The Issue The issue is whether Respondent, Agency for Health Care Administration (“AHCA” or “the Agency”), discriminated against Petitioner, Bridget D. Nelson, now Levens (“Petitioner”), based upon her sex, race, or age, in violation of section 760.10, Florida Statutes (2017),1/ and/or whether the Agency retaliated against Petitioner for the exercise of protected rights under section 760.10.
Findings Of Fact The Agency is an employer as that term is defined in section 760.02(7). Petitioner, an African American female born on July 23, 1968, was hired by the Agency as a Program Administrator in the Bureau of Recipient and Provider Assistance (“RPA” or “Bureau”) on September 13, 2013. She worked in that job position until her employment was terminated on May 18, 2017. Petitioner’s position was classified as Select Exempt Service (“SES”). SES employees serve at the pleasure of the agency head and are subject to suspension, dismissal, reduction in pay, demotion, transfer, or other personnel action at the discretion of the agency head. Such personnel actions are exempt from the provisions of chapter 120, Florida Statutes. § 110.604, Fla. Stat. At the time she was hired, Petitioner supervised two employees. Luis Diaz was a fellow Program Administrator who sat at a desk next to hers. Both Petitioner and Mr. Diaz were supervised by Damon Rich. Petitioner had, prior to her employment with the Agency, worked with Mr. Rich and Mr. Diaz at Affiliated Computer Services (“ACS”), a private sector company. Mr. Rich testified that he supervised Petitioner for a time at ACS and that he became friends with Petitioner and her husband. Mr. Diaz also worked in a higher position than Petitioner at ACS. Petitioner testified that when Mr. Rich hired her to work at the Agency, he advised her that she should consider herself an equal to Mr. Diaz and that she should not let Mr. Diaz make her feel that she was answerable to him. Petitioner testified that Mr. Diaz often had conflicts with female employees and would look to Petitioner for assistance. Petitioner testified that she assumed supervision of Ivis Suarez, one of Mr. Diaz’s employees, at his request because he could not make her understand what he needed her to do. Petitioner stated that Ms. Suarez filed a complaint against Mr. Diaz. Petitioner disagreed with the complaint at the time but attributed her disagreement to not yet understanding the full dynamics of the situation in the office. Petitioner only knew that the working environment was not good. Petitioner testified that she was able to work with Ms. Suarez, who eventually resigned her position with the Agency. Petitioner described a similar situation that occurred in 2014. Another subordinate of Mr. Diaz, Natasha Hampton, complained to Petitioner that she did not understand the training she was receiving. Mr. Diaz complained to Petitioner that Ms. Hampton was not catching on to the job. Petitioner agreed to take over the supervision of Ms. Hampton. Petitioner testified that she asked Mr. Diaz for copies of Ms. Hampton’s workplace “coachings” because she was taking over her supervision in the middle of the year and needed to know where Ms. Hampton stood in terms of her annual evaluation. Petitioner stated that Mr. Diaz ignored her repeated requests for the coachings. By 2016, Mr. Rich had been promoted to Bureau Chief and Mr. Diaz had been promoted to a supervisory position that made him Petitioner’s direct superior. Petitioner was upset that she was not consulted about Mr. Diaz’s “elevation.” Mr. Rich believed that Petitioner’s subsequent problems in the workplace were attributable to her resentment at having to answer to Mr. Diaz. For her part, Petitioner claimed that Mr. Diaz created a hostile working environment. She testified that every time Mr. Diaz had a problem with a female employee, she would end up as that employee’s supervisor. She stated that Mr. Diaz once told her that if an order were given to downsize their unit, he would recommend eliminating all of her subordinates but one. One incident that especially galled Petitioner was Mr. Diaz’s procrastination in signing a tuition waiver that would allow her to take the final class required for her college degree. Mr. Rich explained that the delay in approving Petitioner’s waiver was because her unit was about to implement a procurement. Mr. Rich and Mr. Diaz needed to make sure that accommodating Petitioner’s request to attend class would not adversely affect the Agency’s business needs. Petitioner nonetheless complained to the HR department about the delay in processing her tuition waiver, which was eventually signed by Mr. Diaz. Petitioner testified that she resented being required to go to HR for something so minor and attributed her problem to the hostile environment created by Mr. Diaz, who did everything he could to make things more difficult for her. Mr. Rich testified that school attendance seemed a greater priority for Petitioner than her job duties. Petitioner offered other examples of what she termed Mr. Diaz’s hostile behavior. A former employee, Ms. Suarez, had expressed an interest in coming back to work at the Agency but Mr. Diaz declined to interrupt a meeting to speak with her on the phone. Petitioner stated that other employees were constantly coming to her with problems because they were afraid to talk to Mr. Diaz about them. Petitioner stated that Mr. Diaz would leave her out of meetings. A rumor circulated that Mr. Diaz and Mr. Rich had received raises at a time when no one else in the unit had received a raise for several years, which made the employees feel underappreciated. Petitioner complained that Mr. Diaz required her to submit leave requests for his approval, whereas Mr. Rich had not done so. Petitioner believed that as a supervisor, she should not be required to ask for time off. She met with Mr. Rich, who explained to her that every manager deals with things a little differently and that even the Secretary of the Agency must obtain the Governor’s approval to be out of the office. Mr. Rich’s practice had been to respond to leave requests only when he intended to deny them, which he believed may have left Petitioner with the impression that she did not have to obtain approval. Mr. Diaz wanted to affirmatively grant the leave requests. Mr. Rich testified that Petitioner’s leave requests were not handled any differently than those of any other employee in her unit. He did not consider the issue worth the time Petitioner was taking to argue about it. After the leave request dustup, Mr. Rich sent Petitioner an email, dated August 15, 2016, stating his intention to schedule a meeting with Mr. Diaz and her, “to get to the root of communication and other underlying issues to determine the best way forward. We cannot continue to have this type of fragmented leadership and disagreement about routine functions between you and your supervisor, Luis [Diaz].” A follow-up email from Mr. Rich indicated that the meeting was somewhat successful, but the resolution was not to be lasting. Petitioner complained about her annual evaluation. She stated that during a full year of working under Mr. Diaz, she had received no one-on-one coachings. Petitioner conducted monthly coachings with her subordinates so that they would know exactly where they stood on their evaluations. Petitioner testified that she felt blind-sided when she received her annual evaluation from Mr. Diaz for 2015-16 and it was substantially lower than her 2014-15 evaluation done by Mr. Rich. She submitted a written rebuttal to the evaluation and declined to sign it until she could meet with Mr. Rich to discuss it. In his testimony, Mr. Rich made it clear that by this time, he was tiring of Petitioner’s inability to work out her disputes with Mr. Diaz without involving him or other Bureau- level personnel. When he hired Petitioner, Mr. Rich was overseeing 17 employees. Petitioner was part of his leadership team and he had the time to meet regularly with her and deal with her complaints. However, Mr. Rich was now a Bureau Chief in charge of 230 employees. Petitioner was no longer part of Mr. Rich’s leadership team and no longer directly reported to him. Directly dealing with Petitioner’s complaints now meant that Mr. Rich was forced to put aside other duties. Petitioner testified that HR was pressuring the unit to submit the performance evaluations, but that she continued to resist signing hers. Mr. Rich met with her and agreed to change one score on her evaluation. Petitioner then signed the evaluation “under duress.” Petitioner complained about the lack of input she was allowed into her performance expectations for the following year, 2016-17. She stated that Mr. Rich used to ask for her input and give her plenty of time to respond. Mr. Diaz sent her an email with the draft performance expectations for Petitioner and her subordinates two days before the final version was to be submitted to HR. He asked her to go over the expectations with her staff. Petitioner stated that her staff was confused and did not understand the proposed expectations. Petitioner again took the issue to Mr. Rich. Mr. Rich explained that the performance expectations had been set by him in conjunction with his leadership team, which did not include Petitioner. Mr. Rich testified that, at Petitioner’s suggestion, he met one-on-one with each person on her staff to learn the nature of their problems with the draft performance expectations. He stated that he met with them in this manner to hear their independent opinions and to allow them the confidentiality to speak frankly. None of Petitioner’s subordinates reported any concerns with the performance expectations. On September 14, 2016, Petitioner filed a grievance with HR that was investigated by the Agency’s Office of Inspector General. Petitioner complained of a hostile working environment and gender discrimination. The factual allegations involved the performance evaluation, performance expectations, and tuition waiver disputes discussed above. The investigation disclosed no statutory, rule, or policy violations, and found insufficient evidence to prove or disprove Petitioner’s hostile working environment claim. By way of a written report dated October 11, 2016, the case was closed with no further activity recommended by the Office of Inspector General. Both Mr. Diaz and Mr. Rich testified that they were unaware of Petitioner’s grievance at the time she filed it. Mr. Rich testified that he received a copy of the Inspector General’s report and only then became aware of the grievance. Mr. Rich testified that Petitioner never told him that she felt discriminated against because of her sex, age, or race. Petitioner testified that in early 2017 she began finding particles of some white powdery substance in her office and on the path she walked to her office. She did not know what the substance was but stated that it triggered her asthma. Petitioner was convinced that someone at the Agency was putting the white substance in her office. She eventually changed offices, but the white substance began appearing there as well. Mr. Rich testified that he investigated the situation. He noted that Petitioner was an inveterate user of air fresheners and cleaners, to the point that other employees complained that the fumes coming from Petitioner’s office were making them nauseous. Mr. Rich, and then-HR Bureau Chief Cynthia Mazzara, went into Petitioner’s office after hours to seek the source of the white powder. They sprayed one of the air fresheners. When the particles dried on the desk, they turned white. This solved the mystery to Mr. Rich’s satisfaction, though Petitioner remained convinced she was being sabotaged. Mr. Rich testified that Petitioner’s behavior and attitude continued to worsen over time, especially after the Office of Inspector General found no cause to credit her claims of a hostile working environment and gender discrimination. She refused to comply with a section-wide requirement that office doors remain open. She continued to expect the Agency to accommodate her frequently changing school schedule. Petitioner continued to over-complicate work assignments and challenge directions from her superiors. She even requested that Mr. Rich cease using the color red for emphasis in his emails because red “denotes yelling and angry emotions.” The final straw for Mr. Rich came in early May 2017, when Petitioner encouraged and facilitated another employee’s falsification of a time sheet. The employee was out of annual leave but expressed a desire to go home and deal with a situation involving a relative. Petitioner sent the employee home, then falsely reported that the employee was not feeling well so that she could use sick leave. In a memo to HR dated May 2, 2017, Mr. Rich outlined his reasons for wishing to terminate Petitioner’s employment. The memo stated as follows, in relevant part, omitting references to attached documents: This memo is to provides [sic] a summary of expressed concerns regarding the conduct of employee Bridget Nelson. * * * During her employ, Ms. Nelson has occasionally displayed instances that border [on] insubordination, but recently there has been an increased [sic]. Of specific concern is her ability to “resolve any difference with management in a constructive manner.” Her communications are almost always accusatory in nature, taking no consideration of her own accountability in related issues. Additionally, her behavior is becoming more disruptive to the work environment, sometimes affecting those outside the Bureau. The following are some examples where Ms. Nelson has not been constructive in her interactions with management and/or caused disruption in the work place. On August 11, 2016, Ms. Nelson submitted a rebuttal to her performance expectations . . . . Mr. Diaz and I had previously met with Ms. Nelson to discuss her concern and there were few concerns expressed compared to the document sent to Mr. David Rogers (my boss), Mr. Diaz and myself. On the same day, I responded to Ms. Nelson concerning her email and informed her that I would meet with her and her staff to evaluate the concerns. During the week of August 15, 2016 I met with Ms. Nelson individually, followed by individual meetings with her staff. Her staff was unaware of the concerns to which Ms. Nelson was referring and understood their performance expectations. On August 15, 2016 Ms. Nelson had an adverse reaction to an email sent by her supervisor, Mr. Luis Diaz. She characterized the email as “unprofessional” and seemed to imply that managers have special privileges in the context of the issue raised [i.e., Petitioner’s belief that as a manager, she was not required to have leave requests approved by Mr. Diaz]. Ms. Nelson does not take the time to properly read and respond to emails in context. There is a sense of entitlement by Ms. Nelson that the Agency work is second priority to her needs. In or around March of 2017 Ms. Nelson had to be relocated to a different office after allegations that someone had sabotaged her office by spraying some foreign substance, which produced a strong odor, and “white residue” in her office.[3/] On March 9, 2017 I sent an email directly to Ms. Nelson about discontinuing the use of chemicals in her new office and sent a general email to all staff on the floor to the same effect after receiving complaints about “strong odors” in the vicinity of her new office. On the morning of March 17, 2017 I receive[d] more complaints regarding a strong odor coming from her office. I reminded her of the previous email from the 9th. Additionally, during a meeting with Ms. Nelson on April 18, 2017 I [had] to remind Ms. Nelson of the policy concerning the closing of office doors which had previously been sent to all staff on 4/4/16, 9/16/16 and 11/18/16. I was informed by others in the area, during a different incident concerning her new office and foreign substances that she was still spraying things in her office, which may be why she continued to keep the door close[d]. Ms. Nelson often escalates issue[s] unnecessarily, which contributes to confusion, conclusion jumping and increase[d] work for others. Ms. Nelson is confrontational and often misapplies Agency or other state policy in a manner that comes across as a veiled threat. Most recently it came to my attention that Ms. Nelson may have attempted to encourage an employee to falsify their timesheet because they did not have any Annual Leave remaining and had a family issue. Based on the email sent by Ms. Nelson, it appears that she implied, on behalf of the employee, that they had to leave because they were not feeling well. In summary, I am not sure how to continue with Ms. Nelson in the employ of the Agency or what next steps should be taken. Her behavior as a manager is disruptive to the portion of the Agency mission for which the Bureau of RPA is accountable. Although Ms. Nelson has been a part of the Agency for more than 3 years, she seems not to have grasped the means to perform her duties in a constructive manner. By letter dated May 18, 2017, Mr. Rich informed Petitioner that her services were no longer required by the Agency, effective at the close of business on that date. At the hearing, Mr. Rich credibly testified that the termination was not based on the grievance filed by Petitioner eight months earlier, nor based on Petitioner’s sex, race, or age. The termination was based on the documented instances of Petitioner’s insubordination, her inability to resolve differences with management in a constructive manner, her accusatory communications, her inability to accept her own accountability when disputes arose, and the fact that her behavior was becoming increasingly disruptive to the work environment at the Agency both in and outside of the Bureau. At the hearing, Petitioner essentially abandoned any claim that her dismissal was based on her race or her age. She offered no evidence or argument regarding race or age discrimination. Petitioner’s focus was on sex-based discrimination by Mr. Diaz. Petitioner asserted that Mr. Diaz’s actions demonstrated that he has a “problem with women,” and that her treatment by Mr. Diaz was motivated by his bias toward women. Petitioner offered no corroborating evidence regarding the female employees she claimed were moved from Mr. Diaz’s supervision to hers. Petitioner also offered her personal view that Mr. Diaz was generally more deferential to his male subordinates than to the females. Petitioner presented no other witnesses to corroborate her opinion on this point. Mr. Diaz and Mr. Rich credibly testified that Petitioner never made a contemporaneous complaint to them that any of her many office disputes had anything to do with her sex. Petitioner offered no credible evidence that any adverse employment actions taken against her had anything to do with her sex. The evidence established that Petitioner was a disputatious employee in the best of times. Her resentment at having Mr. Diaz elevated to the position of her supervisor led Petitioner to question and undermine virtually any action taken by Mr. Diaz, no matter how inconsequential. Petitioner claimed that Mr. Diaz had conflicts with some female employees, but could point to no adverse actions Mr. Diaz ever took against her. Petitioner took great offense at Mr. Diaz’s insistence that she submit leave requests like any other Agency employee. However, Petitioner’s subjectively felt outrage does not transform this trivial workaday directive into an adverse employment action. Petitioner’s termination was the only actual adverse employment action in this case and it was effectuated by Mr. Rich, the Bureau Chief, not Mr. Diaz. The evidence established that, perhaps because of their prior relationships with Petitioner at ACS, Mr. Diaz and Mr. Rich continued attempting to mollify and work with Petitioner well after Mr. Rich would have been justified in terminating her employment for insubordination and constant disruption of the workplace. Subsequent to her dismissal by AHCA, Petitioner applied for a position at the Department of Highway Safety and Motor Vehicles (“DHSMV”). She interviewed for that job in August 2017. Petitioner stated, without corroboration, that DHSMV assured her that she would be hired if her references were good. In September 2017, Petitioner was advised that DHSMV would not be hiring her. From this sequence of events, Petitioner concluded that she was not hired by DHSMV either because AHCA gave her a negative reference or because of something inappropriate in her AHCA personnel file, in retaliation for actions while an employee of AHCA. Petitioner offered no direct evidence that anyone from AHCA gave her a poor reference. She offered the testimony of Robert Kennedy, a person who agreed to let Petitioner use him as a reference. Mr. Kennedy testified that no one from DHSMV ever called him about Petitioner. Based on his experience in hiring employees, Mr. Kennedy found it “odd” that he was not contacted. Jamie Skipper, Chief of the Agency’s HR Bureau, testified that AHCA’s policy on job references is to give only the job title, salary, and dates of employment, without any qualitative assessment. AHCA will make the affected employee’s personnel file available upon request. Ms. Skipper testified that all requests for employee references are routed through her office, and that her office had no record of DHSMV ever asking about Petitioner. Ms. Skipper testified that she had no reason to believe anyone from DHSMV ever reviewed Petitioner’s personnel file. In any event, Petitioner’s personnel file simply reflects that she was involuntarily separated from AHCA in May 2017. Mr. Diaz and Mr. Rich both testified that their consistent practice is to forward any employee reference requests to HR. Both men testified that they never received a reference request from anyone, including DHSMV, regarding Petitioner. There is no record evidence that anyone, including DHSMV, sought an employment reference from AHCA about Petitioner or that anyone at the Agency provided a negative reference regarding Petitioner. In summary, Petitioner offered no credible evidence that the Agency retaliated against her for engaging in protected activity. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reason given by AHCA for her termination. Petitioner offered no credible evidence that AHCA’s stated reason for her termination was a pretext for discrimination based on Petitioner’s race, age, or sex. Petitioner offered no credible evidence that AHCA discriminated against her because of her race, age, or sex in violation of section 760.10.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Agency for Health Care Administration did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 21st day of August, 2019, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 2019.
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2007),2 by discriminating against Petitioner based on her national origin.
Findings Of Fact The Omni, advertised as "Omni Orlando Resort at ChampionsGate," is a golf resort located in the Orlando tourist corridor near Walt Disney World. The Omni is an employer as that term is defined in Section 760.02, Florida Statutes. Petitioner, Suhra Merdanovic, is a Bosnian female, and her first language is Bosnian. She speaks and understands English, but is more fluent and comfortable using her native language. Ms. Merdanovic was employed by the Omni from approximately August 22, 2006, to October 9, 2006. Ms. Merdanovic worked in the kitchen of the Broadway Deli, a sandwich shop located in the resort. The Broadway Deli was one of several restaurants in the Omni complex. During the brief period of Ms. Merdanovic's employment, the Broadway Deli did not have a full-time manager. Ms. Merdanovic reported to Silvio Rosalen, the sous chef at Teri's Restaurant, near the Broadway Deli in the Omni complex. Mr. Rosalen reported to Robert Fohr, the assistant food and beverage manager for the Omni. The Omni has established a policy that prohibits harassment in the workplace. The policy defines harassment as: ny unwelcome verbal, non-verbal, physical or other conduct or behavior relating to an individual's race, religion, color, sex, national origin, age, disability or any other categories protected by state, federal or local law, that is made a term or condition of employment, is used as the basis for employment or advancement decisions, or has the purpose or effect of unreasonably interfering with work or creating an intimidating, hostile or offensive work environment. The policy "strictly prohibit[s]" employees, supervisors, and members of management from harassing other employees, supervisors, or members of management. The policy directs an employee who has a complaint of harassment to report that complaint to any manager or supervisor, the human resources director, the general manager, or the regional vice president of operations. The complaint triggers a formal investigation, usually conducted by the human resources director. The Omni's harassment and equal employment opportunity policies are set forth in the Omni's Associate Handbook, which is provided to all employees. The handbook is reviewed during an orientation session that all newly hired Omni employees must attend. Ms. Merdanovic attended an orientation session on August 26, 2006, and testified that she was familiar with the harassment policy. The Omni calls the first 90 days of employment an "introductory period." The Associate Handbook describes the introductory period as follows: During this time you will have a chance to see whether you like your job and Omni Hotels will have an opportunity to evaluate your performance and suitability for your position. If Omni Hotels concludes that your job performance and/or suitability have been unsatisfactory, you may be dismissed at any time during the introductory period at Omni Hotels' complete discretion. You may also be dismissed at any time after the introductory period at the sole discretion of Omni Hotels. Both during and after the introductory period, all associates are associates at will. If an employee's manager determines within the first 90 days of employment that an employee's job performance and/or "suitability" is unsatisfactory, the manager will meet with the employee to review the manager's concerns. After this meeting, the employee's job status is "suspended pending investigation" while the manager confers with the human resources department to review the issues. If the manager and the human resources department agree that the employee should be terminated, then human resources will advise the employee of the decision. Ms. Merdanovic testified that two Hispanic co-workers, Erica Torres and Charlotte Ruiz, harassed her because of her nationality. Ms. Torres asked her what she was doing in America and refused to go into the kitchen with her. Both women made jokes and laughed about Ms. Merdanovic being from Bosnia. Ms. Merdanovic testified that her co-workers also disliked her, because she refused to give them free food from the Broadway Deli's kitchen. Ms. Merdanovic did not complain to a manager, supervisor, or any other Omni employee about the harassment she claimed to have experienced. Mr. Rosalen testified that he received numerous complaints about Ms. Merdanovic's job performance from her co- workers. The co-workers told him that Ms. Merdanovic failed to follow instructions, argued with guests and co-workers, interrupted co-workers who were trying to explain how to complete job tasks, gave guests the wrong order at least twice, and failed to comply with the posted work schedule. Mr. Rosalen personally observed Ms. Merdanovic's performance deficiencies on several occasions. The guest complaints were most significant to Mr. Rosalen. On one occasion, the guest had ordered a turkey sandwich, but was served a pastrami sandwich by Ms. Merdanovic. Rather than correcting the order immediately, Ms. Merdanovic attempted to convince the guest to keep the pastrami sandwich by telling him it was good and he would like it. On a second occasion, a guest ordered a milkshake and was served iced coffee.3 At the hearing, Ms. Merdanovic testified that she was unaware of any complaints about sandwiches. She stated that she has worked in kitchens for years and understands how to make sandwiches in a deli. She did complain that she was never trained to operate the "front of the store" equipment such as the milkshake machine or coffee machine, yet was expected to somehow be able to operate them. Mr. Rosalen orally counseled Ms. Merdanovic on multiple occasions regarding her performance deficiencies, but he never observed any improvement. Pursuant to the process for terminating employees during their introductory period, Mr. Rosalen and Mr. Fohr decided to meet with Ms. Merdanovic to discuss her performance deficiencies and to advise her not to return to work until she heard from human resources. After this meeting, Mr. Rosalen and Mr. Fohr would meet with the human resources director to discuss whether to terminate Ms. Merdanovic's employment. Mr. Rosalen and Mr. Fohr prepared a "Problem/Solution Notice" form, dated October 2, 2006, that set out the performance deficiencies and possible corrective actions for Ms. Merdanovic. This notice was intended to be the outline for discussion during the meeting with Ms. Merdanovic. Under the heading "Specific Nature of Problem" were various categories, including absenteeism, tardiness, violation of company policies, and unsafe actions. Ms. Merdanovic's problem was categorized as "Performance Below Standards." The specific performance problems were set out as follows: There have been numerous complaints about Suhra Merdanovic's job performance from several of her co-workers. These complaints include: Does not follow training of food preparation techniques and quantities. Does not follow food, coffee and drink recipes. Does not know what all the ingredients are to be able to make recipe. Looses [sic] tickets for orders. Has become argumentative with employees and guests when told that the product is wrong. Has tried to convince guests that mistakenly prepared food is good and tried to get them to take it. Does not understand the schedule after repeatedly having it explained. Interrupts employees and does not let people finish talking when trying to explain how a task needs to be completed. Is not a team player. The notice set forth the following under the heading, "Expected performance or conduct/corrective action required": Suhra must adhere to the following guidelines: Must be receptive to and accept training in all facets of Broadway Deli culinary operations with a positive attitude. Must follow all standard recipes without deviation to achieve a consistent product. Must produce orders in timely fashion in accordance to [sic] the guest's specifications. Must never become argumentative with a guest and try to force a guest to take a product they do not want. Must get along with and assist teammates with all guest needs. The notice concluded that the "disciplinary action taken" would be "Suspension/Termination." On October 2, 2006, Mr. Rosalen and Mr. Fohr met with Ms. Merdanovic in Mr. Fohr's office to review the contents of the Problem/Solution Notice. When her supervisors began reviewing her performance deficiencies, Ms. Merdanovic interrupted to argue with them. Mr. Fohr pointed out that this was the same sort of conduct that led to this counseling session in the first place. Before Mr. Rosalen and Mr. Fohr could present her with the notice and commence the formal suspension/termination process, Ms. Merdanovic began to cry in a way that Mr. Rosalen described as "almost hysterical" for several minutes. Ms. Merdanovic then walked to the kitchen of the Broadway Deli. Mr. Rosalen followed her, both to make sure she was all right and to escort her off the Omni property. Ms. Merdanovic again began crying and saying that she could not breathe. She described her condition as "couldn't breathe, couldn't think, couldn't stay." Mr. Rosalen called in the Omni's security team, which also acts as the resort's first responder in medical emergencies. The entry of the security guards threw Ms. Merdanovic into a greater panic. Eventually, at Ms. Merdanovic's request, the Omni called an ambulance service, which transported her to Florida Hospital in Orlando. Ms. Merdanovic was diagnosed with high blood pressure and discharged after an overnight stay in the hospital.4 After the incident leading to Ms. Merdanovic's hospitalization, Mr. Rosalen and Mr. Fohr met with Lisa Borde- Christie, the Omni's human resources manager, to discuss their meeting with Ms. Merdanovic, the complaints about her from guests and co-workers, and Mr. Rosalen's observations of her performance deficiencies and his previous attempts to correct them. Ms. Borde-Christie agreed that Ms. Merdanovic was not meeting the Omni's performance expectations for her position. In light of Ms. Merdanovic's failure to improve her performance despite Mr. Rosalen's several attempts at verbal counseling, Ms. Borde-Christie, Mr. Fohr, and Mr. Rosalen agreed it was unlikely that Ms. Merdanovic's performance would improve in the future. They decided to terminate her employment. On October 9, 2006, Ms. Borde-Christie and Mr. Rosalen met with Ms. Merdanovic to tell her that her employment was terminated and to review the performance deficiencies that caused her termination. When Ms. Borde-Christie attempted to review the performance issues, Ms. Merdanovic became argumentative, stating that these issues were all lies and that her co-workers did not like her. Ms. Borde-Christie testified that Ms. Merdanovic said nothing about her national origin being an issue in the workplace. Ms. Merdanovic produced no credible evidence that her language or national origin played a role in the decision to terminate her employment. The Omni's management did not become aware of her allegations of harassment due to her national origin by her co-workers until Ms. Merdanovic filed her Employment Complaint of Discrimination, more than two months after her dismissal. The evidence produced at hearing demonstrated that the reasons for Petitioner's termination all related to her job performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Omni Hotel Resort did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 26th day of March, 2008, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2008.
The Issue Whether Respondent committed the unlawful employment practices alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact Background From 2006 through May 3, 2010, Petitioner was employed by Respondent as a classification officer at Glades C.I.1 At all times material to this proceeding, Robert Shannon served as the warden at Glades C.I. and was responsible for the daily operation of the facility. Petitioner's immediate superior, Everett McPherson, supervised Petitioner, several other classification officers, and three senior classification officers. Petitioner contends that during her term of employment with Respondent, one of the senior classification officers (Barry Carrigan) and another co-worker (Janet Smith) subjected her to a hostile work environment. In addition, Petitioner alleges that she was subjected to a variety of discrete acts of discrimination, which include: a search of her person in May 2009; a written reprimand in June 2009; a delayed transfer to the work camp facility located at Glades C.I.; a belated performance evaluation from her supervisor; delayed training opportunities; and a prohibition against bringing her bible into the facility. Beginning with Petitioner's hostile environment claim, each allegation is discussed separately below. Improper Comments / E-Mails On December 23, 2008, various Glades C.I. employees—— including Petitioner and Mr. Carrigan——attended a Christmas luncheon on the grounds of the facility. During the event, Mr. Carrigan remarked to the other attendees (but not to Petitioner in particular) that all African-Americans from the city of Pahokee look like "monkeys" and African "tribesmen." In addition, Mr. Carrigan opined, in essence, that women are inferior to men.2 Understandably offended, Petitioner reported the remarks the next day by filing an anonymous complaint with Warden Shannon. An investigation ensued, at the conclusion of which Warden Shannon suspended Mr. Carrigan for ten days.3 Subsequently, in May 2009, Petitioner discovered copies of two e-mails on the floor of her office, which were sent by a co-worker, Janet Smith (on Ms. Smith's work e-mail account), to another employee, Tricinia Washington. In the e-mails, Ms. Smith called Ms. Jackson "Blackee," and referred to Petitioner as a "monkey and idiot." Upset by the contents of the e-mails, Petitioner timely reported the contents of the e-mails to Warden Shannon. At the conclusion of an investigation into the matter, Ms. Smith was suspended for five days. Search of Petitioner On or about May 15, 2009, Mr. McPherson observed Petitioner exiting the prison facility carrying a bulky package that he thought was suspicious. In compliance with Respondent's entry and exit procedure, Mr. McPherson notified the prison control room with the expectation that a search of Petitioner's person would occur. A search of Petitioner was subsequently conducted, which yielded no contraband or other improper items.4 During the final hearing, Warden Shannon credibly testified that because of unique problems regarding contraband at Glades C.I., facility employees are subject to search upon exit from the facility. As such, Mr. McPherson committed no violation of policy by reporting what he observed Petitioner carrying as she left the facility. Reprimand On June 24, 2009, Warden Shannon disciplined Respondent by issuing a written reprimand. Warden Shannon credibly testified——and there is no evidence to the contrary—— that the reprimand was prompted by an incident in May 2009 in which Petitioner, in a loud and aggressive voice, called a co- worker "low down and dirty" in the presence of other employees. As a result of the written reprimand, Department of Corrections Procedure 605.011 rendered Petitioner ineligible for promotion for a six-month period. Accordingly, Petitioner could not apply for an assistant warden position during the summer of 2009 that she was interested in pursuing. However, Petitioner failed to prove that the reprimand was unwarranted or issued with the intent to deprive Petitioner of a promotional opportunity. In addition, there is no evidence that Warden Shannon issued the reprimand based upon a protected characteristic of Petitioner or in retaliation for five discrimination complaints Petitioner filed through Respondent's internal complaint procedure approximately one month before the reprimand.5 Late Performance Evaluation As indicated previously, Everett McPherson served as Petitioner's immediate supervisor during her term of employment. As a classification officer supervisor, Mr. McPherson was responsible for preparing annual performance evaluations of his subordinates, including Petitioner, by the end of each April. The evidence is undisputed that Mr. McPherson failed to timely complete Petitioner's evaluation, a copy of which was not provided to her until June 2009. While Mr. McPherson attempted during his final hearing testimony to attribute the delay to Petitioner, he was unable to recall on cross- examination if he had even completed a draft of Petitioner's evaluation by April 30, 2009. Accordingly, it is determined Mr. McPherson was responsible, at least in part, for the late completion of Petitioner's evaluation.6 Although Petitioner asserts that the belated performance evaluation deprived her of the opportunity to apply for an assistant warden position, the evidence refutes this contention. First, as discussed above, Petitioner's June 24, 2009, reprimand rendered her ineligible for promotion for six months. Further, even if Petitioner's reprimand did not temporarily disqualify her from seeking a promotion, Warden Shannon credibly testified that pursuant to Department of Corrections Procedure 605.011, Petitioner could have timely submitted a promotional packet once her evaluation was completed. Training Opportunities During the final hearing, Petitioner testified that she was unable to obtain re-training to conduct criminal background checks because Mr. McPherson refused to provide her with a computer "code" necessary to complete an on-line course. Petitioner further testified that she filed a grievance regarding the matter that resulted in the training being conducted within one month. Although the undersigned credits Petitioner's testimony as to particular claim, she adduced no evidence concerning when this event occurred, nor did she prove that the delay adversely affected her ability to complete her duties or impeded her ability to seek promotion. In addition, Petitioner failed to demonstrate that Mr. McPherson was motivated by any unlawful animus. Transfer to Work Camp At some point during June 2008 or earlier, Petitioner requested a lateral transfer from the main unit at Glades C.I. to the facility's work camp. Petitioner was ultimately transferred to the work camp shortly before her termination in May 2009. Although Petitioner complains that she was not transferred to the work camp at an earlier date because of her gender, she adduced no evidence to support such an allegation. Further, Petitioner made no showing that the transfer to the work camp resulted in increased pay, benefits, or materially different responsibilities. Allegations of Religious Discrimination During all relevant times to this proceeding, Department of Corrections Procedure 602.016(4)(j)17 prohibited prison employees from bringing "recreational reading material (non-work related) such as books, magazines, newspapers, etc" into secure areas of corrections facilities. There is no dispute that "recreational reading material" encompasses religious texts and that the policy therefore barred Petitioner from brining her Gideon Bible into the facility. However, Petitioner has wholly failed to demonstrate that the policy is improper on its face or was applied differently to any other prison employee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief. DONE AND ENTERED this 22nd day of July, 2011, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 2011.
The Issue Whether Petitioner was wrongfully terminated from her position as a payroll clerk with Respondent because of her race, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Prior to November 1994, Petitioner was employed by Markings and Equipment Corporation, first as a receptionist, later as a payroll clerk for several years. She had a good working relationship with management and staff. In November 1994, Edward T. Quinn and two other investors purchased the assets of Markings and Equipment Co. and established a new corporation named Mill-it Striping, Inc., a Florida corporation. On November 7, 1994, Mill-It Striping began operations. Edward T. Quinn was named Vice-President and Chief Operating Officer. Petitioner and one other person were retained as office staff. Other employees of the former owner were retained as field workers in their same positions. Petitioner and the other employees were retained on a 90-day probationary period. All employees were required to complete application forms for the new company. The organization of the company was revamped and operating policies were changed. Petitioner and Quinn became embroiled in disputes over policy and procedures on a nearly daily basis. Quinn's management style was gruff and unprofessional. Foul language was directed toward Petitioner's work by Quinn on a regular basis. There was insufficient evidence to prove that Quinn's derogatory remarks of a social nature were directed toward Petitioner. On December 5, 1994, Petitioner was terminated from her position as a payroll clerk. Quinn alleged that Petitioner was terminated because of her poor work performance and reporting to work late on more than one occasion while on probation. Petitioner, who is an African-American female, was replaced in her position by a Caucasian female. Respondent's company presently has been administratively dissolved, as of September 24, 1999. There is no evidence that the corporation is active, is a subsidiary to another company, or that it has any remaining assets.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief with prejudice. DONE AND ENTERED this 29th day of December, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2000. COPIES FURNISHED: Azizi M. Coleman, Acting Agency Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149 Edward T. Quinn as former Vice President Mill-It Stripping, Inc. 107 Shore Drive Longwood, Florida 32779 Valerie A. Roberts Post Office Box 543 Maitland, Florida 32751 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on December 27, 2005.
Findings Of Fact Petitioner is an African-American female who at all times material to this case was employed with Respondent as a production worker. Respondent, Hamilton Products, Inc., manufactures various animal related products such as horse tack and pet collars and is an employer within the meaning of the Florida Civil Rights Act. Allegations of Race Discrimination Petitioner's Employment Complaint of Discrimination alleged discrimination on the basis of race and retaliation and reads in pertinent part: I believe that I have been discriminated against based on race, Black, which has resulted in discipline, unfair terms and conditions, and denial of promotion. Since 2003, I have noticed disparate treatment between White and Black employees. One example of this is that Black employees are rarely if ever promoted to management positions. Another example of this is that a Black coworker of mine, Deloise, would often harass me and when I complained to my supervisor Mrs. Robinson, she took the matter to Mrs. Lake. Mrs. Lake merely asked the woman to not do that again. This harassment continued and I repeatedly complained about it so that finally, I was moved to a different location. A similarly situated White female, Elaine, experienced similar treatment from Deloise but when she complained Deloise was stopped from repeating the behavior almost immediately. I was very upset about this obvious disparity that I contacted Mrs. Benfel and explained to her what was transpiring. She asked me to gather together my complaints and those of others which I did and submitted it to her in a letter. Almost immediately after I began to receive retaliation for my complaint. I was disciplined, verbally harassed and moved away from the other employees. Martha Robinson is a supervisor employed by Respondent for over 16 years. She was Petitioner's direct supervisor for some of the time Petitioner worked for Respondent. Ms. Robinson is a white female. A coworker, Delores,1/ who sat near Petitioner would tap her foot on a wooden box while working. Petitioner found this annoying and complained to Ms. Robinson. Ms. Robinson asked Delores to stop tapping her foot and had fleece put on the box. However, Delores continued to tap her foot. After three or four employees complained about Delores' foot tapping, Ms. Robinson took the box away from Delores and put it in Ms. Lake's office. Karen Benfield is the office manager for Respondent, where she has been employed for 19 years. Petitioner went to Ms. Benfield's office to complain about working conditions. Ms. Benfield described the complaints made by Petitioner as vague and broad-based, consisting of general assertions that employees were unhappy at work. Petitioner's complaints to Ms. Benfield did not include any allegation of racial discrimination about her or anyone else. Ms. Benfield asked Petitioner for specifics, to put her complaints on paper and she would make sure management saw it. She did not ask Petitioner to solicit comments from other employees and told Petitioner she could only speak for herself. Petitioner collected written complaints from her co- workers and delivered them to Ms. Benfield. Petitioner received a Warning Notice dated October 26, 2004, for disruptive influence on the workforce. It read as follows: The purpose of this warning is to make sure that you understand the structure of Hamilton Products and the parameters of acceptable behavior at work. Lately, you have brought a number of suggestions and grievances to the management of Hamilton Products on behalf of yourself and others. There is no single employee representative to management at Hamilton Products. You do not and may not speak on behalf of other employees. Every employee at Hamilton Products, including yourself, enjoys the right to share ideas, suggestions or grievances with management. Such communication is encouraged as long as it is made properly. There is a clear chain of command at Hamilton Products, and you must follow that chain of command when communicating with management. You must speak to your immediate supervisor or place a suggestion in the box provided for suggestions at the north end of the nylon department. It is not acceptable to go around the chain of command to a higher supervisor, as this disrupts the operations of Hamilton Products. In the future, you must follow the chain of command or use the suggestion box, and speak only for yourself. Failure to follow the procedure outlined herein will result in further disciplinary actions up to and including discharge. After the hurricanes of 2004, Petitioner's entire department was reprimanded by the plant manager for missing work. This was upsetting to Petitioner because Ms. Robinson had told these employees not to call in. She felt that Ms. Robinson should not have let him "talk trash" to the employees. There is no evidence that Petitioner or anyone else was singled out in any way by the plant manager regarding this incident. Petitioner believes that white employees were given opportunities for promotion and resulting raises. However, no employees on the production floor were promoted during the time Petitioner worked for Respondent. There is no competent evidence in the record to support Petitioner's claim that white employees received promotions and black employees did not. At some point, Petitioner was moved when the production department was reorganized. Petitioner was placed in the center of the plant, facing the rest of her department. She had no one on either side of her which resulted in her not being able to talk to coworkers while working.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Employment Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 9th day of February, 2007, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2007.
The Issue Does the Florida Commission on Human Relations have jurisdiction of this matter? Does the Division of Administrative Hearings have jurisdiction of this matter? Did Respondent discharge Petitioner for refusal to be tested for drugs or drug use?
Findings Of Fact Petitioner worked for Respondent for about 60-days prior to May 4, 2001, as a tractor-trailer driver. Respondent is in the logging business. On May 2, 2001, Petitioner injured his back while on the job. He did not report this to his supervisor who was operating equipment deep in the woods. Petitioner told a co-worker, who was moving between the supervisor's location and Petitioner's location, to tell the supervisor he had hurt himself. On the evening of May 2, 2001, Petitioner was in severe pain. He called his employer the morning of May 3, 2001, and reported that he could not come to work. The company's business manager, Charlotte Lanier, advised him not to go to the hospital emergency room and made an appointment at 1:30 p.m. that afternoon for him to see a Chiropractor, Dr. Hutchens, who had treated other employees. Petitioner agreed to see Dr. Hutchens. Charlotte Lanier called the insurance company and found out that Petitioner had to be referred by a medical doctor to see Dr. Hutchens and had to have a drug test. Petitioner saw the Chiropractor, Dr. Hutchens, and was X-rayed, and given message therapy. He was in contact with Mr. Tuten's office. Ms. Lanier had been getting drug tests done by Dr. Hutchens; however, she called the doctor and found out that he was not testing. Ms. Lanier then had to make an appointment with another doctor for the test. She called Dr. Hidalgo and arranged for Petitioner to go there; but that doctor's office was getting ready to close early on Friday afternoon. Ms. Lanier then called Dr. Hutchens office again for Petitioner, but she did not connect with him. Petitioner finally got word from Ms. Lanier to go to Dr. Hildago's office for a drug test. However, when he got there, he was told he needed a referral from the office of the medical doctor, Dr. Mohammed. Petitioner went to Dr. Mohammed's office for the referral, but when he got there, Dr. Mohammed's office would not write a referral without an examination. By the time Petitioner had finished with Dr. Mohammed's examination, Dr. Hidalgo's office was closed. At this point, Petitioner went to his employer's office to pick up his pay check. What happened there is subject to controversy and conflicting testimony. Petitioner testified that when he got to the office of the employer company, Mr. Tuten and several of his friends were standing in the workshop/garage. Petitioner told Mr. Tuten that he was unable to see the last doctor because of Dr. Mohammed's insistence that he be examined prior to writing a referral. Mr. Tuten and others testified that Petitioner came in and was very agitated. Petitioner told Mr. Tuten that because of the pain he had had the previous night, he had taken drugs belonging to a friend and smoked a marijuana cigarette. Mr. Tuten fired Petitioner for violating the company's drug policy.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that if the Commission determines the Division does have jurisdiction, or that, for reasons of judicial economy it wishes to adopt the finding and conclusions herein as its own, the Commission enter its order denying relief. DONE AND ENTERED this 24th day of October, 2002, 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 24th day of October, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 H. B. Tuten H. B. Tuten Logging, Inc. 3870 US Highway 90, South Perry, Florida 32348 Michael D. Metz 2946 Dorman Road Perry, Florida 32348 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was discriminated against based on his race or in retaliation for participation in a protected activity in violation of Chapters 760.10(1)(a) and (7), Florida Statutes.
Findings Of Fact Petitioner, Charles Rogers, is a Caucasian male. At all times relevant to this Petition, Petitioner was employed by the Florida Department of Corrections as a correctional probation officer. He was supervised by Susan Bissett-Dotson, a Caucasian female. In late August, Petitioner had a person he supervised come into his office to discuss pending warrants for the person's arrest. When advised of these warrants, the probationer ran, causing Petitioner to have to pursue him through the office. On September 6, 2001, as a result of the foregoing incident, Petitioner received a written reprimand for violation of office policies and improper use of force. Petitioner failed to follow a policy requiring notice to others in the office when an offender might be arrested in the office. Adam Thomas, the circuit administrator, reviewed the use of force and determined Petitioner had used force appropriately. Nevertheless, the reprimand from Susan Bissett-Dotson contained reference to improper use of force in addition to failure to follow office procedures. Petitioner filed an internal grievance contesting that portion of the reprimand referencing improper use of force. His grievance was heard and the reprimand was reduced to a record of counseling, deleting any reference to an improper use of force. Petitioner's pay, benefits, ability to be promoted, as well as all other aspects of his employment were not affected either by the original reprimand or the subsequent record of counseling. Petitioner's caseload was reassigned four times within a 14-month period. These reassignments occurred between August 29, 2000, and October 2, 2001. Only one of them took place after his grievance. The reassignments did not involve a physical move to a different office; rather, Petitioner received a new set of offenders to supervise whose files were in various stages of development. The reassignments did not involve any material changes in his duties or responsibilities. There was no amount of greater or less prestige associated with any of the caseloads he received. The reassignments did require him to become familiar with a new area and a new group of persons. Petitioner was required to do extensive work to re-develop these files, which task was onerous. The decision to reassign Petitioner's caseloads was taken in relation to the reassignment of other personnel based upon several factors, including but not limited to: assignments from the judiciary; the geographic location of the various officers vis-à-vis supervised offenders; the officers' expressed willingness to accept a new caseload; the officers' qualifications to handle specialized caseloads; and the equitable distribution of the cases. One of the reassignments was caused when Petitioner was out for more than two weeks, which requires a mandatory reassignment of cases. The desires of Petitioner were not considered, although Ms. Bissett-Dotson gave full consideration to the wants and desires of the others who were moved. Petitioner alleges that he was yelled at in a meeting for having an overdue assignment; he produced an e-mail berating him for a late case; and records were introduced that showed the case was not overdue. Records were introduced about the redistribution of another officer's caseload. Of the 31 cases reassigned, 20 were assigned to Petitioner. This occurred on November 14, 2001. Petitioner complained that he was not allowed to work before 8:00 a.m. Ms. Bissett-Dotson was questioned as to whether she allowed Petitioner to work prior to 8:00 a.m. She stated that she had denied his request to work before 8:00 a.m. because 8:00 a.m. to 5:00 p.m. was the standard work day for the office, and it was necessary to have coverage during those hours. Because of various requirements, such as working during court, some officers had to be off during normal hours. Other officers had to be out of the office more than others. All of this affected when and whether one could deviate from standard office hours. On three occasions, Petitioner's firearms locker was accidentally used by other officers. On at least one of these occasions, a camera was locked in the locker along with Petitioner's lock. Petitioner was not subject to any discipline as a result of these incidents and Susan Bissett-Dotson was approached by other probation officers on each of the occasions and informed that each had been a mistake. Ms. Bissett-Dotson was satisfied with these explanations. While only one of the reassignments took place after the grievance, clearly Ms. Susan Bissett-Dotson was not fair and equitable in her treatment of Petitioner.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order indicating clearly that exercise of career service and other employment rights guaranteed by statute are subject to Section 760.10, Florida Statutes, protection, and that the Petition herein is dismissed not because it was not proved, but because it was not properly pled. DONE AND ENTERED this 15th day of November, 2002, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 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 15th day of November, 2002. Charles Rogers Post Office Box 331 Worthington Springs, Florida 32597 Cecil Howard, 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 The issue is whether Respondent engaged in an unlawful employment practice by terminating Petitioner due to her pregnancy.
Findings Of Fact Petitioner, Teresa Mercado, is a female, who was employed by Respondent from March 31, 2003, until April 20, 2004, when she was terminated. Respondent is engaged in the retail sales of second- hand merchandise and operates a retail store (No. 1095) located at 8901 West Colonial Drive in Orlando, Florida. Respondent first employed Petitioner as a "production floater." As a production floater, Petitioner "floated" between the sorting and pricing positions. She later became a "pricer." As a production floater and pricer, Petitioner reported directly to a production supervisor, Celia Roe, who, in turn, reported to the store manager, Hernandez-Lilly. As store manager, Hernandez-Lilly was responsible for, among other things, personnel matters, such as discipline and conducting performance evaluations. In her capacity as a women's clothing pricer, Petitioner was required to price women's clothing and place it on the sales floor. Petitioner was required to meet a quota of 800 pieces per day. Over the course of her employment, Petitioner's job performance frequently did not meet Respondent's expectations. Respondent's policy is to discuss performance issues with employees and afford them the opportunity to correct the deficiencies. This is ordinarily done through either performance logs, verbal corrective actions, or written corrective actions. Respondent was given a series of documents over a six-month period prior to her termination of employment. In each instance, the situation was discussed directly with Petitioner, and she was physically handed the documentation. Moreover, Petitioner signed each performance and corrective action, which detailed her deficiency. The disciplinary actions were as follows: On October 6, 2003, Petitioner was given a verbal corrective action relating to attendance. On January 28, 2004, Petitioner was given a performance log relating to her leaving merchandise in the back area. On February 20, 2004, Petitioner was given a performance log relating to not meeting her quota. The performance log noted that Petitioner's quota had averaged only 525 pieces and that "any further occurrence will result in further documentation." On March 16, 2004, Petitioner was given another performance log, this time relating to attendance issues. On March 16, 2005, Petitioner was given a verbal corrective action for not meeting her quotas on a daily basis. The document stated that Petitioner must consistently "meet her quota and that any further occurrences with this issue will result in additional disciplinary action, up to and including termination." Petitioner admitted that she was aware at this point in time that her not meeting quota was a problem, that it was getting more serious, and that if it continued, she might be terminated. On March 29, 2004, Petitioner received a written corrective action dated March 22, 2004, relating to her failure to meet her quota. The written corrective action stated that Petitioner's "quota is a minimum requirement that is to be met daily" and that "any further occurrences with this issue will result in further disciplinary action up to and including termination." On April 5, 2004, after Petitioner continually failed to meet her quotas on a daily basis, she was given a final corrective action. The final corrective action again stated that if Petitioner did not meet her daily quotas, she would be subject to additional disciplinary action, up to and including termination of employment. Over the next several weeks, Petitioner was again unable to meet her quotas on a consistent basis. Her employment was, therefore, terminated on April 20, 2004. On or about April 9, 2004, prior to Petitioner's termination, Petitioner approached Hernandez-Lilly. Because Petitioner had just recently received her final written corrective action from Respondent and was concerned about being terminated, she asked Hernandez-Lilly if she was going to be terminated. Hernandez-Lilly did not answer that question yes or no, but stated that "we need to see some form of improvement" in Petitioner's "piece count." Hernandez-Lilly then suggested to Petitioner that she consider moving to a sales clerk position, which did not require meeting quotas. However, when Hernandez- Lilly reminded Petitioner that by moving to that position, she would have to be available to work nights and weekends, Petitioner stated that she was not interested. When the conversation, described in paragraph 8, took place, there was, in fact, an opening for a sales clerk available to which Respondent was willing to move Petitioner. However, given that Petitioner expressly indicated that she was not interested in such a position, Hernandez-Lilly did not seek to transfer Petitioner to a sales clerk position. Furthermore, at no time prior to her termination did Petitioner express any interest in such a transfer. In January or February 2004, prior to her termination, Petitioner had been offered another opportunity to move to an opening in the shoe department, but she did not indicate any interest in that position. Specifically, there was an opening in the shoe department which was announced to all production employees, including Petitioner, at a group meeting. Employees were told that if they were interested in a transfer, they needed to put it in writing and give it to Roe. Fitzpatrick submitted a written document indicating an interest in the position. Petitioner submitted nothing in writing. While this position did have a quota, it was not as stringent as that for the pricer position. Other employees who have experienced problems with meeting their quotas, in the positions that imposed such quotas, have been offered positions in other areas. Specifically, Fitzpatrick was having trouble meeting her quotas and was offered a position as a sales clerk. Unlike Petitioner, however, Fitzpatrick was willing to be available to work nights and weekends. Had Petitioner been willing to work these hours, she likewise would have been offered a sales clerk position. At the time Petitioner was terminated, Hernandez-Lilly was aware that Petitioner was pregnant. Hernandez-Lilly first learned of Petitioner's pregnancy on or about April 16, 2004, when Petitioner made an announcement at work that she was pregnant. Also, on April 20, 2004, the same day she was terminated, Petitioner took a copy of her sonogram picture and showed it to everybody in the workplace. At the time Petitioner first made the announcement that she was pregnant, she had been already provided a "final written corrective action" for performance-related matters and told that if she did not consistently make her quota, she would be subject to termination of employment. Since the issuance of that corrective action, Petitioner had not consistently met her quota and was, therefore, subject to termination. Despite knowing that Petitioner was pregnant at the time of her termination, Hernandez-Lilly testified that Petitioner's pregnancy had nothing to do with her discharge. In the year 2000, while Hernandez-Lilly was working for Respondent as a production supervisor, she became pregnant. Respondent permitted Hernandez-Lilly to take paid time off to deliver and care for her child and then returned to her former position. Roe became pregnant in 2000 while employed by Respondent. Like Hernandez-Lilly, Roe was permitted to take paid time off to deliver and care for her child and was returned to her former position. Respondent's employee, Lashana Bolden, became pregnant on two separate occasions while working for Respondent. She was a pricer who reported to Roe and Hernandez-Lilly. On both occasions, she was permitted to take paid time off to deliver and care for her children and was returned to her former position. Respondent's employee, Jessie Martinez, became pregnant while working for Respondent. She was promoted to a production supervisor by Hernandez-Lilly while she was pregnant. She was then permitted to take paid time off to deliver and care for her child and was returned to her former position. Respondent's employee, Ashley Ball, became pregnant while working for Respondent and while under the supervision of Hernandez-Lilly. She was permitted to take paid time off to deliver and care for her child and was returned to her former position. Respondent's employee, Shanika Gatewood, became pregnant while working for Respondent and while under the supervision of Hernandez-Lilly. She was permitted to take a leave of absence for her pregnancy, and was later returned to her previous position.1/
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 31st day of March, 2006, 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 31st day of March, 2006.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on April 22, 2009.
Findings Of Fact Petitioner is an African-American male who was employed by Respondent from August 2008 until his termination on or about January 9, 2009. Respondent, Arena Sports Café (Arena), is an employer within the meaning of the Florida Civil Rights Act. Arena is a restaurant/night club which offers the viewing of televised sporting events, and is generally known as a sports bar. Arena is adjacent to The Coliseum, another establishment with the same owners, Trisha Lawrence and Randy Berner. The owners are Caucasian. The Coliseum is an entertainment venue with live and recorded music, dancing, and stage acts. The Coliseum does not serve food, and does not have a kitchen. When hired in August 2008, Petitioner worked as a prep cook as part of the kitchen staff. He performed various duties including preparation of meals in the kitchen as well as preparing food for Respondent’s large salad bar. Petitioner holds a Food Handling Certificate and a Safe Serve Certificate, which he attained through a local college. Petitioner was paid $12.00 per hour, and generally worked a 40-hour work week. At the time Petitioner was hired, the Arena was brand new and very popular. When the Arena opened in August 2008, it featured lunch and dinner seven days per week. Weekends were particularly busy because college and pro football games were televised in the fall. However, the Arena saw a drop in demand for weekday lunches. During the fall of 2008, Anthony Cyr, a Caucasian, was employed by Arena as its general manager. Petitioner was already employed by Respondent when Mr. Cyr began employment there. According to Petitioner, Mr. Cyr used the word “nigger” (the "N" word) in the context of telling a joke on three occasions in October and November 2008. Mr. Cyr used this word in the presence of the kitchen staff, including Petitioner. Petitioner informed Mr. Cyr that this was offensive and objected. Mr. Cyr did not use the "N" word other than these three occasions, and did not use it again after Petitioner objected. Petitioner did not report this incident to anyone, including the owners of Arena. As one of the owners of Arena, Ms. Lawrence would sometimes eat meals at Arena. At some point in January 2009, she voiced her displeasure to Mr. Cyr as to meals which she believed to have been prepared by Petitioner. She was never made aware of Petitioner’s allegations regarding the use of racial slurs by Mr. Cyr. According to Ms. Lawrence, she instructed Mr. Cyr to terminate Petitioner from employment because of his cooking abilities. Mr. Cyr informed Petitioner that his employment was terminated, and informed him that it was due to his job performance. Mr. Cyr also informed Petitioner that the decision to terminate Petitioner was Ms. Lawrence’s, not his. Mr. Cyr’s testimony regarding using the “N” word contradicts Petitioner’s testimony, and is somewhat inconsistent with Ms. Lawrence’s testimony regarding the reason Petitioner was fired. That is, Mr. Cyr denies using the “N” word in front of Petitioner. As for the reason he fired Petitioner, Mr. Cyr testified that it was due to a reduction in business following football season. There is no dispute, however, that Ms. Lawrence was the decisionmaker regarding the decision to fire Petitioner. Regarding the conflicting testimony as to whether Mr. Cyr used the “N” word, the undersigned finds Petitioner’s testimony in this regard to be credible and more persuasive. That is, the undersigned finds that Mr. Cyr did use the “N” word in front of Petitioner in the workplace. As for the reason Petitioner was fired, Ms. Lawrence did acknowledge that business slowed down at Arena around the time she instructed Mr. Cyr to fire Petitioner, and that the salad bar was phased out the month after Petitioner was terminated. However, she insists that she instructed Mr. Cyr to fire Petitioner because of the quality of his cooking. In any event, there does not appear to be a dispute that Mr. Cyr told Petitioner that he was being fired due to job performance issues. At some time after Petitioner was terminated, Mr. Cyr was terminated from Arena because, in Ms. Lawrence’s words, he “was not that great.” When Petitioner was terminated, two Caucasian cooks remained employed at Arena. While Petitioner was not actually replaced, his duties were assumed by the remaining Caucasian staff. Since his termination, Petitioner has worked for approximately three weeks at another eating establishment. Otherwise, he has been unsuccessful finding employment despite his efforts. Respondent employs minorities and non-minorities in positions with both Arena and The Coliseum. The undersigned has reviewed the evidence of record, oral and written, as to the number of minority and non-minority employees and as to whether Respondent hired primarily non-minority persons in the better paying positions. The evidence of record is insufficient to support a finding that Respondent engaged in racially motivated hiring practices. There is no evidence that Petitioner complained to Ms. Lawrence or the other owner of Arena that he was being discriminated against on the basis of race. When he complained to Mr. Cyr, the offending remarks stopped. There was no competent evidence presented that Ms. Lawrence knew of the racial slur used by Mr. Cyr in the workplace in Petitioner’s presence. There is no evidence that Ms. Lawrence’s decision to terminate Petitioner from employment was related in any way to any racial remark used by Mr. Cyr.
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 Petition for Relief. DONE AND ENTERED this 31st day of March, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2010. COPIES FURNISHED: David Glasser, Esquire Glasser & Handel 116 Orange Avenue Daytona Beach, Florida 32114 Steven deLaroche, Esquire 1005 South Ridgewood Avenue Daytona Beach, Florida 32114 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 Whether Petitioner, Craig Tapper, was subjected to a hostile work environment as a result of his race and national origin and retaliation, as alleged in his Petition for Relief.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner, an black male, born in Jamaica, was employed by Respondent as a department head/stock clerk and is classified as an "associate." He started his employment with Respondent in June 2006 and was "resigned"1 on December 5, 2007. Respondent owns and operates retail grocery stores in Florida. Respondent employs more than 15 people. Respondent provided an Associate Handbook ("Handbook") to Petitioner when he was employed. The Handbook contains a "Policy Statement on Harassment, Including Sexual Harassment" ("Harassment Policy") and information regarding a Formal Complaint Procedure. The pertinent portion of the policy states: Policy Statement on Harassment, Including Sexual Harassment: We at Publix Super Markets share the belief that each of us should be able to work in an environment free of discrimination and any form of harassment, including harassment based on race, color . . . national origin. . . Harassment based on any of these factors will not be tolerated. . . [I]n order for the Company to deal with the problem [of discrimination/harassment], offensive conduct or situations must be reported to the correct person. If you work in a store and want Publix to address your concern, you must report it to your Store Manager, District Manager, or Associate Relations Specialist. . . Formal complaints may also be lodged with the Manager of Equal Employment Opportunity (MEEO) through the Formal Complaint Procedure. If you choose to use these complaint resolution procedures, you'll be treated courteously. Your complaint will be handled as swiftly and as confidentially as practical in light of the need to remedy the problem. Registering the complaint will in no way be used against you, nor will it have adverse effect on your employment. . . . Furthermore, Publix' "Rules of Unacceptable Conduct" prohibit the use of derogatory racial slurs and profanity. The "Rules of Unacceptable Conduct" are posted in the break room and the training room. The Attendance and Punctuality Policy" states, "[a]ssociates who miss 2 entire shifts without calling will be terminated." Associates are required to personally call in and speak with a manager two hours before their scheduled shift if they plan to miss work. On January 29, 2007, Petitioner was scheduled to work, but did not call or show up. As a result, Petitioner was suspended for a week and received a written "Associate Counseling Statement" ("Counseling Statement"), which instructed that he "must call himself when he is not going to be here" and that he "must call in for all shift [sic] he can not fulfill." He was further warned that a failure to improve would result in his discharge. On February 19, 2007, Petitioner was counseled and suspended for one week for "his 6th absent [sic] this 6 month period." Despite this warning, on May 20, 2007, Petitioner was again a "no call-no show." Petitioner was issued a Counseling Statement for failing to call in and speak with a manager before missing his scheduled shift. Petitioner was warned again that he "must call in 2 hours prior to his shift, call in personally and speak to a manager." This Counseling Statement contains the following admonition: "The next occurrence of not following proper procedures will result in a one week suspension. The next occurrence of a no show/no call will result in termination." On August 28, 2007, Dennis Sacca, grocery manager, overheard Petitioner say, "I am tired of being treated like a nigger." Sacca later walked up to Kendall Brown, an African- American grocery clerk, and said, "Go tell the nigger that I sent him some help." Brown relayed the message to Petitioner. Petitioner reported the incident to Ron Brassel, a former store manager and who is African-American, and an investigation was immediately conducted. Brassel informed the district manager who also participated in the investigation. During the investigation, Petitioner wrote a statement for Brassel in which he stated "[a]s far as the incident [sic] myself and Dennis sat down and spoke about the statement he made [and] we both worked it out. I would like very much for this to go no further than it being documented, I don't want Dennis fired, transferred, demoted or any action being taken against him on my behalf. As I said we both worked it out, he made a mistake and he already said he was sorry for saying it; I forgave him and we [sic] back to business." (Emphasis in original). Despite Petitioner's written statement requesting that Sacca not be disciplined, on September 26, 2007, Dwayne Bryant, district manager, suspended Sacca for one week. Bryant also reviewed Publix' Harassment Policy with Sacca and issued Sacca a written Counseling Statement warning Sacca that the next violation of Publix' Harassment Policy would "result in further disciplinary action such as removal from management or termination . . ." Petitioner never heard Sacca use the word "nigger" again. Petitioner was also given a Counseling Statement for using the word "nigger." In the "Associate Comments" section of the Counseling Statement, which is where the associate has the opportunity to note their disagreement with the counseling, there is no statement denying that Petitioner used the word "nigger." Several employees, including other African-American associates, have heard Petitioner use the word "nigger" on various occasions. Rentia Dawsey was employed at the same store as an assistant customer service manager. Dawsey, who is African-American, heard Petitioner used the word "nigger" at the store frequently. She specifically remembered an incident where she asked an associate to check with the store manager before she marked anything down, and Petitioner said, "[w]hat, you don't trust the nigger?" Brown, who worked with Petitioner, heard Petitioner say in the back room, "nigger, what's up" or "nigger this." Ron Calkins, grocery manager and Petitioner's direct supervisor, remembers overhearing Petitioner in the cooler saying, "he was nothing but the store nigger." Calkins verbally counseled Petitioner warning him that he could not use that language as it may be offensive to customers who overhear him. Petitioner claims that after Sacca was suspended, Calkins and Bowles, another employee, began harassing him, because they were unhappy with what had happened to Sacca. Petitioner failed to utilize the established complaint procedures regarding this alleged harassment. No other employee confirms these allegations; in fact, they testified that they never heard Bowles or Calkins say anything derogatory toward Petitioner or behave any differently toward him after the incident with Sacca. Petitioner's allegation of the harassment by Calkins and Bowles is not deemed credible. There is no credible evidence of discrimination based on national origin. In October of 2007, Kris Kolczynski became the new store manager. On Friday, November 30, 2007, Petitioner was detained and taken to the Orange County Jail for matters unrelated to his employment. On the morning of December 2, 2007, Kolczynski was notified by another employee that Petitioner did not show up for work, because he was in jail. Later that day, a woman, apparently Petitioner's girlfriend, came to the store and informed Kolczynski that Petitioner would not be coming in. Petitioner failed to call in and was absent again for his scheduled shift on December 3, 2007. Accordingly, Kolczynski called Tammie Taylor in Human Resources that same day to explain that Petitioner had been a "no call-no show." Taylor is a regional retail associate relations specialist who provides employment advice to management employees. Taylor informed Kolczynski that the standard practice within is that if an employee does not come to work for three consecutive days, they are "resigned." Accordingly, Taylor advised Kolczynski that if Petitioner did not show for a third consecutive shift "to resign him" for job abandonment. Taylor advised Kolczynski to resign Petitioner, rather than terminate him so that Petitioner would be eligible for rehire at other Publix stores. Associates, who are terminated, are not eligible for rehire at Publix for a year. On December 4, 2007, Petitioner was scheduled to begin work at 7:00 a.m.; however, he did not call in until 11:00 a.m., four hours after his scheduled shift. This was a "no call-no show" according to Publix' policy, which requires associates to call in two hours before their scheduled shift. Because Petitioner was a "no call-no show" for three consecutive days, Kolczynski followed Taylor's recommendation and "resigned" Petitioner's employment. Petitioner claims that he attempted to call Publix twice from the jail, but the store would not accept collect calls. Contrary to Petitioner's allegations, there is no written or even unwritten policy prohibiting accepting collect calls. When Petitioner contacted Kolczynski, he was informed that his services were no longer needed at Publix and that he was considered "resigned" because he failed to call in and personally inform a manager that he would miss his scheduled shifts. Subsequently, Petitioner contacted Taylor. Taylor informed Petitioner again that he was "resigned" for failing to call in or show up for work for three consecutive days. Kolczynski received calls from about two or three Publix store managers regarding whether Petitioner was "rehirable." Kolczynski informed them that Petitioner was resigned for job abandonment for failing to show up to work for three consecutive days, but that he was eligible for rehire. Kolczynski did not mention anything about the Sacca incident, and he did not tell them not to hire Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 15th day of December, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2008.
