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.
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact The Petitioner began his employment with the Respondent on or about April 9, 2004. The Petitioner worked as a houseman. This job description was within the Respondent's housekeeping section. His original schedule required him to work a shift that ran from 6:00 a.m. until 2:00 p.m. In October or November of 2004, the Petitioner's work schedule changed and he was directed to work the overnight shift. The overnight shift personnel reported for duty from 11:00 p.m. until 7:30 a.m. The Petitioner accepted this re-assignment. The change in shift assignment was requested by Elizabeth Cortes' predecessor. Some time after December 2004, the Petitioner's supervising manager changed and Elizabeth Cortes became the director or manager for housekeeping. The Petitioner asked Ms. Cortes if he could return to the 6:00 a.m. to 2:00 p.m. shift. That request was not approved. The Petitioner accepted this decision and continued to work as scheduled. Ms. Cortes told the Petitioner at that time that she did not have another employee who would be available to take the night shift. In 2007 the Petitioner enrolled in school and requested that his shift be changed to a 9:00 p.m. to 5:00 a.m. shift so that he could attend school at Miami Dade. That request was approved. From the time of approval, the Petitioner was permitted to work three days from 9:00 p.m. to 5:00 a.m. (his school days) and two days from 11:00 p.m. to 7:30 a.m. The modification of the schedule allowed the Petitioner sufficient time to get to school in the morning. The Petitioner continued to work these shift times without complaint or issue. In November or December of 2006, the Petitioner made an application to become a banquet server for the Respondent's restaurant. He alleged that he gave the application to Elizabeth Cortes who was to sign it and forward it to Human Resources. According to Esther Sandino, the Petitioner did not file an application for restaurant server. Further, Ms. Cortes did not recall the matter. The Petitioner did not file a claim of discrimination for this alleged incident but presumably alleged that this incident demonstrates an on-going disparate treatment. There was no evidence that a non- Haitian was hired for the job as banquet server. There was no evidence any banquet servers were hired. Ms. Cortes did not hire banquet servers. Her responsibilities were directed at housekeeping. During the time Ms. Cortes was the housekeeping supervisor, the Respondent employed approximately 90 employees within the housekeeping section. Of those employees approximately 70 were Haitian. The remainder were Hispanic, Jamaican, Filipino, and other. Of the five persons who held supervisory positions, one was Haitian, two were Hispanic, one was from Czechoslovakia, and the country of origin of the fifth supervisor was unknown to Ms. Cortes. Ms. Cortes did not have the authority to terminate the Respondent's employees. Standard procedure would cause any allegation of improper conduct to be referred to the Human Resources office for follow up and investigation. There were two incidents referred for investigation regarding the Petitioner prior to the incident of April 22, 2007. Neither of them resulted in suspension or termination of the Petitioner's employment with the Respondent. On April 22, 2007, a security officer reported to the hotel manager on duty, Bingina Lopez, that the Petitioner was discovered sleeping during his work shift. Based upon that report, Ms. Lopez sent an e-mail to the housekeeping department to alert them to the allegation. When the Petitioner next reported for work, Mr. Saldana told the Petitioner to leave the property and to report to the Human Resources office the next day to respond to the allegation. The Petitioner did not report as directed and did not return to the property. Mr. Saldana did not have the authority to suspend or terminate the Petitioner's employment. Moreover, the Respondent did not send a letter of suspension or termination to the Petitioner. In fact, the Respondent assumed that the Petitioner had abandoned his position with the company. Ms. Cortes presumed the Petitioner abandoned his position because all of his uniforms were returned to the company. To avoid having the final paycheck docked, the Respondent required that all uniforms issued to an employee be returned upon separation from employment. The Petitioner acknowledged that he had his brother return the uniforms to the Respondent for him. The Respondent considered turning in uniforms to be an automatic resignation of employment. To fill the Petitioner's position (to meet housekeeping needs), the Respondent contacted an agency that provides temporary staffing. The person who came from the agency for the assignment was a male Hispanic. The male (who may have been named Lewis Diaz) arrived at the Trump Resort for work about ten days after the Petitioner left. The replacement employee's schedule was from 4:00 p.m. to midnight or 1:00 a.m. The temporary replacement remained with the Respondent until a permanent replacement for the Petitioner could be hired. It is unknown how long that was or who the eventual permanent employee turned out to be. Because the Petitioner never returned to the Trump Resort as directed, he was not disciplined for any behavior that may have occurred on April 22, 2007. The Petitioner's Employee Return Uniform Receipt was dated April 25, 2007. Prior to the incident alleged for April 22, 2007, the Petitioner had been investigated in connection with two other serious charges. Neither of those incidents resulted in discipline against the Petitioner. Both of the incidents claimed improper conduct that was arguably more serious than the allegation of April 22, 2007. Of the 400 plus employees at the Respondent's resort, the majority are Haitians. The Respondent employs persons from 54 different countries. The Petitioner's claim that he was referred to as a "fucking Haitian" by a security guard has not been deemed credible. The Petitioner was unable to indicate when the comment was made. Moreover, the Petitioner did not complain to anyone at the time the comment was allegedly made. Finally, no other employee could corroborate that the comment was made. One former employee testified that the Petitioner told him about the alleged comment. At best it was one offensive statement made on one occasion. There is no evidence that the Petitioner was treated in a disparate or improper manner based upon his national origin.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 27th day of February, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 27th day of February, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141 Warren Jay Stamm, Esquire Trump International Beach Resort 18001 Collins Avenue, 31st Floor Sunny Isles, Florida 33160 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent discriminated against Petitioner based on Petitioner’s race.
Findings Of Fact Petitioner, Che Johnson, worked as a helper to full-time installers of hurricane shutters with Respondent. He was training to become a full-fledged installer. Respondent, AABC, d/b/a Roll-A-Guard (“Roll-A-Guard” or “Respondent”), is a company that installs hurricane shutters from its offices and warehouse in Largo, Florida. Petitioner filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations against Respondent, stating, under penalty of perjury, that Respondent had 15+ employees. When asked by Respondent’s president why he believed 15 people were employed by Respondent, he was unable to give an answer. Petitioner admitted he never saw 15 people at the warehouse when he was working there. Roll-A-Guard, between October 21, 2016, and January 20, 2017, which covers the entire time Petitioner was employed with the company, never had more than seven employees on the payroll. This was substantiated by a payroll report from Respondent’s Professional Employer Organization and by testimony of Respondent’s president. This number of employees is substantially below the statutorily required number of employees (15) for Roll-A-Guard to be deemed an “employer” for purposes of the Florida Civil Rights Act of 1992. Petitioner, an African-American male, claimed that he was discriminated against on the job by his boss and president of Roll-A-Guard, Andrew J. Ayers, referring to him in a racially discriminatory way when calling on customers on several occasions. Petitioner claims that Mr. Ayers asked customers on three to four occasions whether they thought Mr. Johnson “was as cute as a puppy dog.” This offended Mr. Johnson, and he believed the statement to be discriminatory against him on the basis of his race. Mr. Johnson offered no additional testimony, nor any additional evidence, other than his own testimony that these remarks were made by Mr. Ayers. Mr. Ayers denied, under oath, that he had ever referred to Mr. Johnson as a “puppy dog,” and was especially offended not only that Mr. Johnson never raised the issue with him, but that Mr. Johnson went to the company’s Facebook page after his employment was terminated, and posted comments about Roll-A-Guard being a racist company that discriminated against African- Americans. The other employees of Roll-A-Guard, who testified at hearing, also never heard the “puppy dog” remarks allegedly made, nor did they believe Mr. Ayers was prejudiced in any way against Mr. Johnson. Although the lack of 15 employees by Respondent fails to invoke the jurisdiction of the Civil Rights Act of 1992, the evidence at hearing demonstrates Mr. Johnson’s termination from employment was unrelated to his claim of having been called a “puppy dog” by Mr. Ayers. On the day Mr. Johnson was terminated from employment, January 20, 2017, Mr. Ayers informed the workers that no one should leave the warehouse for lunch due to a rush job on a substantial order of hurricane shutters. Despite Mr. Ayers’ warning, Mr. Johnson left for lunch in the afternoon and was unreachable by Mr. Ayers, who attempted to text him to order him to return to work. Mr. Johnson did not immediately respond to the texts. Although Mr. Johnson eventually responded to the texts from Mr. Ayers after 45 minutes to an hour, Mr. Ayers was perturbed by that point, and actually hired a new worker to replace Mr. Johnson, and told Mr. Johnson not to return to work since he was fired. Mr. Ayers fired Mr. Johnson, in part, because he believed Mr. Johnson was not only leaving for lunch, but for the weekend. Other witnesses working that day confirmed this by testifying they heard words to the effect of “See you Monday.” Mr. Johnson admitted he left for lunch, but testified that he intended to return that afternoon after he had eaten.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, Roll-A-Guard, is not an “employer” and, therefore, not subject to section 760.10, Florida Statutes, or any of the provisions of the Civil Rights Act of 1992, and dismissing Petitioner’s charge of discrimination against Respondent. DONE AND ENTERED this 3rd day of January, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2018. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Che Johnson 2428 Fairbanks Drive Clearwater, Florida 33764 (eServed) Andrew J. Ayers Roll-A-Guard Suite 206 12722 62nd Street Largo, Florida 33773 (eServed) Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, the appropriate relief for such action.
Findings Of Fact For purposes of this case, the Petitioner began his employment with the Respondent in July of 2007. Although the Petitioner had worked for the Respondent in prior years (at another location), he had voluntarily left the company to pursue other opportunities. When the Petitioner returned to employment with the Respondent in connection with this case, it was ten years after a heart transplant. At the time of hiring, the Respondent knew the Petitioner's medical condition and age. The Petitioner is approximately 61 years of age. The Respondent is a national corporation with several sites for engineering and manufacture of its products. The Respondent is an equal opportunity employer and maintains policies prohibiting unlawful discrimination. One of the Respondent's facilities, Sykes Creek, is located in Brevard County, Florida. The Petitioner was hired to work at the Sykes Creek facility in the role of engineering supervisor. The Sykes Creek site builds luxury power yachts ranging from 50–to-60 feet in length. The price of these yachts runs from approximately $900,000 to $2,000,000 each. Typically, the yacht is ordered and customized to the buyer's specification. The Petitioner was responsible for supervising and directing work at Sykes Creek and reported to Kevin Shaw, his immediate supervisor. Mr. Shaw in turn reported to the plant manager, Steven Fielder. The Petitioner reviewed the work and attendance of approximately 21 hourly employees. When the Petitioner was hired (2007), the Sykes Creek facility produced 116 yachts and employed approximately 575 people. Within the Petitioner's department (engineering) there were 26 people; four others like Petitioner were salaried employees. The economic crunch that struck most of the nation drastically reduced the Respondent's business. In 2008 the Respondent instituted unpaid furloughs and layoffs due to the lack of business. By 2009 the economic condition in the industry had not improved. Accordingly, the Respondent had to make additional cuts to its staff. To that end, Mr. Fielder advised Mr. Shaw that the Petitioner's department would have to be cut to reduce the number of hourly employees and one salaried employee. To determine who should be cut, the Respondent looked to the number of years of service with the company and the skill set/education they provided for the facility. The Petitioner had the shortest length of service with the Respondent except for an employee named Julie Halesma. That person was not chosen for lay-off because she was a credentialed industrial engineer. The Petitioner did not have those credentials. The Petitioner was not offered a lower, hourly paid position because he did not have the skill set to perform the work as well as the hourly employees who were already doing the jobs. A number of employees were laid off the same day the Petitioner was dismissed. The Petitioner's job position was eliminated and has not, as of the date of hearing, been restored. The Respondent has continued to lay off workers. In 2009 the Sykes Creek facility was down to 175 employees. The engineering department was down to 15 people. Absent a return to more prosperous times, it is not expected that the facility will be able to rehire employees. The job tasks that the Petitioner performed are now shared by other employees at the facility. Throughout his time at the Sykes Creek facility, the Petitioner was allowed to take time off as needed to attend to medical issues. Based upon the frequency of the medical leave, the Respondent knew or should have known that the Petitioner's medical condition required monthly treatment. The extent of the medical treatment, however, was unknown to the Respondent. As a salaried employee the Petitioner did not have to "punch the clock." The Respondent allowed the Petitioner to complete his work as he might dictate so that he was free to leave the facility to attend to his medical needs. Clearly, the Respondent knew the Petitioner had had the heart transplant at the time of hiring but that medical condition did not impede the Petitioner's ability to perform his job assignments. The medical situation required that he be absent, but there is no indication that Petitioner could not perform his job. The cost of the Petitioner's medical care was unknown to the persons charged with making the lay-off decisions. The cost of the Petitioner's medical care played no part in the decision to eliminate the Petitioner's job. Similarly, the Petitioner's age did not play a part of the Respondent's decision to eliminate the Petitioner's job. The Respondent articulated legitimate business reasons for eliminating the Petitioner's job position. Clearly the Respondent knew of the Petitioner's age at the time of hiring. The Respondent did not replace the Petitioner with a younger employee. The Respondent's explanation for whom it chose to retain in employment was not based upon an employee's age but rather legitimate business interests. Episodes during which the Petitioner required medical attention at the facility did not rise to a level to cause the Respondent to be concerned for Petitioner's medical well-being. Incidents of the Petitioner being light headed or with low blood sugar did not cause the Respondent to seek to eliminate the Petitioner's job 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 no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of March, 2009, 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 March, 2009. COPIES FURNISHED: Rolf J. Bierman 1035 Palmer Road Rockledge, Florida 32955 Brian W. Koji, Esquire Bona M. Kim, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 225 Tampa, Florida 33606 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Did Respondent engage in unlawful employment practices directed to Petitioner, as defined in Section 760.10(1), Florida Statutes. In particular, did Respondent knowingly terminate Petitioner's employment based on Petitioner's age? Was Petitioner denied the opportunity to become kitchen manager because of her age? Is Petitioner entitled to take up her former duties as a cook at Respondent's restaurant or to be promoted to kitchen manager? Has Petitioner sustained damages, including loss of back and future pay and related benefits?
Findings Of Fact Petitioner, Christina D. McGill is a Caucasian woman who at the time of the alleged unlawful employment practice at issue was 41 years of age. Mrs. McGill worked at the Moorings Restaurant in Pensacola Beach, Florida, as a cook. The restaurant employed from 18 to 20 people during the operative time and all of these employees were of the Caucasian race. Both men and women were employed at the Moorings Restaurant. Prior to six months before October 11, 1997, Mrs. McGill was a cook at the restaurant. Candy Montague was one of her fellow employees. Mrs. McGill believes that Ms. Montague was approximately 25 or 26 or perhaps even 27 years old in 1997. During the time when Ms. Montague was a waitress, Mrs. McGill and Ms. Montague enjoyed an amicable relationship. Approximately six months prior to October 11, 1997, Ms. Montague was promoted to general manager of the restaurant. Subsequent to becoming general manager, Ms. Montague occasionally made remarks concerning Mrs. McGill's age. Ms. Montague remarked that Mrs. McGill was the oldest person in the kitchen, that "the old lady has to go home to her husband," and that she listened to "old timer" music. These remarks bothered Mrs. McGill. Some of these remarks were made on the premises during working hours and some were made at parties which were held subsequent to closing time. Mrs. McGill's husband, Lewis O. McGill, is much younger than Mrs. McGill. He worked as a waiter at the Moorings until he resigned sometime prior to October 11, 1997. He heard co- workers comment with regard to the fact that he was much younger than Mrs. McGill. These comments were made during after-hours drinking parties. He never heard Ms. Montague make these comments. Mr. McGill stated that he could offer no evidence which would indicate that Mrs. McGill was fired because of her age. When Ms. Montague became general manager she reduced the number of hours Mrs. McGill could work. She commented that Mrs. McGill was too old to lift heavy objects. When Mrs. McGill attempted to attain a position as kitchen manager, Mrs. McGill talked to the owner of the restaurant about the job. This made Ms. Montague unhappy. A younger person, Forrest Jameson, was also trying to obtain that job. Mrs. McGill does not know who eventually was appointed to that position. A few days prior to October 11, 1997, Mrs. McGill slipped and fell while off duty and injured herself. She called in sick. When she called Ms. Montague on October 11, 1997, to determine her work schedule, Ms. Montague told Mrs. McGill that she had been terminated for threatening people with knives, failing to follow orders, and exhibiting misconduct in general. Mrs. McGill earned about $300 weekly while working for the Moorings Restaurant. She received about $108 per week unemployment compensation from October 11, 1997 until June 30, 1998. From February 1998 until February 1999 she was employed at Beall's Outlet in Gulf Breeze and received approximately $128 per week in salary. She worked for Allan Davis Souvenirs from February 1999 to August 2000 and received about $250 per week.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered which dismisses Petitioner's claim of discrimination based upon age. DONE AND ENTERED this 20th day of October, 2000, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 2000. COPIES FURNISHED: Christina D. McGill 7680 West Highway 90 Apartment 158 Pensacola, Florida 32561 The Moorings Restaurant 655 Pensacola Beach Boulevard Pensacola Beach, Florida 32561 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox RoadSuite 240, Building F 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
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.
Findings Of Fact On or about September 25, 2010, Petitioner filed a Charge of Discrimination against Respondent with the FCHR. Pursuant to the FCHR's procedure, an investigation of the matter was completed, that resulted in a Notice of Determination: No Cause. Essentially, the FCHR found that based upon the allegations raised by Petitioner there was no reasonable cause to believe an unlawful employment practice occurred. Thereafter, Petitioner elected to file a Petition for Relief to challenge the determination, and to seek relief against Respondent for the alleged violation. The FCHR forwarded the matter to DOAH for formal proceedings. DOAH issued a Notice of Hearing on April 15, 2011, that was provided to all parties at their addresses of record. It is presumed, the parties received notice of the hearing date, time, and location. In fact, counsel for both parties did appear. Prior to the hearing, the parties engaged in discovery and Petitioner participated in a deposition on or about May 24, 2011. It is undisputed that Petitioner knew or should have known of the hearing date, time, and place.
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 claim of discrimination. DONE AND ENTERED this 30th day of June, 2011, 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 30th day of June, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 W. John Gadd, Esquire The Law Offices of W. John Gadd 2727 Ulmerton Road, Suite 250 Clearwater, Florida 33762 Glenn Michael Rissman, Esquire Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterman, PA 200 East Las Olas Boulevard, Suite 2100 Fort Lauderdale, Florida 33301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed the unlawful employment discrimination practices alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact Petitioner is an African-American male. At all times pertinent to this case, Petitioner was employed by Respondent as an equipment operator in the golf course maintenance department. Respondent has been employed by Respondent for approximately 20 years. Respondent is a golf and country club.1/ Respondent's employment policies are contained in its "Employee Handbook."2/ The Employee Handbook provides that a "[v]iolation of any of the rules or policies set forth in this Handbook may lead to discipline, up to and including immediate discharge." Respondent's Employee Handbook contains a section on absenteeism and tardiness, which provides in pertinent part as follows: Excessive absenteeism or tardiness can result in discipline up to and including discharge. If you are going to be late or absent from work for any reason, you must personally notify your Supervisor as far in advance as possible (but no later than 2 hours before your scheduled start time) so proper arrangements can be made to handle your work during your absence. Of course, some situations may arise in which prior notice cannot be given. In those cases we expect you to notify your Supervisor as soon as possible. Leaving a message, sending a text, or having someone else call on your behalf, does not qualify as notifying your Supervisor- you must personally contact your Supervisor. If you are required to leave work early, you must also personally contact your Supervisor and obtain his/her permission. Absences of more than one day should be reported daily, unless you have made other arrangements with your Supervisor or the Human Resources Office. (emphasis in original). * * * Although an employee may be terminated at any time for failing to report to work without contacting the Club, if an employee fails to report for work or call in for three (3) consecutive calendar days they will be considered to have abandoned their job and will be terminated. Respondent's Employee Handbook also contains a provision concerning workplace violence. Employees are notified that, "[v]iolations of this policy may result in disciplinary action, up to and including termination of employment." The workplace violence policy provides in pertinent part: The Club has a zero tolerance policy regarding violent acts or threats of violence against our employees, applicants, members, vendors, or other third parties. We do not allow fighting or threatening words or conduct. We also do not allow the possession of weapons of any kind on the Club's premises, except as required by law. No employee should commit or threaten to commit any violent act against a co-worker, applicant, member, vendor, or other third party. This includes discussions of the use of the dangerous weapons, even in a joking manner. May 3, 2013, Incident On May 3, 2013, Petitioner was not at work, but rather, performing work for a resident in the community. Petitioner's vehicle was apparently parked on the wrong side of the road. Mike Jones, a security guard, advised Petitioner to move his vehicle or he was going to receive a ticket. Petitioner informed Mr. Jones that he was not going to receive a ticket, and followed Mr. Jones back to the guard gate. Thereafter, Petitioner and Mr. Jones became engaged in "some words." According to Petitioner, after the verbal altercation he left the guard gate. On May 4, 2013, Petitioner presented to work and performed his duties. The following day, May 5, 2013, Petitioner was arrested for the May 3, 2013, incident and charged with battery on a security officer. Petitioner testified that the arrest occurred in Mike Ballard's office.3/ Mr. Ballard was Petitioner's superintendent at some point in his employment. Beth Sandham, Respondent's Human Resources Director, was not present at the time of arrest. Petitioner remained in custody throughout May 6, 2013. When Petitioner did not appear for work on May 6, 2013, Ms. Sandham credibly testified that the Human Resources department, as well as his supervisors, attempted to contact Petitioner. After several attempts to reach him by phone, Respondent sent a letter to Petitioner via Federal Express.4/ Petitioner testified that he contacted his supervisor on May 6, 2013, and was advised that he had been terminated. Petitioner contends that his termination was racial in origin because Respondent did not obtain his account of the altercation prior to his termination. On this point, Petitioner testified as follows: That why I say this is a racist thing because they listen to what their two security guards say, but they never gave me the chance to explain myself. On May 6, 2013, Ms. Sandham terminated Petitioner's employment on the grounds of failing to report to work and the alleged violent behavior. As an additional basis for alleging racial discrimination, Petitioner testified that Mike Ballard was a racist. Specifically, Petitioner testified that on one occasion he overheard Mr. Ballard advise another employee, Jeff Beneclas, to "[t]ell that nigger mind his own f***en business." Petitioner explained that Mr. Ballard was referring to him. Mr. Beneclas was terminated on June 25, 2010. Addressing this allegation, Ms. Sandham explained that, if the alleged statement had been made over Respondent's radio system, said statement would have been heard by the tennis department, the golf professionals, facilities maintenance, the superintendents, and golf course maintenance. Ms. Sandham credibly testified that neither Petitioner nor any other employee notified her of such a statement or made a complaint. Additionally, Ms. Sandham credibly testified that Petitioner never made a complaint to her regarding Mr. Ballard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief against Wycliffe Golf and Country Club. DONE AND ENTERED this 16th day of April, 2015, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 16th day of April, 2015.
