The Issue The issue is whether Respondent discriminated against Petitioner on the basis of his national origin in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact No findings are made in this case. Petitioner did not appear and did not submit evidence to support findings of fact.
The Issue Whether Respondent, Eden Cabaret (“Respondent” or “Eden Cabaret”), is liable to Petitioner, Terry Doss (“Petitioner”), for employment discrimination in violation of the Florida Civil Rights Act of 1992, sections 760.01 through 760.11, Florida Statutes (2019).1 1 Except as otherwise noted, all references to the Florida Statutes herein, are to the 2019 version, which was in effect when the actions complained of in Petitioner’s Complaint occurred.
Findings Of Fact Petitioner is a black male who currently resides at 12 Adkinson Drive in Pensacola, Florida. Petitioner holds a certification in heating, ventilation, and air conditioning (“HVAC”) repair and maintenance. The evidence is unclear whether Petitioner is a licensed HVAC contractor. Respondent is an entertainment club in Pensacola, Florida, owned by Timothy McEvoy. The evidence is insufficient to establish how many employees are employed by Respondent. Mr. McEvoy came to know Petitioner through Mr. McEvoy’s girlfriend, Rachel Johnson, in June 2019. At that time, Petitioner had full-time employment, but needed rental housing and was available for extra part-time work. Mr. McEvoy owned a rental home at 7490 Rolling Hills Road in Pensacola and informed Petitioner that he could rent a room from him there for $150.00 per week. The rental home was partially occupied by Mr. McEvoy’s cousin, Kent Leyonmark, but another room was available in the home. Mr. McEvoy took Petitioner to the Rolling Hills property and showed him around. Mr. McEvoy introduced Petitioner to Mr. Leyonmark, suggesting that Petitioner may rent a room there. The rental arrangement at Rolling Hills did not work out, however, because, as Mr. McEvoy testified, Mr. Leyonmark is a racist and would not allow Petitioner to move into the house.2 Feeling obliged to Petitioner, Mr. McEvoy suggested Petitioner could rent a room at the five-bedroom home he and Ms. Johnson were then renting. Sometime in early June 2019, Petitioner moved into Mr. McEvoy’s rental home, occupying a bedroom with a private bath. No formal rental agreement, written or otherwise, was ever reached. Mr. McEvoy then hired Petitioner to do some HVAC work for him. Petitioner performed a number of jobs for Mr. McEvoy at Marcone Supply, a commercial business located in a building owned by Mr. McEvoy. Petitioner worked on the AC duct system, installed an air return, and completed an insulation job. Petitioner further found an airflow problem at the front of the store and repaired a restriction causing the problem at Marcone Supply. Over the next few weeks, Petitioner performed work for Mr. McEvoy at Eden Cabaret, as well as other rental properties owned by Mr. McEvoy, and at his beach house on Pensacola Beach. No formal employment agreement was reached between the two men. Typically, Petitioner sent a text to Mr. McEvoy informing him that Petitioner was finished with his regular job and asking if Mr. McEvoy needed him for any work. After Petitioner informed Mr. McEvoy that he had worked approximately 20 hours, Mr. McEvoy told Petitioner, “It would be best if you 2 Mr. McEvoy’s testimony is entirely hearsay, but is not being used to prove that Mr. Leyonmark is a racist, and no finding is made in that regard, but is limited to show that, for whatever reason, Petitioner did not take a room at the Rolling Hills property. keep a sheet with start and stop time and [a] brief description of what you worked on by day.” When Petitioner had worked 37 hours, he texted Mr. McEvoy, “Didn’t know when you was [sic] going to pay me the hrs. I work [sic].” He also stated, “I also old [sic] y’all some rent.” Later, Petitioner sent a text asking Mr. McEvoy, “Did u need money for rent[?]” The evidence does not support a finding that Mr. McEvoy responded to that text message. Mr. McEvoy never paid Petitioner for the hours he worked. Petitioner never paid Mr. McEvoy any rent. In addition to staying at Mr. McEvoy’s home rent-free, Petitioner had the use of a car owned by Mr. McEvoy. Petitioner used the car to get to and from work—both his first job and the second part-time work he did for Mr. McEvoy. Mr. McEvoy testified that he allowed Petitioner to use the car because the rental house was not near a public bus route. At Petitioner’s prior residence he took the bus to work. Petitioner purchased gas for Mr. McEvoy’s car. Petitioner also inquired about buying the car from Mr. McEvoy. But, Petitioner never paid anything to Mr. McEvoy for using the car. In early July, Mr. McEvoy informed Petitioner that the house they were all living in had been put on the market for sale by the owner. Mr. McEvoy and Ms. Johnson, who was pregnant at the time, planned to move before the baby was born. In July, Mr. McEvoy informed Petitioner, “[W]e have committed to be out of here by the end of this month so you should plan accordingly.” Petitioner lived with Mr. McEvoy and Ms. Johnson for four to six weeks. During that time period, Petitioner worked a total of 73.5 hours on repairs and maintenance at several properties owned by Mr. McEvoy, including Eden Cabaret. When Petitioner requested, via text message, to be paid for the hours worked, Mr. McEvoy asked Petitioner to call him to discuss the issue. Mr. McEvoy did not contest the number of hours Petitioner worked, but wanted to discuss “where we stand for the work you did vs. the housing and transportation we provided.” The two men never discussed the issue face-to-face, and never came to an agreement in a series of text messages either. When asked by the undersigned how Mr. McEvoy’s failure to pay him was related to his claim of discrimination, Petitioner explained that he was the only black man that worked for Mr. McEvoy and that Mr. McEvoy paid all his other employees. Petitioner did not introduce any evidence of particular individuals employed by Respondent, what type of work they performed, or their rate of pay. Mr. McEvoy claims Petitioner was never Respondent’s employee. Rather, Mr. McEvoy testified that he engaged Petitioner, as he does many workers, as an independent contractor to work on any number of properties he owns.
Recommendation Based upon the Findings of Fact and Conclusions of Law herein, the undersigned RECOMMENDS that the Commission issue a final order finding that Petitioner, Terry Doss, failed to prove that Respondent, Eden Cabaret was his employer, and dismiss Petition for Relief No. 2021-26984. protected class; (2) he was qualified for the position held: (3) he was subjected to an adverse employment action; and (4) other similarly-situated employees, who are not members of the protected group, were treated more favorably than Petitioner. See McDonnell-Douglas, 411 U.S. at 802. Petitioner met the first two elements: he is a member of a protected class; and is qualified to work in maintenance of HVAC systems. However, Petitioner is unable to prove the third element, that he suffered an adverse employment action. The evidence was persuasive, and is accepted, that Petitioner was compensated for the work he performed in the form of lodging and transportation, and not monetarily. Assuming, arguendo, Petitioner was subjected to an adverse employment action, he failed to prove the fourth element, that similarly-situated employees, who are not members of the protected class, were treated more favorably. For purposes of proving disparate treatment, a comparator must be similar to Petitioner in “all material respects.” See Lewis v. City of Union City, Georgia, 918 F.3d 1213, 1217 (11th Cir. 2019). Similarity among comparators is required for the comparisons to be meaningful. Petitioner testified generally that other white employees were paid by Mr. McEvoy for their work. However, he did not introduce any specific comparators who were similarly- situated. Petitioner did not introduce evidence of the treatment of any non-black workers who had the use of rooms at Mr. McEvoy’s rental home or use of Mr. McEvoy’s personal vehicle. Petitioner failed to prove discrimination in compensation based on his race. DONE AND ENTERED this 29th day of July, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S SUZANNE VAN WYK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Timothy McEvoy Eden Cabaret 4001 North Davis Highway Pensacola, Florida 32503 Stanley Gorsica, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Terry Lynn Doss 12 Adkinson Drive Pensacola, Florida 32506 Timothy McEvoy Post Office Box 32562 Gulf Breeze, Florida 32562
The Issue The issue in the case is whether Respondent unlawfully discriminated against Petitioner by terminating her employment in violation of the Age Discrimination Employment Act.
Findings Of Fact Lombardi started her employment as a judicial assistant with Dade County in 1971. Judge Mattie Belle Davis was the first judge who hired Petitioner. Judicial Assistants serve at the pleasure of the appointing Judge.1 Judge Bruce Levy hired Lombardi as his judicial assistant after Judge Davis retired. In December 2004, Judge Levy lost his re-election bid and Petitioner no longer had a full-time position as a judicial assistant with a judge. Lombardi started working in the temporary pool of judicial assistants. The position allowed Petitioner to retain her benefits while seeking a permanent judicial assistant position. While serving in the pool, Petitioner worked for Judge Leon Firtel from February 14, 2005, through February 28, 2006, before he let her go. Petitioner then worked for Judge Rosa Rodriguez from April 1, 2006, through May 23, 2007, until she let her go. Petitioner last worked for Dade County when she served as retired Judge Roger Silver's ("Silver") judicial assistant from September 1, 2007, until January 7, 2008. Lombardi was terminated in Silver's chambers with a bailiff and Ms. Suarez from Human Resources present. Silver informed the Petitioner her services were no longer needed and he was letting her go. Petitioner questioned why she was being terminated; however, Silver did not provide an explanation. Silver terminated Petitioner because he was not happy with her work performance. Silver testified that Petitioner had the following problems regarding her work: taking lunch breaks beyond the one hour he had discussed with her; numerous complaints from attorneys; selling Avon at the work place; not answering the phones and allowing calls to go to voicemail; and repeatedly setting unnecessary hearings on the docket. Prior to terminating Lombardi, Silver inquired with Human Resources about a replacement and was informed that he could not be assured that he would be able to get a temporary assistant to replace Lombardi due to the unavailability of funding. He still choose to terminate Petitioner because, "[he] felt having no one was better than what [he] had under the circumstances." Petitioner was not able to go back in the "temporary pool" of judicial assistants as she had in the past after Silver terminated her. In 2008, the Eleventh Judicial Circuit had a hiring freeze whereby the temporary pool was no longer funded. Human Resources eventually sent Elizabeth Gonzalez, whose date of birth is May 26, 1965, to Silver as a temporary judicial assistant. Silver had never met Gonzalez prior to her coming to work for him. There was no discussion of age when Silver requested a judicial assistant or when Gonzalez was assigned to him. Gonzalez served as Silver's temporary judicial assistant for a number of weeks and, when personnel advised him he could hire someone, including Gonzalez, Silver hired Gonzalez on or about March 10, 2008, because he was pleased with her work. Gonzalez worked with him until his retirement in December 2008. At the time when Petitioner filed her Charge of Discrimination, Petitioner was unaware of the exact age of her replacement. Petitioner's date of birth is May 18, 1948.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 30th day of November, 2009, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 November, 2009.
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2004),1/ by discriminating against Petitioner based on her national origin.
Findings Of Fact Arthrex is a company that designs and manufactures orthopedic surgical tools, implants and devices for surgeons, medical facilities, and hospitals. Arthrex is regulated by the United States Food and Drug Administration ("FDA") and maintains certification through the International Organization for Standardization ("ISO"). Arthrex is an employer as that term is defined in Section 760.02, Florida Statutes. Petitioner is a Hispanic female, whose primary language is Spanish. Beginning in June 2001, Petitioner worked in the cleaning and packaging area of Arthrex's production facility. "Cleaning" in this context should not be confused with janitorial services. Petitioner's job was more technical and exacting and involved the maintenance of a sterile, disinfected work area and equipment in the manufacture of items that, in some cases, are surgically implanted in the human body. She worked in the company of 10 to 12 co-workers within a relatively confined space. Arthrex obtains staffing for its cleaning and packaging area through an independent contractor, Randstad, a large employment services company. On June 13, 2003, Petitioner accompanied a friend to the local Randstad office to assist the friend in applying for a job with Arthrex in the cleaning and packaging area. Petitioner became angry with the Randstad representative who performed the screening and testing of Petitioner's friend. Petitioner believed that the Randstad employee decided at the outset not to hire her friend, and so tested the friend on difficult subjects having nothing to do with the Arthrex cleaning and packaging job, such as her ability to use a computer and her ability to "write, read and talk perfect English." Petitioner stated that other applicants were not subjected to the same scrutiny as was her friend and that both she and her friend felt humiliated by the "rude" Randstad employee. Immediately after the job interview, the Randstad representative phoned Margarita Alvarez, the human relations manager for Arthrex, and told Ms. Alvarez that Petitioner had "made a scene" at the Randstad office. Ms. Alvarez asked the Randstad representative to put her complaint in writing, and she would then address the matter with Petitioner. Shortly after the phone call, Ms. Alvarez was conducting an employee relations meeting in her office when Petitioner walked into her office. Petitioner began complaining loudly about the "ridiculous" hiring process employed by Arthrex, waving her hands and stamping her foot in anger. Ms. Alvarez told Petitioner that she would discuss the matter after her meeting was over. Petitioner walked out of Ms. Alvarez's office saying, "Thank you for nothing." Petitioner then proceeded to stamp her way down to her workplace, continuing to display her anger and disrupt the work of the other employees in her area by complaining loudly about Arthrex's hiring practices. Ms. Alvarez testified that Petitioner's behavior violated Arthrex's written policies regarding hostile, disruptive behavior in the workplace. Ms. Alvarez prepared a written warning called "performance correction notice" dated June 17, 2003. The notice described the disruptive behavior Petitioner engaged in on June 13, 2003, and stated that Petitioner was expected to maintain a "friendly work environment" and to express her disagreements with company policy "respectfully[,] . . . in private with [her] immediate supervisor or with Human Resources." The notice further warned Petitioner that any further "unprofessional conduct" (antagonism, disruptive behavior or hostility) could subject Petitioner to a "final warning." On the afternoon of June 18, 2003, Petitioner met with Ms. Alvarez and Lea Custodio, Petitioner's immediate supervisor, who had taken the day off on June 13, 2003. Ms. Alvarez presented Petitioner with the performance correction notice. She explained that while she understood Petitioner's frustration, she could not allow such displays of temper in the workplace. Ms. Alvarez testified that she believed Petitioner understood the situation, and she encouraged Petitioner to write down her thoughts, comments, or corrections before signing the notice. Ms. Alvarez told Petitioner that she could write her response in Spanish, if that would allow her better to express herself. Ms. Alvarez is fluent in Spanish. On June 19, 2003, Petitioner submitted a handwritten note to Ms. Alvarez. Written in Spanish, the note expressed Petitioner's belief that the Randstad representative discriminated against her friend by imposing unreasonable requirements for the cleaning position in question. Petitioner was not disciplined in any way for either the form or content of this note, which was incorporated with the performance correction notice as part of Petitioner's employment file. Petitioner testified that she could not recall having been disciplined for the June 13, 2003, incident. She denied causing a disturbance at the Randstad facility or at her own workplace. She admitted writing the note and submitting it on June 19, 2003, but testified that Ms. Alvarez asked her to document the incident because of other complaints she had received about the Randstad representative. Petitioner's testimony is inconsistent with the documentary evidence, including the self-justifying language of her own handwritten note. Ms. Custodio's testimony corroborated that of Ms. Alvarez's concerning the disciplinary meeting held on June 18, 2003, at which Petitioner was given the performance correction notice and counseled by Ms. Alvarez as to the company's expectations regarding her behavior. Petitioner's testimony as to the June 13, 2003, incident and its aftermath is not credible. On or about August 10, 2003, a personal conflict arose between Petitioner and a co-worker, Pierre Escanio. Petitioner loudly questioned the quality of Mr. Escanio's work. In the cleaning and packaging area, the workers' products were commingled into single lots and sent to Arthrex's quality control division for review. Petitioner claimed to be concerned that Mr. Escanio's poor work would cause quality control to return the entire lot, meaning that everyone would have to redo their work. Ms. Custodio, the supervisor, attempted to calm the situation by telling Petitioner that she would talk to Mr. Escanio about his work. Ms. Custodio did so despite the fact that she had trained Mr. Escanio and knew him to be a competent employee. Ms. Custodio next told Petitioner that she would separate Petitioner's work from that of Mr. Escanio, marking the items so they would know whose work had been rejected by quality control. Despite Ms. Custodio's effort, Petitioner continued to complain. Ms. Custodio finally told Petitioner to stop making these complaints in front of the other dozen or so people in the work area. Ms. Custodio believed that Petitioner was questioning her authority in front of the other employees. She went to Ms. Alvarez to discuss the situation and obtain the assistance of the Human Resources Department in addressing the problem of Petitioner's insubordination. Ms. Custodio told Ms. Alvarez that she could no longer handle the situation with Petitioner. In keeping with the policies of Arthrex's Human Resources Department, Ms. Alvarez investigated the matter, conducting interviews with employees who witnessed Petitioner's behavior. Ms. Alvarez testified that her investigation led her to conclude that "there was a serious problem in the department." After a final consultation with Arthrex's general counsel, Ms. Alvarez recommended that Petitioner's employment be terminated for insubordination. Ms. Custodio agreed with the recommendation. By letter dated August 12, 2003, and signed by Ms. Alvarez, Arthrex terminated Petitioner's employment. The letter stated the following express reasons for Petitioner's termination: Previous written warning referring to disruptive behavior of 6/17/2003. Numerous reports of negative comments about the company and management in front of other employees. Antagonistic behavior with supervisor and coworkers. Petitioner produced no credible evidence that her language or national origin played a role in the decision to terminate her employment. Petitioner's chief claim is that she was terminated for refusing to obey instructions from her supervisors, including Ms. Custodio and Ms. Alvarez, to cease speaking Spanish in the workplace. Both Ms. Custodio and Ms. Alvarez credibly denied giving any such instructions to any Arthrex employee. Arthrex does have a "Language Policy" that requires employees to be proficient in English to ensure that FDA regulations and ISO certification standards are met, because the company "has determined that the English language is the most common and effective means of communications" in the United States. The policy requires employees to communicate business-related information in English, but states that it "is not intended to prevent or discourage any employee from speaking their native language at Arthrex for certain business related matters, on their own time or with regard to non-business matters." The evidence established that all but one or two people in Petitioner's work area were native Spanish speakers and that they were allowed freely to communicate in Spanish in their day-to-day work activities. Employees were encouraged to communicate with their supervisors in their native language, if doing so improved the quality of the information conveyed. Ms. Custodio and Ms. Alvarez each testified that they knew of no Arthrex employee who had ever been disciplined for speaking a language other than English in the workplace. At the hearing, Petitioner repeatedly made reference to the efforts of one lower-level supervisor, Renee Vanderberg, to force the employees in Petitioner's section to refrain from speaking Spanish and confine their work conversations to English. However, the evidence established that once the Human Resources Department learned of Ms. Vanderberg's actions, she was admonished to cease directing the employees to speak English. When Ms. Vanderberg continued to press the issue, Arthrex terminated her employment. The evidence produced at hearing demonstrated that the reasons for Petitioner's termination were limited to those set forth in the termination letter of August 12, 2003.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Arthrex Manufacturing did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 17th day of May, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2005.
The Issue The issue is whether Petitioner was terminated from her employment with Respondent for a discriminatory reason.
Findings Of Fact Petitioner, Sharon Singleton, was employed by Respondent in the Information Technology (IT) Department. Petitioner served, as did other IT employees, under an annual contract. Respondent is the administrative government entity for the public schools of Escambia County, Florida. Contracts of employment are with the Escambia County School Board. Mr. Johnnie Odom supervised Petitioner until the last eight months of her employment. Her supervisor was Kathy Cooper during the last eight months of her employment. For many years, Petitioner and the other technicians used a software program that supported the management of school records that was known as “TERMS.” During the last few years of Petitioner’s employment, the District changed the supporting software program from TERMS to a program known as “FOCUS.” This was a major conversion of software programs that took place over an extended period of time. When the FOCUS program was initiated, Respondent hired three additional technicians to support FOCUS. Petitioner disagreed with the hiring of new technicians to support FOCUS, but acknowledges she was not treated any differently from the other Tech III support staff. Her disagreement was over the hiring of the new technicians, rather than allowing the existing ones to serve as primary support for FOCUS. Petitioner sought a promotion to a higher level position in 2011. The promotion process was administered by a selection committee that interviewed and evaluated candidates. As a result of the competitive selection, Petitioner was not recommended or selected for the promotion. On two prior occasions, Petitioner had sought a promotion, and on both occasions a selection committee ranked and evaluated the candidates. Petitioner was not successful in being selected or promoted on those two prior occasions. For the 2011-2012 school year, Petitioner received unsatisfactory ratings for her administrative/professional techniques and skills, as well as for her professional relationships with staff. The evaluation contained a note stating that Petitioner has difficulty in resolving conflicts with her co-workers and that her supervisor would like to see her resolve conflicts with her co-workers in a more diplomatic manner. Petitioner had received some unsatisfactory or needs improvement marks in her previous years’ evaluations, so 2011- 2012 was not the first time she had received less than satisfactory marks. Nevertheless, following the 2011-2012 annual evaluation, Petitioner received an annual employment contract for the next school year. At the end of the next school year, Petitioner again received an unsatisfactory mark for her professional techniques and skills. She also was cited for needing improvement in other areas. The notes to that evaluation stated Petitioner had improved her relationships with co-workers, but was still having problems adjusting to the new programs that required modernizing her skill set. Despite a few negative marks on her evaluation, Petitioner received an annual contract for the 2013-2014 school year. Petitioner did not dispute the fact that her evaluator and supervisor, Mr. Odom, believed her performance was unsatisfactory. She disagreed, however, with his assessment of her performance. Petitioner believed she had been demoted in the 2013-2014 school year and testified she signed a paper acknowledging a demotion in a disciplinary meeting with the IT department director, Tom Ingram. She did not receive a reduction in salary or benefits, however. Mr. Ingram classified the action taken against Petitioner as a restriction of her duties to Level I telephone support, rather than the more challenging Level II telephone support duties that she had performed in the past. He did not consider this a demotion, but more of a recognition of assigning Petitioner to duties that he believed she could better handle with her skill set. Petitioner testified that Ms. Cooper told her on several occasions she should consider retirement. Petitioner took this as evidence of Ms. Cooper’s belief she was too old to perform her job. Ms. Cooper testified she made the suggestion because Petitioner had an elderly mother who lived in a nursing home and needed assistance. Ms. Cooper was responding to Petitioner having told her she was left with little time to care for her mother when she finished with work. Petitioner acknowledged that her mother was elderly and needed help and that she had told this to Ms. Cooper. During Petitioner’s final eight months of employment, she worked mainly telephone support under the direction of Ms. Cooper, the support manager for the District. Ms. Cooper manages the help desk and IT support staff. She manages two levels of support. Level I support involves matters that can be resolved by telephone, while Level II support is for matters that cannot be resolved in five minutes or less and require more expertise to cure. Ms. Cooper developed concerns about Petitioner’s support performance. She took her concerns to the Director of IT, Mr. Ingram. Similar concerns with Petitioner’s performance had been raised by another support technician, as well. That technician reported that one of the schools to which he and Petitioner had both been assigned, asked that Petitioner not be allowed to return there for support in the future. When Ms. Cooper brought her concerns about Petitioner to Mr. Ingram, he asked that she bring him documentation of her concerns evidencing recent issues concerning Petitioner’s performance. Mr. Ingram met with Petitioner on September 3, 2013, to review her performance. Mr. Ingram’s notes from that meeting document his concern with Petitioner’s performance and he restricted her duties at that time to telephone support because he did not believe she could independently provide on-site support to more schools. His notes further indicate that Petitioner was not satisfied with his conclusions regarding her performance. Mr. Ingram conducted a follow-up interview with Petitioner on September 4, 2013, because Petitioner wanted to share with him the evaluation she had received from Mr. Odom for the 2012-2013 school year. Mr. Ingram told Petitioner he agreed with the evaluation conducted and recorded by Mr. Odom. Mr. Ingram had yet another meeting with Petitioner in March 2014 regarding her performance. With Ms. Cooper present, Mr. Ingram reviewed documentation concerning Petitioner’s unsatisfactory performance. The meeting was held pursuant to a Notice of Consideration of Disciplinary Action served on Petitioner. As a result of the meeting, Mr. Ingram was not confident Petitioner could satisfactorily improve her performance. He believed that Petitioner refused to accept the representative examples he gave her of her unsatisfactory performance. After concluding at the March meeting that Petitioner’s performance would not sufficiently improve, Mr. Ingram decided not to renew Petitioner’s annual contract when it expired in June 2014. Petitioner believed she had been marginalized by her perceived demotion to a Level I telephone support technician. She also was removed from ZENworks, a scheduling program she had previously been involved with over the years, becoming the only employee on the support team that was not allowed to participate in that program. Petitioner believed that all the criticisms of her work by management were hyper-technical, and that she received little, if any, feedback or training during the period for which she was evaluated when the unsatisfactory findings were made. She also attempted to show that others who made errors similar to hers were given promotions. The evidence presented on this point was insufficient to support her claim of disparate treatment. Several retired or long-serving District employees testified that their interaction over the years with Petitioner resulted in responsive and high-quality service from Petitioner. None of these witnesses testified about specific support they received from Petitioner during the last three years of her employment, employing the new FOCUS system, which served as the basis for the non-renewal of her contract. Petitioner testified she should receive damages in the amount of $384,000 as the result of her employment being terminated while she was a participant in the midst of D.R.O.P.
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 11th day of December, 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 11th day of December, 2015. COPIES FURNISHED: Ryan M. Barnett, Esquire Whibbs and Stone, P.A. 801 West Romana Street, Unit C Pensacola, Florida 32502 (eServed) Joseph L. Hammons, Esquire The Hammons Law Firm, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
Findings Of Fact The Petitioner, John W. Cohen, Jr., began employment with the Respondent, Department of Health and Rehabilitative Services ("HRS") Duval Detention Center, on June 26, 1976. His position was that of Detention Care Worker I. He continued in that position as a permanent employee until his final dismissal of July 25, 1989, which is the subject of this proceeding. In the course of his employment with the Respondent, the Petitioner has complained of instances of unfair treatment on numerous occasions with both informal complaints and grievances and formal complaints. The current case arises from the Petitioner's claim that his dismissal of July 25, 1989 was discrimination in the form of retaliation, that is, the employer's alleged retaliation as the result of the previously- raised complaints and grievances. The Petitioner maintains that he first became aware that his repeated use of grievance procedures involving his employer was noticed and resented by the circulation of a cartoon in his work place, which depicted his supervisor threatening to shoot the Petitioner with a large firearm in retaliation for using grievance procedures. The Petitioner and his supervisor were named in the cartoon. The Petitioner filed a formal complaint with the Jacksonville Equal Employment Opportunity Commission on March 3, 1985 as a result of this belief. The Petitioner again felt that he had suffered disparate treatment by his supervisor, Ms. Thelma Menendez, while he worked under her supervision for the Respondent agency. Ms. Menendez found the Petitioner to be a good employee and gave him favorable performance appraisals but stated that she had a problem with the Petitioner because of his tardiness and excessive absence. The Petitioner was ultimately terminated for tardiness and excessive absence and filed a retaliation and harassment complaint with the Jacksonville Equal Employment Opportunity Commission in response to that action by the agency. It developed, apparently in the course of investigation and proceeding with regard to that complaint, that the agency's records revealed that other employees, similarly situated to the Petitioner, some of whom apparently worked on his shift, had exhibited tardiness to the same or to a greater degree than the Petitioner, and that some of them had suffered less severe discipline, as imposed by their supervisor, Ms. Menendez. The Respondent acknowledged this problem and took action by reprimanding Ms. Menendez for her failure to document and respond appropriately to abuses of leave procedures and excessive tardiness by all employees. Because the Petitioner was aware that other employees on his shift had been frequently tardy without experiencing disciplinary actions of the same severity, he filed the retaliation and harassment complaint mentioned above. This complaint ultimately culminated in a negotiated settlement agreement between the Union representatives and attorney, who represented the Petitioner, and the Respondent. This settlement reversed the termination and reduced it to an agreed-upon 30-day suspension. Apparently, the Petitioner initially refused to sign the settlement agreement because he felt that the 30-day suspension, itself, was also harassment. On two occasions, allegations of child abuse against the Petitioner were made, pursuant to Chapter 415, Florida Statutes, apparently in connection with the supervisory duties over children in custody at the Respondent's facility where the Petitioner was employed. It is standard practice with the Respondent that any employee who has such allegations made against him must be removed from supervisory duties over children whenever the allegations are pending and until they are resolved. During the investigatory and resolution process concerning such child abuse allegations, employees are customarily and routinely reassigned to another job with the agency, which does not involve direct supervision of clients or children. Such events frequently occur at the Juvenile Detention Center. On the two occasions involving the Petitioner, the Petitioner was reassigned to maintenance duties at the Respondent's facility. The Petitioner consistently protested this reassignment to maintenance duties because other employees in similar situations had not been reassigned to maintenance duties but, rather, to other employment duties, not involving maintenance. Although he protested the reassignment for this reason, he performed in the maintenance or janitorial capacity for over 13 months. The Petitioner remained in the maintenance position, pursuant to his reassignment, because of the allegations pending against him until an Order of the Division of Administrative Hearings was issued and, presumably, an agency Final Order, which removed the disqualification involving the child abuse allegations, effective July 22, 1987. Upon his second such reassignment to maintenance duties, on August 16, 1988, the Petitioner refused to climb up on the roof of the building to perform roof repair work when asked to do so by his supervisor. Instead, he filed a complaint with one of his supervisors, Sub-district Administrator Lucy Farley. In any event, because both allegations of child abuse were disproved, the Petitioner was reassigned to his normal duties as a Detention Care Worker I. The only reason for reassignment to the maintenance duties was because such removal from child supervision duties is mandatory under Department rules and policies. Although the Petitioner maintains that he was subjected to harassment of some sort because he was the only known employee who was given maintenance duties in the face of such allegations, it was established that he was reassigned to maintenance or janitorial duties because those were the only positions available in order for him to continue employment with the agency at the facility until the charges were resolved. His salary and benefits were not affected by this action. It was not demonstrated that he was singled out for reassignment to maintenance duties for any reasons of harassment, disparagement or disparate treatment of any kind. Likewise, it was not proven that the cartoon allegedly circulated in the Petitioner's work place was published by, authored by, or otherwise done at the instance of or within the knowledge of the Respondent. Thus, it cannot be probative of any intent or motive on the part of the employer to harass the Petitioner on the basis of previously- filed grievances or complaints against the employer or for any other reason. It cannot serve as evidence that the ultimate dismissal, which is the subject of this proceeding, constituted a retaliatory dismissal by the employer. On July 14, 1989, the Petitioner reported to work on the 7:00 a.m. to 3:00 p.m. shift, at the Duval Regional Juvenile Detention Center. He was performing his regular duties as a Detention Care Worker I. The client population was high in the facility at that time, and employees were generally unable to take regularly-scheduled breaks from their duties. On that morning, the Petitioner worked without a break from 7:00 a.m. to approximately 11:50 a.m. He then maintained that he felt ill and notified Mr. Arnett Morrell and Mr. Carlton Smith, his coworkers and/or supervisor, that he intended going to the staff lounge to eat. Prior to leaving his work area ("Module A"), the Petitioner advised Mr. Bernard Brock, who was the "Floor Coordinator" between "A" and "B" Modules, that he needed to go eat. He secured Mr. Brock's agreement to cover his module or duties while he took a break. The Petitioner then proceeded to "master control", the control center for the facility. At the master control station, Detention Care Worker Supervisor, Reginald Chambliss, asked the Petitioner why he had not followed proper procedures by calling the master control center before he left his module to come to master control or to leave his module for any reason. The Petitioner responded by explaining that he had secured coverage of his duties and his module from Mr. Brock and two other workers. He also stated to Mr. Chambliss that he had not had a break since 7:00 a.m. that morning and was feeling sick. After some discussion, the Petitioner advised Mr. Chambliss again that he was sick and needed to eat or that he would have to take leave time. Mr. Chambliss then gave the Petitioner his keys so that he could unlock his personal effects. The Petitioner then returned to his module to get his personal effects. The Petitioner later returned to master control to "clock out" because he had apparently decided to leave the work place. Mr. Chambliss approached the Petitioner in the vicinity of the time clock and informed him that he would not be able to authorize him taking leave time that day if the Petitioner left the building. The Petitioner moved toward the time clock in order to carry out his intention to "clock out" of the building while Mr. Chambliss was standing between him and the time clock. Mr. Chambliss repeated his instructions to the Petitioner that if he clocked out, he would not approve his taking leave. The Petitioner ordered Mr. Chambliss to get out of his way, which Mr. Chambliss did not do. Then the Petitioner apparently swore at Mr. Chambliss and said something to the effect of "I am tired of this shit" and then struck Mr. Chambliss one or more times, inflicting a cut in the vicinity of his eye. The Petitioner then apparently left the immediate vicinity of Mr. Chambliss at the master control station. Mr. Chambliss called Supervisor II, Andrea Cash, on the intercom and she came to the area of the master control station where the incident occurred. He informed Ms. Cash of the details of the incident. When Ms. Cash arrived, the altercation was over and the Petitioner appeared relatively calm, although Mr. Chambliss was still upset. Ms. Cash then contacted District Administrator, Lucy Farley, who contacted her immediate supervisor, in turn, by telephone. On instructions from her superiors, Ms. Cash ordered the Petitioner to leave the facility and not to come back. She notified all shifts verbally and by memorandum that if the Petitioner should return to the facility, the Sheriff's Office should be summoned. Mr. Chambliss was advised by superiors to press charges and did so. Ultimately, however, he and the Petitioner entered into an agreement to drop the charges; and the State's Attorney did not prosecute the assault charge. On July 27, 1989, the Petitioner was notified by Administrator, Lucy Farley, that his dismissal would be effective at 5:00 p.m. on July 25, 1989. The Petitioner met with Ms. Farley in the company of an AFSME Union Representative on July 24, 1989 apparently to discuss some sort of resolution to the conflict; however, Ms. Farley terminated the Petitioner. The Department has a policy that any assault or striking of an employee or supervisor is adequate grounds for termination. Mr. Chambliss and other supervisory personnel consider an employee assault to be an unusual and severe incident. The Petitioner was terminated for assaulting another staff member and using abusive language toward that staff member. Because the Petitioner struck his supervisor three times, causing injury to him, in an unprovoked manner, it was determined by the employer to be reasonable grounds for termination. The Department's rules and policies allow for termination for such an offense, and whether or not mitigating circumstances are considered is discretionary with the employer. The Petitioner made no showing of any disparate treatment in this regard. He made no showing that other employees had assaulted a co-employee or supervisor and had not been terminated but, rather, had been subjected to either no discipline or some lesser degree of discipline. In fact, the Petitioner did not demonstrate that any other such assault incident had occurred. The Petitioner simply showed no instances where other employees similarly situated, involved in a similar incident had been subjected to less severe discipline. Consequently, the Petitioner made no showing of a prima facie case of disparate discriminatory treatment in connection with his termination.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Petition of John W. Cohen, Jr. be dismissed in its entirety. DONE AND ENTERED this 30th of January, 1992, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-7300 Petitioner's Proposed Findings of Fact 1-4. Accepted, but not necessarily as probative of material issues presented. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. 7-10. Accepted, but not as probative of material issues presented, standing alone. 11. Accepted, but not in itself probative of the material dispositive issues presented. 12-14. Rejected, as not entirely in accordance with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. 15. Accepted, but not itself dispositive of material issues presented. 16-23. Accepted, but not in themselves dispositive of the material issues presented. Rejected, as not entirely in accordance with the preponderant evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself dispositive of material issues presented. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 27-28. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accordance with the preponderant evidence of record. Rejected, as immaterial. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as being immaterial. Accepted as to the first clause, but as to the second, rejected as not being entirely in accordance with the preponderant evidence of record. Rejected, as irrelevant. It was not demonstrated that other employees for whom mitigating circumstances may have been considered were similarly situated to the Petitioner in the instant case situation. Respondent's Proposed Findings of Fact 1-11. Accepted. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 D. Ola David Qualified Representative 600 Victory Gardens Drive Tallahassee, FL 32301 Scott Leemis, Esq. HRS District 4 Legal Office P.O. Box 2417 Jacksonville, FL 32231-0083
The Issue The issue in this case is whether Respondent engaged in an unlawfully discriminatory employment practice against Petitioner on the basis of race and religion, and retaliated against him, in violation of the Florida Civil Rights Act of 1992 ("FCRA").
Findings Of Fact The Parties Petitioner, Lawrence N. Brown, III, is an African- American male and is of the Christian faith. Petitioner has been employed with Respondent since April 14, 2014, at its store located at 3800 Oakwood Boulevard, Hollywood, Florida (hereafter, the "Store"). As of the final hearing, Petitioner continued to be employed by Respondent at the Store. Respondent is a corporation doing business in Florida. Respondent owns and operates the Store at which Respondent was employed at the time of the alleged discriminatory and retaliatory actions. Employment Charge of Discrimination and Petition for Relief Petitioner filed an Employment Charge of Discrimination ("Discrimination Charge") with FCHR on or about March 10, 2016.4/ The pages attached to the Discrimination Charge form (which apparently was filled out in typewritten form by FCHR staff) were prepared by Petitioner. On or about July 18, 2016, Respondent issued a Determination: No Reasonable Cause, determining that Petitioner had not shown reasonable cause to believe that Respondent had committed unlawful employment practices against him. On or about August 16, 2016, Petitioner timely filed a Petition for Relief requesting a hearing to determine whether Respondent committed unlawful employment practices against him. The Petition for Relief alleges that Respondent engaged in unlawful discrimination against him on the basis of both his race and religion, and also alleges that Respondent engaged in unlawful retaliation. These charges, as specifically set forth in the Petition for Relief, are the subject of this de novo proceeding.5/ In the Petition for Relief, Petitioner claims that Respondent discriminated against him on the basis of race by failing to promote him into supervisory or managerial positions for which he claims he was qualified; by giving him lower scores on his employment evaluations than were given to a white employee working in the same position (part-time hardlines merchandiser); by not paying him as much as they paid that same white employee; and by retaining that same white employee as a part-time hardlines merchandiser in the Toy Department, while moving Petitioner to another position as cashier. Petitioner also claims that Respondent discriminated against him on the basis of his religion by scheduling him to work on Christmas Day 2015, while giving other employees that day off. Additionally, Petitioner claims that Respondent retaliated against him for complaining to Respondent's corporate legal department about having to work on Christmas Day 2015, by removing him as a hardline merchandiser in the Toy Department and reassigning him to a cashier position, then subsequently effectively "terminating" (in his words) his employment. Petitioner seeks an award of $5,000,000 in damages in this proceeding. Background Events As noted above, Petitioner was hired by Respondent on or about April 14, 2014. Petitioner initially was hired in a part-time position as a part-time overnight hardlines replenishment associate. In this position, Petitioner's work scheduling availability was between 10:30 p.m. and 6:00 a.m. When Petitioner was hired, Alberto Rodriquez was the Store manager. In his position as a part-time employee with Respondent, Petitioner was not guaranteed any specific number of weeks or hours of employment in any given calendar year, nor was he guaranteed that he would attain full-time employee status. The number of work hours Petitioner was assigned was dependent on the company's business needs and on Petitioner's ability to meet the applicable job performance standards. Petitioner acknowledged these and the other conditions of his employment as evidenced by his signature on the Pre-training Acknowledgment Summary dated April 14, 2014. As a result of the elimination of the overnight replenishment associate position, on or about October 26, 2014, Petitioner was transferred to another position as a part-time daytime hardlines merchandiser. In this position, his work scheduling availability was between 6:00 a.m. and 1:00 p.m. As a hardlines merchandiser, Petitioner was responsible for stocking store shelves with merchandise, straightening merchandise on store shelves, putting returned merchandise on shelves, and generally keeping the hardlines departments neat and the shelves fully stocked. The Toy Department at the Store was one of several departments that were categorized as "hardlines" departments. In his duties as a hardlines merchandiser, Petitioner was not assigned to any specific hardlines department, and his responsibilities entailed working in any hardlines department as needed. However, as a practical matter, due to the work demand, Petitioner worked mostly, if not exclusively, in the Toy Department until he was reassigned to the cashier position after Christmas 2015. David Leach became the Store manager in April 2015. At some point before Christmas Day 2015, the work schedule for the week of December 20 through 26, 2015, was posted. Petitioner was scheduled to work on Christmas Day, December 25, 2015. Petitioner did not volunteer, and had not otherwise requested, to work on Christmas Day 2015. The Store was closed on Christmas Day 2015, which was a paid holiday for Respondent's employees. On or about December 23, 2015, Petitioner contacted Respondent's corporate legal department, requesting to be removed from the work schedule for Christmas Day 2015. Pursuant to a directive from Respondent's corporate office, Petitioner was removed from the work schedule for that day. Petitioner was not required to work on Christmas Day 2015, and he did not work that day. Petitioner was paid for the Christmas Day holiday. Although the Store was closed on Christmas Day 2015, some Store employees were scheduled to work, and did work, that day on a volunteer basis, for which they were paid. On December 28, 2015, Leach presented Petitioner with a Request for Religious Accommodation form to sign. Petitioner signed the form. The form was marked as showing that Respondent "granted" the religious accommodation. Also on December 28, 2015, Leach informed Petitioner that he had eliminated the part-time daytime hardlines merchandiser position. He offered Petitioner other part-time positions, either as a cashier or in making pizza at the Little Caesar's pizza station in the Store. Leach did not offer any other positions to Petitioner at that time. Petitioner was reassigned to the cashier position, but informed Leach that he was unable to stand in a single place for long periods of time due to injuries he previously had sustained while working on the overnight shift. Petitioner was reassigned to the cashier position, effective January 3, 2016.6/ Petitioner's hourly wage did not change when his position changed to cashier. He continued to make the same hourly wage that he had made as a daytime hardlines merchandiser. At some point on or after December 28, 2015, Petitioner signed a Personnel Interview Record form that reflected his revised work hours associated with his position change to cashier. The form stated his availability to work between 8:00 a.m. and 5:00 p.m., Monday through Saturday. The evidence is unclear as to whether Petitioner did (or did not) call in to inform the appropriate Store personnel that he would not be working on Tuesday, December 29, or on Thursday, December 31, 2015. Regardless, the persuasive evidence shows that Petitioner worked on Monday, December 28, 2015; did not work on Tuesday, December 29, or Thursday, December 31, 2015; and worked on Saturday, January 2, 2016. The work schedule for the week of January 3 through 10, 2016, was computer-generated some time during the week of December 27, 2015, through January 3, 2016. If an employee does not report to work when scheduled and does not call in to be excused from work on those days, this situation is termed a "no call-no show," and the employee will not be scheduled to work the following week. This is to ensure that there are cashiers available as needed to work on upcoming dates. Regardless of whether Petitioner did or did not call in to inform Respondent he would not be working on Tuesday, December 29, or Thursday, December 31, 2015, the posted work schedule for the week of January 3 through 10, 2016, showed Petitioner as not being scheduled to work that week. However, the evidence shows that Petitioner did, in fact, work a total of 15.90 hours the week of January 3 through 10, 2016. The work schedule posted as of Saturday, January 9, 2016, also showed Petitioner as not being scheduled to work the week of January 10 through 16, 2016. However, the evidence shows that Petitioner worked a total of 15.41 hours the week of January 10 through 16, 2016. At some point between January 13 and January 26, 2016, Petitioner was moved from the cashier position to the Store's date code specialist position. The date code specialist position also is a part-time position, for which Petitioner is paid the same hourly wage as he was paid as a daytime hardlines merchandiser. As of the final hearing, Petitioner continued to be employed by Respondent, working as the Store's date code specialist. Race Discrimination Claims As previously noted, Petitioner began working for Respondent at the Store on April 14, 2014. His initial employment position was as a part-time overnight replenishment associate. In October 2014, he moved to a part-time daytime hardlines merchandiser position. In both positions, he was responsible for stocking and restocking merchandise in all hardlines departments, so was not assigned exclusively to the Store's Toy Department. However, as noted above, due to work demand in the Toy Department, Petitioner did most, if not all, of his work in that department until he was moved to the cashier position in late December 2015.7/ Petitioner contends that starting in mid-2014,8/ he periodically requested to be promoted to "Toy Lead" or to another supervisory or managerial position. He testified that he had undertaken many activities and implemented various systems to improve the efficiency and productivity of the Toy Department and other departments at the store, and had documented these activities and transmitted that information to the Respondent for inclusion in his personnel file. He testified that rather than promoting him to a supervisory position in the Toy Department, Respondent instead hired a non-African-American person to fill that position.9/ Petitioner additionally testified that he periodically would request to be transferred or promoted to other supervisory positions, but that Respondent did not grant these requests. He contends that since he was qualified for these positions, the only basis for Respondent's decision to fill those positions with other employees was discrimination against him on the basis of his race. In response, Leach testified that there was no formal "Toy Lead" position at the Store; rather, the person supervising the Toy Department is an assistant store manager, a position that entails supervising other hardlines departments besides the Toy Department. Further, Leach testified that in his view, Petitioner was not qualified to occupy certain supervisory positions because of his lack of experience in those areas and his relatively short period of employment with Respondent. Leach also testified that Petitioner had not ever formally applied for a promotion through Respondent's online application process. Petitioner further asserts that Respondent discriminated against him on the basis of race because he was not paid the same amount as Corey Harper, a white male hardlines merchandiser who also often worked part-time in the Toy Department on the afternoon or evening shift, even though he worked harder and received higher evaluation scores than did Harper.10/ However, Leach credibly testified that Respondent does not currently base its pay rate for part-time employees on job performance evaluation scores, but instead pays them a set hourly pay rate. According to Leach, Respondent has not given an hourly pay rate raise to part-time employees since 2009, so that any pay differential depended on whether employees were hired before or after 2009. Leach credibly testified that Harper has been employed by Respondent since 2004, so had received hourly pay rate raises between 2004 to November 2008; this would result in his hourly pay rate being higher than Petitioner's, even though both are part-time employees. Petitioner testified that when he was moved from the daytime hardlines merchandiser position to the cashier position after Christmas 2015, he made it clear that he wanted to remain in the Toy Department; however, Respondent transferred him out of that department while allowing Harper to remain in a hardlines merchandiser position, which entailed work in the Toy Department. Petitioner also made clear that he wished to return to the hardlines merchandiser position in the Toy Department when such a position became available; however, at some point, Leach reassigned Carol Yaw, who was white, from her previous office manager job to a hardlines merchandiser position. Petitioner asserts that Respondent's actions in allowing Harper to remain as a part-time hardline merchandiser and reassigning Yaw to a hardlines merchandiser position constituted discrimination against him on the basis of his race. However, Leach credibly testified that the part-time daytime hardlines merchandiser position that Petitioner had occupied was eliminated because of the lack of work in that position, primarily due to declining Toy Department sales after the holiday season. Additionally, immediately after Christmas 2015, Leach consolidated the overnight merchandise unloading and daytime shelf stocking positions and moved the overnight unloading employees to the day shift, where their duties consist of unloading merchandise from trucks and stocking shelves.11/ Leach credibly testified that Harper was not moved from his position because Leach had specifically decided not to move others unaffected by this reorganization out of their existing positions, and that Harper was an afternoon/evening hardlines merchandiser. Leach also credibly testified that he had moved Yaw to a full-time hardlines merchandiser position after her office manager position was eliminated because she was a 25-year employee of Respondent, and he felt that she deserved that position out of loyalty for being a long-term employee of Respondent. Petitioner also contends that Respondent's evaluation of his job performance was unfair because it was conducted by an assistant store manager, Marjorie McCue, who was not his direct supervisor. Specifically, he contends that McCue was unfamiliar with his job performance, so did not appropriately consider, in his evaluation, improved Toy Department sales performance and efficiency that were due to measures that he had implemented. Petitioner also contends that McCue initially deliberately gave him an inaccurately low job performance evaluation in an effort to create a record to support terminating his employment, but that when he complained, those lower scores were changed to higher scores. The only performance evaluation regarding Petitioner's job performance that was admitted into evidence is a document titled "Employee Review" that was dated January 31, 2015; Petitioner received a 3.10 overall performance score on this performance evaluation.12/ The Employee Review for Harper dated January 31, 2015, also was admitted into evidence; Harper's overall performance score was 3.00. Upon careful consideration of the competent substantial evidence in the record, it is determined that Petitioner failed to carry his burden13/ to establish a prima facie case of employment discrimination by Respondent on the basis of his race. To do so, Petitioner must show that: (1) he is a member of a protected class; (2) he was subject to adverse employment action; (3) he was qualified to do the job; and (4) his employer treated similarly-situated employees outside of his protected class more favorably than he was treated.14/ It is undisputed that Petitioner, as an African- American, is a member of a protected class. However, the evidence does not support a finding that Petitioner was subject to adverse employment action. With respect to his assertion that Respondent failed to promote him on the basis of his race, Petitioner needed to show that, in addition to being a member of a protected class, he applied for and was qualified for a promotion; that he was rejected despite his qualifications; and that other equally or less-qualified employees outside of his class were promoted.15/ While Petitioner frequently sent email correspondence to Respondent's corporate legal office requesting to be promoted, the evidence does not show that he followed Respondent's formal online application process for applying for promotions.16/ Further, although the evidence indicates that Petitioner is very hard-working, energetic, bright, and detail-oriented, he did not demonstrate that those characteristics necessarily qualified him for the supervisory positions about which he inquired. He also did not demonstrate that Respondent filled the positions about which he had inquired with less-qualified non-African-American employees. In fact, Petitioner acknowledged, in testimony at the final hearing and in email correspondence with Respondent's corporate legal office, that in his view, some of the individuals who had been promoted were qualified for the positions to which they had been promoted. For these reasons, it is determined that Petitioner did not demonstrate adverse employment action by Respondent by failing to promote him on the basis of his race. Petitioner also did not show that he received a lower pay rate and lower evaluation scores than did other similarly- situated employees who were not members of his protected class. The only comparator to which Petitioner referred was Harper, the other part-time hardlines merchandiser that sometimes worked in the Toy Department. However, as discussed above, the evidence showed that Harper actually scored lower than did Petitioner on the January 31, 2015, evaluation.17/ Further, Harper was not similarly situated to Petitioner with respect to pay rate because Harper is a longer-term employee who had received hourly pay rate raises in 2005 through 2008, before Respondent ceased giving raises of hourly pay rates in 2009, but Petitioner was hired in 2014, after Respondent ceased giving hourly pay raises. Petitioner also did not show, by the greater weight of the evidence, that Leach discriminated against him on the basis of his race by electing to reassign him, rather than Harper, to a cashier position after Christmas 2015, and by later reassigning Yaw to fill a full-time hardlines merchandiser position that included responsibilities of working in the Toy Department. As discussed above, when Leach decided to eliminate the part-time daytime hardlines merchandiser position, he chose not to reassign other employees who were not directly affected by the elimination of that position. The evidence shows that Leach did not reassign Harper to a cashier position because Harper's position was not directly affected by the elimination of the daytime hardlines merchandiser position——not because Leach favored Harper over Petitioner due to race. Also as discussed above, Leach reassigned Yaw to a full-time hardlines merchandiser position after her office manager position——also a full-time position——was eliminated. Because Yaw was a full-time employee, she did not fill a position for which Petitioner was eligible as a part-time employee; furthermore, under any circumstances, she was not similarly situated to Petitioner because of her longer term of employment with Respondent. For these reasons, neither Harper nor Yaw are similarly situated to Petitioner for purposes of being comparators. For these reasons, it is found that Petitioner did not establish a prima facie case of employment discrimination against him by Respondent on the basis of his race. Further, even if Petitioner had established a prima facie case of employment discrimination on the basis of race, Respondent articulated legitimate, non-discriminatory reasons for its actions with respect to Petitioner. As discussed above, Respondent did not promote Petitioner because he did not go through Respondent's formal application process for seeking promotions, and also because Leach determined, on the basis of Petitioner's lack of experience and employment longevity, that Petitioner was not qualified for supervisory positions at that time. Additionally, Leach's decisions regarding reassigning Petitioner to a cashier position while retaining Harper and reassigning Yaw to hardlines merchandiser positions were management decisions based on business needs and requirements, rather than on the basis of race. Petitioner did not present evidence showing that these reasons were a pretext for discrimination against him on the basis of his race. Based on the foregoing, it is determined that Respondent did not discriminate against Petitioner on the basis of his race, in violation of section 760.10(1)(a). Religious Discrimination Claim As previously discussed, shortly before Christmas Day 2015, the employee work schedule for the week of December 20 through 26, 2015, was posted in the Store. This schedule showed Petitioner as being scheduled to work from 6:00 a.m. to 3:00 p.m. on Christmas Day, which fell on a Friday in 2015. The Store was closed on Christmas Day 2015, which was a paid employee holiday; however, employees could work that day on a voluntary basis and they would be paid time-and-a-half for doing so. As noted above, Petitioner did not volunteer or otherwise indicate that he was willing to work that day. Upon seeing that he was scheduled to work on Christmas Day, Petitioner contacted Respondent's corporate legal department, which then contacted Leach. Leach had Petitioner removed from the work schedule for December 25, 2015. Petitioner was not required to work that day, did not work that day, and was paid for the Christmas Day 2015 holiday. Petitioner claims that by scheduling him to work on Christmas Day, Respondent discriminated against him on the basis of his religion. Petitioner asserts, as evidence of Respondent's discriminatory intent, that there are others who worked in the Toy Department who were not of the Christian faith, so that if someone was needed to work on Christmas Day, one of those individuals could instead have been scheduled. As previously noted, on December 28, 2015, Leach presented Petitioner with a Request for Religious Accommodation form to sign. Leach credibly testified that the purpose of having Petitioner sign the form was to have a written record of Petitioner's religion so that Petitioner would not again be assigned to work on a Christian religious holiday. Petitioner signed the form, but protested being required to do so, because, in his view, Respondent already was on notice that he is of the Christian faith because he always had Sundays off of work. Petitioner testified that when he was hired in April 2014 (notably, before Leach became Store manager) he had verbally requested Sundays off, effectively placing Respondent on notice that he is of the Christian faith. On this basis, Petitioner asserts that Leach and other managers and supervisors at the Store knew that he is Christian and that they nonetheless intentionally scheduled him to work on Christmas Day. Petitioner acknowledged that he never heard Leach make any comments with respect to his (Petitioner's) religion. Leach credibly testified that before he was contacted by Respondent's corporate office regarding Petitioner's concerns about being scheduled to work on Christmas Day 2015, he did not know that Petitioner was Christian, and he had not inferred that from the fact that Petitioner did not work on Sundays.18/ Leach testified, credibly and persuasively, that Petitioner was scheduled to work on Christmas Day 2015 by mistake. He explained that the work schedule for the week of December 20 through 26, 2015, was generated using a pre-populated "template" method. This method, which is a method by which the Store sets its weekly work schedules, entails week-to-week copying of the regular——i.e., "template"——work schedule for all Store employees, then modifies that schedule as needed to address changes to individual employee work schedules. Leach explained that in using this method to establish the work schedule for the week of December 20 through 26, 2015, Respondent had inadvertently scheduled employees who had not volunteered to work on Christmas Day. He surmised that this was a possible explanation for why Petitioner mistakenly was scheduled to work that day. As noted above, Petitioner was not the only Store employee scheduled to work on Christmas Day 2015. Upon consideration of the competent substantial evidence in the record, it is determined that Petitioner failed to carry his burden to establish a prima facie case of employment discrimination by Respondent on the basis of his religion. To do so, Petitioner must show that he: (1) was a member of a protected class; (2) informed Respondent of this belief; and (3) suffered adverse employment action as a result of failing to comply with the employment requirement that conflicted with his belief. It is undisputed that Petitioner falls within a protected class for purposes of a discrimination claim on the basis of religion. However, Petitioner did not prove the existence of the other two elements necessary to establish a prima facie case of employment discrimination on the basis of religion. Specifically, Petitioner did not prove that Respondent knew that he was Christian or that his Christian faith prohibited him from working on Christmas Day. As noted above, Petitioner was hired at the Store before Leach became Store manager. Further, because Petitioner had not been required to complete a written religious accommodation form when he was hired in April 2014, Respondent did not have any written notice in its possession that would have informed Leach that Petitioner was Christian or that Petitioner needed certain Christian holidays, such as Christmas Day, off of work. As noted above, Leach credibly testified that he did not know that Petitioner was Christian until Respondent's corporate legal office contacted him regarding Petitioner's religion-based complaint about being scheduled to work on Christmas Day 2015. The evidence also shows that Petitioner did not suffer any adverse employment action. As soon as Respondent was informed of Petitioner's complaint, Petitioner was removed from the work schedule for Christmas Day 2015, did not work that day, and was paid for that holiday. For these reasons, it is determined that Petitioner did not establish, by the greater weight of the evidence, a prima facie case of discrimination by Respondent against him on the basis of his religion. However, even if Petitioner had established a prima facie case of discrimination on the basis of religion, Respondent produced credible, persuasive evidence showing a legitimate, non- discriminatory basis for its action——that is, that through the Store's use of the template work scheduling system, Petitioner was mistakenly scheduled to work on Christmas Day 2015. As noted above, as soon as Petitioner complained to Respondent, Respondent immediately accommodated his request by removing him from the Christmas Day 2015 work schedule. Petitioner did not present any evidence showing that Respondent's proffered reason for scheduling him to work on Christmas Day 2015 was a pretext for discrimination on the basis of his religion. For these reasons, it is determined that Petitioner did not show, by a preponderance of the evidence, that Respondent discriminated against him on the basis of his religion, in violation of section 760.10(1)(a). Retaliation Claim Petitioner claims that Respondent retaliated against him for complaining to Respondent's corporate legal office about being scheduled to work on Christmas Day 2015 by reassigning him from his position as a daytime hardlines merchandiser——a position that he clearly liked and at which he believed he excelled——to a cashier position——a position that he clearly considered demeaning and that also was physically difficult for him to perform due to a previous injury. Petitioner was informed that he was being reassigned to a cashier position only five days (and the first workday) after he complained to Respondent's corporate legal office about being scheduled to work on Christmas Day.19/ Petitioner testified that Leach told him that the part- time daytime merchandiser position had been eliminated due to the lack of work demand, particularly in the Toy Department, after the Christmas season was over. Petitioner testified that when he asked Leach about available positions in to which he could transfer, Leach told him that only cashier or pizza-making positions were available. Petitioner provided evidence that a softlines customer service job, which he claims he would have preferred, was open at the time he was reassigned and that Leach did not inform him of that opening or offer him that position. Petitioner also disputes that the part-time daytime merchandiser job that he had occupied had been eliminated. As evidence, he contends that Harper continued to occupy that position, and also that Leach subsequently reassigned Yaw to a full-time hardlines merchandiser rather than transferring him back into a hardlines merchandiser position, as he had requested. The part-time cashier position to which Petitioner was transferred was the same level of employment position in Respondent's employment hierarchy as was the part-time daytime merchandiser position that he previously held. Additionally, as discussed above, as a part-time cashier, Petitioner continued to receive the same hourly pay rate and work scheduling availability as he had received when he was employed as a part-time daytime hardlines merchandiser. As discussed above, on or before January 26, 2016, Petitioner was reassigned to the Store's date code specialist position. According to Leach, that position came open after Petitioner was reassigned to the cashier position, and Leach believed that the date code specialist position would play well to Petitioner's strengths of being methodical and detail- oriented. Petitioner bears the burden, by the greater weight of the evidence, to establish a prima facie case of retaliation by Respondent. To establish a prima facie case of retaliation, Petitioner must show that: (1) he engaged in a protected activity; (2) he suffered a materially adverse employment action; and (3) there was a causal connection between the protected activity and the adverse action.20/ For the following reasons, it is found that Petitioner did not satisfy his burden to establish a prima facie case of retaliation. It is determined that Petitioner engaged in a "protected activity" when he complained to Respondent's corporate legal office, by email dated December 23, 2015, that he had been scheduled to work on Christmas Day 2015. The email stated: Attn: Legal My schedule states that I am scheduled for Christmas day. I am a Christian I exercise religious right no work on a high religious day. Christmas is the day I celebrate the birth of Christ thus the name Christmas day. A Jewish person was assigned to my department (toys) and was allowed to have off all the Jewish holidays. I was told that is his right and approved, I said fine, I don't know who was arguing this but this was fine with me, because I have many Jewish friends, so I understand. Easter which falls on a Sunday and Christmas are my holidays. I am requesting off. I am requesting Christmas day off with holiday pay as my religious day, just like I requested Sundays off. Only I can change my religious day and work on Sunday, which I might have to when promoted. If management tells me I cannot be promoted because I exercise my religious right not to work on the seventh day, then I will have to do as Jewish people have done for centuries, they are released from the commandment that they may only eat Kosher. If captured by the enemy they may eat to survive. So if I can only be manager if I give up my religious right not to work on Sunday, then I will do what management says is a requirement. Thank you. Lawrence Brown Kmart-Hollywood, Fl Oakwood Plaza To be a "protected activity," the activity giving rise to the alleged retaliatory action must, at the very least, communicate to the employer that the complainant believes the employer is engaging in discrimination against him. Petitioner's email can be read broadly to inform Respondent that he believed he was being discriminated against on the basis of his religion by being scheduled to work on Christmas Day 2015. To that point, Petitioner specifically compared his circumstances to those of a Jewish employee who had requested and been allowed to have all Jewish holidays off of work. While not specifically using the word "discrimination," Petitioner's email can be reasonably read to place Respondent on notice that Petitioner believed he was being treated differently than a similarly-situated employee who was not a member of Petitioner's protected class and who had been excused from work on the holidays observed by his religion. Additionally, Leach was aware that Petitioner had complained to Respondent's corporate legal department about being scheduled to work on a Christian holiday. Accordingly, it is determined that Petitioner has established the "protected activity" element of his retaliation claim. However, Petitioner did not show that he suffered a materially adverse employment action as a result of having engaged in protected activity. His reassignment to the part-time cashier position effectively was a lateral transfer that did not affect his hourly pay rate or hours of work scheduling availability. Although Petitioner subjectively considered the cashier position to be demeaning and below his skill level21/ and although his job responsibilities changed, the evidence shows that Petitioner was not reassigned to an objectively less prestigious or otherwise inferior employment position. Furthermore, in any event, approximately three weeks after Petitioner was reassigned to the cashier position, Respondent reassigned him to a position as the Store's date code specialist——a position that he has officially held since January 26, 2016, and from which he has not requested to be transferred. In this position, Petitioner earns the same hourly wage and has the same number of hours of work availability as he did in the hardlines merchandiser and cashier positions. He is solely responsible in the Store for ensuring that date-coded merchandise on the shelves has not exceeded its expiration date—— a position that entails significant responsibility and, as Leach put it, is "very important." The evidence also does not support Petitioner's assertion that his removal from the work schedule in early January meant that he was effectively terminated. Although the evidence does not clearly show what days Petitioner did not work during the week after Christmas in 2015, or whether he did (or did not) call in to notify Respondent that he would be absent, the evidence does clearly establish that Petitioner was not scheduled to work the first week of January 2016, and it is also clear that management personnel at the Store did not believe that he had called in to notify them of his absence. Leach explained that if an employee does not report to work when scheduled and does not call in to notify the Store of his or her absence, the employee will not be scheduled to work the following week; this is to ensure that there are enough cashiers available as needed to work in the upcoming week. In any event, when Petitioner noticed that he had not been scheduled to work, he contacted the Store's human relations manager, who told him to come back to work. In fact, Petitioner worked the first and second weeks of January 2016, and thereafter, and he continues to be employed at the Store. Further, Petitioner was never told or otherwise notified, formally or informally, that his employment with Respondent had been terminated. For these reasons, it is determined that Petitioner did not suffer a materially adverse employment action by being reassigned for a short period of time from a part-time daytime hardlines merchandiser to a part-time cashier position. Petitioner also did not demonstrate the existence of a "causal link" between a protected activity and adverse employment action. As discussed above, Petitioner's sending an email to Respondent's corporate legal office about being scheduled to work on Christmas Day 2015 constituted a "protected activity." However, as discussed above, it is determined that Respondent did not engage in an adverse employment action; thus, Petitioner's engagement in protected activity did not "cause" Respondent to take any material adverse employment action against him. Furthermore, in any event, Respondent articulated a legitimate, non-discriminatory reason for reassigning Petitioner to a cashier position shortly after Christmas Day 2015—— specifically, that the part-time daytime merchandiser position that Petitioner had held was eliminated due to seasonal workload decline and other business management decisions reallocating hardlines merchandise-related tasks between the overnight and daytime shifts. For these reasons, it is determined that Petitioner did not prove, by the greater weight of the evidence, that Respondent retaliated against him for engaging in a protected activity, in violation of section 760.10(7). Damages Petitioner has requested an award of damages in the amount of $5,000,000. However, section 760.11(6), which governs the award of remedies in administrative proceedings brought under the FCRA, does not authorize DOAH to award damages. Further, the evidence establishes that Respondent did not engage in any unlawful employment practices with respect to Petitioner, and, in any event, Petitioner did not present any evidence to support his entitlement to an award of damages in this proceeding.
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 dismissing the Petition for Relief. DONE AND ENTERED this 14th day of June, 2017, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 June, 2017.
The Issue : The issues to be resolved in this proceeding concern whether the Petitioner was subjected to an unlawful employment practice by being allegedly retaliated against by termination from employment for purportedly making complaints concerning alleged discriminatory practices toward Hispanic employees.
Findings Of Fact The Petitioner was hired by the Escambia County Health Department (Department) the Respondent herein, as a Community Health Nursing Supervisor. It was the Petitioner's duty to supervise nursing staff under her direction and to perform their employee evaluations. She, in turn, was responsible to her supervisor, Jennifer Carter. The Petitioner maintains that she was retaliated against by the Respondent, in the employment action taken, because she complained to her supervisors concerning what she claimed was discriminatory conduct toward Hispanic employees by other employees of the Respondent. The Petitioner, for instance, made reference to an employee, Annette Thrasher, who purportedly made reference to "those people" in a meeting when referring to Hispanic people or employees. The Petitioner, however, did not make a formal complaint about that matter when offered the opportunity to do so. Maribel Reyes is a Hispanic employee. She testified that another employee, possibly employee Thrasher, criticized her as well as Esperanza Rietz, also a Hispanic employee, for speaking the Spanish language at work. Ms. Reyes and/or Ms. Rietz took a complaint about this matter to the Petitioner. The Petitioner did not act to resolve it, however, and therefore Ms. Reitz took her concerns about criticism of her speaking in Spanish to the Petitioner's supervisor, Ms. Carter. The issue was then resolved quickly by Ms. Carter, who assured Ms. Rietz that she could speak any language she wished; that there was no prohibition against that. The Respondent had contended that this was one of the instances of purported discrimination against Hispanic employees which she purportedly defended against and made complaint about to the Respondent's management. In fact, the complaint had been made to her by the Hispanic employee referenced above and she had done nothing about it. In any event, the fact that the Petitioner's supervisor, Ms. Carter, acted quickly to assure Ms. Reyes and indeed Ms. Rietz, that the Respondent's management did not tolerate employment conduct indicative of such discrimination, tends to belie the Petitioner's contention that the Respondent retaliated against her for making a complaint about discrimination against Hispanic employees. Rather, it was her supervisor, and the Respondent's management who acted to ensure that such potentially discriminatory conduct was not condoned. This belies any likelihood that the Respondent would have retaliated against the Petitioner for following the same policy, had she done so. When she was hired the Petitioner's supervisor, Ms. Carter, instructed her to include Ms. Carter in any meetings and/or discussions with employees concerning those employees' performance evaluations, especially if the evaluations were contemplated to be negative ones. The Petitioner was still a probationary employee herself, and Ms. Carter, as her supervisor wanted to ascertain that she had followed instructions and was doing the employee performance evaluations in accordance with the Respondent's relevant personnel rules and policies. In fact, however, the Petitioner failed to follow Ms. Carter's instructions and completed a number of performance evaluations and meetings with the affected employees without informing Ms. Carter or securing her presence at those discussions. The testimony of witnesses Jessie Wilson and Jennifer Carter, established that the Petitioner gave Jessie Wilson an unfair and inaccurate employee performance evaluation. She excessively criticized and was rude toward Jessie Wilson. The Petitioner apparently made a comment somewhat to the effect that Ms. Wilson, who is white, had a "Jim Crow" attitude or an "overseer" mentality. The Petitioner was overly critical, demeaning, and rude toward employees at various times. She embarrassed and criticized Esperanza Rietz, an employee she supervised, in front of the employee's co-workers and disclosed her personal medical information improperly to Ms. Rietz's co-workers. Velda Gardner is a Health Technician in the health unit. Ms. Gardner took a long lunch period one day, taking an extra hour. She took the extra hour from administrative leave she was entitled to as "compensation time." The Petitioner wrongfully docked her the hour of administrative leave time. Ms. Gardner demonstrated to the Petitioner, with a witness, that she was entitled to the hour of administrative leave time or compensation time but the Petitioner refused to accept her truthful explanation. She effectively and wrongfully accused Ms. Gardner of lying. In addition to prompting employee Jessie Wilson to file a grievance against the Petitioner because of the untrue, inaccurate, and overly disparaging evaluation concerning Ms. Wilson's performance, the Petitioner yelled at and criticized Ms. Wilson in front of her peers. She also treated other employees in front of peers in a similar fashion at various times. Ms. Rietz worked as a Spanish language interpreter for the Respondent. The Petitioner disparaged her in front of other employees. Ms. Rietz felt demeaned by this. On another occasion the Petitioner approached a physician, Dr. Tamalo, in the hallway outside her office and commenced yelling at him and berating him in a loud, rude manner. This was overheard by witnesses Virginia Howard and Gracie Stovall, employed, respectively, in the nearby Family Planning Clinic and Family Health Clinic. According to these two witnesses, "everyone in adjoining rooms could hear it." The Petitioner behaved in a very loud, rude disparaging way to Dr. Tamalo and another physician. Jennifer Carter, as referenced above, is employed by the Family Health Clinic and is the Petitioner's supervisor. She corroborated the testimony of witness Jessie Wilson concerning the Petitioner's "Jim Crow" reference and described the above-named witnesses' and employees' complaints concerning the Petitioner's conduct towards them, corroborating the nature of their complaints. Witness Carter described Respondent's Exhibit A, which is Jessie Wilson's performance evaluation, as being in some respect harsh and demeaning, with the same sort of criticisms directed at the Respondent's Exhibit B, the performance evaluation of Tammy Buckney. These evaluations were not done in accordance with Ms. Carter's instruction. Ms. Carter, in fact, had to re-formulate and re-draft three of the six employee evaluations she received from the Petitioner because they were inaccurate, overly disparaging, and not done according to her instructions. Ms. Carter is the Assistant Community Health Nurse of the Escambia County Health Department. Ms. Carter thus corroborated the testimony of other employees that the Petitioner's treatment of staff members under her supervision was frequently rude and demeaning. Ms. Carter also corroborated the testimony of Ms. Reyes in establishing that no discrimination against Hispanic people was tolerated by the Respondent, nor to the knowledge of Ms. Carter had occurred. Dr. John Lanza is director of the Escambia County Health Department. He is the ultimate supervisor of the Petitioner as well as all other employees of the Department, including Jennifer Carter. Dr. Lanza has been with the Department of Health for 15 years. He has never heard any reports of discrimination against Hispanics or as to Ms. Rubin herself. Ms. Rubin is Black. Dr. Lanza became aware through reports of his management team, such as Dr. Susan Turner, Barbara McCullough, and Jennifer Carter of the Petitioner's disparaging, and rude treatment of employees under her supervision. He also learned that she failed to participate in her clinic duties. Dr. Lanza, as director of the health department, is authorized to dismiss Department personnel. He dismissed the Petitioner because she failed to follow her supervisor's instructions, was unacceptably rude and overly critical of employees under her supervision. She was demeaning at times toward employees and even was rude to two physicians at the Department whom she had no authority to supervise. These criticisms, which have been established as true by the preponderant evidence in this record, and the fact that all this deficient conduct occurred while the Petitioner was still in her probationary period after her hiring, motivated Dr. Lanza to dismiss the Petitioner from employment. When Dr. Lanza made this decision he was unaware of any allegation of any discrimination directed toward Hispanic employees anywhere in the Escambia County Health Department. Because he was unaware of such allegations of discrimination, akin to that complained of in the Petition for Relief, he could not have retaliated against the Petitioner for taking a stand or making complaints about alleged discriminatory conduct directed toward Hispanic employees.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 6th day of August, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 6th day of August, 2008. COPIES FURNISHED: Edna M. Rubin 1140 East Baars Street Pensacola, Florida 32503 Rodney M. Johnson, Esquire Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on December 27, 2005.
Findings Of Fact Petitioner is an African-American female who at all times material to this case was employed with Respondent as a production worker. Respondent, Hamilton Products, Inc., manufactures various animal related products such as horse tack and pet collars and is an employer within the meaning of the Florida Civil Rights Act. Allegations of Race Discrimination Petitioner's Employment Complaint of Discrimination alleged discrimination on the basis of race and retaliation and reads in pertinent part: I believe that I have been discriminated against based on race, Black, which has resulted in discipline, unfair terms and conditions, and denial of promotion. Since 2003, I have noticed disparate treatment between White and Black employees. One example of this is that Black employees are rarely if ever promoted to management positions. Another example of this is that a Black coworker of mine, Deloise, would often harass me and when I complained to my supervisor Mrs. Robinson, she took the matter to Mrs. Lake. Mrs. Lake merely asked the woman to not do that again. This harassment continued and I repeatedly complained about it so that finally, I was moved to a different location. A similarly situated White female, Elaine, experienced similar treatment from Deloise but when she complained Deloise was stopped from repeating the behavior almost immediately. I was very upset about this obvious disparity that I contacted Mrs. Benfel and explained to her what was transpiring. She asked me to gather together my complaints and those of others which I did and submitted it to her in a letter. Almost immediately after I began to receive retaliation for my complaint. I was disciplined, verbally harassed and moved away from the other employees. Martha Robinson is a supervisor employed by Respondent for over 16 years. She was Petitioner's direct supervisor for some of the time Petitioner worked for Respondent. Ms. Robinson is a white female. A coworker, Delores,1/ who sat near Petitioner would tap her foot on a wooden box while working. Petitioner found this annoying and complained to Ms. Robinson. Ms. Robinson asked Delores to stop tapping her foot and had fleece put on the box. However, Delores continued to tap her foot. After three or four employees complained about Delores' foot tapping, Ms. Robinson took the box away from Delores and put it in Ms. Lake's office. Karen Benfield is the office manager for Respondent, where she has been employed for 19 years. Petitioner went to Ms. Benfield's office to complain about working conditions. Ms. Benfield described the complaints made by Petitioner as vague and broad-based, consisting of general assertions that employees were unhappy at work. Petitioner's complaints to Ms. Benfield did not include any allegation of racial discrimination about her or anyone else. Ms. Benfield asked Petitioner for specifics, to put her complaints on paper and she would make sure management saw it. She did not ask Petitioner to solicit comments from other employees and told Petitioner she could only speak for herself. Petitioner collected written complaints from her co- workers and delivered them to Ms. Benfield. Petitioner received a Warning Notice dated October 26, 2004, for disruptive influence on the workforce. It read as follows: The purpose of this warning is to make sure that you understand the structure of Hamilton Products and the parameters of acceptable behavior at work. Lately, you have brought a number of suggestions and grievances to the management of Hamilton Products on behalf of yourself and others. There is no single employee representative to management at Hamilton Products. You do not and may not speak on behalf of other employees. Every employee at Hamilton Products, including yourself, enjoys the right to share ideas, suggestions or grievances with management. Such communication is encouraged as long as it is made properly. There is a clear chain of command at Hamilton Products, and you must follow that chain of command when communicating with management. You must speak to your immediate supervisor or place a suggestion in the box provided for suggestions at the north end of the nylon department. It is not acceptable to go around the chain of command to a higher supervisor, as this disrupts the operations of Hamilton Products. In the future, you must follow the chain of command or use the suggestion box, and speak only for yourself. Failure to follow the procedure outlined herein will result in further disciplinary actions up to and including discharge. After the hurricanes of 2004, Petitioner's entire department was reprimanded by the plant manager for missing work. This was upsetting to Petitioner because Ms. Robinson had told these employees not to call in. She felt that Ms. Robinson should not have let him "talk trash" to the employees. There is no evidence that Petitioner or anyone else was singled out in any way by the plant manager regarding this incident. Petitioner believes that white employees were given opportunities for promotion and resulting raises. However, no employees on the production floor were promoted during the time Petitioner worked for Respondent. There is no competent evidence in the record to support Petitioner's claim that white employees received promotions and black employees did not. At some point, Petitioner was moved when the production department was reorganized. Petitioner was placed in the center of the plant, facing the rest of her department. She had no one on either side of her which resulted in her not being able to talk to coworkers while working.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Employment Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 9th day of February, 2007, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2007.
The Issue Whether Respondent subjected Petitioner to an unlawful employment practice on the basis of religion; or in retaliation to his engagement in a lawful employment activity, in violation of section 760.10, Florida Statutes.
Findings Of Fact Respondent, Escambia County, is a political subdivision of the state of Florida that is authorized to carry out county government, pursuant to section 125.01, Florida Statutes (2016). Escambia County is an employer as that term is defined by the Florida Civil Rights Act 1992. Petitioner, Mr. Love, was employed by Blue Arbor, Inc., a staffing agency. Blue Arbor had a contract with Escambia County for temporary labor services. Blue Arbor assigned Mr. Love to a temporary job with Escambia County, Public Works Department, Office of Engineering and Construction, as an engineering project coordinator. The assignment was for one year. Petitioner was assigned to the job from May 26, 2014, until his termination. On January 26, 2015, Escambia County terminated Petitioner’s temporary employment contract. Petitioner was an employee of Escambia County as that term is defined by the Florida Civil Rights Act of 1992. Mr. Love is a Christian. Petitioner timely filed a complaint with the Commission alleging Respondent engaged in an unlawful employment practice by terminating Petitioner on the basis of his religion. As an engineering project coordinator, Petitioner’s job responsibilities included: management of complex projects, ability to prioritize work, and ability to exercise good interpersonal skills with co-workers, supervisors, and the public. Mr. Love earned a Bachelor of Science in Engineering Technology and Construction degree in December 2013. Mr. Love had no prior drainage or roadway experience before working for Escambia County. Mr. Love began working for Escambia County following a storm that was declared a disaster. Due to the disaster, staff was expected to be flexible and able to perform job duties without refusal or hesitation. Respondent asserts that it terminated Petitioner’s contract due to his inability to perform job responsibilities without objection or hesitation, work performance, and disruptive behavior. Mr. Love had multiple supervisors during his eight month tenure at Escambia County. While working at Escambia County, Mr. Love’s supervisors had issues with his work performance and his behavior. Mary Bush, a construction manager, supervised Mr. Love in 2014. Ms. Bush had issues with Mr. Love’s file storage practices and behavior. Ms. Bush testified that Mr. Love saved all his work on a personal computer and was told several times to save his work in the shared folder. Mr. Love refused to save his work on the shared drive on the basis that the documents were his work. During the time Ms. Bush supervised Mr. Love, she experienced two incidents with Mr. Love involving outbursts. On one occasion, Mr. Love was in Ms. Bush’s office seeking review of Mr. Love’s work. Mr. Love stated in a raised voice, “you need to review the report so I can do my job.” On another occasion, Ms. Bush directed Mr. Love to identify his documents using a certain description and explained the importance of the practice. Mr. Love objected on the basis that the practice was an asinine process. Mr. Love was reassigned to another supervisor due to the outbursts involving Ms. Bush. At no point did Mr. Love state that his objection to following directions was based on his religion. Chris Curb, an engineering manager for stormwater, also supervised Mr. Love during his tenure at Escambia County. Despite the direction from Ms. Bush, the file-sharing issue continued. On December 30, 2014, Chris Curb notified Mr. Love by email that his file saving was a “problem.” Mr. Curb advised Mr. Love that his file folder was not a standard subfolder and he needed to save all files in the proper shared subfolders. He explained that file sharing is important so Escambia County could comply with state regulations and records requests. He further explained that Mr. Love was not the sole owner of a project record because other employees would need access to the work. He concluded his email with instructions for Mr. Love to use designated file folders. A third supervisor, Jim Duncan, also had issues with Mr. Love’s work performance and behavior. Similar to his practice under prior supervisors, Mr. Love refused to save his files to the shared file folder. Mr. Love also repeatedly refused to attend mandatory meetings without a direct command. For example, on multiple occasions Mr. Love’s supervisor had to locate and direct him to attend the weekly department meetings. Mr. Love testified that he was reluctant to attend the meetings because he believed they “were unproductive and take up too much time.” Similar to other supervisors, Mr. Love engaged in an outburst with Mr. Duncan. Mr. Duncan was a construction manager when he supervised Mr. Love and thus, was responsible for directing Mr. Love to advance projects from conception to completion. One such project was ENG Flood 414-85, which was also referred to as the Beulah Road at Helms Intersection project (“Beulah-Helms project”). Mr. Love was the project coordinator for the project. In October 2014, Roads, Inc., a construction company, submitted a bid for the Beulah-Helms project. Brett Moylan is the vice-president and chief operating officer of Roads, Inc. The project was a pricing agreement contract. Pricing agreement contracts are contracts where prices are established for a period of one year and are adopted by the Escambia County prior to the award of any specific pricing agreement contract. Pricing agreements have a blackout period and bidding process that also takes place prior to acceptance of the pricing agreement. In December 2015, Mr. Love was in the final stages of the procurement process for the Beulah-Helms project. Roads, Inc. was the lowest bidder on the project. Mr. Love corresponded with Mr. Moylan regarding the documents necessary to approve the project. Mr. Love requested a construction schedule and MOT plan for the project before the work order could be approved. Mr. Moylan asserted in an email that the construction schedule would begin after the purchase order is issued. Mr. Moylan later submitted the MOT plan and signed the work order. On January 22, 2015, Mr. Love sent an email to Mr. Moylan requesting the construction schedule and another signed work order with the appropriate dates. Mr. Love advised Mr. Moylan that he would not begin the project until Mr. Moylan submitted the construction schedule. Although Mr. Moylan explained that he usually did not submit a construction schedule, he ultimately provided the construction schedule to Mr. Love indicating that the project would begin the following Monday and “be substantially complete within 60 days of commencement, and have a completion date within 90 days.” The construction schedule provided by Mr. Moylan was an acceptable schedule. For a reason that was not addressed at hearing, Mr. Love asked Mr. Moylan for the construction schedule again, despite receiving it. Mr. Moylan advised Mr. Love to accept the next lowest bidder. As a result of the email exchange with Mr. Moylan, Mr. Love planned to send Mr. Moylan a follow-up email about accepting the next highest bidder, which would purportedly cost Escambia County an additional $20,000 for the project. Before Mr. Love drafted the email, he called Mr. Moylan to discuss the issues referenced in the email. Mr. Love testified that before he called Mr. Moylan he “drove around the block a couple of times, before he could call Mr. Moylan because [he] knew that the conversation was going to get heated.” Mr. Love described the conversation as heated, and they “cut each other off” during the conversation. Mr. Moylan contacted Mr. Duncan to complain about Mr. Love’s behavior related to the Beulah-Helms project. Mr. Duncan approached Mr. Love to discuss the exchange between Mr. Love and Mr. Moylan. Mr. Duncan directed Mr. Love to award the Beulah-Helms project to Roads, Inc. Mr. Love objected to awarding the contract to Roads, Inc. He testified that his objection was based on his religion because “[he] had an obligation to utilize his moral and ethical judgment which is inherent to [his] religion.” Mr. Love stated that the religious accommodation was based on his request for additional information before he could feel comfortable awarding the project to Roads, Inc. Mr. Love testified that he told Mr. Duncan that he refused to award Roads, Inc., without the construction schedule “based on a matter of principal.” Mr. Love did not say he refused to approve the project based on his religion. He did not say he needed an accommodation for his religion. Mr. Duncan directed Mr. Love not to take any further action until they discussed Mr. Love’s objection with the department manager, Joy Jones. During the conversation, Mr. Love became angry and yelled at Mr. Duncan. Sharon Johnson, a project coordinator, witnessed the exchange between Mr. Love and Mr. Duncan. Specifically, Ms. Johnson observed Mr. Love and Mr. Duncan having the discussion about the Beulah-Helms project. Ms. Johnson described Mr. Love’s demeanor as unhappy and upset. She testified that he raised his voice and yelled at Mr. Duncan. At the same time, Mr. Duncan attempted to calm Mr. Love. Ms. Johnson could not recall the substance of the discussion, but she testified without hesitation that Mr. Love did not mention anything about his religion. Ms. Johnson’s testimony is found to be credible. On January 26, 2015, Escambia County terminated Petitioner’s contract. Joy Jones, the Engineering Department manager, made the final decision to terminate Mr. Love’s contract. Although Ms. Jones did not directly supervise Mr. Love, she was aware of the issues concerning his work performance and behavior through complaints from her staff who directly supervised Mr. Love. After several complaints of angry outbursts, difficulty meeting deadlines, failure to save critical documents to the shared drive, inability to move projects in the process without reluctance, and inability to work with several supervisors, Ms. Jones made the decision to terminate Mr. Love’s contract. Based on the evidence, Respondent has demonstrated that Mr. Love’s termination was based on a legitimate business decision due to poor work performance and disruptive behavior. Approximately one year after his termination, Mr. Love sent an email to the Escambia County Administrator, Jack Brown. The email complained of perceived damage to Mr. Love’s reputation, credibility, and career. Mr. Love did not mention any complaint of religious discrimination or retaliation. In his response to Mr. Love, Mr. Brown explained that “in the project coordinator position staff must examine and thoroughly understand applicable process. Refusal and hesitation to perform job duties affect production, grant reimbursement deadlines, and citizen expectations.” Mr. Love did not explicitly mention anything about his religion or religious discrimination to any of his supervisors before he was terminated from Escambia County.
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 dismissing Petitioner’s discrimination complaint and Petition for Relief consistent with the Findings of Fact and Conclusions of Law of this Recommended Order. DONE AND ENTERED this 24th day of May, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 24th day of May, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Benjamin David Love Post Office Box 1132 Gonzalez, Florida 32560 (eServed) Meredith D. Crawford, Esquire Escambia County Board of County Commissioners Suite 430 221 Palafox Place Pensacola, Florida 32502 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
