURNISHED: Dorine Alexander 1421 Southwest 27th Avenue Apartment No. 1807 Ocala, Florida 34474 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Randy Fischer, Esquire Boehm, Brown, Fischer & Harwood, P.A. Post Office Box 4140 Ocala, Florida 34478 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner, a member of a protected class, was terminated from his position with the Respondent in retaliation for his filing of a national origin discrimination complaint with the Florida Commission on Human Relations on August 17, 1988.
Findings Of Fact The Southland Corporation, d/b/a Southland Distribution Center, is an "employer" within the definition found in Section 760.02(6), Florida Statutes. Guillermo A. Barbosa was an "employee" of the Respondent as defined in Section 760.02, Florida Statutes, and was employed by Respondent for approximately sixteen (16) years. The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings and the parties involved. All procedural prerequisites and requirements have been duly accomplished or satisfied. The Petitioner, Guillermo A. Barbosa, is fully competent to represent himself on a pro se basis. He exhibited clear understanding of the procedural requirements at the formal hearing and the legal import of his burden of proof on his claim of an unlawful practice against the Respondent. Petitioner exhibited comprehension of the English language, both spoken and written, and exhibited fluency in the speaking of English in the interrogation of witnesses at the formal hearings. Respondent, The Southland Corporation, d/b/a Southland Distribution Center, functions as a warehousing and distribution complex for a number of commercial customers including 7-Eleven convenience stores and restaurant chains such as Steak & Ale, Bennigan's, TGI Friday's, Krystal and others. In order to service its regional territory of four states, it employs approximately 630 employees in a large 440,000 square foot warehousing facility located on Sand Lake Road in Orlando, Florida. Respondent's warehouse operates 24 hours a day five (5) days per week. Respondent's work force stores a variety of goods and products and, upon order or request from a given customer or account, selects the indicated goods, packs them in appropriate containers and loads the order on tractor trailer rigs for transport and delivery to the final destination point. The Respondent places great emphasis upon the importance of time and schedules. Timely reporting for work and attendance as scheduled is emphasized by the Company so that the closely integrated operation of the complex can be maintained with efficiencies of labor and close coordination of schedules between warehouse operation, the transportation link and the store hours of the customer. The policies, procedures and work rules of the Company provide incentive programs to reward employees who report to work as scheduled in a prompt and consistent manner. Conversely, through its work rules, the Company provides that employees who demonstrate a pattern of tardiness or absence may be disciplined or discharged. For these same reasons, the work rules published to the employees and acknowledged by each worker also stress that a failure to report to work when directed or as scheduled for a period of 48 hours (no show/no call) will result in automatic termination of employment. The Respondent views employee reliability for reporting to work as scheduled and on time as a fundamental condition of employment. On August 11, 1988, Petitioner reported an on-the-job injury and was relieved of duty and, under directions from the Respondent's occupational health nurse, treated by an outside physician. On August 17, 1988, while on the medical leave of absence due to the work-related injury, Petitioner filed a discrimination charge alleging denial of transfer or promotion due to his national origin. A notice of the charge of discrimination was directed to the attention of the Personnel Manager of the Respondent and was received on September 7, 1988. On Friday, September 16, 1988, Petitioner was released by the treating physician and given "return to work orders" instructing him to return to work without restrictions. The following work day, Monday, September 19, 1988, the Petitioner resumed his normal duties and work routine. However, after approximately one to one and one half hours of work, Petitioner reported that he had either re- injured himself or had aggravated the prior injury for which he had been treated. The Respondent again placed Petitioner on medical leave of absence due to the work-related injury and directed him for treatment to the outside physician. On Friday, September 30, 1988, Petitioner was again released by the treating physician without limitations or restrictions and given instructions to return to work. On the next workday, Monday, October 3, 1988, Petitioner failed to show up at his scheduled time. After being absent without authority or explanation for five consecutive work days, the Warehouse Manager, Mr. Julius Dix, mailed a letter to Petitioner. The letter explained that pursuant to Rule 12 of the Company's "working conditions", specifically failure to report to work as directed and being absent without explanation or authorization for five consecutive work days, the Company was placing Petitioner on suspension pending further review. Although dated October 5, 1988, the letter drafted by Mr. Julius Dix was actually written and sent on Friday, October 7, 1988. However, the date of the letter was made retroactive to the actual point of job abandonment pursuant to the so-called "48- hour rule". On October 17, 1989 Petitioner mailed a copy of a medical form from an outside physician indicating that Petitioner had been disabled from working from October 13 to October 25, 1988. It was received by an employee of Respondent on October 19, 1988. A similar form was mailed October 26, 1988 and received on October 28, 1988. There was no letter or personal explanation accompanying the medical form. Petitioner stated that upon being released by the treating physician, he contacted the Warehouse Manager, Mr. Julius Dix, and upon explaining that his injury continued to disable him from returning to work, was given permission to continue on medical leave and seek treatment by another physician. However, Mr. Dix testified that he had never given such permission or directions, nor had he received any communications or contact from Petitioner on Friday, September 30, or during the subsequent week. The more credible testimony is that Petitioner made no communication with his employer during the week of October 3, 1988. Following corporate review, required for long-term employees, Petitioner's employment was formally terminated for violation of the "48-hour rule" (no show/no call) under a subsequent letter from Mr. Julius Dix dated October 25, 1988. On November 8, 1988, Petitioner filed a charge of discrimination alleging retaliation. The Petitioner's work history demonstrates his knowledge of the 48- hour rule and prior compliance under similar circumstances. The 48-hour rule of Respondent has been applied in a consistent and uniform manner to a substantial number of other employees during a period of time immediately prior to the action taken with regard to the administrative termination of Petitioner's employment. The administration of this rule by the Company has resulted in termination of the non-complying employees.
Recommendation Based upon the testimony and evidence submitted on the record in the formal hearings on this matter and by application of the relevant or governing principles of law to the findings of facts established on such record, it is RECOMMENDED: That a Final Order be issued which denies the Petition for Relief. DONE AND ENTERED this 17th day of November, 1989, 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 17th day of November, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not file proposed findings of fact. Respondent's Proposed Findings of Fact: Paragraphs 1, 2, 3, 4, 5, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 (sic) -- accepted in substance. Paragraphs 7 and 8 -- rejected as not relevant. COPIES FURNISHED: Guillermo A. Barbosa Dana Baird 854 Long Bay Court General Counsel Kissimmee, Florida Human Relations Commission 325 John Knox Road Thomas C. Garwood, Jr., Esquire Building F, Suite 240 Garwood and McKenna, P.A. Tallahassee, FL 32399-1925 322 East Pine Street Orlando, Florida Margaret Jones Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
Findings Of Fact Born in Rio de Janeiro, petitioner Paul Sergio Inacio emigrated to the United States from Brazil in 1961, when he was still a teenager. He first worked for respondent for a brief time in 1976. On June 6, 1980, he returned to respondent's employ as a journeyman welder mechanic at Crist Electric Generating Plant, a position he still held at the time of hearing. A "mile square with seven generating units" (T.187), the plant is in Florida, as are respondent's headquarters. Several hundred people work for respondent at Crist Electric Generating Plant alone. In "late June, 1980" (T.235) somebody began calling Mr. Inacio "Julio," nicknaming him after a Hispanic character in a television series (Sanford & Son). The actor portraying Julio "used to drag a goat through the living room . . . and acted . . . stupid." T.236; T.64. Despite (or perhaps because of) petitioner's telling people he did not like being called "Julio," the sobriquet caught on. Even during his initial eight-month probationary period, he made his objections known. T.115, 180. He felt freer to press the point, once the probationary period ended, although at least one friend advised him to do so might be counterproductive T.235-6. Mr. Inacio never referred to himself as Julio. T.28, 99-100, 115, 146-7, 180, 194, 198. Once "he almost got in a fight with [a co-worker] because the guy called him my little Puerto Rican buddy Julio." T.28. Before he retired from his employment as a supervisor with respondent, on July 30, 1987, Murdock P. Walley repeatedly addressed, or referred to petitioner in his presence, as "Julio," "wop," "spic," and "greaser." Mr. Walley's last day at work was "in April or along about then." T.472. Behind petitioner's back, Mr. Carnley heard Mr. Walley refer to petitioner as "wetback," "wop" or "the greaser." T. 27. Co-workers have called him "spic," "wetback," and "greaser" to his face, (T.30) as well as behind his back. Mr. Peakman, another maintenance supervisor, testified that he was guilty of a single lapse: I didn't see him and I asked, "Where's Julio?" And then I caught myself, I said, "Excuse me, where's Mr. Inacio?" I corrected myself right then. T.455. In or about January of 1989, (T.271), Jimmy Lavon Sherouse, maintenance superintendent since May of 1987, referred to petitioner as "Julio" at least once, in the break room. Willard A. Douglas, a supervisor of maintenance at the plant since December of 1981, referred to petitioner as "Julio" frequently. Described as abrasive, Mr. Douglas, also known as "Bubba," has "single[d] Paul out." T.46. But it appeared at hearing at least as likely that Mr. Douglas singled petitioner out because of a run-in which had nothing to do with Mr. Inacio's background, as that he discriminated against him on account of national origin. Prior to June of 1989, continuously since 1981 (T.29), Howard Keels, Calvin Harris, Mike Taylor, Ronnie Yates, and Bill Sabata, Control Center supervisors, C. B. Hartley, supervisor over the coal docks, John Spence and David Hansford, both maintenance supervisors at the time, Mike Snuggs, Joe Patterson, Ed Lepley, Tommy Stanley and Dennis Cowan, supervisors of the laboratory department, Dennis Berg and Joe Kight, schedulers, Tom Talty, the assistant plant manager, Joe Lalas and Larry Swindell, both operations supervisors, all called petitioner "Julio" "[t]o his face in [the] presence" (T.27) of Ricky Carnley, a fellow welder mechanic who testified at hearing. T.21-26. Others also heard supervisors call petitioner "Julio." T.79-80, 110, 144-6, 178-9, 195-6, 237-9, 537-8. Not without reason, petitioner came to feel that "(a)nything associated with Hispanic heritage that could come up, I was called at some point or other by practically anybody." T.267. Angelo Grellia, a fellow mechanic who testified "I'm a wop, you know" (T.79) (emphasis added) remembered co-workers calling petitioner a "wop." A newspaper cartoon posted on a bulletin board in the employee break room (not the bulletin board reserved exclusively for management's use) depicted a man using a two-by-four. Petitioner "is known for using two-by-fours a lot to move stuff, pry stuff for leverage." T.34. The cartoon was labelled "Julio." Another time somebody posted a newspaper clipping, a report of a parricide, complete with picture; the killer's name had been lined through and Mr. Inacio's had been substituted. T.112, 158, 179. After two days, a fellow employee took it down (T.158), apparently without Mr. Inacio's ever seeing it. Still another time somebody posted "a National Geographic picture" (T.181) that resembled petitioner "and the caption said, can you guess who this is." T.181. Somebody had guessed and written in "Julio." T.243. According to uncontroverted testimony, white Anglo-Saxon men "were not selected to be the butt of these sorts of jokes." T.159. Over the plant's public address system, in Mr. Talty's presence, Charles Brown referred to petitioner as "Paul Inasshole," a play on his surname. T.25. No other employee was ridiculed in such a fashion, as far as the evidence showed, (T.49) but broadcasts in a similarly offensive vein ("An asshole" "A nasty hole") took place repeatedly over respondent's public address system. T. 24-25, 48-49, 71, 144-146, 163, 240. At all pertinent times, respondent had widely disseminated written equal opportunity and affirmative action policies with the stated "intent . . . to provide all employees with a wholesome work environment." Respondent's Exhibit No. 2. "Company policy prohibits intimidation or harassment of its employees by any employee or supervisor." Id. But, as Barbara Louise Mallory, an "Equal Employment Opportunity representative" (T.477) in respondent's employ, conceded, the "conduct that went on was against [Gulf Power's] policies and against the law." T.484. Respondent's Exhibit No. 2 stated that employees "subjected to conduct which violates this policy should report such incidences to their immediate supervisor, a higher level of supervision, or the Company's Equal Employment Opportunity Representative in the Corporate Office." Id. In the present case, both respondent's immediate supervisors and "a higher level of supervision," were well aware of the harassment to which petitioner was subjected, before he officially reported it. Supervisors were themselves guilty of harassment. On February 8, 1988, Mr. Sherouse, the maintenance superintendent, addressed "a routine shift meeting with employees [and] discussed with them the need to refrain from destruction of employees' or company property." Respondent's Exhibit No. 8. Mr. Sherouse "essentially said . . . some employees . . . were being singled out . . . . " T.295. He told employees at the meeting that "such an incident . . . could result in an action up to termination." Id. At the same meeting he "also discussed cartoons and calendars that could be considered . . . racial or sexual harassment . . . [directing that] they must be removed now." Respondent's Exhibit No. 8. These matters were also discussed at an employee information meeting in January of 1989. Petitioner's Exhibit No. 1. But harassment of petitioner continued. "[Q]uite frequently . . . thick heavy grease would get smeared on his toolbox, underneath the drawers of his toolbox." T.34. The lock on his locker was glued or "zip-gripped" shut several times, and had to be cut to open the locker. Respondent's Exhibit No. He is the only employee (T.39) who had to change clothes because some sort of itching powder was put in his clothes. Somebody put "Persian Blue," a particularly persistent dye, in his glove. At respondent's counsel's behest a list was prepared of "employees who have experienced problems with someone tampering with their tools or person[a]l lockers," Respondent's Exhibit No. 10, during the two years next preceding the list's preparation on August 4, 1989. Of the nine employees listed, seven were white Caucasians whose tools or books had been lost or stolen. 1/ Unlike the native-born men on the list, petitioner and Debbie Mitchell, the only other person listed, were subjected to repeated instances of vandalism and other harassment, including unflattering references in cartoons posted on the bulletin board in the break room. Although petitioner did not request it, management assigned him a new locker, something they did for no other employee. According to a co-worker, petitioner, who once taught welding at Pensacola Junior College, "likes to do a good, clean, responsible job" (T.185) of welding. But, on October 22 and 23, 1988, when petitioner and Millard Hilburn worked on "the #7 bottom ash discharge piping," Respondent's Exhibit No. 21, at Willard Douglas' behest, they failed to stop seepage from the pressurized pipe (which was in use while they worked) by welding, and resorted to epoxy which, in Mr. Douglas' "opinion[,] . . . [was] bad judgement and very poor workmanship." Id. Of 30 or 40 welders respondent employed at Crist, only one or two "still have a clean record. Eventually somebody is going to get a leak." T.202. Petitioner's work record is basically a very good one, although not perfect. Nevertheless Mr. Sherouse, after putting petitioner's name on a list of three "employees who for different reasons are not performing their jobs," Respondent's Exhibit No. 7, summoned petitioner to a conference about his job performance, on January 20, 1989. The other two employees were Scott Allen, whose problem was "attitude . . . distrust, dislike . . . just unbelievable" (T.443; 420) and Ed Lathan who "hadn't been there since June of '87" (T.420) except sporadically "working light duty." T.420. Mr. Sherouse also prepared various memoranda concerning petitioner; and caused other managers to prepare still other memoranda. Only after the January conference was petitioner involved in the repair of a boiler tube that failed. (He welded one end of a replacement piece that may have been improperly sized and had already been welded in place by others.) In contrast to petitioner's involvement in two incidents (only one of which occurred before the filing of the complaint), at least one other welder mechanic working for respondent had made five welds that failed in short order. On April 11, 1989, petitioner was assigned the job of cleaning plugged nozzles on intake screens for units four and five (although ordinarily operators themselves did such routine maintenance.) He first went to the control room for units four and five and asked directions to the intake screens, which are part of the cooling system. Misunderstanding directions, he went to the wrong cooling system intakes, those for units six and seven, instead of those for four and five, and started work without finding a red tag (used to indicate that somebody from operations had "isolated" the equipment) and without placing his own tag on an electrical switch that equipment operators use. He did, however, place tags on valves that had to be opened in order for the system to operate. When Mr. Sherouse heard what had happened he sent Mr. Inacio home from work. Although Mr. Sherouse did not at that time "announce termination or non- termination, pay or no pay" (T.436), petitioner was eventually paid for the time off, which lasted two days during the purported pendency of an investigation, which consisted of "going back and looking at his files." T.437. Without credible contradiction, several people testified that mistaking one piece of equipment for another occurred not infrequently (T.85) at the Crist plant. The evidence showed that much more serious safety lapses had, in general, elicited much milder responses from management. Petitioner was criticized more harshly than non-minority employees for the same or comparable performance. T.31-33, 73-74, 112-120, 130-131, 148-9, 150-4, 186-7, 197, 257- 263. Petitioner's safety record was "better than most." T.424. An Indian who works at the Crist steam plant, Ron Taylor is known as "Indian" or "Chief." T.52. Supervisors referred to Nicholas Peterson as "a damned Greek" (T.111) when he worked at respondent's Crist plant. "From January 1982 until March 1990," just about every supervisor at Crist "refer[red] to some . . . blacks as being niggers." T.135. Objection was sustained to admission of colored Beetle Bailey comic strips crudely altered to depict cartoon characters engaged in oral sex. But Ms. Mitchell testified without objection to other "extremely vulgar cartoons" (T.157) she saw posted on the bulletin boards including one with her name on it. T.159. (When she complained to Mr. Sherouse, he eventually reported back to her that the reference was to a different Debbie.) At Crist Electric "they use the good ole boy theory . . . [i]f you fit into their select group, you're taken in, you're trained . . . you get better selection of jobs. If you're not, you're an outcast." T.136. Petitioner "definitely" got more than his share of "dirty jobs," specifically precipitator work and condenser work. T.183; 85-86, 147-8. Petitioner's "pride was hurt." T.265. He felt humiliated. Unfair criticism affected his morale. T.36. At least one co-worker "could sense . . . that he felt like he was not wanted there." T.37. He considered leaving his employment and even told at least one Gulf Power official that he was doing so. See Respondent's Exhibit No. 3. Discriminatory treatment affected his ability to concentrate, and so his job performance. T.36, 37.
Recommendation It is, accordingly, RECOMMENDED: That the FCHR order respondent to refrain from harassing or otherwise discriminating against petitioner on account of his national origin. That the FCHR award petitioner reasonable attorney's fees and costs. DONE and ENTERED this 14th day of May, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1991.
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on his race.
Findings Of Fact In February 2006, Respondent hired Petitioner, an African-American male, knowing that he had a criminal record. Respondent employed Petitioner as a porter. Respondent employed other African-American and Caucasian people as porters, housekeepers, and janitors. Initially, Respondent paid Petitioner $7.25 per hour. Respondent was impressed with Petitioner's enthusiasm and willingness to perform physically demanding work. Respondent gave Petitioner a reward for always being on time and not being absent. Respondent eventually raised Petitioner's salary to $10.00 per hour or $400 per week. Respondent gave Petitioner the promotion so that he and his wife could qualify for a mortgage. Respondent helped Petitioner pay off his wife's credit card debt for the same reason. After Petitioner and his family moved into their new home, Carol Collett, Respondent's Caucasian General Manager, helped Petitioner furnish the house. Ms. Collett also attended the christening of Petitioner's new baby. Ms. Collett tried to help Petitioner as much as she could because she believed that everyone deserves a second chance. At all times relevant here, Petitioner worked the night shift when there was no supervisor on the premises. Petitioner's position required Ms. Collett's trust because his duties included taking care of the front desk. From approximately June 2007 through November 2007, Petitioner worked an average of 62 hours per week with no overtime compensation. There is no persuasive evidence that the other porters, Caucasian and/or African-American, were paid more than Petitioner or for overtime work. Petitioner never requested a raise, but he did request to work as a janitor. However, Petitioner presented no evidence that a janitor's position was available. More importantly, Petitioner lacked the skills to perform janitorial/maintenance work for Respondent. In time, Ms. Collett noticed a change in Petitioner's behavior. On one occasion, Petitioner's wife informed Ms. Collett that Petitioner had not come home with his pay check. On or about November 3, 2007, Ms. Collett confronted Petitioner about his declining job performance and his suspicious activities involving hotel guests. Petitioner denied that he was using or selling drugs or that he brought hookers to the job site. During the conversation, Petitioner began to cry, stating that he had let Ms. Collett down. Petitioner said that he "would rather to go back jail where life was easier and he would not have the pressure of daily life." Ms. Collett did not have a chance to terminate Petitioner because he left voluntarily. Petitioner came back to the hotel one time to pick up his last pay check. At that time, Ms. Collett confronted Petitioner about some money that was missing from the front office. The office had been locked the night before, but someone had entered it through the ceiling from the adjoining room. Petitioner could not find another job. He is now in prison.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 27th day of May, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2009. COPIES FURNISHED: Kenneth W. Johnson, DC #646344 Gulf Correctional Institution 699 Ike Steele Road Wewahitchka, Florida 32465 Jerome D. Mitchell, Esquire Riggio & Mitchell, P.A. 1326 South Ridgewood Avenue Suite 8 Daytona Beach, Florida 32114 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has been subjected to discrimination within the meaning of the relevant provisions of Chapter 760, Florida Statutes, based upon alleged sexual harassment in the course of her employment and retaliation for her complaints concerning the alleged sexual harassment.
Findings Of Fact The Petitioner was an employee of the Respondent at times pertinent hereto. It is undisputed that that Respondent is an employer within the meaning of Chapter 760, Florida Statutes, and that timeliness and jurisdictional requirements have been met. The Respondent obtained a contract with the United States Navy for a project to be performed at the Naval Air Station in Pensacola, Florida. It became the contractor for the project in approximately December of 1991. The contract, in pertinent part, provided that the Respondent would provide local cartage trucking services for the Navy on and in the environs of the Pensacola Naval Air Station. The project involved loading and transportation of aircraft parts and related supplies and equipment. The Petitioner was hired as a truck driver, delivering aircraft parts for the naval aviation depot (NADEP). During the course of that employment, there came a time when the Petitioner contended that she had been discriminated against because of her gender. The Petitioner contends that in a meeting in December of 1991, she was told by Terry Meyers, an employee of the Respondent and the Petitioner's supervisor, that she "didn't look like a truck driver" and that she had three weeks to look for another job. The meeting in which the statements were allegedly made was a meeting called by the Petitioner's supervisor and the project manager, Mr. Danny Francis, to address certain deficiencies in the Petitioner's performance. Another employee, Mr. Braughton, was also counseled at the meeting concerning his performance as a truck driver. His was the same type of employment position as that occupied by the Petitioner. Mr. Braughton is a white male. The Petitioner maintains that she informed a white male employee, Mike Morris, of the statements allegedly made at the meeting and that he immediately made a telephone call to Mr. Frank Moody, the president of the corporation, to put the president and the corporation on notice of sexual discrimination against the Petitioner. The Petitioner, however, was not present when Mr. Morris made that telephone call to Mr. Moody. Even had he made reference to alleged sexual discrimination in his telephone call to Mr. Moody, Mr. Morris only learned of the purported sexually-discriminatory statements from the Petitioner. The Petitioner maintained that Mr. Morris informed her that he had heard the statements made while standing at the door of the room in which the meeting occurred and that Mr. Morris initiated the telephone call on his own volition to Mr. Moody, based upon hearing those statements. Mr. Morris, however, testified to the contrary, stating that the Petitioner approached him and claimed that she was on probation and was fearful of being laid off from employment and that the Petitioner told him of the alleged sexually-discriminatory statements and that he did not hear them himself. He further testified that the Petitioner instructed him to contact Mr. Moody concerning her fears about her job and the alleged discriminatory statements or she would contact "HRO and EEO and have the contract shut down". Mr. Morris, indeed, called Mr. Moody but never mentioned the statements alleged by the Petitioner to have been made to her by Mr. Meyers during the performance evaluation meeting. In fact, it has been demonstrated by Mr. Morris' testimony, which the Hearing Officer accepts as more credible, that the Petitioner never complained to Mr. Morris about a sexually-discriminatory statement or purported sexual discrimination. Mr. Morris, instead, spoke to Mr. Moody about problems he saw occurring in the operation in Pensacola which he attributed to the project manager, Mr. Danny Francis. He told Mr. Moody that Mr. Francis was allowing employees to leave work early without Mr.. Moody's knowledge and still crediting them with working a full day on such occasions which, in effect, cost the corporation additional salary monies which were unearned. The meeting in which the Petitioner was allegedly confronted with the statement that she did not look like a truck driver and had three weeks to look for another job was called and conducted by Mr. Francis and Mr. Meyers was present. It is undisputed that Mr. Moody terminated Mr. Francis shortly after the telephone conversation with Mr. Morris. He replaced Mr. Francis with the current project manager, John Jacobs. Mr. Moody testified that in a telephone conversation with the Petitioner that she never mentioned to him the alleged sexually-discriminatory statements referenced above. Instead, he was told by both Mr. Morris and the Petitioner that she was concerned that she might lose her job because of the results of the meeting with Mr. Francis, in which he told her that she needed to improve her job performance. In fact, the management of the Respondent perceived a genuine job performance problem involving the Petitioner's conduct of her job duties. This was disclosed in the testimony of both Mr. Jacobs and Mr. Morris, where it was revealed that the Petitioner had had a continuing problem performing her job correctly and that Mr. Morris and the management personnel had worked with her constantly during the course of her employment term with the Respondent, taking more time and personal attention with her than with other employees. This was done in order to repetitively explain her job duties and give her additional chances to improve her work performance, in comparison to the lesser degree of attention and remedial help that they accorded other employees. Prior to February 3, 1993, the Petitioner had been employed with the Respondent for over a year. The testimony of Mr. Jacobs established, however, that even though her probationary period had long since elapsed, he still considered the Petitioner to be, in effect, an employee in training because she was deficient in correctly accomplishing all of the duties of her job. She was slow in performing her job duties, including preventive maintenance inspections of her vehicle and in making the "pickups and deliveries" of freight she was required to transport on her truck in the performance of her duties. The counseling session concerning her work performance occurring in December of 1991, referenced above, was during her probationary period. The white male employee, Mr. Rick Braughton, who was also counseled about deficient work performance on that occasion, was informed that he might not remain employed past his probationary period unless his performance improved. The Respondent had a regular practice and procedure, as part of its truck safety and preventive maintenance program, that employees, who were drivers, were required to give a preventive maintenance and safety inspection of their vehicles each day prior to leaving the company facility or terminal to transport aviation parts or other freight. This was regarded as crucial to proper job performance by the employer because of the concern about safety of the drivers and avoidance of damage, and liability for damage, to the expensive equipment and parts which the Respondent was required by its contract to transport, such as expensive military aircraft parts and related equipment. Among these preventive maintenance inspection duties that driver/employees, such as the Petitioner, were required to perform daily was the requirement to check the air in the truck tires and "top off" the tires with the required air pressure, if necessary. 10 Mr. Jacobs established that there came a time when the Petitioner was noted to have failed on multiple occasions, in the same week, to check and air her tires. Finally, upon this deficiency coming to his attention again on February 3, 1993, Mr. Jacobs suspended the Petitioner for a day without pay, for failing to check and air her tires. The Petitioner claims that she was the only employee singled out for this treatment concerning failure to inspect and air her tires. The testimony of Mr. Jacobs is deemed more credible, having observed the candor and demeanor of all of the witnesses, and it is determined that the employer had a good-faith belief that the Petitioner was deficient in this regard and that the reprimand, consisting of the one-day suspension, was justified. It was not demonstrated that, even if the Petitioner's version of events is true and that other driver/employees were not disciplined for failure to air their tires, that such a circumstance occurred as a result of the employer's knowledge of other driver/employees failing to air their tires and arbitrarily choosing not to discipline them. In fact, it was not demonstrated by preponderant, non-self-serving evidence that other employees had not been disciplined for failure to air their tires. In fact, it was not shown, other than by the self-serving testimony of the Petitioner, that other employees had failed to air their tires when required. The other drivers are mostly male, but one is a female. There was no showing that she was treated any differently than the male drivers. In summary, it has been established that the employer accorded the reprimand to the Petitioner because of a good-faith belief that her performance had been deficient, on repeated occasions, in this respect. It is undisputed that prior to the date the Petitioner received the reprimand, consisting of one-day suspension without pay, that the Petitioner had a generally good attitude about her job insofar as management was able to observe. Even though management had had some concerns about her performance and the slow manner in which she was learning certain aspects of her job, with resulting deficient effects upon her performance, management forbore from using these concerns to reduce her performance rating. She received good evaluations of her performance, insofar as her personnel record is concerned, prior to the time she was suspended for one day on February 3, 1993. After the Petitioner received the suspension she developed a "bad attitude" insofar as her perception of management was concerned. She began to complain frequently about vehicle safety or purported concerns she had about the condition of her vehicle related to safety, particularly the truck brakes. Prior to her suspension, she had never complained in this regard. Management also perceived that she appeared to show down her work performance and management came to believe that it was an intentional delay of her work performance on an ongoing basis. Prior to receiving the reprimand, she was never known to complain to management concerning discrimination on account of her gender. She had never informed the project manager or any other supervisory personnel concerning her purported belief that employee Meyers was "following her". Only after she received the reprimand on February 3, 1993 did she elect to file a sexual discrimination charge with the Commission. Mr. Meyers had some supervisory authority over the Petitioner. His job duties also required that he drive his truck around the Naval Air Station and the immediate vicinity in the normal performance of his duties. This circumstance resulted in his being in close proximity to the Petitioner during the course of their respective work days. He contends that he was not purposely following her for the purpose of harassing her. The overall evidence of record reveals, however, that he, indeed, did follow or stop in her vicinity on a number of occasions to observe her work performance. This was not shown to be out of the ordinary scope of his supervisory duties, especially because of management's concern that the Petitioner was not progressing in the learning and performance of her job duties as well as other employees, including the other female driver. The project manager, Mr. Jacobs, felt that the Petitioner's attitude continued to decline after the February 3, 1993 reprimand. He felt that her attitude and performance reached its lowest level on the date she was observed to be loading "unauthorized equipment" (apparently a portion of a helicopter assembly weighing approximately 4,000 pounds) on the flatbed trailer of her assigned work truck. She was not authorized to load that equipment and apparently, according to her testimony, she did so in order to provide a substantial amount of weight on her trailer for the purpose of having her brakes inspected by the quality assurance official for the project. She went to an unauthorized area for approximately one hour to have this inspection performed without the approval of the Respondent's management. Further, it was not necessary, in order to evaluate the brakes on the vehicle for proper function and safety, to have the weight of the unauthorized load placed on the trailer. If, indeed, the brakes had been defective, it would have been entirely possible that the expensive aircraft parts she had placed on the trailer without authorization could have been substantially damaged, the truck or other property could have been damaged, and, indeed, the Petitioner or other persons could have been injured. Additionally, the Petitioner misrepresented the reason she was in the unauthorized area where she had her brakes inspected by Mr. Lett, the quality assurance officer. In this connection, because she had begun to complain repeatedly about the condition of her brakes and her vehicle (after her reprimand), the project manager, Mr. Jacobs, had had certain other employees come in on several occasions at approximately 6:00 a.m., before normal working hours, and before the Petitioner arrived on the job site, to inspect the Petitioner's truck for safety and appropriate preventive maintenance purposes. These employees were not informed that it was the Petitioner's truck they were inspecting at the time they were told to do the inspections. The Respondent was attempting to ascertain the true condition of the Petitioner's truck and determine whether her reports concerning safety problems, particularly with her brakes, were accurate or not. In fact, on the morning of the day when the unauthorized load was placed on the truck and the Petitioner had Mr. Lett perform the inspection of her brakes at the unauthorized area, one of the Petitioner's co-employees had inspected her brakes before she arrived to take custody of her truck that morning. He had determined that the brakes were operating properly. The Petitioner and Mr. Lett apparently felt that the brakes were deficient when they were inspected early in the afternoon of that day. The record does not reveal whether the brakes were deficient when Mr. Lett inspected them or that some change in the adjustment of the brakes or other problem had arisen since the employee inspected them early that morning and found them to be in proper operating order. Be that as it may, management was of the belief on that day and prior thereto that the Petitioner, although reporting brake deficiency problems, did not truly experience such brake deficiency problems with her truck. This belief was based upon management perceptions concerning the Petitioner's attitude after her reprimand and upon the independent, confidential inspections management had other employees do on the Petitioner's truck. Accordingly, whether its belief was accurate or not, management was of the good-faith belief, on the date she was observed loading unauthorized, expensive equipment onto the flatbed truck, in an unnecessary fashion, for the purpose of having her brakes inspected, while being absent from her work assignment for one hour in an unauthorized area, that it had performance-related reasons to terminate her, which it did. This decision was made against the background of the increasingly poor attitude displayed by the Petitioner since her reprimand and because of the continuing problems management had experienced with the Petitioner's job performance since her initial employment one and one- half years previously. Although the Petitioner testified that as early as December of 1991, the management of the Respondent had spoken with her regarding her work performance and she interpreted that meeting as an attack on her gender and not upon her poor work habits, this contention was not verified by any other testimony. Having observed the candor and demeanor of the Petitioner versus that of the other witnesses, it is determined that her testimony is less creditable because of its self-serving nature. Although the Petitioner testified that a comment was made that "she did not look like a truck driver" and that she had three weeks to find another job, this was not verified through testimony of any other witness. To the extent that any other witnesses testified concerning these statements being made in a belief that discrimination had been exhibited toward the Petitioner, the evidence reveals that this information only came to these people through self-serving reports by the Petitioner herself. Meyers directly contradicts that these statements were made to the Petitioner and he states that he never heard anyone tell her that she had three weeks to look for a job or that she "didn't look like a truck driver". The petitioner provided no testimony or evidence which could show how these alleged statements constituted "sexual discrimination" or how the statements related to her sexual discrimination claim. It was not shown that any member of management, with employment-decision authority, made or condoned such statements even if it had been established that they evidenced gender-based discrimination, which was not done. The Petitioner did not complain of sexual discrimination per se until after she had received a reprimand from management. Likewise, she began to repetitively claim that her equipment was unsafe after the reprimand. The Petitioner may have been overly sensitive to management's concern for safety inspections of her truck because of being reprimanded for safety violations and was afraid she would "get into trouble" with management if she did not constantly report feared safety problems. The fact was established, however, that management had a genuine, good-faith belief that it was being harassed by these repetitive, unsafe equipment reports by the Petitioner, given the then- prevailing atmosphere surrounding the Petitioner's employment, characterized by her less than satisfactory attitude, as perceived by management, and the fact that management's confidential inspections of her equipment did not reveal any safety problems of the type reported by the Petitioner. Finally, it is especially noteworthy that during this period of time when the Petitioner made the claim of sexual discrimination and retaliation based upon her claim, that the Respondent had in its employ, in an identical job position, a female truck driver who had had no unsatisfactory experience by management with her performance, was not subjected to investigative or disciplinary measures, and who is still satisfactorily employed with the Respondent.
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 RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the petition herein in its entirety. DONE AND ENTERED this 7th day of March, 1995, in Tallahassee, Florida. P. MICHAEL RUFF 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 7th day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1459 Petitioner's Proposed Findings of Fact The Petitioner has submitted proposed findings of fact which are not in separately-numbered, discrete paragraphs. The paragraphs contain some proposed findings of fact which the Hearing Officer accepts and some which are rejected as being not supported by preponderant evidence and subordinate to the Hearing Officer's findings of fact on the same subject matter. The proposed findings of fact submitted by the Petitioner are intertwined with argument and discussions of the weight of the evidence or testimony. Because the paragraphs in the proposed findings of fact contain both findings of fact which the Hearing Officer accepts and which the Hearing Officer rejects, discrete, specific rulings thereon are not practicable. It suffices to say that all of the proposed findings of fact submitted by the Petitioner are subordinate to, but have been considered and addressed in the findings of fact portion of this Recommended Order and have been in that fashion completely ruled upon. Respondent's Proposed Findings of Fact The same considerations are true of the Respondent's proposed findings of fact. Some portions of the findings of fact proposed by the Respondent consist of merely discussions and argument concerning the weight of the evidence and some are acceptable to the Hearing Officer based upon the Hearing Officer's determination of the weight and credibility of the testimony and evidence. Some are rejected as being unnecessary or subordinate to the Hearing Officer's findings of fact made on the same subject matter. Here, again, this Recommended Order completely and adequately addresses the proposed findings of fact submitted by the Respondent, and the Respondent's proposed findings of fact are accepted to the extent they are not inconsistent with those made by the Hearing Officer and to the extent they are inconsistent therewith, they are rejected as being not supported by preponderant evidence or as being immaterial, unnecessary, or subordinate to the Hearing Officer's findings of fact. COPIES FURNISHED: Barry W. McCleary, Esquire 3 West Garden Street Suite 380 Pensacola, FL 32501 Donna Gardner, Esquire 213 South Alcaniz Street Pensacola, FL 32501 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
The Issue Whether Respondent engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact Graham is a black male. He filed an employment application with Pier 1, a "chain retailer," on August 23, 1999. The application indicated that he applied for a position as a sales associate but in fact he was to be employed as a stockroom assistant. His employment application included a block denominated, "Work Availability." Graham completed this block indicating that he was available to work between 6:00 a.m., and 12 p.m., Monday through Saturday. The employment application stated in the block denominated, "Work Availability," the following: "Although an effort will be made to accommodate individual work schedule preferences and availability, work schedules such as start time, number of daily or weekly hours and assigned work days are subject to change at any time. Availability to work on weekends is required. Number of hours may vary based on business necessity and could change an individual's employment status." Graham was hired on August 30, 1999, as a full-time employee. He worked primarily in the back stockroom. A meeting of store personnel was scheduled at the store on Sunday, November 17, 1999, at 6:30 p.m. Graham was aware of the meeting. He was 20 minutes late because he was participating in a church service at Macedonia Primitive Baptist Church. As a result of his tardiness he was presented with an Associate Corrective Action Documentation, which is a confidential Pier 1 form. The form noted that this was his first "tardy." The form as completed took no action such as suspension or loss of pay. It merely informed him that further instances of tardiness could lead to disciplinary action. Graham testified that he was treated differently from a white woman employee, one Christy Musselwhite, who did not attend the meeting, because Musselwhite did not receive a counseling form. However, Graham's personal knowledge of Musselwhite's situation was insufficient to demonstrate that Musselwhite was treated differently from Graham because of race or gender. Graham felt humiliated because he received the Associate Corrective Action Documentation form. Graham resigned from Pier 1 effective November 12, 1999, so that he could begin employment with the Florida Department of Children and Family Services at a rate of pay in excess of that which he received at Pier 1.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission Human Relations enter a final dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2001. COPIES FURNISHED: Russell D. Cawyer, Esquire Kelly, Hart & Hallman 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Kenneth Terrell Graham 2811 Herring Drive Tallahassee, Florida 32303-2511 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ronni Morrison Pier 1 Imports Post Office Box 961020 Fort Worth, Texas 76161-0020
