The Issue Whether Petitioner's Petition for Relief from an Unlawful Employment Practice (Petition for Relief) filed against Respondent should be granted by the Florida Commission on Human Relations (Commission).
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated Marriott Forum at Deercreek (hereinafter referred to as the "Facility"), a "senior living community, nursing home." Petitioner was employed as a Certified Nursing Assistant (hereinafter referred to as "CNA") at the Facility from 1992 or 1993, until July of 1998, when she was terminated. Petitioner is black. At the time of Petitioner's termination, all of the CNAs, and all but one of the nurses, at the Facility were black. At the time of Petitioner's termination, the chain of command leading down to Petitioner was as follows: the General Manager, Joanna Littlefield; the Health Care Administrator, Sheila Wiggins, and the Interim Director of Nursing, Michelle Borland. The Director of Human Resources was Meg McKaon. Ms. Littlefield had the ultimate authority to terminate employees working at the Facility. Ms. Wiggins, Ms. Borland, and Ms. McKaon had the authority to make termination recommendations to Ms. Littlefield, but not to take such action themselves. In July of 1998, F. S., an elderly woman in, or approaching, her 90's, was a resident at the Facility. On or about July 9, 1998, Petitioner was involved in a scuffle with F. S. while giving F. S. a shower. Joyce Montero, a social worker at the Facility, was nearby in the hallway and heard the "commotion." When F. S. came out of the shower, Ms. Montero spoke to her. F. S. appeared to be "very upset." She was screaming to Ms. Montero, "Get her away from me; she hit me," referring to Petitioner. Ms. Montero noticed that F. S. "had blood [streaming] from her nostril to at least the top of her lip." The nursing staff then "took over" and "cleaned up [F. S.'s] blood" with a towel. Ms. McKaon was contacted and informed that there was a CNA who had "had an altercation with a resident." Ms. McKaon went to the scene "right away" to investigate. When Ms. McKaon arrived, F. S. was still "visibly shaken and upset." Ms. McKaon saw the "bloody towel" that had been used to clean F. S.'s face "there next to [F. S.]." F. S. told Ms. McKaon that she was "afraid [of Petitioner] and that she [had been] punched in the nose" by Petitioner. In accordance with Facility policy, Petitioner was suspended for three days pending the completion of an investigation of F. S.'s allegation that Petitioner had "punched" her. Ms. Wiggins and Ms. McKaon presented Petitioner with a written notice of her suspension, which read as follows: Description of employee's behavior . . . . On July 9, 1998, one of our residents [F. S.] was being given a shower by [Petitioner]. [F. S.] stated that [Petitioner] punched her in the nose. (She was crying and bleeding: witnessed by Joyce Montero). Suspension For Investigation To provide time for a thorough investigation of all the facts before a final determination is made, you are being suspended for a period of 3 days. Guarantee Of Fair Treatment Acknowledgement I understand that my manager has recommended the termination of my employment for the reasons described above and that I have been suspended for 3 days while a decision regarding my employment status is made. I understand that the final decision regarding my employment status will be made by the General Manager. The suspension period will provide time for an investigation of all facts that led to this recommendation. I understand that the General Manager will be conducting this investigation. I further understand that if I feel I have information which will influence the decision, I have a right to and should discuss it with the General Manager. I am to report to my manager on July 13, 1998 at 10:00 a.m. Petitioner was asked to sign the foregoing notice, but refused to do so. Ms. McKaon conducted a thorough investigation into the incident. Following her investigation, she came to the conclusion that there was "enough evidence to terminate" Petitioner. As a result, she recommended that Ms. Littlefield take such action, the same recommendation made by Ms. Wiggins. After receiving Ms. McKaon's and Ms. Wiggins' recommendations, Ms. Littlefield decided to terminate Petitioner's employment. The termination action was taken on or about July 23, 1998. At this time, the Facility was on "moratorium" status (that is, "not allowed to accept any more patients") as a result of action taken against it by the Agency for Health Care Administration because of the "many" complaints of mistreatment that had been made by residents of the Facility. Ms. Wiggins was given the responsibility of personally informing Petitioner of Ms. Littlefield's decision. After telling Petitioner that her employment at the Facility had been terminated, Ms. Wiggins escorted Petitioner out of the building and to the parking lot. In the parking lot, Ms. Wiggins said to Petitioner something to the effect that, she, Ms. Wiggins, was "going to take all of the black nurses in the Facility." (What Ms. Wiggins meant is not at all clear from the evidentiary record.) Following Petitioner's termination, the racial composition of the CNA staff at the Facility remained the same: all-black, as a black CNA filled Petitioner's position. There has been no persuasive showing made that Petitioner's race played any role in Ms. Littlefield's decision to terminate Petitioner's employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order finding that Respondent is not guilty of the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's Petition for Relief based on such finding. DONE AND ENTERED this 20th day of June, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2003.
The Issue Whether Petitioner, Marlowe D. Robinson ("Petitioner"), was unlawfully discriminated against by Respondent, Broward County School District ("BCSD"), his employer, based on his disability and in retaliation for complaining about discrimination, in violation of chapter 760 of the Florida Statutes, the Florida Civil Rights Act; and, if so, what is the appropriate remedy.
Findings Of Fact Petitioner worked for BCSD for approximately 20 years prior to the termination of his employment on May 8, 2018. Petitioner is a disabled veteran. At the time of his termination, Petitioner was employed as the Head Facility Serviceperson at BCSD's office in the Katherine C. Wright Building ("KCW"). On February 5, 2016, Richard Volpi began working at KCW as the Manager of Administrative Support and as Petitioner's immediate supervisor. During Mr. Volpi's third day on the job, Petitioner told him that he was not happy that Mr. Volpi was at KCW and that KCW was "his house." He also told Mr. Volpi that he did not work because he "delegated to his crew." On February 18, 2016, Petitioner filed two internal labor grievances. In the first, he asked to have his job title changed to "Building Operations Supervisor." In the second grievance, Petitioner alleged that Mr. Volpi and Jeff Moquin, Chief of Staff, created a hostile and unclean work environment. Mr. Volpi processed the grievances by having a meeting with Petitioner on February 25, 2016. Finding no basis for the grievances in the collective bargaining agreement, Mr. Volpi denied them. On October 10, 2016, Mr. Volpi met with Petitioner to discuss a significant pattern of Petitioner coming in late, failing to notify BCSD when arriving late, staying after his scheduled shift to make up time without authorization, failing to call in as required for sick days, and failing to have pre- authorization for using accumulated leave. After the meeting, Mr. Volpi issued a written "Meeting Summary," which included counseling, based on Petitioner having come in late 24 days since August 1, 2016, and only notifying Mr. Volpi's assistant of the tardiness on three of those 24 days. The "Meeting Summary" was not considered discipline and stated, "If for any reason you need to change your shift hours to assist you in getting to work on time, please let me know." On October 19, 2016, Petitioner filed his third internal labor grievance after Mr. Volpi became his supervisor. The third labor grievance made numerous allegations against Mr. Volpi, including, but not limited to, sexual harassment, unspecified Family and Medical Leave Act ("FMLA") violations, and retaliation for filing prior grievances. On October 26, 2016, Petitioner submitted a request for intermittent leave pursuant to FMLA. The next day, Petitioner was notified that his FMLA leave request was incomplete, and was therefore denied. Petitioner was later granted intermittent FMLA leave with the agreement that he was to provide advance notification of his anticipated absences. On November 9, 2016, Petitioner was notified in writing to appear at Mr. Volpi's office on November 16, 2016, for a pre- disciplinary conference to discuss Petitioner's failure to adhere to the directive of October 10, 2016, to notify Mr. Volpi if he was going to be late, out for the day, or working outside his scheduled hours. The letter specified that Petitioner was late October 11, 13, and 17, 2016, without notifying Mr. Volpi, and that Petitioner was late and worked past his regular scheduled hours on October 21, 25, and November 7, 2016. The letter also specified that Petitioner "called out" (took time off) without notifying Mr. Volpi on October 31 and November 1, 2, 3, 4, and 8, 2016. In response, Petitioner filed a fourth grievance against Mr. Volpi alleging retaliation, bullying, and violations of the Americans with Disabilities Act ("ADA") and various policies of BCSD. On November 16, 2016, Mr. Volpi memorialized in writing that Petitioner failed to show up for the November 16, 2016, pre-disciplinary meeting. On November 21, 2016, Petitioner was notified in writing that he was to appear at Mr. Volpi's office on November 30, 2016, for a pre-disciplinary meeting to replace the original meeting scheduled for November 16, 2016. Petitioner was not disciplined for not showing up to the November 16, 2016, meeting. The meeting on November 30, 2016, went forward as scheduled and Petitioner was issued a verbal reprimand on December 5, 2016, his first discipline from Mr. Volpi, for Petitioner's ignoring the prior directive to contact his supervisor if he was going to be late, absent, or wanted to work beyond his scheduled shift. He was again reminded that he had to make such notifications and have permission in advance of working hours other than his regular shift. On January 12, 2017, Petitioner was granted a reasonable accommodation pursuant to the ADA. The accommodation granted permitted Petitioner to report to work within one hour of his scheduled work time and leave within one hour of his scheduled end time ("flex time"). Additionally, Petitioner was required to notify his supervisor in advance of using flex time. Mr. Volpi assisted Petitioner in the accommodation process. Mr. Volpi provided Petitioner the accommodation paperwork and advocated for Petitioner to be granted an accommodation. On January 26, 2017, Petitioner again came in late without providing Mr. Volpi advance notice of intent to use his flex time. On January 27, 2017, Mr. Volpi sent an email to Petitioner reminding Petitioner that he was required to notify him if he is going to be late. This was not considered discipline. On March 21, 2017, Petitioner was notified in writing that he was to appear at Mr. Volpi's office on March 27, 2017, for a pre-disciplinary meeting regarding ongoing excessive tardiness and failure to adhere to his work schedule. On March 23, 2017, Petitioner filed his fifth internal labor grievance, again alleging harassment (among other claims) against Mr. Volpi. On March 28, 2017, Petitioner filed his sixth internal labor grievance, again making harassment allegations against Mr. Volpi. On April 6, 2017, Petitioner was issued a Written Reprimand by Mr. Volpi for his nine days of tardiness in February and March and his failure to notify Mr. Volpi in advance. On April 7, 2017, Petitioner appealed the Written Reprimand. Petitioner also filed his seventh and eighth internal labor grievances alleging discrimination on the basis of disability and retaliation. Petitioner filed his Charge with the FCHR on April 13, 2017. Mr. Volpi conducted a first-step grievance hearing on April 27, 2017, and as a result of the discussion with Petitioner, who agreed to notify Mr. Volpi in advance of his inability to arrive at work as scheduled, the April 6, 2017, Written Reprimand was reduced to a verbal warning. The FCHR dismissed Petitioner's Charge with a No Reasonable Cause Determination on October 10, 2017. Between January 1 and February 15, 2018, Petitioner came to work late 14 days without providing prior notice, was absent without leave two days, and worked overtime one day without prior authorization. As a result, BCSD issued a three- day suspension on February 21, 2018. On February 22, 2018, Mr. Volpi met again with Petitioner to go over the expectations and provided a reminder memo not to work unauthorized hours without prior approval. On March 13, 2018, Mr. Volpi asked BCSD to issue a ten-day suspension to Petitioner for his ongoing failure to report to work at assigned times, unauthorized overtime, and absences without leave. In response, Petitioner filed yet another labor grievance. BCSD approved the ten-day suspension on April 10, 2018. Despite the ADA accommodation, increasing discipline, multiple counseling meetings and reminders, Petitioner continued his pattern of tardiness, unauthorized overtime, and absences. Accordingly, BCSD terminated Petitioner's employment on May 8, 2018. Petitioner's discipline and ultimate termination were not performance based, but rather, related solely to ongoing attendance issues.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing FCHR Petition 201700954. DONE AND ENTERED this 6th day of December, 2018, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2018.
The Issue The issue in the case is whether the termination of Petitioner's employment by Respondent constituted discrimination against Petitioner on the basis of gender.
Findings Of Fact Petitioner is a female, a member of a protected group under applicable law, and was at all times material to this case, employed by Respondent until the termination of employment that is the subject of this dispute. Respondent is an employer as the term is defined by relevant sections of the St. Petersburg Municipal Code and the applicable Pinellas County Ordinance. During the period of time relevant to this dispute, Sam Obinwa owned Respondent. During the period of Mr. Obinwa's ownership, Respondent was a business engaged in providing health care supplies, including pharmaceuticals to customers. Beginning in July 1996, Petitioner was employed as a courier by Respondent. Petitioner was primarily assigned to make deliveries of supplies to Respondent's customers. Respondent also employed a second courier, a male, during this period. At some point during Petitioner's employment, Mr. Obinwa hired an office manager, Kim Henderson. Ms. Henderson became Petitioner's supervisor. Ms. Henderson was responsible for the operation of the office, including receiving customer complaints and resolving employee disputes. Mr. Obinwa testified that he received information related to the office operations from Ms. Henderson and relied upon it in making the decision to terminate Petitioner's employment. According to Mr. Obinwa's testimony, he received complaints regarding Petitioner's job performance and behavior from both customers and Ms. Henderson. Mr. Obinwa testified that he discussed the complaints with Petitioner during her employment. On December 14, 2003, Mr. Obinwa met with Petitioner and explained that her employment was being terminated. As grounds for the termination, Mr. Obinwa, in a termination letter provided to Petitioner, cited complaints about her behavior from both customers and work associates. The complaints included lack of cooperation, abusiveness, failure to follow instructions or to adhere to the delivery schedule, and missed or late medication deliveries. Petitioner asserts that she was terminated on account of gender. There is no credible evidence, direct or indirect, that Respondent's termination of Petitioner's employment was on account of gender. At the time of Petitioner's termination, Respondent employed eight to nine persons, including six to seven females. The employee most similarly situated to Petitioner (the male courier) was not terminated; however, there is no evidence that there were complaints regarding his behavior from either customers or work associates. At the hearing, Petitioner asserted that the male courier generally received the same treatment as did she. The evidence establishes that Petitioner received an additional benefit that was not provided to the male courier. Petitioner was permitted to use a company delivery vehicle for occasional personal transportation. There is no evidence that the male courier was permitted to take the company vehicle for personal use. Petitioner testified that another male employee identified as Herman Jones was hostile towards her and towards other women working for Respondent. Petitioner claimed that Mr. Jones was somehow responsible for her termination. Mr. Jones was a pharmacy technician. Mr. Jones was responsible for imputing prescription information into the computer system and for preparing the medications according to the prescriptions. Prior to being delivered to the customers by the couriers, the medications were checked by a pharmacist. There is no credible evidence that Mr. Jones had any supervisory duties related to Petitioner. There was testimony suggesting that there were personality conflicts between Petitioner and Mr. Jones. There is no evidence that Mr. Jones was involved in Mr. Obinwa's decision to terminate Petitioner's employment, other than the general consideration Mr. Obinwa gave to the complaints from Petitioner's co-workers related to her behavior in the office. At the hearing, Petitioner presented supportive letters from five customers who were apparently pleased with Petitioner's performance. Petitioner made between 100-200 deliveries each week to Respondent's customers. Mr. Obinwa testified that some of the customers to whom Petitioner made deliveries were happy and that others were not. No evidence related to damages to Petitioner was presented during the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's complaint be DISMISSED. DONE AND ENTERED this 1st day of December, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2004. COPIES FURNISHED: Stephanie N. Rugg City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731-2842 Suzanne M. Mucklow, Esquire Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756 Willie Mae Curry 2702 4th Street, South St. Petersburg, Florida 33705-3641 Donna J. Buchholz, Esquire D. J. Buchholz, P.A. 4320 El Prado Boulevard, 15 Tampa, Florida 33629
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based upon her race.
Findings Of Fact Respondent is an "employer" within the meaning of section 760.02(7), Florida Statutes. Petitioner, an African-American female, submitted an application for employment directly with the store manager, Jerry Wienhoff. Mr. Wienhoff personally interviewed Petitioner and hired her within 48 hours of her application for the afternoon clerk position. She began working for Respondent on July 21, 2009. Petitioner received a notice of a disciplinary issue on March 9, 2010. Respondent cited Petitioner for failure to complete her work in a timely manner. Petitioner was warned that if her work did not improve, her employment would be terminated. Not long after issuance of this disciplinary notice, Mr. Wienhoff, the store manager and Pensacola Regional Manager for 17 years, began receiving complaints about Petitioner's behavior. One complaint came from a long-time customer, while another came from a co-employee. The complaints were that Petitioner treated them rudely. During her employment, Petitioner complained that her work duties were heavier than those of the morning clerk. Mr. Wienhoff relieved Petitioner of certain duties related to tagging each garment dropped off during the afternoon shift. None of the other stores out of the four area stores had similar requests to remove this duty. Petitioner testified that the morning clerk, a white female, Amanda Sidner, was given a lighter workload. Petitioner further testified that Ms. Sidner was given additional hours during Petitioner's vacation, yet Petitioner was not given additional hours during Ms. Sidner's vacation. Mr. Wienhoff testified and Petitioner admitted that she took vacation days during the same week that Ms. Sidner took vacation days. Further, Petitioner was given additional hours during the days Ms. Sidner was on vacation, and the balance of those hours that Petitioner was not interested in working went to Petitioner's daughter, Anastarsia Martinez, also an African- American female. On December 14, 2010, Petitioner was issued her second and final corrective action report by Mr. Wienhoff. At that time, Mr. Wienhoff terminated Petitioner due to the ongoing complaints about her behavior in the workplace. Respondent also established the racial composition of every employee under Mr. Wienhoff's supervision. The company profile in Pensacola shows a racially diverse mix of employees. Petitioner candidly testified that she never heard Mr. Wienhoff make racially insensitive comments to her or any other employee. Her claim of discrimination is based upon favoritism. She believes that other employees were treated better than she, but did not tie this perceived favorable treatment to their race.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that no act of discrimination was committed by Respondent and dismissing the Petition for Relief. DONE AND ENTERED this 27th day of January, 2012, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Thomas A. Groendyke, Esquire Douberley & Cicero 1000 Sawgrass Corporate Parkway, Suite 590 Sunrise, Florida 33323 Mary Cottrell 776 Backwoods Road Century, Florida 32535 Christopher J. Rush, Esquire Christopher J. Rush & Associates, P.A. 1880 North Congress Avenue, Suite 206 Boynton Beach, Florida 33426 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent terminated Petitioner's employment in violation of the Florida Civil Rights Act of 1992 (Florida Civil Rights Act or the Act).
Findings Of Fact Petitioner was employed by Respondent at various times beginning in February 1999 and ending in her termination effective September 30, 2004. Respondent is an employer within the meaning of the Florida Civil Rights Act. At all relevant times, Respondent is in the hotel business. Respondent provides related services and amenities to its guests and to the general public, including a restaurant and bar on the hotel premises. Petitioner commenced her employment with Respondent as a waitress and was eventually promoted to bartender. At all relevant times, she worked under the supervision of Kurt Pfister (Pfister). At no time prior to the commencement of her employment, nor at any time during her employment, did Petitioner advise Respondent that she was disabled in any way, or that she required any type of accommodation(s) for any medical condition or disability in order to perform her job. Likewise, Petitioner never advised Respondent that she had ever been diagnosed, treated, or hospitalized for any medical condition or disability. In fact, as Petitioner herself admits, she first claimed to be disabled approximately two weeks after she was terminated. Petitioner, as well as all of Respondent's employees, were trained in and required at all times to follow all of Respondent's policies and procedures generally applicable in its workplace. Additionally, every employee was trained in and expected to comply at all times with all policies and procedures applicable to his or her particular job. Violation of any of Respondent's policies or procedures subjected an employee to disciplinary action ranging from counseling to termination. As a bartender, Petitioner was trained and responsible for taking food and beverage orders; to present patrons with their bill(s); and to collect an approved form of payment, including cash. With regard to cash, Petitioner was trained in Respondent's policies and procedures known as "cash control policies." Cash control policies included a specific process for reconciliation of cash and tips at the end of each shift and a process for making cash drops and filling out deposit logs. Petitioner and all similarly situated employees were required to comply with cash control policies and were subject to disciplinary action up to and including termination if they failed to do so. Petitioner was qualified for her bartending position, and from the beginning of her employment through September 16, 2004, Respondent was well satisfied with Petitioner's work. Petitioner was often called upon to train new bartenders with regard to Respondent's policies, including cash control policies. She did so very well. For her efforts, Petitioner achieved the status of Respondent's most senior bartender, and as a reward was given the best shifts. Respondent enforced a policy against smoking on its grounds, except that smoking was permitted in a small, outside area at the south end of the premises. Petitioner was well familiar with the smoking policy and to Respondent's knowledge, complied with it until September 16, 2004. On that date, Petitioner was discovered smoking in a liquor storage room located inside the hotel building. She was given a written reprimand. Apart from the smoking infraction, Petitioner's September 16, 2004, shift was uneventful. She gave no indication to her customers or supervisors that she was in distress or could not perform her duties on account of disability or any other reason, nor that she required any type of accommodation(s) to perform her job. Yet, on that night, Petitioner failed to follow cash control policies at the end of her shift. Of most concern to Respondent was that Petitioner left work with her cash sales short for the evening in the amount of $97.64. On September 17, 2006, Pfister learned of the policy violations and the attendant cash shortage; he thereupon contacted Petitioner by telephone. Petitioner again did not indicate to Respondent that she could not perform her duties on account of disability or any other reason, nor that she required any type of accommodation(s) to perform her job and to comply with cash control policies. Petitioner conversed normally with Pfister and acknowledged that she had the $97.64 belonging to Respondent. Although she was not scheduled to work again until September 21st, she agreed to meet with Pfister and to return the money on September 19, 2004. Petitioner did not show up for the meeting. Neither did she return the money, or contact Pfister to advise when, or if, she would return the money. Respondent was entitled, at that point, to treat the matter as a theft; to terminate Petitioner's employment; and to seek law enforcement's assistance in recovering its money. Instead, Respondent exercised forbearance and gave Petitioner an indefinite suspension to afford her additional time to return the money and to explain to Pfister her reason(s) for failing to follow cash control policies on September 16, 2004. Respondent enforced a policy it called the no-call, no-show rule. Under the rule, employees are required to provide Respondent with four hours’ notice if for any reason they are unable to report on time for a scheduled shift. Absent extraordinary circumstances, which do not exist here, failure to provide the required notice is ground for disciplinary action. On September 21, 2004, and again the next day, Petitioner failed to report for her scheduled shift(s). She also failed to fulfill the four-hour notice requirement of the no call, no-show rule. For these two violations of the no-call, no-show policy, Petitioner was given a written warning. On September 23, 2004, Petitioner telephoned Pfister from an undisclosed location and advised she could not work previously scheduled shifts for the balance of the week. At first, Petitioner claimed she wanted time off on account of her “health.” Pfister offered her the opportunity to submit medical documentation in support of her request. At that point Petitioner stated that she was not seeing a doctor(s), and further stated that she was out of the state with her boyfriend. Petitioner added that she did not care about the hotel; that she was going to take care of herself first. Pfister responded that Petitioner should call him upon her return to town because the issue concerning the $97.64 could not remain unresolved. In the course of this conversation, Petitioner did not advise Respondent that she was disabled in any way, or that she required any type of accommodation(s) for any medical condition or disability in order to perform her job. Petitioner's next contact with Respondent was on September 29, 2004, when Petitioner called Pfister and said she was back in town and wanted to meet with him. It was agreed the meeting would take place the following day at 1:00 p.m. and would also be attended by Rick Reilly (Reilly), Respondent’s senior vice president. Petitioner did not arrive at the appointed time and did not call to explain her absence. Instead, she arrived at 2:10 P.M. Petitioner smelled of alcohol; she swayed, staggered, and slurred her speech. She was profane and belligerent. Petitioner again failed and refused to return Respondent's money or to explain why she took the money. As previously and repeatedly noted, Petitioner did not take this opportunity to advise Respondent that she was disabled in any way, or required any type of accommodation(s) for any medical condition or disability in order to perform her job. She did, however, state that she was "not coming back" and demanded a paycheck and vacation pay. Reilly asked her if she was resigning and she replied, "I guess so." Fearing that Petitioner would attempt to deny or to retract her ambiguous resignation when she sobered up, Pfister and Reilly made a reasonable determination, based upon legitimate non-discriminatory business reasons, to terminate her employment effective September 30, 2006. The termination was not pretextual. There was no evidence regarding who, if anyone, replaced Petitioner. There was no evidence Petitioner was, at any time, treated less favorably than any similarly situated co- worker on account of her membership in any protected class, or for any other reason. Petitioner did not dispute that Respondent had no reason, at any relevant time, to believe she needed accommodations of any sort to perform her job. On October 15, 2004, Pfister received a fax from Petitioner requesting a "leave of absence, medical reason." In apparent support thereof, Pfister also receive a fax purporting to be from a doctor and further purporting to provide a medical explanation for Petitioner's request for "leave of absence, medical reason." In the latter fax, a representation was made that Petitioner was presently hospitalized for "an undetermined amount of time" due to "depression symptoms for the last several month (sic) in context of stressors related to her job and impending hurricanes." This information, such as it was, was untimely and was insufficient to cast doubt upon the bona fides of Petitioner's termination. On November 1, 2004, Petitioner came to Pfister's office to pick up her check(s) and, at last, to return Respondent's money. She made no comment or complaint regarding any alleged disability; neither did she indicate in any way that she believed herself to be a victim of discrimination. In sum, Petitioner could have been terminated as early as September 16, 2004, for legitimate non-discriminatory business reasons. There is no persuasive evidence that disability played any role in Petitioner's termination. Indeed, there was no persuasive evidence that Petitioner was, at any time, disabled within the meaning of the Act, or within the meaning of any other state or federal law. There was no evidence that Petitioner was replaced by a non-disabled individual, nor that she was, at any time, treated less favorably than any similarly situated co-worker.
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 argument of the parties, it is RECOMMENDED that the FCHR issue a final order dismissing the Petition for Relief. DONE AND ENTERED this 9th day of November, 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 9th day of November, 2006.
The Issue The issues are whether Respondent, Parkland Rehabilitation and Nursing Center (Parkland), committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, when it terminated the employment of Petitioner, Ardel Hannah, and whether it subjected Petitioner to disparate treatment on the basis of his national origin.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Parkland is a rehabilitation and nursing center located at 1000 Southwest 16th Avenue, Gainesville, Florida. It is an employer as that term is defined in Section 760.02(7), Florida Statutes. Petitioner is a black male of American national origin. Although his actual date of employment is not of record, the evidence reflects that Petitioner had been employed by Parkland's maintenance department for more than ninety days when he was suspended on August 24, 2007, and then formally terminated by letter dated September 7, 2007. His primary job assignment was to repaint residents' rooms at the facility after the rooms were vacated. Petitioner's supervisor was Arthur Ellesten, Director of Maintenance, who is originally from Jamaica but is now a United States citizen. Although Mr. Ellesten has authority to hire employees in that department, he does not have authority to terminate employees. Two other workers on the maintenance staff, including Vichaun Palmer, were of Jamaican national origin. Michael Rau was the Administrator of the facility and its most senior employee. Mr. Rau has the authority to hire and terminate employees. He is of American national origin. On August 21, 2007, Mr. Ellesten verbally counseled Petitioner based on his unsatisfactory job performance. Petitioner became hostile towards Mr. Ellesten during this counseling session and swore at Mr. Ellesten. Petitioner was informed that he would be formally written up if his performance did not improve. Prior to August 24, 2007, Mr. Rau verbally counseled Petitioner on at least two occasions for his poor job performance, based on his slow progress at assigned tasks and fraternizing with female staff members for long periods of time during regular working hours. An incident occurred on August 24, 2007, which, when coupled with his prior unsatisfactory job performance, culminated in Petitioner's suspension and termination. Although the testimony regarding the incident is conflicting in many respects, the following facts are found to be the most credible. On that date, Petitioner arrived at work around 8:00 a.m. and confronted Mr. Ellesten in the courtyard of the facility. Petitioner requested Paid Time Off (PTO) for that day, which is paid leave accrued by full-time employees. Petitioner was told that he would have to request a form from Mr. Rau. Believing that Mr. Ellesten had provided PTO forms to the other Jamaican maintenance workers, Petitioner became angry and began swearing at his supervisor. Seeking to avoid a physical confrontation, Mr. Ellesten left the courtyard to return to his office on the second floor. Petitioner followed Mr. Ellesten up the stairs to the office where Petitioner verbally threatened to kill him. After Petitioner refused to leave the office, Mr. Ellesten called security, who telephoned the police department. Mr. Ellesten then departed his office, and as he was walking down the stairs, Petitioner pushed him. However, he was not injured. Petitioner left the premises a few minutes later and returned to an apartment complex where he lived. After security contacted the police department, Officer Moore was dispatched to Parkland. Mr. Ellesten requested that Officer Moore not file criminal charges against Petitioner but only give him a trespass warning. Officer Moore then went to Petitioner's apartment and issued a verbal trespass warning. This is evidenced by an Incident/Investigation Report prepared by Officer Moore. Petitioner later returned to Parkland the same day where he met with Mr. Rau to discuss the incident. During their conversation, Petitioner alleged that Mr. Ellesten had physically attacked him that morning. After Officer Moore arrived a few minutes later and joined the two, Petitioner did not repeat the allegation. Pending a further investigation of the matter, Mr. Rau suspended Petitioner. Petitioner never filed a complaint with the police department against Mr. Ellesten, and he never filed a complaint or grievance with anyone at Parkland alleging that Mr. Ellesten had attacked him, as alleged in his Petition for Relief. Also, he never informed Mr. Rau that he was treated different or unfairly by Mr. Ellesten, other members of the maintenance department, or other employees of Parkland. Finally, he never complained that the other two workers in the maintenance department were treated more favorably than he. Violence against a co-worker or supervisor is considered unacceptable conduct and by itself is a basis for termination by Mr. Rau and Parkland. As a part of his investigation, Mr. Rau questioned Mr. Ellesten about the events on August 24, 2007, obtained a written statement from Mr. Ellesten, spoke with Petitioner on August 24, 2007, and reviewed the Incident/Investigation Report prepared by Officer Moore. On September 7, 2007, Mr. Rau sent Petitioner a letter formally terminating his employment with Parkland based on the August 24, 2007, incident and "past issues related to [his] performance and conduct." There is no evidence, direct or circumstantial, that national origin was considered at any point during Petitioner's employment or that national origin played a part in his termination. Further, no credible evidence, direct or circumstantial, was submitted to show that he was otherwise subjected to disparate treatment because he was an American.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Parkland did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 22nd day of October, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 22nd day of October, 2008. COPIES FURNISHED: Denise Crawford, Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 200 Tallahassee, Florida 32399-4857 Ardel Hannah 996 Southwest 16th Avenue Apartment 904 Gainesville, Florida 32601-8483 Lauren M. Levy, Esquire Levy & Levy, LLC 4230 South MacDill Avenue, Suite 230 Tampa, Florida 33611-1901 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32399-4857
The Issue The issue to be resolved in this proceeding is whether Petitioner was the subject of an unlawful employment practice based on his age.
Findings Of Fact Currently, Petitioner is a retired, 68-year-old male. He retired from Respondent at the age of 66. Petitioner began his employment with Respondent as a truck driver. The position of truck driver, involves many long hours of driving (sometimes over 56 hours) various interstate and intrastate truck routes, along with some lifting and exposure to diesel fumes. Petitioner attributed a variety of illnesses and health problems to his work as a truck driver. Some of the illnesses and health problems are hypertension and heart blockage and failure, which resulted in the implantation of a pacemaker, carpal tunnel syndrome, polyneuropathy, muscular and autonomic system problems and pathological hyper-insomnia. Petitioner offered no evidence that any of these conditions resulted from his employment with Respondent. Prior to September 9 or 10, 2000, at the age of 64, Petitioner was hospitalized for heart problems. Around September 9 or 10, 2000, Petitioner was released from the hospital. Upon his return to work, he gave his employer a physician’s note indicating that his work duties be limited to 40 hours a week. Petitioner met with Respondent’s transportation manager regarding whether less lengthy routes were available or whether his schedule or work duties could be adjusted. The employer did not have the ability to adjust the length of the routes, but added a second driver to ride and help with the driving on any route that Petitioner drove. Petitioner inquired about office work and was told that if he was interested in such work he needed to apply at the main office to see what was available. In part, because Petitioner liked driving and in part because the lesser number of hours involved in office work would cause Petitioner to earn less, Petitioner elected not to pursue and did not apply for such office work. No adverse employment action was taken against Petitioner, and Petitioner continued to work for Respondent. At some point during this meeting, Petitioner alleges that the transportation manager said, “Why don’t you just retire.” Petitioner offered no specific context for this statement other than it was a general conversation about his health and closeness to retirement age relative to the adjustments that could be made to his driving duties. One isolated statement such as the one above does not demonstrate any intent to discriminate on Respondent’s part based on Petitioner’s age, especially since no adverse employment action was taken against Petitioner and Petitioner continued to work for Respondent. Around January 1, 2001, for medical reasons, Respondent approved a Leave of Absence with pay for Petitioner. In June or July, 2002, Petitioner filed his first workers compensation claim with Respondent. Petitioner’s claim was turned over to Respondent’s workers' compensation insurer, Kemper Insurance Company. Petitioner did not offer any evidence that Kemper was under the direction or control of Respondent in any decisions Kemper made regarding paying or litigating Petitioner’s claim. In any event, Petitioner’s claim was contested. The main reason the claim was contested was that Kemper alleged that Petitioner’s “injuries” were not work-related. Over the years, Petitioner has amended his claim to include, among other health claims, the health problems listed above. Kemper has maintained its defense. During a mediation session on December 11, 2002, at which the employer was not present and in response to an inquiry regarding Kemper’s defense, Kemper’s representative stated that except for the carpal tunnel claim, all of Petitioner’s medical conditions were due to the natural aging process. Petitioner claims this statement demonstrates an intent on his employer’s part to discriminate against him based on his age. Such an isolated statement does not demonstrate such an intent especially since such conditions can be age related, there was no expert medical evidence demonstrating the cause of Petitioner’s health problems, the statement did not come from the employer, and there was no evidence that the insurer was under the direction or control of the employer regarding decisions to litigate or the factual basis for the defenses that the insurer would raise. The workers' compensation litigation continues to date. In the interim, Petitioner remained on a leave of absence with pay until January 1, 2003. He retired thereafter. There was no evidence that Respondent discriminated against Petitioner or that Petitioner suffered any adverse employment action based on his age. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relation 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Glynda Copeland Qualified Representative Tree of Life, Inc. Post Office Box 410 St. Augustine, Florida 32095-0410 Robert C. Johnson 560 Florida Club Boulevard, Suite 112 St. Augustine, Florida 32084
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was discriminated against by being terminated, allegedly on account of her race, and in retaliation for filing a claim concerning discrimination.
Findings Of Fact Tammy King, the Petitioner, became employed by the Respondent in June of 2000. She was employed as an operations manager, supervising the cleaning service work for various customer accounts as well as the people employed to perform the cleaning service work for those accounts. She was employed by the Respondent for approximately one year. The owners of the Respondent company are Linda and Daniel Coley. On October 18, 2000, Ms. King was evaluated by her evaluator and supervisor Christopher Stettner and received an excellent evaluation, which was apparently co-extensive with the end of her probationary period. Gene Janushanis also was in a supervisory capacity over the Petitioner. Mr. Janushanis, in his supervisory role, is the primary focus of the Peititoner's complaint of discriminatory conduct concerning his conduct and attitude toward her. The Petitioner contends, in essence, that Mr. Janushanis refused to allow the Petitioner to discipline black employees and treated her more harshly, with harassment, including cursing at her, and otherwise interfered with her performance of her job. She stated that he treated black employees, including black supervisors in similar positions to the Petitioner, more favorably, as to disciplinary or job performance issues, than he treated the Petitioner. The Petitioner maintains that she had no problems, disciplinary or otherwise, in the performance of her job before Mr. Janushanis was hired as her supervisor and that their numerous altercations commenced shortly thereafter. However, she also developed a difficult relationship with Christopher Stettner, the supervisor who gave her the excellent evaluation at the end of her probationary period. Apparently, their relationship deteriorated soon thereafter and became quite hostile. In fact, Mr. Stettner filed an internal complaint or grievance against the Petitioner concerning alleged harassment of him by the Petitioner. This resulted in the Respondent's scheduling additional "anti-harassment training" for the Petitioner and other employees thereafter. Thus, a hostile relationship with abrasive arguments ensued between the Petitioner and Mr. Stettner, as well as between the Petitioner and Mr. Janushanis, starting in the late part of 2000 and through the first half of the year 2001. Cassey Clark, the Human Relations Director for Respondent, witnessed a number of "very harsh arguments" between Tammy King and office employees or supervisors Dwayne Coley, Chris Stettner, and Gene Janushanis. Both owners and employees witnessed very hostile, violent arguments between Mr. Janushanis and the Petitioner on a number of occasions, sometimes in the presence of customers of the company and generally in the presence of other employees or owners. These altercations included instances where the Petitioner refused to perform directions of her supervisor. Additionally, a substantial number of employees had verbal altercations with the Petitioner concerning receiving credit for, and payment for, the hours they had worked. On a repetitive basis the Petitioner failed to submit correct hours for the payroll and in one case got into a verbal altercation with an employee, Sonya Ross, chased the employee out in the parking lot, and refused to give her her last paycheck, telling her that she would mail the check to her, which was against company policy. The Petitioner exhibited a hostile, threatening attitude and conduct toward employees concerning hours worked and other aspects of her opinion of the way they were performing their jobs, as well as concerning payroll issues. Such instances occurred with at least nine employees. This hostile, threatening attitude and failure to comply with the payroll policies of the Respondent, as well as the several instances of the Petitioner failing to perform as directed by her supervisors, constituted misconduct under the regular policies of the Respondent. These instances of misconduct occurred on a frequent basis through the first half of 2001, including an instance where an employee called to state that she had to be out for two days because her baby was sick with a high fever. The employee followed company policy and provided documentation from the physician involved concerning her need to be off from work. She then called Tammy King to say that she had to go back to the hospital with her child, and Ms. King told her that she would be terminated. The employee then called the owner, Linda Coley, to inform her of the problem because she was afraid of losing her job. Ms. Coley then spoke with Ms. King and reminded her that it was against company policy to terminate an employee if he or she brought proper documentation from the physician or hospital, which was the case. This also was a clear violation of company policy concerning employees and supervisors. These instances of misconduct and the very hostile verbal altercations between the Petitioner and Mr. Janushanis, her branch manager, continued until June of 2001. The Respondent counseled with both the Petitioner and Mr. Janushanis about their conduct and attitude between themselves and toward other employees. Ultimately the decision was made in mid-June 2001 to terminate the Petitioner and Mr. Janushanis as well. On June 22, 2001, the Petitioner was terminated, as was Mr. Janushanis, on the same date. On June 20, 2001, the Petitioner had filed a complaint with the EEOC, by letter, and informed the Respondent of that fact. The decision to terminate the Petitioner, however, had been made prior to the filing of the complaint with the EEOC. The Petitioner has failed to establish that any actions taken by the Respondent toward her were related to her race. The supervisor complained of by the Petitioner was of the same race, white, and there is no persuasive evidence that shows any intent by the owners or management of the company to treat similarly-situated members of another race more favorably. In fact, there was preponderant and substantial evidence of misconduct on behalf of the Petitioner which established a legitimate, nondiscriminatory reason for her termination. Although her initial performance was rated as excellent in the initial months of her employment, the Petitioner failed to continue that level of performance. In fact, her misconduct on the job, including the instances enumerated in the above findings of fact shows that the Petitioner's conduct and performance had deteriorated so that she was not properly performing the various requirements of her employment position, when viewed in the context of regularly- adopted company policy. Upon the Respondent's becoming aware of these conduct shortcomings, and failure to properly perform in her position, as well as the improper conduct by her supervisor, the Respondent did not condone the Petitioner's level of conduct nor that of her supervisor, Mr. Janushanias. Rather, the Respondent sought to assist them in improving their conduct and performance. When these efforts were not successful, the Respondent ultimately terminated both of them.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 3rd day of December, 2003, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2003. COPIES FURNISHED: K. Jeffrey Reynolds, Esquire 924 N. Palafox Street Pensacola, Florida 32501 Banks T. Smith, Esquire Hall, Smith & Jones Post Office Box 1748 Dothan, Alabama 36302 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, Cracker Barrel Old Country Store (Respondent), committed the unlawful employment practice, as alleged, in the Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner, Reza Mahallaty (Petitioner), be granted.
Findings Of Fact Petitioner did not testify in this case. Based upon the undisputed testimony of the witnesses, Petitioner was employed by Respondent and served as a senior assistant manager (SAM). At all times material to the allegations of the case, Respondent employed Petitioner. As a nationally recognized purveyor of food and goods to the public, Respondent presumably employs more than 15 employees. At all times material to this matter, Respondent used a management structure at its stores that included managers in training, assistant managers, senior assistant managers, and general managers. Persons seeking to become general managers typically work their way through the ranks and serve as a SAM before promotion to general manager of a store. On or before August 2010, Petitioner sought a position with Respondent as a general manager. He did not get the promotion. Thereafter, he filed the underlying complaint with FCHR. The complaint stated: I have been employed by Cracker Barrel Old Country Store since June 26, 2006. My most recent position is Senior Associate Manager. I hereby allege that I have been discriminated against due to my race and national origin in violation of Title VII of the Civil Rights Acts of 1964. The foregoing allegations were made under penalty of perjury and for purposes of this case have been accepted as to the facts alleged, but not as to the legal conclusion of discrimination. Petitioner presented no evidence as to his race or national origin. Petitioner’s Petition for Relief reiterated his conclusion that he had been discriminated against based upon his claim of being Iranian and of Persian origin. In addition to not having received promotions, Petitioner included complaints about retaliation that were not addressed by the FCHR. As previously indicated, retaliation issues are not part of the determination that was presented for administrative review. With regard to Petitioner’s attempt(s) to be promoted prior to August 2010, Petitioner did not present evidence that he was more qualified than the applicant Respondent chose. Respondent uses an interview process that rates the candidates for general manager by a selection team. The selection team looks at the candidates’ credentials, history with the company, and responses to the interview questions to rate each applicant for the position sought. Petitioner did not present evidence that he had achieved a higher score in the rating process than the applicant chosen. Petitioner did not present evidence that Respondent knew or should have known Petitioner was the best qualified candidate for the position of general manager. Petitioner did not present evidence that Respondent selected a candidate for general manager that had fewer years of employment with the company than Petitioner. Petitioner did not present evidence that any general manager Respondent selected in preference to Petitioner was of a race or national origin that received special deference over Petitioner. Other than Petitioner’s assertion that he must have been denied promotional opportunities due to his race and national origin, Petitioner failed to establish bias on Respondent’s part. To the contrary, Respondent asserted that Petitioner was not qualified to be a general manager because he was unwilling to master and fully support the company’s core operating systems, the company’s philosophies, and the company’s initiatives. Petitioner presented no credible evidence to refute Respondent’s assertion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 10th day of April, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Shane T. Munoz, Esquire Ford and Harrison, LLP 101 East Kennedy Boulevard, Suite 900 Tampa, Florida 33602 Reza Mahallaty 656 English Lake Drive Winter Garden, Florida 34787 Larry Kranert, General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Respondent, AAR Airlift Group, Inc. (Respondent), committed the unlawful employment practice as alleged in the Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner, Gabriel C. Gaudio (Petitioner), be granted.
Findings Of Fact Petitioner is a male over 50 years of age. On or about May 9, 2009, a company located in North Carolina hired Petitioner to work as a Technical Publications Clerk. Petitioner was over 40 years of age at the time of his employment. Prior to March 2012, Petitioner relocated to Florida to continue employment with the company that then became known as AAR Airlift Group, Inc. Respondent does business in Melbourne, Brevard County, Florida, and has over 15 employees, one of whom was Petitioner. At all times material to this matter, Respondent employed Steve Lane (Lane) and Melvin Zahn (Zahn) as supervisors with the company. At all times material to the allegations of this case, Respondent had policies that prohibit discrimination on the basis of age, disability, and any other reason prohibited by law. Any employee who believed discrimination had occurred was directed to report to the local Human Resources Department or to the Corporate Vice President of Human Resources. Respondent’s employees are considered “at will.” Respondent reserves the right to involuntarily terminate any employee for any reason or for no reason unless to do so would violate law. Petitioner maintains he was terminated in retaliation for a complaint he submitted because of his age, or because of his disability. All of the actions complained of occurred between March 2012 and June 2012 (when Petitioner was terminated). It is undisputed that Petitioner’s age would establish he is a member of a protected class. It is undisputed that Petitioner was terminated after he submitted a complaint against his co-workers. Although Petitioner asserted he is disabled, Petitioner presented no evidence to establish the nature of his disability or that Respondent required him to perform tasks contrary to his physical or mental limitations. There is no evidence that Respondent failed to accommodate any claimed limitation Petitioner might have had. In April 2012, Respondent issued a Performance Improvement Plan (PIP) to Petitioner to outline areas of his job performance that needed improvement. It was anticipated that Petitioner would address the areas of concern and make improvement within 90 days. Upon receipt of the PIP Petitioner filed a claim of hostile work environment with the company’s human resources office. More specifically, Petitioner claimed two employees, Zahn , technical publications manager, and Rachel Grygier (Grygier), a technical publications librarian, had disparaged him regarding his age and disability. To address Petitioner’s complaint, Respondent initiated an internal investigation of the claim. As part of the investigation process, Respondent directed Petitioner not to disclose or discuss the accusations of his claim with anyone. Respondent sought to resolve the matter without having the allegations discussed among employees before individual statements could be taken. Contrary to the directive, Petitioner discussed his complaint against Zahn and Grygier with at least one other employee. That employee (Barnett) e-mailed support for Petitioner to JoAnne Paul (Paul), Respondent’s human resources compliance manager. When Paul confronted Petitioner as to whether he had discussed his complaint with Barnett, Petitioner falsely denied knowing Barnett. Paul took Petitioner’s failure to maintain confidentiality regarding his complaint to Lane, Respondent’s director of quality assurance and internal evaluations. Together, Paul and Lane decided to terminate Petitioner. The basis for the termination was two-fold: the failure to follow a directive not to discuss the complaint; and the lack of truthfulness when asked about knowing Barnett. Petitioner maintains that his termination was in retaliation for his complaint against Zahn and Grygier and that the company wanted him out. Petitioner presented no evidence that after his termination he was replaced with a younger employee. Even though Petitioner did not establish the nature of his disability, Petitioner presented no evidence that he was replaced by a non-disabled person or that his handicap caused Respondent to terminate him. Further, Petitioner did not establish that any area of concern noted in his PIP related to his disability. Neither Zahn or Grygier had anything to do with Petitioner’s termination. Finally, Petitioner failed to present credible evidence that filing a complaint against Zahn and Grygier was the genesis for his termination. Petitioner was a long-time employee with the company. He had started in North Carolina and moved to Melbourne with the company. Had Respondent wanted to terminate him for any reason it could have done so prior to the move or after the move. Petitioner’s claim that his complaint against Zahn and Grygier caused the termination is not supported by the weight of persuasive evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 31st day of May, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Gabriel Gaudio 259 Abernathy Circle, Southeast Palm Bay, Florida 32909 Chelsie J. Flynn, Esquire Ford and Harrison, LLP Suite 1300 300 South Orange Avenue Orlando, Florida 32801 Michelle Wilson, Executive Director Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
