Findings Of Fact Frank Bowder began his employment with Exports, Inc., under the tutelage of Kenneth L. Kellar, President and sole stockholder of Exports, Inc., at the office in Washington state approximately 20 years ago. He became very knowledgeable about the company's business, and approximately 15 years ago he was sent by Kellar to operate the company's Florida office. He was given the title of general manager of the Florida office and remained an excellent employee until his recent death. Kellar considered Frank Bowder to be an excellent manager of the product of Exports, Inc., but recognized that Frank Bowder had a large turnover of employees. His wife Mae Bowder was also an employee of Exports, Inc., and was considered by Kellar to be "the best cleaning woman there is." She was in charge of cleaning and maintenance duties at the Florida office. At some point Mae Bowder began representing to people that she was the office manager of the Florida office. That information was brought to Kellar's's attention on several occasions, and he corrected that information by explaining that she was simply in charge of maintenance. At some point Mae Bowder's son, Wayne Evans, became employed by the Bowders in the Florida office and was given the title of warehouse manager. Within the last several years, Frank Bowder allowed his wife to "become" the office manager. When Kellar found out, he fired her because he believed that she was "not office material." Approximately a year later Kellar found out that Mae Bowder was once again the office manager. He spoke to Frank about it, and Frank explained, essentially, that Mae was giving him so many problems at home about it that he had to hire her back. Kellar fired her once again. Sometime thereafter, Kellar found out that Frank was ill. He came to the Florida office and discovered Mae Bowder once again employed as "office manager." He again discussed the matter with Frank and determined the extent of Frank's illness, which was terminal. He told Frank that Frank was too ill to be running the office full time and told Frank that he should only come to the office a few hours a day. Frank responded that he did not know what to do about his wife. Kellar then went to Mae Bowder and discussed with her the fact that he only wanted Frank to be at the office a few hours a day and that it was too difficult for Frank to continue working full time. He also told Mae Bowder that she should be staying home and taking care of Frank because Frank was so sick. Mae Bowder specifically asked Kellar if he were firing her, and Kellar responded "no" but that she should be staying home to take care of her husband. Mae Bowder "got in a huff," threatened two of the female office personnel, and left. Kellar did not see her again until the final hearing in this cause. Kellar began investigating the operations of the Florida office at that point and began discussing with the other employees there how the office had been managed. He discovered problems. He was told that the Bowders gave highly preferential treatment to Wayne Evans in comparison to the other employees. He discovered that Mrs. Bowder did not like to hire black employees, and the black employees who were hired were not given keys to the office. There was a stated policy by Mrs. Bowder to not hire people with children. Specifically, one black employee did not tell Mrs. Bowder that she had a child when she was hired. When she later became pregnant, Mrs. Bowder was furious. The employee was given one month for unpaid maternity leave and when she called at the end of that month, Mrs. Bowder told her she had been laid off. When she called two months later, the time by which her baby who was sick could be left with someone else, Mrs. Bowder returned her call a week later telling her she could come back to work because another black employee had left. Lastly, the other employees reported that Mrs. Bowder would yell and curse at them, threaten to hit them with an upraised hand, and even pushed and shoved an employee on one occasion because that employee had made a mistake in her work. The employees had previously not made these complaints because they could have only complained to the general manager who was the husband of the person about whom they would be complaining. Kellar brought an employee from the Washington office down to the Florida office to assist Frank Bowder and continued to pay Frank Bower his salary until he died. No evidence was offered that Kellar would not have continued to pay Mae Bowder her salary if she had reduced her hours in order to take care of Frank rather than walking out when Kellar tried to discuss the matter with her. No one else was present when Kellar and Mae Bowder had their discussion at the time when Mae Bowder resigned. Later that day, according to her son, Kellar made a comment that the Bowders had been the last of the married couples working for the company. Such a statement, if it were made, is susceptible of many interpretations, including sadness for the end of an era. Kellar did not fire Mae Bowder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore, RECOMMENDED that a Final Order be entered finding Exports, Inc., not guilty of committing an unlawful employment practice and dismissing Petitioner's Petition for Relief filed in this cause. DONE and RECOMMENDED this 26th day of May, 1989, in Tallahassee, Florida. LINDA M. RIGOT 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 26th day of May, 1989. COPIES FURNISHED: James R. McGlynn, Esquire 4633 10th Avenue North Lake Worth, Florida 33463 Kenneth L. Kellar President/Owner Exports, Inc. Post Office Box 449 Blaine, WA 98230 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue is whether Petitioner's Petition for Relief should be dismissed as untimely pursuant to Section 760.11(7), Florida Statutes (2003).
Findings Of Fact Petitioner filed a Charge of Discrimination with FCHR on June 30, 2003. Petitioner alleged that Respondent discriminated against her based on her sex and retaliated against her when she complained that her supervisor was sexually harassing her. Finding no reasonable cause to believe that Respondent had committed an unlawful employment practice, FCHR issued a Determination: No Cause on March 24, 2004. That same day, FCHR issued a Notice of Determination: No Cause, advising Petitioner that she had 35 days from the date of the notice in which to request an administrative hearing. The notice clearly stated that Petitioner's claim would be dismissed pursuant to Section 760.11, Florida Statutes, if she failed to request a hearing in a timely manner. The 35th day was April 28, 2004. Petitioner sent her Petition for Relief to FCHR by facsimile transmission on April 28, 2004, at 4:26 p.m. C.S.T. FCHR received the Petition on April 28, 2004, at 5:35 p.m. E.S.T. or 35 minutes after FCHR's normal business hours. Therefore, the Petition was not filed until April 29, 2004, one day after expiration of the 35-day period.
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 25th day of June, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 25th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mark Simpson, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 Debra Dawn Cooper, Esquire 1008 West Garden Street Pensacola, Florida 32501 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact On March 19, 1985 petitioner, Michael Scott Symons, became employed as a financial manager with the brokerage firm of Easter Guthmann & Kramer Securities, Inc. (EGK) at 7200 West Camino Real Street, Suite 200, Boca Raton, Florida. In connection with his employment Symons filed an application for registration as an associated person of EGK with respondent, Department of Banking & Finance, Division of Securities (Division). The application was received by the Division on or about March 19, 1985 and was deemed to be complete on April 18, 1985. On that portion of the application entitled "Personal History" Symons gave 5700 Grillet Place, S.W., Fort Myers, Florida 33907 as his home address. He identified EGK's address as being 7200 West Camino Real, Suite 200, Boca Raton, Florida 33433. Although Symons signed the application he stated that EGK had actually submitted the application on his behalf since it was a common practice for brokerage firms to do administrative work on behalf of their employees. This is consistent with an agency rule (3E-600.02(3), F.A.C.) which requires that a securities dealer file and countersign the application for registration on behalf of an associated person. On March 24, 1985, or shortly after he began employment with EGK, Symons moved into an apartment at 6091 Boca Colony Drive, Boca Raton, Florida 33427. Approximately one month later, he began renting Post Office Box 3299 in Boca Raton. Symons did not inform the Division of these changes in address, or otherwise amend his application. On or about July 12, 1985 a Division bureau chief spoke by telephone with the chief financial officer of EGK and asked if EGK would voluntarily withdraw Symons' application. Later that same day, an EGK vice-president telephoned the bureau chief and advised him the firm would not withdraw the application. On July 16, 1985, the Division prepared and dated an Order Denying Application for Registration as an Associated Person. The next day a Division attorney sent a copy by certified mail to Symons' at 5700 Grillett Place, S.W., Fort Myers, Florida. Because Symons' wife had previously provided the post office with a change of address form the envelope containing the order was forwarded from Fort Myers to Post Office Box 3229 in Boca Raton. Certified mail notices were thereafter placed in the box on July 24 and July 31. However, the mail was never claimed. On August 8, 1985 the envelope was returned to the Division. It was received in Tallahassee on August 12, 1985. There is no evidence that Symons was aware the order had been mailed or that he deliberately failed to claim the letter. The agency attorney similarly assumed that Symons had not received a copy. Accordingly, it is found that at this point in time Symon had no knowledge that the July 16 order-was entered, and had been mailed to him in Fort Myers and Boca Raton. On August 19, 1985 the Division attorney again sent a copy of the July 16 order by certified mail to 7200 West Camino Real, Suite 200, Boca Raton. This was the address of EGK. According to the attorney, it was her intention to mail the order to Symons, and not his employer. The order contained the following pertinent language on page 5: Respondent is advised that Respondent may request a hearing to be conducted in accordance with the provisions of Section 120.57, Florida Statutes. A request for such hearing must comply with the provisions of Rule 28-5.201, Florida Administrative Code, and must be filed within twenty-one (21) days after receipt of this order. Otherwise, Respondent will be deemed to have waived all rights to such hearing. The certified mail receipt for the envelope containing the order was apparently signed for by Charlie Shields, an EGK employee. 1/ It eventually reached the desk of EGK's chief financial officer, James Weber, in an unopened envelope on August 23, 1985. Weber opened the envelope and read the enclosed order. He noticed on page five of the order that there was a twenty-one day time frame in which an appeal of the agency denial could be made. Believing that the twenty-one day time frame began on July 16, Weber erroneously concluded that the time to request a hearing had already expired. This was probably because he had never before seen a denial order, and was not familiar with the procedures under Chapter 120, F.S. Weber then showed the order to Edward Guthmann, a principal and vice- president of EGK. Guthmann telephoned an out- of-state attorney seeking advice on how to proceed, and sent a copy of the order to the attorney on August 23. The attorney did not take any action, and returned the order to Guthmann on an undisclosed dated between late August and the middle of September. On September 17 Weber "came to the realization" that under any interpretation of the order the time frame in which to request a hearing had run. He then contacted petitioner's present counsel on September 17 to discuss obtaining legal representation for Symons. Symons has continued using that counsel since that time. A petition for hearing was eventually filed with respondent on October 1, 1985. This petition was denied by agency order entered on October 16, 1985 on the ground Symons had "constructive receipt and notice of the Denial Order at the time of its delivery by U.S. Certified Mail to Respondent's personal address on July 24 1985, and furthermore, deems Respondent to have received actual notice. . . on August 25, 1985, when the Denial Order was claimed and signed for at EGK's address as listed on the application." Neither Weber or Guthmann informed Symons prior to September 15 that they had received the Division order, or that the document even existed. They also did not advise him that they had contacted an out-of-state attorney in August in an effort to obtain advice. In this regard, petitioner had not authorized them to take any action with respect to the denial order, or to seek the advice of an attorney. Symons was unaware of the existence of the denial order prior to September 20, 1985 when he was shown a copy of the order by his employer. Had he been aware of the order prior to September 15, he would have filed a request for a hearing. Even though he did not specifically voice an objection to his employer opening his mail, Symons did not expressly authorize his employer to accept the order or any other notices from respondent. Indeed, Symons considered certified mail to be "a personal thing," and something that "an employer has (no) right to open."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that petitioner timely requested an administrative hearing to contest respondent's denial of his application for registration as an associated person. DONE and ORDERED this 4th day of December, 1986 in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1986.
The Issue The issue in this case is whether the Petitioner timely filed a complaint of discrimination in accordance with the provisions of Chapter 760, Florida Statutes (2009).
Findings Of Fact Prior to November 28, 2007, the Petitioner was employed by the Respondent. On November 26, 2008, the Petitioner sent a Technical Assistance Questionnaire (TAQ) to the Florida Commission on Human Relations (FCHR). The TAQ was submitted via facsimile transmission and was not signed. The Petitioner believed she was complying with the directives of the FCHR website and that follow-up assistance (from the FCHR) would not be required. The Petitioner did not understand that a signature was required, notwithstanding the place for same (along with a date) on page 2 of the TAQ. The Petitioner maintains that the FCHR website instructions were unclear and that she erroneously relied on the directions that did not specify she was required to sign the TAQ. The Petitioner filed a signed Charge of Discrimination with the FCHR on January 14, 2009. On February 5, 2009, the Petitioner received a "Notice of Receipt of Complaint" from the FCHR. At the same time, a copy of the complaint was furnished to the Respondent, who was then, presumably, put on notice of the Petitioner's charge. The FCHR did not advise the Petitioner that the TAQ had to be signed. In the course of its review of the instant charge, the FCHR entered a determination of "untimely." Per the FCHR's assessment, the charge of discrimination was filed more than 365 days from the last incident or act of discrimination. Thereafter, the Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against the Respondent. The Commission then forwarded the matter to the Division of Administrative Hearings for formal proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's claim of discrimination. DONE AND ENTERED this 29th day of September, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2009. COPIES FURNISHED: Mark Levitt, Esquire Allen, North & Blue 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Marie C. Perez 517 29th Street West Palm Beach, Florida 33407 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
The Issue The issue in this case is whether Respondent discriminated against Petitioner by terminating her employment in violation of Section 760.10, Florida Statutes,1 the Florida Civil Rights Act.
Findings Of Fact Petitioner, Theresa Dawson, is a 47-year-old, African- American woman. At all times pertinent to this matter, Petitioner was employed by Respondent as a personal banker at Rosemont. As a personal banker, Petitioner was responsible for, inter alia, opening new accounts for customers of Bank of America (the "Bank"). Petitioner had worked for the Bank (including its predecessor entities) for almost 25 years, beginning her employment in 1981 as a bank teller. She served at a number of Bank branches until being transferred to Rosemont in 1998. Petitioner was a valued employee of the Bank and was considered to be one of the best workers at Rosemont. She was nominated for and received bonuses almost every quarter. She received annual salary increases well in excess of the average for her peers. During a certain period when Bank headquarters directed managers to limit all raises to two percent, Petitioner was given a six-percent raise due to her substantial performance record. Petitioner had never been disciplined or reprimanded by the Bank concerning her employment activities until the actions leading to this administrative proceeding. Personal bankers were paid a base salary and could earn additional compensation based upon performance. To obtain bonuses or extra compensation, the employee must first meet all of their objectives (as predetermined by the Bank). Once those goals were met, more income in the form of incentives could be earned. Incentives were based on productivity: A personal banker would receive credit for opening new accounts in excess of his or her stated goals. In addition, the employee could accumulate points which could be used to purchase consumer goods such as televisions, stereos and other household goods. Each Bank employee was assigned a NBK number, which is essentially an internal employee number. Each employee was also asked to select a private, confidential password for use in logging on to the Bank computer system. Bank policy forbade employees from sharing their password with anyone, even with Bank computer technology personnel. Passwords had to be changed on a regular basis (usually every 90 days) as an added measure of security. All employees were charged with understanding and following the policy concerning passwords. In order for a personal banker (or other authorized employee) to open a new account for a customer, the employee must log onto the Bank computer using their NBK and password. The account would then be electronically opened using the Bank computer system. Once the electronic process was complete, a signature card would be printed for the customer's signature. Sections of the signature card would be manually filled in by the Bank employee who opened the account; that person would theoretically be the same employee who had electronically opened the account. On Saturday, April 30, 2005, Marcia Clark, the bank manager for Rosemont, was at work. It was a busy day at the banking center. Dorothy Faulk, a long-time employee of the Bank, was also working on that day. Faulk was a customer service specialist who had authority, among other things, to open new accounts for customers. On that day Faulk was filling the role of personal banker (in name only; she was not included in the personal banker's incentive program while filling the role in that limited basis). Towards the end of the workday (1:00 p.m. because it was Saturday), Clark found a new account signature card on the office copy machine. The signature card indicated that Petitioner had opened the account, but Clark knew Petitioner had not been working on that day. Since it was almost time to close for the day, Clark opted to deal with the apparent discrepancy during the next business week. On the following Tuesday, May 3, 2005, Clark asked Petitioner about the signature card she had found the previous Saturday. Petitioner indicated that Faulk must have logged on to the Bank computer system using Petitioner's password. In response to further inquiry by Clark, Petitioner admitted giving her password to Faulk for that purpose. The next day, Clark asked Faulk about the signature card and whether she had logged on using Petitioner's password. Faulk said that she had indeed used the password, but that it had been a one-time occurrence. Clark then discussed the situation with her supervisor, Debbie Nelson, the Bank's consumer market manager. Nelson was concerned about what Clark told her, and she told Clark to contact the Bank's senior investigator, Roy Gonzaque, so that he could look into the matter. Meanwhile, Clark pulled internal bank documents known as PMRRs (the Performance Measurement Rewards and Recognition tool) in an effort to determine whether there were other instances where Petitioner's password had been used when she was not actually at work.3 Within a week, Gonzaque came to Rosemont and interviewed a number of employees, including Petitioner and Faulk. He also examined the documents which had been reviewed by Clark and which showed the following: December 18, 2004--four new accounts were opened under Petitioner's password; March 5, 2005--three new accounts were opened under Petitioner's password; March 19, 2005--three new accounts were opened under Petitioner's password; and April 30, 2005--three new accounts were opened under Petitioner's password. Each of those days was a Saturday on which Petitioner was not at work. A signature card was found for each of those days as well; each of the cards had Faulk's handwriting on it.4 Gonzaque questioned Petitioner and obtained a voluntary written statement in which Petitioner admitted giving her password to Faulk, but said she believed prior managers had known about and condoned the practice. Petitioner then admitted her wrong-doing and apologized for engaging in that activity. Faulk was also questioned and wrote a statement saying that she had been opening accounts using personal bankers' passwords for about one and a half years.5 Faulk said she opened accounts under the personal banker number in order to make sure customers would not have to wait to long. That statement is not credible because Faulk had the authority to open new accounts under her own number. Further, the statement contradicts what Faulk said to Clark on the day she was first confronted. Faulk also wrote that she didn't know Petitioner would benefit financially as a result of the action. Again, this statement is not credible because Faulk had been a personal banker and knew how the incentive bonuses were calculated. Faulk stated that Clark not only knew about this practice, but that Clark inquired why Faulk was not opening accounts for other personal bankers as well in order to be "fair."6 Gonzaque, Nelson, and Clark met to discuss the situation further. They called the Personnel Office at the Bank's headquarters during their meeting. The Personnel Office recommended that upon those facts, both Petitioner's and Faulk's employment should be terminated. Despite the fact both employees had exemplary work histories, a consensus was reached by the three management personnel to terminate employment. It was a difficult decision to make and, actually, was detrimental to Rosemont because Faulk and Petitioner were well known by bank customers. Clark was responsible for informing Petitioner about the termination of employment. When Clark did so, Petitioner did not raise any objection. Without saying a word Petitioner turned over her keys and other Bank property in her possession and then walked out of the bank. She showed no emotion and made no comments to Clark or anyone else. Petitioner had earned performance and incentive bonuses on a regular basis. Her earned bonus for the quarter preceding her termination from employment was to be in excess of $8,300. That was significantly larger than average bonuses earned by other employees.7 The Bank opted not to pay that bonus to Petitioner on the basis that she had gained it fraudulently, i.e., by allowing someone else (Faulk) to open accounts for her. As Gonzaque described it, Petitioner had "lied, cheated and manipulated the system" to get the bonus. Each Bank employee must read and understand the "Code of Ethics and General Policy on Insider Trading" (the "Code"). The Code is available both on-line and in hard copy format. Petitioner acknowledged in writing annually that she had read, understood, and agreed to comply with the Code. The Code requires employees to abide by the Associate Handbook, to abide by all Bank policies, and to seek counsel concerning any questions about ethical issues that might arise. The Bank's Associate Handbook includes information concerning passwords. It states unequivocally that "Associates must not share their passwords, including e-mail passwords, with any other person-- not even technical support personnel." Further, passwords were not to be stored under keyboards or other unsecured places. Two former Rosemont employees remembered isolated incidences of password sharing. Sherri Nichols remembers an assistant manager asking each teller for their passwords on one occasion so that he could take some sort of test for them. The assistant manager (Jeremy Barkley) does not remember doing so, and his testimony is credible. Carmita Kelly remembers Barkley using her terminal--where she had logged on--for a short period of time while she stood nearby. Even if those instances did occur, they did not involve use of a personal banker's password to open new accounts. There was no other competent evidence that employees had been sharing passwords in the manner alleged by Petitioner. Petitioner has not found suitable employment since the date of her termination from Rosemont. She has applied to a number of places without success. In some of her employment applications, she misrepresented her departure from Rosemont, indicating that she had not been terminated from employment. Her explanation for that false statement was that "I was trying to get employment." Petitioner seemed devoid of remorse or guilt and appeared to believe that the end justified the means, thus diminishing her credibility at final hearing. Unlike Petitioner's failure, Faulk was able to obtain employment with another lending institution only a couple of weeks after being let go by Rosemont. She now works with yet another bank. After Petitioner's and Faulk's employment was terminated, Rosemont hired new employees. It appears the two positions held by Petitioner and Faulk (personal banker and customer service specialist, respectively) were not filled by persons with the same level of experience as the terminated employees. Rather, persons were hired who could be trained to fill those positions upon further training. A number of persons were hired, but it is unclear from the evidence at final hearing whether any one person was hired to directly fill Petitioner's position. Two white males were hired, as was a Hispanic woman, but no witness could provide a clear history of when each was hired and for what specific job. At no time during her employment with the Bank or Rosemont did Petitioner hear anyone make a discriminatory remark to her based on her race or age. Employees described the Rosemont employees as a "team" who all worked together for the common good. Both the Bank and Rosemont had a history of diversity in hiring practices. One of the three persons making the decision to terminate the employment of Petitioner was African-American. The evidence at final hearing was conclusive that race was not a factor in the decision to terminate Petitioner (and Dorothy Faulk).8 It is clear that Rosemont did not hire or fire employees on the basis of race and that every employee was given the opportunity for advancement regardless of race. In the case of Petitioner, she had been regularly promoted, honored, and financially rewarded for her work. She suffered no adverse actions on the basis that she was African-American.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations, finding Respondent not guilty of an unlawful employment practice and dismissing Petitioner's Petition for Relief. It is FURTHER RECOMMENDED that each party's request for an assessment of attorney's fees and costs in this matter is DENIED. Although Petitioner acknowledged that no one at the Bank had ever made any remarks concerning her race, she nonetheless alleged and attempted to prove that the issue resulting in her termination from employment was motivated by race. The facts did not support her allegation, but it was not a frivolous charge in and of itself. DONE AND ENTERED this 9th day of October, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 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 October, 2007.
The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent, Beard Equipment Company, Inc., sells and maintains heavy equipment in Panama City, Florida. The Petitioner, Robert G. Harrison began employment with the Respondent in Panama City, Florida, in September, 1988. The Petitioner was employed as a janitor. Petitioner's duties included running numerous and varied errands which required driving of a motor vehicle. In April of 1989, Petitioner was hospitalized in order to adjust his medication for what he indicated was a bipolar disorder. However, at the hearing, Petitioner produced no expert testimony to establish that he was mentally handicapped or had bipolar disorder. At that time, Respondent became aware that Petitioner had a medical problem. Later, Petitioner was hospitalized in order to adjust his medication on two more occasions in 1989, and twice in 1992. On each occasion the Respondent accommodated Petitioner by making arrangements to hire temporary employees or readjust other employees' duties so that they could perform Petitioner's duties while he was hospitalized. In early 1992, the Respondent's liability insurance company conducted a random audit of employee driving records. The Respondent was notified by its insurance company that no coverage would be provided for any accident where the employee/driver had a DUI conviction. This random audit prompted Respondent to conduct a complete company- wide internal audit of driving records of all employees. The driving record audit resulted in some transfers for those employees for whom driving was an essential part of their job duties, but whose driving records would prohibit them from being covered under Respondent's liability policy. Employees who could not fulfill the duties of a non-driving position were terminated. Respondent could not afford to allow employees to drive who could not be insured by Respondent's liability carrier. The in-house driving record audit revealed that Petitioner had a DUI conviction on his record. Respondent had no other non-driving positions for which the Petitioner was qualified. Respondent was therefore forced to discharge the Petitioner since he could no longer fulfill the duties of his employment. Petitioner was discharged in November of 1992. When Petitioner was terminated, Petitioner was advised by Mark Veal, his supervisor, that the driving record audit had revealed that Petitioner had a DUI conviction, and because he would not be covered under the company insurance policy, they had no alternative but to discharge him. Within a day or so, Petitioner's wife called and requested his discharge letter in writing. Veal prepared the letter, indicating that due to Petitioner's medical history, his operating a motor vehicle would be too much of a liability. Although the real reason for Petitioner's discharge and the reason given him at the time was the DUI conviction, Veal tried to write the discharge letter in such a way as to minimize any embarrassment for the Petitioner due to his DUI conviction. Therefore, the termination letter does not support the conclusion that Respondent discriminated against Petitioner based on a mental handicap. In fact, there was no substantial evidence that Respondent terminated Petitioner based on a mental handicap. The evidence clearly showed Respondent was terminated for his driving record and his lack of qualifications to fill any other non-driving position. Moreover, Petitioner failed to establish that his position was filled by a person not in a protected class or that Respondent is an employer employing more than 15 employees. Given these facts, Petitioner has not established a prima facie case that Respondent committed an unlawful employment practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his alleged handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 22nd day of December, 1994, in Tallahassee, Florida. DIANE CLEAVINGER 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 22nd day of December, 1994.
The Issue Did the Respondent, Audie Lewis, violate the Petitioner, City of Cape Coral’s (Cape Coral), End User Computing Policy and ordinances of Cape Coral prohibiting an employee from unauthorized use of equipment and conduct detrimental to the interest of the city? If he did, what discipline is proper?
Findings Of Fact At all times material to this case, Cape Coral employed Mr. Lewis as a business recruitment specialist in the City’s Economic Development Office. Until this matter, Mr. Lewis was a satisfactory employee. He has no history of discipline. The city manager is responsible for deciding whether to terminate the employment of Cape Coral employees who are not supervised by a city department director. Mr. Lewis did not work in an office with a department director. Consequently he was under the supervision of the city manager. Chapter 2, section 2-31.1 of Cape Coral’s Code of Ordinances states that employees may only be disciplined for cause. It also establishes progressive discipline as the usual practice. But chapter 2, section 2-31.2 states: “The city, however, reserves the right to impose even the most severe discipline as an initial measure when circumstances warrant.” Cape Coral’s Administrative Regulation 46 (AR-46) page 3(J) states that every computer user must comply with all applicable policies. It cautions: “Non-compliance may result in disciplinary action up to and including discharge.” On April 20, 2016, the city manager terminated Mr. Lewis’s employment pursuant to chapter 2, section 2-31.3 of the Code of Ordinances and AR-46, the City’s End User Computing Policy. The relevant part of the Code section states: One or more of the following reasons shall constitute cause for disciplinary action: * * * (t) Unauthorized use of city personnel services, supplies, property, facilities, or equipment; * * * (hh) Actions or conduct detrimental to the interests of the city; In pertinent part, AR-46, page 6(E), states: Material that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by email or other form of electronic communication or displayed on or stored in the City’s computers including, but not limited to, messages and material with sexual comments, obscenities, pornography, abusive or degrading language, antisocial behavior, or inappropriate comments concerning race, color, religion, sex, national origin, marital status, or disability. Any message received that contains intimidating, hostile, or offensive material should be reported immediately to management so that appropriate measures can be taken. The End User Computing Policy prohibits use of the internet to view or download material that contains pornography or that is sexually explicit. Mr. Lewis knew of the policy contained in AR-46. The city manager based Mr. Lewis’s termination on “[u]nauthorized use of city personnel services, supplies, property, facilities or equipment,” “[a]ctions or conduct detrimental to the interests of the city,” and “[v]iolation of Administration Regulation 46 End User Computing Policy.” Cape Coral maintains a “zero tolerance” policy for pornography. This is a core part of Cape Coral’s commitment to a culture of professionalism. One reason for the policy is that the proximity of computer users to each other means one user’s display of pornographic images may be viewed by other users. On March 9, 2016, Cape Coral’s “Intrusion Prevent/Detection System” alerted the Information Technology Services Department (ITS) that city computer “cm5465” was connected to a web server possibly associated with adult content. The alert cautioned that the connection may lead to a malware infection and recommended checking the computer to ensure it had not been compromised. The computer was assigned to and used by Mr. Lewis. There is no persuasive evidence that others used the computer. On March 18, 2016, ITS’ network security administrator, Elizabeth Merriken, sent the human resources director a memorandum advising her of the activity. Ms. Merriken attached a report generated by Checkpoint, a security system the city uses to monitor traffic to and from city computers through the firewall. The system also monitors URLs visited and compares them to lists of URLs for suspect sites, such as pornography sites. It reported visits from Mr. Lewis’s computer to 85 suspect sites. The system functions automatically and cannot be manipulated. The report covered traffic for Mr. Lewis’s computer from March 7 through 10, 2016. ITS duplicated the hard drive of Mr. Lewis’s computer in order to analyze it and his internet activity. Ms. Merriken conducted a forensic analysis of the duplicate hard drive. The analysis did not find any evidence of a virus or malware. An analysis using the forensic software program, “Magnet Internet Evidence Finder,” found several pornographic items. It also found that a great deal of history had been deleted shortly after Mr. Lewis learned of the inquiry into his computer use. The analysis found over 100,000 pictures and more than 1,500 videos. During March 8 and 9, 2016, Mr. Lewis’s computer accessed pornographic websites approximately 85 times. ITS contracted with DR Data Security, LLC (Data Security), to conduct further forensic analysis of the hard drive from Mr. Lewis’s computer. Ryan Irving conducted the analysis for Data Security. Mr. Irving conducted his analysis using standard forensic tools. They included SigCheck, Internet Evidence Finder 6.7, Winhex 18.7, IE Cache View, and SANS Investigative Forensic Toolkit 3.0. His analysis corroborated the report from the City’s analysis of March 8 and 9. It also identified similar activity between June and December of 2015. Mr. Irving recovered 54 images from Mr. Lewis’s computer downloaded in December 2015. The images include topless women and nude women, alone and paired in sexually explicit poses. The city manager notified Mr. Lewis of his intent to impose discipline. Cape Coral complied with its due process policies, providing Mr. Lewis notice of the charges against him and the evidence relied upon. It also gave him an opportunity to rebut or explain the information. Mr. Lewis’s statements during a pre-disciplinary interview acknowledging that he might have “accidentally” seen nude images while using Google to search for work-related subjects corroborate the reports of the images and visits to pornographic websites. The testimony that so many images would have been displayed “accidentally” is implausible; there is no expert testimony to support it and no testimony about what search subjects would have generated the images. A brief list of search terms and some of the sites visited demonstrates the implausibility of the “accidental visitation.” They include: Debbie Davis Playboy Centerfold, images.playboy.com, teen pornmovies.ratedxblogs.com, lustfulpics.com, boobieblog.com, glamourcenterfolds.com, and spylove.com, interspersed with URLs for more prosaic sites, such as Amazon and Etsy. After considering all of the information, the city manager issued a “Final Notice of Discipline” letter to Mr. Lewis, terminating his employment, stating the grounds for the termination, and advising Mr. Lewis of his right to seek review. Mr. Lewis repeatedly used his city computer to view websites with pornographic images. This activity was an unauthorized use of city equipment. Mr. Lewis used his city computer to display pornography. Mr. Lewis used his city computer to intentionally view and download electronic material that contains pornography and was sexually explicit from the internet. Mr. Lewis’s activities, summarized in paragraphs 19 through 21, were willful.
Findings Of Fact The Petitioner was employed with the Respondent from August 3, 1985 until May 10, 1986, as a waitress in the dining room of the Kings Inn Restaurant in Pensacola, Florida. In March, 1987, the Petitioner became pregnant. She then informed her employer, Mr. Judge of her pregnancy. He told her initially that she could work as long as the doctor allowed her to. Shortly thereafter, he told her that she could not work after five months of pregnancy. On another occasion, his assistant manager, Mr. Dungan, told her that she could not work after she "started showing." Once the Respondent, Mr. Judge, learned of the Petitioner's pregnancy, he began a regime of harassing treatment. For instance, Mr. Judge made her do the "side work," filling up all the salt and pepper shakers and sugar bowls for all of the waitresses and waitress stations. It had always been uniform policy that each waitress had the responsibility to do her own side work for her own station and tables. Mr. Judge also began yelling and cursing at her in front of her workers and customers, causing her great humiliation and embarrassment. He criticized her publicly about her posture and the way she serviced customers, although she had always had an excellent record as a competent waitress and had no complaints from customers or former employers, before announcing that she was pregnant. Mr. Judge also began a practice of constantly questioning other employees about the Petitioner's job performance, although he apparently learned of no substandard performance in both her duties and her attitude toward her customers. He also took her to task about her "charge tips" being less than other employees, apparently the measure he used to determine if a waitress was serving her customers appropriately and adequately. This situation, however, was caused by his discriminatory conduct toward her in giving her fewer tables to serve and thus, reducing her tip income. Mr. Judge additionally assigned her to clean up a portion of the kitchen area, particularly the "bread shelves" when normal policy had been for kitchen personnel to perform all kitchen clean-up duties, with any clean up of the bread shelf area being rotated amongst the dining room personnel. The Petitioner, however, was singled out for this duty exclusively after it became known that she was pregnant. The Petitioner was also required to stay late and perform certain closing duties at the end of business late at night, much more often than other waitresses. In addition to performing restaurant closing duties, she was frequently required to wait on cocktail tables as late as 2:00 in the morning on many of the "late duty" occasions, even though she was hired as, and until she became pregnant worked exclusively as, food waitress. Petitioner's testimony and Petitioner's exhibit 2, in evidence, establishes that, although Petitioner was only scheduled to stay late three times in March, three times in April and once in May that, in fact, she worked late, that is, after all other employees or waitresses had been released for the evening seven out of nine days that she worked in March; nine out of twelve days she worked in April; and six out of the seven days she worked in May. Indeed, on May 10, 1986, the last day she worked for the Respondent, Mr. Judge required her to stay late and to "bus" all the tables, that is clean all the tables, in the dining room, allowing the waitress who was scheduled to stay late that night to leave early. The Petitioner became quite upset at this turn of events and resigned her position, due to the repeated pattern of harassment as described herein. Although Mr. Judge initially told the Petitioner that she could work as long as the doctor allowed her to during her pregnancy, in fact, on April 11, 1986, Mr. Judge hired the Petitioner's replacement. He hired Pamela Modes and had the Petitioner train her in her waitress duties. He stated to Ms. Modes privately when hiring her "that he needed a food waitress" because "he's got a girl that's pregnant." Additionally, he told the Petitioner that he objected to her working because of her pregnancy and claimed his insurance would not allow him to employ her after she was five months pregnant. These statements, coupled with the statement by his assistant manager, Mr. Dungan, to the effect that she would not be employed there "once she started showing" reveal an intent by the employer to terminate the employee, the Petitioner, because of her pregnancy. Instead of terminating her outright, the Respondent chose to put sufficient pressure on the Petitioner through extra, unscheduled work duties and the other above-mentioned forms of harassment, so as to coerce her into leaving the Respondent's employ. The Petitioner thus made a prima facia showing that she was forced to terminate employment due to her sex and her pregnancy, and no countervailing evidence was adduced by the Respondent.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and the demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida Human Relations Commission finding that an unlawful employment practice has occurred through the Respondent's discrimination against the Petitioner because of her sex (pregnancy) and that she be accorded all relief allowed under the above- cited section, including backpay and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ORDERED this 21st of March, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 21st day of March, 1989. COPIES FURNISHED: Debra A. Larson, Pro Se 9742 Aileron Avenue, Apt. 606 Pensacola, Florida 32506 Dracut Corporation d/b/a Kings Inn Restaurant Lawrence F. Judge, Jr. Owner/General Manager 1309 Maldonado Pensacola Beach, Florida 32561-2323 Donald A. Griffin Executive Director Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue is whether Respondent committed an unlawful employment act against Petitioner pursuant to Chapter 70 of the Pinellas County Code, as amended, and Title VII of the U.S. Civil Rights Act of 1964, as amended.
Findings Of Fact Petitioner, a black female, is a member of a protected group. Respondent is an employer as defined in the Pinellas County Code, as amended, and Title VII of the Civil Rights Act of 1964, as amended. Respondent hired Petitioner as a telemarketer on December 8, 1997. Petitioner's job required her to call the telephone numbers on a list furnished by Respondent. After making the call, Petitioner was supposed to solicit the booking of vacations in time-share rental units by reading from a script prepared by Respondent. The script included an offer to sell potential customers three vacations in three locations for $69. When Respondent hired Petitioner, she signed a copy of Respondent's "New Employee Policy and Procedures" manual. Petitioner admits that this manual required her to book 25 vacations each pay period after a two-week training period. She also admits that the manual required her to only use the prepared script, including preplanned rebuttals to customer questions when talking over the telephone. Petitioner understood that during the two-week training period, she would be required to book 14 vacations or be terminated. She knew that Respondent's supervisors would monitor her sales calls. Petitioner sold four vacation packages in her first week at work with no complaints from her supervisors. In fact, one of Respondent's supervisors known as Mike told Petitioner, "You got the juice." On December 15, 1997, Mike monitored one of Petitioner's calls. Petitioner admits that she did not use the scripted rebuttals in answering the customer's questions during the monitored call. Instead, she attempted to answer the customer's questions using her own words. According to Petitioner, she used "baby English" to explain the sales offer in simple terms that the customer could understand. After completing the monitored call on December 15, 1997, Mike told Petitioner to "stick to the shit on the script." Mike admonished Petitioner not to "candy coat it." Petitioner never heard Mike use profanity or curse words with any other employee. Before Petitioner went to work on December 16, 1997, she called a second supervisor known as Kelly. Kelly was the supervisor that originally hired Petitioner. During this call, Petitioner complained about Mike's use of profanity. When Kelly agreed to discuss Petitioner's complaint with Mike, Petitioner said she would talk to Mike herself. Petitioner went to work later on December 16, 1997. When she arrived, Mike confronted Petitioner about her complaint to Kelly. Petitioner advised Mike that she only objected to his language and hoped he was not mad at her. Mike responded, "I don't get mad, I get even." When Petitioner stood to stretch for the first time on December 16, 1997, Mike instructed her to sit down. Mike told Petitioner that he would get her some more leads. Mike also told Petitioner that she was "not the only telemarketer that had not sold a vacation package but that the other person had sixty years on her." Petitioner was aware that Respondent had fired an older native-American male known as Ray. Respondent hired Ray as a telemarketer after hiring Petitioner. When Petitioner was ready to leave work on December 17, 1997, a third supervisor known as Tom asked to speak to Petitioner. During this conversation, Tom told Petitioner that she was good on the telephone but that Respondent could not afford to keep her employed and had to let her go. Tom referred Petitioner to another company that trained telemarketers to take in-coming calls. Tom gave Petitioner her paycheck, telling her that he was doing her a favor. During Petitioner's employment with Respondent, she was the only black employee. However, apart from describing the older native American as a trainee telemarketer, Petitioner did not present any evidence as to the following: (a) whether there were other telemarketers who were members of an unprotected class; (b) whether Petitioner was replaced by a person outside the protected class; (c) whether Petitioner was discharged while other telemarketers from an unprotected class were not discharged for failing to follow the script or failing to book more than four vacations during the first ten days of employment; and (d) whether Petitioner was discharged while other telemarketers from an unprotected class with equal or less competence were retained. Petitioner was never late to work and never called in sick.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the City's Human Relations Review Board enter a final order dismissing Petitioner's Complaint. DONE AND ENTERED this 16th day of November, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 16th day of November, 2001. COPIES FURNISHED: Bruce Boudreau Vacation Break 14020 Roosevelt Boulevard Suite 805 Clearwater, Florida 33762 Donna Conway 3156 Mount Zion Road No. 606 Stockbridge, Georgia 30281 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Stephanie Rugg, Hearing Clerk City of St. Petersburg Community Affairs Department Post Office Box 2842 St. Petersburg, Florida 33731
