The Issue Whether Respondent failed to properly represent Petitioner when she was terminated from her position as a school bus driver by the Seminole County School District on or about June 1994, on the basis of her race (African-American) and handicap, in violation of Section 760.10(1)(a), Florida Statutes (1995).
Findings Of Fact The Seminole County School Bus Drivers' Association, Inc. (Respondent), is a labor organization as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by the Seminole County School Board (District) as a school bus driver during the relevant period of time from 1985 until June 1994. At the end of the 1993-1994 school year, Petitioner was terminated as a bus driver by the District. At said time, Petitioner was a member of the Seminole County School Bus Drivers' Association. Petitioner is an African-American female and a licensed bus driver. Joe Wicks (Wicks), who worked for Respondent and assisted Petitioner in her efforts to preserve her job at the end of the 1993-94 school year, is also African-American. Respondent is a public sector union affiliated with the Florida Teaching Profession/National Education Association (FTP/NEA). The FTP/NEA manages the staff associated with its affiliated unions through entities called UniServ offices. Nancy Wheeler (Wheeler) served as the executive director of the Seminole UniServ at the time Petitioner's employment was terminated by the District in 1994. In that capacity, Wheeler managed UniServ staff members who provided assistance to Respondent's members. Another of Wheeler's duties as executive director was to advise Respondent's Board about the merits of particular grievances for which arbitration is requested by the member. Respondent's Board has authority over the arbitration process used to enforce the collective bargaining agreement between bus drivers and the District. Over the years Wheeler served as executive director, 30 to 40 percent of Respondent's members have been African-American and Respondent's Board has been proportionally represented with African-Americans as well. The grievance process available to members of Respondent consisted of the following steps: 1) Informal efforts to resolve dispute; 2) Step I hearing before the employee's immediate supervisor; 3) Step II hearing before the Superintendent or his designee; 4) Step III binding arbitration before neutral arbitrator. At the end of the 1993-94 school year, District transportation officials proposed the employment termination of eight of Respondent's members because of their poor attendance patterns. In late May 1994, Respondent filed a grievance on behalf of Petitioner concerning the District's proposed termination of her employment in which it alleged that the District did not have just cause to support Hampton's termination. That grievance was pursued through Step II. Although the District ultimately decided to retain the employment of five of these bus drivers, no driver received assistance from Respondent beyond the Step II level of the grievance process. Further, there was no obvious race- related pattern in the District's decision to retain only some of the drivers. Three of the eight drivers were African- American, and three white drivers and two African-American drivers from among them were ultimately retained by the District in June 1994. Petitioner experienced depression, a brief period of situational grief due to the unexpected death of a boyfriend, in early 1994 but suffered from no other medical condition during the 1993-94 school year. At the end of January 1994, Petitioner's treating physician (Dr. Fraser) authorized her to return to work after a short leave period. Petitioner, in fact, returned to her job as a driver for the rest of the 1993-94 school year. Petitioner fully recovered from her "depression" several months later and was able to return to full-time employment elsewhere by the end of 1994. Although information about Petitioner's situational depression and her medical and other absence excuses was presented to Joseph Wise, Transportation Director (Wise), at the Step I Grievance hearing and to Dr. Paul J. Hagerty, Superintendent (Superintendent), at the Step II Grievance hearing, the School District's decision-makers (Wise and Superintendent Hagerty) determined there was just cause for Hampton's termination due to her long history of excessive absenteeism. In deciding whether to take Petitioner's grievance to arbitration, Respondent followed its normal practice including a personnel file review by Wheeler followed by her recommendations to Respondent's Board. Wheeler reviewed Petitioner's evaluation and disciplinary history concerning attendance problems and determined her case lacked sufficient merit to warrant taking it to arbitration. Those records reflected a five-year history of poor attendance, disciplinary warnings, and discipline imposed for poor attendance. Respondent's Board accepted Wheeler's recommendation that it not take Petitioner's case to arbitration. Respondent had successfully assisted Petitioner with prior employment problems she encountered over the years without incident or complaint by Petitioner. Neither Respondent's Board nor any staff member of Respondent, including Wicks and Wheeler, harbored any animus toward Petitioner. Assistance with her 1994 termination grievance though Step II was provided by Respondent absent any consideration of race or disability. Further assistance was appropriately denied to Petitioner on the basis of her employment history which strongly supported the charges against her and rendered an arbitration proceeding to challenge the termination futile. Petitioner's race and disability status played no role in Respondent's decision to forego taking Petitioner's grievance to arbitration. Transportation Department officials, and ultimately the Superintendent, had complete authority over the final employment decisions made regarding Petitioner and the other bus drivers whose termination had been recommended by Wise at the end of the 1993-94 school year. At no time did Respondent, or any agent thereof, have any authority to control or reverse these decisions. On May 27, 1994, Wicks and Petitioner signed and submitted a request for legal services to the FTP/NEA on the same day Respondent filed the grievance on Petitioner's behalf. The legal services document is a request that the FTP/NEA provide any legal assistance it might deem appropriate. The form specifically states that the FTP/NEA may decide to do so in its discretion. Wheeler did not have the authority to provide any legal services to Petitioner for the FTP/NEA; rather, that authority rested with the General Counsel of the FTP/NEA. Had Respondent taken Petitioner's grievance to arbitration, Wheeler, and not an attorney, would have handled the matter as was Respondent's usual practice. Petitioner's position that her request for legal services must be honored or it would be a violation of the labor contract is not supported by the evidence. Petitioner did not suffer from a medical condition of sufficient severity and duration to entitle her to the disability protections of the Florida Civil Rights Act. The medical evidence showed, however, that even those documents proved Petitioner's own physician (Dr. Fraser) repeatedly approved her return to work during the months in question, and that he did not expect the condition to have a significant impact on her once the proper medication regimen could be established. In fact, Dr. Fraser's note of May 11, 1994, states that he expected the medication-related side effect problem to be corrected over the next few weeks. Petitioner testified, and the medical records confirm, that she took a period of leave because of her grief- related problems and that she worked from February to June 1994. Although Petitioner missed some days intermittently during the remainder of the year. Dr. Fraser returned her to work in short order each time. Petitioner also testified that she obtained and sustained other full-time employment by the end of 1994 and that she has not been treated for "depression" since 1994. It is obvious from the record that Petitioner's physician did not consider her condition to be so significant as to prevent her from working after the immediate period of grief for which she sought and was granted leave. Neither Wicks, Wheeler, Respondent's Board, nor any agent of Respondent took any action concerning Petitioner which was motivated by her race or medical condition. Petitioner filed her Petition for Relief with the Florida Commission on Human Relations (FCHR) on April 5, 1999. The filing of the Petition was more than 35 days after the determination of no reasonable cause by the FCHR.
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 which dismisses the Petition for Relief for lack of jurisdiction and/or denies the Petition on the merits. DONE AND ENTERED this 24th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings 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 this 24th day of February, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Mae Vanessa Hampton Laurel Oaks Apartments 8775 Orange Court Tampa, Florida 33637 Pamela Cooper, Esquire FTP/NEA 213 South Adams Street Tallahassee, Florida 32301 Anthony D. Demma, Esquire Meyer & Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32301
The Issue Whether Petitioner was unlawfully terminated from her position with Respondent because of her race (Caucasian), in violation of the Florida Civil Rights Act of 1992 (hereinafter "FCRA"), Section 760.10(1)(a), Florida Statutes (2001).
Findings Of Fact Based upon the testimony of the witnesses and documentary evidence received at the hearing, the following relevant facts are determined: Respondent is a corporation, licensed to do business in Florida, that provides cleaning services to business clients; and is an employer, as that term is defined, under the FCRA. Petitioner began her employment with Respondent on January 1, 1997. Petitioner was hired as a restroom cleaner, and remained in that position until her termination from employment with Respondent on August 6, 1998. Throughout her employment with Respondent, Petitioner's supervisors were: Cecilia Haimes ("Haimes"), a Caucasian female; Danna Hewett ("Hewett"), a Caucasian Female; and Carlos Ramirez ("Ramirez"), an Hispanic male. Additionally, throughout her employment with Respondent, Petitioner was assigned to work at the Orange County Convention Center ("OCCC"). Hewett began her employment with Respondent as a restroom cleaner. Shortly thereafter, she was promoted by Ramirez to the position of lead restroom cleaner. Shortly after that, she was once again promoted by Ramirez, to the position of supervisor. As a supervisor, Hewett supervised Petitioner. Hewett became Petitioner's supervisor in or around August 1997. In her capacity as supervisor, Hewett was informed by other employees at OCCC that Petitioner was spreading rumors and gossiping about alleged affairs between certain employees and/or supervisors. Hewett and Ramirez discussed Petitioner's behavior, and they concluded that such behavior was extremely disruptive to the work environment. Specifically, such behavior by Petitioner affected employee morale and employees' respect for their supervisors. Based on these allegations, Ramirez contacted Ronald Jirik ("Jirik"), the Central Florida Regional Manager, to inform him of Petitioner's behavior. Upon meeting with Hewett and Ramirez, Jirik informed Ramirez to meet with Petitioner to try to get her to stop spreading such rumors. Ramirez met with Petitioner shortly thereafter. He attempted to resolve the problem and instructed her not to gossip or spread rumors. However, the problem persisted. Jirik contacted Ramirez to follow up on whether or not Ramirez was able to resolve the problem. Ramirez informed Jirik that he was unable to stop the rumors, and that he believed that Petitioner was continuing this improper behavior. Jirik then informed Ramirez that it would probably be best if Petitioner was transferred from the OCCC, and be given the option to transfer to another facility that was of equal distance from her home. Jirik is Caucasian. Jirik suggested that Petitioner be transferred to the Orlando Sentinel building due to the fact that, based on the information in Petitioner's personnel file, this location would have been of equal distance from her home. Additionally, such a transfer would not have changed any of the terms and conditions of Petitioner's employment, including but not limited to, pay, benefits, responsibilities, or shifts. Based on the foregoing, Ramirez met with Petitioner and she was offered a transfer to the Orlando Sentinel building location. However, Petitioner refused to accept the transfer. Thereafter, Petitioner's employment with Respondent was terminated on August 6, 1998. The evidence proved that Ramirez reprimanded Spanish- speaking and Caucasian employees in the same manner. Additionally, there was no credible evidence to show that Ramirez gave any form of favoritism to Spanish-speaking employees. Respondent's reason for terminating Petitioner was based on Respondent's perception that her conduct was disruptive to the work force. The allegation that Petitioner was terminated based on a discriminatory animus is unsubstantiated by the testimony and other evidence. There is no evidence that Respondent terminated Petitioner based on her race (Caucasian).
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 which DENIES the Petition for Relief. DONE AND ENTERED this 7th day of March, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 7th day of March, 2002. COPIES FURNISHED: Sharon Attas-Kaplan, Esquire Fisher & Phillips, LLP 450 East Las Olas Boulevard, Suite 800 Fort Lauderdale, Florida 33301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Mary J. Hall 1821 Ernest Street Maitland, Florida 32794 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Mr. Kennedy is of the Mormon faith. Mr. Kennedy had worked for Trawick in the past. He renewed his employment with Trawick in September 2005. He was a laborer. Sometime around the middle of September 2005, Mr. Kennedy was assigned to a work crew, whose foreman was Andrew Cooper. Trawick Construction is involved in laying and maintaining communication cable. Trawick has a work yard in Chipley, Florida. In accomplishing its work Trawick erects poles, and strings and lays wires, including fiber-optic cable. The work crew in which Mr. Kennedy worked used a five-ton truck and a trencher. Shovels are also used. Mr. Cooper had worked with Mr. Kennedy when both were laborers for Trawick in 1998. Mr. Cooper advanced to the position of foreman, but Mr. Kennedy remained a laborer and sometime after 1998 left the employ of Trawick. Mr. Kennedy asserted that during working hours on September 26 and 27, 2007, Mr. Cooper talked roughly to him and was "bossy." During that time, the Lord came in a vision to Mr. Kennedy and told him that he needed to pray for Mr. Cooper, so that Mr. Cooper might become a more accommodating and gracious supervisor. Mr. Kennedy revealed to Mr. Cooper that he was praying for him, although Mr. Cooper did not recall hearing any prayers. On September 27, 2007, the crew was working at a site near Enterprise, Alabama. On that day Mr. Kennedy worked slowly and was insubordinate toward Mr. Cooper. When he was told to accomplish designated tasks, Mr. Kennedy informed Mr. Cooper as to whether he would, or would not do as instructed. Mr. Kennedy was disrespectful and insubordinate to Mr. Cooper, who found this behavior to be unacceptable. Mr. Cooper and his crew were late getting back to Chipley because of Mr. Kennedy's failure to participate in the crew's assigned work. On the return trip, apparently having given up on the efficacy of prayer, Mr. Kennedy instead cursed and ranted in the presence of Mr. Cooper. After their return to Chipley, Mr. Cooper prepared a disciplinary report in response to Mr. Kennedy's behavior. The report was presented to Mr. Kennedy and he was asked to sign it. He refused to sign the document Mr. Cooper prepared. Instead he said, "I quit." The next morning, Wednesday, September 28, 2007, Mr. Kennedy put his gear in the five ton truck as if his employment continued, but Mr. Cooper told him to remove it and reminded Mr. Kennedy that he had been fired. Mr. Cooper called Carlton Wells, a supervisor, who eventually arrived at the Trawick facility in Chipley. Mr. Wells could have reversed the termination. However, by the time he arrived, Mr. Kennedy had departed the Chipley work yard. Mr. Wells, by doing nothing, ratified the action of Mr. Cooper. Neither Mr. Cooper nor Mr. Wells was aware of Mr. Kennedy's religious affiliation. No one in the Trawick organization harassed Mr. Kennedy because he was a Mormon, because no one knew he was a Mormon. Accordingly, whatever the hostility of the work situation, it was not in any manner related to religion. The timesheet maintained by Mr. Cooper reflects that Mr. Kennedy was fired on Wednesday, September 28, 2005. It is found as a fact that Mr. Kennedy was fired on September 28, 2005. Trawick has quarterly "safety" meetings. Despite the nomenclature, Trawick uses these "safety" meetings to educate its workers on many subjects, including the company policy forbidding discrimination. Mr. Cooper has attended these meetings when Trawick's policy as to nondiscrimination was taught. As a result, Mr. Cooper is quite aware that Trawick does not tolerate discrimination based on sex, race, color, or religion. He understands that a failure to conform to Trawick's policy with regard to discrimination could result in his demotion. Religion was not a factor in Mr. Cooper's decision to terminate Mr. Kennedy. No one retaliated against Mr. Kennedy because he complained of discrimination based on his religion. In fact, the first complaint of discrimination made by Mr. Kennedy was when he complained to the Commission and by that time he was no longer employed by Trawick. Mr. Kennedy provided no evidence of harm, monetary or otherwise, during the hearing.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the complaint of Lee Dell Kennedy. DONE AND ENTERED this 12th day of May, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 2008. COPIES FURNISHED: Mark J. Levine Levine & Associates, P.C. 4747 Bellaire Boulevard, Suite 500 Bellaire, Texas 77401 David Britain, Jr., Esquire Trawick Construction 1360 Post Oak Boulevard, Suite 2100 Houston, Texas 77056 Lee Dell Kennedy 747 Pecan Street Chipley, Florida 32428 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 H. Lester McFatter, Esquire Carr Allison 305 South Gadsden Street Tallahassee, Florida 32301 Jason C. Taylor, Esquire Carr Allison 305 South Gadsden Street Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner's Petition for Relief from an Unlawful Employment Practice (Petition for Relief) filed against Respondent should be granted by the Florida Commission on Human Relations (Commission).
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated Marriott Forum at Deercreek (hereinafter referred to as the "Facility"), a "senior living community, nursing home." Petitioner was employed as a Certified Nursing Assistant (hereinafter referred to as "CNA") at the Facility from 1992 or 1993, until July of 1998, when she was terminated. Petitioner is black. At the time of Petitioner's termination, all of the CNAs, and all but one of the nurses, at the Facility were black. At the time of Petitioner's termination, the chain of command leading down to Petitioner was as follows: the General Manager, Joanna Littlefield; the Health Care Administrator, Sheila Wiggins, and the Interim Director of Nursing, Michelle Borland. The Director of Human Resources was Meg McKaon. Ms. Littlefield had the ultimate authority to terminate employees working at the Facility. Ms. Wiggins, Ms. Borland, and Ms. McKaon had the authority to make termination recommendations to Ms. Littlefield, but not to take such action themselves. In July of 1998, F. S., an elderly woman in, or approaching, her 90's, was a resident at the Facility. On or about July 9, 1998, Petitioner was involved in a scuffle with F. S. while giving F. S. a shower. Joyce Montero, a social worker at the Facility, was nearby in the hallway and heard the "commotion." When F. S. came out of the shower, Ms. Montero spoke to her. F. S. appeared to be "very upset." She was screaming to Ms. Montero, "Get her away from me; she hit me," referring to Petitioner. Ms. Montero noticed that F. S. "had blood [streaming] from her nostril to at least the top of her lip." The nursing staff then "took over" and "cleaned up [F. S.'s] blood" with a towel. Ms. McKaon was contacted and informed that there was a CNA who had "had an altercation with a resident." Ms. McKaon went to the scene "right away" to investigate. When Ms. McKaon arrived, F. S. was still "visibly shaken and upset." Ms. McKaon saw the "bloody towel" that had been used to clean F. S.'s face "there next to [F. S.]." F. S. told Ms. McKaon that she was "afraid [of Petitioner] and that she [had been] punched in the nose" by Petitioner. In accordance with Facility policy, Petitioner was suspended for three days pending the completion of an investigation of F. S.'s allegation that Petitioner had "punched" her. Ms. Wiggins and Ms. McKaon presented Petitioner with a written notice of her suspension, which read as follows: Description of employee's behavior . . . . On July 9, 1998, one of our residents [F. S.] was being given a shower by [Petitioner]. [F. S.] stated that [Petitioner] punched her in the nose. (She was crying and bleeding: witnessed by Joyce Montero). Suspension For Investigation To provide time for a thorough investigation of all the facts before a final determination is made, you are being suspended for a period of 3 days. Guarantee Of Fair Treatment Acknowledgement I understand that my manager has recommended the termination of my employment for the reasons described above and that I have been suspended for 3 days while a decision regarding my employment status is made. I understand that the final decision regarding my employment status will be made by the General Manager. The suspension period will provide time for an investigation of all facts that led to this recommendation. I understand that the General Manager will be conducting this investigation. I further understand that if I feel I have information which will influence the decision, I have a right to and should discuss it with the General Manager. I am to report to my manager on July 13, 1998 at 10:00 a.m. Petitioner was asked to sign the foregoing notice, but refused to do so. Ms. McKaon conducted a thorough investigation into the incident. Following her investigation, she came to the conclusion that there was "enough evidence to terminate" Petitioner. As a result, she recommended that Ms. Littlefield take such action, the same recommendation made by Ms. Wiggins. After receiving Ms. McKaon's and Ms. Wiggins' recommendations, Ms. Littlefield decided to terminate Petitioner's employment. The termination action was taken on or about July 23, 1998. At this time, the Facility was on "moratorium" status (that is, "not allowed to accept any more patients") as a result of action taken against it by the Agency for Health Care Administration because of the "many" complaints of mistreatment that had been made by residents of the Facility. Ms. Wiggins was given the responsibility of personally informing Petitioner of Ms. Littlefield's decision. After telling Petitioner that her employment at the Facility had been terminated, Ms. Wiggins escorted Petitioner out of the building and to the parking lot. In the parking lot, Ms. Wiggins said to Petitioner something to the effect that, she, Ms. Wiggins, was "going to take all of the black nurses in the Facility." (What Ms. Wiggins meant is not at all clear from the evidentiary record.) Following Petitioner's termination, the racial composition of the CNA staff at the Facility remained the same: all-black, as a black CNA filled Petitioner's position. There has been no persuasive showing made that Petitioner's race played any role in Ms. Littlefield's decision to terminate Petitioner's employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order finding that Respondent is not guilty of the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's Petition for Relief based on such finding. DONE AND ENTERED this 20th day of June, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2003.
The Issue The issue addressed in this proceeding is whether Petitioner was the subject of an unlawful employment practice.
Findings Of Fact The Petitioner, Kenneth E. Brown (Brown) is a black male and is a person as defined within Chapter 760, Florida Statutes. He had been employed by Respondent Stone Container Corporation for several years. In 1989, Petitioner was employed as an electrician/maintenance repairman at the Corporation's mill plant in Panama City, Florida. Part of his duties was to perform preventive maintenance on the plant's machinery. Petitioner's work time did not include a 30 minute lunch allowed by the Company. Time cards were completed by Petitioner and turned in at the mill office. Stone Container Corporation is an employer as defined within Chapter 760, Florida Statutes. Throughout his employment the mill had a strict policy against an employee leaving work without advising his or her supervisor and working on personal property while the employee was on duty at the plant. Such violations of company policy could result in dismissal of the employee and had resulted in dismissal of both non-minority and minority employees in the past. The Corporation also had a policy on an employee keeping accurate records of the time spent on the job. Again failure to comply with this policy could result in dismissal of the employee. On October 8, 1989, Petitioner left work early to go to lunch without advising his supervisor and remained out to lunch for more than his allotted time. The Petitioner was out of the plant for one hour and 50 minutes (1:50). None of the time Petitioner took for lunch was reflected on Petitioner's time card. Petitioner's time card showed that he had worked eight full hours when he had not actually done so. Additionally, Petitioner used work time to work on his personal vehicle in the mill parking lot. Petitioner, was discharged by the Corporation a few weeks later for leaving his job without authorization from his supervisor and failing to reflect his extended absence on his time card. Petitioner made no showing that there was any relationship between his race and his termination. Likewise, Petitioner did not present any evidence that on October 8, 1989, he satisfactorily performed his job. Therefore, Petitioner has failed to prove a prima facie case and Petitioner's charge of discrimination should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations issue a Final Order dismissing Petitioners complaint. RECOMMENDED this 18th day of October, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1991. COPIES FURNISHED: Mr. Kenneth E. Brown, pro se 1014 Mercedes Avenue Panama City, Florida 32401 G. Thomas Harper, Esquire HAYNSWORTH, BALDWIN, JOHNSON AND HARPER Post Office Box 40593 Jacksonville, Florida 32203-0593 Dana Baird, General Counsel Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road, Building F (Suite 240) Tallahassee, Florida 32399-1570 Ronald M. McElrath Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on January 26, 2010.
Findings Of Fact Petitioner is an African-American female who was employed by APD from July 2005 until her termination on or about June 5, 2009. At all times relevant to this proceeding, Petitioner was a member of the Select Exempt Service (SES), a category of employment with the State of Florida. Respondent, Agency for Persons with Disabilities (APD), is an employer within the meaning of the Florida Civil Rights Act. APD is a state agency responsible for, among other things, providing residential treatment, training, and behavioral care to vulnerable, developmentally disabled individuals in an institutional setting. Tacachale is an Intermediate Care facility for mentally retarded persons and it is located in Gainesville, Florida. Jasmine Home at Tacachale is a group home for nine developmentally disabled women with significant behavioral problems. The staff who work at Jasmine Home are expected to provide monitoring of the residents/clients to ensure their safety and well-being. Petitioner worked for Respondent as a Behavior Program Specialist Supervisor in Jasmine Home. As a supervisor, Ms. Mack's duties were to oversee the direct care of the residents in the group home. Part of a supervisor's duties is to ensure that proper behavioral techniques are followed. When a resident engages in a behavioral episode, certain behavioral intervention techniques are used to calm the resident. These techniques range from verbal redirection to physical management techniques. These may include techniques that safely place the resident in a prone position to ensure that the resident does not hurt herself or others. Staff members are trained in techniques to do this type of intervention safely without causing injury to the residents. On December 13, 2008, a resident in Jasmine Home engaged in behavior that required staff intervention. A staff person, Gloria Burkett, and a co-worker initiated a "take-down" of this resident. Petitioner came into the room to assist in this intervention. A staff member who observed this intervention called the Florida Abuse Hotline alleging the use of inappropriate intervention techniques by Petitioner and Ms. Burkett. This commenced an external investigation into these allegations. Concurrently, Tacachale began an internal investigation. During the pendency of the dual investigations, both Petitioner and Ms. Burkett were reassigned away from direct client contact. This reassignment is standard practice at Tacachale when a staff member is named as a possible perpetrator of abuse toward a resident. Sharon Taber is the Programs Operations Administrator who oversees the facility of which Jasmine House is a part. While Ms. Taber did not participate in the investigations, she reviewed the findings of both. According to Ms. Taber, there is no set time for the length of staff reassignments in these circumstances. The length of the staff reassignment is based upon the safety of the residents. The investigation took a long time and, consequently, Petitioner remained reassigned for a long time. The internal investigative report concluded that the resident was mistreated by Petitioner. Ms. Taber reviewed the investigative report and concurred with the report's conclusion that Petitioner participated in an inappropriate restraint on the Jasmine resident, and, therefore, mistreated the resident. Ms. Taber was also aware that the Florida Abuse Hotline concluded its investigation finding that there were "some indicators" of abuse. As a result of the findings of both investigations, Ms. Taber determined that Petitioner had implemented inappropriate intervention techniques which put the client/resident at risk in violation of APD policies and procedures. In reaching her determination and recommendation for disciplinary action, Ms. Taber also considered that Petitioner was a supervisor and that the agency "expects more" from supervisors. Ms. Taber made a referral to the Human Resources Department for disciplinary action. Her recommendation was termination of Petitioner's employment. By letter dated June 3, 2010, APD notified Petitioner that she was being dismissed from her position. The letter further informed Petitioner that as a Select Exempt Service employee, she served at the pleasure of the agency and was subject to termination at the discretion of the agency head. Consequently, Petitioner was not entitled to an employment hearing or grievance proceeding. Petitioner believes that her subordinates were hostile to her and that they were prejudiced in their viewpoints. By relying on the staff's statements regarding the incident, Petitioner believes that APD did not handle the investigation professionally. Although Petitioner was given the opportunity to write a statement to APD regarding the incident and did write a statement, Petitioner believes she should have been interviewed during the investigation. Petitioner concluded that because APD did not handle the investigation the way Petitioner believes it should have been handled, that she was discriminated against because of her race.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding that the Agency for Persons with Disabilities is not guilty of the unlawful employment practice alleged by Petitioner and dismissing Petitioner's Charge of Discrimination. DONE AND ENTERED this 28th day of December, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 December, 2010.
The Issue The issues for determination are whether the Florida Commission on Human Relations (Commission or FCHR) lacks jurisdiction under Chapter 760, Florida Statutes (2003), over the claims in the Charge of Discrimination because the claims are barred by the doctrines of collateral estoppel and res judicata; the claims are time-barred by Subsections 760.01(1) and (5), Florida Statutes (2003); or both.
Findings Of Fact Respondent employed Petitioner in Respondent's Code Enforcement Division as a Program Coordinator from sometime in November 1999, until Petitioner resigned his employment on June 13, 2003. On April 2, 2002, while Petitioner was employed with Respondent, Petitioner filed identical charges of discrimination simultaneously with the Commission and the United States Equal Employment Opportunity Commission (EEOC). The charges alleged that Petitioner's employer discriminated against Petitioner on the basis of his race through disparate treatment in pay and promotion, retaliated against Petitioner, and created a hostile work environment for Petitioner. The EEOC assigned case number 150A201984 to the charge of discrimination. On April 29, 2002, the EEOC issued a Dismissal and Notice of Rights. On July 26, 2002, Petitioner filed a civil action in the United States District Court for the Middle District of Florida. The initial Complaint and subsequent Amended Complaint contained the same allegations as those set forth in the charges of discrimination filed with the Commission and the EEOC. The complaints alleged that Petitioner's employer violated Title VII of the Civil Rights Act of 1991 and the Florida Civil Rights Act by discriminating against Petitioner on the basis of race, through disparate treatment in promotion and pay; by retaliating against Petitioner; and by creating a hostile work environment. On February 12, 2004, Petitioner voluntarily dismissed his racial harassment claims in the federal civil case. On March 17, 2004, the federal court entered a Summary Judgment for the employer on all remaining claims and dismissed Petitioner's case with prejudice. The Summary Judgment expressly includes allegations of discrimination through the date of Petitioner's resignation from Orange County on June 13, 2003. On or about June 10, 2004, Petitioner appealed the Summary Judgment to the United States Court of Appeals for the Eleventh Circuit. On September 30, 2004, the Eleventh Circuit affirmed the Summary Judgment. On April 7, 2004, Petitioner filed the Charge of Discrimination over which the Commission determined it has no jurisdiction. The Charge of Discrimination alleges in its entirety: I believe I have been discriminated against pursuant to Chapter 760 of the Florida Civil Rights Act, and/or Title VII of the Federal Civil Rights Act, and/or the Age Discrimination in Employment Act, and/or the Americans with Disabilities Act as applicable: Once I filed a discrimination complaint (EEOC # 150A201984) I was retaliated against and subjected to disparate treatment because of my race (Black). Specifically, I was subjected to different terms and conditions, demoted and unfairly disciplined. Once I filed my complaint I was not invited to attend bi-weekly senior staff meetings and my job duties were diminished and reassigned to other staff. In addition, the entire Citizen Coordination Section which I supervised was eliminated and I was transferred to another Division in a position that had non-supervisory status. The position provided no opportunity for promotion and had minimal job duties. I was unjustifiably given a written reprimand for rude behavior and being absent without proper notification. After I grieved the reprimand it was reduced to an oral warning. One non-African American supervisor received numerous pay increases and unwarranted promotions. Eventually, he surpassed me in salary. Another non-African American supervisor was paid at a higher salary than myself, but did not qualify for the position and falsified the employment application. I filed a complaint with the Orange County Office of Professional Standards but they failed to conduct a fair and thorough investigation. Once I filed my complaint I was subjected to racial discrimination, retaliation and subjected to a hostile working environment from various members of County Administration which defamed my character and good name after working in County government for six years; thus purposely ruining my career to serve as a public servant in Orange County government. Ultimately, I was constructively discharged on June 13, 2003. Joint Ex. 18. The Commission investigated Petitioner's allegations in the Charge of Discrimination. The Commission provided Petitioner with an opportunity to explain how the allegations differed from the matters that the federal court disposed of in the Summary Judgment. Petitioner responded to the Commission in a timely manner. On July 28, 2004, the Commission determined that it did not have jurisdiction over the claims in the Charge of Discrimination. In relevant part, the Commission specifically stated: The Respondent is an employer within the meaning of one or more of the following laws: (a) the Florida Civil Rights Act of 1992, as amended, §760, Florida Statutes (2002); (b) Title VII of the Civil Rights Act of 1964, as amended; (c) the Age in Discrimination in Employment Act (ADEA); and/or (d) the Americans with Disabilities Act (ADA), however, all jurisdictional requirements for coverage have not been met. Federal case law interpreting Title VII is applicable to cases arising under the Florida Civil Rights Act because the Florida act was patterned after the federal civil rights laws. Florida State University v. Sondel, 685 So. 2d 923, 925 (Fla. 1st DCA 1996). On or about May 17, 2004, the Middle District of Florida, Orlando Division, decided the Complainant's claims against Respondent for discrimination and retaliation on summary judgment and dismissed all claims with prejudice. The failure to promote claim was dismissed for failure to exhaust administrative remedies. Complainant's complaint consists of substantially the same claims decided by the civil court. A dismissal of claims with prejudice is a final order. See Kobluer v. Group Hospitalization and Medical Services, Inc., 954 F. 2d 705 (11th Cir. 1992). As such, the appellate court has jurisdiction to decide such issues. Id. See also Solar v. Merit Systems Protection Bd., 600 F. Supp. 535 (D.C. Fla. 1985). The Commission does not have the authority to re-investigate and re-decide issues that were decided by the civil court, even if the reason for dismissal was failure to exhaust administrative remedies. See DOAH Docket Sheet filed 9-1-04. The Charge of Discrimination and Petition for Relief in this proceeding do not allege any acts or violations that were not raised in, and ruled on, by the federal court in prior litigation. Several of the allegations refer to matters that occurred more than 365 days before the filing of the Charge of Discrimination on April 7, 2004, including allegations contained in the charges of discrimination that Petitioner filed simultaneously with the Commission and EEOC on April 1, 2002. Other allegations of discrimination, hostile work environment, and retaliation through June 13, 2003, when Petitioner resigned from his employment with Respondent, are included in the Amended Complaint filed in federal court. It is undisputed that the allegations in this proceeding concerning demotion and transfer to a non-supervisory position refer to a transfer to Respondent's Neighborhood Services Division on June 16, 2003. The Summary Judgment expressly states that the Neighborhood Services Division "transfer has also become a part of this suit." The Summary Judgment notes that the transfer to the Neighborhood Services Division is an incident of retaliation alleged by the employee and ruled that the transfer was not retaliatory. Petitioner included the transfer in his Initial Brief to the United States Court of Appeals for the Eleventh Circuit and also argued that the elimination of his duties, his exclusion from key meetings, and the closing of the Citizen Coordination Section that he had supervised all supported his retaliation claim. The order affirming the Summary Judgment considered the issue of the alleged retaliatory transfer, the elimination of Petitioner's job duties over time, and an allegedly unwarranted written reprimand, and determined there was no retaliation. The Charge of Discrimination in this proceeding alleges, in relevant part, that the elimination of the Citizen Coordination Section that Petitioner had supervised was discriminatory and/or retaliatory. The order affirming the Summary Judgment considered the issue of the elimination of Petitioner's job duties over time and did not find retaliation. It is undisputed that the allegations in the Charge of Discrimination in this proceeding refer to a written reprimand issued by Petitioner's supervisor in March 2003. The written reprimand was part of the federal litigation, including the employee's Statement of Facts in Response to Orange County's Motion for Summary Judgment and in the employee's supporting exhibits. The order affirming the Summary Judgment specifically referred to the written reprimand and did not determine that the reprimand constituted retaliation. Moreover, neither DOAH nor the Commission has statutory authority to consider allegations concerning the written reprimand because those allegations involve acts that occurred more than one year before the filing of the Charge of Discrimination within the meaning of Subsection 760.11(1), Florida Statutes (2003). It is undisputed that allegations in the Charge of Discrimination in this proceeding concerning disparate pay for two non-African American supervisors referred to higher pay for supervisors, identified in the record as Mr. Robert Hildreth and Mr. Ed Caneda, that occurred in March 2002. The federal civil court previously analyzed Petitioner's claims of pay disparity related to both supervisors. The court found that Petitioner was not similarly situated to either supervisor. The Charge of Discrimination in this proceeding alleges that Respondent subjected Petitioner to a hostile working environment when various members of the Orange County Administration defamed Petitioner's character and good name. Petitioner fully addressed the allegations of harassment and hostile work environment in his response to the motion for summary judgment in federal court. Petitioner stipulated to a dismissal with prejudice of his hostile work environment claims, and the federal court ruled that Orange County was the prevailing party on Petitioner's claims for hostile work environment. It is undisputed that the Charge of Discrimination in this proceeding does not contain any allegations concerning the failure to promote Petitioner. However, Petitioner did raise this issue and litigated the issue in federal court. The federal court ruled that Petitioner did not exhaust his administrative remedies concerning allegations that Respondent failed to promote Petitioner and that the claim arose in January 2002, prior to date when Petitioner filed simultaneous claims with the EEOC and FCHR. More than two years passed before Petitioner filed the Charge of Discrimination in this proceeding. Accordingly, Petitioner's claim of promotion discrimination falls outside the statutory one-year filing requirement prescribed in Subsection 760.11(1), Florida Statutes (2003). In any event, the claim that Respondent failed to promote Petitioner is not a new issue that was beyond the scope of the Summary Judgment. It is undisputed that allegations in the Charge of Discrimination in this proceeding concerning the alleged failure of Respondent's Office of Professional Standards (OPS) to conduct a fair and thorough investigation of his discrimination complaint referred to an investigation into Petitioner's complaint in March 2002. OPS issued its final report on July 3, 2002, approximately 21 months before Petitioner filed the Charge of Discrimination in this proceeding. Accordingly, the complaints about the OPS investigation fall outside the statutory one-year filing requirement set out in Subsection 760.11(1), Florida Statutes (2003). The federal litigation included identical allegations concerning the OPS investigation. During the federal case, Petitioner's attorney deposed Mr. William Moore, the manager of OPS, and questioned Mr. Moore extensively about the way OPS investigated Petitioner's complaint. In response to the motion for summary judgment, Petitioner specifically claimed that the investigation undertaken by OPS was unfair and discriminatory. The complaint in the Charge of Discrimination in this proceeding is not a new issue or claim, but is identical to the issue litigated in federal court. Allegations in the Charge of Discrimination that Respondent excluded Petitioner from key meetings refer to events in September 2001. The same allegations were litigated in federal court. Petitioner outlined his allegations to the federal court that allegedly showed his exclusion from key meetings. Petitioner also appealed the issue of exclusion to the appellate court. The Charge of Discrimination presents no new issue, and the issue falls outside the one-year filing requirement in Subsection 760.11(1), Florida Statutes (2003). It is undisputed that the allegation in the Charge of Discrimination that Respondent constructively discharged Petitioner, refers to being demoted, reprimanded, excluded from meetings, and transferred to the Neighborhood Services Division. The allegation of constructive discharge is not a new claim, but is the same claim that was litigated in federal court.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order dismissing this proceeding for the reasons stated in this Recommended Order. DONE AND ENTERED this 25th day of January, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 25th day of January, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan T. Spradley, Esquire Deborah L. La Fleur, Esquire Gray Robinson, P.A. Post Office Box 3068 Orlando, Florida 32802 Kelvin D. Bodley Post Office Box 680507 Orlando, Florida 32686-0507 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent Department of Corrections (Respondent or the Department) violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discharging Petitioner Theresa Williams (Petitioner) in retaliation for her participation as a witness during the investigation of an alleged discrimination claim brought by another employee.
Findings Of Fact The Department of Corrections is a state agency as defined in chapter 110, Florida Statutes, and an employer as that term is defined in section 760.02(7), Florida Statutes. At all times material, Petitioner was employed as a nurse at the Department's Lake Correctional Institution (“the Institution”) in Clermont, Florida. She was hired by the Department as a Licensed Practical Nurse effective July 12, 2007. Petitioner was terminated from her position with the Institution in May 2013. At the time of Petitioner's termination, her official title was “Senior Licensed Practical Nurse.” Prior to her termination, the Department provided Petitioner with a letter dated April 16, 2013, advising her of her proposed dismissal and scheduling a meeting (“termination conference”) with the Institution's Warden to discuss the reasons why Petitioner was being considered for termination. The letter was excluded from evidence because it was not timely disclosed as an exhibit by the Department as required in the Order of Prehearing Instructions in this case. Nevertheless, Respondent testified that she attended the termination conference and that, during the termination conference, she was provided, and they discussed, three incident reports against her that she had previously seen. The termination conference was attended by the Institution's Warden, the Assistant Warden, and Dr. Virginia Mesa, the Institution's Chief Health Operator. The incident reports discussed at Petitioner's termination conference included Petitioner's alleged violation on February 8, 2013, of the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) for which Dr. Mesa recommended Petitioner’s dismissal; Petitioner's alleged failure on February 8, 2013, to carry out an assignment to log walking canes provided to inmates; and an alleged argument on February 18, 2013, with a supervisor regarding Petitioner's reassignment to process transferred inmates known as "new gains." There is no indication that the termination conference changed the Department's proposed decision to terminate Petitioner. At the final hearing, Petitioner testified and presented evidence designed to prove that the incidents outlined above did not occur. However, following her termination in 2013, Petitioner timely filed a career service system appeal with the State of Florida, Public Employees Relations Commission (PERC), contesting her termination. Following an evidentiary hearing and a PERC hearing officer's recommended order in that proceeding, PERC entered a final order on November 6, 2013, providing in its pertinent part: The relevant facts found by the hearing officer relate three separate incidents that led to [Theresa] Williams' dismissal. On February 8, 2013, Dr. Virginia Mesa observed Williams showing Captain Reed, who was the security officer-in-charge of the shift, something in a green file. A green file is the type of medical file kept for each inmate. The green file was open in Williams' hand and Reed and Williams were looking into it. Mesa observed Williams flipping through the file with Reed in the public hallway. The Agency's policy and federal law strictly prohibit prison medical personnel from allowing non-medical staff to see inmate medical records. That same day, Debra Elder, who was a senior health services administrator and new manager, asked Williams to record various information about canes that were issued to inmates and to label each cane with an identifying mark. Williams turned to a co- worker and told her to do it. Elder considered Williams' attitude insubordinate and wrote an incident report as soon as she returned to her office. On February 18, Williams was assigned to be the "sick call" nurse when she reported for her shift at 6:45 a.m. However, she was informed that, if the prison received a significant number of "new gains," she would be re-assigned to assist the two nurses doing that work. "New gains" is the Agency's term for the processing of inmates transferred to the institution from another facility. Around 8:00 a.m., Williams' supervisor, Joyce Isagba, arrived at work. Isagba reviewed the assignments and directed a subordinate to assign Williams to new gains that day. Williams believed Isagba, a relatively new supervisor, had a pattern of changing her assignment from sick call nurse to new gains and did not like it. Williams approached Isagba and questioned why she was being reassigned. Williams and Isagba became loud and argumentative. Other nurses were present in the room. The conversation lasted some time and Williams repeatedly stated that the change of her assignment was unfair and repeatedly wanted to know why she was being reassigned. Isagba told her she was more qualified to do that work and that she did not have to give her reason for her decisions. The dispute lasted several minutes and Williams reluctantly assisted with new gains. Later that day, Williams was sent to sick call to finish that duty. Isagba considered Williams to have been insubordinate and wrote an incident report. Based on these factual findings, the hearing officer concluded that the Agency had grounds to discipline Williams for poor performance, violating the Agency's medical information privacy, and insubordination in violation of Florida Administrative Code Rule 60L-36.005. He recommended that [PERC] adopt his recommended order and dismiss Williams' appeal. * * * Upon review of the complete record, including the transcript, we conclude that all of the hearing officer's facts are supported by competent substantial evidence received in a proceeding that satisfied the essential requirements of law. Therefore, we adopt the hearing officer's findings. § 120.57(1)(l), Fla. Stat. Furthermore, we agree with the hearing officer's legal analysis of the disputed legal issues, his conclusions of law, and his recommendation. Accordingly, the hearing officer's recommendation is incorporated herein and Williams' appeal is DISMISSED. The hearing officer's Recommendation and PERC's Final Order in the PERC Proceeding, Williams v. DOC, 28 FCSR 284 (2013), were submitted by both parties and received into evidence without objection in this case as Exhibits P-4 and P-5, respectively, and Exhibits R-B and R-C, respectively. The PERC Proceeding involved the same parties as in this case and the allegations in the incident reports discussed at Petitioner's termination conference were actually litigated and determined in the PERC Proceeding. In other words, whether the incidents outlined in those incident reports occurred and are sufficient to support the Department's decision to terminate Petitioner's employment has already been determined.2/ Moreover, Petitioner failed to show, in this case, that the incidents did not occur. Although Petitioner testified that she did not show Captain Reed the inmate's medical chart in violation of HIPAA and introduced Captain Reed's written statement stating that Petitioner did not show him the chart, the evidence adduced at the final hearing showed that when she met with Captain Reed during the incident, she was flipping through papers with the medical chart in her hand. As found in the PERC hearing officer's Recommended Order: Williams violated the Agency's privacy policy when she held an open inmate medical file so a security staff officer could see the inmate's writing and signature. This was not a reasonable procedure to accomplish the task of notifying the officer of a potential security threat to other inmates. There was a real possibility that the sick call slip had been forged. It was unnecessary to show Captain Reed an inmate's medical file to determine if the slip was forged. Williams could have done that herself with the same accuracy as Reed, since neither is a handwriting expert. Williams v. DOC, 28 FCSR 284 (Recommended Order, 08/26/13). Dr. Mesa's testimony in this case was consistent with the hearing officer's finding and is credited. Regarding the other two incident reports, while Petitioner denied asking another to perform her assigned task of logging inmates' canes, she admitted that she delayed performing the task. Petitioner also admitted that she questioned her supervisor, Ms. Insagba, as to why she was being assigned "new gains," that during the incident Ms. Insagba raised her voice, and that they "were both talking at the same time and I guess she was trying to get a point across and I was just trying to ask her why." In addition to the incidents addressed in the three incident reports, during cross examination in this case, Petitioner revealed that she was also disciplined twice in 2012. In August 2012, Petitioner received a record of counseling for insubordination. And in December 2012, Petitioner received a written reprimand for failure to follow instructions. In sum, the record supports a finding that, by May 2013, the Department had cause to terminate Petitioner. Although it has been determined that the Department had cause to terminate Petitioner's employment at the Institution, in this case Petitioner asserts that the real reason for her dismissal was her participation as a witness in a discrimination charge brought by another employee against the Department and Dr. Mesa. The disciplinary incidents supporting Petitioner's dismissal occurred in February 2013, and before. The investigation in which Petitioner participated began in March of 2013 and Petitioner provided testimony in that investigation on April 23, 2013, after Dr. Mesa had already recommended Petitioner’s dismissal and after Petitioner had been notified by the Department that she was being considered for dismissal. Petitioner was dismissed in May 2013. In finding probable cause, the Commission stated in its summary of the Investigative Memorandum: Complainant did not demonstrate that she was harassed or disciplined because of participation in the internal investigation. Complainant provided no evidence of harassment, and she was not disciplined after her protected activity occurred. Respondent admitted that Complainant was disciplined for the alleged HIPAA violation, but this occurred prior to her protected activity. Based on the information received during the investigation, it does appear that Complainant was terminated in retaliation for her participation in the internal investigation. If the alleged HIPAA violation was a true terminable offense, Complainant should have been terminated in February of 2013 when it occurred. Instead, Respondent waited nearly three months to terminate her, which was about three weeks after her protected activity. Additionally, Respondent has a progressive disciplinary policy which it did not follow. The alleged HIPAA violation is Complainant's only documented incident. Respondent also claimed that Complainant was terminated after she was disciplined several times prior to the HIPAA event, yet it could provide no evidence that she had a disciplinary record prior to February of 2013. Unlike the limited information available to the Commission in its probable cause determination, the evidence in the de novo proceeding conducted in this case demonstrated that Petitioner had a number of disciplinary offenses in February that were found by PERC to support her dismissal, and that Petitioner had been written up for two other disciplinary infractions in 2012. Moreover, the showing necessary for a probable cause determination is less than Petitioner's burden to prove discrimination. While there was a delay in Petitioner's termination, the evidence showed that Dr. Mesa recommended Petitioner for dismissal when she wrote up the incident report for the HIPAA violation in February 2013. Although it is evident that management, including the Warden and Dr. Mesa, was generally aware that Petitioner had participated as a witness in another employee's discrimination claim in April of 2013, Petitioner did not show that she was terminated because of that participation. And, while the Department's delay in dismissing Petitioner remained unexplained at the final hearing,3/ that delay, in light of the other facts and circumstances of this case, including Petitioner's numerous disciplinary infractions outlined above, is an insufficient basis to support a finding that Petitioner was terminated in retaliation for her participation in a protected activity.
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 dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 30th day of June, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSotoBuilding 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2015.
The Issue Whether Respondent terminated Petitioner’s employment in violation of Chapter 760, Florida Statutes (2004), popularly known as the Florida Civil Rights Act of 1992 (Florida Civil Rights Act).
Findings Of Fact Petitioner is an Hispanic female. Petitioner was employed by Respondent in records for almost 15 years prior to July 16, 2004, when she was terminated. Respondent is a municipal corporation located in Miami- Dade County, Florida, and an employer within the meaning of the Florida Civil Rights Act. Respondent provides a variety of public services generally associated with cities of comparable size, including a full service police department. At all relevant times, Hispanics comprised approximately half of the police department's workforce. Many of these individuals were employed in supervisory capacities. Four Hispanics were supervisors in Petitioner's chain of command. In her position in records, Petitioner was responsible to timely and accurately process official police documents. Such processing included the completion of forms and transmittal documents and timely copying, filing and production of such documents to appropriate individuals and authorities (document processing). Failure to discharge any of the foregoing responsibilities is reasonably deemed by Respondent to be incompetence, and a firing offense(s). In her position in records, Petitioner was also responsible to comply with all directives of supervisors and to cooperate in internal affairs investigations. Cooperation in this context includes providing sworn statements and/or answering questions under oath as may be required by Respondent. Failure to comply with directives and to cooperate in internal affairs investigations are reasonably deemed by Respondent to be insubordination, and firing offenses. On April 29, 2004, a member of the public presented himself to records and requested a copy of an official police record to which he was entitled to access, specifically a traffic ticket. Records could not locate the document because it had not been properly processed by Petitioner, who was responsible for doing so. Having become aware of a problem with this particular document processing, Respondent thereupon took reasonable steps to determine whether this was an isolated error by Petitioner. In so doing, Respondent discovered and documented a high volume of document processing errors with respect to official police records for which Petitioner was responsible. In February 2004, one of Petitioner's supervisors – one who happened to be Hispanic -- issued a written directive (the February directive) to all records employees which required that they disclose, on a weekly basis, any "backlogs" of document processing work. In direct violation of the directive, Petitioner never disclosed existence of her backlog, which was, by April 29, 2004, extremely large. Now on notice of the backlog and deeply concerned about its potential effects on the police department and the public it serves, and pursuant to police department policy, an internal affairs investigation was initiated under the leadership of the same Hispanic supervisor. Over the course of the investigation, Respondent learned that the problem(s) revealed on April 29, 2004, were only the "tip of the iceberg." The internal affairs investigation uncovered “hundreds and hundreds” of additional document processing errors. Virtually all of the errors discovered involved official police records for which Petitioner was responsible. In the course of the internal affairs investigation, Petitioner was directed to give a sworn statement, and refused to do so, which refusal was deemed to constitute insubordination. Petitioner’s errors as documented in the internal investigation demonstrated incompetence. Her failure to comply with the February directive and to provide a sworn statement to internal affairs investigators constituted insubordination. At the conclusion of the internal affairs investigation, Petitioner was terminated for incompetence in the performance of her document processing responsibilities and for insubordination. Petitioner failed to discredit the factual underpinnings of Respondent’s decision to terminate her employment; neither did she establish any discriminatory basis upon which Respondent terminated her employment. Respondent replaced Petitioner with an Hispanic, who remained employed by Respondent through and including the time of the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the FCHR enter its final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of September, 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Christina Quintero 4780 Northwest 2nd Street Miami, Florida 33126 David C. Miller, Esquire Akerman Senterfitt Sun Trust International Center, 28th Floor One Southeast Third Avenue Miami, Florida 33131 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, Wal-Mart Stores, East, LP (Respondent or Wal-Mart), violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against Petitioner, Mary L. Smith (Petitioner), based upon Petitioner’s race, age, or in retaliation for her participation in protected activity.
Findings Of Fact As she describes herself, Petitioner, Mary L. Smith, is an 82-year-old, Black American woman. Petitioner has worked as an associate for Walmart since 2004 in Store 488 located in Quincy, Florida. During her employment with Walmart, Petitioner received training about Walmart’s core beliefs and open door policies. Throughout her employment at Walmart, Petitioner received wage increases and was not disciplined for the two incidents related to Petitioner’s Complaint, as further detailed below. In October 2014, while helping unload freight, Walmart Assistant Manager Saundra Davis saw Petitioner yelling at two other Walmart associates. Ms. Davis instructed Petitioner to go to the office, but Petitioner refused to do so. Next, Ms. Davis instructed Petitioner to clock out for the remainder of her shift. During the discussion, Petitioner informed Ms. Davis that she would leave the store only if she were escorted by police. Petitioner did not clock out. Rather, she refused to leave and completed her shift. Assistant Manager Davis considered Petitioner’s refusal to follow instructions an act of insubordination. Petitioner, however, was not reprimanded for this incident. Subsequently, in January 2015, all associates, including Petitioner, were instructed to go retrieve shopping carts left in the parking lot by customers. Petitioner refused to comply with that request. Instead, Petitioner became visibly upset and told everyone that she would not go outside. Afterward, Petitioner reiterated that she was not going to do as instructed by management. Once again, Ms. Davis instructed Petitioner to clock out for the remainder of her shift, but Petitioner refused. This time, Walmart management called police to escort Petitioner out of the store. As before, Petitioner was not reprimanded for the January 16, 2015, incident. Petitioner never complained to Walmart management that she was being discriminated against based on her race, age, or membership in any other protected category. Assistant Manager Davis denied harboring any discriminatory animus towards Petitioner, and the evidence did not otherwise demonstrate any such animus on the part of Ms. Davis or Walmart.
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 dismissing Petitioner’s Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 25th day of March, 2016, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 2016.
