The Issue The issue is whether Respondent, Porky's Barbeque Restaurant, engaged in an unlawful employment practice by terminating Petitioner, Susan Coffy, from her position.
Findings Of Fact Petitioner is a female and, at all times relevant to this proceeding, was over the age of 40. From March 1, 2003, until October 28, 2003, Petitioner was employed as a waitress at Porky's, a barbecue restaurant. On October 28, 2003, Petitioner was terminated from her job as a waitress. Prior to March 1, 2003, Petitioner had worked as a waitress at another restaurant, Fat Boy's Restaurant (Fat Boy's), that had been operating at the same location as Porky's. Fat Boy's closed after the building in which that restaurant was located was purchased by Walter Milton. After Mr. Milton purchased the building, he opened his own business, Porky's, at that location. After Mr. Milton opened his restaurant, he employed many of the individuals who had been employed by Fat Boy's, but told them that their employment with Porky's was for a "trial period." Immediately after Porky's opened for business, Mr. Milton initiated operational directives that he believed were essential business needs for operating a barbecue business. He introduced these new directives to the employees of Porky's, many of whom had previously worked for Fat Boy's. While some of these employees were successful in making the transition to the new operation, there were employees, including Petitioner, who were resistant to the operational directives initiated by Mr. Milton. Even though Petitioner was resistant to the new operational directives that were implemented at Porky's, Mr. Milton continued to try to work with Petitioner. In fact, Petitioner worked as a waitress at Porky's the first eight months the restaurant was open. During the course of her employment, Mr. Milton found that Petitioner was an employee who failed to follow simple instructions. For example, Mr. Milton directed employees to knock on his office door when the door was closed. Notwithstanding this very simple directive, Petitioner refused to comply. One day Petitioner went to Mr. Milton's office and found the door to the office was closed. Instead of knocking as she had been previously directed, Petitioner simply barged into the office and stated that she needed a band-aid. After Petitioner barged into the office without knocking, Mr. Milton reminded her that she should knock on the door and wait for a response before coming into his office. About three minutes after this admonition, Petitioner returned to Mr. Milton's office. Although the office door was closed, Petitioner, again, did not knock on the door, but simply opened the door and went into the office. Mr. Milton was not pleased with Petitioner's failure to embrace the directives he initiated and implemented for Porky's. However, the "final straw" that resulted in Mr. Milton's terminating Petitioner's employment was an incident about a menu item. On October 28, 2003, Petitioner was very upset that Mr. Milton had included an item on the Porky's menu that also had been on the Fat Boy's menu. That menu item was referred to as "Jim's Special Burger." Mr. Milton included that item on Respondent's menu to honor Jim Kenaston, who had been the owner of Fat Boy's. On October 28, 2003, Petitioner "flew off the handle" and confronted Mr. Milton about his decision to include the item, "Jim's Special Burger," on the Porky's menu. Petitioner, who admits she was upset about this matter, confronted Mr. Milton and argued to him that he had no right to put the "Jim's Special Burger" on Respondent's menu. The confrontation started in the kitchen of the restaurant, but continued after Petitioner left the kitchen and proceeded into the restaurant's dining room. Although there were customers in the dining room, Petitioner continued to argue with Mr. Milton about the menu item. Petitioner's verbal criticism and objection to Mr. Milton's decision to include "Jim's Special Burger" on Respondent's menu created such a commotion in the restaurant that Respondent's bookkeeper heard Petitioner's outbursts from her office located behind the cashier's counter. After the bookkeeper heard Petitioner arguing with Mr. Milton, the bookkeeper left her office and in an effort to de-escalate the situation, escorted Petitioner out of the dining room to a back hall of the restaurant where there were no customers. On October 28, 2003, as a result of Petitioner's inappropriate and unprofessional conduct described in paragraphs 10 through 13, Mr. Milton terminated Petitioner's employment at Porky's. The same day that he terminated Petitioner's employment, Mr. Milton completed a "Separation Notice" on which he indicated that Petitioner was laid off due to lack of work. The reason Mr. Milton wrote this on the form was so that Petitioner could receive unemployment compensation. Petitioner presented no competent and substantial evidence that she was terminated from employment because of her age. Likewise, Petitioner presented no evidence that after she was terminated, she was replaced by a younger worker. At all times relevant to this proceeding, Respondent had four or five employees who were over 40 years of age. Petitioner presented several witnesses who testified that she was an excellent waitress when she was employed at Fat Boy's. However, Petitioner's job performance while working for her previous employer is not at issue or relevant in this proceeding. Even if that testimony is accepted as true, no inference can be drawn that Petitioner's performance remained the same or was viewed as such by her new employer. Notwithstanding the opinions expressed by her previous employers and co-workers, Petitioner was terminated from her employment at Porky's as a result of her unacceptable and unprofessional conduct on October 28, 2003.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Porky's Barbeque Restaurant, did not commit any unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 18th day of March, 2005, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Walter Milton Porky's Barbeque Restaurant 4280 South Washington Avenue Titusville, Florida 32780 Susan Coffy 2966 Temple Lane Mims, Florida 32754 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of sex (sexual harassment), national origin, and retaliation in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Evelyn Martinez is a female and Hispanic of Puerto Rican origin. Ms. Martinez began working at the Boca Diner on May 29, 2000, as a waitress. At all times material hereto, Ms. Martinez was an employee of Boca Diner. Boca Diner does not dispute that it is an employer within the jurisdiction of the Florida Civil Rights Act of 1992, as amended. The hours of operation of Boca Diner were from 6 a.m. to 10 p.m. Boca Diner was open for breakfast, lunch, and dinner. The majority of the persons who were servers at Boca Diner were females; only a few were males. At all times material hereto, even though other waitresses of Hispanic descent were employed by Boca Diner, Ms. Martinez was the only Hispanic waitress of Puerto Rican origin. Ms. Martinez had prior experience as a waitress before beginning her employment with Boca Diner. At Boca Diner, Ms. Martinez worked mostly evening shifts, reporting to work around 3 or 4 p.m. She worked five to six days a week. During the week after July 4, 2000, an employee of Boca Diner by the name of Rick made a remark to Ms. Martinez that she considered sexual. He stated to her that she had nice breasts. Ms. Martinez told Rick not to make the remark again and walked away. No dispute exists that the remark was a sexual remark. Rick was a server but was not a full-time server, only part-time. His usual working hours were around 4-9 p.m. Ms. Martinez reported the incident, regarding the remark by Rick, to Boca Diner's owner and manager, John Pelekanos.1 Mr. Pelekanos indicated to her that all the other waitresses tolerated such remarks from Rick and that she should also. Ms. Martinez stated to Mr. Pelekanos that she was not going to "take" such remarks from Rick. No evidence was presented to show that Boca Diner had a sexual harassment policy. Rick made no further sexual remarks to Ms. Martinez after she reported him to Mr. Pelekanos. After reporting the incident to Mr. Pelekanos, Ms. Martinez's working schedule changed. Instead of working five to six days a week, she now worked two days.2 However, Ms. Martinez was able to obtain two additional days from other workers by them agreeing for her to work their days. Boca Diner contends that Ms. Martinez's workdays were reduced because of the slowness of business in the summer; however, Boca Diner only reduced her workdays. The undersigned considers it reasonable to reduce the number of working hours of waitresses due to a slowness of business, but considers it unreasonable to reduce the workdays of only one waitress, i.e., Ms. Martinez, by three to four days, but none of the other waitresses, because of the slowness of business. Before reporting the remark by Rick, Ms. Martinez felt harassed by and hostility from the other waitresses. The other waitresses "hassled" her for not properly performing the "side work," which consisted of setting-up the salad bar, and filling bottles of mayonnaise, ketchup, etc. After Ms. Martinez reported the remark by Rick, the hassling escalated. Additionally, Rick began to constantly tell Ms. Martinez to quickly do her work. Ms. Martinez did not inform the floor manager, Alex Lazarus, how the other waitresses or Rick were hassling her. She did not approach Mr. Lazarus because she considered him to be verbally abusive to her and other employees. Additionally, after Ms. Martinez reported the remark by Rick, on July 15, 2000, she was assigned to a different serving section at Boca Diner. Her new serving section was section one, which was the number one section and the busiest and most demanding section at Boca Diner.3 When she placed her orders, the orders were completed late. As a result, customers were complaining. Boca Diner contends that customers were complaining about Ms. Martinez before she was moved to section one. It is not reasonable to move a waitress, about whom customers are already complaining, to a busier and more demanding section of the restaurant. At the end of her shift on July 15, 2000, she was fired by the floor manager, Alex Lazarus. No dispute exists that Mr. Lazarus had the authority to fire Ms. Martinez. Mr. Pelekanos was not in the country when Ms. Martinez was fired. No dispute was presented that Boca Diner does have the right to fire waitresses or waiters who are not performing adequately or who are performing poorly. No evidence was presented as to whether Boca Diner had employed other Hispanic waitresses of Puerto Rican origin prior to Ms. Martinez's employment. No evidence was presented as to whether Boca Diner had fired other waitresses and, if so, for what reason(s). As to Ms. Martinez's income while she worked at Boca Diner, no time records were provided by Boca Diner. Boca Diner failed to retain her time records. Further, Boca Diner had no documentation regarding Ms. Martinez's employment with it. Boca Diner gave no reasonable explanation for its failure to retain time records or other documentation regarding Ms. Martinez's employment with it. Boca Diner did not provide any testimony regarding monetary remuneration to Ms. Martinez for being a waitress at Boca Diner. Ms. Martinez did not provide any pay records or federal income tax returns regarding her employment with Boca Diner. However, she did provide a handwritten statement showing her income at Boca Diner for the time that she worked at Boca Diner4 and gave testimony regarding her income at Boca Diner subsequent to her termination. Her testimony is found to be credible. At the time Ms. Martinez was employed at Boca Diner, her base pay was $40.00 every two weeks, resulting in her base pay being $80.00 per month. Ms. Martinez handwritten document indicated that she received $300.00 from May 29 through June 4, 2000; $325.00 from June 5 through 11, 2000; $325.00 from June 12 through 18, 2000; $325.00 from June 19 through 25, 2000; $300.00 from June 26 through July 2, 2000; $250.00 from July 3 through 9, 2000; and $225.00 from July 10 through 15, 2000; totaling seven weeks and $2,050.00. The evidence did not demonstrate whether the base pay was included in her income. An inference is drawn that Ms. Martinez's total income at Boca Diner included the base pay of $40.00 every two weeks or $80.00 per month. Ms. Martinez testified that she received $1,275.00 in tips for a month. Reducing her four-week income by her base pay indicates that she received $1,195.00 in tips for the four-week period: May 29 through June 4, 2000, at $280.00 in tips; June 5 through 11, 2000, at $305.00 in tips; June 12 through 18, 2000, at $305.00 in tips; June 19 through 25, 2000, at $305.00 in tips. Reducing the remaining three-week period by her base pay indicates that she received $715.00 in tips for the three-week period: June 26 through July 2, 2000, at $280.00 in tips; July 3 through 9, 2000, at $230.00 in tips; and July 10 through 15, 2000, at $205.00 in tips. As a result, the total amount of tips that Ms. Martinez received for the time period that she was employed at Boca Diner totaled $1,910.00. Consequently, it is reasonable and an inference is drawn that she received $1,910.00 in tips for the seven-week period. After her termination, Ms. Martinez borrowed money in July and August 2000 from family to pay her monthly obligations, which included rent, food, gas, insurance, and incidentals. She estimates that she borrowed from $600.00 to $800.00. After her termination, Ms. Martinez was hired on August 26, 2000, as "counter-help" at a dry cleaners. She was paid $6.00 an hour and worked less than 30 hours a week. Ms. Martinez worked for two weeks at the dry cleaners. An inference is drawn that Ms. Martinez's income was $348.00, using 29 hours a week at $6.00 an hour. Afterwards Ms. Martinez was hired part-time as a waitress at a restaurant. She received $100.00 per week, including tips. Ms. Martinez worked at the restaurant for three weeks. An inference is drawn that Ms. Martinez's income was $300.00, using $100.00 per week for three weeks. Ms. Martinez was subsequently hired as a waitress at another restaurant. She received $50.00 per week, including tips. Ms. Martinez worked at the restaurant for two weeks. An inference is drawn that Ms. Martinez's income was $100.00, using $50.00 per week for two weeks. On October 26, 2000, Ms. Martinez began working at RTA Catering, a restaurant. She was receiving $2,000.00 per month. According to Ms. Martinez, at that time, her income was comparable or equal to her income at Boca Diner and she saw no need to go further into her employment history. After her termination and prior to receiving employment at RTA, Ms. Martinez' income was $748.00. The total number of weeks from July 15, 2000, the date of Ms. Martinez's termination, to October 26, 2000, the date of her comparable employment, is 15 weeks.
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 Boca Diner discriminated against Evelyn Martinez on the basis of retaliation. Ordering Boca Diner to cease the discriminatory practice. Ordering Boca Diner to pay Evelyn Martinez back pay in the amount of $4,033.25. DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 31st day of October, 2003.
The Issue Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
Findings Of Fact On April 10, 1989, Petitioner, Mark Cleveland, a male, applied through Job Service of Florida, for employment as a telemarketer with Respondent, Sears Roebuck and Company at the Sears store located in Pensacola, Florida. Petitioner had several years of sales experience with at least six months of experience in telemarketing. He also had a good speaking voice as evidenced by the fact that he is currently employed as a disc jockey at a local radio station. Clearly, Respondent was qualified for the telemarketing position. The telemarketer position would enable Petitioner to earn approximately $85.00 a week or $365.50 a month. The telemarketing section at the Pensacola Sears store consisted of virtually all women with perhaps three or four rare male telemarketers. Petitioner had two separate interviews with two different Sears employees responsible for filling the telemarketing positions. During the Petitioner's interviews with the two Sears employees, Petitioner was repeatedly questioned on whether he could work with all women or mostly all women and be supervised by women. Petitioner assured his interviewers that he could since he grew up with six sisters and in general liked working with women. Petitioner left the interview with the information that he would be hired after another supervisor reviewed the applications and that he would be called once the supervisor's review was complete. After several days, Petitioner, being excited about what he thought was going to be his new job, called one of the two women who interviewed him. He was informed that the telemarketing positions had been filled. Later that same day Petitioner discovered that the positions had, in fact, not been filled and that he had been told an untruth. The telemarketing positions were eventually filled by women. Petitioner remained out of work for approximately four months before he was hired as a telemarketer by the Pensacola News Journal. A Notice of Assignment and Order was issued on August 27, 1991, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent did not respond to the Notice. On October 10, 1991, a Notice of Hearing was issued setting the formal hearing for 11:00 a.m., September 11, 1990. The location of the hearing was listed in the Notice. The Notice of Hearing was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent's address and acknowledgment of this litigation was confirmed when Respondent filed its answer to the Petition for Relief with the Division of Administrative Hearings. Even though Respondent received adequate notice of the hearing in this matter, the Respondent did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Petitioner was present at the hearing. The Respondent did not request a continuance of the formal hearing or notify the undersigned that it would not be able to appear at the formal hearing. After waiting fifteen minutes for the Respondent to appear, the hearing was commenced. As a consequence of Respondent's failure to appear, no evidence rebutting Petitioner's facts were introduced into evidence at the hearing and specifically no evidence of a nondiscriminatory purpose was introduced at the hearing. 1/ Petitioner has established a prima facie case of discrimination based on his sex, given the fact that Sears tried to mislead him into believing the telemarketing positions had been filled when they had not, the positions were all eventually filled by women and Sears' clear concern over Petitioner's ability to work with women. Such facts lead to the reasonable inference that Sears was engaging in an unlawful employment practice based on Respondent being a male, a protected class, in order to preserve a female work force in telemarketing. Such discrimination based on sex is prohibited under Chapter 760, Florida Statutes, and Petitioner is entitled to relief from that discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter a final order finding Petitioner was the subject of an illegal employment practice and awarding Petitioner $1,462.00 in backpay plus reasonable costs of $100.95 and an attorney's fee of $2,550.00. RECOMMENDED this 30th day of March, 1992, 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 30th day of April, 1992.
The Issue The central issue in this case is whether the Petitioner was terminated from her employment with Caballero's Mexican Restaurant in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Respondent owned and operated a restaurant in Melbourne, Florida known as Caballero's Mexican Restaurant (the restaurant). The restaurant opened in September, 1989 and remained in operation until May, 1990, when it closed and went out of business. Subsequently, the corporation was dissolved. When the restaurant opened, Kenneth Cooper was hired to perform the chef duties for the facility. Mr. Cooper had prior experience in such matters and was retained to be kitchen manager. Mr. Cooper was to hire and train all staff needed to efficiently operate the new restaurant kitchen. One of the individuals Mr. Cooper brought into the kitchen was the Petitioner. The couple had a good working relationship and Petitioner proved to be an excellent worker. Petitioner was made cook and, at all times material to this case, Respondent was pleased with her performance. In December, 1989, Richard Delmar, as president of the Respondent, advised Mr. Cooper that his employment at the restaurant was being terminated. The Petitioner was present when the incident occurred and demanded that Mr. Delmar give good reason for the termination. At that time Petitioner's employment was not terminated but she became upset that her husband's job had ended. Additionally, there was some dispute as to the ownership of personal property in the kitchen and whether Mr. Cooper and Petitioner would leave the restaurant premises. Ultimately, the police were summoned and the Coopers left. Petitioner did not return to work. Caballero's was opened only nine months and did not employ fifteen employees. The restaurant was primarily a family-run venture with the Coopers running the kitchen and the Delmars hosting the seating area. Waitresses and a bartender were also employed by shift.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the complaint filed by Petitioner for lack of jurisdiction. RECOMMENDED this 10th day of January, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5275 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: None submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Respondent presented a series of proposed facts which were unnumbered. They are addressed below in the order of presentation (paragraphs 1 through 12). Paragraph 1 is rejected as irrelevant. Paragraph 2 is accepted. Paragraphs 3 and 4 are accepted. Paragraph 5 is rejected as irrelevant, hearsay, or not supported by the weight of the evidence. Paragraph 6 is accepted. Paragraph 7 is rejected as hearsay or not supported by the weight of the evidence presented in the case. Paragraph 8 is accepted. Paragraph 9 is accepted. Paragraph 10 is rejected as irrelevant. Paragraph 11 is rejected as irrelevant. Paragraph 12 is rejected as a conclusion of law. COPIES FURNISHED: Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Jan Cooper 120 Sky Lane Titusville, Florida 32796 Joy Delmar Caballero's Mexican, Inc. 1825 S. Riverview Drive Melbourne, Florida 32901
The Issue The issue for determination in this proceeding is whether Respondent committed an unlawful employment practice as alleged in the Petition For Relief.
Findings Of Fact Respondent is an employer for the purposes of this proceeding. Respondent's principal place of business is in Orlando, Florida. In 1982, Petitioner was employed by Respondent as a houseman at one of Respondent's hotels located at Marco Island, Florida. Respondent worked continuously in that location until he requested a transfer to the Orlando World hotel in 1986 and received his transfer in the same year. While employed at the Orlando World hotel, Petitioner refused to follow instructions, had excessive absences and was late to work repeatedly. Petitioner received the following disciplinary warnings which finally resulted in his termination on or about October 7, 1991: March 8, 1991 - Written Warning (refused to follow a reasonable job order) March 17, 1991 - Verbal Warning (reporting to work later on 3 occasions within a 90 day period), 2/27/91, 3/3/91, 3/17/91 May 15, 1991 - Written Warning (failure to follow Respondent's work policies) July 30, 1991 - Termination Recommendation (changed to a written warning) August 2, 1991 - Written document (explaining to Petitioner his problems with respect to attendance and tardiness) October 7, 1991 - Suspension and Termination Recommendation. Respondent's rules require employees to call in at least two hours in advance of their shift starting time to report a planned absence from work. Petitioner failed to comply with Respondent's rules by failing to give Respondent timely notice of his planned absence for October 7, 1991. On October 7, 1991, Petitioner called in to report his absence 15 minutes before 8:00 a.m. when his shift started. Petitioner failed to provide credible and persuasive evidence that the Respondent's disciplinary warnings were fraudulent or untruthful. Petitioner was replaced by Mr. Martin Gamey, an Hispanic male. Respondent did not conduct an unlawful employment practice in terminating Petitioner. Respondent did not act with any bias or animus against Petitioner. Petitioner's termination was based upon Petitioner's failure to satisfy his job requirements, failure to follow instructions, excessive absences, and failure to give timely notice for planned absences.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 7th day of December, 1993, at Tallahassee, Florida. DANIEL MANRY 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 7th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1302 Respondent's paragraphs 3, 4 and 7 were rejected as irrelevant and immaterial. Respondent's paragraph 1, 2, 5 and 6-10 were accepted in substance. COPIES FURNISHED: Carlton J. Trosclair, Esquire Marriott Corporation One Marriott Drive, Department 923 Washington, D.C. 20058 Sharon Moultry, Clerk Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Nicolas Polanco 88-05 71st Street Apartment 1-K Jamaica, New York 11432
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Brent Cutlip is a principal of Two Men and a Truck.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief filed by Kenneth K. Scott be dismissed. DONE AND ENTERED this 14th day of November, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Kenneth K. Scott 8342 Gardenia Circle, No. 4 Pensacola, Florida 32534 Brent Cutlip Two Men and a Truck 7280 Plantation Road, No. 1 Pensacola, Florida 32504 Brent Cutlip Two Men and a Truck 379 West Michigan Street, Suite 200 Orlando, Florida 32806 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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 Whether Respondent committed the unlawful employment practice as alleged in the Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Petitioner is a black male and is part of a group of persons protected from unlawful discrimination. Petitioner was formerly employed by Respondent and served initially as an usher for Respondent’s business. Respondent operates theaters and concessions in Florida, and employs a number of individuals, none of whom are employed on a “full-time” schedule. Only the manager, Cindy Palmer, is considered a full-time employee. During the school year when attendance at the theaters may be presumed to be down, Respondent offers fewer hours to its employees. Conversely, during the summer months, employees may be offered more hours. Respondent’s employees are asked to fill out a form that indicates the amount of hours they are available to work and the days upon which those hours may be assigned. Pertinent to this case, Petitioner advised Respondent that he was available to work only on Fridays, Saturdays, Sundays, and Tuesdays. Petitioner asked that he be given 40 hours per week. When Petitioner applied for employment with Respondent he was required to answer a number of questions. One of the questions, aimed at addressing the seasonal aspect of Respondent’s work demands, asked: “During slow periods when school is in session, there may be only 10 to 15 hours a week to work. Is this ok?” Petitioner answered “yes.” Petitioner failed to show that any employee was given more hours than he during the slow work periods. Respondent did not cut Petitioner’s hours during his employment at the theater. Respondent did not fail to consider Petitioner for any promotion or wage increase that he applied for during his employment. Petitioner presented no evidence that any employee was more favorably treated in the assignment of hours or promoted over him. Petitioner did not apply for any promotions. Petitioner’s verbal interest in seeking additional skills was never formalized or written to management. Despite postings of methods to complain to upper management regarding the theater operations, Petitioner never notified Respondent of any problems at the theater that would have suggested racial discrimination on Respondent’s part. In fact, when he completed an investigative form on an unrelated matter, Petitioner did not disclose any type of inappropriate behavior by any of Respondent’s employees. Petitioner’s response to the question, stated that he “hadn’t seen anything inappropriate, just bad attitude.” During the period July 2010 through November 2011, Petitioner received a number of “write-ups” citing performance deficiencies. Similar “write-ups” were issued to non-black employees. Petitioner did not establish that he was written up more than any other employee. More important, Petitioner did not establish that the deficiencies described in the write-ups were untrue. Respondent’s Employee Handbook (that Petitioner received a copy of) prohibits discrimination on the basis of race. Methods to complain to upper management, including a toll-free number, were open to Petitioner at all times material to this case. Except for the filing of the instant action, Petitioner never availed himself of any remedy to put Respondent on notice of his claim of discrimination, nor the alleged factual basis for it. Petitioner was directed to leave the theater after a verbal disagreement with his supervisor, Ms. Palmer. Petitioner’s take on the matter is that he was fired by Respondent. Respondent asserts that Petitioner voluntarily quit based upon his actions and verbal comments to Ms. Palmer. Regardless, Petitioner’s race had nothing to do with why he ultimately left employment with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by Petitioner and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of July, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2012.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Petitioner is a black female who was employed by the Respondent on or about March 21, 1989. Petitioner's job with the Respondent was to assemble and wire electrical devices in a designated configuration and to a specified standard. Petitioner was the only black employee stationed in her job location, but the company employes other blacks in other areas of production. Petitioner's job was an entry level position which required minimum skills but aptitude for the work and attention to detail were necessary. During her employment with the Respondent, Petitioner was supervised by Charlie Goodman. Mr. Goodman was known to be a demanding and sometimes brusk individual. Petitioner perceived the corrections Mr. Goodman required to be personally directed toward her. Others besides Mr. Goodman observed Petitioner's work and deemed it inadequate to the requirements of the job. Both Mr. Gardner and Ms. Giles observed that Petitioner made errors or took too long to perform routine tasks. Mr. Gardner confronted Petitioner on two occasions regarding her work performance. In both cases, Petitioner responded by claiming Mr. Goodman was "nit picking" her work and was demeaning to her personally. Finally, on May 5, 1989, when Petitioner's work performance did not improve, Mr. Gardner advised Petitioner that she was terminated. Respondent is an employer within the definition of Section 760.10, Florida Statutes. Respondent did not terminate Petitioner on account of her race but because her work performance fell below company standards. Subsequent to Petitioner's termination, Respondent's production demand decreased resulting in layoffs. Those positions, including Petitioner's, have not been filled.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination against this Respondent. RECOMMENDED this 22nd day of October, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3619 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 3, 5, and 6 are accepted. All other paragraphs are rejected as irrelevant, argument, or unsupported by the weight of the credible evidence presented in this case. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. COPIES FURNISHED: Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Sheila D. Crawford 3650 Washington Street Sanford, Florida 32771 Stuart I. Saltman ABB Power T & D Company, Inc. 630 Sentry Park Blue Bell, PA 19422
The Issue Whether Respondent, C and C Enterprises, Inc. (“C and C Enterprises”), discriminated against Petitioner, Leslie D. Richardson, in violation of the Florida Human Rights Act and, if so, what relief should be granted.
Findings Of Fact Mrs. Richardson is a Caucasian female who at all times relevant to this proceeding was an employee of C and C Enterprises, Inc., and worked at the Restaurant. Mrs. Richardson primarily served as a bartender, with most of her shifts placing her at the bar located outside the Restaurant on a deck or patio adjacent to the Restaurant. Sandy Bottoms is a family oriented restaurant located in Fernandina Beach, Florida. It has normal restaurant seating, plus two bars. One bar is located inside the restaurant; the other is located outside. The outside bar has fairly tight quarters, allowing only one person comfortably behind the bar at a time. The outside bar is frequented by customers more than the inside bar, so working outside is more lucrative for the bartenders. Mrs. Richardson began working at Sandy Bottoms in January 2013. She was hired as a bartender and, by most accounts, was very proficient at her job. She quickly chose the outside bar as her preferred spot when working and had many regular customers. Mrs. Richardson was even featured in a local newspaper article in January 2015, wherein she was touted as a particularly well-liked bartender. When she began working at Sandy Bottoms, Mrs. Richardson formed good relationships with its owner, Claude Hartley, and her fellow workers. She also had a good relationship with the manager, Russell McNair, and with the Restaurant’s bookkeeper, Natalie Thelemann. Mrs. Thelemann is Claude Hartley’s daughter. According to Mrs. Richardson’s testimony at final hearing, she began to have “issues” with Mr. Hartley beginning about a year into her tenure at the Restaurant, i.e., around “early to mid 2014.” Conversely, in her Employment Charge of Discrimination, the first alleged incident she reported occurred in “late winter-early spring 2015.” Mrs. Richardson generally claims Mr. Hartley sexually harassed her and even perpetuated potentially criminal or tortious touching. In her complaints to FCHR, Mrs. Richardson reported incidents which allegedly occurred between August 2015 and November 2015. She maintains that Mr. Hartley continued to act inappropriately towards her until her employment ended on November 2, 2015, and even once after she left Sandy Bottoms. Mr. Hartley denies there was any sexual harassment or inappropriate touching at any time during Mrs. Richardson’s employment at Sandy Bottoms. Neither Mr. McNair nor Mrs. Thelemann saw any such things occurring while Mrs. Richardson was working at Sandy Bottoms. Mrs. Richardson’s employment ended abruptly on November 1 or 2, 2015. On Sunday, November 1, 2015, she had shown up at work for her regular shift. She clocked in a couple of minutes late that day, but she blames the Restaurant’s timeclock for that. The time on that clock (referred to by staff as “Aloha time”), was always, according to Mrs. Richardson, five or so minutes ahead of the “actual” time. Mrs. Richardson was late for her shifts approximately 67 percent of the time, but she says she would sometimes work a bit around the Restaurant before clocking in, even if she got there on time.1/ In light of credible testimony from the manager and bookkeeper that all personnel clocked in immediately upon arrival, Mrs. Richardson’s testimony is not persuasive. The only other non-manager employee who testified, Danielle Guidry, did not corroborate Mrs. Richardson’s testimony concerning how staff clocked in for work. After clocking in late on November 1, 2015, Mrs. Richardson took a telephone call from her mother, who was ill at the time. She walked around outside during the telephone call. When she came back to the outside bar area to begin her shift, she was told that she would be working the inside bar on this day. Apparently another bartender, who had prepared the outside bar for opening in Mrs. Richards’s absence, asked to staff the bar even though she had been scheduled to work the inside bar. The outside bar is generally busier and generates more tips than the inside bar. Mr. McNair granted the other bartender’s request because Mrs. Richardson was late for her shift. According to the Restaurant’s Server Operational Manual, a server/bartender should arrive at least 10 minutes prior to their shift. Otherwise, the shift would “go up for auction” to another employee. Upon hearing the news that she had to work the inside bar, Mrs. Richardson became irate. She stormed into the restaurant and angrily confronted Mr. McNair, but he stood by his decision. When Mr. McNair refused to budge, Mrs. Richardson cursed at him and exited the Restaurant loudly, all the while with customers sitting within hearing range. Mrs. Richardson went home, where she received a call from Mr. Hartley within half an hour or so. Mr. Hartley asked her to come back to the Restaurant and do her shift, but Mrs. Richardson refused. Mr. Hartley discussed the situation with his “management team” which included his wife, Rita Hartley, Mr. McNair, and Phil Thelemann, another manager (who is also Mr. Hartley’s son-in-law). The consensus was that Mrs. Richardson had abandoned her job by walking out without notice or cause. Mr. Hartley then called Mrs. Richardson again, this time leaving her a message wherein he told her not to come in the next day as scheduled. It was the decision of management that Mrs. Richardson’s employment with Sandy Bottoms was over. Mr. Hartley left the following message on Mrs. Richardson’s phone: “Leslie, this is Claude. There’s no sense in coming in tomorrow. My family is ‘bout to kill me. And, uh… I’m sorry. Call me and talk to me. I’ll help you out if I can. Goodbye.” Mrs. Richardson considers that message evidence that Mr. Hartley’s family was angry with him because of his infatuation with her. No competent or persuasive evidence was presented to support her theory. Mr. Hartley said the message reflected the fact that his family was upset with him for trying to preserve Mrs. Richardson’s job at Sandy Bottoms despite the team consensus that she had abandoned her position. His explanation seems more credible. Mr. Hartley and other Restaurant employees soon began hearing rumors that Mrs. Richardson was planning to file a lawsuit against Sandy Bottoms alleging wrongful termination. When she came in to pick up her final paycheck a week or so after being let go, Mr. Hartley asked Mrs. Richardson if she was planning to sue him or the Restaurant. Mrs. Richardson was friendly (or at least “not unpleasant”) and indicated she would not “do something like that.” It does not appear that anyone at the Restaurant knew Mrs. Richardson had actually hired a lawyer until she had filed her complaint with FCHR. Mrs. Richardson struggled to find good employment after leaving Sandy Bottoms. She worked for two other restaurants tending bars, but neither job was as lucrative as her bartender position at Sandy Bottoms. She believed some restaurants refused to hire her because she had been fired by Sandy Bottoms, but could identify only one potential employer who brought up her tenure at Sandy Bottoms. That person did not testify at final hearing to confirm or deny Mrs. Richardson’s contention. Mrs. Richardson is the sole breadwinner for her family. After losing her job at Sandy Bottoms she was evicted from her home and had to move to Yulee, a less attractive community off the island of Fernandina Beach. She is now working as a housekeeper. Her husband, who was a frequent customer at Sandy Bottoms while she was working there, is disabled and cannot work. Ultimately, Mrs. Richardson did hire legal counsel and file a complaint against Sandy Bottoms. In her “Employment Charge of Discrimination,” Mrs. Richardson alleged a number of instances wherein Mr. Hartley had acted improperly towards her. The majority of the allegations could not be substantiated or corroborated by any other witness. Those “he said - she said” allegations will only be referred to in passing and as necessary to elaborate on the two somewhat verifiable allegations. The two alleged incidents for which other eyewitness testimony exists are generally described as follows: On or about October 4, 2015, Mrs. Richardson was working behind the outside bar. Mr. Hartley, who kept a bottle of port wine in a cooler behind the bar for his personal consumption, came behind the bar. Mrs. Richardson felt a bottle being shoved between her legs, scaring her and making her very uncomfortable. Mr. Hartley supposedly laughed and asked a customer “wasn’t that funny?” or “isn’t that fun?” In the late winter or early spring of 2015, Mr. Hartley approached Mrs. Richardson as she was working at the bar and – staring at her breasts – said, “It’s not that cold in here.” A customer sitting at the bar overheard the statement. As to the first incident, Mrs. Richardson’s description in her diary of allegations said Mr. Hartley “shoved the neck of the bottle between my legs from behind.” Despite the egregiousness of the allegation, whether it occurred exactly as alleged is unclear from the evidence. Her testimony about the event at final hearing was wanting. Mrs. Richardson testified as follows, first in response to questions from her counsel, then from Respondent’s counsel: Q: Did Mr. Hartley shove a bottle of port into your genital area? A: Yes, the very top of my legs where my shorts were, yes. Q: Okay. A: My shorts were wet from it, and my shorts were not short shorts, but they were short enough to be to the upper part of my legs, not my calves. Transcript, page 59. Q: You stated on direct that you were –- you felt degraded [by the bottle incident]. A: Yes. Q: Can you explain what you mean by degraded? A: I felt like an idiot. I mean that I couldn’t believe that he had the nerve to come behind the bar and stick a bottle of port anywhere on me. It wouldn’t have been funny, let alone where it was. Transcript, pp. 100-101. Though it was suggested a number of times, Mrs. Richardson’s testimony never directly alleged that Mr. Hartley put the bottle against her vagina or anus, only that he poked her with the bottle in some fashion. In fact, Mrs. Richardson never specified exactly where the bottle had touched her body. Mr. Hartley testified he went behind the bar on the day of the incident to retrieve his bottle of port. When he reached down to pick up the bottle cap which he had dropped, he intentionally touched the cold bottle to Mrs. Richardson’s leg. It was meant to be playful, a joke, consistent with his normal behavior towards her – and like her playfulness with him. He touched the cold bottle to her bare leg, causing her to jump. There were many other people in the restaurant at the time. Mr. Hartley’s testimony seemed credible, even though there was some testimony from others that he generally asked the bartender to pour his port wine rather than getting it himself. He maintains that on the day in question the bar was quite busy and he did not want to distract Mrs. Richardson from her duties. The perceptions of the two other people in attendance must also be considered. First, a long-time friend of Mrs. Richardson, Deborah Botke, was sitting at the bar. She saw Mr. Hartley’s arm move toward Mrs. Richardson’s legs. From her vantage point, she could not actually see below Mrs. Richardson’s waist, but from the angle of Mr. Hartley’s arm-–and Mrs. Richardson’s reaction–-Ms. Botke presumed that the man had poked the bottle “in the direction of her private regions.” She said, “I saw him take it and shove it like this. I don’t know where it landed.” She did note that Mr. Hartley was approximately waist-high to Mrs. Richardson, i.e., he did not bend over so as as to touch her ankle or lower leg. Ms. Botke was a credible witness. She holds a very significant security clearance at her job managing all the navigational equipment for the U.S. Navy’s Ohio-class ballistic submarines. It is unlikely she would perjure herself in a proceeding such as this and put her clearance at risk. It is clear she saw something and was convinced that Mr. Hartley acted improperly, even if she could not actually see what he did. To the detriment of her believability, she is a close friend of Mrs. Richardson and obviously wants to support what her friend alleges. And, she has had some past trouble with Sandy Bottoms. She was once removed from the Restaurant by the police when she became extremely drunk after breaking up with a boyfriend. All in all, Ms. Botke’s belief that Mr. Hartley utilized the bottle in a sexual manner is not proven by a preponderance of the evidence. Ms. Botke also provided hearsay testimony concerning other allegations Mrs. Richardson had made concerning Mr. Hartley, but those allegations were not corroborated by other competent evidence. For example, she suggested that security cameras at the Restaurant were installed for the primary purpose of allowing Mr. Hartley to remotely look at Mrs. Richardson’s breasts. In fact, Ms. Botke says that Mrs. Richardson came home crying one night when she (Richardson) discovered that fact about the cameras. No persuasive evidence was presented, however, to establish the legitimacy of that allegation. Also, Ms. Botke said that Mr. Hartley appeared to “make contact with” Mrs. Richardson unnecessarily when he went behind the bar one time. Mrs. Richardson acknowledged the area behind the bar was very small and it was difficult for two people to be there at one time. From the totality of the evidence, it is certain that Mr. Hartley touched a cold bottle of port wine to Mrs. Richardson’s body. It cannot be confirmed where on her body the bottle touched Mrs. Richardson, i.e., whether it was her backside, her crotch, or on one of her legs. Nor can it be reasonably ascertained whether Mr. Hartley’s purpose was playful or sexually motivated. Regarding the comments Mrs. Richardson made about the security cameras, again there was no corroboration. Mr. Hartley and Mr. McNair say the cameras were installed for security purposes only. One reason the cameras were required was to make sure staff were not drinking on the job and/or drinking without paying for the drinks. In fact, in September 2015, the cameras recorded Mrs. Richardson taking alcohol “shots” at the bar during one of her shifts. She was reprimanded and written up for the infraction. As to the second incident, i.e., that Mr. Hartley allegedly made inappropriate comments while looking at Mrs. Richardson’s breasts, the evidence is even more scant. At final hearing, Mrs. Richardson’s attorney asked if Mr. Hartley had made a specific reference to her nipples in late winter- early spring 2015. She replied, “Yes sir.” In her written list of allegations given to FCHR, she said Mr. Hartley said, “It’s not that cold in here” in reference to her nipples while looking at her breasts. Mr. Hartley testified only that he did not make any such comment concerning Mrs. Richardson’s breasts or nipples. There was another person, Robert Pelletier, sitting at the bar at the time of the alleged incident. Mr. Pelletier, who is a managing broker for a real estate firm, is also a licensed attorney. At the time of the alleged incident, he had visited the bar on half a dozen occasions. He was sitting at the inside bar when an “older man” went behind the bar and said something to Mrs. Richardson about her nipples being hard. He found the comment to be very offensive. He was told by Mrs. Richardson that the man was the owner of Sandy Bottoms. At final hearing Mr. Pelletier could not say whether Mr. Hartley, who was sitting some six feet away from him, was the man he saw speaking to Mrs. Richardson that day in the bar. In an affidavit he prepared in May 2016, Mr. Pelletier did not mention that the man had commented specifically about Mrs. Richardson’s nipples. Nor did he mention that the man had gone behind the bar to talk to Mrs. Richardson. The only consistency between Mr. Pelletier’s testimony and his affidavit was that he heard something inappropriate said to Mrs. Richardson as he sat at the bar. By his own admission, Mr. Pelletier’s memory of the event was cloudy. No one else witnessed this encounter. It happened very quickly, according to Mr. Pelletier, and was not that memorable an event. While it is certainly possible that the event happened exactly as Mrs. Richardson remembers it, there is not a preponderance of evidence to that effect. Besides the two incidents discussed above, Mrs. Richardson also alleges a history of unwanted advances and comments from Mr. Hartley. She describes incidents where she felt like Mr. Hartley’s interactions with her or comments to her were sexual in nature. Both Ms. Botke and Ms. Guidry reported some other general comments allegedly made by Mr. Hartley that Mrs. Richardson had reported to them, but their testimony in that regard was not particularly persuasive. Mr. Hartley describes the same incidents as completely non-sexual in content or intent. Ms. Guidry had worked at, and been fired from, Sandy Bottoms several times. She once heard Mr. Hartley tell Mrs. Richardson that he wanted to buy her a red dress; that statement seemed to make Mrs. Richardson uncomfortable. Ms. Guidry thought Mr. Hartley hung around Mrs. Richardson too much. However, she never saw anything untoward happen between the two. Had she seen something improper happen, she would have reported it to someone. She never reported anything to anyone. Ms. Botke said that Mrs. Richardson would complain to her about Mr. Hartley as the two women sat on their decks enjoying a drink after work. None of those complaints, however, were substantiated by other evidence. Watching the demeanor and apparent sincerity of the two (Richardson and Hartley) at final hearing, it is quite possible each is telling the truth as he or she believes it to exist. That is, Mrs. Richardson sincerely believes that some of Mr. Hartley’s actions and words were provocative and meant to be sexual in nature. Mr. Hartley honestly believes that he was joking with Mrs. Richardson in a friendly and joking fashion, never crossing the line into inappropriate behavior. Mrs. Thelemann believed she and Mrs. Richardson got along quite well. They both had children and would talk about “kid things” with each other. Mrs. Thelemann saw her father (Hartley) and Mrs. Richardson talking quite frequently but never saw anything improper or questionable. Mrs. Richardson told Mrs. Thelemann once that Mr. Hartley was “an old flirt,” but not in a complaining way. Once, when Mrs. Richardson was distraught about being “written up” for drinking liquor while on duty, Mrs. Thelemann consoled Mrs. Richardson and let her know all was well. Mrs. Thelemann said Mrs. Richardson was, after all, a good employee. Another time, when Mrs. Richardson had to go visit her ailing mother, Mrs. Thelemann and her parents offered Mrs. Richardson money and the use of one of their cars. Mrs. Thelemann, an accountant, offered to help Mrs. Richardson with some IRS tax issues. And Mr. Hartley offered to loan Mrs. Richardson some money to buy Capri pants to replace short pants which had been deemed inappropriate. In short, there appears to have been a friendly relationship between Mrs. Richardson and the Hartley family. Speaking of inappropriate shorts, one of Mrs. Richardson’s unverified allegations had to do with Mr. Hartley allegedly telling her to turn around and bend over so he could inspect her shorts. Someone had complained that she and another waitress, Brittany, were wearing shorts that were too revealing. She says Mr. Hartley directed her to bend over so he could tell if the shorts were okay. At some point, Mrs. Thelemann told Mrs. Richardson that the shorts she was wearing on a particular day were too short. Later, Mrs. Richardson came to Mrs. Thelemann and said Mr. Hartley had inspected the shorts and overruled her, saying the shorts were okay. Mrs. Thelemann was angry that her father would undercut her authority, but there was no mention in the conversation that Mr. Hartley had acted inappropriately towards Mrs. Richardson. Mr. Hartley remembers visually inspecting Mrs. Richardson’s shorts, but not in a suggestive or inappropriate way. Again, there is no independent corroboration of either person’s testimony. Mrs. Richardson had a fairly clean record during her time at Sandy Bottoms. Besides the aforementioned write-up for drinking on the job, she was written up once for failing to timely enter drinks into the Point of Sale (“POS”) system. It is imperative that wait staff and bartenders timely enter drink orders into POS so that they do not forget to do so (and, apparently, to prevent them from giving away drinks). Mrs. Richardson had not timely entered some orders into the POS system and was written up for it. She signed the disciplinary action form, but wrote, “I did not do anything wrong on Sunday.” She maintains she entered the drinks as soon as practicable based on how busy she was with customers at the time. Mrs. Thelemann said that drinks actually were supposed to be entered into POS prior to being poured. Mrs. Richardson was also late for her shifts fairly frequently, roughly two thirds of the time. Otherwise, she was a model employee. Despite the numerous allegations in her written complaint, Mrs. Richardson noted only one time that she complained to management about specific harassment. She purportedly told Mr. McNair about the incident with the port wine bottle. She also said she complained to Mr. McNair at least ten other times about Mr. Hartley. Mr. McNair, however, does not remember her coming to him with that complaint (or any other, for that matter). Mrs. Richardson did express hesitation about going to management, as Mr. Hartley was the owner and ultimate authority at the Restaurant. Mrs. Richardson contends Mr. McNair is simply afraid of testifying against Mr. Hartley, but inasmuch as Mr. Hartley no longer owns the Restaurant, that contention loses credence. Besides, Mr. McNair appeared very credible while testifying at final hearing. Mrs. Richardson suggested that Mr. McNair lied on his affidavit, which had been sworn to while he was still an employee of Sandy Bottoms. Now, she reasons, he must maintain his lie in order to avoid perjuring himself. While there is logic to the reasoning, there is no evidence to support the contention. At best, the evidence at final hearing supports a finding that: 1) Mr. Hartley made an inappropriate comment about Mrs. Richardson’s breasts; and 2) Mr. Hartley touched Mrs. Richardson’s body with a wine bottle. Neither of these incidents rises to the level of sexual harassment. Mrs. Richardson also claimed retaliation by her employer, specifically that she was fired from her job because of the complaints she made against Mr. Hartley. There is no persuasive evidence in the record to support that claim. In fact, it is clear that Mrs. Richardson voluntarily walked away from her job–-at least for her November 1, 2015, shift--and was thus deemed to have abandoned her position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations Issue a Final Order finding that Respondent, C and C Enterprises, Inc., did not discriminate against Petitioner, Leslie Richardson. DONE AND ENTERED this 10th day of May, 2017, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2017.
