The Issue Whether Respondent, Eden Cabaret (“Respondent” or “Eden Cabaret”), is liable to Petitioner, Terry Doss (“Petitioner”), for employment discrimination in violation of the Florida Civil Rights Act of 1992, sections 760.01 through 760.11, Florida Statutes (2019).1 1 Except as otherwise noted, all references to the Florida Statutes herein, are to the 2019 version, which was in effect when the actions complained of in Petitioner’s Complaint occurred.
Findings Of Fact Petitioner is a black male who currently resides at 12 Adkinson Drive in Pensacola, Florida. Petitioner holds a certification in heating, ventilation, and air conditioning (“HVAC”) repair and maintenance. The evidence is unclear whether Petitioner is a licensed HVAC contractor. Respondent is an entertainment club in Pensacola, Florida, owned by Timothy McEvoy. The evidence is insufficient to establish how many employees are employed by Respondent. Mr. McEvoy came to know Petitioner through Mr. McEvoy’s girlfriend, Rachel Johnson, in June 2019. At that time, Petitioner had full-time employment, but needed rental housing and was available for extra part-time work. Mr. McEvoy owned a rental home at 7490 Rolling Hills Road in Pensacola and informed Petitioner that he could rent a room from him there for $150.00 per week. The rental home was partially occupied by Mr. McEvoy’s cousin, Kent Leyonmark, but another room was available in the home. Mr. McEvoy took Petitioner to the Rolling Hills property and showed him around. Mr. McEvoy introduced Petitioner to Mr. Leyonmark, suggesting that Petitioner may rent a room there. The rental arrangement at Rolling Hills did not work out, however, because, as Mr. McEvoy testified, Mr. Leyonmark is a racist and would not allow Petitioner to move into the house.2 Feeling obliged to Petitioner, Mr. McEvoy suggested Petitioner could rent a room at the five-bedroom home he and Ms. Johnson were then renting. Sometime in early June 2019, Petitioner moved into Mr. McEvoy’s rental home, occupying a bedroom with a private bath. No formal rental agreement, written or otherwise, was ever reached. Mr. McEvoy then hired Petitioner to do some HVAC work for him. Petitioner performed a number of jobs for Mr. McEvoy at Marcone Supply, a commercial business located in a building owned by Mr. McEvoy. Petitioner worked on the AC duct system, installed an air return, and completed an insulation job. Petitioner further found an airflow problem at the front of the store and repaired a restriction causing the problem at Marcone Supply. Over the next few weeks, Petitioner performed work for Mr. McEvoy at Eden Cabaret, as well as other rental properties owned by Mr. McEvoy, and at his beach house on Pensacola Beach. No formal employment agreement was reached between the two men. Typically, Petitioner sent a text to Mr. McEvoy informing him that Petitioner was finished with his regular job and asking if Mr. McEvoy needed him for any work. After Petitioner informed Mr. McEvoy that he had worked approximately 20 hours, Mr. McEvoy told Petitioner, “It would be best if you 2 Mr. McEvoy’s testimony is entirely hearsay, but is not being used to prove that Mr. Leyonmark is a racist, and no finding is made in that regard, but is limited to show that, for whatever reason, Petitioner did not take a room at the Rolling Hills property. keep a sheet with start and stop time and [a] brief description of what you worked on by day.” When Petitioner had worked 37 hours, he texted Mr. McEvoy, “Didn’t know when you was [sic] going to pay me the hrs. I work [sic].” He also stated, “I also old [sic] y’all some rent.” Later, Petitioner sent a text asking Mr. McEvoy, “Did u need money for rent[?]” The evidence does not support a finding that Mr. McEvoy responded to that text message. Mr. McEvoy never paid Petitioner for the hours he worked. Petitioner never paid Mr. McEvoy any rent. In addition to staying at Mr. McEvoy’s home rent-free, Petitioner had the use of a car owned by Mr. McEvoy. Petitioner used the car to get to and from work—both his first job and the second part-time work he did for Mr. McEvoy. Mr. McEvoy testified that he allowed Petitioner to use the car because the rental house was not near a public bus route. At Petitioner’s prior residence he took the bus to work. Petitioner purchased gas for Mr. McEvoy’s car. Petitioner also inquired about buying the car from Mr. McEvoy. But, Petitioner never paid anything to Mr. McEvoy for using the car. In early July, Mr. McEvoy informed Petitioner that the house they were all living in had been put on the market for sale by the owner. Mr. McEvoy and Ms. Johnson, who was pregnant at the time, planned to move before the baby was born. In July, Mr. McEvoy informed Petitioner, “[W]e have committed to be out of here by the end of this month so you should plan accordingly.” Petitioner lived with Mr. McEvoy and Ms. Johnson for four to six weeks. During that time period, Petitioner worked a total of 73.5 hours on repairs and maintenance at several properties owned by Mr. McEvoy, including Eden Cabaret. When Petitioner requested, via text message, to be paid for the hours worked, Mr. McEvoy asked Petitioner to call him to discuss the issue. Mr. McEvoy did not contest the number of hours Petitioner worked, but wanted to discuss “where we stand for the work you did vs. the housing and transportation we provided.” The two men never discussed the issue face-to-face, and never came to an agreement in a series of text messages either. When asked by the undersigned how Mr. McEvoy’s failure to pay him was related to his claim of discrimination, Petitioner explained that he was the only black man that worked for Mr. McEvoy and that Mr. McEvoy paid all his other employees. Petitioner did not introduce any evidence of particular individuals employed by Respondent, what type of work they performed, or their rate of pay. Mr. McEvoy claims Petitioner was never Respondent’s employee. Rather, Mr. McEvoy testified that he engaged Petitioner, as he does many workers, as an independent contractor to work on any number of properties he owns.
Recommendation Based upon the Findings of Fact and Conclusions of Law herein, the undersigned RECOMMENDS that the Commission issue a final order finding that Petitioner, Terry Doss, failed to prove that Respondent, Eden Cabaret was his employer, and dismiss Petition for Relief No. 2021-26984. protected class; (2) he was qualified for the position held: (3) he was subjected to an adverse employment action; and (4) other similarly-situated employees, who are not members of the protected group, were treated more favorably than Petitioner. See McDonnell-Douglas, 411 U.S. at 802. Petitioner met the first two elements: he is a member of a protected class; and is qualified to work in maintenance of HVAC systems. However, Petitioner is unable to prove the third element, that he suffered an adverse employment action. The evidence was persuasive, and is accepted, that Petitioner was compensated for the work he performed in the form of lodging and transportation, and not monetarily. Assuming, arguendo, Petitioner was subjected to an adverse employment action, he failed to prove the fourth element, that similarly-situated employees, who are not members of the protected class, were treated more favorably. For purposes of proving disparate treatment, a comparator must be similar to Petitioner in “all material respects.” See Lewis v. City of Union City, Georgia, 918 F.3d 1213, 1217 (11th Cir. 2019). Similarity among comparators is required for the comparisons to be meaningful. Petitioner testified generally that other white employees were paid by Mr. McEvoy for their work. However, he did not introduce any specific comparators who were similarly- situated. Petitioner did not introduce evidence of the treatment of any non-black workers who had the use of rooms at Mr. McEvoy’s rental home or use of Mr. McEvoy’s personal vehicle. Petitioner failed to prove discrimination in compensation based on his race. DONE AND ENTERED this 29th day of July, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S SUZANNE VAN WYK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Timothy McEvoy Eden Cabaret 4001 North Davis Highway Pensacola, Florida 32503 Stanley Gorsica, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Terry Lynn Doss 12 Adkinson Drive Pensacola, Florida 32506 Timothy McEvoy Post Office Box 32562 Gulf Breeze, Florida 32562
The Issue Whether Petitioner was terminated from her position with Respondent as a picker/stock keeper on or about September 26, 2001, on the basis of her race (African-American) and/or gender (female), in violation of Section 760.10(1)(a), Florida Statutes (2001).
Findings Of Fact Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by Respondent as a temporary employee to perform the job of picker/stock keeper at its Parts Distribution Center in Orlando, Florida, during the time period from September 12, 2001, to September 26, 2001, the date she was terminated. Petitioner worked a total of 14 days for Respondent. Petitioner is an African-American female, a member of a protected class. The Parts Distribution Center for Respondent in Orlando, Florida, is a facility that holds automotive parts that are then shipped to dealerships. All temporary employees at Respondent are at-will employees. Temporary employees are told during their orientation that they are at-will employees who can be terminated at any time, for any reason. Temporary employees at Respondent are only eligible to work 119 days. Most temporary employees are not offered full time permanent employment. There is no guarantee that a temporary employee will receive an offer to work as a permanent employee. Petitioner was hired to perform the job of picker/stock keeper. A picker/stock keeper takes parts off of shelves to be shipped to dealerships. Petitioner participated in an orientation, and Petitioner received the same training as every other temporary employee. Petitioner worked the night shift. Respondent maintains written Standards of Conduct to which all employees must adhere. The Standards of Conduct apply to both temporary and permanent employees. The Standards of Conduct were in effect in September 2001, when Petitioner worked as a temporary employee. All employees are given a copy of the Standards of Conduct when they are hired. Petitioner received a copy of the Standards of Conduct when she was hired, and the Standards of Conduct are posted throughout the plant. The Standards of Conduct provide that an employee's "[f]ailure or refusal to follow the instructions of supervision" is grounds for "disciplinary action up to and including discharge." The supervisors who worked at Respondent's Distribution Center during Petitioner's employment were Richard Alvarez ("Alvarez") (Hispanic male), Lenier Sweeting ("Sweeting") (Black male), and Joe Bromley (White male). Alvarez was temporary supervisor for the night shift from June 2001 until December 2001. Alvarez was Petitioner's direct supervisor. Sweeting was a supervisor in September 2001. Sweeting was chosen to become a supervisor by Hal McDougle, a Black male. Sweeting was the supervisor on the day shift when Petitioner worked at the Distribution Center. His shift ended at 3:30 p.m. but he stayed in the building to help with the transition to the night shift. Alvarez would normally walk Sweeting to the front door to discuss what had occurred during the day shift. On September 25, 2001, Sweeting was walking past the bathroom with Alvarez and heard two women talking and laughing in the bathroom. Alvarez recognized one of the voices to be that of Petitioner. Alvarez had heard rumors that Petitioner had been taking a lot of extended breaks and told Sweeting about the complaints he had been receiving. Alvarez received at least two complaints, and possibly four or five, from Petitioner's co- workers that she was taking extended breaks and not on the floor working. Alvarez wanted to wait and see how long Petitioner remained in the bathroom. Sweeting and Alvarez waited outside the bathroom until they saw Petitioner exit the bathroom with Maria Dejesus. Alvarez believes that he and Sweeting waited outside the bathroom for approximately ten to 15 minutes. Alvarez told Petitioner that she had been taking an extensive break and needed to go back to work. Sweeting witnessed Alvarez tell Petitioner to go back to work in a professional tone. Alvarez also told Petitioner that he had heard rumors that she was taking extended breaks. He told her that since he saw it first hand, he wanted to mention it to her and let her know it would not be tolerated. Petitioner asked Alvarez which bathroom she could use in a very sarcastic tone. Sweeting observed Petitioner ask this question. Alvarez told Petitioner that he did not care which bathroom she used, as long as she did not abuse the break period. Petitioner proceeded to ask Alvarez in a sarcastic tone which bathroom she could use several times throughout the night. Despite Petitioner's sarcastic tone, Alvarez answered her questions professionally. Alvarez never asked Petitioner how old she was, whether she was married or how many children she had. Sweeting asked Maria Dejesus to go back to work as well. Sweeting and Alvarez have told other employees to go back to work when they have observed employees taking extended breaks. They have spoken to employees of both genders and all racial groups. On September 26, 2001, Alvarez assigned Petitioner to the "fast rack" area. Petitioner had never previously worked in the fast rack area. Alvarez personally instructed Petitioner in how to perform the assignment. Alvarez told Petitioner to pick the parts and put them on a rack float. After Alvarez gave Petitioner her instructions, Petitioner began her assignment. Petitioner never asked Alvarez any questions about her assignment or expressed that she was having difficulty with the job. Wanda Carithers ("Carithers") saw Petitioner using the wrong equipment to complete her assignment. Petitioner was using a bin cart instead of a float to pick the items. Alvarez noticed that Petitioner's assignment was running late. Alvarez walked over to the fast rack area and asked Petitioner two questions. Alvarez asked Petitioner whether she was going to be able to pick the whole assignment using the bin cart that she was using. Petitioner did not respond to or acknowledge Alvarez. Alvarez then asked Petitioner if she was almost done with her assignment. Petitioner rolled her eyes and said, "Your first question, yes, second question, no." Alvarez was very uncomfortable with Petitioner's response and demeanor. Alvarez told Petitioner that perhaps they had gotten off on the wrong foot. Petitioner asked Alvarez something about her union rights. Alvarez saw Petitioner's co-worker, Carithers, who was a union representative, driving by. Alvarez asked Carithers to explain to Petitioner her union rights as a temporary employee. During this conversation, Alvarez tried repeatedly to talk to Petitioner and on each occasion, Petitioner cut Alvarez off and would not let him speak. When Alvarez realized that he was not making any progress with Petitioner, he asked her to go to the warehouse office so that they could talk to a senior supervisor, Al White ("White") (Black male). Alvarez hoped that they could work out their differences with White's help. Alvarez started to walk approximately ten steps. He turned back and realized that Petitioner was not moving towards the office. Alvarez walked back to Petitioner and asked her a second time to go to the office. Once again, Petitioner did not move. Alvarez told Petitioner, "This is your last chance; go to the warehouse office." Once again, Petitioner did not move. Alvarez, after asking Petitioner to go to the office three times with no response, told Petitioner that her services were no longer needed, that she should gather up her things, and that she was terminated. Alvarez terminated Petitioner for her failure to follow a direct order of her supervisor in violation of Respondent's Standards of Conduct No. 6. Petitioner refused to move even after she was terminated. Petitioner asked Alvarez to reconsider, and he said that he had made up his mind. Alvarez started to walk away. When he saw that Petitioner was still not moving, he told her that he could call law enforcement to escort Petitioner off the property. Alvarez, and ultimately Petitioner, walked to the office. White asked Petitioner if she knew why she was terminated. Petitioner never asked to have someone from the union with her in the office until after she was terminated. At that time, Alvarez and White complied with her request and paged Rodney Witt, a union official, to come to the office. Carithers observed Petitioner fail to follow Alvarez's instruction to go to the office. Carithers recalls that Petitioner told Alvarez that Petitioner did not have to listen to Alvarez. Amber McPherson heard Alvarez call Petitioner to the office several times. Petitioner did not respond to Alvarez's requests. Sweeting has never experienced discrimination from management while working for Respondent for over seven years. Sweeting has never heard Alvarez make any gender or race-related comments or slurs. Sweeting has never heard any management employee at Respondent make a gender or race related comment or slur. Alvarez did not consider Petitioner's gender or race when he made the decision to terminate Petitioner. In addition, Petitioner lied on her application to Respondent and failed to indicate that she had been terminated from a prior employment. Petitioner had been terminated from Walt Disney World Company for theft. If Respondent had known that Petitioner had lied on her application or had been terminated for theft from a prior employer, it would not have hired her. Had Respondent learned that she had lied on her application after she was hired, she would have been terminated. Petitioner had no idea why she thinks she was treated differently based upon her gender or race. She just had a "feeling" or a "hunch." Petitioner had no evidence or information that her termination was based on her gender or race. Petitioner had no idea why she was terminated. She did not believe that it was because she failed to follow a command. Petitioner had no idea whether her supervisor, Alvarez, considered her gender or race when he terminated her employment with Respondent. Petitioner bases her claims that Respondent discriminated against her on the fact that there is general racism and sexism in society. Petitioner checked the "sex" and "race" box on her FCHR Charge of Discrimination simply because she is female and African-American. Petitioner felt as though she was harassed but cannot articulate a reason for it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order which DENIES the Petition for Relief. DONE AND ENTERED this 8th day of April, 2003, 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 8th day of April, 2003. COPIES FURNISHED: Stephanie L. Adler, Esquire Susan K. McKenna, Esquire Jackson Lewis LLP 390 North Orange Avenue, Suite 1285 Orlando, Florida 32801 Dorothy J. McCrimmon 5361 Commander Drive Number 304 Orlando, Florida 32822 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was wrongfully terminated from her position as a custodial worker 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: Petitioner, an African-American female, was hired by Respondent in the fall of 1994, as a custodial worker and she continued in that position until October 17, 1995, when she was terminated. On or about October 12, 1995, Rollins College (Respondent) received two letters of complaint regarding Petitioner's conduct and work performance. One of these was from a group of students living in a dorm which Petitioner was assigned to clean. The other letter was from the parent of a student living in another dorm assigned to Petitioner. These letters were not the first complaints Respondent had received regarding Petitioner's work performance. After receiving the letters, Petitioner was placed on a three-day suspension by Tom Waters, Director of Respondent's Facilities Management Department. After investigating the complaints, Respondent, on October 17, 1995, terminated Petitioner's employment. Prior to the termination of her employment, Petitioner attended a training and safety meeting of custodial workers. During that meeting, Petitioner's immediate supervisor, Frank Pravdik placed his hand on Petitioner's uniform shirt and stated words to the effect that the shirt was "nasty." Pravdik was generally known to be a difficult person to work under. He was eventually terminated by Respondent because of his abrasive management style. Fredrick Wooden, called as Petitioner's witness, assisted with the management of the custodial workers prior to his retirement. He often disagreed with Pravdik's style of management. In the case of Petitioner, he did not believe that any disciplinary actions taken against her were unwarranted, and Respondent had legitimate grounds to terminate her employment. Wooden further believed that Pravdik treated all subordinate employees equally, if not with respect. On November 20, 1995, Petitioner filed a Charge of Discrimination with the Orlando Human Relations Department. The Charge of Discrimination indicated that Petitioner believed that Respondent discriminated against her because of her race. Petitioner testified that the Charge of Discrimination was incorrect. Petitioner did not actually believe that the termination of her employment was related to her race. However, she permitted a representative of the Orlando Human Relations Commission to complete for her the Charge of Discrimination. The Charge does not allege a claim of retaliation nor does it allege that Petitioner ever complained about Pravdik's behavior to Respondent. While Petitioner testified that she first visited the Orlando Human Relations Department prior to the date of her termination, the Charge is signed, dated and notarized on November 20, 1995, three days after the effective date of her termination. After the Commission issued a No Cause Determination in this matter, Petitioner filed a Petition for Relief. The Petition for Relief alleges that Respondent terminated her employment in retaliation for complaining about Pravdik. Petitioner again testified that the Petition for Relief was also incorrect stating her case was not about whether Respondent had a right to terminate her employment, but instead was about whether Pravdik violated her civil rights for impermissibly touching her person and calling her shirt "nasty."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief with prejudice. DONE AND ENTERED this 26th 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 26th day of December, 2000. COPIES FURNISHED: Gloria J. Holloway 397 Chaucer Lane, South Lake Mary, Florida 32746 Sharon Moultry, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149 Mark Van Valkenburgh, Esquire Winderweedle, Haines, Ward & Woodham 250 Park Avenue South, 5th Floor Winter Park, Florida 32789 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issues in this case are 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 be granted.
Findings Of Fact Petitioner is an African-American female. Petitioner began working for Respondent as a part-time Self-Checkout Host on February 1, 2017. Upon hiring, her initial rate of pay was $9.00 per hour. After three months of employment, Petitioner’s pay was increased to $10.00 per hour in May of 2017. Subsequently, Petitioner received pay increases raising her hourly rate to $11.00, and then $11.50. In April of 2018, Petitioner was promoted to the full-time position of Customer Service Manager (''CSM''). Along with the promotion, Petitioner also received a raise, bringing her rate of pay to $13.65 per hour. In April of 2019, Respondent gave Petitioner another raise, resulting in hourly pay of $13.90. Respondent maintained a Statement of Ethics, of which Petitioner was aware. The Statement of Ethics explained that Respondent’s overall operations were guided by four core Beliefs, which were: Respect for the Individual; Service to our Customers; Striving for Excellence; and Act with Integrity. Based on what she heard from her coworkers, Petitioner believed that she was entitled to a market-adjustment pay increase in April of 2019. She sought information about the pay increase from her store manager and others. Petitioner reported her belief that she was entitled to a pay increase, which she had not received, to Respondent’s Associate Relations Department (''Department''). After what was described as a thorough review of Petitioner’s concerns, the Department closed the matter. Petitioner testified that a white male named Chance was making more money than she, based on conversations between Petitioner and Chance. Chance worked as a Money Manager Associate, a position that Petitioner never held during her employment with Respondent. Ms. Durocher testified that Chance was not paid more than Petitioner. In 2019, there were ten individuals who held the position of CSM at the store where Petitioner worked. In addition to Petitioner, those who worked in CSM positions included multiple African-American females and one African-American male. Petitioner did not present any evidence to suggest or establish that any male, or non-African-American, employee was paid more than she was for performing similar work. On October 26, 2019, Petitioner discussed the problem she perceived with her rate of pay with Ms. Durocher. During their conversation, Petitioner raised her voice and the interaction escalated to the point that another employee went to enlist the assistance of the Store Manager. When the Store Manager arrived, he joined the conversation with Petitioner and Ms. Durocher. Ms. Durocher expressed to Petitioner that she believed that Petitioner was being paid commensurate with her skills and duties; and that her rate of pay had been investigated and was determined to be appropriate. Throughout the conversation, Ms. Durocher perceived Respondent’s conduct to be disrespectful. Ms. Durocher and the Store Manager repeatedly encouraged Petitioner to calm down, but their attempts were unsuccessful. On the same day, Petitioner’s employment was terminated by Respondent for violating the core Belief of Respect for the Individual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of February, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk S BRITTANY O. FINKBEINER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2021. Jamie Rotteveel, Esquire Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Jeruscha Toussaint 5835 Northwest Lomb Court Port St. Lucie, Florida 34986 Allison Wiggins, Esquire Littler Mendelson, P.C. 111 North Orange Avenue, Suite 1750 Orlando, Florida 32801 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Littler Mendelson, P.C. 2301 McGee Street, 8th Floor Kansas City, Missouri 64108 Kimberly Doud, Esquire Littler Mendelson, P.C. 111 North Orange Avenue, Suite 1750 Orlando, Florida 32801 Nancy A. Johnson, Esquire Littler Mendelson, P.C. 111 North Orange Avenue, Suite 1750 Orlando, Florida 32801
The Issue The issue in this case is whether, on the basis of Petitioner's age, Respondent (a staffing agency) unlawfully discriminated against Petitioner by having him terminated from his position with Respondent's client, in violation of the Florida Civil Rights Act.
Findings Of Fact Respondent inSync Staffing, Inc. ("inSync"), is a company that recruits for, and supplies employees to, its clients, including, as relevant here, NBTY, Inc. ("NBTY"). inSync is an "employment agency" as that term is used in the Florida Civil Rights Act of 1992 ("FCRA"). See ¶ 13, infra. inSync does not meet face-to-face with most of the candidates it places with clients. On or around August 19, 2015, a recruiter at inSync forwarded the résumé of Petitioner Adalberto Lopez ("Lopez"), then 75 years old, to NBTY in hopes that NBTY might hire Lopez to fill the position of "QA Floor Inspector – Shift 1," a job that paid $13.50 per hour. About a week later, NBTY interviewed Lopez, and, on September 2, 2015, inSync informed Lopez that NBTY was offering him the job. Lopez accepted the offer. NBTY, not inSync, made the decision to hire Lopez. At all times, inSync acted essentially as a go-between, introducing Lopez to NBTY and helping him apply for the job, informing Lopez of NBTY's training and drug test requirements for new employees, and providing him with documents that NBTY wanted completed and returned in the ordinary course of new-hire onboarding. One of the documents that Lopez was required to sign and submit was the Employment Eligibility Verification (Form I-9), which is used by the U.S. Department of Homeland Security, administrator of the federal E-Verify program, to determine whether an employee is authorized to work in the United States. The E-Verify program provided NBTY with a result of Tentative Nonconfirmation ("TNC"), meaning that there was, at a minimum, some discrepancy between the information provided in Lopez's Form I-9 and that available in other public records. A TNC does not necessarily disqualify an employee from continuing to work, but it does need to be resolved to avoid the possibility of termination. In this instance, there is no persuasive evidence that the TNC led NBTY to take any adverse action against Lopez. There is, moreover, no evidence that inSync took any adverse action against Lopez as a result of the TNC. Lopez's first day of work at NBTY was September 14, 2015. The next day, NBTY terminated Lopez's employment. Nevertheless, Lopez showed up for work on September 16 and was told, again, that he no longer had a job. There is no persuasive evidence that inSync played any role in NBTY's decision to fire Lopez. inSync did, however, communicate this decision to Lopez, telling him that he had "been terminated due to not catching on fast enough." This was the reason for the termination given to inSync by NBTY. There is no persuasive evidence that this was not, in fact, NBTY's reason for firing Lopez. There is no persuasive evidence that NBTY eliminated Lopez's job, but there is, likewise, no evidence that NBTY filled the vacant position after Lopez's termination, nor (it obviously follows) any proof regarding the age of Lopez's successor (assuming NBTY hired someone to replace Lopez). There is no evidence concerning the candidates, if any, that inSync referred to NBTY after Lopez had been fired. Ultimate Factual Determinations There is no persuasive evidence that any of inSync's decisions concerning, or actions affecting, Lopez, directly or indirectly, were motivated in any way by age-based discriminatory animus. Indeed, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of unlawful age discrimination could be made. Ultimately, therefore, it is determined that inSync did not discriminate unlawfully against Lopez on the basis of his age.
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 inSync not liable for age discrimination. DONE AND ENTERED this 26th day of October, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 26th day of October, 2017.
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Ms. Jones is a person of the African-American race. She worked in Pensacola, Florida, for Attorney Walter Steigleman, who was a contract provider for the Department's Child Support Enforcement (CSE) program. In the Spring of 2007, the Department terminated its contract with Mr. Steigleman and set up its own Child Support Enforcement Program. This program was referred to as the Legal Services Unit (LSU). Thereafter, the Department employed Ms. Jones pursuant to a contract executed June 25, 2007. The Department viewed this new LSU as a "pilot" project and, accordingly, did not wish to establish full-time equivalents pursuant to the state employment system. Therefore, the contract entered into with Ms. Jones was an "at will" employment contract and provided that she could be terminated upon two weeks' notice. Because Petitioner was not a statutory state employee, she had no right to appeal any termination or layoff. Staff hired for the project included Katherine Wright, an African-American attorney; Shayna Marstellar, a Caucasian attorney; Andrew Wood, a Caucasian attorney; Ms. Jones, a legal assistant; Megan McClinnis, a Caucasian legal assistant; Ruth Taylor, a Caucasian legal assistant; Marquieta Howard, a Caucasian legal assistant; Janet Thornhill, a Caucasian legal assistant; and Jacqueline McBride, an African-American senior clerk. Ms. Rhonda O'Kelley was the Regional Manager in overall charge of the Department's operations in the area. Priscilla Phipps, a Revenue Administrator III and veteran of 22 years with the Department, was in charge of the LSU. Ms. Phipps understands that it is in the Department's interest to make accommodations for employees in order to retain them. She has adjusted the hours of employees many times in her career and at some point put Ms. Jones on a flex schedule at Ms. Jones' request. Ms. Jones compared herself with Megan McClinnis. Ms. McClinnis had a young child and was allowed absences so long as she subsequently made up the missed time. Ms. McClinnis often called in late, but was allowed to make up for missed work. Ms. McClinnis was provided cross-training and Ms. Jones was not. However, the extant plan in the LSU was to eventually provide the same cross-training to Ms. Jones. Ms. McClinnis on occasion had quality of work issues. Ms. Jones was paid $17.00 per hour, and Ms. McClinnis was paid $15.00 per hour. Each LSU team member had specialized duties. Ms. Jones and Ms. McClinnis prepared dockets for court and prepared pleadings, and Ms. Jones often attended court proceedings. Ms. Howard prepared petitions. Ms. McBride put the files in order, prepared notices, and acted as a courier. Ms. Taylor worked on judges' cases. Ms. McClinnis was provided cross-training in these activities, and Ms. Jones was not. However, as previously stated, the extant plan in the LSU was to eventually provide the same cross-training to Ms. Jones and other members of the team. In any event, there was no testimony that cross-training was a benefit. PAILS is an acronym for a CSE, computer-based, tracking system. Both Ms. Jones and Ms. McClinnis were trained to use this system, and both could use it, but Ms. McClinnis, according to Ms. Phipps, was faster. Consequently, Ms. Phipps directed Ms. McClinnis, rather than Ms. Jones, to use the machine. There is no benefit to using the PAILS program. By August 2007, Ms. O'Kelley concluded that there were performance problems with the LSU. In order to improve the operation, she made personnel reassignments. Among other moves, she discontinued the practice of having Ms. Jones attend court. She assigned additional people to work on dockets. In September 2007, Ms. Phipps held a meeting with personnel involved with CSE. At the meeting were four African-Americans (Ms. Jones was one of them), one Hispanic, and the remainder were Caucasian. During the meeting there was a discussion regarding the timeliness of the cases set on the docket and the number of cases required to be re-set. During this discussion, Ms. Jones stood up and loudly protested some of the remarks made by certain attendees. This outburst startled some of the attendees and some thought it unlike Ms. Jones to engage in such behavior. Nothing occurring during the meeting was connected in any way to race. Subsequent to the meeting, Ms. Phipps remarked that she was surprised Ms. Jones had acted in an unprofessional manner. The mother of Ms. McClinnis worked for the Department for many years, and was working there when her daughter was employed. Although witnesses denied Ms. McClinnis received special treatment, it was clear that everyone in the office was aware of the relationship, and the relationship had some effect on Ms. McClinnis' privileges. For instance, Ms. McClinnis ignored call-in procedures with impunity. Ms. Jones told Ms. Walker and Ms. O'Kelley that she believed Ms. McClinnis was benefiting from nepotism. Ms. O'Kelley discussed the complaint with regard to nepotism with Ms. Phipps. Ms. Jones never, during the entire term of her employment, made any claim of disparate treatment based on race. The procedure for handling complaints of racial discrimination is to report the complaint to the inspector general. Ms. O'Kelley and Ms. Phipps made no report to the inspector general with regard to complaints by Ms. Jones because her complaints with regard to favoritism did not involve race. Ms. Jones reported to work on time and was present when she was supposed to be present. Her co-workers believed her to be a good worker. However, Ms. Jones and almost all of the workers in the LSU had quality of work issues. All of them had work returned from the attorneys for corrections. When Ms. McClinnis was counseled with regard to errors, she accepted the correction in good faith. When Ms. Jones was counseled with regard to errors, she became defensive. The Department was generally displeased with the staff of the LSU. Ms. Bradford (African-American) was terminated in accordance with the provisions of her contract in March 2008. During May and June 2008, contract employees Wright (African- American), Ms. Wood (Caucasian), Ms. Marsteller (Caucasian), Ms. Taylor (Caucasian), Ms. McClinnis (Caucasian), and Ms. Jones (African-American), were terminated. Ms. Howard (Caucasian) and Ms. McBride (African-American) were retained. Disparate treatment by anyone involved with Ms. Jones because of race did not occur. The evidence of record reveals no evidence of any racial bias by anyone.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations Dismiss the Petition for Relief filed by Mary Lynn Jones. DONE AND ENTERED this 25th day of February, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cindy Horne, Esquire Department of Revenue Carlton Building, Room 304 501 South Calhoun Street Tallahassee, Florida 32399 Robert Framingham Department of Revenue Post Office Box 10410 Tallahassee, Florida 32302 Mary Lynn Jones 6501 Robar Tesora Street Navarre, Florida 32566 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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 Whether Petitioner, a member of a protected class, was denied training, subjected to unequal terms of employment and denied promotion to three jobs including the position of Lead Custodian with the Respondent in the Physical Plant Department in 1993, on the basis of his gender (male) and race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1993).
Findings Of Fact The Respondent is an employer under the 1992 Florida Civil Rights Act. Petitioner was employed by Respondent as a custodian in the Physical Plant Department since July 1989 and during the relevant period of time including 1993 and 1994. Petitioner is a male African-American, and a member of a protected class. Petitioner applied for a promotion to three different positions at the college between August 26, 1993 and December 6, 1993. In late August, 1993, Petitioner applied for the part-time position of House Manager at the college theatre. Petitioner was not selected because his present work schedule would overlap the position at the theatre and his prior work experience was not relevant to the position. In addition, another candidate possessed better interpersonal and communication skills, and his education and work experience was more relevant to the position than the Petitioner's. In early October, 1993, Petitioner applied for the position of HVACR (heating, ventilation, air conditioning and refrigeration) apprentice. The position is a learning position which requires working with a lead mechanic. Part of the job requirement for the apprentice position was the ability to attend trade school in HVACR. During the employment interview Petitioner expressed reservations about attending the HVACR training because he was presently enrolled in night classes at Rollins College. In addition to Petitioner, two white males and a Hispanic male applied for the position. A Hispanic male was selected for the position who had better qualifications. Thereafter, the racial make-up of the HVACR Department consisted of two whites, one black and one Hispanic male. On October 14, 1993, three vacancies for the newly created position of Lead Custodian in the Physical Plant Department was advertised by Respondent. Petitioner was one of nine applicants for the position. The nine individuals who applied for the position of Lead Custodian consisted of four African-American males, three African-American females and two Caucasian females. Following the review of each persons application and file and a personal interview, two African-American males and one African-American female were selected for the positions. Petitioner was not recommended for one of the vacancies. The selection process was based on relevant work experience and work history, and was not based on improper or discriminatory race or gender considerations. Petitioner was not denied training based on his race or gender. Petitioner applied for and attended six seminars covering a variety of subjects over the last several years. Respondent's stated reasons for its promotion and training decisions were not proven to be pretextual.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief. DONE AND ENTERED this 24th day of October, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1995. APPENDIX The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner: Accepted in substance: paragraphs: none Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 1, 2, 3, 4, 5, 6. COPIES FURNISHED: Lea Ann Banks, Esquire BAKER & HOSTETLER P. O. Box 112 Orlando, Florida 32802 Mr. Ulysses B. Williams 1020 Polk Avenue Orlando, Florida 32303-4149 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent engaged in an unlawful employment practice by retaliating against Petitioner for filing a charge of discrimination.
Findings Of Fact Petitioner, Jacques Pierre (Petitioner or Mr. Pierre) is black and his national origin is Haitian. He has worked in the United States for 24 years. On or about January 25, 2006, Mr. Pierre filed with the Equal Employment Opportunity Commission (EEOC) a charge of discrimination against his employer, Respondent, SSA Security, Inc., a/k/a Security Services of America, a California Corporation (Respondent or SSA). SSA, under a subcontract with a federal government contractor, Alutiiq-Mele, provided security services for a federal building in Miami. SSA continued to employ Petitioner as a security guard when it took over the contract from his previous employer, Superior Protection. Contractors and managers changed, in the past, but the security guards stayed the same. On August 10, 2006, and August 15, 2006, first Mr. Pierre, then a representative for SSA signed an agreement to settle the EEOC complaint. With a letter dated August 23, 2006, Mr. Pierre received a settlement check in the amount of $1,257.04, and he was advised to report any future unlawful harassment or discrimination charges by use of a "Harassment Hotline and [to] speak with your local area manager, Barry Hirsch [sic]." Captain Barry Hersch was Mr. Pierre's immediate supervisor. The agreement was approved, in principle, by Kent Jurney, Sr., an SSA corporate officer. The language of the agreement is, in relevant part, as follows: Removal of all Disciplinary Notices in File. Company agrees to remove all writings related to disciplinary actions taken against Employee from Employee's personnel file maintained by the Company. Employee understands that the removal of said documents does not prevent the Company from issuing disciplinary notices and/or taking disciplinary action against Employee as necessary in the future should Employee violate the Company's rules of [sic] policies. * * * 4. Confidentiality Clause. The Employee and the Company agree to the following confidentiality and non-disclosure agreement: (a) The parties represent and agree that they will keep the terms and amount of this agreement completely confidential. The parties will not hereafter disclose any information concerning this agreement to anyone, including but not limited to, any past, present or prospective employee of the Company or any prospective employer of the Employee. On August 25, 2006, the federal government changed the requirements in the contract. No longer would security guards be allowed to take breaks at the start or end of their shifts, but only during the middle. Mr. Pierre was made aware of the change. In violation of the requirement, on September 1, 2006, Mr. Pierre took his break at the end of his shift. The federal government contract also prohibited security guards from being on the work premises more than 30 minutes before or after their shifts. On August 28, 2006, Mr. Pierre returned to his work site and entered the building more than 30 minutes after his shift to retrieve keys and a telephone charger. Mr. Pierre also got into a loud and profane argument with another worker during his unauthorized return to the building. Mr. Pierre admitted he had an incident where he got into an argument with and "fired back" at a supervisor in 1995 or 1996. Beginning on or about July 10, 2006, Petitioner began to request, but initially was denied, leave. Mr. Pierre was feeling threatened and harassed by his supervisors and was suffering physically as a result. On a form dated August 25, 2006, Mr. Pierre said he was requesting leave from September 11 to September 25, with a return date of September 27, 2006. Spaces on the form to indicate whether it was approved or disapproved, and by whom are blank. As the reason for the request, Mr. Pierre indicated "stress related: as a result of retaliation.” This time, Captain Hersch, approved the request and Mr. Pierre went on vacation in September 2006. On September 5, 2006, as instructed by Mr. Jurney, another Miami supervisor, Bill Graham, issued a memorandum to Mr. Pierre requiring him to attend a mandatory meeting "about several important issues and notifying him of his "temporary removal from the schedule until this meeting has taken place." Copies of the memorandum were sent to Mr. Jurney and Captain Hersch. The evidence is insufficient to determine if other security guards who violated the same rules were subjected to the same consequences, or if discipline was uniformly applied. Mr. Pierre requested, either through his supervisor, Captain Hersch, or directly to Mr. Graham, that the attorney who handled his EEOC complaint and settlement agreement be allowed to attend the meeting with him. Mr. Jurney denied the request. Because he never attended a meeting, Mr. Pierre remained "off the schedule." For the remainder of 2006 and in early 2007, he was working part-time only at his second job with the State Department of Corrections. Mr. Pierre's income was reduced from $15 an hour ($17 minus $2 for insurance) for 40-hour weeks with SSA, plus $1,000 every two weeks from Corrections to only his Corrections pay. The evidence is insufficient to determine how long Mr. Pierre was, or if he still has, a lower income and what, if any, efforts he has taken to secure alternate employment to mitigate damages. SSA supposedly notified Mr. Pierre, in a memorandum dated September 22, 2006, that he was suspended without pay for two weeks for his rule violations and his failure to attend the mandatory meeting. The authenticity of the memorandum was questioned, and no witnesses testified to sponsor it or to explain why it was necessary, given the fact that Mr. Pierre was already "off the schedule." On October 3, 2006, Mr. Pierre filed a charge of retaliation with the Florida Commission on Human Relations which, on July 2, 2008, found that reasonable cause existed to believe that an unlawful employment practice had occurred. In the fall of 2006, Mr. Pierre applied for a job with the Miami-Dade Corrections and Rehabilitation Department (Miami- Dade). It was his understanding that his background investigation had been successfully completed, but that SSA had not responded to a reference form. Mr. Pierre took the form to SSA. The form, dated October 4, 2006, was completed by Captain Hersch, who responded, in relevant part, as follows: Reason for termination (voluntary/fired)? NON APPLICABLE Describe the applicant's work performance. GENERALLY ACCEPTABLE Describe the applicant's attendance record. GOOD OVERALL Was the applicant ever disciplined for any reason? If YES, please explain. YES CONFIDENTIAL." Is applicant able to work well with others? YES Is applicant trustworthy? YES Describe applicant's work habits? KNOWS HIS JOB, AND DOES IT Is applicant eligible for re-employment? If NO, please explain why. STILL EMPLOYED There is no explanation why Captain Hersch mentioned the confidential agreement, but not the subsequent disciplinary actions that were the focus of concern to Mr. Jurney and Mr. Graham, which could have been disclosed without violating the agreement. Based on the earlier assurances from Miami-Dade, Mr. Pierre, having put "no" when asked about discipline of his job application, believes the contradictory response from SSA caused him not to get the job. He received a letter informing him, but without giving specific reasons, that he was not hired by Miami-Dade. He failed to prove the correctness of his belief. Mr. Pierre testified, but presented no supporting evidence, that he could have earned up to $120,000 a year with Miami-Dade. SSA received notice on the second anniversary of its contract, in October 2006, that the federal government contract would not be renewed. Some time in 2007, most likely in February, at Mr. Pierre's request, he met with Mr. Jurney. It was not until that meeting, Mr. Pierre remembered, that Mr. Jurney had someone remove pre-settlement discipline records from his personnel file. By that time, SSA no longer had a contract with the federal government and was transferring its personnel over to work for the next contractor, Alutiiq. Mr. Pierre asked to be transferred and Mr. Jurney testified that he contacted someone at Alutiiq and asked for Mr. Pierre to be interviewed, but the evidence is insufficient to support a finding that SSA attempted to transfer Mr. Pierre to Alutiiq, or what the routine procedures were for transferring security guards. When Mr. Pierre found out that the necessary paperwork was never sent from SSA to Alutiiq, he tried unsuccessfully for two or three weeks to contact SSA. It is reasonable to believe that SSA, while not allowing Mr. Pierre to work, would not help him transfer over to the next contractor. Mr. Pierre was not transferred and was not employed by Alutiiq. Mr. Jurney testified unconvincingly that he made non-federal contract job offers to Mr. Pierre and Mr. Pierre found the offers acceptable, “but he didn’t accept them.” It is inconceivable that Mr. Pierre, who has three children to support and a wife who works part-time, would have rejected any legitimate job offer at that time. Mr. Pierre and Mr. Jurney, a former highway patrol trooper and member of an advisory board for the Florida Highway Patrol, discussed Mr. Pierre’s desire to be a trooper. Mr. Jurney offered to assist him but that employment never materialized. As a corporate officer, Mr. Jurney was responsible for overseeing hundreds of contracts involving 1,500 employees. He was senior to Mr. Graham and Captain Hersch. Yet, once he authorized the EEOC settlement, he became directly involved in the decision-making concerning discipline and consequences for Mr. Pierre. There is no evidence that Mr. Pierre had ever come to his attention before he approved the settlement.
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 directing that Respondent cease the discriminatory employment practice evidenced in this case and awarding Petitioner back pay at the rate of $15.00 an hour for each normal 40-hour work week between September 5, 2006, and the date of the final order, offset by earnings from substitute employment, if any. DONE AND ENTERED this 27th day of January, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 27th day of January, 2010. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ronald G. Polly, Esquire Hawkins & Parnell, LLP 4000 SunTrust Plaza 303 Peachtree Street, Northeast Atlanta, Georgia 30308-3243 Jacques Pierre 19601 Northwest 12th Court Miami, Florida 33169 Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141
Findings Of Fact Based on all of the evidence, the following findings of fact are determined: This case involves a claim by petitioner, William C. Eagle (petitioner or Eagle), that in February 1994 he was denied employment as a delivery helper by respondent, S. R. Perrott, Inc., on account of a real or perceived handicap. According to the complaint, at the time the alleged discriminatory practice occurred, petitioner was suffering from a "soft tissue injury" from a "work related accident with his former employer." Because the evidence shows that in February 1994 petitioner did not enjoy in some measure the full and normal use of his physical facilities, he was a handicapped person, at least temporarily, within the meaning of the law. A preliminary investigation by the Florida Commission on Human Relations (Commission) found no reasonable cause to believe that an unlawful employment practice had occurred. Respondent is a beer distributor in Ormond Beach, Florida. Whether respondent employs "fifteen or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year" so as to be subject to the Florida Civil Rights Act of 1992, as amended, is not of record. In February 1994, petitioner learned of an opening for a delivery helper at respondent's plant. The position required that the employee unload beer kegs weighing 167 pounds from a delivery truck onto a dolly and then push the dolly into the business establishment. At that point, the employee would have to bend over and lift the keg off of the dolly to a waist-high position and place it in the desired location. Empty kegs would then be loaded onto the dolly and taken back to the truck and loaded. Since a truck would typically make up to 30 to 40 stops per day, the helper was required to engage in repetitious bending, twisting and lifting of heavy objects. After filing an application with respondent, petitioner was interviewed by respondent's general manager, Gary Connors, on February 23, 1994. During the interview, petitioner failed to disclose that he had suffered a back injury on a previous job, he was receiving worker's compensation benefits, he was then being treated by a doctor, and because of the injury, he was, at least arguably and temporarily, a handicapped individual. Without these undisclosed facts, Connors believed Eagle was qualified for the job and told him to report to work the next morning as a delivery helper. Like every other applicant, however, Eagle was also told that the job was contingent on his successfully passing a pre- employment physical examination. On the same morning that petitioner began work, or February 24, 1994, Connors contacted the office of Dr. James W. Bennett, a local chiropractic physician who conducted employment physicals for respondent, to set up an appointment for Eagle. During his telephone conversation with Dr. Bennett, Connors learned that Eagle was being treated by Dr. Bennett for a back injury suffered on his previous job, and that he had been examined by Dr. Bennett on February 14, 1994, or ten days earlier. Dr. Bennett accordingly saw no need to re-examine Eagle, and he advised Connors that Eagle could aggravate "an existing, active injury," and that he could not pass the pre-employment physical examination. Based on this information, Connors immediately spoke with the plant manager, Richard Shaffer, and instructed him to recall Eagle from his route and terminate his employment. In making this employment decision, Connors was not motivated by discriminatory animus, but rather he made the decision solely because of Eagle's inability to pass a pre-employment physical examination, a prerequisite for employment for all job applicants. Indeed, at that time, while Connors knew that Eagle had a pre-existing back injury through conversations with Dr. Bennett, he neither knew, or had reason to believe, that the injury constituted a handicap under the law. Shaffer recalled Eagle from his route and discharged him around noon on February 24, 1994. Since Shaffer did not know the reason for the termination, he told Eagle to check back in a few days and he would find out the specific reason for his discharge. A few days later, Eagle returned and met with Connors who told him that he was discharged because he could not pass the pre-employment physical examination. Several months later, Eagle filed his charge of discrimination. At hearing, Eagle denied that he was handicapped and asserted that as of February 1994 he "felt fine" physically. Indeed, he described in some detail the type of heavy manual labor he had performed with another employer up to the time he applied for the position. He also contended that the injury was minor and would not interfere with a delivery helper's tasks. But testimony from Dr. Bennett established that as of February 24, 1994, Eagle had "a current, precarious injury," namely, moderate chronic lumbar sprain strain, that work restrictions with his former employer had been recommended, and that Eagle was "highly likely" to worsen that injury should he engage in the job activities required of a delivery helper. This testimony was not credibly contradicted. Although Eagle was later discharged from Dr. Bennett's care on April 1, 1994, Eagle could not pass the pre-employment physical examination on February 24, 1994, when the employment decision was made, and thus he did not qualify for the job. Eagle further suggested at hearing that, assuming he was handicapped, respondent failed to take reasonable steps to accommodate his disability. But Eagle made no request for accommodation either at the time he sought the position or after he learned the reason for his termination. Even if Eagle had requested accommodation, respondent had no positions in the business that did not require some heavy lifting except for a secretarial slot, for which Eagle was not qualified. Moreover, respondent's general manager did not know, or even believe, that Eagle was handicapped and thus may have required accommodation. Then, too, in order to accommodate Eagle, respondent would have had to make fundamental alterations in its work program or even create a new job. Eagle did not rebut this showing at hearing, and he failed to respond with any evidence regarding his individual capabilities and suggestions for possible accommodations by respondent within the restrictions imposed by Dr. Bennett. There is no evidence regarding the compensation Eagle would have received as a delivery helper. The record also fails to establish his compensation since that time, and thus there is no basis on which to make a finding as to lost wages. Whether petitioner seeks reinstatement as a delivery helper is also not of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing the petition for relief with prejudice. DONE AND ENTERED this 18th day of August, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1788 Petitioner: Petitioner filed an "order" with nine unnumbered paragraphs containing a mixture of proposed findings of facts and conclusions of law. Partially accepted in findings of fact 1 and 4. Partially accepted in finding of fact 3. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 5 and 8. 6-8. Rejected as being a conclusion of law. 9. Rejected as being contrary to the evidence or a conclusion of law. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the more credible evidence, cumulative, or a conclusion of law. COPIES FURNISHED: P. Daniel Williams, Esquire P. O. Box 1007 Daytona Beach, Florida 32115 Winston K. Borkowski, Esquire P. O. Box 1725 Ormond Beach, Florida 32175 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
