The Issue The issue to be resolved in this proceeding is whether Petitioner was the subject of an unlawful employment practice based on his age.
Findings Of Fact Currently, Petitioner is a retired, 68-year-old male. He retired from Respondent at the age of 66. Petitioner began his employment with Respondent as a truck driver. The position of truck driver, involves many long hours of driving (sometimes over 56 hours) various interstate and intrastate truck routes, along with some lifting and exposure to diesel fumes. Petitioner attributed a variety of illnesses and health problems to his work as a truck driver. Some of the illnesses and health problems are hypertension and heart blockage and failure, which resulted in the implantation of a pacemaker, carpal tunnel syndrome, polyneuropathy, muscular and autonomic system problems and pathological hyper-insomnia. Petitioner offered no evidence that any of these conditions resulted from his employment with Respondent. Prior to September 9 or 10, 2000, at the age of 64, Petitioner was hospitalized for heart problems. Around September 9 or 10, 2000, Petitioner was released from the hospital. Upon his return to work, he gave his employer a physician’s note indicating that his work duties be limited to 40 hours a week. Petitioner met with Respondent’s transportation manager regarding whether less lengthy routes were available or whether his schedule or work duties could be adjusted. The employer did not have the ability to adjust the length of the routes, but added a second driver to ride and help with the driving on any route that Petitioner drove. Petitioner inquired about office work and was told that if he was interested in such work he needed to apply at the main office to see what was available. In part, because Petitioner liked driving and in part because the lesser number of hours involved in office work would cause Petitioner to earn less, Petitioner elected not to pursue and did not apply for such office work. No adverse employment action was taken against Petitioner, and Petitioner continued to work for Respondent. At some point during this meeting, Petitioner alleges that the transportation manager said, “Why don’t you just retire.” Petitioner offered no specific context for this statement other than it was a general conversation about his health and closeness to retirement age relative to the adjustments that could be made to his driving duties. One isolated statement such as the one above does not demonstrate any intent to discriminate on Respondent’s part based on Petitioner’s age, especially since no adverse employment action was taken against Petitioner and Petitioner continued to work for Respondent. Around January 1, 2001, for medical reasons, Respondent approved a Leave of Absence with pay for Petitioner. In June or July, 2002, Petitioner filed his first workers compensation claim with Respondent. Petitioner’s claim was turned over to Respondent’s workers' compensation insurer, Kemper Insurance Company. Petitioner did not offer any evidence that Kemper was under the direction or control of Respondent in any decisions Kemper made regarding paying or litigating Petitioner’s claim. In any event, Petitioner’s claim was contested. The main reason the claim was contested was that Kemper alleged that Petitioner’s “injuries” were not work-related. Over the years, Petitioner has amended his claim to include, among other health claims, the health problems listed above. Kemper has maintained its defense. During a mediation session on December 11, 2002, at which the employer was not present and in response to an inquiry regarding Kemper’s defense, Kemper’s representative stated that except for the carpal tunnel claim, all of Petitioner’s medical conditions were due to the natural aging process. Petitioner claims this statement demonstrates an intent on his employer’s part to discriminate against him based on his age. Such an isolated statement does not demonstrate such an intent especially since such conditions can be age related, there was no expert medical evidence demonstrating the cause of Petitioner’s health problems, the statement did not come from the employer, and there was no evidence that the insurer was under the direction or control of the employer regarding decisions to litigate or the factual basis for the defenses that the insurer would raise. The workers' compensation litigation continues to date. In the interim, Petitioner remained on a leave of absence with pay until January 1, 2003. He retired thereafter. There was no evidence that Respondent discriminated against Petitioner or that Petitioner suffered any adverse employment action based on his age. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relation 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Glynda Copeland Qualified Representative Tree of Life, Inc. Post Office Box 410 St. Augustine, Florida 32095-0410 Robert C. Johnson 560 Florida Club Boulevard, Suite 112 St. Augustine, Florida 32084
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on June 18, 2009.
Findings Of Fact Petitioner is an African-American female who was employed by Respondent from June 16, 2008, until her termination on December 10, 2008. Prior to that, Petitioner worked for the Welfare Transition Program which was taken over by Respondent. When she began her employment with Respondent, she was hired to be a customer service representative wherein she continued doing essentially the same job she was doing before Respondent took over. Respondent, Workforce Escarosa, Inc. (Workforce), is an employer within the meaning of the Florida Civil Rights Act. Workforce is one of 24 local workforce investment boards in Florida and is responsible for Escambia and Santa Rosa Counties. Workforce oversees federal employment and training programs including the Workforce Investment Act, Welfare Transition Program, Disabled Veterans Program, Wagner Peyser Program, and other federal programs. Part of Workforce's responsibility is to train people for new jobs and careers, and to assist them in attaining economic self-sufficiency through employment. Maggie Thomas is the Assistant Director of Workforce's Welfare Transition Program and was Petitioner's supervisor. Ms. Thomas hired Petitioner in June 2008 to be part of the "Core Team." The Core Team consisted of four persons: Julie Vick, Tesha Stallworth, Julia Lockhart, and Petitioner. The Core Team provided administrative support and was responsible for front desk operations. Often, 70 or 80 people were in the waiting area near the front desk. In July 2008, Ms. Thomas counseled Petitioner following an incident that occurred when Ms. Thomas and Ms. Thomas' administrative assistant, Julie Vick, offered assistance to Petitioner regarding an overhead projector and screen. Ms. Thomas described Petitioner's response as "a real rude rebuff." Ms. Thomas also learned that there was tension between Petitioner and Ms. Vick. Ms. Thomas brought both Petitioner and Ms. Vick into her office emphasizing that staff needed to get along and that "staff should not treat staff in that abrupt rude manner." Later in July 2008, Ms. Thomas was approached by a career advisor who complained about Petitioner's demeanor with customers and staff. Ms. Thomas again counseled Petitioner regarding the importance of getting along with fellow staff members and treating customers with respect. Ms. Thomas counseled Petitioner on a third occasion after receiving complaints from another career advisor, Tarae Donaldson, who is African-American. Ms. Donaldson requested that she not have to work with Petitioner on a project because of Petitioner's attitude and demeanor. Ms. Thomas counseled Petitioner that Petitioner's attitude and demeanor in the workplace was affecting office morale, reminded Petitioner that this was the third time that Ms. Thomas had to counsel her about this, and advised Petitioner that she needed to take this matter seriously. In early November 2008, Petitioner had a confrontation with a co-worker, Julia Lockhart, who is white. Petitioner and Ms. Lockhart were co-workers and friends, who socialized after work and "hung out" together. That day, Ms. Lockhart was responsible for the front counter. A workforce client, Katrina Harmon, was working the front counter as part of the Community Work Experience Program (CWEP). Ms. Lockhart counseled Ms. Harmon about using "Mr.", "Mrs.", or "Ms." when addressing the Workforce clients rather than just calling out their last names. Ms. Lockhart described Ms. Harmon's actions toward the clients as unprofessional and that it "kind of reminded me of a drill sergeant." Ms. Harmon, who is African-American, later complained to Petitioner about Lockhart's counseling her. Petitioner and Ms. Lockhart then discussed the situation. Petitioner believes that Ms. Lockhart was upset with Ms. Johnson for siding with Ms. Harmon because Ms. Harmon is African-American. However, Petitioner acknowledged that this was her opinion based on her personal perception. Moreover, even if Ms. Lockhart was upset with Ms. Johnson, being upset with a co-worker does not establish racial discrimination. In early December 2008, another staff member, Tesha Stallworth, approached Ms. Thomas complaining about Petitioner's demeanor. Ms. Thomas learned more about the incident involving Ms. Harmon during this meeting with Ms. Stallworth. Ms. Thomas decided to transfer Ms. Harmon from the front desk to the Internet Café. About three weeks later, Ms. Thomas was called by Ms. Stallworth. During this call, Ms. Thomas learned that Ms. Stallworth threatened to quit because of Petitioner. During this three-week period, Ms. Thomas also heard complaints regarding Petitioner's office demeanor from Ms. Lockhart. Ms. Thomas considers Ms. Stallworth and Ms. Lockhart to be "very reliable employees." Ms. Thomas decided to have another counseling session with Petitioner. The fourth counseling session took place on December 8, 2008. Ms. Thomas felt that Petitioner's job was in jeopardy but wanted to give Petitioner one more chance. Additionally, Ms. Thomas found Petitioner's job performance to be otherwise good. Ms. Thomas described Petitioner as very defensive and that she did not take responsibility for any of her actions. Ms. Thomas presented Petitioner with a memorandum entitled, "Counseling on Unprofessional Behavior and Disrespect of other employees." Petitioner refused to sign the counseling memorandum. Following that meeting, Ms. Thomas went to Susan Nelms, Executive Director of Workforce. Ms. Thomas conveyed to Ms. Nelms her concerns, that she did not hold out any hope that the situation would be resolved, and that Petitioner was affecting morale. Ms. Nelms made the decision to terminate Petitioner. Ms. Thomas did not convey anything to Ms. Nelms that would indicate that there were any racial issues surrounding Petitioner's termination from employment. Ms. Thomas then went to Landrum to get advice on how to proceed. Ms. Thomas again met with Petitioner on December 10, 2008, and told her that her employment would be terminated. Ms. Thomas relates the following about the December 10 meeting: Q: And that's when the decision was made by Ms. Nelms to terminate Ms. Johnson? A: Yes. Q: And then was that then conveyed to Ms. Johnson? A: No. After December 8th, after Susan [Nelms] gave me the go ahead, I wanted a day to go to Landrum to make sure that I would do this in the proper manner. Q: So you got advice from Landrum? A: I did get advice from Landrum. Q: And then after that, did you meet with Ms. Johnson? A: I met with Ms. Johnson on December 10th. Q: All right. And conveyed that her position would be terminated? A: That is correct. And it is at that time, I'm positive about this, that she first brought up that it was a black/white issue against her. After she knew that she was being terminated and the reason I know-- I am absolutely positive about this, is because the day before when I visited Landrum, we were sitting there talking about the proper procedure and I remember asking-- I said, you know, what if she brings up that she thinks this is a black/white issue? I said, you know, how do I respond to that? I mean, she hasn't up to this point, but I asked and they just said, you should just say you don't want to go there. So after I handed her the termination, and she brought up that she thought it was a black and white issue against herself, that's when I said, I don't want to go there, because that's what I had been advised to say. Now, her memory on December 8th might have been that she brought up the black/white issue about Katrina [Harmon], but it was not about herself. I'm absolutely positive on that point. Ms. Thomas' testimony in that regard was credible and is accepted. That is, that Petitioner first mentioned to Ms. Thomas that the Lockhart/Harmon was a racial issue, somehow related to her, on December 10, 2008. On December 16, 2008, Petitioner wrote Ms. Nelms regarding her termination. The letter does not contain any allegation of race discrimination or that her termination was in retaliation for reporting race discrimination. On December 29, 2008, Petitioner spoke with Holly McLeod, a human resource manager with Landrum Professional Employer Service (Landrum). Petitioner did not complain to Ms. McLeod about any race discrimination or allege that her termination was in retaliation for complaining about race discrimination. On or about January 8, 2009, Petitioner filed a complaint with the Escambia-Pensacola Human Relations Commission concerning her termination from Workforce. The letter of complaint does not allege race discrimination or retaliation. Instead, the letter alleges that she was involved in a disagreement with a co-worker; that she became a victim on a "malicious vendetta" by this co-worker; that this co-worker manipulated and influenced another co-worker and their supervisor; and that the circumstances surrounding her termination were "irrational, irresponsible, and deceitful." At the time that letter was written, Petitioner believed that Ms. Thomas made the decision to fire her. Petitioner alleged in her Employment Complaint of Discrimination that she "became the subject of racial jokes and harassment by a co-worker, Ms. Julia Lockhart (white)." Petitioner's allegations in this regard are not precise in that she initially referenced four occasions of racial jokes but then characterized that as a "guesstimation." In her Proposed Recommended Order, Petitioner asserts that the number and frequency of the jokes are not known. There is testimony regarding the content of only one joke. Ms. Lockhart acknowledges that on one occasion, she told a joke when she and Ms. Johnson were outside smoking a cigarette together. Petitioner pointed out a black woman to Ms. Lockhart and commented that the woman had the biggest lips she had ever seen. In response, Ms. Lockhart then told a joke regarding African-Americans.1/ Petitioner laughed at the joke and did not indicate that she was offended. In response to a question as to whether she found the alleged jokes to be offensive, Petitioner replied, "I don't even remember what the jokes were, so how can I tell you if that they were offensive or not." Petitioner is not certain as to whether Ms. Lockhart meant to be offensive. The preponderance of the evidence suggests that Petitioner only stopped socializing with Ms. Lockhart after the incident involving Ms. Harmon, not because of any joke(s). Workforce has an open door policy for reporting discrimination. Petitioner received a copy of this policy, but did not complain to Workforce or Landrum about Ms. Lockhart's joke(s).
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 dismissing the Employment Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 28th day of January, 2011, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2011.
The Issue Whether Respondent unlawfully terminated the employment of Petitioner, because of his age in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes. Whether Respondent retaliated against Petitioner by terminating him on October 3, 2005, after Petitioner filed a complaint with human resources alleging a hostile work environment.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Leviton Manufacturing Corporation manufactures electrical equipment and components. It is a New York corporation licensed to do business in the State of Florida. Inter allia, Respondent employs a sales force that covers the entire State of Florida. Respondent is an employer as defined by the Florida Civil Rights Act of 1992 ("FCRA"). Respondent has implemented an employee handbook aimed at fostering a work environment that is free from harassment, discrimination and retaliation. Respondent's policies contain reporting and investigation procedures that encourage employees to report any and all incidents of perceived discrimination or harassment, and ensure that all reported incidents are investigated. Petitioner was employed with Respondent from June 1995 until November 2003, and from July 2004 through October 3, 2005. At the time of his termination, Petitioner was 49 years old. Petitioner first began working for Leviton in 1995 as a Service Representative. He received merit pay raises and promotions until November 2003, when Respondent laid-off 150 people in the retail division, including Petitioner. Petitioner was rehired in July 2004, as a Sales Representative. Upon rehire, Petitioner was supervised by District Manager Scott Robbins ("Robbins"). Petitioner presented the testimony of three of Respondent's managers, one retired, who supervised Petitioner for various periods of Petitioner's nine and one-half year career with Respondent. Each of them testified that Petitioner was dedicated and professional in which ever position he was assigned, including two assignments as a manager. Scott Robbins, Petitioner's supervisor immediately prior to Goodman, recommended Petitioner for re-hire as a Sales Representative following a lay-off, and was satisfied with his work in that position. Petitioner also presented the testimony of 12 customers of Respondent, in the territory that he covered between July 2004 and October 2005. Each of them expressed their opinion that Petitioner was an honest, diligent, and professional sales representative for his employer. Respondent presented the testimony of one customer who was not satisfied with Petitioner's performance as a sales representative. In January 2005, District Manager Warren Goodman ("Goodman") replaced Robbins and assumed his territories as well as his role as Petitioner's supervisor. At the time Petitioner was terminated, Goodman was 48 years old. Goodman supervised, and currently supervises, at least, 12 Sales Representatives, the majority of whom are over the age of 40, to wit: Name Age Name Age Roy Boykin 59 Mickey Ferrell 49 Don Yeager 59 Jose Monzon 40 Michael O'Reilly 56 Duane Bishop 38 Dave Lenoir 37 Kevin Bouton 34 Ken Davis 54 Paul Dube 41 Brad Taylor 10. When Goodman 52 took over as District Manager, it became readily apparent that Goodman's management style was distinctly different from Robbins. Goodman is demanding, blunt and aggressive, and closely manages his sales representatives. He expected prompt and accurate responses to his requests from his sales representatives. Petitioner was required to fulfill the same job expectations that were demanded of all other Sales Representatives. It included, but was not limited to, the timely submission of complete and accurate paperwork, client follow up, and travel to specific areas within his designated territory. Petitioner's area extended from Lakeland, Florida, to Thomasville, Georgia. Goodman expected Petitioner to visit customers in his territory at least every three weeks, staying at least two to three days on each trip at each location. Goodman's job as District Manager is to oversee his sales force and to enforce Leviton's guidelines, as he interprets them. Moreover, Goodman is charged with measuring his employees' compliance with Leviton's policies and procedures. Over the course of his tenure, Petitioner failed to abide by company rules and policies, as well as the terms of his employment, as understood by Goodman. On more than one occasion, Petitioner failed to provide expense reimbursements in an appropriate and timely manner. He also failed to travel with the frequency required by his sales position. Additionally, on numerous occasions, Petitioner failed to verify the accuracy of orders he placed for customers. On May 2, 2005, Goodman sent Petitioner an email addressing the importance of administrative responsibility and consistency. Goodman had just reviewed Petitioner's expense reports and noted that they covered a ten-week period, clearly in violation of the requirement that they be submitted within 30 days. Goodman also noted that the expense reports reflected no travel over a two-month period to the Thomasville/Tallahassee area, which composed a large portion of Petitioner's territory. Goodman requested that, thereafter, Petitioner forward his itinerary weekly, attaching as an example a copy of itineraries submitted by Petitioner's colleagues. Petitioner responded, apologizing for the late expenses. He attributed his tardiness in part to a change in his cellular telephone carrier. Petitioner set forth all his travel dates within the northern portion of his territory since his re-hire. The dates provided demonstrated that he was not in compliance with the travel requirements established for all Sales Representatives. Goodman responded and reminded Petitioner of the importance of adhering to guidelines for travel and paperwork submission. He encouraged Petitioner to improve his performance and to do what was necessary to satisfy Goodman's expectations of the proper skills necessary to do his job effectively. On May 9, 2005, Petitioner sent Goodman an email indicating his car was being repaired. The repair estimates attached to the email evidenced that Petitioner had been driving a 12-year-old vehicle, which was not within Respondent's car policy guidelines. Petitioner had reviewed and signed the car policy guidelines on January 12, 2005, and began receiving monthly payments (including retroactive payments), effective February 11, 2005. On May 18, 2005, Petitioner received and signed an Employee Warning. Significantly, Petitioner signed the Employee Warning indicating that he read and understood it. The Employee Warning cited violations for substandard job performance and violations of company policies or procedures, with specific reprimands for: (1) failure to timely submit expense reports; (2) failure to travel as specified and agreed to; (3) sloppy submission of paperwork; (4) lack of involvement with customer; and (5) failure to maintain a proper company vehicle in accordance with company policy. Shortly thereafter, Petitioner purchased a new truck for the purpose of meeting the company vehicle policy. On May 31, 2005, Goodman reviewed numerous quotes submitted by Petitioner for review and renewal. Goodman informed Petitioner that upon review, the quotes prepared by Petitioner were inaccurate and required various revisions and corrections. Some quotes were priced higher than stock; different prices were entered for the same item in a different color (when there should have been no price difference); there were items on quotes that were never purchased; and there was no increase in items ordered/quoted. In August 2005, Goodman advised Petitioner that his sales goals were not ambitious enough and that Petitioner needed to re-evaluate and re-consider his year-end goals. Petitioner indicated that he would do as instructed. In mid-August 2005, Petitioner once again submitted an incomplete quote to Goodman for approval. When brought to Petitioner's attention, he added the items missing from the quote, offering no explanation for this oversight. On August 30, 2005, Petitioner submitted order adjustments to Goodman's administrative assistant for completion. When the request was forwarded to Goodman, he immediately reminded Petitioner that all changes were required to be submitted to him, not his assistant. Moreover, the requested changes contained errors. Goodman requested that Petitioner review the complete order and re-submit it when it was accurate. Three days later, Petitioner still had not acknowledged or responded to Goodman's request. Goodman completed and submitted Petitioner's performance review on July 25, 2005. Due to the fact that no prior goals or skills development were accomplished by Petitioner, his review was deferred until the end of 2005. Based upon his seven-month assessment of Petitioner, Goodman felt that Petitioner only partially met expectations. Rather than precluding a merit increase in salary, Goodman gave Petitioner an opportunity to improve his performance by deferring his review for several months. Petitioner signed this July review, indicating that Goodman discussed the review and appraisal with him. On September 5, 2005, (Labor Day, a holiday) Goodman sent an email to all of his Sale Representatives, which required a response to specific inquiries no later than 5:00 p.m. Petitioner did not respond until September 7, 2005, at 4:15 p.m. This was clearly past the deadline. Goodman reprimanded Petitioner in his responsive email, specifically advising Petitioner that his continued employment was in jeopardy. He invited Petitioner to call Goodman the next day to discuss Petitioner's lack of diligence and timeliness. Only after a telephone call on the morning of September 9, 2005, did Petitioner, for the first time raise the issue of unfair treatment, but he did not raise age as a factor. Petitioner requested, via email, that Goodman assist Petitioner in filing a complaint against Goodman with Leviton's Human Resource Department for creating a hostile work environment. In this same email, Petitioner informed Goodman that Petitioner had involved clients in his grievance by requesting that the clients evaluate Petitioner's performance and provide their input to Respondent. Based upon the preceding client involvement, Goodman advised Petitioner on September 12, 2005, that he was suspended immediately, with pay, pending the outcome of Respondent's investigation regarding Petitioner's inappropriate conduct. Petitioner was therefore instructed to maintain contact with only the Human Resources Department (HR) until further notice. Thereafter, Petitioner corresponded, via email, with Shephard. On September 13, 2005, Petitioner forwarded his May 5, 2005, email exchange with Goodman to Kimberly Shephard, Respondent's Corporate Human Resource Manager. On that same day, Petitioner sent another email to Shephard containing a list of items that were still incomplete and required follow up. In forwarding this lengthy "to do" list, Petitioner demonstrated his inattention to detail and inability to complete administrative tasks. On September 16, 2005, Shephard drafted Petitioner's allegations in memorandum format, the accuracy of which Petitioner verified and signed on September 20, 2005. Goodman was given a copy of the allegations and provided a written response on September 19, 2005, refuting each of Petitioner's allegations. Meanwhile, HR conducted interviews with a random selection of Goodman's employees in the district and noted each employee's assessment of Goodman. Goodman was determined by each of the interviewed employees to provide equal treatment to all employees. The employees interviewed ranged in age from 35 to 58. On or about September 20, 2005, Shephard completed her investigation of Petitioner's complaint and determined that there was no basis that Goodman created an unlawful hostile work environment. Rather, it was determined that Goodman set the same standards for all of his employees; treated them all the same; and that accordingly, there was no basis to conclude Petitioner was singled out. Petitioner was ultimately terminated on October 3, 2005. The reasons cited by Respondent were based on Petitioner's unsatisfactory job performance. The specific reasons given for Petitioner's termination were: (1) his inability to perform the tasks associated with the Sales Representative position; (2) his failure to develop end-users sufficiently; (3) his administrative inadequacies; (4) his failure to meet deadlines and failure to follow instructions; and (5) his choosing to enlist customers in an internal company matter pertaining to Petitioner's poor job performance. Although Respondent determined that Petitioner's involvement of customer's in an internal dispute was grounds for immediate termination, Respondent determined it would investigate Petitioner's complaint prior to taking other action, since it occurred at the same time as the allegations of improper conduct by Goodman. At no time was Petitioner's age raised as a factor in any of the terms and conditions of his employment by Respondent. Nor was it a factor in any work related complaints regarding his deficiencies. Petitioner never informed any member of Respondent's management that he believed he was treated differently during his employment because of his age, or that he had been terminated due to his age. After Petitioner was terminated, Respondent did not hire anyone to replace him. Rather, Respondent re-assigned Petitioner's territory to existing salesmen. Paul Dube ("Dube"), aged 41, inherited the majority of Petitioner's territory. Goodman did not require that Dube travel to, or invest time in customers that only did a nominal amount of business with Respondent. Petitioner attempted to establish that he was unable to respond to several of Goodman's inquiries in a timely manner, or at all, because Petitioner's computer was being repaired by Respondent's IT department. Nevertheless, Petitioner had access to his work email via Respondent's webmail program during this period. Petitioner failed to prove by a preponderance of the evidence that he was terminated by Respondent because of his age. Respondent failed to prove by a preponderance of the evidence that he was subject to retaliation after he filed a hostile work environment complaint with Respondent's HR department.
Recommendation Based upon the above Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order denying Petitioner's Petition for Relief and dismissing his charge with prejudice. DONE AND ENTERED this 13th day of August, 2007, in Tallahassee, Leon County, Florida. S 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 13th day of August, 2007.
The Issue : The issues to be resolved in this proceeding concern whether the Division of Administrative Hearings and the Florida Commission on Human Relations (Commission) have subject matter jurisdiction of this dispute and, aside from the jurisdictional questions, whether the City of Cottondale has engaged in a discriminatory employment action against the Petitioner based upon her race (African-American).
Findings Of Fact The Petitioner was an unsuccessful applicant for a job vacancy for a position of secretary with the City. The Respondent is the City of Cottondale, Florida, an incorporated municipality under relevant Florida Law. As established by the testimony of Judy Powell, the City Clerk for the City, the City, at all times pertinent hereto, had fewer than 15 employees. City counsel members other than James Elmore, were paid less than $600.00 per year and did not receive forms 1099 for their compensation from the City. They do not meet the relevant criteria to be considered employees. The City's Exhibit One, in evidence, shows that the City had fewer than 15 employees. The Petitioner offered no evidence to contradict the evidence from the City, the Respondent, that it had fewer than 15 employees at all relevant times. On January 30, 2007, the City placed an advertisement in the Graceville News, a newspaper, advertising a job vacancy for the position of secretary. The job description for the position included duties involving collecting utility bills, water deposits, issuing receipts for monies, helping to maintain and record cash journals of all business transactions, preparing billing for utilities, posting ledgers, assisting with daily collections, setting-up accounts, performing customer transfers, maintaining records of water deposits paid and refunded, and preparing of payroll and all related tax reports. Pursuant to that job description, general qualifications which applicants must have included bookkeeping skills and experience. In selecting applicants who would actually be interviewed, Ms. Powell and Willie Cook, who were doing the interviews, looked for individuals who had specific job skills related to the above-referenced duties contained in the job description for that position. Nineteen individuals submitted applications for the position, including the Petitioner. Four individuals were selected to be interviewed out of the 19 individuals who had applied for the position. Those were Melissa Davis, Linda Krauser, Gail Woodham, and Denise White. There was no requirement in City policy that all applicants for a job position be interviewed. There is no evidence to show that race was a factor in determining which applicants were selected to be interviewed for the secretarial position and which were not selected. Rather, the interview selection process involved selecting persons whose application documents appeared to show evidence of some specific job skills which related to accounting, accounts receivable, accounts payable, and the other duties detailed in the job description for the position in question. A white female, Melissa Davis, was selected to be interviewed because her application and cover letter indicated that she was familiar with accounts receivable, accounts payable, payroll, job costing, personnel, handling line telephones, customer service, preparing quarterly reports, and billing purchase orders and had experience in working with 401(k) issues and health and dental insurance. In addition, she had experience as a bank teller handling cash transactions. Another white female, Linda Krauser, was selected to be interviewed as well because her application indicated that she had previously supervised a staff of 40 people and had experience in customer service, maintaining staff records, and experience in accounting and billing. Another white female, Gail Woodham, was selected for interview because her job application and attached documents showed 20 years of experience in payroll, excel, powerpoint, computer skills, veritable spread sheets, and spread sheet tracking. An Hispanic female, Denise White, was also selected to be interviewed because her job application indicated that she had experience as a head bank teller with 17 years in a fast- paced environment and as a supervisor of tellers. She had worked in a doctor's office and had experience with record keeping. She had secretarial and billing experience working with patients for an optometry group, prepared correspondence for doctors and assisted with patient check-out. In her employment with Indian River National Bank, she had gained experience in customer service in handling accounts, and was a supervisor. Prior to that job, while working for another bank, she was a lead teller, supervisor, and handled cash flow. She had also received a prior certification regarding medical billing. The other 15 individuals who applied for the position, including Ms. Russ, were not interviewed. This decision was based upon Ms. Powell and Mr. Cook's review of the applications, and related to the relevant skills, experience, or education shown, or not shown, on those applications. There was no evidence that there was any racially discriminatory animus involved in the selection of individuals for interviews or the rejection of the other individuals who were not interviewed. The job application and resume submitted by the Petitioner indicated that her expertise and experience was primarily in caring for the elderly. There was no indication that she had any experience in bookkeeping, handling invoices, or billing. The decision not to interview the Petitioner was not based upon racial motivation, but rather, as with the case with the other applicants who were not interviewed, was based upon a review of application documents. A decision was made to select the four whose past experience, education, and job skills noted in those documents showed them most likely to be candidates with the appropriate skills and experience for the job in question. During the interviews of the four selected applicants, questions were asked them regarding accounting and bookkeeping issues. Ms. Powell, the City Clerk, finished the interview process and made the selection of the individual to be offered the position of secretary. Ultimately, Ms. White, a Hispanic female, was selected for the secretarial position and accepted the salary range offered, in the amount of $8.00 to $8.25 per hour. The applicants who were not interviewed did not have skills appropriate to the job and did not have skills substantially similar to those of the four individuals who were selected for interviews. They were particularly dissimilar in skills, experience, and education to the person ultimately hired, Ms. White.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Motion to Dismiss for Lack of Subject Matter Jurisdiction is granted. It is further recommended, aside from the finding of lack of subject matter jurisdiction, that, alternatively, a final order be entered determining that the Petitioner has not established her claim of racial discrimination in the hiring decision at issue, and that the Petition be dismissed in its entirety for this reason as well. DONE AND ENTERED this 5th day of December, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Eulinda M. Russ Post Office Box 767 Cottondale, Florida 32431 Timothy W. Warner, Esquire Warner & Wintrode, P.A. Post Office Box 1820 Panama City, Florida 32402 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent discriminated against Petitioner on the basis of his age, as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2003).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: On March 11, 2004, Petitioner, who was 73 years old, submitted an application for employment to Respondent. Respondent is in the business of transporting passengers to and from airports in Melbourne and Orlando, Florida. It has four regular employees and approximately 20 independent contractors. Petitioner maintains that in an interview with Sandra Tant, president of the Respondent corporation, he was advised that he was "too old" to be employed. This is the sole basis of his claim. Respondent specifically denies having made any statement, either directly or indirectly, to the effect that Petitioner was "too old" to be hired. Respondent testified that Petitioner's motor vehicle operator's license had a "hole" punched through the year portion of the date of birth. This occasioned inquiry into Petitioner's age, although he appears to be his stated age. Petitioner denied that there is a hole in his motor vehicle operator's license. In the copy of Petitioner's motor vehicle operator's license, which is part of Respondent's Exhibit 1, the year is obliterated. When asked to produce his motor vehicle operator's license at the hearing, Petitioner stated that he did not have it. Respondent indicated that Petitioner was disqualified from employment by insurance requirements. Respondent presented a list of Respondent's insurer's driver eligibility standards which indicate that "[T]wo years of driving experience with a like vehicle (limousine, van &/or bus) is preferred." Sandra Tant's testimony on relevant matters is more credible.
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 Petitioner did not discriminate against Respondent and dismissing the Petition for Relief. DONE AND ENTERED this 19th day of January, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 William Monzidelis 2460 Alicia Lane Melbourne, Florida 32835 Sandra Tant, President Melbourne Shuttle, Inc. 1 Air Terminal Parkway Melbourne, Florida 32901 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in the case is whether Clifford McCullough (Petitioner) was the subject of unlawful discrimination by Nesco Resources (Respondent) in violation of chapter 760, Florida Statutes (2015)1/.
Findings Of Fact The Respondent is a company that refers pre-screened job candidates to employers upon request by an employer seeking to fill a specific position. The Petitioner is an African-American male, born in 1959, who sought employment through the Respondent. The Respondent does not make the hiring decision. The actual decision is made by the employer requesting referrals from the Respondent. The Respondent is compensated by the employer if and when the employer hires an applicant referred by the Respondent. On occasion, the Respondent publishes advertisements seeking applications to fill specific positions, such as “forklift drivers.” The fact that the Respondent seeks applications for specific positions does not mean that an employer has contacted the Respondent seeking referrals for such positions. The advertisements are used by the Respondent to create an inventory of applicants who can be referred to employers. On December 20, 2013, the Petitioner submitted a job application to the Respondent seeking a “forklift driver” position. At that time, the Petitioner indicated to the Respondent that he was available to perform “warehouse, packing, production, shipping and receiving tasks.” Several weeks prior to the Petitioner’s application, the Respondent had referred job candidates to an employer seeking to fill an available forklift driver position. The employer filled the position by hiring an African-American male born in 1961 who was referred to the employer by the Respondent. As of December 20, 2013, the Respondent had no pending employer requests seeking referrals to fill forklift driver positions. The evidence fails to establish that the Respondent had any employer requests at that time which were consistent with the Petitioner’s skills. The Respondent’s general practice when contacted by a prospective employer is to recommend applicants who have maintained ongoing contact with the Respondent’s staff after the submission of an application. There was minimal contact between the Petitioner and the Respondent after the Petitioner submitted his application in December 2013. The Respondent presumes that some people who submit applications subsequently relocate or obtain employment elsewhere. Accordingly, the Respondent requires that previous applicants periodically submit new employment applications so that the Respondent’s inventory includes only active job seekers. On April 8, 2014, the Petitioner submitted another application to the Respondent. Also in April 2014, an employer contacted the Respondent to obtain referrals to fill another forklift driving position. The employer filled the position by hiring an African- American male born in 1964, who was referred to the employer by the Respondent. Prior to his referral for the forklift driver position, the successful applicant routinely contacted the Respondent’s staff, in person and by telephone, regarding available employment opportunities. The evidence fails to establish whether the Respondent was included within the applicants who were referred to the requesting employer. There is no evidence that the Respondent’s referral process reflected factors related to any applicant’s race, color, sex, or age. The Petitioner has also asserted that his application should have been referred to an employer who, on one occasion, was seeking to fill an available cleaning position. The position was a part-time job paying an hourly wage of $10. The Petitioner had not submitted an application for such a position. Nothing in the information provided by the Petitioner to the Respondent indicated that the Petitioner was interested in such employment. Through the Respondent’s referrals, the employer filled the cleaning position by hiring an African-American male.
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 the Petitioner's complaint of discrimination. DONE AND ENTERED this 21st day of June, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 2016.
The Issue Whether the Petitioner, a member of a protected class, was terminated from his employment with the Respondent in the Hospitality Department at the Grand Floridian Hotel on or about March 18, 1993 on the basis of his national origin (Hispanic-Dominican Republic), in violation of Section 760.10(1)(a), Florida Statutes (Supp. 1992).
Findings Of Fact The Respondent is an employer under the Florida Civil Rights Act of 1992. The Petitioner was employed by the Respondent at its Grand Floridian Hotel as a valet/greeter/bellman in the Hospitality Department during the relevant period of time, including March of 1993. The Petitioner is of Hispanic origin from the Dominican Republic and is a member of a protected class. In approximately October of 1988, the Petitioner began his employment with the Respondent at the Contemporary Hotel as a valet/greeter. In April of 1989, the Petitioner received a written reprimand for not logging in a piece of luggage. The Petitioner did not grieve the April 1988 written reprimand. In May of 1989, the Petitioner transferred to the Respondent's Grand Floridian Hotel, where he was a valet/greeter/bellman. In February of 1990, the Petitioner received an oral reprimand for three separate incidents of improperly logging luggage. 9. The Petitioner could not recall if he grieved the February, 1990 oral reprimand. In August of 1990, the Petitioner again received an oral reprimand, this time for mixing up luggage while loading it into vehicles. The luggage had to be mailed to each rightful owner at the Respondent's expense and caused an inconvenience to the guests. The Petitioner could not recall if he grieved the August 1990 oral reprimand. In December of 1991, the Petitioner mishandled luggage by failing to tag all of a guest's bags. In May of 1992, the Respondent's management discussed with the Petitioner his failure to tag a piece of luggage. In July of 1992, the Petitioner received a verbal reprimand for failing to log in a guest's luggage. The Petitioner's verbal reprimand in July of 1992 was the result of a direct complaint by a guest, who was required to search for a piece of his own luggage in the Hotel's storage room. The Petitioner could not recall if he grieved the July 1992 verbal reprimand. In September of 1992, the Petitioner received a verbal reprimand for approaching a guest to discuss splitting a tip with a bellman, an impermissible practice. The Petitioner was not suspended for this incident. In December of 1992, the Petitioner received a written reprimand for failing to follow proper procedures regarding a guest's luggage on two separate occasions. The Petitioner did not grieve the December 1992 written reprimand. The Respondent decided not to consider the two incidents in December of the Petitioner's luggage-mishandling as separate incidents for progressive discipline purposes, even though such action was permissible under the collective bargaining agreement. The Respondent's decision not to consider the two December 1992 incidents separately for progressive discipline purposes was based upon the Petitioner's length of service and his good performance in other areas. The Petitioner had a good attitude, had good people skills, and had received good guest comments during the course of his employment. In December of 1992, the Petitioner understood that he was in the progressive discipline process. In January of 1993, the Respondent met with the Petitioner and offered to remove him from the responsibility of handling luggage by putting him in a non-tipped, dispatcher position. Also, in January of 1993, the Respondent and the Petitioner's union representative were working together to preserve the Petitioner's job. The Petitioner was reminded by his union representative about his previous reprimands and that one more incident would cause his termination. The Petitioner was told by his union representative that the purpose of moving him to a dispatcher position was to get him away from the luggage-handling area. The Petitioner was told that if he remained free of similar reprimands for one year, he could return to the tipped position of valet/greeter with no loss of seniority. After initially refusing the dispatcher position, the Petitioner accepted. The Petitioner was given the shift that he requested when he was transferred to the dispatcher position. In February of 1993 while on duty as a dispatcher, the Petitioner received a three-day suspension, without pay, for using poor judgment. He interrupted a valet while the valet was servicing a guest. The Petitioner did not grieve the February 1993 suspension. The Petitioner's action as a dispatcher of interrupting a valet was grounds for the valet to grieve such actions to the union. The suspension in February of 1993 for the Petitioner's poor judgment as a dispatcher was not the basis for his termination. The Petitioner requested a reclassification back to valet/greeter/bellman position. The Petitioner understood that one more incident of any kind would result in his immediate termination. The Petitioner requested the change from dispatcher back to valet/greeter/bellman for personal financial reasons; and his union representative also advised him that if one more incident of any kind occurred, he would be terminated. On March 16, 1993, the Petitioner mishandled luggage. The Petitioner did not properly log in a guest's luggage (a garment bag). 35. The Petitioner was terminated on March 18, 1993 for poor job performance. The progressive discipline which the Petitioner received was consistent with the union contract. The contract provides that an employee can be terminated for the next offense following a single written reprimand. The Petitioner had the opportunity to grieve all of the reprimands he received, and his union representative was aware of the actions taken in connection with the Petitioner's employment. The Petitioner grieved his termination, and that grievance was denied. The Petitioner failed to provide evidence of any similarly-situated employee who was not terminated for mishandling luggage on as many occasions as he had. The Petitioner failed to provide evidence regarding any discrimination against other Hispanic employees, other than his own belief, speculation or conjecture. The Petitioner understood that the Respondent's management was closely checking into everyone's performance. Management asked all of the employees at the Grand Floridian Hotel to help the Hotel earn a five-star rating. The Petitioner was never part of the Respondent's management and did not attend manager meetings. During the course of his employment, the Petitioner was chosen to train other employees because he knew the proper procedures for his valet/bellman/greeter position. The Petitioner knew the proper procedures for handling luggage received from guests. The Petitioner knew the proper procedures for logging in and handling bags. The Petitioner received copies of the Respondent's policies and procedures for a valet/bellman, including luggage handling. The Petitioner did not report many of the alleged discriminatory actions of his co-workers to management. The Petitioner conceded that on those occasions when he did make reports to management, these alleged actions stopped. The Petitioner received the overtime and schedules which he requested because of his seniority. The number of minorities employed at the Respondent's Orlando, Florida, work site has increased from 1993 to 1996. The number of minorities employed at the Respondent's Grand Floridian Hotel has either remained the same or increased from 1992 to 1995. In January of 1993, the number of minorities in the Grand Floridian Hotel's Hospitality Department was 14, of which 11 were Hispanic; and there were four Hispanics in the valet/greeter classification. In February of 1996, the number of minorities in the Grand Floridian Hotel's Hospitality Department (including valets, bellmen, greeters and dispatchers) was 16, of which 12 were Hispanic; and there were four Hispanics in the valet/greeter classification. The Petitioner failed to produce any evidence of an overall plan by the Respondent's management to eliminate minorities, including Hispanics, from employment at the company. The Respondent allows employees to review their employment records at any time upon request. The Petitioner presented only his own beliefs, speculation or conjecture as a basis for his claims of national origin discrimination.
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 19th day of April, 1996, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3990 The following constitute my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. The Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by the Respondent: Accepted in substance: paragraphs 1-20, 22-31, 33-39, 41-61. Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 21, 32, 40. COPIES FURNISHED: Mr. Jorge V. Jimenez 2716 FDC Grove Road Davenport, Florida 33837 Myrna L. Galligano, Esquire Garwood, McKenna & McKenna, P.A. 731 North Garland Avenue Orlando, Florida 32801 Dana C. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Did the Respondent engage in a discriminatory employment practice by suspending the Petitioner from work?
Findings Of Fact The Petitioner, Joeann F. Nelson, is a Black female. In 1997, she was employed as an aide working with developmentally disabled persons at Sunrise Community, Inc. The Respondent, Sunrise Community, Inc. (hereafter “Sunrise”) is an employer within the meaning of the Florida Civil Rights Act of 1992. On or about April 24, 1997, the Petitioner was suspended from her employment for a number of days by Sunrise. The Petitioner filed a complaint with the Florida Commission on Human Relations (hereafter “the Commission”) on May 8, 1997, alleging that her suspension was racially motivated, and a violation of Chapter 760, Florida Statutes. The staff of the Commission investigated the complaint, and issued its Determination of No Cause on May 16, 2000. At the same time, the Commission gave the Petitioner notice of her right to an administrative hearing on the Commission’s findings. The Petitioner, while employed by the Respondent, was asked by her immediate supervisor to participate in taking residents of the facility to their group home. The Petitioner refused to take the residents complaining that another co-worker was scheduled to take the residents on the day in question. The supervisor told the Petitioner that the person who was scheduled to take the residents was too old to handle that job, and the Petitioner got into an argument about this matter. As a result of this refusal to take the residents and the argument, the Petitioner was suspended for a number of days. The refusal to follow the directions of her supervisor regarding her work and the confrontational argument with the supervisor over being asked to do a specific task that was within her job duties generally were sufficient cause for discipline. The Petitioner did not show that she was singled out or treated differently because of her race, either in being asked to perform the task or in being suspended for refusing to do the task. Subsequently, the Petitioner filed a second complaint with the Commission on June 30, 1997, and raised additional issues regarding her discharge when she asked for her formal hearing on the Commission’s determination of no cause on the original complaint. However, the only matter properly before the undersigned in these proceedings is her suspension.
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 dismissing the complaint upon a finding that there was no cause. DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2000. COPIES FURNISHED: JoeAnne Nelson Post Office Box 76 Crawfordville, Florida 32326 Steven M. Weinger, Esquire Kurzban, Kurzban, Weinger, Tetzeli, P.A. 2650 Southwest 27th Avenue Second Floor Miami, Florida 33133 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue in the case is whether Respondent unlawfully discriminated against Petitioner by terminating her employment in violation of the Age Discrimination Employment Act.
Findings Of Fact Lombardi started her employment as a judicial assistant with Dade County in 1971. Judge Mattie Belle Davis was the first judge who hired Petitioner. Judicial Assistants serve at the pleasure of the appointing Judge.1 Judge Bruce Levy hired Lombardi as his judicial assistant after Judge Davis retired. In December 2004, Judge Levy lost his re-election bid and Petitioner no longer had a full-time position as a judicial assistant with a judge. Lombardi started working in the temporary pool of judicial assistants. The position allowed Petitioner to retain her benefits while seeking a permanent judicial assistant position. While serving in the pool, Petitioner worked for Judge Leon Firtel from February 14, 2005, through February 28, 2006, before he let her go. Petitioner then worked for Judge Rosa Rodriguez from April 1, 2006, through May 23, 2007, until she let her go. Petitioner last worked for Dade County when she served as retired Judge Roger Silver's ("Silver") judicial assistant from September 1, 2007, until January 7, 2008. Lombardi was terminated in Silver's chambers with a bailiff and Ms. Suarez from Human Resources present. Silver informed the Petitioner her services were no longer needed and he was letting her go. Petitioner questioned why she was being terminated; however, Silver did not provide an explanation. Silver terminated Petitioner because he was not happy with her work performance. Silver testified that Petitioner had the following problems regarding her work: taking lunch breaks beyond the one hour he had discussed with her; numerous complaints from attorneys; selling Avon at the work place; not answering the phones and allowing calls to go to voicemail; and repeatedly setting unnecessary hearings on the docket. Prior to terminating Lombardi, Silver inquired with Human Resources about a replacement and was informed that he could not be assured that he would be able to get a temporary assistant to replace Lombardi due to the unavailability of funding. He still choose to terminate Petitioner because, "[he] felt having no one was better than what [he] had under the circumstances." Petitioner was not able to go back in the "temporary pool" of judicial assistants as she had in the past after Silver terminated her. In 2008, the Eleventh Judicial Circuit had a hiring freeze whereby the temporary pool was no longer funded. Human Resources eventually sent Elizabeth Gonzalez, whose date of birth is May 26, 1965, to Silver as a temporary judicial assistant. Silver had never met Gonzalez prior to her coming to work for him. There was no discussion of age when Silver requested a judicial assistant or when Gonzalez was assigned to him. Gonzalez served as Silver's temporary judicial assistant for a number of weeks and, when personnel advised him he could hire someone, including Gonzalez, Silver hired Gonzalez on or about March 10, 2008, because he was pleased with her work. Gonzalez worked with him until his retirement in December 2008. At the time when Petitioner filed her Charge of Discrimination, Petitioner was unaware of the exact age of her replacement. Petitioner's date of birth is May 18, 1948.
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 Petition for Relief. DONE AND ENTERED this 30th day of November, 2009, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 30th day of November, 2009.
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of age for the reasons stated in the Charge of Discrimination and Petition for Relief in violation of Section 760.10(1), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated).
Findings Of Fact In the summer of 1997, Respondent advertised several employment positions. The advertised positions included a position for Corporate Training Representative and a position for Coordinator of Continuing Education. The advertisement informed potential applicants of the minimum qualifications; the knowledge, abilities, and skills associated with each position; and the application deadline for each position. Petitioner was one of approximately 65 candidates who applied for the position of Corporate Training Representative. Petitioner was also one of 85 candidates who applied for the position of Coordinator of Continuing Education. Petitioner was over age 40 at the time he applied for both positions. Petitioner's application, like the application of each candidate, included an application supplement. The application supplement identified the applicant's gender, ethnic origin, birth date, and included a statement of how the candidate learned of the open position. Respondent uses application supplements to collect data needed to respond to inquiries from the Commission, the U.S. Equal Employment Opportunity Commission, the Veterans Administration, and the U.S. Department of Labor. Respondent directs completed applications to Respondent's Human Resources office. The Human Resources office separates the application supplement attached to each application, files the application supplement in a separate location, and forwards each application to the selection committee responsible for filling the position to which the application pertains. After, the position is filled, the Human Resources office re-attaches the application to the application supplement and retains the documents in data files maintained by the Human Resources office. The selection committee, responsible for reviewing the applications submitted for the two positions sought by Petitioner, was comprised of four members. The selection committee reviewed each application, selected candidates for interview, and recommended those candidates the committee determined to be best suited for the position. In selecting candidates for interview, the selection committee reviewed only the application of each candidate. The selection committee did not have access to any of the application supplements. The application supplements originally attached to the applications had been previously separated by the Human Resources office and retained in separate files in the Human Resources office. No one on the selection committee considered the age of an applicant, including Petitioner, when selecting a candidate for interview. The selection committee did not select Petitioner for an interview. The selection committee selected for an interview only eight of the 65 applicants for the position of Corporate Training Representative and only eight of the 85 applicants for the position of Coordinator of Continuing Education. Six of the eight applicants selected for interview for the position of Corporate Training Representative were over 40 years of age at the time they applied. Three of those applicants were aged 50 or older. Four of the eight applicants selected for interview for the position of Coordinator of Continuing Education were aged 40 or older. The applicant ultimately hired was in her mid-forties at the time. No employee or representative of Respondent made any derogatory comments about Petitioner's age. No member of the selection committee discussed the age of any applicant. Petitioner admits that had he been selected for an interview he might not have been selected as the successful candidate.
