The Issue Whether the suspension of the Appellant Chaky was based on just cause.
Findings Of Fact Judith Chaky, Appellant, is employed by the Department of Education, Division of Universities, University of Florida, as a Career Service employee agricultural technician in the Poultry Science Department of the institute's Division of Food and Agriculture Sciences. On or about March 21, 1977, when asked to make arrangements to make good a check passed by the Appellant at the Reitz Union, which had been returned for insufficient funds, Appellant used profanity, became abusive and spoke in a loud voice to Mrs. Cynde Folks, am employee at the Reitz Union. Subsequent to the March incident and upon inquiry as to her plans with respect to paying the service charge on the same returned check, Appellant made abusive comments to Phil Chaney, a black employee. In May of 1977, in response to a request from David M. Bickford of the Office of Internal Control to pay her indebtedness to the State, Appellant went to his office with the Five Dollars ($5.00) she owed as a service charge in pennies. She used abusive and profane language to Mr. Bickford and threw the pennies across his desk. In response to her Employee Performance Evaluation dated November 10, 1976, a "satisfactory" evaluation, she stated: "I agree with the rating on attitude and cooperation because I tend to object to poor management techniques and would rather be rude than quiet." The evaluation as to her attitude and cooperation was "occasionally uncooperative." She had previously been counseled and received a letter from the employer in regard to excessive tardiness. In July, 1977, Appellant received a written reprimand for having violated the rules by bringing a dog to work after having been requested not to do so. The evidence submitted shows Appellant fails at times to follow rules governing the conduct of employees. She admitted at the hearing that she used malicious, profane and abusive language and that she went to some trouble to gather the pennies and then threw them on the desk of Mr. Bickford. She stated she paid the service charge with pennies as an intentional protest act. Her language was vulgar.
Recommendation Affirm the action taken by the Appellant, University of Florida. DONE and ORDERED this 23rd day of November, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1977. COPIES FURNISHED: Mrs. Dorothy Roberts Appeals Coordinator Department of Administration 530 Carlton Building Tallahassee, Florida 32304 Daniel T. O'Connell, Esquire 33 North Main Street Gainesville, Florida 32601 Ashmun Brown, Esquire 207 Tigert Hall University of Florida Gainesville, Florida 32611
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner, a black male, was hired by Respondent on February 11, 1985. Petitioner was employed as a wet mill laborer at Respondent's Florida Plant located in Bradford County, Florida. Petitioner's primary duties consisted of washing spirals and performing general housekeeping. Petitioner, like all newly hired employees, was hired subject to a ninety (90) day probationary period. Petitioner was provided an orientation period, given training, and was informed verbally during his employment about the importance of good job performance during his probation period. Petitioner was terminated by Respondent on April 1, 1985 during Petitioner's probationary period. Petitioner reported to four (4) first-line supervisors during his short period of employment which was the result of Petitioner being primarily on the day shift while the supervisors worked on a rotating shift basis. Petitioner's supervisors and the dates under each supervisor are as follows: C. A. Baldree during the weeks ending February 17, 1985 and March 17, 1985; J. W. Sherrill during the weeks ending February 24, 1985 and March 31, 1985; D. W. Baldree during the weeks ending March 3, 1985 and March 24, 1985 and; W. J. Frick during the week ending March 10, 1985. Although Petitioner's testimony conflicted with all three (3) first- line supervisors who testified concerning the fact surrounding the incidents which eventually gave rise to Petitioner's termination, the more credible evidence shows: During the week ending March 17, 1985, Supervisor C. A. Baldree instructed Petitioner and another employee to clean handrails in a specific area where a management visitation group would be observing. Petitioner proceeded to clean handrails in an area other than the one specified by the supervisor and when the supervisor attempted to advise Petitioner of his failure to follow instructions, Petitioner became abusive toward the supervisor and argued that he was following instructions. The Area Supervisor Gilberto Valazquez observed the incident and tried to resolve the matter with a meeting between Petitioner and Supervisor C. A. Baldree but Petitioner declined, commenting that he was afraid of losing his job. During the week ending March 24, 1985, Supervisor D. W. Baldree assigned Petitioner and another employee to wash some spirals in a specific area where visiting management would be observing. Again, Petitioner took it upon himself to clean spirals in a different area and when the supervisor attempted to advise Petitioner of his failure to follow instructions, Petitioner responded that he felt that where he had started was as good as any place to start, notwithstanding that Petitioner was aware of the reason for starting where the supervisor had instructed him to start cleaning. Also, during the week ending March 24, 1985, Supervisor D. W. Baldree repeatedly instructed Petitioner concerning the replacement of hoses and cutters that may be disconnected during the washing of the spirals. However, on several occasions Petitioner failed to replace the hoses and cutters that were disconnected during the washing process as instructed. During the week ending March 31, 1985, Supervisor J. W. Sherrill instructed Petitioner to clean out a tail box that was plugged with sand and adversely affecting production. When the supervisor returned in approximately 20-30 minutes he found the tail box still plugged. When the supervisor attempted to inform Petitioner of his failure to unplug the tail box, Petitioner became argumentative and pointed out that he had unplugged the tail box and that it was only water from a clear water hose that was dripping, notwithstanding the fact that a large amount of sand had accumulated and that muddy water rather than clean water was running from the tail box. At the end of the work week ending March 31, 1985, Supervisor Valazquez met with Petitioner and Supervisor Sherrill concerning an alleged promise made by Supervisor Sherrill to allow Petitioner to leave work early which Petitioner felt Supervisor Sherrill had reneged on, notwithstanding that supervisor had explained to Petitioner why he could not leave early. During the course of the discussion, Petitioner became very belligerent towards Supervisor Sherrill which prompted Supervisor Valazquez to review Petitioner's overall employment record to determine whether Petitioner should continue in the employment of Respondent. Supervisor Valazquez, in investigating Petitioner's overall performance, discussed Petitioner's employment record with all of Petitioner's first-line supervisors and also asked each of them for written comments. Based upon his own observations of Petitioner's job performance and his attitude toward supervision, the supervisors' comments, and the fact that as a short service probationary employee Petitioner was making no effort to improve his job performance or his attitude toward supervision, Supervisor Valazquez felt that Petitioner may not be salvageable as an employee and questioned Petitioner's continued employment with Respondent. Supervisor Valazquez reviewed Petitioner's performance record with his superiors and the site's Employee Relations Supervisor L. H. Wood, who was the site's Affirmative Action Officer. Wood found no evidence of discriminatory motivation. Valazquez's superiors concurred in the discharge recommendation. On April 1, 1985, Valazquez met with Petitioner to discuss the potential discharge action but approached the meeting with the view that should Petitioner show a change in his attitude in regard to his job performance and in accepting supervision, then Valazquez would change his mind and give the Petitioner another chance. When Valazquez attempted to review Petitioner's poor job performance and attitude problems with Petitioner, Petitioner again became very defensive and argumentative. As a result of Petitioner's attitude in this meeting, Valazquez proceeded with the discharge action that had been approved by management. Although the record reflects that Petitioner did not receive any written or verbal warnings from any of his shift- supervisors that his performance was so unsatisfactory that if improvement was not made he would be terminated, Petitioner was made aware, by his shift-supervisors and area supervisor that poor job performance was a basis for termination, particularly during his probationary period. There was at least one (1) occasion, the incident which occurred during the week ending February 17, 1985 with C. A. Baldree, where Petitioner commented about the possibility of losing his job and Valazquez advised him that he would not lose his job so long as he performed properly and showed respect for his supervisors. On three (3) other occasions, his supervisors made the Petitioner aware of his poor job performance and poor attitude. Petitioner was not advised of any written memorandums concerning his job performance or possible termination had been prepared until April 1, 1985, the date Petitioner had a conference with Valazquez and, due to his defensive and argumentative attitude, was not allowed further opportunity to improve his job performance or his attitude and was terminated. No formal employee/supervisor conferences were held with Petitioner until April 1, 985, the date Petitioner was terminated. On the same date that Petitioner was hired, Robert McGee, a white male, was hired by Respondent as a laborer. McGee was assigned to a field laborer position, reporting almost exclusively to one (1) supervisor, Doris Cole. Field laborers work in an area separate and apart from the wet mill and report to different first-line supervisors than the wet mill laborers. On April 25, 1985, within McGee's probationary period, McGee received a formal employee/supervisor conference concerning his unsatisfactory job performance and his damaging of company equipment, warned that definite improvement in his job performance was expected or probation or possibly termination could be expected. On July 3, 1985, McGee received another employee/supervisor conference which involved McGee, Doris Cole and Valazquez and McGee was informed that his performance had improved slightly but significant improvement was expected in the next two (2) weeks or he could expect termination. McGee was placed on probation at this time. On August 2, 1985, another formal employee/supervisor conference was held with McGee wherein it was noted that McGee had demonstrated that- he could perform at a satisfactory level but that continued improvement was expected and that McGee would remain on probation until October 3, 1985. The final employee/supervisor conference record dated October 4, 1985 concluded that McGee could not consistently perform satisfactorily, therefore termination was recommended. McGee did not attend this conference but resigned by telephone on that date in lieu of being terminated. McGee reviewed each of the employee/supervisor conference reports with the exception of the one on October 4, 1985 and each of the reports were included in his personnel file, including the one for October 4, 1985. McGee was a marginal employee who tried to perform his job properly and was receptive to constructive criticism; however, he was unable to improve his performance to a point that was acceptable to Respondent's management. McGee worked on the wet mill for brief periods without incident. McGee had no history of refusing to follow instructions of his supervisor or of being argumentative with the supervisors. The Respondent had no stated policy that required written warnings of poor job performance to employees by their respective supervisors. It was the general policy of the -shift supervisors that during the probationary period, especially during the early part of the probationary period, warnings of poor job performance were given verbally to the employee and that a formal employee/supervisor conference was reserved for more severe matters such as violation of safety rules. However, the manner in which a supervisor handled a particular warning of poor job performance during an employee's probationary period was left to the discretion of the individual supervisor. The record reflects only two (2) other incidents where an employee/supervisor conference was held with an employee during the employee's initial probationary period: Kathy D. Sanders, a black female, on June 5, 1985 and; Bernard Brown, a black male, on March 27, 1984. C. A. Baldree, D. W. Baldree and J. W. Sherrill, three (3) of Petitioner's shift supervisors, were all white as were the supervisors of McGee. Respondent has, and had during Petitioner's employment, an aggressive Affirmative Action program which applied to all aspects of the employment environment. Respondent has in the past received national and local recognition for its Affirmative Action efforts. Respondent's employment of minorities has exceeded the availability of minorities in the labor supply area. Although the local availability of minorities was fifteen percent (15 percent), twenty to twenty-one percent (20-21 percent) of employees at the site were minorities. Of the forty three (43) individuals hired, closely related in time to Petitioner's dates of employment, ten (10) or twenty-three percent (23 percent) were black. Although at the time of Petitioner's initial employment, Respondent had some misgivings about Petitioner's failure to disclose certain information on his employment application, Respondent decided to hire Petitioner anyway because of its Affirmative Action efforts and Petitioner's tests results. The clear weight of the evidence shows that Respondent's reasons for discharging Petitioner was his poor job performance and his argumentative and abusive behavior towards the supervisors when instructed to correct a situation where Petitioner had failed to follow instructions, either intentionally or because he had misunderstood the instructions. The clear weight of the evidence establishes that Petitioner was treated in a dissimilar manner from the white employee, but the disparity of treatment resulted from a dissimilar attitude toward job performance and supervision rather than racial motivation. Area Supervisor Valazquez, the supervisor primarily involved in the decision to discharge Petitioner, is Hispanic.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that the Petitioner, Milton Baker, was not discharged due to his race in violation of Section 760.10, Florida Statutes (1985), and that the Petition for Relief be dismissed. Respectfully submitted and entered this 16th day of March, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3623 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1-3. Adopted in Finding of Fact 1. The first sentence adopted in Finding of Fact 4. The second sentence rejected as immaterial and irrelevant. Adopted in Finding of Fact 3. 6.(a-c) Adopted in Finding of Fact 5 (a-d) but clarified. Adopted in Finding of Fact 10 but clarified. Adopted in Findings of Fact 6 through 9 and 27. Adopted in Finding of Fact 12. Rejected as not supported by substantial competent in the record. Adopted in Finding of Fact 12. Adopted in Findings of Fact 2, 13, 14 and 17. Adopted in Findings of Fact 15 and 18. Adopted in Findings of Fact 16 and 18. Adopted in Finding of Fact 17. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 22. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Rejected as immaterial and irrelevant. Respondent had no Finding of Fact 3. Adopted in Finding of Fact 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5(a) but modified. Adopted in Finding of Fact 5(b) but modified. Adopted in Finding of Fact 5(c) but modified. Adopted in Finding of Fact 5(d) but modified. Adopted in Finding of Fact 6 but modified. Adopted in Finding of Fact 7 but modified. Adopted in Finding of Fact 8 but modified. Adopted in Finding of Fact 9. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Facts 17 and 19. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 20 but clarified. Adopted in Findings of Fact 10, 11 and 12. Adopted in Findings of Fact 14, 15 and 16. Adopted in Finding of Fact 21. Adopted in Finding of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 25 but clarified. COPIES FURNISHED: John F. MacLennan, Esquire Kattman, Eshelman & MacLennan 1920 San Marco Boulevard Jacksonville, Florida 32207 Jerry H. Brenner, Esquire Legal Department E. I. du Point de Nemours and Company 100 West 10th Street Wilmington, DE 19898 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on March 26, 2000.
Findings Of Fact Petitioner first interviewed for the position of Assistant Manager Trainee with Respondent on March 17, 1999. Her first interview was with Traci Dickerson, Assistant Manager for Operations. Ms. Dickerson was impressed with Petitioner's presentation and recommended that she be interviewed a second time by Mitchell Day, District Manager. After the interview, Petitioner was offered a position as Assistant Manager Trainee to begin work at Wal-Mart Super Center on Apalachee Parkway in Tallahassee, Florida, on May 10, 1999. The Assistant Manager training program is a seventeen- week program conducted at selected Wal-Mart stores throughout the country. The Wal-Mart store in question in the present case is one of just a few stores in Florida that were utilized for this training program. Ms. Dickerson was the person responsible for administering the program in the store in question during the relevant time frame. Another Assistant Manager Trainee, Sean Mitchell, began the training program on the same date as Petitioner. Mark Whitmore, another Assistant Manager Trainee, began the training program sometime prior to Petitioner. Mr. Whitmore was a long- time employee of Wal-Mart who transferred from management in the home office into the retail sales side of the business. Because of his prior experience with Wal-Mart, his training program was handled differently from the training administered to Petitioner in that it was accelerated. Mr. Mitchell's training was the same type as Petitioner's although each trainee may have been given various assignments on different days and in different sequence. Sometime during the training process, certain members of management with Respondent became concerned about Petitioner's attitude toward the training program, her willingness to take constructive criticism, and her communication/people skills. Sometime around the second week of Petitioner's employment with Respondent, she was observed by Assistant Manager Wendy Rhodes, to be engaged in a conversation with Sean Mitchell during working hours. It appeared to Ms. Rhodes that the two individuals were socializing rather than working. Mr. Rhodes approached the two and instructed them to begin the workday. Later, Ms. Dickerson, in her role as the Program Supervisor, provided constructive criticism to Petitioner that she should concentrate on her work and not socialize during work hours. On or about May 29, 1999, while Petitioner was working in lay-away, she was asked to come to the front of the store to assist Brenda Meyers, a front-end manager, because of an increase of customers at the various cash registers. As an Assistant Manager Trainee, Petitioner was expected to "pitch in" and assist throughout the store where needed. Petitioner responded to Ms. Meyers' request by indicating that she was intending to go on her break and refused to come and assist at that time. Because of Petitioner's refusal, George Wilkins (a co-manager and directly below the store manager in the chain of command of the store) took a turn working at a cash register. Every manager at Wal-Mart is expected to be a team player and assist when the need arises. Mr. Wilkins arranged to meet with Petitioner to discuss the incident and general concerns he had as result of feedback he received from other members of management about her unwillingness to do certain tasks, and to give counseling advice on how to conduct herself as an Assistant Manager. Petitioner immediately became defensive and asserted that because she had a bachelor's degree, she did not have to "take this." Mr. Wilkins attempted to explain to Petitioner that her degree was important, but her attitude toward her work and her willingness to do her fair share were more important. Petitioner was not receptive to Mr. Wilkins' efforts to provide constructive criticism. Sometime in late-July 1999, Petitioner traveled with Mike Odum, an Assistant Manager and Lisa Green, who at the time was Personnel Manager at the store in question, to Georgia to attend a new store opening. On the return trip, Petitioner became upset because she was concerned that the group would not return to Tallahassee in time for her to pick up her child from daycare. She confronted Mr. Odum, very upset about the possibility of returning to Tallahassee after 5:00 p.m. However, he returned to Tallahassee prior to the time that Petitioner needed to be back in Tallahassee. On or about August 20, 1999, Petitioner was assigned to the 2:00 p.m. to 11:00 p.m. shift to assist the Customer Service Manager (CSM) in closing the store. The function of the "closing CSM" is important, and Petitioner was needed to assist in that regard. Because the store manager and other members of management were out of town at a meeting, Mr. Odum was in charge of the store. Instead of coming in at 2:00 p.m., Petitioner arrived at the store at 9:00 a.m. She clocked in on the time clock and proceeded to the break room where she warmed her meal and sat down to eat. After she completed her meal, she proceeded to the front of the store to assist the Customer Service Manager. Not long after Petitioner arrived at the store and assumed her position, she was called to the Manager's office to discuss her work schedule for the day. At that time, Mike Odum and Traci Dickerson (Ms. Dickerson participated by phone) reminded Petitioner that her scheduled shift was from 2:00 p.m. to 11:00 p.m. The importance of this was that if she had worked too many hours without prior approval, she would have been in an unauthorized overtime situation. Additionally, it is important to have a "closing CSM" at the appropriate time. Petitioner left work to return in the afternoon as originally scheduled. Petitioner returned to work in the afternoon. She reported to the front temporarily but became frustrated with one of the assistant managers. Feeling that what she was doing was a waste of time, she proceeded to the training room where she reviewed her training materials. She was paged to the front of the store on numerous occasions but did not respond to the calls. Mike Odum went to the training room and told Petitioner to come to the front of the store to assist. Petitioner refused and stated that she would remain in the back of the store and continue reading her manual. When Petitioner refused, Mr. Odum instructed Petitioner to clock out and to come back when the District Manager would be available for a conference. Petitioner left the store shortly thereafter. Petitioner arranged to meet with Mitchell Day, the District Manager who oversees nine stores and approximately 4,800 employees, on August 25, 1999. Mr. Day understood the meeting to be for the purpose of resolving concerns about the issues involving Petitioner and giving Petitioner an opportunity to express her concerns. Management saw this meeting as an opportunity to "get everything out on the table" so that Petitioner could continue with her training program. Accordingly, Mr. Day scheduled the meeting with Todd Peterson, Store Manager; Mike Odum; George Wilkins and Traci Dickerson. All of these individuals expressed concern about Petitioner's performance, her attitude toward the training program, her willingness to accept constructive criticism, as well as their willingness to assist her in completing the training program. There is no evidence that Mr. Day or any other member of management intended that the meeting be conducted for the purpose of terminating Petitioner. Petitioner entered the room and walked past other members of management and approached Mr. Day in a confrontational manner. She was upset at the presence of the various members of management. Despite being asked to be seated, she refused to sit down and begin the meeting. Every participant in the meeting who testified at hearing gave consistent testimony that she raised her voice to an inappropriate level, was hostile and explosive. All recalled her using profanity, with the exception of Mr. Day who did not specifically recall her use of profanity. Every person in the room was stunned at her demeanor, in particular that it was addressed to an upper level management person. Based upon the unprofessionalism of this outburst, Mr. Day advised her that her employment was terminated. The formal reason given for her termination was insubordination. There is nothing in the evidence presented at final hearing to indicate that any of the actions taken by Respondent or members of Respondent's management were based on Petitioner's gender or on any other form of discrimination.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission for Human Relations enter a final order denying and dismissing the Petition for Relief. DONE AND ENTERED this 27th day of April, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 27th day of April, 2001.
The Issue The issue for determination is whether Petitioner was subjected to discrimination in the work environment by Respondent due to Petitioner's gender in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner was employed as a payload operator by Respondent, a fertilizer manufacturer, at the time of her employment termination in August of 1996. Petitioner’s job duties included scooping fertilizer onto the pay loader, or front-end loader, and dropping the fertilizer into a “hopper” for subsequent loading into rail cars. Petitioner was expected, along with other payload operators, to perform other duties, including the cleaning of work areas when she ceased her loading function. During Petitioner's employment, a union contract existed between Respondent and the International Chemical Workers Union of which Petitioner was a member. The union contract governed overtime assignments, pay structure, shift structure, disciplinary/termination procedures and lay-offs, among other things. Respondent paid Petitioner and gave her breaks, contrary to her allegations, in the same manner as other employees. Governed by the union contract during the busy 1995-96 period, Respondent assigned work to employees on many different shifts. The plant operated 24 hours a day, seven days a week. Overtime requirements were based on business necessity. All employees worked the same number of hours regardless of the shift to which they were assigned. Petitioner never formally complained to anyone regarding displeasure with shift assignments. Neither salary nor number of work hours were affected by Petitioner’s assignments to different work shifts. Petitioner and other employees worked the same number of hours. Petitioner took breaks just like other employees. Changes from shift to shift experienced by Petitioner had nothing to do with her gender. The union contract governed how Respondent assigned overtime to its employees. The contract established a procedure that distributed overtime hours evenly and fairly among all of Respondent's employees. Those procedures were adhered to by Respondent and all employees were given overtime opportunities in an equal manner without regard to gender. On one occasion, Petitioner complained about her overtime assignment. She felt that she should have been called into work on a day when another operator (male) was called to come in and work. Respondent had attempted to contact Petitioner at contact numbers provided by Petitioner, without success. Safety equipment was distributed to all employees. Petitioner signed a check list indicating that she had received or knew how to request safety equipment. A pair of boots requested by Petitioner on one occasion had not yet arrived, but did arrive before the conclusion of the business day. The delay in delivery of Petitioner's requested boots to her was not related to her gender. Petitioner complained that adverse comments were made to her on the job by male workers. The alleged comments ranged from women should only do "clean up work" to "if you don't smoke or drink, we don't need you in this department." All of the alleged comments were roundly denied by Petitioner's co-workers at the final hearing. The credibility and candor of the testifying co-workers establishes that the adverse comments were not made. One incident in which Petitioner complained about her work assignment resulted in the general foreman's immediately contacting Respondent's human resource department. A meeting was then held with Petitioner to address the situation. The foreman felt confident that Petitioner would voice any additional concerns if the situation did not change. Petitioner never voiced further concerns to the foreman. Petitioner alleged that she was denied the right of free speech at a meeting attended by her, Respondent representatives, and union representatives. As established at the final hearing, she was told by the union representative to remain quiet and let him do the talking if Respondent representatives made Petitioner angry. However, the union representative did not instruct Petitioner to otherwise remain silent. Under the union contract, Respondent could terminate employees who received three reprimands within a 12-month period. Petitioner was aware of this procedure. Petitioner had numerous instances of work-related misconduct and received more than three reprimands in a 12-month period. Counseled on June 4, 1995, for damaging a payloader, Petitioner received a reprimand on July 18, 1995, for again damaging a payloader. Petitioner was counseled again on August 14, 1995, for failure to communicate with the shipping operator. On October 16, 1995, Petitioner received a second reprimand for poor work performance for mixing discarded product with good product, a violation of Respondent policy. Petitioner received her third reprimand on February 28, 1996, for loading hot fertilizer, a violation of Respondent's policy. The difficulty of loading fertilizer before it cooled was the later removal of the hot product which would harden upon cooling into a concrete-like substance. Petitioner was given a second chance and not fired upon receiving her third reprimand in a 12-month period. Management hoped that Petitioner would seek to improve her work performance. Petitioner refused to help clean the plant on July 10, 1996, and was counseled by her supervisor. On July 25, 1996, she received a verbal warning for failure to report an accident. In August of 1996, Petitioner received her final reprimand for failure to attend a company meeting at the proper time and for again loading hot product. Petitioner's employment was terminated. The various reprimands imposed on Petitioner were from different supervisors at different times. None of the reprimands were based on Petitioner's gender. After a complete review of Petitioner's case, the union representative determined that Respondent had properly terminated her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 12th day of October, 2001, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 2001. COPIES FURNISHED: Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Artie Johnson 2672 Northwest 6th Drive Jennings, Florida 32053 Mary L. Wakeman, Esquire McConnaughhay, Duffy, Coonrod, Pope, and Weaver, P.A. Post Office Drawer 229 Tallahassee, Florida 32302-0229 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether the Respondent engaged in an unlawful employment practice contrary to Chapter 760, Florida Statutes, by discharging the Petitioner?
Findings Of Fact The Petitioner, Loreal Bailey, is an African-American woman who was employed as a cashier by the Respondent. One of the tasks that the cashiers were required to do was make a count of their registers at the end of their shift and "drop" the receipts, the cash, and their count of their cash drawer into a safe. The cashier did not have access to the safe. Cashiers were not supposed to let any other employee handle their deposit. On or about January 7, 2003, the Petitioner was on duty, and, at the close of her shift, she was being assisted in closing out her tour by another employee, who helped her count her money. The other employee, Hattie Killingsworth, an African-American woman, dropped Petitioner's package containing the receipts, the cash, and her count of the cash drawer into the safe. A subsequent accounting of the deposits revealed that $400 was missing from the Petitioner's "drop." The Respondent discharged the Petitioner shortly after this incident on January 13, 2003. Killingsworth was also terminated at this time. Both women were terminated for failing to follow company procedures that prohibited an employee from handling another employee's money. The matter was reported to the local sheriff's office; however, no charges were brought. Testimony by the Respondent's managers revealed that the money was most probably taken by a management employee of the company who was video-taped shutting off the security cameras prior to a period when money went missing. Money was missing on more than one occasion. It was surmised by management that this employee had found a way to access the safe. When this employee was terminated, the losses stopped. The general manager, Richard Eschenbacher, testified that the policy of not letting an employee touch another employee's money was not only to protect the employees, but to permit employees to testify about chain of custody of moneys if there were problems. The actions of Killingsworth and Bailey prevented Bailey from being able to testify that she had counted and deposited the money without interference from anyone else. Such testimony is helpful in prosecutions when a thief is caught, and a conviction without such chain of custody evidence is difficult to obtain. The Petitioner presented no evidence showing that the grounds presented by the Respondent for her discharge were pretextual.
Recommendation Based upon the foregoing findings of law and conclusions of law, it is recommended that the Florida Commission on Human Relations enter its final order dismissing the Petitioner's complaint. DONE AND ENTERED this 13th day of July, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 2004. COPIES FURNISHED: Loreal Bailey 621 Smith Road Monticello, Florida 32344 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lorraine Maass Hultman, Esquire Kunkel, Miller & Hament Orange Professional Centre 235 North Orange Avenue, Suite 200 Sarasota, Florida 34236 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether respondent is guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Petitioner, Constanza D. Scott, is a black female. She began employment with respondent, Wal-Mart Stores, Inc., d/b/a Sam's Club (Wal-Mart), on July 29, 1988, in its soft lines (men and women's apparel) department. The store is located in Tallahassee, Florida. She was a full-time employee and worked forty hours per week. Besides working full-time for Wal-Mart, beginning in August 1991 she worked "at least" twenty hours per week for Marriott Food Services at Florida State University, and she attended classes at an undisclosed Tallahassee college or university on Tuesdays and Thursdays from 1:30 p. m. until around 4:30 p. m. Petitioner's regular hours at Wal-Mart were from 5:00 a. m. to 1:00 p. m., Monday through Friday. From at least May 1991 until October 1991, her supervisor was Scott Cosby, an assistant store manager for the merchandising department. Cosby was replaced in October 1991 by Tim Strahan, Jr., who supervised petitioner until her termination on December 21, 1991. Wal-Mart refers to its procedure for handling disciplinary problems as performance coaching, and it involves a series of progressively sterner disciplinary measures taken against an employee. On the first occasion disciplinary action is warranted, the employee is given what is called verbal counseling. This type of action is not documented in writing and simply involves counseling by an employee's supervisor. If the problem persists, the employee is given a verbal warning, which is reduced to writing and placed in the personnel file of the employee. If a verbal warning does not result in the correction of the deficiencies, a written warning is issued, and the employee is required to prepare a responsive plan of action stating how the employee intends to correct the cited deficiencies. As a last resort, the employee is given a day off with pay, which is called a decision-making day, so that the employee can reflect on his or her performance and prepare a plan of action detailing how the deficiencies will be corrected. Thereafter, an employee is automatically terminated if further disciplinary action is required. On May 1, 1991, petitioner's supervisor (Scott Cosby) gave her a verbal counseling for "attendance problems." In response to this counseling, petitioner stated that she was very tired from school but would improve her attendance. On May 6, 1991, she was again cited for an "ongoing attendance problem." This is memorialized by a written verbal warning contained in her personnel file. On September 21, 1991, a second verbal warning was given by Cosby, this time for petitioner working overtime when Cosby apparently felt she could complete her work within the normal forty-hour week. Petitioner explained, however, that all overtime had been approved by the store manager. On October 7, 1991, Cosby again gave her a verbal warning for "not keeping up with 'basics of the business' consistently." In her action plan filed in response to this criticism, petitioner stated she would "do a better job of signing, cleaning, displaying, zoning and shrink wrapping," all specific duties of her job. During the week of November 11-15, 1991, petitioner was late to work every day. On one of those days, November 14, 1991, she telephoned an assistant store manager (Don Graves) and reported that her car would not start. She eventually came to work around 4:00 p. m. that afternoon. For her lack of punctuality, a written reminder was issued, which is the last step before decision-making day. On November 27, 1991, petitioner telephoned her team leader, Jennifer Christie, at 5:40 a. m. to say that her alarm clock had failed to go off and she would be late. Deciding not to accept any more excuses regarding her attendance and punctuality, Strahan, her supervisor since October, gave petitioner the day off with pay so that she could contemplate her future with the store. When she returned the next day, Wal-Mart agreed to accept petitioner's suggestion that her work hours be changed on Mondays, Wednesdays, and Fridays to 7:00 a. m. to 2:00 p. m., and on Tuesdays and Thursdays to 7:00 a. m. to 12 noon. This was done in order to accommodate her other work and school activities. The number of store employees at any one time is governed by the store sales. In other words, payroll (staffing) cannot exceed a percentage of current sales. In order to stay within the required percentage, a specified number of hours are allocated to each department within the store, and the department assistant manager determines how many employees can be employed within the allocated hours. When sales drop, workers are laid off, and when sales pick up again, Wal-Mart increases its work force. In December 1991, Wal-Mart was faced with a reduction in force due to declining sales. On a storewide basis, six part-time and three full-time positions were eliminated. In the soft lines department, which had four full-time and three part-time employees, a decision was made to eliminate one part-time and one full-time position in order to stay within the department's allocated hours. Strahan was charged with the responsibility of selecting the positions to be eliminated. In doing so, he was able to transfer Joyce Willis, a part-time black female employee, to the "front" since she had experience in operating a cash register. Of the four full-time employees, Jennifer Christie, the team leader and a white female, and Armie Brown, a black female, had seniority over petitioner, and neither had attendance or punctuality problems. In addition, Strahan considered both of them to be more "dependable" than petitioner. The third employee, Joe Watson, a white male, was an experienced fork lift driver for the store, and Strahan desired to retain him in that position. Although petitioner had been given some training in the operation of a fork lift, unlike Watson she had no actual on-the-job experience in that position. The only remaining full-time position was filled by petitioner, who had less flexibility in her work hours than the others due to requirements of school and her second job, and unlike the others, she had a record of disciplinary action during the preceding seven months for attendance and punctuality problems. For these reasons, Strahan selected petitioner's position as the full-time slot to be eliminated. Petitioner was called to a meeting with Strahan and the team leader on December 21, 1991. At that meeting Strahan told petitioner that he was forced to eliminate her full-time position due to a reduction in force caused by declining sales. Petitioner asked "why me?" and if there were any other full- time slots in the store to which she could be transferred. When Strahan replied there were none, petitioner said "you're full of shit, fuck you," and walked out of the office. Had she not departed, Strahan was about to offer her a part-time position. Because petitioner left the store, however, Strahan had no choice except to terminate her employment. According to petitioner's Associate Exit Interview form, which is prepared whenever a position is eliminated or an employee leaves, petitioner remains eligible for re-employment "when vacancies occur which the store needs to fill." She was unaware of this, however, and has never made application to be rehired. This is probably because she left the store before Strahan had an opportunity to have her sign the form and give her a copy. There is no evidence that petitioner's position was ever reestablished, and if so, whether it was filled by a person outside petitioner's protected class. Petitioner alleges that her position was eliminated solely because of her race. The evidence, however, belies that contention. Accordingly, it is found that petitioner's race played no role in the employment decision taken by respondent. Petitioner also contended she was a hard worker who did her assigned tasks, and she did not deserve the criticisms noted in her personnel file. For example, a minute or two after 5:00 a.m. the front door was locked and any late employees were then required to go to the back door of the store to gain entry to the premises. This added another ten or fifteen minutes for petitioner to reach her work station. Petitioner says this made it appear that she was fifteen or twenty minutes late when in fact she had been tardy by only a minute or two. Even so, by her own admission she was late on "numerous occasions," including every day during the week of November 11, 1991. She also complained that she did not get along with Cosby, a former supervisor, and denied that he twice counseled her for poor attendance in May 1991, as reflected in her personnel file. Even if petitioner's assertion is true, however, that employee left Wal-Mart in October 1991, which was before many of the relevant events occurred. While petitioner is to be highly commended for her work ethic (at least sixty hours per week plus school), the pertinent criticisms in her personnel file were substantiated and were properly taken into account by respondent in making its employment decision.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 28th day of October, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 28th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0318 Respondent: Partially accepted in finding of fact 1. Rejected as being unnecessary. Partially accepted in finding of fact 8. 4-5. Partially accepted in finding of fact 4. Partially accepted in findings of fact 5 and 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 3. 9-11. Partially accepted in finding of fact 8. 12-16. Partially accepted in finding of fact 9. 17-19. Partially accepted in finding of fact 10. 20-21. Rejected as being unnecessary. 22. Covered in preliminary statement. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Constanza D. Scott 3250 West Tennessee Street, Lot 146 Tallahassee, Florida 32304 Charles F. Henley, Jr., Esquire Post Office Box 40593 Jacksonville, Florida 32203-0593
Findings Of Fact The Petitioner was employed with the Respondent from August 3, 1985 until May 10, 1986, as a waitress in the dining room of the Kings Inn Restaurant in Pensacola, Florida. In March, 1987, the Petitioner became pregnant. She then informed her employer, Mr. Judge of her pregnancy. He told her initially that she could work as long as the doctor allowed her to. Shortly thereafter, he told her that she could not work after five months of pregnancy. On another occasion, his assistant manager, Mr. Dungan, told her that she could not work after she "started showing." Once the Respondent, Mr. Judge, learned of the Petitioner's pregnancy, he began a regime of harassing treatment. For instance, Mr. Judge made her do the "side work," filling up all the salt and pepper shakers and sugar bowls for all of the waitresses and waitress stations. It had always been uniform policy that each waitress had the responsibility to do her own side work for her own station and tables. Mr. Judge also began yelling and cursing at her in front of her workers and customers, causing her great humiliation and embarrassment. He criticized her publicly about her posture and the way she serviced customers, although she had always had an excellent record as a competent waitress and had no complaints from customers or former employers, before announcing that she was pregnant. Mr. Judge also began a practice of constantly questioning other employees about the Petitioner's job performance, although he apparently learned of no substandard performance in both her duties and her attitude toward her customers. He also took her to task about her "charge tips" being less than other employees, apparently the measure he used to determine if a waitress was serving her customers appropriately and adequately. This situation, however, was caused by his discriminatory conduct toward her in giving her fewer tables to serve and thus, reducing her tip income. Mr. Judge additionally assigned her to clean up a portion of the kitchen area, particularly the "bread shelves" when normal policy had been for kitchen personnel to perform all kitchen clean-up duties, with any clean up of the bread shelf area being rotated amongst the dining room personnel. The Petitioner, however, was singled out for this duty exclusively after it became known that she was pregnant. The Petitioner was also required to stay late and perform certain closing duties at the end of business late at night, much more often than other waitresses. In addition to performing restaurant closing duties, she was frequently required to wait on cocktail tables as late as 2:00 in the morning on many of the "late duty" occasions, even though she was hired as, and until she became pregnant worked exclusively as, food waitress. Petitioner's testimony and Petitioner's exhibit 2, in evidence, establishes that, although Petitioner was only scheduled to stay late three times in March, three times in April and once in May that, in fact, she worked late, that is, after all other employees or waitresses had been released for the evening seven out of nine days that she worked in March; nine out of twelve days she worked in April; and six out of the seven days she worked in May. Indeed, on May 10, 1986, the last day she worked for the Respondent, Mr. Judge required her to stay late and to "bus" all the tables, that is clean all the tables, in the dining room, allowing the waitress who was scheduled to stay late that night to leave early. The Petitioner became quite upset at this turn of events and resigned her position, due to the repeated pattern of harassment as described herein. Although Mr. Judge initially told the Petitioner that she could work as long as the doctor allowed her to during her pregnancy, in fact, on April 11, 1986, Mr. Judge hired the Petitioner's replacement. He hired Pamela Modes and had the Petitioner train her in her waitress duties. He stated to Ms. Modes privately when hiring her "that he needed a food waitress" because "he's got a girl that's pregnant." Additionally, he told the Petitioner that he objected to her working because of her pregnancy and claimed his insurance would not allow him to employ her after she was five months pregnant. These statements, coupled with the statement by his assistant manager, Mr. Dungan, to the effect that she would not be employed there "once she started showing" reveal an intent by the employer to terminate the employee, the Petitioner, because of her pregnancy. Instead of terminating her outright, the Respondent chose to put sufficient pressure on the Petitioner through extra, unscheduled work duties and the other above-mentioned forms of harassment, so as to coerce her into leaving the Respondent's employ. The Petitioner thus made a prima facia showing that she was forced to terminate employment due to her sex and her pregnancy, and no countervailing evidence was adduced by the Respondent.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and the demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida Human Relations Commission finding that an unlawful employment practice has occurred through the Respondent's discrimination against the Petitioner because of her sex (pregnancy) and that she be accorded all relief allowed under the above- cited section, including backpay and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ORDERED this 21st of March, 1989, in Tallahassee, Leon County, 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 21st day of March, 1989. COPIES FURNISHED: Debra A. Larson, Pro Se 9742 Aileron Avenue, Apt. 606 Pensacola, Florida 32506 Dracut Corporation d/b/a Kings Inn Restaurant Lawrence F. Judge, Jr. Owner/General Manager 1309 Maldonado Pensacola Beach, Florida 32561-2323 Donald A. Griffin Executive Director Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue is whether Respondent committed an unlawful employment action against Petitioner contrary to Sections 760.10(1)(a) and 760.10(7), Florida Statutes (2006).
Findings Of Fact Petitioner is an African-American female who worked for Respondent's Division of Administrative Services from September 1992 through May 2006. Throughout her tenure, Petitioner consistently received favorable personnel evaluations. During her employment, Petitioner received only the legislatively mandated annual state worker pay increases. However, at the time she was terminated in May 2006, Petitioner was the highest paid non-supervisory employee in Respondent's Division of Administrative Services. At that time, Petitioner was making $70,000. From September 1992 until November 1993, Petitioner worked as Respondent's human resources/relations administrator. Sandy DeLopez, a white female who served as Respondent's Director of Administrative Services, was on the selection team that hired Petitioner for the position of human relations administrator. In that position, Petitioner was charged with the intake and administration of race-based discrimination complaints within the agency. Petitioner supervised two employees in her position as human relations administrator. In November 1993, Respondent moved Petitioner to the Office of Employee Relations. This move occurred because the former human relations administrator wanted to return to her previous position. There is no evidence that Petitioner objected to being moved to the Office of Employee Relations. In the Office of Employee Relations, Petitioner reported to Ken Wilson, the manager. While under his supervision, Petitioner handled employee grievances and drug testing, as well as maintaining Respondent's Supervisor Assistance System (SAS), a statewide computer program for supervisors. In 1997, Respondent moved Petitioner into the Bureau of Personnel Services. This move was in conjunction with Mr. Wilson's move to the Bureau of Personnel Services as Bureau Chief. Petitioner's assignment was to continue handling special projects, including the drug testing program and the SAS computer program. The Office of Employee Relations became the employee relations section in the Bureau of Personnel Services when Mr. Wilson became Bureau Chief. The Bureau of Personnel Services had other sections, including benefits, pay and classification, and employment. In 1997, the pay and classification section was combined with the employment section, and referred to thereafter as the organization development section. When Mr. Wilson became Bureau Chief of the Bureau of Personnel Services, his previous job position as manager of employee relations remained vacant after being advertised two times. Petitioner told Mr. Wilson that she was interested in filling his former position but she did not apply for the position either time it was advertised. Mr. Wilson had a very open relationship with Petitioner. Petitioner frequently told Mr. Wilson that she wanted or needed more money. Mr. Wilson never told Petitioner that Ms. DeLopez would not let Petitioner fill his former position as manager of the employee relations section because Ms. DeLopez had a "hard-on" for Petitioner. Mr. Wilson never heard Ms. DeLopez make the following statements: (a) referring to Petitioner as another one of Mr. Wilson's experiments that had failed; and (b) Petitioner could have been one of "Ms. Ever's boys." There is no evidence that Petitioner ever complained to Mr. Wilson about any statement by Ms. DeLopez. From June 1995 to March 1997, Rene Knight, a white female, was manager of the benefits section in the Bureau of Personnel Services. As manager, Ms. Knight was a senior personnel manager with supervision responsibilities. In March 1997, Ms. Knight applied for, and was appointed to, the position of manager of the organization development section. Her title continued to be senior personnel manager. In June 1997, Ms. Knight began dating Jim Hage, a white male, who worked in the one of the areas under Ms. Knight's supervision. For that reason, Ms. Knight requested a job reassignment as manager of the employee relations section. Mr. Wilson granted Ms. Knight's request for the lateral reassignment that did not require advertisement or an increase in pay. In the Bureau of Personnel Services, the pay grade for the manager of employee relations had been downgraded from a pay grade of 26 to a pay grade of 24. Ms. Knight kept her pay grade of 24 after the lateral transfer. Petitioner's pay grade was 25. It would have been a demotion for Petitioner to accept the position of manager of employee relations. After Ms. Knight moved into the position as manager of the employee relations section, her old position was advertised as vacant. Petitioner did not apply for that position. Subsequently, Ms. Knight married Mr. Hage. Later in 2002, Mr. Hage applied for and was appointed as a manager in one of the sections in the Bureau of Personnel Services. There is no evidence that Petitioner applied for that job when it was advertised. In any event, Mr. Hage's managerial position would have been a demotion for Petitioner. In April 2002, Respondent transferred Petitioner into the Office of Program Support. The move was the result of a need to accommodate a disabled employee, who was put in charge of the drug testing program, formerly part of Petitioner's duties. There is no evidence that Petitioner objected to the transfer. In the Office of Program Support, Petitioner served as a management review specialist and worked under the supervision of Mallory Horne, Jr., then Chief of Staff. Mr. Horne reported directly to Ms. DeLopez. In the Office of Program Support, Petitioner participated in special projects, such as executing the STARS report and working on workers' compensation claims. In 2003, Ms. Knight became the Assistant Chief of Personnel Services just before Mr. Wilson retired. Ms. Knight received this lateral transfer/reassignment because she had served as a manager/supervisor in just about every office in the Bureau of Personnel Services. Ms. Knight was appointed Bureau Chief of the Bureau of Personnel Services when Mr. Wilson retired in May 2003. The Bureau Chief position was a promotion to a higher pay grade for Ms. Knight. The most persuasive evidence indicates that Petitioner was not qualified for the Bureau Chief job. Unlike Ms. Knight, Petitioner did not have five years of experience as a supervisor in the human resources area. In 2002 or 2003, Ms. DeLopez authorized Petitioner's participation in Respondent's Educational Leave with Pay Program. The program allows employees to be full-time students for the final year of their educational programs, with Respondent paying the costs of the programs, as well as their full salary and benefits. Ms. DeLopez also personally authorized at least one semester longer than the usual term for Petitioner because she needed extra time to complete the coursework for a doctorate in instructional systems. Petitioner completed the coursework but did not earn the doctoral degree. When Ms. Knight became Bureau Chief of the Bureau of Personnel Services, Ms. Knight recommended that Cindy Mazzar, a white female, apply for the position of manager of employee relations. Ms. Mazzar applied for and was appointed to the position. Petitioner did not apply for the job and never told Ms. Knight that she was interested in filling the position. In 2004, Kristen Watkins, a white female, applied for and was appointed to the advertised position of human resources manager. Petitioner did not apply for the job. The position of human resources manager would have been a lateral transfer for Petitioner if she had been interested. It would not have increased her pay grade. In 2006, Petitioner continued to work for Mr. Horne in the Office of Program Support as a management review specialist. In that capacity, Petitioner continued to serve as a special projects person. Among other things, Petitioner helped develop an agency-wide safety program. Toward the end of April 2006, Respondent decided to implement a realignment of some of its administrative offices. The reorganization called for the elimination of the Office of Program Support and for Petitioner to be transferred to the Bureau of Personnel Services, working under Ms. Knight as Bureau Chief, and under Ms. DeLopez as Division Director of Administrative Services. As with any reorganization, Respondent wanted to find a position for Petitioner rather than terminate her employment. However, there is no evidence that there ever was a vacant position to which Petitioner preferred to be assigned rather than moving to personnel services. On April 24, 2006, Petitioner received a telephone call from Ms. DeLopez, asking Petitioner to attend a meeting in Ms. Knight's office. During the meeting, Ms. DeLopez informed Petitioner that due to the realignment, effective May 1, 2006, Petitioner would work in Bureau of Personnel Services with Ms. Knight performing Petitioner's Annual Performance Evaluation. Petitioner's office furniture would be moved to her new office on May 3, 2006. Petitioner inquired whether the new job assignment was a promotion. Ms. DeLopez responded by commenting that Petitioner already was the highest paid employee in administrative services that was not a Bureau Chief. Ms. DeLopez also stated that when a Bureau Chief position became available, Petitioner could compete for it. On April 25, 2006, Ms. Knight scheduled a meeting with Petitioner to discuss her currently assigned work projects. The meeting was set for 3:00 p.m. on April 26, 2006, in the personnel services conference room. On April 26, 2006, Ms. Knight sent Mr. Horne an e-mail, requesting a copy of Mr. Horne's position description for Petitioner. Ms. Knight also wanted to know Petitioner's job responsibilities and assigned projects with timelines. On April 26, 2006, Petitioner sent Ms. DeLopez an e- mail, requesting an opportunity to discuss the personnel action being taken. Petitioner wanted Ms. DeLopez to know that Petitioner was seeking an opportunity to advance within the agency and that she wanted to discuss further options. Around 1:00 p.m. on April 26, 2006, Petitioner went to Ms. DeLopez' office uninvited and with no appointment. Ms. DeLopez was working in her office suite alone. Petitioner began talking to Ms. DeLopez about Petitioner wanting to make more money. As the conversation continued, Petitioner became agitated and hostile. When Petitioner would not stop talking, Ms. DeLopez stood up to leave the office. Petitioner, who was standing in the doorway, then stated that she would call 911 if Ms. DeLopez left the office. At that point, Ms. DeLopez felt threatened and decided to leave the room. Petitioner followed Ms. DeLopez down the hall to the office of Lieutenant Colonel Rick Gregory of the Florida Highway Patrol. Ms. DeLopez informed Lt. Col. Gregory that she could not make Petitioner disengage. Lt. Col. Gregory told Petitioner to go back to her office and asked Ms. DeLopez to stay in his office to talk to him. Lt. Col. Gregory went to Petitioner's office a few minutes before 2:00 p.m. He advised Petitioner about a meeting with Ms. Knight that afternoon at 2:00 p.m. In the 2:00 p.m. meeting, Ms. Knight explained that she would be the in-take officer for Petitioner's complaint against Ms. DeLopez. Petitioner stated that she did not want to discuss her complaint with Ms. Knight because both of them were subordinate to Ms. DeLopez. Petitioner also would not discuss her complaint without having someone else in the room. Petitioner then told Ms. Knight that Petitioner was leaving the meeting and that Ms. Knight should "just go ahead and call the police." Ms. Knight and Petitioner never had the 3:00 p.m. meeting to discuss Petitioner's new job responsibilities. Later on the afternoon of August 26, 2006, Petitioner had a meeting with Fred Dickinson, Respondent's Executive Director, David Westberry, Respondent's Deputy Executive Director, and Lieutenant Colonel Austin of the Florida Highway Patrol. Petitioner misunderstood the results of this meeting. She erroneously thought the following: (a) the planned move of her office location would be placed on hold; (b) she would not work for Ms. DeLopez or Ms. Knight; and (c) she would contact the Executive Director's office the week of May 8, 2006, to schedule an appointment to explore other options with the agency. On April 28, 2006, Ms. DeLopez sent Petitioner an e-mail. The message requested her work schedule, an outline of her work assignments, and a list of projects or activities that Petitioner was working on for the week of May 1-5, 2006. On May 1, 2006, Petitioner responded with the requested information by e-mail. In a letter to Mr. Westberry dated May 8, 2006, Petitioner described her employment history at the agency and samples of her work, including but not limited to a concept paper relating to technological innovations and workplace performance. The letter stated that Petitioner wanted to discuss employment options within the agency. The May 8, 2006, letter and attached documents were not responsive to the request that Mr. Dickenson and Mr. Westberry made in the August 26, 2008, meeting. The documents did not identify a position or place within the agency where Petitioner could be of value to the organization and benefit Petitioner at the same time. During a meeting on May 8, 2006, Petitioner gave the above referenced letter and documents to Mr. Westberry. Because Petitioner could not identify another vacant position in the agency that she preferred, Mr. Westberry directed Petitioner to coordinate with Ms. Knight about future job duties. On May 11, 2006, Petitioner participated in a meeting in Mr. Westberry's office where Ms. Knight and Petitioner sat together on a love seat. Later, Petitioner falsely accused Ms. Knight of having intentionally kicked Petitioner when Ms. Knight crossed or uncrossed her legs. In a letter dated May 11, 2006, from Petitioner to Mr. Westberry, Petitioner complained that Ms. DeLopez had subjected Petitioner to a hostile work environment, disparate hiring and promotional practices, and a form of retaliation. The letter states that Petitioner's complaint stems from an extended period of time during her employment and most recently on April 26, 2006. The letter requested that someone other than Ms. Knight be assigned as the complaint in-take officer. The letter did not specify race, gender, age, or any specific form of discrimination as a basis for the alleged mistreatment. In a letter dated May 12, 2006, from Mr. Westberry to Petitioner, he states that he received Petitioner's complaint naming Ms. DeLopez and Ms. Knight as parties. In the letter, Mr. Westberry directed Petitioner to go to Maggie Lamar, Senior Consultant in the employee relations section, who would serve as the in-take officer and investigator of Petitioner's complaint. Mr. Westberry advised Petitioner that Ms. Lamar would report directly to Judd Chapman, as Respondent's counsel, and Mr. Dickenson. In the mean time, Mr. Westberry directed Petitioner to continue under the direct supervision of Ms. Knight. Mr. Westberry specifically directed Petitioner to contact Ms. Knight prior to close of the business day to clarify work assignments and related responsibilities. On May 12, 2006, Petitioner sent Mr. Westberry a letter. In the letter, Petitioner states that she had contacted Ms. Knight to clarify job responsibilities. According to the letter, Ms. Knight had not provided Petitioner with information about Petitioner's work assignments and related responsibilities. The letter states Petitioner's concerns that Ms. Knight will abuse her authority as Petitioner's supervisor. The letter includes Petitioner's requests as follows: (a) that Respondent have Ms. Knight clarify Petitioner's work assignments and related responsibilities in writing pending completion of the investigation of Petitioner's complaint; and (b) that Respondent provide a witness during any meeting or conversations between Petitioner and Ms. Knight. In a letter dated May 16, 2006, Mr. Westberry acknowledged Petitioner's May 12, 2006, letter. Mr. Westberry then proceeded to clarify his previous instructions as follows: (a) Petitioner should attend a meeting with Ms. Knight and Mr. Chapman at 11:00 a.m. on May 17, 2006; and (b) In the absence of any documented threat to Petitioner's personal safety, Respondent would not provide a witness to document day- to-day discussions between Petitioner and Ms. Knight. Finally, Mr. Westberry reminded Petitioner of the appointment of Ms. Larmar as the in-take officer for Petitioner's complaint. On May 16, 2006, Ms. Knight sent Petitioner an email. The e-mail alleged that Petitioner had not been at work and had not requested sick leave or any other kind of leave on May 15, 2006. Ms. Knight had left Petitioner several written and telephone messages at Petitioner's office. Ms. Knight called Petitioner's home. Petitioner did not respond to any of the messages on the day in question. Ms. Knight's e-mail urged Petitioner to contact Ms. Knight as soon as possible to discuss work assignments. Petitioner responded to Ms. Knight's May 16, 2006, e-mail by requesting a 4:00 p.m. meeting on May 17, 2006. On May 17, 2006, Ms. Knight sent Petitioner an e-mail, confirming a meeting at 4:00 p.m. in Petitioner's office with Ms. Knight and Mr. Chapman. During the 4:00 p.m. meeting on May 17, 2006, Petitioner gave Ms. Knight a written statement. The statement asserts, in part, that Petitioner considered the meeting to be a continued abuse of authority by Ms. DeLopez and Ms. Knight with the intent to adversely affect Petitioner's employment. During the meeting, Petitioner for the first time accused Ms. Knight of kicking Petitioner on May 11, 2006, in Mr. Westberry's office. It was during this meeting that Ms. Knight first knew about Petitioner's unhappiness with being transferred to the Bureau of Personnel Services. On May 17, 2006, Petitioner sent Ms. Knight an e-mail referencing the 4:00 p.m. meeting. The message provided Ms. Knight with Petitioner's schedule for May 18 and 19, 2006. Petitioner stated she was available to meet with Ms. Knight at her convenience within the confines of that schedule. On May 19, 2006, Ms. Knight visited Petitioner's office at 2:45 p.m. because Ms. Knight wanted to make sure Petitioner knew about the meeting scheduled with Ms. Knight on May 23, 2006, at 9:30 a.m. During the visit, Ms. Knight and Petitioner discussed their professional relationship. Ms. Knight advised Petitioner that everything would work out as long as Petitioner refrained from making further false allegations. Petitioner then said she knew Ms. Knight had not meant to bump Petitioner with her foot in the May 11, 2006, meeting in Mr. Westberry's office. Ms. Knight answered that if Petitioner knew it was an accident, why did Petitioner accuse Ms. Knight of kicking her in front of Judd Chapman in the May 17, 2006, meeting. After the meeting with Ms. Knight on May 19, 2006, Petitioner sent an e-mail to Kay Pietrewicz, Ms. Knight's personal assistant. The e-mail states that Petitioner wanted to change the time of the 9:30 a.m. meeting on May 23, 2006, with Ms. Knight because it conflicted with an unspecified commitment that Petitioner wanted to honor. The message went on to express Petitioner's view of her employment issues, including details of the alleged kicking incident and subsequent conversations with Ms. Knight regarding that incident. After work on May 19, 2006, Ms. Knight got a call at home from Ms. Pietrewicz. During that conversation, Ms. Knight learned about Petitioner's e-mail to Ms. Pietrewicz. Ms. Knight subsequently sent Petitioner an e-mail, giving her a direct order to cease communications relative to her employment issues with any employee except Ms. Knight and Ms. Lamar. Ms. Knight advised Petitioner that the meeting at 9:30 a.m. on May 23, 2006, would take place as scheduled. On May 23, 2006, Petitioner sent Ms. Knight an e-mail to recap the meeting they had earlier in the day. The e-mail indicates that the following topics were discussed during the meeting: (a) the physical move of Petitioner's office furniture on May 24, 2008; (b) the signing of certain administrative forms; (c) the reduction of Petitioner's annual leave balance by eight hours because Petitioner had not been at work on May 15, 2006; (d) the drafting of Petitioner's position description; (e) Petitioner's volunteer/mentor activities; (f) Ms. Knight's direction for Petitioner to refrain from sending e-mails like the one she sent to Ms. Pietrewicz on May 19, 2008; Petitioner's dissatisfaction with her work assignment; Petitioner's computer skills; and (i) Petitioner's project assignment to begin updating the SAS. In a letter dated May 24, 2006, Mr. Westberry advised Petitioner that her employment was terminated effective at the close of business that day. Mr. Westberry made the decision to fire Petitioner 12 days after referring Petitioner to Ms. Lamar. At the time of Petitioner's termination, there was no pending complaint because Petitioner had not contacted Ms. Lamar. Instead of discussing her complaint with the designated in-take officer, Petitioner continued to demonstrate unwillingness to accept the responsibilities assigned to her as a result of the agency reorganization. Three law enforcement officers went to Petitioner's office around 5:00 p.m. on May 24, 2006. They delivered the termination letter and offered to escort Petitioner out of building. Respondent uses officers to escort terminated employees when the agency has concerns that termination might be less than a mutual parting of the ways. In this case, Petitioner refused to sign the termination letter or to leave the building. Petitioner inquired about what would happen if she did not leave. After hearing the response to her question, Petitioner stated that the officer would have to arrest her and take her to jail. Next, Petitioner called her husband and the Tallahassee Democrat. When Lt. Col. Austin arrived, he talked to Petitioner alone. He was unsuccessful in persuading Petitioner to leave the premises. When the officers re-entered Petitioner's office, Petitioner confirmed that she wanted to be arrested rather than leave the office voluntarily. The officers then put the handcuffs on Petitioner and began to inventory her purse. Lt. Col. Austin reentered the office, accompanied by Petitioner's husband. After removing the handcuffs, all of the officers left the office so that Petitioner could talk to her husband alone. The officers continued to wait for Petitioner to leave the building. Other officers and Petitioner's pastor arrived to offer assistance in persuading her to exit the building. Petitioner eventually left the premises without being arrested. On May 24, 2006, Ms. DeLopez was afraid for her personal safety after the termination letter was delivered to Petitioner. Ms. DeLopez requested that Mr. Westberry escort her to her car at the end of the workday. Mr. Westberry complied with the request. On May 25, 2008, Petitioner attempted to call Ms. Lamar by telephone. In a letter dated May 26, 2008, Petitioner requested Ms. Lamar to move forward with the processing of her complaint against Ms. DeLopez and Ms. Knight for retaliatory and harassing behaviors toward Petitioner. Petitioner's letter did not allege that the behavior of Ms. DeLopez and Ms. Knight was due to a specific type of unlawful discrimination.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations dismiss the Petition for Relief. DONE AND ENTERED this 21st day of October, 2008, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 H. Richard Bisbee, Esquire H. Richard Bisbee, P.A. 1882 Capital Circle Northeast, Suite 206 Tallahassee, Florida 32308 Glen A. Bassett, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Respondent was employed by the School Board of Volusia County from September 1, 1981 until November 14, 1989 as a painter or painter mechanic. T- II-39,40. The terms and conditions of the Respondent's employment was governed by the contract between the Petitioner and the American Federation of State, County, and Municipal Employees, Council 79, Local 850. This contract provides that employees can be disciplined, to include discharge for just cause. Joint Exhibit 1. The Respondent was employed as a painter within the Board's facilities support operations department. This department employs approximately 130 craftsmen and 20 clerical and supervisory staff. T-I-38. The Respondent's immediate superior was foreman of the painters, Joe Isaac, who has held that position for the past 18 years. T-I-38,64 The chain-of-command from the top of the facilities support department is Charles Lambeth, who is Director of Facilities Operation; Terry Ellis, who is Assistant Director in charge of the crafts area; and Clifton Robertson, who is the Director of Facilities Support Operations or the personnel administrator for the facilities support department. Clifton Robertson investigated the allegations against the Respondent, counseled with the Respondent, and issued the disciplinary letters and reprimands given to the Respondent. On October 24, 1989, Mr. Florio engaged in a loud, profane, and inappropriate shouting match with a coworker, Larry Brazil, while on the job scraping paint outside a classroom at Seville School. Their conduct was such that a teacher left her classroom, outside of which they were working, and cautioned them about the disturbance they were causing. The acting foreman, Don Jenkins, overheard the exchange between the Respondent and Brazil in which the Respondent used obscene or profane language. The acting foreman did not hear Brazil use such language, and other witnesses testified that they had never heard Brazil use such language on the job. On October 25, 1989, the Respondent got into another argument with another coworker, Ken Griswold. During this argument, the Respondent threw his paint scraper at Griswold, who had made no threat to the Respondent. With only the verbal provocation, the Respondent threw the scraper at Griswold and would have struck him had Griswold not jumped back out of the way. There was dissatisfaction among the Respondent's coworkers about the way he did his job. The Respondent had been injured in 1987 and was restricted from working on ladders over six feet tall, lifting regular ladders, and spray painting. Sometime later, the Respondent's restrictions were altered to permit him to work on a six-foot aluminum ladder. His refusal to do any type of work which was covered by his medical restrictions was a source of contention with his coworkers. In addition, he had a history of not following regulations and requirements which the other men were required to follow. On October 24 and 25, 1989, the Respondent was assigned to a team of painters to scrape and paint the exterior of a school. On both days, arguments between the Respondent and coworkers arose over the Respondent's refusal to scrape paint from the ladder. On October 24, 1990, this led to a shouting match with Larry Brazil and to the Respondent throwing a paint scraper at Ken Griswold on October 25, 1990. On March 21, 1989, the Respondent was directed at 7:00 a.m. to report to work at Seabreeze Senior High School by his foreman, Joe Isaac. The Respondent did not do so and stayed at the main maintenance facility until 8:45 a.m., when he was discovered by the Assistant Maintenance Director, Terry Ellis, who instructed him to report to the high school. The Respondent again refused to go and remained at the main maintenance facility until 8:54 a.m., when the Maintenance Director, Charles Lambeth, arrived. The Respondent had asked his foreman, Joe Isaac, to see Lambeth; and Isaac had told Florio to report to work at the high school and if Lambeth wanted him, Lambeth would send word through Isaac for Florio to report to Lambeth. When confronted by Ellis, the Respondent told Ellis he wanted to see Lambeth. Ellis also told Florio to report to the school immediately. Florio remained at the maintenance headquarters until Lambeth arrived. Lambeth asked Florio why he was there, and Florio stated that he had been told Lambeth wanted to see him. Lambeth told Florio that he had not wanted to see him, and Florio blamed the incident on the men lying to him. Florio did not report until told to do so by Lambeth. The Respondent had his pay docked for two hours and received a letter of reprimand for failure to follow direct instructions. The letter of reprimand described the Respondent's actions as malingering and insubordination. Painters reported each day to the maintenance headquarters, after which they took School Board vehicles to the job sites. Similarly, after being released at the job site, the painters were supposed to return to the main maintenance facility, where employees were dismissed for the day. On September 11, 12, 13 and 14, 1989, the Respondent drove his private automobile to the school at which the paint team was working. Although the Respondent had been given permission to drive his car on Monday of that week because his stomach had been giving him problems, he took his car the rest of the week and left directly from the school, not returning to the maintenance headquarters, as required on the dates indicated above. The Respondent received written notice that he was being docked 160 minutes. On or about September 21, 1989, the Respondent told a coworker that he refused to drive. The Respondent did not deny telling the coworker that he would not drive but asserted that he had been kidding. On September 22, 1989, the Respondent slammed open the door of a School Board truck striking another School Board truck in the door and damaging both trucks. The property damage was $121.63. The Respondent had slammed the door open because he was angered by the remarks of a coworker who chided him about driving. The letter of reprimand which the Respondent received for his conduct on September 21 and 22 indicated that the Respondent had been encouraged to enter the Employee Assistance Program. The Respondent did not avail himself of the program. The Respondent frequently complained to his supervisors about what he described as "harassment" and "kidding" by his coworkers although the Respondent engaged in similar behavior with his coworkers. As a result of his complaints, his superiors counseled his coworkers not to tease, harass, or kid the Respondent. The Respondent is a malingerer. He developed a pattern of avoiding work by failing to report when he was supposed to report; by refusing to perform duties within his ability as requested by his fellow workers; and by asserting he was ill. The Respondent was ill-tempered and acted out inappropriately with increasing frequency and violence. The Respondent refused to acknowledge that there was a problem, that the problem was him, and to seek assistance for it. The employer counseled with the Respondent and used progressive discipline to attempt to modify the Respondent's behavior to no avail. The employer had just cause to discharge 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 therefore recommended that the Respondent be discharged. RECOMMENDED this 20th day of August, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 20th day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6360 The parties filed proposed findings of fact which were read and considered. The following is a listing by party of the findings which were adopted and those which were rejected and why: Petitioner's findings by paragraph number which began with paragraph 7: Paragraph 7 Adopted Paragraph 8 Adopted Paragraph 9 Adopted and rewritten Paragraph 10 Rejected; restates exhibit Paragraph 11 1st sentence adopted; remainder irrelevant Paragraph 12,13,14 Adopted and rewritten Paragraph 15(a) Irrelevant Paragraph 15(b) Rejected; restates exhibit Paragraph 16-20 Adopted and rewritten Paragraph 21 Irrelevant Paragraph 22-29 Adopted and rewritten Respondent's findings by paragraph number beginning with paragraph 1: Paragraph 1-4 Adopted and rewritten Paragraph 5 Irrelevant Paragraph 6-10 Adopted and rewritten Paragraph 11 Whether Brazil was disciplined is unknown Paragraph 12 Rejected as contrary to fact Paragraph 13-14 Adopted and rewritten Paragraph 15 Rejected that Florio did not throw the scraper at Griswold; remainder adopted and rewritten Paragraph 16 Adopted and rewritten Paragraph 17 Evidence was received that coworkers were counseled on several occasions; however, it is also irrelevant because the disciplinary records of the other employees were not introduced. Evidence was received that; at least one other employee was discharged for similar types of behavior. Paragraph 18 Adopted and rewritten Paragraph 19-24 Irrelevant Paragraph 25 The statement is true, but gives the erroneous impression that Florio was discharged because he did not participate in the program. The employer's reference of the employee to this program was relevant because it shows the employer had such a program and it was available. The employee's rejection was relevant because it indicates how confused the employee is about his situation and condition. Paragraph 26 Rejected as contrary to fact COPIES FURNISHED: Harrison C. Thompson, Esq. THOMPSON, SIZEMORE & GONZALEZ P.O. Box 639 Tampa, FL 33601 Ben Patterson, Esq. P.O. Box 4289 Tallahassee, FL 32315 Dr. Jame D. Surratt, Superintendent Volusia County School Board P.O. Box 2118 Deland, FL 32720 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400
Findings Of Fact Petitioner, Mose Howard, Jr., was hired by the Respondent, K-Mart Corporation, as a night maintenance man at its store number 7339 located at 2620 N. Hiawassee Road in Orlando, Florida on July 10, 1984. According to Mr. Howard, his job was to help clean up after the store closed for the evening and to -notify the store authorities if and when the alarm went off during that period. His duty hours were from 9:00 p.m. to 7:00 a.m., Monday through Friday. He worked at the store for approximately six weeks during which time, according to him, he was never told by anyone in authority that his work was unsatisfactory. On August 16, 1984, Mr. Howard was called in by Mr. King who advised him that his work was not satisfactory. Mr. Howard contends that at the time in question, Mr. Ring gave him two pieces of paper to sign and advised him that if he didn't perform better, he'd be laid off. At the time, Mr. Howard looked at the papers and determined that his name was on them, but nothing else. The form in question was a Personal Interview Record consisting of two pages and Mr. Howard contends that that portion of the record dealing with the summary of discussion held between the parties at the interview was left blank. According to Mr. Howard, he signed the form in blank because he thought it was merely a notice that he was being placed on probation. In fact, though he may not have known it, he was on a probationary period from the time he was hired. During the course of the discussion, Mr. King advised him that the store had been receiving complaints about his work from undisclosed sources and also information that he had been sleeping on the job. Mr. Howard categorically denies having slept on the job at any time during the period of his employment and Respondent produced no evidence that he had. He admits, however, that his cleaning duties may have been, from time to time, accomplished in a less than satisfactory fashion. From time to time, when he was cleaning up paper and other debris from under the counters, crews of the contractor hired to maintain the floors in the store, whose job it was to strip and re-wax the floors periodically, were working on other aisles of the store. He contends that when this crew would go from one aisle to another, they would turn off and on the lights. Because he could not turn the lights on where he was working if the crew had previously turned them off, it was too dark for him to see and clean up well. He believes that it was this inability to clean up properly because of lack of lighting that formed the basis of the complaints against him. In addition, he states, the burglar alarms would periodically sound and when this happened, it would be necessary for him to call someone to come in and turn them off. This caused him to lose work time because when the alarm sounded, he felt he had to stop working and leave-the store because, had he stayed in there, the police might think he was breaking in. While denying, unequivocally, that he ever slept on the job, Mr. Howard admitted he would sit down from time to time in the break room but only on his two 15 minute breaks or during his 30 minute meal period. There were other times, he admits, that because of the lighting situation, he was unable to work in the store while the floor crew was there. In that case, he would sit down and wait until the crew would finish where it was working and he could go back to work. Sometimes this would be for an hour or even a couple of hours and during the period of enforced break from sweeping, he would try to find something else to do like cleaning the restrooms. In this regard, according to Mr. King, the cleaning of the restrooms was an integral part of Petitioner's responsibilities and his accomplishment of these duties was also periodically and repeatedly unsatisfactory. After the personnel interview conducted on August 16, 1984, Mr. Howard finished work for the evening and left. When he returned the following evening, a Friday, he was called in by another supervisor and advised that he was discharged. He says that at this point he was not given any reason for his discharge. However, he waited around outside the store until the closing time of 9:30 p.m. (approximately a half-hour after he came to work and was fired), went into the office, and picked up his paycheck from Payroll. The check he received that night was for all that was owed him up to the end of the pay period. A few days later, (the following Monday), he went back and was given another check for the day and a half wages owed him for the new pay period up until he was discharged. Mr. Howard denies having received a call in advance to advise him his work was unsatisfactory nor was he given a reason for being fired. Nonetheless, he did not question the basis for his firing either on August 17, or the following Monday, but merely accepted the pay due him and left. Even though Mr. Howard says he was not given a reason for his discharge and does not know why he was fired, he is convinced the discharge action was taken on the basis of his race because he always did his duty to the best of his ability and worked extra hours without pay on many occasions. It is because of his own satisfaction with his duty performance that he contends his discharge must have been racially motivated. However, he admits that no one from K-Mart Corporation or the store in which he worked ever gave him any indication of a desire to get rid of him or other black employees. Further, during the period of time he worked there, he never heard any racial comments or slurs from any employees, either upper management or low level, except from one young stockboy who used the term "nigger" frequently. He admits to being told on one occasion by an employee of the contractor that he had missed an area in his sweeping and had to go back and do it again and, on several occasions, he observed areas he missed and went back and cleaned them on his own, but aside from those instances, he contends no one from the corporation ever complained to him about the way he was performing his duties until the night of August 16, 1985, when he was interviewed by Mr. King about his performance. Even on that occasion, according to Petitioner, there were few specifics in Mr. King's comments. As he remembers it, Mr. King merely stated that he was deficient in keeping the floors, the walls, the restrooms, etc. clean but Mr. Howard states that these allegations are all lies. Mr. King, on the other hand, indicates that when Mr. Howard was hired, he was fully briefed on the nature and scope of his duties and was taken around the store and shown where and how things were to be done. At that time, the routine janitorial. duties such as wet mopping the floors, cleaning the restrooms and the cafeteria, and the other items of a similar nature were clearly made known to him. In the interim, Mr. King has personally discussed his performance, which was not up to par with Mr. Howard on at least three or four separate occasions, including in his comments such things as the stools not being kept clean, the floors not being mopped, spots being left on the mirrors. These duties and others of a similar nature were solely the responsibility of the Petitioner on the nights he worked. On each occasion, Mr. King found Petitioner's attitude to be negative. Mr. Howard gives the impression he feels he is performing satisfactorily and if management doesn't like the way he's doing his job, that's too bad. Though Mr. Howard contends that the problems he faced in accomplishing his duties were caused by the low availability of light in the store after closing hours due to the actions of the contractor's crew, he never complained to anyone about this. He didn't feel he had to say anything to the contractor's employees because he did not work for them and he felt that they could see the problem because it was obvious. He also contends that he cleaned the ladies' room as he was required to do and that any unsatisfactory condition may well have been caused by two white contractor's employees who would sleep in there from time to time. Again, he did not say anything to the contractor or anyone else about this because he thought what was happening was obvious. Petitioner's deficiencies and the counselings he received for them ultimately culminated in the personal interview reduced with a written memorandum on August 16, 1985. At that time, Petitioner was told that if he didn't improve, it would be necessary to get someone else to do the job. The personal interview on August 16, 1984 was the last effort on the part of K-Mart management to get Petitioner to do a better job. The description of his deficiencies, according to Mr. King, was placed on the interview form before the interview and was given to Petitioner to read at the time. Mr. King is quite certain that Petitioner looked at the form containing these comments and signed it. The personnel manager for the store was present at the time. When the work was not done properly that August 17, 1984 when he came to work, he recommended Petitioner's termination to the store manager. The other assistant manager, Mr. Avera, concurred in this recommendation on the basis that Petitioner was simply not getting the job done. Mr. King unequivocally denies that his recommendation for termination was racially motivated. He has, in the past, recommended only one other termination of an employee. This employee was white. The list of all employees terminated by this K-Mart store from August , 1983 through November, 1984, with reasons therefor, reflects that of the three other night maintenance personnel terminated during that period, two were white and one was black. The reasons for termination include sleeping on the job, unsatisfactory performance and drug possession. Of the fifteen total employees discharged during the period, at least ten were white, four were black, and one is not identified by race. On balance it is clear that Mr. Howard was terminated not as a result of any racial motivation but simply because he was a probationary employee and management was dissatisfied with his performance during the period of probation. Mr. Howard rejects Mr. King's evaluation of him on the basis that Mr. King did not personally supervise his work and that his analysis is based on matters outside his personal knowledge. He contends that his work was always done to the best of his ability and he does not accept the possibility that his performance could have resulted in his termination. Nonetheless, he does not know if any other black maintenance employees were discriminated against or, for that matter, if any other black employees in any job were discriminated against at this facility. Mr. Howard denies signing the separation report that was prepared on the night of his discharge even though, admittedly, it bears his signature. It is for this reason as well as because of his denial that any detail was included on the interview report when he signed it that a question is raised as to the accuracy of his analysis of the situation. In substance, there is ample evidence with specifics to establish the legitimate ground of inappropriate performance as the basis for his discharge and very little evidence other than his allegation to support a claim of racial prejudice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Petition of Mose Howard, Jr. be denied. RECOMMENDED this 30th day of September, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1985. COPIES FURNISHED Mose Howard, Jr. 67 West Michael Gladden Blvd. Apopka, Florida 32703 Janice Paulsen, Esq. International Headquarters K-Mart Corporation 3100 West Big Beaver Road Troy, Michigan 48084 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303 Aurelio Durana General Counsel Florida Commission on Human Relations 325 John Knox Road Building F - Suite 240 Tallahassee, FL 32303
