The Issue The issue is whether Respondent discriminated against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner, Mike Ostrom, was employed by Respondent, Beachers Lodge Condo Association, Inc., as a maintenance man for approximately seven years until his termination on March 23, 2012. Respondent is a Florida condominium association, located at 6970 A1A South, St. Augustine, Florida 32080. James W. Gilliam is the licensed community association manager for Respondent, is 78 years old, and has many years of property management experience. Petitioner filed a Complaint of Discrimination on the grounds of his age (55) and disability (eye surgery) with the Florida Commission on Human Relations (Commission) on March 23, 2012. Following an investigation, the Commission issued a Notice of Determination: No Cause on September 27, 2012. Petitioner filed a timely appeal of the Commission's determination on October 19, 2012. The petition was referred to the Division of Administrative Hearings, and a final hearing was conducted on December 11, 2012, in St. Augustine, Florida. Petitioner's work as a maintenance man involved numerous duties, including general maintenance to the grounds and buildings, painting, repairing balconies and other structures not requiring a general contractor, electrical work, and maintaining the pool. Petitioner worked alone much of the time. Prior to the arrival of Mr. Gilliam as the association manager, Petitioner had a good working relationship with the former manager, Steve Burdick. Under Mr. Burdick's supervision, Petitioner had more freedom to perform his maintenance work without what he calls "interference." Mr. Gilliam is more of a "hands on" supervisor than the previous manager had been. Petitioner was resistant to the constant checking on his work by Mr. Gilliam. He believed Mr. Burdick recognized his experience and left him alone to perform his daily tasks with passive supervision. Mr. Gilliam, as a new manager with Respondent, was given instruction by the association president, Joanne Dice, on behalf of the board of directors, to more closely supervise the maintenance staff. In Petitioner, Mr. Gilliam saw a good employee who "liked to do things his way." Mr. Gilliam estimates that Petitioner would do about 90 percent of the assigned tasks differently from how he would prefer them done. Mr. Gilliam tried to get Petitioner to come around to his way of doing things because he was responsible to the board of directors for properly maintaining the property. Mr. Gilliam believes he did not harass Petitioner, but does remember upsetting him on one occasion when he called him "Michael" rather than his given name of "Mike." After Petitioner made clear the fact that he preferred to be called "Mike," Mr. Gilliam never called him "Michael" again. Mr. Gilliam gave clear instructions as to how he expected the tasks assigned to Petitioner be performed, yet Petitioner continued to do things his way. Mr. Gilliam often had a certain order or priority for performing required maintenance tasks which Petitioner regularly failed to follow. After Petitioner had eye surgery and was placed on limited duty by his physician, Dr. Oktavec, Mr. Gilliam confirmed the light detail in a letter dated March 19, 2013, so that Petitioner would not suffer further injury to his eye through over exertion. Ms. Dice was elected president of the board of the condo association in 2010. She lives in Gainesville, Florida. On three separate occasions (July 26, October 27, and November 3, 2011), she drove from Gainesville to St. Augustine to discuss Petitioner's complaints of alleged harassment by Mr. Gilliam. She believed that Mr. Gilliam's job was to establish priorities and assign tasks to be completed. Sometimes, due to inclement weather and other factors, priorities would have to shift. Ms. Dice observed that Petitioner complained that he did not need anyone to tell him how to perform his job. She noted that Beachers Lodge Condominiums is a large property that requires the cooperation of all employees along with the board of directors to maintain it to the standards expected by the owners and their guests. For a year, Ms. Dice and Mr. Gilliam tried to help Petitioner improve his performance, eliminate any deficiencies, and brighten his attitude, all to no avail. A few months after the final meeting Ms. Dice held with Petitioner, she agreed with Mr. Gilliam that Petitioner's behavior could no longer be tolerated and that he should be terminated for cause. The March 23, 2012, letter from Mr. Gilliam terminating Petitioner's employment was explicit in its reasons for termination. The letter offered 13 reasons for the termination and addressed all charges made by Petitioner against Mr. Gilliam. The reasons may be summarized as follows: On October 11, 2011, Mr. Gilliam gave Petitioner a list of daily and weekly duties which he acknowledged having received. Petitioner complained about receiving such a list. On October 25, 2011, Mr. Gilliam gave Petitioner a disciplinary letter for having falsified his timecard on October 19, when Mr. Gilliam observed Petitioner driving down A1A at a time he said he was still at work. Petitioner requested owners send letters to Mr. Gilliam that he was giving Petitioner too much direction and that Petitioner was doing a good job, another indicator of not taking direction. On October 14, 2011, Petitioner did not complete a washing task he was assigned, but went on to perform another task he deemed more important. Again, on March 13, 2012, Mr. Gilliam issued Petitioner a letter addressing corrective action for not following instructions. Petitioner accused Mr. Gilliam of jerking him by the coat in front of witnesses. No witnesses came forward to support this claim. Mr. Gilliam listed issues with Petitioner's work ethic in the March 13, 2012 letter. Petitioner had broken a floor during cleaning which was cited in the March 13 letter. Another refusal to take guidance was listed in the March 13 letter. Mr. Gilliam advised Petitioner that that the failure to correct his behavior concerning following direction would lead to "additional correction." Petitioner refused to sign this letter. Petitioner had been previously advised that he was to engage in light activity based upon his physician's prescription, and as set forth in a March 19 letter from Mr. Gilliam. On March 23, 2012, a St. Johns County deputy came to the office of the association and advised Mr. Gilliam that Petitioner had filed a complaint for assault against him, which the deputy determined not to be a criminal matter. Petitioner applied for unemployment compensation after receiving the March 23 letter terminating his employment. His claim was denied by the Department of Economic Opportunity, since he had been terminated for misconduct. He is currently in the process of losing his home and has only found work with his church for 7-8 hours a week. Petitioner admits that he stood up for himself when he disagreed with Mr. Gilliam by cursing him, calling him names, and writing complaint letters to condo owners and board members. Petitioner claims he was discriminated against by his 78-year-old boss, Mr. Gilliam, who allegedly said, "if you were 30 and not 50, you could do this job better." This alleged statement was not corroborated by any witnesses and was denied by Mr. Gilliam. Petitioner alleges that Mr. Gilliam discriminated against him by making fun of him after he had eye surgery. The letter dated March 19 shows that Respondent recognized the eye injury and surgery and warned Petitioner to engage in only light duty as ordered by his doctor. No witnesses testified to the alleged derogatory comments concerning Petitioner's vision. Respondent was never made aware of any claim of discrimination against Petitioner based upon his alleged disability. Their understanding was that Petitioner needed surgery on his eyes which was performed successfully by his physician and corrected the problem. Petitioner was not replaced by a younger employee when he was terminated. Respondent continued with just one full-time maintenance man and two part-timers. The roster of employees for Respondent shows that the remaining maintenance men are ages 56, 45, and 23. Petitioner is seeking $800,000 in lost wages, yet provided no evidence to support an award of that magnitude should he be successful in his discrimination claim.
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 Respondent did not commit the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 9th day of January, 2013, 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 9th day of January, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 James W. Gilliam Beachers Lodge Condo Association, Inc. 6970 A1A South St. Augustine, Florida 32080 Mike Ostrom 900 South Rodriguez Street St. Augustine, Florida 32095 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, McDonald's Corporation, discriminated against Petitioner, Carolyn Hadley, in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes (2000).
Findings Of Fact Petitioner is an African-American female who worked at the Cocoa Beach, Florida, McDonald's restaurant from October 1, 2000, until March 17, 2001. She voluntarily terminated her employment. Respondent owns and operates restaurants and is subject to Chapter 760, Florida Statutes (2000). Respondent has an extensive, well-conceived, "Zero Tolerance" policy which prohibits unlawful discrimination. This policy is posted in the workplace, is distributed to every employee at the time he or she is employed, and is vigorously enforced by management. There are published procedures which can be easily followed by an employee who believes that he or she has been the victim of unlawful discrimination. Petitioner did not avail herself of Respondent's "Zero Tolerance" policy. Petitioner complains of two isolated instances of what the evidence clearly shows to be workplace "horseplay" as the basis of her unlawful employment discrimination claim. On one occasion, a shift manager placed a promotional sticker on Petitioner's forehead. The second involved ice cream being placed on Petitioner's face. The evidence reveals that the "horseplay" complained of was typical of this workplace and not race or sex based. Practical jokes, food fights, ice down shirt backs, and similar activities, while not encouraged by corporate management, were a part of the routine at this restaurant. Petitioner was not the singular focus of the "horseplay"; it involved all employees. There is no evidentiary basis for alleging that it was racial or sexual in nature, as it involved employees of differing races and sexes. Approximately a month after the latest of the incidents complained of, on March 17, 2001, Petitioner voluntarily terminated her employment. Six months later, in September, 2001, Petitioner complained to Dexter Lewis, an African-American corporate employee who is responsible for investigating claims of unlawful workplace discrimination, about the two incidents. She claimed that she had been embarrassed by the incidents but did not suggest to him that they had been racially or sexually motivated. Mr. Lewis investigated the alleged incidents; he confirmed that the incidents had occurred and that similar incidents were widespread, but not racially or sexually motivated; he reprimanded the store manager and shift manager for their unprofessional management.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that Petitioner's Petition for Relief be dismissed. DONE AND ENTERED this 22nd day of September, 2004, 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 22nd day of September, 2004. COPIES FURNISHED: Carolyn Hadley 135 Minna Lane Merritt Island, Florida 32953 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cynthia Brennan Ryan, Esquire Holland & Knight, LLP Post Office Box 1526 Orlando, Florida 32802-1526 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed an unfair labor practice by discriminating against Petitioner on the basis of race and retaliating against Petitioner, in violation of the Florida Civil Rights Act, of 1992, as amended, Section 760.10 et seq., Florida Statutes (2008).
Findings Of Fact On September 28, 2005, Respondent AirTran Airways hired Petitioner, who is Black, as a customer service agent. During her entire term of employment, Petitioner was assigned to Respondent's station in Fort Lauderdale, Florida. Between January and June of 2006, Petitioner was issued five attendance warnings. During the same period, Petitioner was issued two written warnings that related to other violations of company policy.2 Nevertheless, on August 6, 2007, Petitioner was promoted to the position of station supervisor. Several months after her promotion, Petitioner was issued a "final warning" and suspended for three days. This occurred after an internal fraud investigation revealed that on several occasions, Petitioner received insufficient funds from customers in connection with round-trip and business class upgrades. Following the "final warning," Petitioner's employment was uneventful until February or March of 2008. At that point, Dan Mellgren, who had been employed with Respondent for approximately eight years, transferred to Fort Lauderdale from Chicago and assumed the position of station manager. Petitioner's claims of racial discrimination and retaliation relate solely to Mr. Mellgren. As explained during the final hearing, a station supervisor, the position held by Petitioner, is subordinate to one or more duty managers. In turn, duty managers report to the station manager, and the station manager reports to the director of the southern region. Mr. Mellgren admits that upon taking over as the Fort Lauderdale station manager, he made the decision that "swipe cards," which were limited in number (four or five) and permitted parking in a preferred lot closer to the terminal, would be distributed based on seniority. In addition, one swipe card was reserved for a supervisor who frequently ran work- related errands. As a result of Mr. Mellgren's change in policy, Petitioner lost her swipe card and was thereafter required to park in the regular employee lot. Although Petitioner claims that the reassignment of swipe cards was racially motivated, there is no credible evidence supporting the allegation. According to Petitioner, Mr. Mellgren committed other discriminatory acts. For example, Petitioner claims that she was not permitted to bring her children to the weekly staff meetings (which took place on her day off), while at least one white employee was permitted to do so. In contrast, Mr. Mellgren testified that all employees, including Petitioner, were authorized to bring well-behaved children to a staff meeting if said meeting occurred on the employee's day off. Mr. Mellgren further testified that at no time did he prevent Petitioner from bringing her children to a staff meeting. The undersigned accepts Mr. Mellgren's testimony as credible with respect to this issue. As an additional allegation of discriminatory conduct, Petitioner claims that Mr. Mellgren required her, on one occasion, to work eight hours without a lunch break. While Mr. Mellgren did not deny that this occurred, he explained that in the airline industry, customer service agents and supervisors will occasionally miss lunch breaks during peak hours. Any such missed lunch break is recorded in an "exception log," which enables the employee to obtain additional compensation. The undersigned accepts Mr. Mellgren's explanation concerning the incident and concludes that any deprivation of a lunch break was due solely to busy conditions at the airport. Petitioner further alleges that shortly after Mr. Mellgren's transfer to Fort Lauderdale, Mr. Mellgren forged her name on a security badge sign-out form. Mr. Mellgren testified, credibly, that this did not occur. Pursuant to AirTran Airways policy, which is outlined in the "AirTran Crew Member Handbook," an employee who is experiencing harassment based upon race or other protected classification is directed to handle the situation by first confronting the harasser politely. If the harassment continues, or if the aggrieved employee believes that a confrontation could result in harm, the employee should contact a supervisor or manager. If the complaint involves the employee's supervisor or manager, the employee is directed to take the complaint to the next level of management or to the human resources department. Petitioner admits that she did not report her issues with Mr. Mellgren to AirTran's human resources department or to a level of management superior to Mr. Mellgren. Petitioner did, however, report at least some of her problems with Mr. Mellgren to Everton Harris, a duty manager whom Petitioner trusted.3 There is no evidence that Mr. Harris communicated Petitioner's concerns to the human resources department, a superior, or anyone else. It is undisputed that on March 27, 2008, Petitioner arrived at the Fort Lauderdale station after attending training in Atlanta. Petitioner noticed that one of the gates was busy, so she decided to assist two AirTran customer service agents (Eduardo Baez and Donna Heghinian) who were working the counter. Shortly thereafter, in violation of AirTran policy, a revenue passenger (i.e., a paying customer) was bumped from a flight to accommodate a non-revenue flight attendant employed with Spirit Airlines. In the following days, AirTran's Internal Audit and Fraud Department investigated the incident to determine the identity of the employee responsible for replacing the revenue customer with the non-revenue flight attendant. During the investigation, statements were obtained from Mr. Baez and Ms. Heghinian, both of whom implicated Petitioner as the responsible party. Petitioner also provided a statement in which she vehemently denied responsibility. The findings of the investigation were subsequently provided to Ms. Kellye Terrell, an Employee Relations Manager with AirTran. Ms. Terrell is African-American. After reviewing the findings, Ms. Terrell determined that Petitioner should be separated from her employment with AirTran due to two violations of company policy.4 Ms. Terrell drafted a termination letter, which was provided to Petitioner on April 7, 2008. Although the termination letter was actually signed by Mr. Mellgren, it should be noted that Mr. Mellgren did not participate in the decision to terminate Petitioner. In addition, Mr. Harris, the only person to whom Petitioner communicated any of her complaints regarding Mr. Mellgren, did not participate in Petitioner's termination. At the time of Petitioner's termination, neither Ms. Terrell, nor any other decision-maker was aware of any complaints made by Petitioner to Mr. Harris concerning Mr. Mellgren. The undersigned finds that Respondent's decision to terminate Petitioner was based upon a good faith belief that Petitioner violated company policy by bumping a revenue passenger, as well as Petitioner's previous disciplinary history. Petitioner offered unrebutted testimony that her position was filled by a Caucasian female.5 The undersigned determines, as a matter of ultimate fact, that the evidence in this case is insufficient to establish that Respondent discriminated against Petitioner on the basis of her race. The undersigned also finds, as a matter of ultimate fact, that the evidence is insufficient to establish that Respondent retaliated against Petitioner.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief. DONE AND ENTERED this 18th day of August, 2010, in Tallahassee, Leon County, Florida. Edward T. Bauer 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 18th day of August, 2010.
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 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 Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on December 8, 2014.
Findings Of Fact Respondent has a corporate policy that prohibits its employees from engaging in acts of discrimination, harassment and retaliation. The policy provides, in part, as follows: Discrimination Resort Travel & XChange prohibits discrimination against its employees, applicants for employment, and customers on the basis of a person’s gender, ethnicity, race, color, creed, religion, sexual orientation, national origin, age, disability, marital status, military service or veteran status or any other classification protected by applicable law. Specifically with regard to its employees and job applicants, Resort Travel & XChange does not tolerate discrimination on the basis of the foregoing characteristics with respect to the terms and conditions of employment. Retaliation Resort Travel & XChange does not tolerate any form of retaliation taken against an employee who, in good faith, makes a complaint of discrimination or harassment under this policy, opposes such discrimination or harassment, or participates in an investigation of alleged discrimination or harassment. Anyone who engages in such retaliatory behavior will be subject to appropriate discipline, up to and including termination. Petitioner was hired by Respondent in March 2014 to work as an “Instructional Design & Delivery Trainer.” The written position description includes the following summary statement: [An] Instructional Design & Delivery Trainer plays an important role in making their companies more competitive by developing the skills of the workforce. They help to accelerate organizational change by developing the skills a company requires if it plans to enter new markets or needs to transform its business performance. Companies with a reputation for developing people also find it easier to recruit and retain high-caliber employees. Among the key competencies are the ability to design and deliver training, manage the learning function, measure and evaluate the results of training, and manage organizational knowledge. According to Pamela Price, Petitioner’s immediate supervisor during his term of employment with Respondent, Petitioner’s “responsibilities would have been to create, design, develop step-by-step institutional training manuals and modules, and perform classroom training of that content to new hires, as well as continuing education courses, [and] [t]o perform analytical assessments of training class participants to see at what level they were learning.” The cornerstone of Petitioner’s gender discrimination claim is his allegation that Ms. Price, on multiple occasions, made statements to Petitioner about a female worker from one of her previous jobs that performed better than Petitioner when assigned similar tasks. Petitioner offered no evidence, other than cryptic self-serving statements and conclusory allegations, which supports his allegation that Ms. Price treated him differently because of his gender. On or about September 19, 2014, Petitioner received from Ms. Price his initial six-month performance evaluation. Respondent’s employee performance evaluation rating scale ranges from “marginal” to “outstanding.” On the initial review, Petitioner received an overall rating of “marginal.” There is no evidence of record that Petitioner suffered a decrease in pay, benefits, or the loss of job-related opportunities as a consequence of having received the marginal performance rating. On or about September 22, 2014, Petitioner sent to Laura Lampkin, Respondent’s director of human resources, his response to the performance evaluation prepared by Ms. Price. In his response, Petitioner states, with respect to Ms. Price, the following: The continued push towards unrealistic deadlines and the refusal to listen or effectively address the needs and concerns expressed creates an unnecessary feeling of duress. Duress is not the inability to handle a fast paced or chaotic environment, as those are environments I thrive within. Duress, as it pertains to this example, is in the feeling to produce regardless of tangible concerns. It is, by nature, the creation of a hostile work environment which should not exist within a professional workplace. Because Petitioner expressed concern about Ms. Price’s behavior creating a “hostile work environment,” Ms. Lampkin, within a day or so of receiving Petitioner’s response, initiated an investigation to determine whether Ms. Price was in violation of Respondent’s anti-discrimination, harassment and retaliation policy. At no time prior to receiving his performance evaluation did Petitioner complain about Ms. Price creating a work environment charged with discriminatory animus. Pursuant to Ms. Lampkin’s investigation, Petitioner, in support of his allegation of the existence of a hostile work environment, informed Ms. Lampkin on September 30, 2014, of the following with respect to Ms. Price: There are a good number of situations which lend themselves to an environment that promotes an air of uncertainty, insecurity – as well as the feeling of being bullied. There is [sic] also interactions and conversations, for example when Pam refers to her co-workers or friends at United Healthcare and how they would be able to perform a function that I push back against or when she fails to consider my professional assessments for training and development, which create concerns of inequality or discriminatory undertones. I have often felt, since July, that there is a determination to replace me with a personal contact from United Healthcare – as it has been referenced repeatedly about this ‘trainer’ and what she is ‘capable of.’ To the degree, where at times, I’m given the impression that I should be as capable as this mysterious person. Perhaps, in Pam’s mind I am too young to be an experienced training professional or maybe she would prefer her previous, female, co-worker. Petitioner failed to offer any evidence, credible or otherwise, that in any way supports his allegation that Ms. Price harbored gender-based discriminatory animus towards Petitioner. At the final hearing, Petitioner cross-examined Ms. Price about myriad subjects, none of which involved issues related to gender bias. Furthermore, in his direct testimony, Petitioner stated, in conclusory terms, that Ms. Price “was discriminatory on the basis of gender because she constantly made references to me about how her other trainer at her other job could do it so much easier and I was making things more complicated than they should be.” Petitioner obviously took offense to Ms. Price’s statements, but contrary to Petitioner’s allegations, these alleged statements attributed to Ms. Price do not demonstrate discriminatory animus, but instead indicate a desire by Ms. Price for Petitioner to improve his level of performance. Petitioner alleges that on October 3, 2014, Ms. Lampkin advised him that she had informed Ms. Price of Petitioner’s claim of discrimination. According to Petitioner, Ms. Price, after learning of Petitioner’s claim, retaliated against him as follows: On October 3, 2014, after I was informed by Laura Lampkin that she had spoken to Pam Price about my claims of discrimination, I received a schedule from Pam Price which included radical changes to my standard operating schedule. I was hired as a salaried employee with a 9am-5:30 p.m. schedule with flexibility in my time and freedom to take breaks and lunch as chosen. In the schedule I received from Pam Price, I was now put into an “agents” schedule, each week working a different shift (morning, afternoon and evening) along with scheduled lunch and break times. In addition, they also moved my office onto the call center floor and set me up in a cubicle with the call center agents. When I complained that the schedule change and relocation of my office to the call center floor was a retaliatory action, the schedule was immediately retracted and I was told to revert back to my standard schedule. However, they kept me on the call center floor which was an uncomfortable position and a distraction to the other agents. I also noticed that the contact I had with other employees both in the Asheville and Orlando office changed during that time. I was no longer treated as a member of management, but now I was being treated as if I was a call center agent. When I expressed this concern to another member of our management team . . . , I was informed that there was an unwritten memo going around the Asheville and Orlando office[s] that I was to be treated as if I was an agent. According to Ms. Price, during Petitioner’s first few months of employment with Respondent, his primary responsibility was “learning” about the company. Petitioner was expected to learn about company “[p]rograms, corporate compliance, policies and procedures, introduction to his teammates, understanding their positions and their roles . . . reading materials [and] having conversations.” Ms. Price, in Petitioner’s performance evaluation, was particularly disapproving of Petitioner as it relates to him failing to take advantage of a critical learning opportunity from a member of Respondent’s staff who was sent to Petitioner’s work-site to conduct a five-week training session. According to Ms. Price, Petitioner spent as little as one to two hours a day attending the training sessions when, in her opinion, more of his time should have been allocated to attending the sessions, especially since he was new to the company. In his September 19 and 22, 2014, responses to his performance evaluation, Petitioner complained that he had “not been afforded reasonable time to learn the processes and workflows contained within the products offered,” and that in order “[t]o be a subject matter expert, which is at the core of my position, I must have the complete and full immersion into the workflows and processes that make up the related products to be able to effectively and authoritatively create training documentation and train[ing] processes.” Respondent granted Petitioner’s request for “complete and full immersion.” On October 3, 2014, Respondent implemented Petitioner’s request for complete and full immersion, which resulted, among other things, in Petitioner being assigned work hours consistent with those assigned to agents in the Orlando call center. Literally within minutes2/ of being fully and completely immersed into Respondent’s workflows and processes, Petitioner, at 2:47 p.m. on October 3, 2014, was already complaining about the immersion program, as reflected in the following e-mail exchanges between Petitioner and Laura Lampkin. Petitioner to Laura Lampkin – October 3, 2014, 2:47 p.m. Laura: While I appreciate the attention to detail given to this project for immersion into the RTX Workflow and while I have explicitly stated ‘agent like immersion’ into those workflows, this is a bit above and beyond that expectation. “In order for you to get the full spectrum of calls and types of calls, I have rotated your schedule from the AM shift, Mid-Shift and Late-shift throughout the two month period of time. In addition to your shift start/stop times, you have regularly scheduled breaks and lunch, based on the particular shift you will work for that week. As an example, for the AM shift, first break is generally at 10:00 am, lunch at 12 noon and then second break at 2:00 and so on for each of the shifts. You will have Monday’s off work on the weeks that you are scheduled to work Saturdays to assist with floor coverage due to the upcoming maintenance fee season. I appreciate your assistance with floor coverage during this busy season.” [from Pamela Price to Petitioner]. There is no reasonable, acceptable, logic to Pam’s statement. The type of calls able to be handled by an RTX Exchange Agent do[es] not change throughout the course of a day or shift. There are only so many call types available and those happen, randomly, with every inbound call – regardless of time of day. Pam did mention scheduling me into the workflows, however, that was not the interpretation I expected. I would like to get this project underway without unnecessary complications. I find the radical change to my schedule a retaliatory maneuver. As the Instructional Design and Delivery Manager, my need to be exposed to the call queue and to gain the practical knowledge to speak to the agent experience does not require the coverage of three shifts, nor does it require a deviation from my normal schedule to accommodate an eight hour workday. Even though I will be using this opportunity as a ‘live learning environment,’ and will hold myself to the highest standards in customer care, while being mindful of queue wait times – I again find it a bit overboard to dictate call per hour and follow up to the level of actual agent performance. I am not transitioning into an agent position, I am simply utilizing the live call queue as the only available method for active learning and methodology. Could you kindly level set the Pam? At this time and until the current investigation is complete, I feel it may behoove all parties involved to have monitored contact. Thank you much. Laura Lampkin to Petitioner – October 3, 2014, 3:28 p.m. Jason, There actually is a logic to your schedule arrangement, and there is a difference in callers in the AM versus the PM. The AM callers do not contain as many sales opportunities, those are more likely to be basic reservations calls. Call volume is higher in the evening, and opportunities for sales are higher in the evening. The logic behind your rotating schedule arrangement is to give you the fullest exposure possible. Given the criticality of immersion in becoming a Subject Matter Expert, the goal is [to] provide you with the best possible opportunities for exposure. This will help in role playing scenarios and variation, which you expressed were much more difficult to train on without full immersion. If the new schedule is a point of contention, we can rework it. I do want you to understand that there was a great deal of thought put into your immersion plan, all centered around what is most beneficial to you and what bests [sic] affords you the chance to become a Subject Matter Expert. With regards to your statement ‘I am not transitioning into an agent position, I am simply utilizing the live call queue as the only available method for active learning and methodology[,] this is technically correct. However, again in the name of immersion and the need to become a Subject Matter Expert, we are arranging temporarily for your work tasks, work environment and product exposure to basically mimic that of an agent for your benefit. Additionally, specific to your statement ‘I again find it a bit overboard to dictate call per hour and follow up to the level of actual agent performance[,]’ I should clarify that aligning your performance standards with that of an agent is not a main focus. Of course we want you to handle calls properly – and I have no doubt you will – but I do not anticipate any detailed comparison to agents in terms of how the calls are handled. I do believe there will be periodic confirmation of phone time, again not in comparison to agents, but to ensure that the exposure and immersion are occurring. If there are confirmations of phone time, those may be used to determine whether we have fully satisfied our goal of immersion, in terms of exposing you to the phone roles and giving you the needed active time on the phones. I feel I must stress that this immersion plan is driven significantly by your continued emphasis on its importance. I wholeheartedly agree that significant exposure (as you’ve indicated, 4-6 months dedicated time, minimum) to the product and the role is necessary to create training programs and train effectively on most possible scenarios. Because we have yet to arrange dedicated time to immersion for you, and because you’ve indicated it’s critical, we are doing it now. Once the immersion plan is completed, my understanding is that you will be a Subject Matter Expert and capable of training as one. Keeping in mind that maximum exposure has been the goal for your immersion plan and your schedule, I welcome your suggested schedule changes. Thanks. Petitioner to Laura Lampkin – October 3, 2014, 5:07 p.m. Laura: I do appreciate the thoughtfulness put into the plan that I’ve requested. I must say, that from my exposure, I find the majority of inbound calls to contain a sales opportunity and while sales is an important part of our member services and revenue generation, it is not the core of the educational process or training programs expected curriculum. It is certainly necessary to have agent exposure to speak to the experiences and topics that new hires will encounter in production. More so, it is a necessity to explain the ‘how’ and ‘why’ of processes and/or procedures that are expected of an agent. I feel very comfortable in what I have expressed to both Pam and yourself as the requirements for effectively and efficiently learning and understanding the RTX Workflow to a level which is agreeable with the creation of curriculum and the training of such curriculum. The activity of taking live calls, which unfortunately was not available sooner, without interruption, is a requirement. Subject matter expertise is built upon that foundation and will continue to fluctuate until a time comes when the systems and processes used do not change on a consistent basis. As for being held to the same standards as the agent’s in production, I can only speak to what was written and manner in which it was relayed. I stand behind my statements that effective training is necessary before the ability to create, direct or lead a training class or materials. I also stand behind my statements that the schedule change is radical, causes personal conflicts and is not a necessary requirement to achieve the level of immersion and learning that has been requested. For the sake of curiosity, was there a logic to creating a structured ‘agent’ schedule which includes my start, break, lunch and end times? As a salaried employee, I was already under my own direction, likely going to extend my hours and/or utilize unscheduled Saturday’s to afford additional learning time – as I found necessary – due to the estimated time frame I had given to both Pam and yourself by request. This package is wrapped very nicely as a thoughtful contribution to my success, but as a training professional who has interacted with the agent’s and call queue – albeit limited, and with the direct knowledge of what has been lacking in my ability to be fully developed as an employee of RTX, the delivered structure places a burden on my personal needs – which are based around my expected schedule. In addition, a rotation does not deliver nor guarantee delivery of experiences that can’t be extracted from a call within my standard scheduled hours. It would be a great assistance, if we could kindly not alter my schedule and allow me the opportunity I have needed within the confines of what has been established as my schedule expectations for the last six months. Should I find that a knowledge gap exists, I will actively adjust to correct and close such gap. Ms. Price testified as to the accuracy of the matters discussed by Ms. Lampkin in her e-mail reply to Petitioner. Additionally, the undisputed evidence is that Petitioner unilaterally withdrew from the immersion program after having been a part of the same for only two weeks. The evidence is also undisputed that Respondent did not change Petitioner’s pay, benefits, or job-related opportunities as a consequence of Petitioner entering and subsequently leaving the full immersion program. The e-mail exchange between Petitioner and Ms. Lampkin show a number of things, none of which support Petitioner’s claim of retaliation. As an initial matter, Ms. Lampkin’s e-mail to Petitioner, and the related testimony from Ms. Price, clearly establishes that Respondent knows its business operations better than Petitioner. Next, Ms. Lampkin’s e-mail to Petitioner, and the related testimony from Ms. Price, establishes that Petitioner’s immersion into Respondent’s operations was a temporary assignment scheduled to last about two months and that the planned immersion was in furtherance of Respondent’s legitimate business interests of having Petitioner to perform his job at a competence level higher than “marginal.” Furthermore, Petitioner’s correspondence of September 19, 2014, wherein he specifically requests “complete and full immersion,” when compared to his correspondence of October 3, 2014, wherein he retreats to a preferred experience of ‘agent like immersion,’ shows that Petitioner was simply trying to the game the system in an attempt to avoid “plac[ing] a burden on [his] personal needs” as repeatedly referenced in his correspondence of October 3, 2014. Petitioner offered no credible evidence that Respondent’s decision to fully immerse him, on a temporary basis, in its call center operations was done for reasons other than those related to improving Petitioner’s job performance, and concomitantly Respondent’s business operations. In other words, Petitioner failed to prove that Respondent’s decision to fully immerse him in its call center operations was done in retaliation for his having alleged that Ms. Price discriminated against him on the basis of his gender. In the Employment Charge of Discrimination, Petitioner alleges, in part, the following: I suffer from three chronic disabilities as explained to my employer when requesting reasonable accommodation to work from home, when not tasked with a training class, the call center floor and office space triggers disability-related episodes and limits my ability to concentrate and effectively focus. Respondent continues to make the process of providing me reasonable accommodations difficult and shows no desire to work with me, or my physician’s requirements, to allow me to quickly return to work and perform my job functions. The fact that Petitioner suffers from recognized disabilities is not in dispute. On or about October 30, 2014, Petitioner informed Ms. Lampkin during a telephone conference that he believed that he had one or more physical impairments that might warrant an accommodation. Specifically, Petitioner reported that the workplace lighting was bothersome and that he would work better with incandescent or natural lighting. Ms. Lampkin asked Petitioner to provide additional information about his lighting concerns so that Respondent could determine whether workplace modifications were necessary. Petitioner also informed Ms. Lampkin that he was not sure whether his lighting concerns were temporary or would be on-going. On November 3, 2014, Petitioner e-mailed Ms. Lampkin stating, in part, the following: I am unable to go into the call center and back office areas as it directly impacts my sense of well-being and heightens my medical concerns. Therefore I am unable to report to the office to conduct my required function of creating training curriculums and educational products. My physicians are preparing documentation for you as requested. Due to the nature of my core job functions, I am requesting that work from home be authorized as a reasonable accommodation. As of November 3, 2014, the only specific medical concern mentioned by Petitioner was his sensitivity to lighting. On or about November 11, 2014, Petitioner gave Ms. Lampkin a letter from his physician. The physician’s letter states, in part, that Petitioner should be allowed “to work from home when [he] is not tasked with conducting training classes” because Petitioner “will be better able to perform the essential functions of his position by working from home.” The letter goes on to state that “the work environment triggers severe panic attacks” and that Petitioner “has become increasingly sensitive to and made ill by various fragrances and fluorescent lighting, all of which would be eliminated by working from home.” The physician also notes that “[f]urther support of this request is the fact that [Petitioner’s] primary job functions can effectively be performed remotely, with the need for being present in the office relegated to those times when he must attend meetings for which teleconference is not available or to perform the training that he conducts.” The physician's letter did not indicate that Petitioner was unable to perform the essential functions of his job without a reasonable accommodation. Rather the letter stated that Petitioner would be “better able to perform the essential function of this position by working from home.” Based on the rather cryptic information contained in the physician's letter, Respondent was unable to grant Petitioner's request for a reasonable accommodation. In response to the physician’s letter, Respondent, on November 13, 2014, informed Petitioner that “[a]dditional information is necessary in order to make a determination regarding [the] request for reasonable accommodation.” The additional information requested from Petitioner’s physician is as follows: What are the environmental factors which trigger the panic attacks? When is the condition(s) expected to resolve and a return to work to occur? What about the conditions(s) prevents performing daily work tasks in the workplace, but permits conduction of classroom training in the workplace? Are there other alternatives which can be offered, outside of working from home, which allow the essential job functions to be performed? If so, what are those alternatives? The previous letter states that the primary job functions can be performed from home. What are those primary job functions which were referenced in that statement? The previous letter reference enclosures, but none were provided with the letter. Please provide any relevant enclosures for review. Each question asked by Respondent was reasonably tailored so as elicit responses that would better enable Respondent to analyze Petitioner’s request for accommodation and to explore the availability of other possible accommodations. On November 19, 2014, Petitioner wrote a lengthy message to Ms. Lampkin contesting Respondent's need for the additional information. In response to this missive, Ms. Lampkin, on November 20, 2014, informed Petitioner that his “request for accommodation has been conditionally denied pending the receipt of the required information.” On November 21, 2014, Petitioner sent another missive to Ms. Lampkin and argued therein that Respondent's request for additional information was overbroad and that in his opinion he had provided sufficient information so as to allow Respondent to grant his request for accommodation. In response to the concerns expressed by Petitioner, Ms. Lampkin provided a detailed explanation to Petitioner of why additional information was needed to evaluate his request for accommodation and encouraged Petitioner to provide the information “as expeditiously as possible so that we can move forward with granting you an accommodation.” His protestations to the contrary notwithstanding, Petitioner had not, as of November 21, 2014, provided Respondent with sufficient information to allow Respondent to determine what reasonable accommodations were necessary and available in order to address Petitioner’s mental and physical impairments. On November 24, 2014, Petitioner supplied Respondent with what is described as “supplemental documentation” from his physician. This documentation was not, however, information entirely responsive to the six points of inquiry mentioned in Respondent’s November 13, 2014, correspondence to Petitioner. Based on the supplemental information, Respondent informed Petitioner that it would modify the workplace to accommodate Petitioner’s sensitivity to light and scents. Petitioner was directed to report to work on December 1, 2014. Petitioner did not return to work on December 1, 2014, as instructed. Petitioner e-mailed Respondent on December 3, 2014, to state that he had not received the e-mail instructing him to return to work on December 1, 2014. He also indicated that he did not believe that all of his workplace concerns had been addressed. Ms. Lampkin responded on December 5, 2014, indicating that Respondent had addressed all known workplace issues and also informed Petitioner that additional information would be considered, if supplied. Specifically, Ms. Lampkin stated to Petitioner: I, too, am willing to continue to engage in this interactive process with you. The next steps in the process, should your position remain that your condition(s) warrant further accommodation including working from home, involve your supplying me with specific responses to the informational requests I have previously made. The informational requests that I made were not entirely answered by the response I received from you dated 11/21/14. I am happy to re-send you the form so that you can provide the remaining information. Please advise. On December 9, 2014, Ms. Lampkin provided Petitioner with another copy of the form setting forth the information requested on November 13, 2014. In her correspondence of December 9, 2014, Ms. Lampkin explained that “[t]he information contained in the form that you returned to me was insufficient to enable RTX to approve your request to telecommute indefinitely or to allow RTX to evaluate what reasonable accommodations other than what RTX has already offered may be available.” On December 11, 2014, Ms. Lampkin again requested that Petitioner provide her information responsive to those items enumerated in her correspondence of November 13, 2014. On December 15, 2014, Petitioner advised Ms. Lampkin that he was expecting to receive from his physician information responsive to her requests and that he would forward the same to her as soon as possible. On or about December 18, 2014, Petitioner sent Respondent a second letter from his physician. In the letter, Petitioner’s physician stated definitively that “I do not find any other accommodations available other than for the patient to be afforded the ability to work remotely when not tasked with conducting training classes which require physical presence.” Based on that statement by Petitioner's physician, Respondent agreed to grant Petitioner a reasonable accommodation and to permit him to work from home when not tasked with conducting classroom training. Petitioner was advised that January 2, 2015, would be his official return-to-work date. Respondent acted reasonably, and communicated with Petitioner appropriately, when seeking information related to Petitioner’s desire to work from home. The evidence does not support Petitioner’s contention that Respondent unreasonably delayed granting Petitioner’s request to work from home. On or about January 5, 2015, Petitioner, via videoconference, met with Ms. Price to discuss the new hire training class that Petitioner was to conduct on January 12, 2015. The following day, on January 6, 2015, Petitioner sent an e-mail to Ms. Price and Ms. Lampkin and complained therein of not having enough time to prepare for the January 12, 2015, new hire training session. Petitioner, nevertheless, assured Respondent that “it will get done” and any questions that he could not answer during the training session “will go to the parking lot while [he] obtains an answer for the students.” On Monday, January 12, 2015, the day of the new hire training session, Petitioner, at 9:52 a.m., sent the following e-mail message to Ms. Price and Ms. Lampkin: I have spent 10.5 hours within the ER on Sandlake Road and awake for over 22 hours, so I will not be in today to begin your impromptu FAC training class. I will either be in tomorrow or we can consider this my constructive discharge/resignation and I will simply limit my interaction with RTX through the ongoing investigations. The choice is yours, of course, but kindly let me know so I can plan my Tuesday accordingly. I need to rest, now. Thank you. At 6:28 p.m., on January 12, 2015, Ms. Lampkin, in response to Petitioner’s e-mail, informed Petitioner of the following: Your absence today is unexcused. You are being given the opportunity to convert today’s absence to an excused absence by presenting a doctor’s note. If today’s absence remains an unexcused absence, you are subject to discipline. We are expecting you to be present to teach the class tomorrow, and to be ready to teach at 8:00 a.m. You were to have printed the materials earlier, and we expect that you will be ready to teach at 8:00 a.m. Petitioner did not report to work on January 13, 2015, to conduct the training session. Instead, Petitioner, at 9:41 a.m. on January 13, 2015, informed Ms. Lampkin that “the curt and underhanded behavior of RTX increases my anxieties . . . [and] it has been determined by myself and my health care providers that it is to my benefit to continue with a constructive resignation.” Respondent deemed Petitioner as having voluntarily resigned his employment with the company.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, Resort Travel and Xchange, did not commit unlawful employment practices as alleged by Petitioner, Jason L. Van Horne, and denying Petitioner's Employment Charge of Discrimination. DONE AND ENTERED this 18th day of March, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 2016.
The Issue Whether Respondent committed the unlawful employment practices alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact Background From 2006 through May 3, 2010, Petitioner was employed by Respondent as a classification officer at Glades C.I.1 At all times material to this proceeding, Robert Shannon served as the warden at Glades C.I. and was responsible for the daily operation of the facility. Petitioner's immediate superior, Everett McPherson, supervised Petitioner, several other classification officers, and three senior classification officers. Petitioner contends that during her term of employment with Respondent, one of the senior classification officers (Barry Carrigan) and another co-worker (Janet Smith) subjected her to a hostile work environment. In addition, Petitioner alleges that she was subjected to a variety of discrete acts of discrimination, which include: a search of her person in May 2009; a written reprimand in June 2009; a delayed transfer to the work camp facility located at Glades C.I.; a belated performance evaluation from her supervisor; delayed training opportunities; and a prohibition against bringing her bible into the facility. Beginning with Petitioner's hostile environment claim, each allegation is discussed separately below. Improper Comments / E-Mails On December 23, 2008, various Glades C.I. employees—— including Petitioner and Mr. Carrigan——attended a Christmas luncheon on the grounds of the facility. During the event, Mr. Carrigan remarked to the other attendees (but not to Petitioner in particular) that all African-Americans from the city of Pahokee look like "monkeys" and African "tribesmen." In addition, Mr. Carrigan opined, in essence, that women are inferior to men.2 Understandably offended, Petitioner reported the remarks the next day by filing an anonymous complaint with Warden Shannon. An investigation ensued, at the conclusion of which Warden Shannon suspended Mr. Carrigan for ten days.3 Subsequently, in May 2009, Petitioner discovered copies of two e-mails on the floor of her office, which were sent by a co-worker, Janet Smith (on Ms. Smith's work e-mail account), to another employee, Tricinia Washington. In the e-mails, Ms. Smith called Ms. Jackson "Blackee," and referred to Petitioner as a "monkey and idiot." Upset by the contents of the e-mails, Petitioner timely reported the contents of the e-mails to Warden Shannon. At the conclusion of an investigation into the matter, Ms. Smith was suspended for five days. Search of Petitioner On or about May 15, 2009, Mr. McPherson observed Petitioner exiting the prison facility carrying a bulky package that he thought was suspicious. In compliance with Respondent's entry and exit procedure, Mr. McPherson notified the prison control room with the expectation that a search of Petitioner's person would occur. A search of Petitioner was subsequently conducted, which yielded no contraband or other improper items.4 During the final hearing, Warden Shannon credibly testified that because of unique problems regarding contraband at Glades C.I., facility employees are subject to search upon exit from the facility. As such, Mr. McPherson committed no violation of policy by reporting what he observed Petitioner carrying as she left the facility. Reprimand On June 24, 2009, Warden Shannon disciplined Respondent by issuing a written reprimand. Warden Shannon credibly testified——and there is no evidence to the contrary—— that the reprimand was prompted by an incident in May 2009 in which Petitioner, in a loud and aggressive voice, called a co- worker "low down and dirty" in the presence of other employees. As a result of the written reprimand, Department of Corrections Procedure 605.011 rendered Petitioner ineligible for promotion for a six-month period. Accordingly, Petitioner could not apply for an assistant warden position during the summer of 2009 that she was interested in pursuing. However, Petitioner failed to prove that the reprimand was unwarranted or issued with the intent to deprive Petitioner of a promotional opportunity. In addition, there is no evidence that Warden Shannon issued the reprimand based upon a protected characteristic of Petitioner or in retaliation for five discrimination complaints Petitioner filed through Respondent's internal complaint procedure approximately one month before the reprimand.5 Late Performance Evaluation As indicated previously, Everett McPherson served as Petitioner's immediate supervisor during her term of employment. As a classification officer supervisor, Mr. McPherson was responsible for preparing annual performance evaluations of his subordinates, including Petitioner, by the end of each April. The evidence is undisputed that Mr. McPherson failed to timely complete Petitioner's evaluation, a copy of which was not provided to her until June 2009. While Mr. McPherson attempted during his final hearing testimony to attribute the delay to Petitioner, he was unable to recall on cross- examination if he had even completed a draft of Petitioner's evaluation by April 30, 2009. Accordingly, it is determined Mr. McPherson was responsible, at least in part, for the late completion of Petitioner's evaluation.6 Although Petitioner asserts that the belated performance evaluation deprived her of the opportunity to apply for an assistant warden position, the evidence refutes this contention. First, as discussed above, Petitioner's June 24, 2009, reprimand rendered her ineligible for promotion for six months. Further, even if Petitioner's reprimand did not temporarily disqualify her from seeking a promotion, Warden Shannon credibly testified that pursuant to Department of Corrections Procedure 605.011, Petitioner could have timely submitted a promotional packet once her evaluation was completed. Training Opportunities During the final hearing, Petitioner testified that she was unable to obtain re-training to conduct criminal background checks because Mr. McPherson refused to provide her with a computer "code" necessary to complete an on-line course. Petitioner further testified that she filed a grievance regarding the matter that resulted in the training being conducted within one month. Although the undersigned credits Petitioner's testimony as to particular claim, she adduced no evidence concerning when this event occurred, nor did she prove that the delay adversely affected her ability to complete her duties or impeded her ability to seek promotion. In addition, Petitioner failed to demonstrate that Mr. McPherson was motivated by any unlawful animus. Transfer to Work Camp At some point during June 2008 or earlier, Petitioner requested a lateral transfer from the main unit at Glades C.I. to the facility's work camp. Petitioner was ultimately transferred to the work camp shortly before her termination in May 2009. Although Petitioner complains that she was not transferred to the work camp at an earlier date because of her gender, she adduced no evidence to support such an allegation. Further, Petitioner made no showing that the transfer to the work camp resulted in increased pay, benefits, or materially different responsibilities. Allegations of Religious Discrimination During all relevant times to this proceeding, Department of Corrections Procedure 602.016(4)(j)17 prohibited prison employees from bringing "recreational reading material (non-work related) such as books, magazines, newspapers, etc" into secure areas of corrections facilities. There is no dispute that "recreational reading material" encompasses religious texts and that the policy therefore barred Petitioner from brining her Gideon Bible into the facility. However, Petitioner has wholly failed to demonstrate that the policy is improper on its face or was applied differently to any other prison employee.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief. DONE AND ENTERED this 22nd day of July, 2011, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 22nd day of July, 2011.
The Issue The issue is whether Respondent, City of Ocala (“the City”), retaliated against Petitioner, Nyleah Jackson (“Petitioner” or “Ms. Jackson”), for exercising her right to file a claim of employment discrimination against the City pursuant to section 760.10, Florida Statutes (2018).1/
Findings Of Fact The City is an employer as that term is defined in section 760.02(7). Petitioner, an African American female, was hired by the City as an Administrative Specialist II on May 2, 2016. She worked in that job position until her resignation on February 7, 2018. Petitioner initially worked in the City’s Electric Utility Department and then transferred to the Public Works Department. Her duties were primarily secretarial, clerical, and administrative. Petitioner testified that when she started in Public Works, her direct supervisor was Tom Casey, but that at some point Judy Wade appeared to take over at least some of those supervisory duties. In her telling, Petitioner never recognized Ms. Wade as her direct supervisor except as to specific tasks delegated by Mr. Casey. Ms. Wade was the Fiscal Administrator for Public Works. She testified that Tom Casey and Darren Park are her superiors in Public Works. Ms. Wade credibly testified that she was Petitioner’s direct supervisor for the entire time that Petitioner worked in Public Works. Ms. Wade’s supervisory duties included monitoring Petitioner’s attendance at work and her leave requests. Petitioner’s testimony that she was unaware Ms. Wade was her direct supervisor for all purposes is not credited. On or about August 25, 2017, Petitioner presented a formal grievance to the City alleging that she had been discriminated against because of her race when she was not hired for a vacant Administrative Assistant III position. On or about August 31, 2017, Human Resources and Risk Management Director Jared Sorensen spoke with Petitioner and asked her to clarify whether she was pursuing a formal grievance under the City’s Collective Bargaining Agreement (“CBA”) with the International Brotherhood of Electrical Workers or under the City’s Employee Handbook. Petitioner responded that she wished to file her grievance under the CBA. On September 13, 2017, Petitioner sent an email to Mr. Sorensen, with copies to Mr. Casey and Mr. Park. The email stated as follows, in relevant part: Both the City of Ocala Employee Handbook and Collective Bargaining Agreement allows [sic] a response in writing within 10 business days of receipt of the grievance. I spoke with Tom Casey and Darren Park as well as sent my grievance, via interoffice to Human Resources, on August 25, 2017. From my meeting, I gathered that classification matters, discriminatory/biased hiring decisions and equal pay issues is [sic] in the Human Resource jurisdiction. I received a call last week from Jared stating that the target response date was September 8th, 2017 but I would have a definitive response by September 11th, 2017. I plan to hold my employer/HR accountable and liable to this deadline as promised. It is now September 13th with no response. The email concluded with a demand for a response regarding Petitioner’s remedies no later than September 14, 2017. The record evidence indicates that the City’s response was delayed for two reasons. First, Petitioner had indicated that she wished to pursue her grievance through the CBA, and Mr. Sorensen’s conversations with Petitioner’s union representative led him to believe that Petitioner’s grievance was going to be refiled to clearly establish a starting date for the CBA process. Second, Hurricane Irma had just passed through the state, causing significant damage in Marion County and delaying the City’s ability to respond to non-emergency matters such as Petitioner’s grievance. Of greater significance to this retaliation case, Petitioner’s direct supervisor, Ms. Wade, was not copied on any of the correspondence regarding Petitioner’s discrimination claim or her grievance. The only way Ms. Wade would have known of these matters was through word-of-mouth in the office. Ms. Wade credibly testified that she was unaware of any of these matters at the time they were occurring. Petitioner believed that Ms. Wade knew of her complaints, but provided no direct evidence of Ms. Wade’s knowledge. One week after her email to Mr. Sorensen, on September 20, 2017, Petitioner interviewed for an open position in the City’s Fleet Department. The Fleet Department is separate from Public Works and is located in a different building. Ms. Wade testified that Petitioner did not inform her that she would be absent from the Public Works office or that she would be interviewing for a position in the Fleet Department. Ms. Wade stated that she checked Petitioner’s office and saw that she was not present. Ms. Wade asked a co- worker about Petitioner’s location and was informed that Petitioner was out at a job interview. Petitioner testified that she told Ms. Wade that she would be out of the office. She did not tell Ms. Wade why she was going out. Petitioner testified that she believed Ms. Wade was not her supervisor and had no reason to know that she was going out on a job interview. Petitioner stated that she told Mr. Casey why she would be out of the office. Petitioner did not call Mr. Casey as a witness to corroborate her version of events. As indicated above, the undersigned does not credit Petitioner’s assertion that she did not believe Ms. Wade was her direct supervisor. When Petitioner returned to the office, Ms. Wade informed her that she was required to use paid time off (“PTO”) for personal business such as job interviews. Ms. Wade sent a request through “Kronos,” the City’s payroll software system, to dock Petitioner for 30 minutes of PTO for the time she was not in the office. Within a few days of making the Kronos request, Ms. Wade discussed the matter with Mr. Sorensen, who told her that City policy provided that employees could interview for other open positions within the City without using any PTO. The time used for such internal interviews was to be treated as regular work time. Evidence produced at the hearing indicated that Petitioner had gone out on such internal interviews previously and not been charged with PTO. Ms. Wade, having learned that she was mistaken regarding City policy, took steps to restore Petitioner’s PTO. On September 26, 2017, Ms. Wade submitted a payroll correction to adjust Petitioner’s pay to her full regular hourly rate. On October 3, 2017, Ms. Wade informed Petitioner of her mistake and that she had reversed the docking of Petitioner’s PTO. Petitioner contended that Ms. Wade’s docking of her pay was in retaliation for her complaint of discrimination and filing of a grievance. Petitioner stated that Ms. Wade’s reversal of the PTO decision was due solely to the fact that Petitioner contacted her union representative about the matter. Petitioner conceded that the only evidence connecting her discrimination complaint to Ms. Wade’s action on September 20, 2017, was their proximity in time. Ms. Wade credibly testified that she did not know about Petitioner’s discrimination complaint on September 20, 2017, and that no one working for the City ever instructed her to take any adverse action against Petitioner. On October 2, 2017, the FCHR received Petitioner’s initial Employment Complaint of Discrimination. The FCHR sent a Notice of Filing of Complaint of Discrimination to the City. The Notice was dated October 3, 2017, but was not received by the City until October 6, 2017. Ms. Wade testified that she was unaware of any potential claim of discrimination by Petitioner prior to October 6, 2017. Petitioner claimed that Ms. Wade was aware of Petitioner’s intention to file the discrimination complaint when Ms. Wade originally docked Petitioner’s PTO in September 2017. To support this claim, Petitioner first testified that one of the emails she sent regarding her potential discrimination complaint was copied to Ms. Wade. When the actual emails were produced by the City and showed that Ms. Wade was not copied on any of them, Petitioner testified that she had told Ms. Wade of her discrimination complaint at a meeting that included Ms. Wade and Mr. Park. Ms. Wade credibly testified that she had no memory of discussing the discrimination complaint with Petitioner at a meeting. Petitioner did not produce Mr. Park as a witness to corroborate her testimony regarding a meeting. Ms. Wade’s testimony is credited on this point. Petitioner failed to demonstrate that Ms. Wade’s actions on September 20, 2017, were in retaliation for Petitioner’s discrimination complaint. On November 20, 2017, the City hired Erica Wilson as the new Administrative Specialist III to work in Public Works. She assumed the duties of the previous Administrative Specialist III, Melinda Day, who had retired. Petitioner and Ms. Day had worked cooperatively in preparing payroll reports for Public Works. Petitioner would summarize the payroll cards for the stormwater division, and Ms. Day would summarize the payroll cards for the streets and traffic divisions. Once the summaries were completed, either Petitioner or Ms. Day would transmit them by email to the Payroll Department. Petitioner and Ms. Day alternated the task of sending the email to Payroll, with each employee transmitting the information every other week. After Ms. Day retired, Public Works was shorthanded for a time. During this period, Petitioner began summarizing all of the payroll cards for the stormwater, streets, and traffic divisions, and transmitting all of that information to Payroll on a weekly basis. After Ms. Wilson was hired at Public Works, Petitioner continued to perform her new duties while Ms. Wilson came up to speed on her new job. In January 2018, Ms. Wade convened a meeting with Petitioner and Ms. Wilson to discuss the transition for Ms. Wilson to take over the payroll duties formerly performed by Ms. Day. At the conclusion of the meeting, Ms. Wade announced that Ms. Wilson would be in charge of sending all the emails to Payroll and Petitioner would continue summarizing all of the pay cards for all three divisions of Public Works.2/ In other words, the work would be divided more or less as it was before Ms. Day retired. At the meeting with Ms. Wade and Ms. Wilson, Petitioner voiced no dispute or concerns with the division of duties ordered by Ms. Wade. Neither Ms. Wade nor Ms. Wilson recalled Petitioner’s being upset by or objecting to the plan outlined by Ms. Wade. Petitioner herself conceded that she said nothing to indicate her disagreement with the re-assignment. Petitioner contends that Ms. Wade’s decision to take some of Ms. Day’s former duties from her and assign them to Ms. Day’s successor was a retaliatory reduction of her job duties. Again, Petitioner’s only evidentiary support for her contention is that the alleged retaliatory action occurred after she made her discrimination complaint with the FCHR. Ms. Wilson testified that she considered the entire matter of payroll duties to be a minor part of her job. Ms. Wade testified that her only intention in redistributing duties was to restore the status quo ante from before Ms. Day retired. Also in January 2018, another event caused Petitioner to believe that Ms. Wade was retaliating against her. Petitioner alleged that Ms. Wade further reduced her job duties by forbidding her to contact vendors used by the City or to contact City employee John Long, who was the City’s Vendor Relations Manager. The specific issue concerned Petitioner’s contacts with UniFirst, the vendor who laundered uniforms for every department of the City. Petitioner’s routine job duties included taking delivery of uniforms for Public Works employees from UniFirst drivers. She discussed with those drivers any issues regarding the number of uniforms delivered, the condition of the uniforms, and the amount of the invoice. Petitioner had no responsibility for dealing with UniFirst’s management on behalf of the City as a whole. In April 2017, Petitioner inserted herself into a quality of service dispute with UniFirst. Uniform shirts were coming back from UniFirst in a soiled and threadbare condition. At first, Petitioner followed protocol and addressed her complaints to Mr. Long, who conveyed them to Jeff Peterson, UniFirst’s district service manager. However, after some back- and-forth between Mr. Long and Mr. Peterson, Petitioner elected to send an email of her own to Mr. Peterson. Ms. Wade considered this action unprofessional and counseled Petitioner about it. Ms. Wade did not believe further discipline was necessary because the situation was unlikely to recur. However, in January 2018, a similar quality control issue arose with UniFirst. Mr. Long and Petitioner exchanged emails that indicated Mr. Long believed Petitioner was the City’s point person regarding UniFirst, based on her handling of the previous issue in 2017. However, Ms. Wade directed Petitioner not to contact UniFirst management directly because the City employed Mr. Long to handle citywide vendor relations. Petitioner alleged that Ms. Wade had instructed her to have no contact with anyone from UniFirst, and that this instruction amounted to a retaliatory reduction of her assigned duties. At the hearing, Ms. Wade made it clear that her order was meant only to stop Petitioner from contacting UniFirst’s management, an action that was never in Petitioner’s scope of duties. Petitioner was still expected to deal with the UniFirst driver who delivered uniforms to Public Works. Her job duties were unchanged. Petitioner alleged that Ms. Wade retaliated against her by denying her leave to which she was entitled. On February 5, 2018, Petitioner requested that she be allowed to use 2.5 hours of accrued “safety time”3/ that afternoon, and her “floating holiday”4/ on the following day, February 6, 2018. Ms. Wade denied the request. Petitioner nonetheless left work early on February 5, 2018, and did not come into work on the following day, missing 10.5 hours of work in total. The City applied Petitioner’s accrued PTO time, 6.2 hours, to the time she missed work. For the remaining 4.3 hours, Petitioner was charged for leave without pay. Ms. Wade testified that she denied the leave request because the Public Works Department has a written policy stating that if an employee is requesting fewer than five days off, the request should be made no less than 48 hours prior to the employee’s absence.5/ Ms. Wade stated that the policy’s purpose was to ensure that enough employees were present to perform needed work. Supervisors have discretion to deviate from the policy, but only where the employee shows good cause for the failure to provide sufficient notice. In this case, Petitioner provided Ms. Wade with no reason for her request. Petitioner testified that she was never made aware of the policy, and suggested that the City invented the policy after the fact as a response to her claim of discrimination. Petitioner presented documents showing that she had previously been allowed to take time off with less than 48 hours’ notice. Ms. Wade reviewed Petitioner’s documents at the hearing. She did not recall the specific details of any particular leave request, but testified as to her general practice in granting leave with less than 48 hours’ notice. Ms. Wade stated that in some cases, Petitioner had likely made an oral request more than 48 hours prior to the leave, but did not submit the written request into the Kronos system until later. In such cases, Petitioner’s leave request would have been granted. In other cases, Petitioner had likely presented Ms. Wade with extenuating circumstances justifying the short notice. Ms. Wade demonstrated her department’s even-handed application of the policy by producing contemporaneous records showing that other Public Works employees had been denied the use of safety hours and floating holidays when they failed to give 48 hours notice to their supervisors. Petitioner failed to establish that Ms. Wade’s denial of her leave request was retaliatory. Petitioner offered evidence on two issues that were beyond the scope of her Employment Complaint of Discrimination regarding retaliation. First, she claimed that the City retaliated against her by denying her the ability to use “flex time” to work an extra hour on February 1, 2018, so that she could leave an hour early on February 2, 2018. Petitioner claimed that this denial was in derogation of the City’s policy and prior practice. Second, Petitioner claimed that the City retaliated against her by denying her request to attend a training class. The City objected to Petitioner’s presentation of this evidence because these matters were not covered in Petitioner’s second Employment Complaint of Discrimination regarding retaliation. Petitioner conceded that these matters were not mentioned in her retaliation complaint, but maintained that she had submitted materials on these issues to, and discussed them with, the FCHR. She also raised the issues in her subsequent Petition for Relief. The undersigned allowed Petitioner to present her evidence because of the ambiguity of the procedural situation. It appears that during its investigative phase, the FCHR accepted evidence from Petitioner as to issues outside the four corners of Petitioner’s retaliation complaint. However, the FCHR ultimately issued no finding as to probable cause. Thus, it is unclear which issues the FCHR formally considered. While finding persuasive the City’s argument that Petitioner should be held to the issues raised in her Employment Complaint of Discrimination, the undersigned decided that if he were to err, it would be on the side of allowing Petitioner to present all of her evidence at the hearing. As to the first issue outside the Employment Complaint of Discrimination, Petitioner testified that, on February 1, 2018, she requested that she be allowed to work an extra hour and then use the “flex time” to take an hour off work the next day. Petitioner presented an email chain between Ms. Wade and her regarding this request. Ms. Wade ultimately denied the request on the ground that the City does not allow employees to “flex ahead,” i.e., work extra time now in anticipation of taking time off later. Ms. Wade told Petitioner that she would be allowed to flex an hour on February 1, 2018, and then work through her lunch hour on February 2, 2018. Petitioner testified that the City had always allowed her and other employees to flex ahead, and that the denial in this instance could only be explained as retaliation by Ms. Wade for her discrimination complaint. Petitioner did not offer evidence of the City’s written policy on flex time or evidence that the City even had such a policy. She offered exhibits purporting to demonstrate that she and other employees had been allowed to work extra time on one day to take time off on a later date. However, the coding on these documents was not clear and Petitioner did not adequately explain them. The City declined to offer evidence on this issue because of its contention that it was outside the scope of Petitioner’s Employment Complaint of Discrimination. Petitioner failed to establish that Ms. Wade’s stated view of the City’s flex time policy was incorrect or that Ms. Wade deviated from past policy and practice by declining to allow Petitioner to flex ahead on February 1, 2018. As to the second issue outside the Employment Complaint of Discrimination, Petitioner testified that on October 12, 2017, she submitted a request to Ms. Wade to take two training courses being offered by the City: “Attitude Means Everything” and “Communicating with Diplomacy and Tact.” Ms. Wade gave Petitioner permission to take the first class but denied her permission to take the second. Ms. Wade testified that the “Communicating with Diplomacy and Tact” course was designated as a “leadership” course, meaning that only supervisors are generally approved to take it. Petitioner’s position with the City was not supervisory. Petitioner showed Ms. Wade a document that Petitioner stated was a list of employees who had attended the “Communicating with Diplomacy and Tact” course. Petitioner asked Ms. Wade whether all of the listed people were supervisors. Ms. Wade testified that she could not answer the question because she did not know the people on the list, none of whom were employed by Public Works. Petitioner herself did not identify the employees on the list. In the absence of any evidence to demonstrate that Ms. Wade did anything more than follow City policy on training course participation, it cannot be found that Ms. Wade retaliated against Petitioner by denying her request to take the “Communicating with Diplomacy and Tact” course. On February 7, 2018, Petitioner voluntarily resigned her employment with the City. Petitioner alleged that her resignation was a “constructive discharge” due to the City’s denial of paid leave time for February 6, 2018, as well as the other allegedly adverse retaliatory actions taken by the City since the filing of her discrimination complaint. Petitioner offered no credible evidence that the City retaliated against her for engaging in protected activity. The only employee specifically cited by Petitioner as allegedly retaliating against her was her direct supervisor, Ms. Wade. The evidence established that Ms. Wade became aware of Petitioner’s discrimination complaint no earlier than October 6, 2017, after she allegedly retaliated against Petitioner by requiring her to use PTO for an internal job interview. Additionally, Ms. Wade rectified the situation as soon as Mr. Sorensen corrected her understanding of City policy. None of the later allegations of retaliation were credible. In January 2018, Ms. Wade gave Petitioner some minor Administrative Assistant III duties at a time when Public Works was shorthanded, then gave those duties back to the Administrative Assistant III position after the new person was hired and learned the job. There was no reason for Petitioner to take offense at this routine reshuffling of minor job duties. Also in January 2018, Ms. Wade directed Petitioner not to contact UniFirst’s management regarding citywide vendor performance issues. Such contacts were not part of Petitioner’s job duties and Ms. Wade had already counseled Petitioner against taking it upon herself to send emails to UniFirst’s management. Petitioner’s actual job duties in relation to UniFirst’s delivery of uniforms to the Public Works Department never changed. Ms. Wade’s denial of Petitioner’s February 5, 2018, leave request was in keeping with the express policy of the Public Works Department that leave requests be made at least 48 hours prior to the employee’s absence from work. The evidence established that this was not a rigid policy, but Petitioner failed to show that she presented Ms. Wade with the kind of extenuating circumstances that historically have been the basis for granting leave requests less than 48 hours before the employee’s proposed absence. There was nothing retaliatory about Ms. Wade’s following the stated policy of Public Works. Petitioner was allowed to raise two issues that were not included in her Employment Complaint of Discrimination regarding retaliation. As to these issues, Petitioner failed to offer proof sufficient to establish that either Ms. Wade’s denial of her request for flex time or Ms. Wade’s denial of Petitioner’s request to attend a “leadership” training course was an incident of retaliation. Petitioner failed to prove any incidents of retaliation. Because she voluntarily resigned her position with the City, Petitioner did not establish that the City took an adverse employment action against her in any form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the City of Ocala did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 28th day of May, 2019, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2019.
The Issue The issue is whether Respondent committed an unlawful employment practice in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Petitioner was employed for approximately five years with Respondent as a salesman. RF Group, LLC, is a limited liability company, doing business as Respondent, McGowan's Heating and Air Conditioning, and is a company engaged in the heating and air conditioning business. Petitioner was a successful salesman for four and one- half years with the company until a new salesman was hired. According to Petitioner, the new salesman was given most of the sales leads and Petitioner was cut out. Eventually, Petitioner's salary was reduced due to a decrease in his sales performance. He attributes his decrease in sales production to Respondent choosing the new salesman over him. Although he claimed age discrimination in his initial complaint, Petitioner offered no evidence or testimony that he was not given the sales leads due to his age and that the younger salesman received the leads because Respondent considered Petitioner too old to conduct his business. Petitioner resigned his position with Respondent because he was not making enough salary. After his resignation, Petitioner went to work with Total Air Care, but his employment was terminated due to company lay-offs in October 2010.
Recommendation it is Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations issue a final order finding Respondent not guilty of the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 11th day of August, 2011, 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 11th day of August, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 G. Alan Howard, Esquire Milam, Howard, Nicandri, Dees & Gilliam, P.A. East Bay Street Jacksonville, Florida 32202 Luis G. Arias 3526 Laurel Leaf Drive Orange Park, Florida 32065 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, Milos, illegally terminated Petitioner based on her race (Black), in violation of the Florida Civil Rights Act ("FCRA"), section 760.10, Florida Statutes (2018).
Findings Of Fact The undersigned makes the following findings of material and relevant fact: Petitioner is a Black female who worked for Milos as a line cook. Respondent is a Greek restaurant located in Miami, Florida. On January 12, 2016, Respondent hired Petitioner for a line cook position. Petitioner was interviewed and hired by Arsan. Arsan supervises all back-of-the-house staff and was Petitioner's supervisor throughout her entire 20-month period of employment. On May 30, 2016, approximately four and a half months after Petitioner's hire at Milos, Arsan gave Petitioner a raise in pay because he felt that she was performing well. Many of the employees Arsan supervises at Milos are Black. PETITIONER'S PERFORMANCE ISSUES AT MILOS On September 23, 2016, Petitioner was suspended for insubordination and violating company policies and procedures. Resp. Ex. 7 and 8. More specifically, Arsan was notified by the sous chef that there had been an argument between Petitioner and a coworker. Arsan attempted to investigate the dispute and found Petitioner to be very emotional and aggressive during the investigation. She was asked to leave but refused. Eventually, she left the premises. This incident came on the heels of another similar incident involving a verbal argument with a coworker, which occurred on September 17, 2016. Subsequently, on April 28, 2017, Petitioner was involved in another workplace argument with an employee named Rosa Salazar ("Salazar"). Resp. Ex. 10. The manager on duty intervened and attempted to resolve the dispute and calm the parties down. After he did so, Petitioner left work without permission and left early the following day as well. On June 27, 2017, a third employee named Ishay (a.k.a., Ayse Akbulut) complained that she could not work with Petitioner at their assigned station because Petitioner was "being rude and territorial." Resp. Ex. 11. Arsan spoke to Petitioner and resolved the matter between the two employees. However, he documented the incident as other employees had previously complained about Petitioner creating a hostile working environment. On June 30, 2017, Petitioner reportedly was involved in yet another workplace incident with Sonya Cabret ("Cabret"). Cabret complained that Petitioner made racially charged and demeaning comments to her based on Cabret's Haitian national origin. More specifically, Cabret complained that Petitioner called her an "ignorant Haitian," a "f ing Haitian," and stated that Cabret does not know how to speak English and that Cabret could not find a job anywhere else. Two months prior, Salazar had also complained that Petitioner made derogatory remarks to her based on Salazar's Latin ethnicity. Resp. Ex. 12 and 13. Salazar recounted that Petitioner had called her a "f ing Latino." Arsan disciplined Petitioner by counseling her and sending her home for the day. Each of the above incidents occurred prior to Hurricane Irma in September 2017. The undersigned finds that these incidents, and their related warnings and discipline, are relevant to the ultimate decision to discharge Petitioner and have some bearing on the propriety and necessity for termination. PETITIONER'S FAILURE TO RETURN TO WORK AFTER HURRICANE IRMA At some point in time on Wednesday, September 6, 2017, Arsan informed all employees that Milos would be closed at the end of the work day due to the approaching landfall of Hurricane Irma. Petitioner had been scheduled to report to work on September 6, 2017, at 10:00 a.m., but she did not do so. At 12:40 p.m. on September 6, 2017, Petitioner texted Arsan that she could not report to work because she was evacuating to Georgia due to Hurricane Irma. However, she hoped to return to work the following Tuesday (September 12, 2017). Resp. Ex. 14. After the hurricane had passed, on September 10, 2017, Arsan sent a group text message to all back-of-the-house staff alerting them that the restaurant was "closed for Monday" (September 11, 2017) and "we will be probably open for Tuesday" (September 12, 2017). Resp. Ex. 15. Petitioner received this text message. Petitioner never informed Arsan that she would not be back from Georgia by September 12, 2017, as she mentioned in her text message on September 6, 2017. Believing Petitioner would be back in Miami on September 12, 2017, Arsan scheduled Petitioner to work Wednesday, September 13, 2017. Resp. Ex. 16. On September 13, 2017, Petitioner did not call in or report for work. That same day, Arsan called Petitioner to find out why she did not report to work. Petitioner did not answer or return Arsan's call. On September 14, 2017, Petitioner again failed to call in or report for work. Arsan again attempted to reach Petitioner by telephone, but she did not answer. Arsan then sent Petitioner a text message notifying her that she was scheduled to be at work. Petitioner responded to Arsan's text messages on September 14, 2017, and the following discussion ensued: Arsan: "Denise you are scheduled to work today[.]" Petitioner: "Nobody called me and told me anything I cannot get out until Tuesday or Wednesday I'll [sic] area was hit bad and the bus is [sic] down here start running Wednesday[.]" Arsan: "Denise everybody is at work except you. How the bus starting [sic] on wednesday, [sic] half of staff is using the bus and they are here, The buses working [sic] fine." Petitioner: "When you come to my family I don't care about no job [sic] that's not my life we had an emergency down here we don't have any lights some of the buses is not running my house got water in it I am coming from Georgia so I might not be back until Thursday I have a lot of stuff to take care of in my house[.]" Arsan: "Please help let [sic] me understand your situation are you in Miami? or Georgia? Petitioner: I will be in Miami tonight I still have a lot of stuff to do at my. . . . Resp. Ex. 14. Arsan and Petitioner did not have any further communications after this text message exchange. Further, Petitioner did not initiate or attempt to send any more text messages to Arsan after the September 14, 2017, exchange. Petitioner did not report for work scheduled on September 15, 16, 17, 18, 19, or 20. Petitioner testified that she did not report to work from September 13, 2017, to September 20, 2017, because she was attending to damage to her home caused by the hurricane. Based on Petitioner's text message that she does not "care about no job [sic]," Arsan, after consulting with Milos' outside contracted human resource company, removed Petitioner from the schedule for the week of Monday, September 18, 2017, to Sunday, September 24, 2017. On September 21, 2017, Petitioner showed up at Milos to work. Arsan believed Petitioner had abandoned her job and did not expect her to report to work again. After she arrived, Arsan directed Petitioner to speak to Faundez, Milos' outside human resource representative at Eleva Solutions. Contrary to what Petitioner told Arsan (i.e., that she missed work because she was attending to damage in her home from the hurricane), Petitioner gave Faundez three different reasons for her failure to call in or show up for work the preceding week: she did not know that she was supposed to be at work; there was no bus transportation; and (c) Petitioner had to be evacuated. Faundez concluded that Petitioner's reasons for failing to appear for work were inconsistent and conflicted with each other. She also did not believe that Petitioner had provided a definitive or plausible answer explaining why she had not returned to work. After consultation, Faundez and Arsan decided together to terminate Petitioner's employment. Arsan was not the sole decision-maker with respect to Petitioner's termination. Prior to her termination and despite having received Respondent's antidiscrimination policy and complaint procedures, Petitioner never complained that Arsan was discriminating against her because of her race. During the course of the hearing, Petitioner was unable to identify any employee(s) outside of her protected class who engaged in the same conduct and were not terminated from employment. Specifically, on cross-examination, Petitioner admitted that she was unable to identify a single non-Black employee who failed to show up for work following the hurricane and who was not terminated from employment. The evidence Petitioner offered to support her race discrimination claim was vague, unpersuasive, and included only conclusory and general allegations by her that Arsan "was a racist" and is a "nasty human being." There were no emails, texts, documents, or other direct evidence from Petitioner or Arsan supporting her claim that she was fired by Milos because of her race. Likewise, Petitioner called no witnesses to offer any compelling facts or circumstances to support her claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss Petitioner's Petition for Relief with prejudice and find in Respondent's favor. DONE AND ENTERED this 23rd day of October, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 23rd day of October, 2018.
