The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, by discriminating against Petitioner based on an alleged handicap.
Findings Of Fact Respondent is an employer as that term is defined in Section 760.10, Florida Statutes. Respondent employed Respondent in January 1990. Respondent reassigned Petitioner to the Division of Recreation and Parks in 1993. At the time of his dismissal in October 2003, Petitioner was working as a park ranger at the St. Marks GeoPark in Wakulla County, Florida. Petitioner is a history aficionado. He enjoys researching Florida and Civil War history. He has authored a 200-page book entitled The Civil War in and Around St. Marks, Florida. He has written an article entitled "Forts in St. Marks during the War Between the States." Petitioner enjoys participating in history interpretations for the public. Several times in the past decade, Respondent nominated him for an award for his activities in history interpretations. Petitioner has constructed colonial-era equipment and musical instruments. Although they are his personal property, Petitioner has used them in displays for the public at state parks. Petitioner researched the historical accuracy of his projects both at home and at work. Petitioner had surgery in 2000 for a cervical herniated disc. After the surgery, Respondent made accommodations for Petitioner in the form of lighter duty assignments during his recovery period in keeping with his doctor's request. In a letter dated August 28, 2000, Petitioner's doctor set forth the specific type of work that Petitioner could and could not perform. The doctor released Petitioner to perform desk work, telephone duties, and visitor services but no maintenance duties. At all times relevant here, Thomas Nobles was Petitioner's immediate supervisor. Mr. Nobles and Petitioner have known each other since high school. However, they did not have a good relationship at work. In 2001, Petitioner filed gender discrimination charges against Mr. Nobles. Respondent conducted an investigation and exonerated Mr. Nobles. Mr. Nobles wrote several counseling memoranda and one reprimand, which criticized Petitioner's work performance. Among other things, Mr. Nobles warned Petitioner not to visit a music store in Tallahassee during work hours. In a memorandum dated July 19, 2002, Mr. Nobles discussed his concern over Petitioner's work habits that allegedly caused damage to a state-owned vehicle and other property and Petitioner's inability to complete paperwork. Petitioner responded to each of Mr. Nobles' criticisms in a memorandum dated July 28, 2002. On September 20, 2002, Mr. Nobles wrote a memorandum to document an earlier conversation with Petitioner regarding Mr. Nobles' concern that Petitioner was not keeping the park neat. In the memorandum, Mr. Nobles instructed Petitioner not to bring "personal projects" to work, specifically referring to a mandolin that Petitioner had been sanding in the park office. In a memorandum dated October 22, 2002, Mr. Nobles criticized Petitioner for reading a book about musical instruments. Mr. Nobles warned Petitioner not to let personal projects take priority over the park's appearance and cleanliness. On February 25, 2003, Petitioner called his office to provide his employer with the date of his second neck surgery, which was scheduled for March 5, 2003. During the telephone call, Petitioner asserted that he required further surgery due to his work-related injury. However, Petitioner never filed a workers' compensation claim; he believed that he was not eligible for workers' compensation due to a preexisting condition. After Petitioner's March 2003 surgery, Respondent returned to work. In a letter dated April 10, 2003, Petitioner's doctor released him to work running a museum. On or about May 7, 2003, Petitioner's doctor released him to light- duty work assignments, including no more than one hour of lawn maintenance at a time. In a letter dated July 29, 2003, Mr. Nobles' doctor once again restricted Petitioner's work assignments. Petitioner was not supposed to use heavy machinery or operate mowers, edgers, or similar equipment for prolonged periods of time. The doctor recommended that Petitioner avoid repetitive gripping and lifting. There is no evidence that Respondent failed to provide Petitioner with these accommodations. In the meantime, on July 23, 2003, Mr. Nobles requested Respondent's Inspector General to investigate a posting on the eBay Internet site involving a replica of a 1800s guitar, advertised as being made of wood from the Gregory House, a part of Torreya State Park in Gadsden County, Florida. The Inspector General subsequently commenced an investigation. Petitioner posted the advertisement for the guitar under his eBay site name. Petitioner makes replica mandolins and guitars and occasionally sells them on eBay. Petitioner bragged to at least one co-worker in 2003 that he had made a lot of money selling musical instruments on eBay. One of Petitioner's friends made the "Gregory House" guitar out of discarded roof shingles. Petitioner merely posted the advertisement on his internet site because his friend did not know how to use a computer. During the Inspector General's investigation, Petitioner admitted that he had accessed eBay at work but denied he had used it for bidding. An inspection of the hard drive of the computer at Petitioner's office revealed that someone using Petitioner's eBay password had accessed eBay four times from April-July 2003. Around the general time and date of one of those occasions, someone placed an eBay bid on the "Gregory House" guitar. Additionally, the computer at Petitioner's office had been used to access numerous musical instrument and/or woodworking Internet sites other times from April-July 2003. Petitioner was at work on most, but not all, of the days. A park volunteer admitted that she sometimes used the office computer to access eBay. Respondent's policy prohibits an employee from accessing the Internet for personal use if that use adversely affects the employee's ability to perform his job. Personal use of the Internet should be "limited to the greatest extent possible." Petitioner was aware of Respondent's Internet policy. Nevertheless, he used the Internet for personal reasons at work to access eBay and sites related to his woodworking business after he had been counseled not to let personal projects interfere with his park duties. This caused him to not be available to do park business and, therefore, adversely affected his ability to do his job. Petitioner violated Respondent's Internet use policy. Respondent terminated Petitioner's employment on September 25, 2003, for alleged rule violations, conduct unbecoming a public employee, and perjury. Petitioner appealed to the Florida Public Employees Relations Commission (PERC), contending that Respondent lacked cause to discipline him. PERC appointed a Hearing Officer to conduct a hearing and issue a Recommended Order. The PERC Hearing Officer conducted a public hearing on October 28, 2003. The Hearing Officer issued the Recommended Order on November 10, 2003. In the instant case, the parties stipulated that they would not re-litigate issues previously litigated at the PERC hearing. The PERC Hearing Officer found as follows: (a) Respondent had cause to discipline Petitioner for violating the computer use policy; and (b) Respondent had discretion to discipline Petitioner by terminating his employment. On November 24, 2003, PERC entered a Final Order adopting the Hearing Officer's Recommended Order. The greater weight of the evidence indicates that Respondent did not allow employees, other than Petitioner, to read books unrelated to work during office hours. In fact, Respondent did not terminate Petitioner for any of the following reasons: (a) because he read history books at work; (b) because he might file a workers' compensation claim for a work-related injury; (c) because he filed a gender discrimination against Mr. Nobles; or (d) because Respondent intended to eliminate his position. Rather, Respondent dismissed Petitioner for using the office computer for personal reasons. Respondent has fired other employees for the same reason. At the time of his dismissal, Petitioner believed that he was physically incapable of performing the duties of his position. However, there is no evidence that Respondent failed to provide Petitioner with appropriate accommodations as requested by Petitioner's doctors.
Recommendation Based on the forgoing 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 28th day of March, 2005, 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 28th day of March, 2005. COPIES FURNISHED: Allen Gerrell, Jr. 10750 Kilcrease way Tallahassee, Florida 32305 Marshall G. Wiseheart, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32399-3000 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32399-3000
The Issue Whether Petitioner was wrongfully terminated from his position as a janitor with Respondent because of his handicap, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner, Lee, was hired by Respondent in August 1994 as a custodial worker at the Tallahassee Mall in Tallahassee, Florida. As a janitor Petitioner's duties included bending, stooping, and lifting. He was assigned to zone 3 in the Mall. Up until 1996, when Petitioner was injured, Petitioner received good evaluations on his job performance. Indeed Petitioner was very proud of the quality of his work and took special care to do his job well. Sometime prior to May 20, 1996, Petitioner, while at work and in the scope of his employment, stepped on a set of stairs which were not properly attached to a stage in the Tallahassee Mall. The steps slipped causing Petitioner's feet to come out from under him. Petitioner fell flat on his back. As a consequence Petitioner suffered a permanent back injury for which he received workers' compensation. The injury impairs his ability to work and therefore is a handicap. Around May 20, 1996, Petitioner was released by his doctor and was given orders for light duty with no bending, stooping, or heavy lifting. Petitioner gave these orders to his supervisor, Mr. Navin, when he returned to work on May 20, 1996. Respondent had light duty work available which Petitioner was qualified to perform. However, Respondent did not assign Petitioner to light duty work, but changed his work area from zone 3 to zone 1. Zone 1 is located at the front entrance to the mall and requires more work to maintain. Petitioner attempted to perform his duties but could only work for 3 1/2 hours before being overcome by pain from his injury. Petitioner could not work the next four working days because of the aggravation of his injury. On May 28, 1996, after returning to work, Petitioner was again given full duty work. Petitioner attempted to perform his custodial duties for about 2 weeks. However, the pain from his injury was so severe he again requested light duty work. Petitioner's supervisor asked Petitioner to bring him another notice from his doctor. Petitioner's doctor faxed the supervisor a second notice and Petitioner was placed on light duty work. Once Petitioner was placed on light duty work, the mall manager, Mr. Renninger, followed Petitioner around the mall watching him all the time while he worked. On July 8, 1996, prior to the mall opening for business, Petitioner was helping one of the mall store owners with a problem. Such aid was part of Petitioner's job. The mall manager walked up to Petitioner and began to yell at him in a very rude and disrespectful manner. The manager would not listen to Petitioner's explanation of the event. The manager gave Petitioner a written disciplinary notice for his aid to the mall store owner. The manager continued to follow Petitioner around the mall while he worked. Sometime around August 15, 1996, the mall manager advised the mall's employees that they should take their respective vacations prior to October. Petitioner thought it would be a good time for him to take the 4-day vacation time he had accumulated during his employment with the mall. He could use the time to allow his back to heal more. On August 15, 1996, Petitioner requested vacation leave and vacation pay for the period beginning September 3, 1996 and ending September 9, 1996. Initially, the request was denied. Petitioner's supervisor felt he had missed too much work and been late too often. However, Petitioner had only been absent or late in relation to his back injury. Petitioner explained that fact to his supervisor. His supervisor agreed and approved Petitioner's vacation. Petitioner returned to work on August 10, 1996. An argument with the administrative assistant occurred when she refused to recognize that Petitioner was entitled to be paid for his vacation time. She was not going to turn in any time for him so that Petitioner could get paid while on vacation. Getting a paycheck was a serious matter to Petitioner, and Petitioner, understandably, became gruff with the administrative assistant. Petitioner only raised his voice at the administrative assistant. He was not abusive and did not curse at her. In fact, the administrative assistant yelled at Petitioner when he raised the subject of his pay "Now, before you start bitching." Petitioner called the headquarters of Respondent and confirmed he had vacation time and pay accrued. After this incident Petitioner was fired ostensibly for mistreating the administrative assistant. The administrative assistant, who was incorrect, was not terminated. The reason appears to be a pretext. Petitioner's pay was $5.35 per hour and he worked a 40-hour-work-week. After his termination, Petitioner actively sought employment but could not find any until September 1, 1997. At that time he began work for Tallahassee Community College as a custodial worker with light duties at a higher rate of pay. Petitioner's search for work was reasonable.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding Respondent guilty of an unlawful employment practice against Petitioner and awarding Petitioner backpay in the amount of $11,770.00. DONE AND ENTERED this 27th day of October, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2000.
The Issue The issues are whether Respondent violated section 112.313(6), Florida Statutes (2018), by exhibiting inappropriate behavior toward city staff; and, if so, what is the appropriate penalty.
Findings Of Fact Respondent served as a city commissioner of Madeira Beach from 2007 through March 2013, and was reelected to the office in March 2017. Shane Crawford served as the city manager of Madeira Beach from January 2012 through July 2017. Cheryl McGrady Crawford served as a full-time employee of Madeira Beach in different capacities: intern for the planning and zoning coordinator; in the building department; and city clerk. In addition, she served as the executive assistant to then-City Manager Shane Crawford from September 2012 through February 2017, where her job responsibilities included acting as deputy clerk when the city clerk was unable to attend a function or meeting. David Marsicano has been serving as Madeira Beach’s public works and marina director for 17 years. Travis Palladeno served as the mayor of Madeira Beach from 2011 through 2017. Terry Lister served as a city commissioner of Madeira Beach from 2008 through 2018. Francine Jackson was a Madeira Beach employee for approximately 11 years. Her last position was as the assistant to Public Works Director Marsicano from 2012 through 2014. Thomas Verdensky is the president of the Old Salt Foundation, which is a volunteer organization. Joseph Campagnola is a retired 13-year New York City police officer who has volunteered as head of security (coordinates sheriff’s department and personal guards) for Old Salt Foundation events for the past nine years. Nicole Bredenberg was present at the November 3, 2012, Madeira Beach City Commission (“City Commission”) meeting. Respondent is subject to the requirements of chapter 112, part III, the Code of Ethics for Public Officers and Employees, for her acts and omissions during her tenure as a city commissioner of Madeira Beach. See § 112.313(6), Fla. Stat. and City Charter Section 2-31 Duties and Responsibilities. As a city commissioner of Madeira Beach, Respondent took an oath “to faithfully perform the duties of [her] office and the Constitution of [sic] the laws of the State of Florida and the United States of America.” As a city commissioner of Madeira Beach, Respondent was prohibited from interfering with administration as provided: “The Board of Commissioners nor any member thereof shall give orders to any subordinate or Officer of said City, either publicly or privately, directly or indirectly.” As a city commissioner, Respondent’s responsibilities included attending City Commission meetings, regular or special. At the City Commission meetings, the city clerk is responsible for taking the meeting minutes. If the city clerk is unavailable, a substitute is needed or the meeting cannot be held. Mr. Palladeno told the new Madeira Beach city manager, Shane Crawford, that he wanted an outdoor meeting since they are a beach community. In November 2012, an outdoor City Commission meeting was held in conjunction with the King of the Beach Tournament, a fishing tournament occurring biannually in Madeira Beach. The meeting was to recognize Bimini, Bahamas, as Madeira Beach’s sister city with a presentation of a key to the city and a proclamation. The King of the Beach Tournament is organized by the Old Salt Fishing Foundation. The event was held on a baseball field having field lights, which turned on as it started to get dark. Respondent was present at this event in her official capacity to participate in the meeting. She had consumed alcohol at the all-day fishing tournament. Then-city clerk, Aimee Servedio, could not attend this meeting, so a substitute was required or the meeting could not go forward. Ms. McGrady (prior to her becoming Ms. Crawford) had been assigned the role of deputy clerk and was prepared to take minutes. Respondent dislikes Ms. Crawford because she believed, without any proof produced at hearing and a firm denial at hearing by Ms. Crawford, that she and Shane Crawford were having an affair at the time of the meeting at issue, which was prior to their marriage. The City Commission could not start the meeting the evening after the tournament because Respondent refused to go on stage due to Ms. McGrady’s role as deputy clerk. There was a heated discussion between Shane Crawford, Ms. McGrady, and Respondent. Respondent actually refused to attend the meeting if Ms. McGrady was present, and demanded that she be removed from the area. Mr. Palladeno and an official Bimini representative were in the vicinity of the heated discussion. Referring to Ms. McGrady, and in her presence, Mr. Palladeno heard Respondent say, “You need to get that f[***]ing b[itch] out of here.” Mr. Palladeno rushed in to move the Bimini representative away from the situation. Lynn Rosetti, who at that time was the planning and zoning director, had to fill in because Respondent refused to attend the meeting if city employee, Ms. McGrady, was allowed to substitute for the city clerk. Respondent’s actions interfered with Ms. McGrady’s job duties. After the meeting was over, Respondent approached Shane Crawford with Ms. McGrady, David Marsicano and his then- wife Shelley, and Nicole Bredenberg also in the immediate area. Using her tongue, Respondent licked City Manager Shane Crawford up the side of his neck and face. This act was witnessed by Ms. McGrady, Mr. Marsicano, Mr. Bredenberg, and Mr. Verdensky. Respondent then groped City Manager Shane Crawford by grabbing his penis and buttocks. This act was witnessed by Ms. McGrady and Mr. Bredenberg. Respondent then threw a punch at Ms. McGrady after she told Respondent that her actions were inappropriate. Mr. Marsicano’s ex-wife intervened and confronted Respondent. Mr. Verdensky, who testified that he had been licked by Respondent on a different occasion, called for the head of security, Joseph Campagnola. Mr. Campagnola arrived between one to two minutes after the call. By the time he arrived, Respondent was walking away. However, he found Shane Crawford, Ms. McGrady, and Ms. Marsicano. He was told by Mr. Crawford that Respondent licked his face and grabbed him, which was corroborated by Mr. Marsicano and Ms. McGrady. Mr. Marsicano, who testified he had also been licked by Respondent on a different occasion, has a distinct memory of Respondent’s actions at the November 2012 City Commission meeting because of the “disruptions and shenanigans” that happened before, during, and after the meeting. He had to lead his wife away because she was so upset with Respondent. Mr. Marsicano also testified that he witnessed the face-licking of Mr. Crawford by Respondent. He subsequently spoke with Francine Jackson about what happened at that meeting. Ms. Jackson was not present for the November 2012 City Commission meeting. However, that following Monday or Tuesday, she discussed the weekend with Mr. Marsicano and was informed by him that Respondent licked Mr. Crawford’s face. Ms. McGrady was placed in a predicament when Respondent’s animosity towards her became overt and physical. Respondent created a hostile environment and employees were rightfully fearful of retaliation if they reported Respondent’s actions. Robin Vander Velde is a former city commissioner of Madeira Beach and has known Respondent since 2007. Ms. Vander Velde was outraged about an ethics complaint being filed against her very good friend of ten years. Present in her capacity as a city commissioner at the November 2012 meeting, her recollection of the events was foggy, at best. Ron Little is Respondent’s best friend of 20 years and Ms. Vander Velde’s boyfriend. He honestly acknowledged that it is a given that he would want to help Respondent. Mr. Little was unaware of Respondent’s Driving under the Influence (“DUI”) arrest, petit theft arrest, alleged participation in a United States Postal Service (“USPS”) mail hoax, and the reasons why she left her City of Clearwater employment. Elaine Poe is a former city commissioner of Madeira Beach. Ms. Poe was unaware of Respondent’s petit theft arrest, alleged participation in a USPS mail hoax, and why she left her City of Clearwater employment. While Ms. Poe was at the November 2012 meeting, she did not recall the meeting starting late. Jim Madden is a former city manager of Madeira Beach. He was also unaware of Respondent’s petit theft arrest and alleged participation in a USPS mail hoax. Doreen Moore was unaware of Respondent’s petit theft arrest and alleged participation in a USPS mail hoax. Linda Hein met Respondent in 2016. She was unaware of Respondent’s petit theft arrest. Originally, Ms. Hein did not remember attending the November 2012 meeting until her memory was refreshed; regardless, she could not provide eyewitness testimony concerning the alleged licking incident. Michael Maximo, is the former Madeira Beach community services director. He testified he had been licked by Respondent on a different occasion, during the soft opening of a Bubba Gump’s Restaurant in John’s Pass Village. He recalled the details of the specific incident and said Respondent was inebriated at the time, and she came over to him and licked his face and neck in the presence of her husband, who quickly escorted her from the building. Mr. Maximo refuted the testimony of Respondent’s witnesses as his knowledge of Respondent’s reputation in the community was as a “fall down drunk,” who should not be representing the community. This was a different picture from the one painted by Respondent’s friends who, while admitting she liked to have a drink or several with them and others, they could not imagine her licking someone in public.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order finding that Respondent, Nancy Oakley, violated section 112.313(6), Florida Statutes, and imposing a public censure and reprimand and a civil penalty of $5,000. DONE AND ENTERED this 7th day of December, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2018. COPIES FURNISHED: Kennan George Dandar, Esquire Dandar & Dandar, P.A. Post Office Box 24597 Tampa, Florida 33623 (eServed) Melody A. Hadley, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Elizabeth A. Miller, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399 (eServed) Millie Fulford, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) C. Christopher Anderson, III, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Virlindia Doss, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed)
The Issue The issue is whether the Petition for Relief should be dismissed for lack of jurisdiction because Respondent was not Petitioner’s employer.
Findings Of Fact The complaint alleged that Petitioner was the victim of employment discrimination based upon her race. The employers identified in the complaint were Respondent and Civigenics/Community Education Centers (Civigenics). The determination issued by FCHR with respect to Respondent stated in pertinent part:1/ The Commission lacks jurisdiction over the Complaint of Discrimination because the Respondent is not the Complainant’s employer. The investigation revealed that Civigenics/Community Education Center, not Respondent, is the proper Respondent in this case. The petition does not allege that Respondent was Petitioner’s employer. Rather, the petition “give[s] acknowledgement to the determination [of] no jurisdiction” and then focuses on the merits of Petitioner’s discrimination complaint. Respondent argues in its motion to dismiss that “Petitioner acknowledges and therefore, concedes the validity of FCHR’s no jurisdiction determination in her request for relief.” The Order to Show Cause entered on October 10, 2008, stated in pertinent part: The petition does not appear to raise any disputed issues of fact as to whether DOC was Petitioner’s employer. That is the only issue properly before the undersigned in this case based upon the “no jurisdiction” determination issued by the Florida Commission on Human Relations (FCHR). Petitioner is entitled to a de novo hearing on the issue of whether DOC was her employer. If it is determined that DOC was her employer, then the case will be returned to FCHR with a recommendation that it investigate the merits of Petitioner’s discrimination complaint against DOC. [Endnote omitted]. If it is determined that DOC was not Petitioner’s employer, then the case will be returned to FCHR with a recommendation that the petition be dismissed based upon a lack of jurisdiction. That said, Petitioner is only entitled to a formal administrative hearing at the Division of Administrative Hearings (DOAH) if there are disputed issues of fact as to whether DOC was Petitioner’s employer. If there are no disputed issues of fact, then DOAH must relinquish jurisdiction back to FCHR. See § 120.57(1)(i), Fla. Stat. As stated above, the petition does not appear to raise any disputed issues of fact on this issue; rather, it “give[s] acknowledgement to the determination of no jurisdiction” and then focuses on the merits of the discrimination complaint. The Order to Show Cause directed Petitioner to: show cause in writing as to why DOC’s Motion to Dismiss should not be granted and/or Petitioner shall file an amended petition that identifies the factual basis upon which Petitioner contends that DOC was her employer. The Order advised Petitioner that: Failure to respond to this Order and/or failure to identify any disputed issues of fact as to whether DOC was Petitioner’s employer will result in a Recommended Order of Dismissal or an Order closing DOAH’s file and relinquishing jurisdiction to FCHR. Petitioner’s response to the Order to Show Cause stated in pertinent part: This is response to the Order to Show Cause, Case #08-4878. I am submitting in response to this order the attachments of a notice of hearing to be held in this case at the Board of County Commissioners, Community Treasures [sic] Room, First Floor, County Administration Building, 12 Southeast First Street, on December 1, 2008, at 1:00 p.m., Gainesville, FL. I am also submitting a copy of the Order of Pre Hearing Instructions. All information as required will be provided at the times ordered. The response does not allege any facts that might establish that Respondent was Petitioner’s employer. The pleadings do not raise any disputed issues of material fact concerning whether Respondent was Petitioner’s employer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, Respondent’s motion to dismiss is granted, the final hearing scheduled for December 1, 2008, is cancelled, and it is RECOMMENDED that FCHR issue a final order dismissing the petition with prejudice. DONE AND ENTERED this 30th day of October, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2008.
Findings Of Fact On September 13, 1989, petitioner, Donald Ray Ballard, filed an application with respondent, Department of State, Division of Licensing (Department) for a Class "A" private investigative agency license and Class "C" private investigator's license. Pertinent to this case, the application, which was attested to by petitioner, averred that he had never been convicted for any violation of the law. By letter of February 8, 1990, the Department timely denied petitioner's application predicated on its contention that petitioner had been convicted of four felonies on April 28, 1980, to wit: sale of cocaine, possession of cocaine, possession of a short barreled rifle, and possession of narcotics paraphernalia. Petitioner filed a timely request for formal hearing, which contested the fact that he had ever been so convicted, and the matter was referred to the Division of Administrative Hearings to conduct a hearing pursuant to Section 120.57(1), Florida Statutes. At hearing, the Department introduced into evidence certified copies of a judgment, order and commitment entered by the Circuit Court for Palm Beach County, Florida, on April 28, 1980, and bearing Case No. 79-2970 CF B 02. Those documents reflect that one Donald Ballard entered a plea of guilty to the offense of sale of cocaine (Count I), possession of cocaine (Count II), possession of a short barreled rifle (Count III), and possession of narcotics paraphernalia (Count IV). The documents further reflect that such person was found guilty on Counts I and II and that imposition of sentence was withheld, and that adjudication of guilt and imposition of sentence was withheld as to Counts III and IV. As to each count, such person was placed on probation for a period of 5 years, to run concurrently with each other, under the supervision of the Florida Department of Corrections. Petitioner denies that he and the Donald Ballard so charged and convicted are the same person. Officer Stephen Lobeck, the officer who arrested the person charged and convicted, as heretofore discussed, identified petitioner within a 90 percent degree of certainty as the same person he arrested. Melanie Eggleston, who was employed as a probation parole officer with the Florida Department of Corrections from 1980 until April 1985, positively identified petitioner as the same Donald Ballard she supervised as a probationer following his conviction for drug dealing. Given such credible identification, and the fact that the term of probation for the person she supervised was due to terminate in April 1985, it is more likely than not that the respondent is the same Donald Ballard who was convicted on April 28, 1980, as heretofore discussed. In concluding that respondent was so convicted on April 28, 1980, it has been unnecessary to consider the arrest record of the Sheriff's Office, Palm Beach County, Florida, for August 3, 1979 (Respondent's exhibit 3, page 2) or Officer Lobeck's arrest report (Respondent's exhibit 2). These documents are hearsay, as discussed supra at footnote 3, but due to the provisions of Section 120.58(1)(a), Florida Statutes, are, nevertheless, admissible in administrative proceedings to supplement or explain competent evidence. Harris v. Game and Fresh Water Fish Commission, 495 So.2d 806 (Fla. 1st DCA 1986). Here, the persuasive testimony of Officer Lobeck and Ms. Eggleston, provided competent proof of petitioner's identity as the Donald Ballard who was convicted on April 28, 1980. Were the arrest record considered, as supplementing that proof, it would be supportive of the ultimate conclusion reached. In this regard, the arrest record identifies the subject as Donald Ray Ballard; his local address as 149 Granada Drive, Palm Springs, Florida; his occupation as disabled veteran; his date of birth as December 2, 1931; his social security number as 240-40-4932; and his general description as that of a white male, height 5'7", weight 144 pounds, black hair, brown eyes, and medium complexion. Petitioner's general description is grossly consistent with the description contained in the arrest record, his residence address at the time was 149 Granada Drive, Palm Springs, Florida, and he is a disabled veteran. Further, while the identification petitioner produced at hearing referenced a date of birth of December 3, 1931, the proof also reflects that he had, on other occasions, been attributed with a date of birth of December 2, 1931. Specifically, the two DD214 forms he attached to his application to evidence his military service, as well as his transcript from Indiana Technical College, reflect a date of birth of December 2, 1931. Finally, petitioner's social security number has been variously reported as 240-40-4937 and 240-40-4937A. But for the last digit, petitioner's social security number is consistent with the social security number contained on the arrest record. 4/ On balance, the arrest record is supportive of the competent proof which identified petitioner as the Donald Ballard convicted on April 28, 1980.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's application for a Class "A" private investigative agency license and Class "C" private investigator's license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of March 1991. WILLIAM J. KENDRICK 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 27th day of March 1991.
The Issue The issue is whether Respondent committed an act of discrimination against Petitioner on the basis of her gender and national origin, and subject to retaliation in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner, Wanda I. Perales, was born in Puerto Rico and moved to the United States in 2008 when she was approximately 32 years old. She has lived in Florida since that time. She considers her national origin to be Hispanic. Petitioner was hired by EZPAWN in November 2009 as a sales and lending representative. Her position at EZPAWN was the first she was able to obtain in the United States after looking for employment for over a year. Respondent has policies and procedures in place that prohibit discrimination on the basis of gender, national origin, or any other protected characteristics or classes of employees. Respondent’s policies and procedures also prohibit retaliation. Petitioner received a copy of, and read, the employee handbook containing all of Respondent’s anti-discrimination policies. She was well aware that EZPAWN had anti-discrimination and anti-retaliation policies. When Petitioner first began working for Respondent, she worked at its Palm Bay Road location in the Melbourne, Florida, area. At that time, she received training on Respondent’s employee handbook and about obtaining customer IDs. She was taught that “[w]hen a customer comes to the store to see jewelry and the value is more than $500, we have to ask for one ID, keep it . . . in the jewelry case. And then we can hand the . . . jewelry to the customer.” This policy is found in the employee handbook. The policy states that Class A Misconduct, which “may result in termination of employment on the first occurrence,” includes: Behavior that creates actual harm or loss to another person or to the Company; damage to Company property or to the property of others while on Company time or on Company premises. This includes, but is not limited to: . . . [f]ailure to obtain a customer’s ID prior to allowing the customer to handle jewelry that is priced at $500 or more (resulting in loss). Petitioner understood that if she violated this policy she could be subject to discharge or termination. Petitioner testified that the training did not address what to do if two people came into the store at the same time. It was her understanding that if a couple came into the store together, she was only required to ask for one ID. Both Joseph Roberts from Respondent’s human resources, and Aban Basch, the store manager, testified that the policy applies as it is written and that if a couple comes into the store, the ID must be received from the person (or persons) to whom the jewelry is actually handed. One ID is all that is required if only one member of the couple will handle the jewelry. There is also a sign in the jewelry case at each of Respondent’s locations that states, “[a] state issued photo identification is REQUIRED for all jewelry items being shown valued over $500.” While working in the Palm Bay store in January 2010, “John” (last name unknown by Petitioner) became Petitioner’s supervisor. She alleged that on a few occasions he wanted to transfer her because of the language barrier. After Petitioner complained of John’s comments, Mr. Roberts, the human resources business partner overseeing Central Florida, went to the store to investigate. Mr. Roberts coached John on his comments and provided him with additional training. Petitioner seemed to be satisfied with these results. John never made derogatory comments about Puerto Ricans or women. Further, John never took any adverse employment action against Petitioner. In July 2010, Petitioner requested a transfer to a store closer to where she lived. This was at her request and was not disciplinary on the part of her employer. She had never been written up or disciplined by Respondent while in the Palm Bay store. Petitioner’s transfer request was granted and she moved to a store located on South Semoran Boulevard in Orlando, Florida. At the Semoran store, the majority of EZPAWN’s customers (estimated by the manager at 80-85 percent) are Hispanic. Petitioner communicated with them in Spanish as necessary for those who only spoke Spanish. Of the 12 employees Petitioner worked with at the Semoran store, ten of them were Puerto Rican or Hispanic, and seven were women. At some point, Mr. Basch became Petitioner’s supervisor. In February 2012, he brought in flowers and chocolates for all the employees for Valentine’s Day. Petitioner rejected the gifts and believed that thereafter, Mr. Basch changed completely when dealing with her. Petitioner believes Mr. Basch cut her hours on one occasion because she had rejected the candy and flowers he brought her and the other employees. Mr. Basch testified he cut hours because his district manager had directed him to reduce hours for that week to manage payroll. When she thought Mr. Basch was being disrespectful, Petitioner called the employee hotline and made a complaint against him. In response to the complaint, Mr. Roberts visited the store to investigate, and Petitioner also spoke with Cindy Bradley, Respondent’s Vice President of Human Resources. Both Mr. Roberts and Ms. Bradley found Petitioner’s claims to be unsubstantiated. On April 8, 2013, a man and a woman walked into the Semoran store. Petitioner assumed they were together since they asked to look at engagement rings. The woman gave Petitioner her photo ID, and Petitioner handed the ring valued at $1,500 to the man. Upon receiving the ring, the man ran from the store. Petitioner admitted she gave the ring to a person from whom she had not secured a photo ID. District Manager Corey Day, Manager Mr. Basch, and Assistant Manager Valdemar Santos (of Puerto Rican descent) were in the store when the incident occurred. According to Petitioner, Mr. Santos ran from the store in pursuit of the individual who took the ring. Petitioner believed that running after someone who steals from the store is a violation of company policy. This was contradicted by Messrs. Roberts and Basch who both said it was important to pursue a thief to be able to tell the police in which direction he or she ran and whether the thief got into a vehicle which they could later identify to law enforcement. The only reason given by Petitioner that she was discriminated against based on her gender is that Mr. Santos, a male employee, was not terminated for following the shoplifter out of the store, an act she believed to be in violation of company policy. Following the incident, Mr. Basch called the police who came to the store. They approached the suspect, but were not able to retrieve the ring because he no longer had it in his possession. The stolen ring was never returned to EZPAWN. Since Petitioner violated EZPAWN’s policy of securing an ID from any person who is handed a piece of jewelry valued at more than $500, resulting in a loss of the property, the decision was made to terminate her employment with Respondent. Mr. Roberts made the decision to terminate Petitioner’s employment after discussing the matter with Messrs. Day and Basch. Mr. Roberts testified that the decision to terminate Petitioner’s employment had nothing to do with her national origin or gender. During Petitioner’s next scheduled work shift, Mr. Day asked to speak with her in the manager’s office. Mr. Basch was also present. Mr. Day told Petitioner that the decision had been made to terminate her employment after conferring with Messrs. Roberts and Basch. He told Petitioner that he would give her a good reference for future employment because he believed her to be a good employee, who violated a company policy that requires termination. Petitioner did not say anything during the meeting and left EZPAWN. She did not complain to her bosses assembled at the meeting that she believed she had been discriminated against for her gender or national origin. Petitioner testified that no one told her she was terminated for being Puerto Rican or for being a woman. She specifically stated she did not believe she had been terminated because of her Puerto Rican heritage. Petitioner was unable to identify any other store employee who had not been terminated for violating the policy concerning securing a photo ID when showing jewelry with a value of more than $500. She was aware of another employee named Jose in a different one of Respondent’s stores who had been terminated for violation of the same policy. Mr. Roberts confirmed Petitioner’s testimony when he testified that every employee who violated the ID for jewelry policy had been terminated from employment. Petitioner was aware of one other employee named Jessica who left the jewelry case keys on the counter that caused rings to be stolen. Jessica was not terminated, however, because the rings had been recovered. While working at EZPAWN, no employee had made derogatory comments to Petitioner about her gender or national origin. Further, Petitioner had never complained to anyone at EZPAWN about being discriminated against on the basis of her gender or national origin. She testified that, if she needed to make a complaint, she was aware of the process for doing so. She responded “yes” when asked if she knew to call the hotline if she felt she had been discriminated against.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding Respondent did not commit the “unlawful employment practice” alleged by Petitioner and dismissing Petitioner’s employment discrimination charge. DONE AND ENTERED this 25th day of February, 2015, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 2015. COPIES FURNISHED: Erich Schuttauf, Esquire Erich E. Schuttauf Attorney at Law 7901 Kingspointe Parkway, Building 9 Orlando, Florida 32819 (eServed) Laura Steege, Associate General Counsel 2801 Via Fortuna, Suite 460 Austin, Texas 78746 Jason Matthew Leo, Esquire Littler Mendelson, P.C. 111 North Magnolia Avenue, Suite 1250 Orlando, Florida 32801 (eServed) Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Tammy Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issue in this case is whether Respondent discriminated against Petitioner based on national origin and disability.
Findings Of Fact Mr. Llevado was born in the Philippines and is a naturalized citizen of the United States. In 1995, Mr. Llevado began working for Sandestin Resort as an equipment operator at the Burnt Pine Golf Course. Mr. Llevado’s duties included mowing greens, raking bunkers, and other tasks related to the maintenance of a golf course. Mr. Llevado was part of a golf maintenance team. The members of the team are cross-trained so that they are able to do all the tasks necessary to maintain the golf course. None of the team members receive extra compensation for doing a particular task. The assignment for each team member is posted at the beginning of the work day, which is 6:00 a.m., on a chalkboard in the break room. The assignment of the tasks is based on the tasks that are needed to be completed and the personnel working each day. Mr. Llevado’s supervisors were Barry Sayers, who was the assistant superintendent of golf maintenance at the Burnt Pine Golf Course, and Jake Leham, who was the director of golf maintenance. Both Mr. Sayers and Mr. Leham considered Mr. Llevado to be a good employee, who could perform all the necessary tasks of an equipment operator. During his employment with Sandestin Resort, Mr. Llevado kept a diary. He noted in his diary that, in April 2001, Mr. Sayers said bad words to him. Mr. Llevado did not specify what the bad words were, but the interpreter at the final hearing interpreted it to mean the words were probably curse words. Mr. Sayers did not recall the incident. No evidence was presented that Mr. Llevado was the only employee to whom Mr. Sayers may have said bad words. On August 22, 2002, Mr. Llevado received an Employment Communication Notice, suspending him for one day without pay. The offense was failing to complete his work as instructed and leaving grass clippings in a bunker. Two times during his employment with Sandestin Resort, Mr. Llevado received an Employment Communication Notice concerning his failure to abide by the company’s policy for requesting leave time. The first occurrence was on September 26, 2003, and the second occurrence was on January 8, 2006. He was suspended two days for the first occurrence, and no disciplinary action was taken for the second occurrence. On October 25, 2006, Mr. Llevado received his annual performance evaluation. He met or exceeded expectations in all categories except following instructions, where it was noted he needed to improve. As a result of his evaluation, Mr. Llevado was given a raise. On October 26, 2006, Mr. Llevado reported to work and found that he was assigned to mow the greens. Two employees failed to come to work, and it was necessary to assign Mr. Llevado the task of mowing greens. Mr. Llevado did not like to mow greens and preferred to rake the bunkers. He requested Mr. Sayers to allow him to rake the bunkers instead of mowing the greens. Mr. Sayers refused and explained the reason why Mr. Llevado was assigned to mow the greens. Mr. Llevado refused to mow the greens. It was 7:00 a.m., and Mr. Sayers had to leave the maintenance building to begin the work of the day. He left Mr. Lehman to deal with Mr. Llevado. Mr. Lehman discussed the mowing of the greens with Mr. Llevado, who requested to be paid more than his hourly wages if he had to mow the greens. Mr. Lehman refused to pay him additional money, and Mr. Llevado accused Mr. Lehman of discriminating against him. When Mr. Llevado accused Mr. Lehman of discriminating against him, Mr. Lehman told Mr. Llevado that he would need to speak to personnel in the human resources department. The human resources department did not begin work until 8:30 a.m. Mr. Lehman indicated that he would arrange a meeting with Sylvia Hanks, the director of human resources. Mr. Lehman told Mr. Llevado to clock out and go home until the meeting could be arranged. Mr. Lehman told Mr. Llevado that he would be compensated for the lost time, if Mr. Lehman erroneously told Mr. Llevado to go home. Mr. Llevado called his sister to come and get him. Mr. Lehman instructed Mr. Llevado to wait in the break room for his ride home from work. Mr. Llevado returned to the break room to wait. While Mr. Llevado was in the break room, he was struck on his head. Terry Clemons, who is the administrative assistant to Mr. Lehman, got to work around 7:00 a.m. on October 26, 2006. When she came in the building, she saw Mr. Llevado sitting in the break room. Approximately 15 minutes later, Mr. Llevado came to her with a bleeding head and said that he had been hit and someone was behind the door. Mr. Llevado had called Sandestin Resort’s security office and reported the incident. Mr. Llevado claims that he saw three men in uniforms running away from the building after he had been hit. Personnel from security were unable to locate anyone described by Mr. Llevado as running from the building. The door to the break room was a swinging door, and it is possible that Mr. Llevado pushed the door, hitting someone behind the door, and causing the door to swing back and hit him in the head. The incident was reported to the Walton County Sheriff’s Office. Mr. Llevado told the investigating officer that he was attempting to exit the building through the swinging door, and someone was on the other side of the door, and he was hit in the head. Mr. Llevado claimed that he passed out as soon as he was hit. If Mr. Llevado passed out as soon as he was hit, it is difficult to reconcile his claim that he saw three uniformed men running away from the building. The greater weight of the evidence does not establish that Mr. Llevado was attacked by employees of Sandestin Resort. It is undisputed that Mr. Llevado did sustain an injury in the break room of the Sandestin Resort on October 26, 2006. Mr. Llevado was treated at the emergency room for his injuries. Mr. Llevado came back to work the day after his injury but left by midday, complaining that his head hurt. Within a day or two of the incident, Mr. Llevado, his sister, Mr. Lehman, and Mr. Sayers met with Ms. Hanks to discuss the situation. At the meeting, Mr. Llevado indicated that he thought that Mr. Lehman had fired him on October 26, 2006. Mr. Llevado was assured that Mr. Lehman had no authority to fire him and that he was not fired. Mr. Llevado did not return to work after October 27, 2006. He requested and received workers’ compensation benefits related to his injury. By letter dated March 22, 2007, the human resources office for Sandestin Resort advised Mr. Llevado that Mr. Llevado’s physician had released Mr. Llevado to return to work and that Sandestin Resort had a job available for him. Mr. Llevado was told to report to work on March 28, 2007. By letter dated March 26, 2007, Mr. Llevado advised Sandestin Resort that he was aware that his physician had released him to return to work, but that he was still experiencing headaches and dizziness. Mr. Llevado also advised that he was seeking further medical treatment. By June 12, 2007, Mr. Llevado had not returned to work at Sandestin Resort. By letter dated June 12, 2007, Sandestin Resort advised Mr. Llevado that he had been on leave of absence since November 28, 2006, and that he had exceeded Sandestin Resort’s leave policy. Mr. Llevado was advised that if he was able to return to work that he would need to submit a full release from his medical provider. Mr. Llevado was also advised that if he did not return to work by June 18, 2007, that his employment would be terminated. Mr. Llevado never submitted a medical release and never returned to work. Sandestin Resort’s Employee Handbook provides that an eligible employee may take up 12 weeks of unpaid medical leave during any “rolling” 12-month period. The handbook further provides that an employee who exceeds the 12-week medical leave may be subject to termination of employment. Mr. Llevado claims that on December 19, 2005, Mr. Sayers told him that he was an illegal alien and that he should go back to the Philippines. Mr. Sayers denied ever telling Mr. Llevado that he should go back to the Philippines. The greater weight of the evidence does not establish that Mr. Lehman made the statement. Both Mr. Sayers and Mr. Lehman have participated in discrimination prevention training. Sandestin Resort employs many persons who have foreign nationalities. Mr. Sayers has personally worked with many people with varying nationalities. Sandestin Resort gives each of its employees an Employee Handbook, which describes the procedure an employee can follow to report a claim of discrimination. If an employee feels that he or she has been discriminated against, the employee is to bring it to the attention of the employee’s supervisor. If the supervisor is the subject of the claim of discrimination, the employee may contact either the manager of the human resources department or the vice president for human resources. Mr. Llevado received the handbook. His personnel file does not indicate that he made any claim of discrimination to his supervisor or the human resources officer prior to October 26, 2006. Part of Mr. Llevado’s claim of discrimination is based on an alleged disability. However, Mr. Llevado failed to establish that he had a disability or that Sandestin Resort perceived him to have a disability. Prior to his injury on October 26, 2006, Mr. Llevado performed his work in a satisfactory manner. He never asked Sandestin Resort for any type of accommodation for his alleged disability. Mr. Llevado contends that he is unable to work because of the injury he sustained on October 26, 2006, and that he has not sought work since the incident. However, Mr. Llevado did not present any medical evidence to establish that he is disabled.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Sandestin Golf and Beach Resort did not discriminate against Mr. Felixberto A. Llevado based on national origin or disability and dismissing the Petition for Relief. DONE AND ENTERED this 14th day of January, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 2009.
The Issue Whether Respondent committed an unlawful employment practice.
Findings Of Fact Petitioner is a woman who suffered an aneurysm in 1987 which resulted in paralysis. Subsequently, she regained full use of her body except for her left hand. She possesses gross motor skills in her left hand but lacks fine motor skills. Respondent is a retail furniture store, which at times pertinent did about three million dollars in business annually. Respondent at times pertinent employed 23 to 26 full-time employees. Respondent went out of business on September 24, 2001. Petitioner interviewed with Doris Hudson and Cindy Gentry about three weeks prior to June 8, 2000. Petitioner was informed that she was hired and could begin work on June 8, 2000. The position she was hired for was accounts payable clerk. During the interview, the matter of the facility of Petitioner's left hand was not noted or discussed. Petitioner believed that the job consisted of mostly working on a keypad with numbers, in the accounts payable section of the bookkeeping office. Petitioner reported for work on June 8, 2000. Doris Hudson, Respondent's Comptroller, an employee of Respondent for over 41 years, provided her with a tour of the premises. Petitioner's first assignment was to type checks. She did this slowly because she could type only with her right hand. Typing checks is an important function of the accounts payable clerk. Most vendors were paid by checks which were prepared by data processing equipment but it was necessary to prepare many checks for local vendors on a typewriter. During the hour and a-half Petitioner worked at the typewriter, she correctly prepared three checks. Ms. Hudson expected an accounts payable clerk to prepare 25 to 35 checks in an hour and a-half. An accounts payable clerk, according to Ms. Hudson, should be able to type 55 words per minute; Petitioner could type only 30 words per minute on a good day. An accounts payable clerk's daily activities included kneeling on the floor and opening a large safe; swinging open a heavy door which has to be unlocked with two keys simultaneously; counting 30 to 50 checks per day and counting currency and coins; and printing out reports which were inserted in a large binder. A substantial part of the duties of the accounts payable clerk required excellent typing and data input skills. The accounts payable clerk was required to reload the printers and this required the coordination of two hands. The accounts payable clerk was required to prepare deposits which required that the employee flip each individual check with one hand and operate a calculator with the other. Ms. Hudson did not discover the deficiencies with regard to Petitioner's left hand until she made inquiry after noting the small number of checks which Petitioner prepared. Ms. Hudson could not use an employee who could not do the activities described in paragraph eight and nine, above. Ms. Hudson could not call others in the office away from their jobs to help a person who had limited use of one hand. She did not have enough employees. When Ms. Hudson's office was fully staffed there were many times when it was difficult to accomplish all necessary duties in an eight-hour day. It was Ms. Hudson's opinion that Petitioner could not perform the duties of accounts payable clerk and that it was impossible to accommodate her deficiencies without disrupting the orderly functioning of her office. After considering Petitioner's capabilities and the requirements of the accounts payable clerk, Ms. Hudson decided that Petitioner was not suitable for employment as an accounts payable clerk and as a result, discharged her. Petitioner was paid $22.61 for 2.66 hours of work. This reflected an hourly wage of $8.50. Petitioner worked as an administrative assistant at Century Boats in Panama City prior to obtaining the job with Respondent. She lost that job in February of 2000, due to a reduction in workforce. After Petitioner left Respondent's place of business she went to work at a clinic run by Bay Medical. She began working there on August 28, 2000, as an insurance coder and biller and was paid $8.00 per hour. She lost that job on February 28, 2001, when the facility closed. She was offered a job in the radiology section but it paid less so she elected to remain essentially unemployed for a year. She did work a one- week job with Cardiology Associates and worked for C-1 Medical Clinic for a month and a-half during that period. Petitioner, at the time of the hearing, was employed by Nextel Communications as a customer care representative and was paid $9.50 per hour. She started February 18, 2002. Petitioner has a hard time buttoning clothes but she can drive an automobile. She testified she could do, ". . . everything pretty much what everybody does." She can't throw a ball up with her left hand or play tennis anymore. She can lift heavy objects up to at least 75 pounds. She has no medical restrictions placed on the use of her left hand.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is recommended that the Florida Human Relations Commission enter a final order dismissing Petitioner's Amended Charge of Discrimination. DONE AND ENTERED this 11th day of July, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2002. COPIES FURNISHED: Linda Chesser 6802 Penny Road Panama City, Florida 32404 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street, Suite 100 Tallahassee, Florida 32303-4019 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
