The Issue The issues in this case are whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (''FCHR''), and, if so, what relief should be granted.
Findings Of Fact Petitioner is an African-American female. Petitioner began working for Respondent as a part-time Self-Checkout Host on February 1, 2017. Upon hiring, her initial rate of pay was $9.00 per hour. After three months of employment, Petitioner’s pay was increased to $10.00 per hour in May of 2017. Subsequently, Petitioner received pay increases raising her hourly rate to $11.00, and then $11.50. In April of 2018, Petitioner was promoted to the full-time position of Customer Service Manager (''CSM''). Along with the promotion, Petitioner also received a raise, bringing her rate of pay to $13.65 per hour. In April of 2019, Respondent gave Petitioner another raise, resulting in hourly pay of $13.90. Respondent maintained a Statement of Ethics, of which Petitioner was aware. The Statement of Ethics explained that Respondent’s overall operations were guided by four core Beliefs, which were: Respect for the Individual; Service to our Customers; Striving for Excellence; and Act with Integrity. Based on what she heard from her coworkers, Petitioner believed that she was entitled to a market-adjustment pay increase in April of 2019. She sought information about the pay increase from her store manager and others. Petitioner reported her belief that she was entitled to a pay increase, which she had not received, to Respondent’s Associate Relations Department (''Department''). After what was described as a thorough review of Petitioner’s concerns, the Department closed the matter. Petitioner testified that a white male named Chance was making more money than she, based on conversations between Petitioner and Chance. Chance worked as a Money Manager Associate, a position that Petitioner never held during her employment with Respondent. Ms. Durocher testified that Chance was not paid more than Petitioner. In 2019, there were ten individuals who held the position of CSM at the store where Petitioner worked. In addition to Petitioner, those who worked in CSM positions included multiple African-American females and one African-American male. Petitioner did not present any evidence to suggest or establish that any male, or non-African-American, employee was paid more than she was for performing similar work. On October 26, 2019, Petitioner discussed the problem she perceived with her rate of pay with Ms. Durocher. During their conversation, Petitioner raised her voice and the interaction escalated to the point that another employee went to enlist the assistance of the Store Manager. When the Store Manager arrived, he joined the conversation with Petitioner and Ms. Durocher. Ms. Durocher expressed to Petitioner that she believed that Petitioner was being paid commensurate with her skills and duties; and that her rate of pay had been investigated and was determined to be appropriate. Throughout the conversation, Ms. Durocher perceived Respondent’s conduct to be disrespectful. Ms. Durocher and the Store Manager repeatedly encouraged Petitioner to calm down, but their attempts were unsuccessful. On the same day, Petitioner’s employment was terminated by Respondent for violating the core Belief of Respect for the Individual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of February, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk S BRITTANY O. FINKBEINER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2021. Jamie Rotteveel, Esquire Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Jeruscha Toussaint 5835 Northwest Lomb Court Port St. Lucie, Florida 34986 Allison Wiggins, Esquire Littler Mendelson, P.C. 111 North Orange Avenue, Suite 1750 Orlando, Florida 32801 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Littler Mendelson, P.C. 2301 McGee Street, 8th Floor Kansas City, Missouri 64108 Kimberly Doud, Esquire Littler Mendelson, P.C. 111 North Orange Avenue, Suite 1750 Orlando, Florida 32801 Nancy A. Johnson, Esquire Littler Mendelson, P.C. 111 North Orange Avenue, Suite 1750 Orlando, Florida 32801
The Issue Whether Respondent, Department of Transportation, discriminated against Petitioner, Charles Bean, on the basis of his age and retaliated against him, as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2004).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent is a public agency of the State of Florida. It has offices throughout Florida commensurate with its responsibilities. Petitioner is a Caucasian male. He is a long-time employee of Respondent. By letter of July 1, 2003, Petitioner was dismissed from his position as a technician for insubordination and conduct unbecoming a public employee. Petitioner did not offer any evidence of his actual age or that, other than his stated opinion, his age was the reason he was discharged. He did indicate that his age and experience were mentioned referable to his capacity to teach inexperienced employees and to perform his job. Petitioner did not offer any evidence regarding a replacement for the position from which he was discharged or of any employee who was treated differently than he. Petitioner did not offer any evidence of retaliation. He made a vague statement that he was the victim of retaliation, but did not offer any basis for his opinion. Petitioner refused to complete work assignments in a timely manner. These assignments were appropriate for his job responsibilities. When questioned by his supervisor regarding his failure to complete a particular job responsibility, Petitioner became defiant refusing to provide a written explanation; his angry response to the request included expletives. He then threatened a fellow employee who overheard the exchange between Petitioner and his supervisor. Petitioner's immediate supervisor does not believe age had any bearing on Petitioner's discharge. In addition, he supervises two other employees, aged 53 and 63. Petitioner's conduct violated the published Disciplinary Standards for State of Florida Employees.
Recommendation Based of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief and finding that Petitioner failed to present a prima facie case and, additionally, that Respondent demonstrated, by a preponderance of the evidence, that Petitioner's termination was not based on unlawful discriminatory reasons. DONE AND ENTERED this 9th day of August, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 J. Ann Cowles, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Charles Bean 431 Buffalo Street West Melbourne, Florida 32904 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact At the formal hearing in this cause on September 14, 1987, the Petitioner appeared 30 minutes late for the hearing. Notice of Hearing and Order of prehearing instructions were mailed to Petitioner at her correct address on August 21, 1987, and were not returned by the U.S. Post Office. Additionally an initial Order regarding the procedural matters and rights was mailed to Petitioner at her correct address on August 3, 1987, and was not returned by the U.S. Post Office. When Petitioner did appear for the formal hearing, she indicated that she was unwilling to proceed or to present evidence because the hearing was "a set-up" and part of a conspiracy against her. She also refused to testify on her own behalf because she did not wish to be "crucified." Petitioner requested that the undersigned Hearing Officer call an attorney for her. Petitioner was advised that the undersigned could not do so. Petitioner then indicated that she was not mentally or emotionally prepared to proceed. The undersigned advised Petitioner of her burden of proof and burden of going forward. Petitioner failed or refused to present any evidence in support of her Petition for Relief.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order denying relief to Petitioner, Victoria L. Williams, and dismissing the Petition for Relief. DONE AND ENTERED this 16th day of September, 1987, in Leon County, Tallahassee, Florida. DIANE K. KIESLING 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 September, 1987. COPIES FURNISHED: Victoria L. Williams 6806 Northeast 39 Avenue Gainesville, Florida 32606 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Tallahassee, Florida 32399-1570 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1570 Don Royston Senior Attorney Department of Health and Rehabilitative Services 1000 Northeast 16th Avenue Gainesville, Florida 32609
Findings Of Fact The policy being challenged provides that: The hearing may be cancelled if a petitioner or intervenor fails to timely file its prehearing statement. This provision is routinely and customarily embodied in the notices issued by Respondent to parties before it in matters arising under Florida Statutes 447.307 and 447.503. The Respondent acknowledges that it did not adopt and promulgate the policy pursuant to Florida Statutes 120.54 or any other relevant provision of Chapter 120. On 12 July 1979 Petitioner filed a petition with Respondent in which Petitioner sought to represent certain employees employed by the Collier County Board of County Commissioners. This petition was accepted by Respondent and on 30 July 1979 Respondent issued a Notice of Representation Hearing and a Prehearing Order. This Prehearing Order directed the parties to that proceeding to file with Respondent at least seven (7) days prior to the date of the hearing, and serve upon each other, a prehearing statement, identifying: Those fact disputes to be presented for resolution. Any and all legal questions to be presented for resolution. The legal authority to be relied upon by each party in presenting its arguments. Those witnesses to be called at the hearing, except rebuttal witnesses. The approximate time necessary to present the party's case. Any outstanding motions or procedural questions to be resolved. This Pre-Hearing Order then provided: The hearing may be cancelled if a petitioner or intervenor fails to timely file its prehearing statement. Petitioner did not file its prehearing statement within the prescribed 7-day period and on 21 August 1979 Petitioner was notified that the hearing scheduled to commence 23 August had been cancelled. On 22 August Petitioner was advised that a written order cancelling the 23 August hearing had been entered by the Commission. Thereafter Petitioner filed the petition here under consideration contending that the policy of Respondent to enter the cancellation-of-hearing notice in prehearing orders is a rule and invalid by reason of not being promulgated pursuant to Chapter 120. Respondent takes the position that the provision in the prehearing order is not a rule, but even if it could otherwise be considered to be a statement of general applicability, it is exempt from being so found by 447.207(6), Florida Statutes.
The Issue Whether or not Petitioner, Cynthia C. Barber, was harassed, and suffered constructive or retaliatory discharge from employment by Respondent, Modern Plumbing Industries, Inc. ("MPI"), as a result of racial and gender discrimination in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is a black female who, at all times material to the allegations of discrimination in the case, was employed as a plumbing apprentice by Respondent. Respondent is a Florida corporation which operates a commercial plumbing business. At any given time, Respondent may have 20-30 commercial plumbing jobs in Central Florida. These jobs run the spectrum from small residential repair jobs to major commercial installations in shopping centers. Petitioner began working for Respondent in 1996; first as a plumbing assistant, then, after being enrolled in a formal plumbing apprentice program, as a plumbing apprentice, assisting licensed plumbers. When she began working, Respondent sent Petitioner to a wholesale tool supplier where she purchased plumbing tools she would need. Respondent advanced Petitioner the money with which to purchase the tools; this advance was being paid back by automatic withdrawals from Petitioner's pay. In September and October 1997, Petitioner was working as a plumber's apprentice at a job known as the "Oviedo Mall" job. She was one of 10-40 MPI employees on the job. Steven Lewis was the project manager for all MPI jobs. Vincent Pizzuti was the job-site supervisor for the Oviedo Mall job. Chris Bateman was a MPI employee at the Oviedo Mall job working as a plumber. Mr. Bateman had no supervisory authority. In September 1997, an incident occurred wherein Mr. Bateman, who is a white male, threw paper which had been used to wrap a sandwich and a soda can in Petitioner's hard hat. Petitioner was offended by Mr. Bateman's actions and reported the incident to her crew foreman, Mike Higdon. Mr. Higdon immediately asked Mr. Bateman to stop; after a moment, Mr. Bateman stopped. Petitioner believed that this matter was handled satisfactorily. On October 1, 1997, late in the work day, while riding on a golf cart with Mr. Higdon, Petitioner was struck in the back with a "dirt rock." When she turned in the direction the "dirt rock" had come from, she saw Mr. Bateman and another employee looking her way and laughing. Petitioner confronted Mr. Bateman. When she returned to the golf cart, Mr. Bateman threw another "dirt rock." This time the confrontation became physical, and Petitioner and Mr. Bateman had to be separated by co-employees. Petitioner then reported the incident to Mr. Pizzuti who called a co-employee/supervisor on the radio and asked that Mr. Bateman be directed to come to MPI's on-site office. Mr. Bateman had either left the job-site or wouldn't respond to the directive to report to the office; as a result, Mr. Pizzuti advised Petitioner that he would talk to Mr. Bateman the following morning. Later that same evening Petitioner called Mr. Lewis, the project manager. Mr. Lewis advised Petitioner that Mr. Pizzuti had already advised him regarding the altercation, that Mr. Bateman's conduct was unacceptable, and that Mr. Bateman would be fired the following day. The following morning (October 2, 1997), Mr. Bateman was standing outside the job-site office when Petitioner arrived. During a discussion with a co-employee, Petitioner heard Mr. Bateman referring to her as a "bitch" and a "nigger." This resulted in another confrontation. Petitioner then went into the MPI job-site office and reported this incident to Mr. Pizzuti. Mr. Pizzuti then radioed Mr. Bateman's supervisor and directed that Mr. Bateman report to the office. After a few minutes, when Mr. Bateman had not reported to the office, Petitioner advised Mr. Pizzuti that she "could not work under these conditions" and left the job-site. Later that same day, Petitioner received a telephone call from Mr. Lewis who asked her "to come back to the job site, that something would be done" about Mr. Bateman. She told Mr. Lewis that the atmosphere was "too hostile." On October 2, 1997, shortly after Petitioner left the job-site office, Mr. Pizzuti met with Mr. Bateman about his conduct and attitude; an incident report authored by Mr. Pizzuti reflects that Mr. Bateman "became aggravated and stormed out of my [the] office in the middle of the conversation." At this point, Mr. Pizzuti terminated Mr. Bateman. Two days after being terminated, Mr. Bateman was rehired because he "begged for his job back"; MPI was desperate for help; and Petitioner was no longer working at the job-site. Approximately one week after leaving her job, Petitioner attempted to collect her last pay check. She was advised by Mr. Lewis that she had no pay coming because the money advanced for tools had not been paid back. He further advised her that she could be paid if she returned to work and the automatic deduction from her pay continued. During this discussion Mr. Lewis advised Petitioner (quoting Petitioner's testimony) that she "would not have to work with Chris Bateman," apologized for what happened, and assured her "this won't happen again." Petitioner elected to return to work and was assigned to a MPI job-site at Walt Disney World. Mr. McCandless was her job-site supervisor. Although the Walt Disney World job-site was not as convenient to her home as the Oviedo Mall job-site, Petitioner did not make any complaint to MPI management about the re-location. After she started working at the Walt Disney World job-site, Petitioner requested a Friday day-off for child- related reasons; her request was granted. The following Sunday, Petitioner called the MPI answering service to determine what job-site to report to the next day. This was a procedure that was normally used to determine where to report for work. The answering service advised that she was scheduled "off" for Monday. She repeated the process on Monday night and was again advised that she was scheduled "off" for Tuesday. On Tuesday morning, Petitioner telephoned the MPI office and asked to speak to Mr. Lewis and was advised that Mr. Lewis was on vacation. Petitioner then asked to speak to the owner of MPI; she was advised that the owner was not available. Petitioner did not telephone or visit the MPI office following the Tuesday morning telephone call. She did not attempt to call her job-site supervisor, Mr. McCandless. Petitioner just stopped working at MPI.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief herein should be dismissed with prejudice. DONE AND ENTERED this 9th day of August, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2002. COPIES FURNISHED: Cynthia C. Barber 1704 Hawkins Avenue Sanford, Florida 32771 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Amanda J. Green, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Ms. Jones is a person of the African-American race. She worked in Pensacola, Florida, for Attorney Walter Steigleman, who was a contract provider for the Department's Child Support Enforcement (CSE) program. In the Spring of 2007, the Department terminated its contract with Mr. Steigleman and set up its own Child Support Enforcement Program. This program was referred to as the Legal Services Unit (LSU). Thereafter, the Department employed Ms. Jones pursuant to a contract executed June 25, 2007. The Department viewed this new LSU as a "pilot" project and, accordingly, did not wish to establish full-time equivalents pursuant to the state employment system. Therefore, the contract entered into with Ms. Jones was an "at will" employment contract and provided that she could be terminated upon two weeks' notice. Because Petitioner was not a statutory state employee, she had no right to appeal any termination or layoff. Staff hired for the project included Katherine Wright, an African-American attorney; Shayna Marstellar, a Caucasian attorney; Andrew Wood, a Caucasian attorney; Ms. Jones, a legal assistant; Megan McClinnis, a Caucasian legal assistant; Ruth Taylor, a Caucasian legal assistant; Marquieta Howard, a Caucasian legal assistant; Janet Thornhill, a Caucasian legal assistant; and Jacqueline McBride, an African-American senior clerk. Ms. Rhonda O'Kelley was the Regional Manager in overall charge of the Department's operations in the area. Priscilla Phipps, a Revenue Administrator III and veteran of 22 years with the Department, was in charge of the LSU. Ms. Phipps understands that it is in the Department's interest to make accommodations for employees in order to retain them. She has adjusted the hours of employees many times in her career and at some point put Ms. Jones on a flex schedule at Ms. Jones' request. Ms. Jones compared herself with Megan McClinnis. Ms. McClinnis had a young child and was allowed absences so long as she subsequently made up the missed time. Ms. McClinnis often called in late, but was allowed to make up for missed work. Ms. McClinnis was provided cross-training and Ms. Jones was not. However, the extant plan in the LSU was to eventually provide the same cross-training to Ms. Jones. Ms. McClinnis on occasion had quality of work issues. Ms. Jones was paid $17.00 per hour, and Ms. McClinnis was paid $15.00 per hour. Each LSU team member had specialized duties. Ms. Jones and Ms. McClinnis prepared dockets for court and prepared pleadings, and Ms. Jones often attended court proceedings. Ms. Howard prepared petitions. Ms. McBride put the files in order, prepared notices, and acted as a courier. Ms. Taylor worked on judges' cases. Ms. McClinnis was provided cross-training in these activities, and Ms. Jones was not. However, as previously stated, the extant plan in the LSU was to eventually provide the same cross-training to Ms. Jones and other members of the team. In any event, there was no testimony that cross-training was a benefit. PAILS is an acronym for a CSE, computer-based, tracking system. Both Ms. Jones and Ms. McClinnis were trained to use this system, and both could use it, but Ms. McClinnis, according to Ms. Phipps, was faster. Consequently, Ms. Phipps directed Ms. McClinnis, rather than Ms. Jones, to use the machine. There is no benefit to using the PAILS program. By August 2007, Ms. O'Kelley concluded that there were performance problems with the LSU. In order to improve the operation, she made personnel reassignments. Among other moves, she discontinued the practice of having Ms. Jones attend court. She assigned additional people to work on dockets. In September 2007, Ms. Phipps held a meeting with personnel involved with CSE. At the meeting were four African-Americans (Ms. Jones was one of them), one Hispanic, and the remainder were Caucasian. During the meeting there was a discussion regarding the timeliness of the cases set on the docket and the number of cases required to be re-set. During this discussion, Ms. Jones stood up and loudly protested some of the remarks made by certain attendees. This outburst startled some of the attendees and some thought it unlike Ms. Jones to engage in such behavior. Nothing occurring during the meeting was connected in any way to race. Subsequent to the meeting, Ms. Phipps remarked that she was surprised Ms. Jones had acted in an unprofessional manner. The mother of Ms. McClinnis worked for the Department for many years, and was working there when her daughter was employed. Although witnesses denied Ms. McClinnis received special treatment, it was clear that everyone in the office was aware of the relationship, and the relationship had some effect on Ms. McClinnis' privileges. For instance, Ms. McClinnis ignored call-in procedures with impunity. Ms. Jones told Ms. Walker and Ms. O'Kelley that she believed Ms. McClinnis was benefiting from nepotism. Ms. O'Kelley discussed the complaint with regard to nepotism with Ms. Phipps. Ms. Jones never, during the entire term of her employment, made any claim of disparate treatment based on race. The procedure for handling complaints of racial discrimination is to report the complaint to the inspector general. Ms. O'Kelley and Ms. Phipps made no report to the inspector general with regard to complaints by Ms. Jones because her complaints with regard to favoritism did not involve race. Ms. Jones reported to work on time and was present when she was supposed to be present. Her co-workers believed her to be a good worker. However, Ms. Jones and almost all of the workers in the LSU had quality of work issues. All of them had work returned from the attorneys for corrections. When Ms. McClinnis was counseled with regard to errors, she accepted the correction in good faith. When Ms. Jones was counseled with regard to errors, she became defensive. The Department was generally displeased with the staff of the LSU. Ms. Bradford (African-American) was terminated in accordance with the provisions of her contract in March 2008. During May and June 2008, contract employees Wright (African- American), Ms. Wood (Caucasian), Ms. Marsteller (Caucasian), Ms. Taylor (Caucasian), Ms. McClinnis (Caucasian), and Ms. Jones (African-American), were terminated. Ms. Howard (Caucasian) and Ms. McBride (African-American) were retained. Disparate treatment by anyone involved with Ms. Jones because of race did not occur. The evidence of record reveals no evidence of any racial bias by anyone.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations Dismiss the Petition for Relief filed by Mary Lynn Jones. DONE AND ENTERED this 25th day of February, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cindy Horne, Esquire Department of Revenue Carlton Building, Room 304 501 South Calhoun Street Tallahassee, Florida 32399 Robert Framingham Department of Revenue Post Office Box 10410 Tallahassee, Florida 32302 Mary Lynn Jones 6501 Robar Tesora Street Navarre, Florida 32566 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Florida Commission on Human Relations enter its Final Order dismissing Michael Bertone's petition for relief against Winn-Dixie. DONE AND ORDERED this 11th day of December, 1997, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1997.
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 Petitioner, Troy Perry, was denied service at Respondent's, Speedway SuperAmerica, LLC, d/b/a Starvin' Marvin, service station because of his race.
Findings Of Fact Petitioner is a 39-year-old, African-American male. Respondent operates and maintains an automobile service station in Palm Bay, Brevard County, Florida. On the evening of May 24, 2000, Petitioner attempted to obtain gasoline for his automobile at Respondent's service station. For the preceding two years Petitioner had frequently obtained gasoline at Respondent's service station without incident or any suggestion of racial discrimination. The gasoline pumps at Respondent's service station utilize computers in their operation. On this particular evening, the computers were not functioning properly and, as a result, Rose Locasio, a cashier at Respondent's service station, had announced over a speaker system audible at the gasoline pumps that all customers would have to pre-pay for gasoline purchases. There is no evidence that Petitioner heard this announcement. Ms. Locasio had been an employee of Respondent's service station from January 1998 until July 2000. Her employment is coincident with Petitioner's frequent patronization of the service station. Petitioner removed the gasoline nozzle from the pump and inserted it into his gas tank. He was not able to pump any gas. After waiting a few minutes for the gasoline pump to be activated, Petitioner went into the service station and presented $15 to Rose Locasio. She activated the gasoline pump. At this point, Petitioner questioned Ms. Locasio regarding the requirement that he pre-pay suggesting that he was required to pre-pay because he was black. Ms. Locasio commented that she discriminated against all minorities, blacks, Hispanics, Indians, and whites. Feeling insulted by Ms. Locasio's comment, Petitioner decided he didn't want to purchase gasoline from Respondent's service station and requested his $15 back. Ms. Locasio explained that she could not refund the $15 once the computer had been activated without the station manager's permission. The station manager was not on duty. Petitioner called the police, as did another of Respondent's employees. When the police arrived they effected the return of Petitioner's $15.
Recommendation Based of the Foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner has failed to present a prima facie case of discrimination based on race; therefore, his Petition For Relief should be dismissed. DONE AND ENTERED this 3rd day of February, 2003, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan P. Norton, Esquire Allen, Norton & Blue, P.A 121 Majorca Avenue, Suite 300 Coral Gables, Florida 33134 Troy Perry 2010 Paradise Court Palm Bay, Florida 32905 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
