The Issue The issue for determination is whether, as alleged, Respondent discriminated against Petitioner based on her sex, thereby violating Section 760.10, Florida Statutes. If that violation occurred, the remaining issue is what relief is appropriate. Petitioner contends that she should have received disability benefits during her pregnancy from July 21, 1987 through September 10, 1987 and that Respondent's refusal to pay constituted discrimination.
Findings Of Fact In their joint prehearing statement, filed at hearing, the parties stipulated to the following: During the calendar year 1987 the Petitioner was employed by the Respondent at its Melbourne, Florida, plant. During 1987 the Respondent provided weekly income benefits for non-occupational disability pursuant to the provisions of a document entitled "Addendum to Weekly Income Benefits for Non-Work Related to Disability." (Exhibit R-4) The Petitioner was off from work for the Respondent from April 21, 1987 through October 26, 1987. The Petitioner delivered a child on September 10, 1987. The Petitioner received weekly income benefits of $189.33 for the period from April 21, 1987 through July 21, 1987 and from September 10, 1987 through October 23, 1987. On Monday October 26, 1987, Petitioner returned to work with Respondent at her regular position and rate of pay. Respondent (Acopian) is a manufacturer of electronic components with a plant in Melbourne, Florida. Commencing in October 1979, and at all times relevant, Petitioner was employed by Acopian as an assembly worker. Her assigned duties required her to assemble and solder personal computer boards, a task performed primarily in a seated position and requiring little physical exertion. When she was hired, Ms. Faith was instructed regarding the company's benefit plan by Evan Martin, Vice President for the company. Mr. Martin is responsible for overall operations of the plant and for personnel matters. Ms. Faith filed the requisite forms and received disability benefits under the company's plan between November 9, 1981 and January 18, 1982, when she was unable to perform her duties due to pregnancy and childbirth. Sometime prior to April 20, 1987, Ms. Faith learned that she was pregnant again. Her treating physician was Dr. Eugene F. Wawrzyniak, an obstetrician with offices in Palm Bay, Florida. On April 20, 1987, Ms. Faith was given a note by her physician stating that she should be excused from work until the estimated date of her delivery, October 8, 1987. Ms. Faith's mother took the note to Acopian, delivering it to Doris Hayden, Evan Martin's Administrative Assistant, and the person responsible for maintaining the personnel files and disability claims. Ms. Faith was given the claim forms and completed portions of the form on May 10, 1987, indicating that her period of disability was to commence April 22, 1987. She also indicated on the form that her sickness or injury arose out of the course of her employment. Because of that, Ms. Hayden submitted the form to the state worker's compensation agency. She understood that the agency required forms be sent anytime an employee claims a work- related illness or injury. On May 18, 1987, Ms. Faith received notice of denial of the worker's compensation claim based on no injury arising out of employment. On June 15, 1987, Acopian received another note from Dr. Wawrzniak indicating that Ms. Faith must remain home due to threat of a miscarriage. Dr. Wawrzniak also completed the physician's portion of the disability claim form on June 15, 1987, indicating that Ms. Faith would be disabled from April 21 through six weeks post-partum. The condition he listed was "pregnancy with threatened spontaneous abortion." (Respondent's Exhibit 7.) Ms. Faith completed her portion of the form on June 19, 1987, and this time did not indicate the condition arose out of her employment. Evan Martin routinely reviews all claims for non-work related benefits. The company is self-insured as to that benefit plan. Mr. Martin had never seen a case at Acopian where a physician stated so early in pregnancy that the patient would be disabled for virtually the entire term of pregnancy. Because he was confused as to Dr. Wawrzniak's statement, he sent the doctor a letter, dated July 17, 1987, requesting medical facts in support of his diagnosis. Although Dr. Wawrzniak later testified, at his deposition on December 1, 1988, that his clinical impression in 1987 was that Petitioner could not have returned to her duties at Respondent after July 18, 1987, his response to Mr. Martin dated July 18, 1987 was not consistent with that conclusion. Specifically, he indicated in his July 18, 1987 correspondence that: Gerda Faith is a 27 year old white female, G- 3, P-1, who had a natural delivery in 1981 with a miscarriage of June 1986. She was seen in this pregnancy on 2/13/87 initial visit with a positive pregnancy test. She subsequently followed in the next two months with post coital bleeding and lower abdominal cramping. This would suspect [sic] a threatened abortion or miscarriage at this time and [sic] was told to rest and work would have to be curtailed. Otherwise, presently in the pregnancy on 7/28/87 she was examined fetal size [sic] approximately 30 weeks gestation which is consistent with her due date of 10/8/87. She is doing well and there is no sign of threatened [sic] miscarriage at this point in time, otherwise, there is no vaginal bleeding as in the first trimester of pregnancy and the patient is doing well. (Emphasis added) (Respondent's Exhibit 10.) Insofar as there appeared to be inconsistencies between this latest report and Dr. Wawrzyniak's statements as to the period of anticipated disability, and no supporting medical documentation was provided, Mr. Martin again requested medical evidence from the physician on August 31, 1987. Mr. Martin's August 31, 1987 correspondence stated in pertinent part that: It appears to us while Gerda had difficulties during the first trimester of her [sic] pregnancy, thereafter she could have returned to work until some time in late September, 1987. This is based upon your statement that she is now doing well, and there is no sign of threatened miscarriage at this point in time. However, this appears to be inconsistent with your statement on Gerda's health insurance claim form that she would be continuously and totally disabled and unable to work from April 21, 1987 through six weeks after the birth. (Emphasis supplied) We would appreciate it if you could provide the medical evidence upon which you relied in stating that she was continuously disabled and unable to work for the entire period of time rather than after the first trimester had passed and the threat of miscarriage had subsided. This information is necessary so that we may evaluate further whether to provide disability payments for the entire period claimed. (Respondent's Exhibit 11.) By letter dated September 1, 1987, Dr. Wawrzyniak responded as follows: In regards to your most recent letter on August 31, 1987 in relation to Gerda Faith, my last letter stated that she was doing better after 30 week gestation in which was written on 7/18/87. I felt that at this point and [sic] time there was no sign of threatened miscarriage and that she did not have any complaints regarding these symptoms of second or third trimester bleeding. Presently, she is doing well and I feel that under the circumstances she has approximately 5 weeks to go in her pregnancy and her due date is October that she can go back to work. She is physically fit and is out of danger in regards to her pregnancy at this stage. Mind you that this may change dramatically from week to week and if I so chose [sic] to have her out of work I shall write you a personal letter. (Emphasis supplied) (Respondent's Exhibit 12.) On September 9, 1987, Ms. Faith went into labor prematurely and delivered her child on September 10, 1987. It is undisputed that she was out of work from April 21, 1987, through October 23, 1987. She was initially paid benefits for the post-partum period and was later paid for the period April 21, 1987 through July 21, 1987, when Acopian was told by her doctor that there was no sign of threatened miscarriage. She claims she is owed benefits between July 21, 1987 and her delivery. Ms. Faith acknowledges that under Acopian's plan an employee is not automatically entitled to disability benefits simply because she is pregnant. The non-work related disability benefits under Acopian's plan are available to male and female employees alike for a wide range of medical conditions. Since 1983, payments have been made to at least seventeen women, including Ms. Faith, for pregnancy or pregnancy-related conditions. It is not unusual for Acopian, either through Evan Martin or his assistant, Doris Hayden, to seek clarification in medical documentation for both males and females. In such instances the physician usually cooperates fully.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Petitioner's Petition for Relief be dismissed. DONE and ENTERED this 19th day of April, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1989. COPIES FURNISHED: Patrick J. Deese, Esquire Post Office Box 361937 Melbourne, Florida 32936-1037 Edward H. Feege, Esquire Post Office Box 2165 Lehigh Valley, PA 18001-2165 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has been subjected to discrimination within the meaning of the relevant provisions of Chapter 760, Florida Statutes, based upon alleged sexual harassment in the course of her employment and retaliation for her complaints concerning the alleged sexual harassment.
Findings Of Fact The Petitioner was an employee of the Respondent at times pertinent hereto. It is undisputed that that Respondent is an employer within the meaning of Chapter 760, Florida Statutes, and that timeliness and jurisdictional requirements have been met. The Respondent obtained a contract with the United States Navy for a project to be performed at the Naval Air Station in Pensacola, Florida. It became the contractor for the project in approximately December of 1991. The contract, in pertinent part, provided that the Respondent would provide local cartage trucking services for the Navy on and in the environs of the Pensacola Naval Air Station. The project involved loading and transportation of aircraft parts and related supplies and equipment. The Petitioner was hired as a truck driver, delivering aircraft parts for the naval aviation depot (NADEP). During the course of that employment, there came a time when the Petitioner contended that she had been discriminated against because of her gender. The Petitioner contends that in a meeting in December of 1991, she was told by Terry Meyers, an employee of the Respondent and the Petitioner's supervisor, that she "didn't look like a truck driver" and that she had three weeks to look for another job. The meeting in which the statements were allegedly made was a meeting called by the Petitioner's supervisor and the project manager, Mr. Danny Francis, to address certain deficiencies in the Petitioner's performance. Another employee, Mr. Braughton, was also counseled at the meeting concerning his performance as a truck driver. His was the same type of employment position as that occupied by the Petitioner. Mr. Braughton is a white male. The Petitioner maintains that she informed a white male employee, Mike Morris, of the statements allegedly made at the meeting and that he immediately made a telephone call to Mr. Frank Moody, the president of the corporation, to put the president and the corporation on notice of sexual discrimination against the Petitioner. The Petitioner, however, was not present when Mr. Morris made that telephone call to Mr. Moody. Even had he made reference to alleged sexual discrimination in his telephone call to Mr. Moody, Mr. Morris only learned of the purported sexually-discriminatory statements from the Petitioner. The Petitioner maintained that Mr. Morris informed her that he had heard the statements made while standing at the door of the room in which the meeting occurred and that Mr. Morris initiated the telephone call on his own volition to Mr. Moody, based upon hearing those statements. Mr. Morris, however, testified to the contrary, stating that the Petitioner approached him and claimed that she was on probation and was fearful of being laid off from employment and that the Petitioner told him of the alleged sexually-discriminatory statements and that he did not hear them himself. He further testified that the Petitioner instructed him to contact Mr. Moody concerning her fears about her job and the alleged discriminatory statements or she would contact "HRO and EEO and have the contract shut down". Mr. Morris, indeed, called Mr. Moody but never mentioned the statements alleged by the Petitioner to have been made to her by Mr. Meyers during the performance evaluation meeting. In fact, it has been demonstrated by Mr. Morris' testimony, which the Hearing Officer accepts as more credible, that the Petitioner never complained to Mr. Morris about a sexually-discriminatory statement or purported sexual discrimination. Mr. Morris, instead, spoke to Mr. Moody about problems he saw occurring in the operation in Pensacola which he attributed to the project manager, Mr. Danny Francis. He told Mr. Moody that Mr. Francis was allowing employees to leave work early without Mr.. Moody's knowledge and still crediting them with working a full day on such occasions which, in effect, cost the corporation additional salary monies which were unearned. The meeting in which the Petitioner was allegedly confronted with the statement that she did not look like a truck driver and had three weeks to look for another job was called and conducted by Mr. Francis and Mr. Meyers was present. It is undisputed that Mr. Moody terminated Mr. Francis shortly after the telephone conversation with Mr. Morris. He replaced Mr. Francis with the current project manager, John Jacobs. Mr. Moody testified that in a telephone conversation with the Petitioner that she never mentioned to him the alleged sexually-discriminatory statements referenced above. Instead, he was told by both Mr. Morris and the Petitioner that she was concerned that she might lose her job because of the results of the meeting with Mr. Francis, in which he told her that she needed to improve her job performance. In fact, the management of the Respondent perceived a genuine job performance problem involving the Petitioner's conduct of her job duties. This was disclosed in the testimony of both Mr. Jacobs and Mr. Morris, where it was revealed that the Petitioner had had a continuing problem performing her job correctly and that Mr. Morris and the management personnel had worked with her constantly during the course of her employment term with the Respondent, taking more time and personal attention with her than with other employees. This was done in order to repetitively explain her job duties and give her additional chances to improve her work performance, in comparison to the lesser degree of attention and remedial help that they accorded other employees. Prior to February 3, 1993, the Petitioner had been employed with the Respondent for over a year. The testimony of Mr. Jacobs established, however, that even though her probationary period had long since elapsed, he still considered the Petitioner to be, in effect, an employee in training because she was deficient in correctly accomplishing all of the duties of her job. She was slow in performing her job duties, including preventive maintenance inspections of her vehicle and in making the "pickups and deliveries" of freight she was required to transport on her truck in the performance of her duties. The counseling session concerning her work performance occurring in December of 1991, referenced above, was during her probationary period. The white male employee, Mr. Rick Braughton, who was also counseled about deficient work performance on that occasion, was informed that he might not remain employed past his probationary period unless his performance improved. The Respondent had a regular practice and procedure, as part of its truck safety and preventive maintenance program, that employees, who were drivers, were required to give a preventive maintenance and safety inspection of their vehicles each day prior to leaving the company facility or terminal to transport aviation parts or other freight. This was regarded as crucial to proper job performance by the employer because of the concern about safety of the drivers and avoidance of damage, and liability for damage, to the expensive equipment and parts which the Respondent was required by its contract to transport, such as expensive military aircraft parts and related equipment. Among these preventive maintenance inspection duties that driver/employees, such as the Petitioner, were required to perform daily was the requirement to check the air in the truck tires and "top off" the tires with the required air pressure, if necessary. 10 Mr. Jacobs established that there came a time when the Petitioner was noted to have failed on multiple occasions, in the same week, to check and air her tires. Finally, upon this deficiency coming to his attention again on February 3, 1993, Mr. Jacobs suspended the Petitioner for a day without pay, for failing to check and air her tires. The Petitioner claims that she was the only employee singled out for this treatment concerning failure to inspect and air her tires. The testimony of Mr. Jacobs is deemed more credible, having observed the candor and demeanor of all of the witnesses, and it is determined that the employer had a good-faith belief that the Petitioner was deficient in this regard and that the reprimand, consisting of the one-day suspension, was justified. It was not demonstrated that, even if the Petitioner's version of events is true and that other driver/employees were not disciplined for failure to air their tires, that such a circumstance occurred as a result of the employer's knowledge of other driver/employees failing to air their tires and arbitrarily choosing not to discipline them. In fact, it was not demonstrated by preponderant, non-self-serving evidence that other employees had not been disciplined for failure to air their tires. In fact, it was not shown, other than by the self-serving testimony of the Petitioner, that other employees had failed to air their tires when required. The other drivers are mostly male, but one is a female. There was no showing that she was treated any differently than the male drivers. In summary, it has been established that the employer accorded the reprimand to the Petitioner because of a good-faith belief that her performance had been deficient, on repeated occasions, in this respect. It is undisputed that prior to the date the Petitioner received the reprimand, consisting of one-day suspension without pay, that the Petitioner had a generally good attitude about her job insofar as management was able to observe. Even though management had had some concerns about her performance and the slow manner in which she was learning certain aspects of her job, with resulting deficient effects upon her performance, management forbore from using these concerns to reduce her performance rating. She received good evaluations of her performance, insofar as her personnel record is concerned, prior to the time she was suspended for one day on February 3, 1993. After the Petitioner received the suspension she developed a "bad attitude" insofar as her perception of management was concerned. She began to complain frequently about vehicle safety or purported concerns she had about the condition of her vehicle related to safety, particularly the truck brakes. Prior to her suspension, she had never complained in this regard. Management also perceived that she appeared to show down her work performance and management came to believe that it was an intentional delay of her work performance on an ongoing basis. Prior to receiving the reprimand, she was never known to complain to management concerning discrimination on account of her gender. She had never informed the project manager or any other supervisory personnel concerning her purported belief that employee Meyers was "following her". Only after she received the reprimand on February 3, 1993 did she elect to file a sexual discrimination charge with the Commission. Mr. Meyers had some supervisory authority over the Petitioner. His job duties also required that he drive his truck around the Naval Air Station and the immediate vicinity in the normal performance of his duties. This circumstance resulted in his being in close proximity to the Petitioner during the course of their respective work days. He contends that he was not purposely following her for the purpose of harassing her. The overall evidence of record reveals, however, that he, indeed, did follow or stop in her vicinity on a number of occasions to observe her work performance. This was not shown to be out of the ordinary scope of his supervisory duties, especially because of management's concern that the Petitioner was not progressing in the learning and performance of her job duties as well as other employees, including the other female driver. The project manager, Mr. Jacobs, felt that the Petitioner's attitude continued to decline after the February 3, 1993 reprimand. He felt that her attitude and performance reached its lowest level on the date she was observed to be loading "unauthorized equipment" (apparently a portion of a helicopter assembly weighing approximately 4,000 pounds) on the flatbed trailer of her assigned work truck. She was not authorized to load that equipment and apparently, according to her testimony, she did so in order to provide a substantial amount of weight on her trailer for the purpose of having her brakes inspected by the quality assurance official for the project. She went to an unauthorized area for approximately one hour to have this inspection performed without the approval of the Respondent's management. Further, it was not necessary, in order to evaluate the brakes on the vehicle for proper function and safety, to have the weight of the unauthorized load placed on the trailer. If, indeed, the brakes had been defective, it would have been entirely possible that the expensive aircraft parts she had placed on the trailer without authorization could have been substantially damaged, the truck or other property could have been damaged, and, indeed, the Petitioner or other persons could have been injured. Additionally, the Petitioner misrepresented the reason she was in the unauthorized area where she had her brakes inspected by Mr. Lett, the quality assurance officer. In this connection, because she had begun to complain repeatedly about the condition of her brakes and her vehicle (after her reprimand), the project manager, Mr. Jacobs, had had certain other employees come in on several occasions at approximately 6:00 a.m., before normal working hours, and before the Petitioner arrived on the job site, to inspect the Petitioner's truck for safety and appropriate preventive maintenance purposes. These employees were not informed that it was the Petitioner's truck they were inspecting at the time they were told to do the inspections. The Respondent was attempting to ascertain the true condition of the Petitioner's truck and determine whether her reports concerning safety problems, particularly with her brakes, were accurate or not. In fact, on the morning of the day when the unauthorized load was placed on the truck and the Petitioner had Mr. Lett perform the inspection of her brakes at the unauthorized area, one of the Petitioner's co-employees had inspected her brakes before she arrived to take custody of her truck that morning. He had determined that the brakes were operating properly. The Petitioner and Mr. Lett apparently felt that the brakes were deficient when they were inspected early in the afternoon of that day. The record does not reveal whether the brakes were deficient when Mr. Lett inspected them or that some change in the adjustment of the brakes or other problem had arisen since the employee inspected them early that morning and found them to be in proper operating order. Be that as it may, management was of the belief on that day and prior thereto that the Petitioner, although reporting brake deficiency problems, did not truly experience such brake deficiency problems with her truck. This belief was based upon management perceptions concerning the Petitioner's attitude after her reprimand and upon the independent, confidential inspections management had other employees do on the Petitioner's truck. Accordingly, whether its belief was accurate or not, management was of the good-faith belief, on the date she was observed loading unauthorized, expensive equipment onto the flatbed truck, in an unnecessary fashion, for the purpose of having her brakes inspected, while being absent from her work assignment for one hour in an unauthorized area, that it had performance-related reasons to terminate her, which it did. This decision was made against the background of the increasingly poor attitude displayed by the Petitioner since her reprimand and because of the continuing problems management had experienced with the Petitioner's job performance since her initial employment one and one- half years previously. Although the Petitioner testified that as early as December of 1991, the management of the Respondent had spoken with her regarding her work performance and she interpreted that meeting as an attack on her gender and not upon her poor work habits, this contention was not verified by any other testimony. Having observed the candor and demeanor of the Petitioner versus that of the other witnesses, it is determined that her testimony is less creditable because of its self-serving nature. Although the Petitioner testified that a comment was made that "she did not look like a truck driver" and that she had three weeks to find another job, this was not verified through testimony of any other witness. To the extent that any other witnesses testified concerning these statements being made in a belief that discrimination had been exhibited toward the Petitioner, the evidence reveals that this information only came to these people through self-serving reports by the Petitioner herself. Meyers directly contradicts that these statements were made to the Petitioner and he states that he never heard anyone tell her that she had three weeks to look for a job or that she "didn't look like a truck driver". The petitioner provided no testimony or evidence which could show how these alleged statements constituted "sexual discrimination" or how the statements related to her sexual discrimination claim. It was not shown that any member of management, with employment-decision authority, made or condoned such statements even if it had been established that they evidenced gender-based discrimination, which was not done. The Petitioner did not complain of sexual discrimination per se until after she had received a reprimand from management. Likewise, she began to repetitively claim that her equipment was unsafe after the reprimand. The Petitioner may have been overly sensitive to management's concern for safety inspections of her truck because of being reprimanded for safety violations and was afraid she would "get into trouble" with management if she did not constantly report feared safety problems. The fact was established, however, that management had a genuine, good-faith belief that it was being harassed by these repetitive, unsafe equipment reports by the Petitioner, given the then- prevailing atmosphere surrounding the Petitioner's employment, characterized by her less than satisfactory attitude, as perceived by management, and the fact that management's confidential inspections of her equipment did not reveal any safety problems of the type reported by the Petitioner. Finally, it is especially noteworthy that during this period of time when the Petitioner made the claim of sexual discrimination and retaliation based upon her claim, that the Respondent had in its employ, in an identical job position, a female truck driver who had had no unsatisfactory experience by management with her performance, was not subjected to investigative or disciplinary measures, and who is still satisfactorily employed with the Respondent.
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 RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the petition herein in its entirety. DONE AND ENTERED this 7th day of March, 1995, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1459 Petitioner's Proposed Findings of Fact The Petitioner has submitted proposed findings of fact which are not in separately-numbered, discrete paragraphs. The paragraphs contain some proposed findings of fact which the Hearing Officer accepts and some which are rejected as being not supported by preponderant evidence and subordinate to the Hearing Officer's findings of fact on the same subject matter. The proposed findings of fact submitted by the Petitioner are intertwined with argument and discussions of the weight of the evidence or testimony. Because the paragraphs in the proposed findings of fact contain both findings of fact which the Hearing Officer accepts and which the Hearing Officer rejects, discrete, specific rulings thereon are not practicable. It suffices to say that all of the proposed findings of fact submitted by the Petitioner are subordinate to, but have been considered and addressed in the findings of fact portion of this Recommended Order and have been in that fashion completely ruled upon. Respondent's Proposed Findings of Fact The same considerations are true of the Respondent's proposed findings of fact. Some portions of the findings of fact proposed by the Respondent consist of merely discussions and argument concerning the weight of the evidence and some are acceptable to the Hearing Officer based upon the Hearing Officer's determination of the weight and credibility of the testimony and evidence. Some are rejected as being unnecessary or subordinate to the Hearing Officer's findings of fact made on the same subject matter. Here, again, this Recommended Order completely and adequately addresses the proposed findings of fact submitted by the Respondent, and the Respondent's proposed findings of fact are accepted to the extent they are not inconsistent with those made by the Hearing Officer and to the extent they are inconsistent therewith, they are rejected as being not supported by preponderant evidence or as being immaterial, unnecessary, or subordinate to the Hearing Officer's findings of fact. COPIES FURNISHED: Barry W. McCleary, Esquire 3 West Garden Street Suite 380 Pensacola, FL 32501 Donna Gardner, Esquire 213 South Alcaniz Street Pensacola, FL 32501 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
The Issue The issue is whether Respondent committed an unlawful employment action against Petitioner by discriminating against her based on her disability in violation of Section 760.10, Florida Statutes (2005).
Findings Of Fact Respondent is a 120-bed skilled nursing home. Respondent is licensed by the State of Florida and certified by Medicare and Medicaid. Petitioner is and has been a Certified Nurse Assistant (CNA) since 1975. In January 2005, Petitioner worked for Elder Care, sitting with one of Respondent's resident's from 7:00 a.m. to 3:00 p.m. Toward the end of the month, she began looking for another job because her hours as a sitter were being cut back. Petitioner learned that Respondent had an opening for a floor technician (floor tech). Petitioner had experience cleaning floors, so she applied for the job on January 31, 2005. Petitioner gave her application to Respondent's receptionist. Respondent then sent the application, to Teresa Engram, Respondent's Assistant Director of Housekeeping. The application included a health checklist/assessment. Petitioner indicated on the form that she suffered from high blood pressure, back pain, and asthma. Ms. Engram reviewed Petitioner's application, and, during an interview, inquired whether Petitioner would be able to perform the necessary work. Ms. Engram explained that the person hired for the job would have to work a flexible schedule because the facility's floors could only be stripped and waxed at night when the patients were asleep. Petitioner assured Ms. Engram that she would be able to do the job. Petitioner did not reveal that she suffered from depression. Petitioner did not tell Ms. Engram that her health problems, such as asthma, would prevent her from working around the strong chemicals used in stripping floors. Petitioner told Ms. Engram she would be able to work at nights with advance notice so that she could arrange a babysitter for her grandchild. Petitioner passed the required medical test and background check. She began working on or about February 1, 2005. Her regular hours were from noon to 8:00 p.m., Sunday through Thursday, with the understanding that she would have to work scheduled night shifts. Petitioner initially trained with another floor tech, Johnnie Betsy. After a few days, Petitioner worked on one side of the facility and Mr. Betsy worked on the other. Her duties included sweeping, mopping, and buffing the floors, as well as taking out the trash. At least once a year, Respondent's floor techs strip and wax the floors in the facility. The project takes about a month from start to finish. The work is performed at night. The waxing and stripping project was already underway for 2005 when Petitioner began working for Respondent. Ms. Engram made several attempts to schedule a night shift for Petitioner so that she could train with Mr. Betsy and help him strip and wax floors. Petitioner let Ms. Engram know that she did not want to work the night shift. Additionally, Petitioner was unhappy with her salary and complained that she should be making more money. Ms. Engram discussed Petitioner's complaints with Rhonda Cheney, Respondent's Director of Laundry and Housekeeping. Eventually, Petitioner learned that Respondent had an opening for a CNA position. Petitioner told Ms. Engram and Ms. Cheney that Petitioner was going to apply for the CNA position because it involved fewer hours, two days on and four days off. At some point in time, Petitioner received Social Security disability benefits. There is no competent evidence to show what disability Petitioner had that entitled her to disability benefits. Apparently, Petitioner lost her disability benefits before she started working for Respondent because she made too much money at a prior job. Petitioner wanted the new CNA position even though she would make less money than a full-time floor tech. Petitioner believed she could reestablish her disability benefits if she earned less money. Sometime during the first week of March 2005, Ms. Engram advised Petitioner that she would have to work the night shift beginning 9:00 p.m. on March 6, 2005, till 5:00 a.m. on March 7, 2005. Petitioner agreed to work as scheduled, with the understanding that she and Mr. Betsy would strip and wax hall floors. Petitioner testified that she told Ms. Engram that she should have an ambulance present on the night of March 6, 2005, in case Petitioner had an asthma attack from the strong chemicals used to strip the floors. Petitioner's testimony in this regard is not persuasive. The greater weight of the evidence indicates that Petitioner never verbally discussed her mental or physical health problems with Ms. Engram. On March 3, 2005, Petitioner learned from Mr. Betsy that there was not enough wax to complete the job planned for the evening of March 6, 2005. Even without the wax, Petitioner and Mr. Betsy had plenty of work to do stripping floors. The floors did not have to be waxed the same night they were stripped. Petitioner decided to work her regular hours on March 6, 2005, from noon to 8:00 p.m. Petitioner made this decision without Ms. Engram's knowledge or approval. Mr. Betsy worked alone on the March 6, 2005, night shift. He spent the evening stripping floors, using the wax that was available to polish a small area, and performing other routine tasks. On March 7, 8, and 9, 2005, Petitioner worked her regular hours. Ms. Engram did not discover that Petitioner had not worked her scheduled shift on March 6, 2005, until Ms. Engram made a routine check of the time cards on or about March 9, 2005. Petitioner was still hoping to get the new CNA position on March 9, 2005. That evening, Petitioner was working as a floor tech when she noticed that Sid Roberts, Respondent's interim administrator, was working late. Petitioner approached Mr. Roberts to tell him about her application for the CNA position and why she needed the new job. During that conversation, Petitioner told Mr. Roberts that she suffered from depression and that she had previously received disability benefits for that condition. On or before March 10, 2005, Ms. Engram consulted with Ms. Cheney about Petitioner's decision not to work her scheduled shift on March 6, 2005. Ms. Engram and Ms. Cheney did not discuss Petitioner's alleged disability or health problems. Ms. Engram was not aware that Petitioner had any health problems that needed to be accommodated. Ms. Cheney was not aware that Petitioner had any health problems at all. After consulting with Ms. Cheney, Ms. Engram made the decision to terminate Petitioner's employment. Ms. Engram took this action because Petitioner did not work from 9:00 p.m. on March 6, 2005, to 5:00 a.m. on March 7, 2005, as agreed, but unilaterally and without Ms. Engram's knowledge, decided to work her regular hours on March 6, 2005. Subsequently, Mr. Roberts attended a meeting with Ms. Cheney. Inquiring about Petitioner's employment status, Mr. Roberts learned that Ms. Engram already had terminated Petitioner. Mr. Roberts did not have any part in the decision to hire or fire Petitioner. Mr. Roberts did not tell Ms. Cheney or Ms. Engram about his conversation with Petitioner on the evening of March 9, 2005, until after Ms. Engram terminated Petitioner's employment. Mr. Roberts' knowledge that Petitioner suffered from depression did not contribute to the decision to terminate Petitioner's employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 30th day of November, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2005. COPIES FURNISHED: 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 Barbara Martin 635 West Hubbard Avenue Deland, Florida 32720 Kelly V. Parsons Cobb and Cole Post Office Box 2491 Daytona Beach, Florida 32115-2491
Findings Of Fact Petitioner was first employed with the State of Florida, Department of Management Services, Division of Facilities Management, Bureau of Maintenance (DMS), in 1979 or 1980. Her date of retirement was February 19, 1993. Petitioner graduated from Florida A&M high school and attended Florida A&M University for approximately one and one-half years. Between 1950 and 1979 or 1980, Petitioner was primarily a homemaker but also worked in various clerical positions until starting work with the Department of Management Services as a custodial worker. Petitioner began working as a custodial worker at the Twin Towers Building in Tallahassee, Florida. In that capacity, Ms. Lewis was responsible for dusting, vacuuming, trash removal, and spot cleaning furniture, walls and doors. During her tenure at the Twin Towers Building Ms. Lewis received the following discipline: Oral reprimand for excessive absenteeism, on September 20, 1982. Written reprimand for excessive absenteeism; on September 15, 1983; and Suspension for three workdays for the third offense of excessive absenteeism on September 5, 1984. Additionally, around April 30, 1985, the building superintendent at Twin Towers gave Ms. Lewis a memorandum of concern about her absenteeism. Around April 23, 1987, she was given a memorandum of concern about tardiness in reporting to work because she had been late to work twelve times in the three month period prior to the memo. Ms. Lewis seemed to improve her daily attendance at work but, the problem of tardiness to work continued. Petitioner began working as a night shift custodial worker at the Capitol in May of 1988, when she was transferred from the Twin Towers Building. The transfer was necessary because all of the full-time custodial positions at the Twin Towers Building were changed to halftime positions. DMS custodial workers at the Capitol on the night shift were responsible for cleaning of the public areas and offices of the capitol complex, including dusting, vacuuming, trash removal, and spot cleaning furniture, walls and doors. Generally, four employees work as a team to quick clean certain areas and do more thorough cleaning in other areas each night as assigned by that shift's custodial supervisors. All members of the general cleaning teams were expected to arrive at work at 5:00 p.m. and work until 1:00 a.m. The lunch break was considered work time for the employees and was therefore paid. Upon joining the custodial workers at the Capitol, Ms. Lewis was assigned the task of dusting the historic capitol building. Her performance appraised by Tommy Denis, Custodial Supervisor III, indicated that she was a good worker with attendance and tardiness problems. Eventually, Petitioner, at her request, was moved to work with a team on the plaza level at the Capitol. Her duties consisted of dusting with occasional vacuuming and emptying of small office trash cans which weighed less than 10 pounds into large trash containers on wheels. She continued to receive good appraisal ratings with the problems of attendance and tardiness noted. Another change in duty assignment placed Ms. Lewis with a team working on multiple, upper floors of the Capitol. Her principal duty continued to be dusting with occasional vacuuming and emptying of small office trash cans which weighed less than 10 pounds into large trash containers on wheels. Ms. Lewis reported to her doctor that she was assigned the duty of dusting. Petitioner testified she could empty the small office trash cans. Ms. Lewis was not assigned to lift recycle paper and not assigned to pull bags of trash out of the large trash barrels on wheels. Additionally, Ms. Lewis, along with other custodial workers were instructed not to lift anything that was too heavy and to call for help when such a situation was encountered. At some point in her employment, Ms. Lewis injured her back while lifting trash. Because of the injury she experienced recurrent pain in her right leg and lower back. In August of 1989, Ms. Lewis had surgery for her back problem. Soon after the surgery in September of 1989, Ms. Lewis fell out of bed onto her hip. The fall delayed her in recovering from the surgery mainly due to new pain in her hip. The pain for which she had the surgery was absent. However, Ms. Lewis did not communicate with DMS regarding her status and her ability to return to work. Since her medical condition was unclear to Building Superintendent Boynton, he requested the assistance of the Bureau of Personnel Management Services. Bureau Chief Dave Fulcher wrote Ms. Lewis to ascertain her status. She solicited her surgeon, Dr. Geissinger, to respond to Mr. Fulcher. Dr. Geissinger evaluated the duties of the position held by Ms. Lewis from her position description. On November 30, 1989, Dr. Geissinger wrote Mr. Fulcher that Ms. Lewis could be expected to perform the duties of her position. Dr. Geissinger also attached a copy of his office notes dated 11/30/89, which indicated Ms. Lewis still experienced some pain but that she was not in acute distress. In November 1989, Dr. Geissinger did not specify "light duty" for Petitioner but at other times, Dr. Geissinger and other doctors specified a weight limit for Petitioner's lifting. The suggested limits did not exceed the lifting requirements of Petitioner's position. Dr. E. E. Lowder sent the last "light duty" restriction for Ms. Lewis. He limited her lifting to 10 - 15 pounds and indicated that her release from doctor's care was pending. Importantly, there was no evidence which indicated that Petitioner's back problem amounted to a condition which impaired any major life function of Petitioner. Moreover, there was no evidence that DMS perceived Petitioner's back problem as a handicap. In fact, the evidence presented at the hearing demonstrated Petitioner's condition was not a handicap and was not perceived as such by her employer. During the six month period from 5/8/92 to 11/5/92, Ms. Lewis was tardy 46 times by eight minutes or more. During the eight month period from 6/20/90 to 2/28/91 Petitioner was tardy 46 times. Following 2/28/91, Ms. Lewis was tardy at least 5 more times. On April 11, 1991 Ms. Lewis received an oral reprimand for her tardiness. Ms. Lewis was again tardy two more times and received a written reprimand for excessive tardiness on May 7, 1991. Later, Petitioner received a three workday suspension for tardiness which was served on January 12, 13, and 14, 1993. Ms. Lewis did not deny that she had been tardy. Other employees, males and females, were disciplined for excessive absenteeism and tardiness. After the suspension was served in January, 1993, Ms. Lewis was tardy 15 times in the next 18 days, nine days of which were 8 minutes or more. The fact that some of the days Petitioner was late were for less than seven minutes does not eliminate the tardiness. DMS rules on the subject only address when an employee's wages can be docked for such lateness. Since Ms. Lewis continued to be tardy, Allen Dallis, Maintenance Supervisor, initiated the first step of a recommendation to dismiss Ms. Lewis for continuing tardiness. Ms. Lewis gave reasons for being tardy which included, being stuck in traffic, doctors' appointments, her ride to work being late, caring for her grandchildren, and sickness of her daughter. Often she was late simply because, for unknown reasons, she waited outside her place of employment before coming into work. At no time in the disciplinary process leading up to the suspension or after the suspension did Ms. Lewis assert that she was being singled out due to her sex or handicap. In fact, Ms. Lewis would not talk with her supervisors about her tardiness or her assignments. In general Ms. Lewis did not communicate well with her supervisors and had formed the habit that if they said something to her, she would walk off and not respond. Generally, Ms. Lewis did not notify her supervisors ahead of time that she would be tardy even though she knew in advance when her tardiness might occur. She occasionally called Mr. Rivers, a custodial supervisor, on the same day that she would be tardy to tell him she would be late. Mr. Rivers was not available for calls until 5:00 p.m. each day after the shift had begun. Occasionally, Ms. Lewis would advise her supervisors the evening before that she would be late the next day. After July 12, 1990, Ms. Lewis received leave without pay (LWOP) when she was more than seven minutes tardy and she had not brought in medical certification. Tardiness of custodial workers presented problems in scheduling the work because the workers were organized in teams whose members moved together doing their tasks. If one of the usual team members was absent or late at the beginning of the shift, the supervisors would organize the employees who were present into different teams in order to try to cover all areas with the available workers and have no one working alone. Frequently it was not evident whether Ms. Lewis was tardy or absent for the evening. Ms. Lewis asked that if she were tardy in reporting to work, she be allowed to make up the amount of time she had been tardy on the same night. She did not request a change in her schedule. Her choice of make up time was during the lunch break when her time was already counted as work-time, or after 1:00 a.m., when all workers and supervisors were gone from the building. The request was denied because a daily schedule which changes as the employee chooses would not fit the staffing organization of the custodial work force in the Capitol. Additionally, a worker could not stay in the Capitol past the end of the shift at 1:00 a.m. with no supervisors present. No employee was permitted to adjust their daily schedule in such an unpredictable manner. A few years ago, Dunk Chambers, at the time a custodial worker on a floor team, and Johnny Pease, at the time a Custodial Supervisor I, had flexible schedules in which they reported to work at 5:30 p.m. each day except Wednesday. On Wednesdays they reported to work early enough to make up time missed during the week. These schedules were predictable and set well in advance. Currently, Mr. Chambers, Custodial Supervisor II, and Mr. Pease, Custodial Supervisor III, currently follow the regular night shift schedule. Presently, two female custodial workers at the building where Tommy Denis is supervisor, follow a schedule in which their arrival and departure from work is different from that of other employees. Again these schedules are predictable and are set well in advance. The denial of Ms. Lewis' request to make up time when she was tardy was not due to a medical condition, handicap or sex. At least one other female employee who had no medical problem was disciplined for excessive tardiness to work. Allen Dallis asked Ms. Lewis if she wanted to work part-time as a suggestion of a possible change that would enable her to report to work on time, but she walked off with no answer. The option of retirement was offhandedly mentioned to her also. During these conversations, there was no coercion, duress, misinformation or deception by the supervisors and there was no indication that Ms. Lewis was in any way harassed by her supervisors. During her tenure with DMS, Ms. Lewis did not present any medical justification for nor request any specific accommodation for her back problems other than temporary light duty for a condition from which she would soon be released. The evidence was very clear that Petitioner was only doing light duty work which work could not be lightened further. Finally, there was no evidence that Petitioner was subjected to any discrimination based on sex or handicap. Finally, the evidence did show that Petitioner's discipline was justified, that she was not constructively discharged, and that Petitioner chose to retire in February 1993. Given these facts, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that she was discriminated against because of her sex or handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE and ORDERED this 30th day of November, 1994, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1994. APPENDIX TO DOAH CASE NO. 94-3996 The facts contained in paragraphs of 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 16, 17, 18, 19, 20, 22, 23, 34, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 44, 45, 46, 47, 48, 49, 52, 54, 55, 57, 60, 62, 63, 64, 65, 66 and 68 Respondent's proposed findings of fact are adopted in substance insofar as material. The facts contained in paragraphs 3,,, 13, 14, 15, 21, 25, 39, 40, 41, 42, 43, 50, 51, 53, 56, 58, 59, 61, 67, 70, 71, 72 and 73 of Respondent's proposed findings of fact are subordinate. The facts contained in paragraphs 4, 5, 6, 7, 10, 14, 43, and 44 of Petitioner's proposed findings of fact are adopted in substance insofar as material. The facts contained in paragraphs 3, 9, 11, 18, 13, 18, 20, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32, 33, 34, 35, 40, 45, 46 and 47 of Petitioner's proposed findings of fact are subordinate. The facts contained in paragraphs 8, 15, 16, 17, 19, 21, 28, 36, 37, 38, 39, 41 and 42 of Petitioner's proposed findings of fact were not shown by the evidence. COPIES FURNISHED: Joan Van Arsdall Department of Management Services Suite 309 Knight Building 2737 Centerview Drive Tallahassee, FL 32399-0950 Marie Mattox 3045 Tower Court Tallahassee, FL 32303 Helen Burgess AFSCME Florida Council 79 345 South Magnolia Drive Suite A-13 Tallahassee, FL 32301 Ms. Sharon Moultry Clerk Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149
The Issue The issue in this case is whether Respondent committed an unlawful employment practice against Petitioner on the basis of his medical disability in violation of the Florida Civil Rights Act of 1992, as Amended (FCRA of 1992).
Findings Of Fact Petitioner is a 41-year-old man who began his employment with Respondent in April 2006. Petitioner has been continuously employed in Respondent's Power Quality Services Division (PQSD) since April 2006. However, he has been on either short term disability (STD) since January 25, 2010, or long term disability (LTD) beginning on July 25, 2010. Respondent is an international power service-related company. Respondent's PQSD has customer service engineers (CSE) throughout the nation who perform similar jobs in ten different geographic regions. Petitioner is located in Orlando, Florida, and worked in Respondent's southeast region, Central Florida division. Sedgwick is the claims administrator for Respondent's STD, LTD, and workers' compensation programs. Employees who are in the STD or LTD programs need to communicate with and keep Sedgwick apprised of their disability and related physician directives. Respondent's employees are to contact Sedgwick to file the requisite claim(s) for STD or LTD benefits.5/ Prior to his disability leave, Petitioner worked for Respondent as a CSE. Petitioner's position required him to perform scheduled maintenance (SM), emergency maintenance (EM), preventative maintenance (PM) on uninterruptible power supplies (UPS), start-up projects that included the installation of electrical equipment, and other related service activities. Part of Petitioner's job was to perform PM to catch issues before they became major problems for the customers. Petitioner also performed other field work that included emergency service calls, customer visits, and battery assessments of various UPS units. Respondent's standard CSE's job description6/ included the following areas: primary function, specific functions, dimensions, specialized knowledge, and additional information. In the additional information section, all CSEs had the following "Working Conditions" enumerated: Be able to lift up to 75 lbs Occasional over-night travel may be required Scheduled and unscheduled overtime required 24/7 on call position Petitioner and Brian Irish (Mr. Irish)7/ both agreed that this job description was an accurate description of a CSE's job. Further, Petitioner agreed that, in order "[t]o do 100 percent of the [CSE] job," a person has to be able to lift up to the 75 pounds as required. Petitioner provided a spread sheet to demonstrate his PM activities for 2009. The spread sheet highlighted the seven battery PM jobs that required a battery lift and tray puller8/ in order to perform the service, the 29 battery PM jobs that did not require a battery lift, and the 74 UPS PM jobs that did not require a battery lift. The spread sheet failed to include Petitioner's scheduled maintenance work, the start-up jobs, or any of his EM or emergency work done in 2009. Thus, the spread sheet does not provide a complete picture of Petitioner's 2009 work performance. Petitioner's duties made multiple physical demands of his body: from carrying his tool bag (with various screwdrivers, wrenches, sockets, drills and other assorted items), his laptop computer bag, and safety gear bag to the work site; to sitting on a stool or the floor to hookup his laptop in order to run the requisite diagnostic tests; to moving cabinet doors in order to actually work on the equipment. There were times when Petitioner used a two-wheeled dolly to transport the equipment that he needed to perform his duties.9/ Petitioner routinely carried his computer laptop bag with his laptop computer, some small hand tools, and assorted communication cables to download the UPS information into work sites. He also carried a cordless drill, a charger and/or a back-up battery, a Fluke multi-meter,10/ leads for the meter, various sockets and adapters, a vacuum cleaner (if found to be necessary), a flashlight, a torque wrench (for battery jobs), an infrared gun,11/ and safety gear. Petitioner estimated the weight of the tools he typically used on a job at 14 to 15 pounds. Petitioner also estimated that his laptop bag with the laptop (which was an essential piece of equipment) weighed between 12 to 16 and one-half pounds. Petitioner did not offer a weight on the safety gear bag he was required to use; however, based on the demonstration provided, that gear weighed at least five pounds, if not more.12/ On a routine service call, Petitioner would need to carry at least 26 to 31 pounds of equipment in order to perform the service call. Then he would have to actually perform the required service, which could entail additional physical demands. Petitioner (as well as other CSEs) could remove the outer doors to the UPS cabinets which housed the various battery trays used in the computer system. Petitioner would use the steel toe of his boot to lift the outer door of the cabinet off its hinges. He would then put that edge of the door on the ground, pull his steel-toed boot out, and slide or shift this outer door to a safe location. Petitioner would repeat the process with the second outer door. He would then remove the inner doors ("dead front") in order to perform the required service. The two dead fronts were not as heavy as the outer doors. To replace the outer doors (after replacing the dead fronts), Petitioner would lift the outer door up on one end, place his steel-toed boot under the door edge, then slide or shift this outer door back to the cabinet front, raise the door up, and guide the door back on to its hinges. He would repeat the process with the second outer door. Petitioner had to use his body to physically push, pull, slide, and/or lift and direct the outer doors to their appropriate resting location, as well as back on the hinges. There was credible testimony that these outer cabinet doors to the units that Petitioner serviced can weigh between 26 and 50 pounds per door. Respondent provides leased vehicles to its active CSEs. Such vehicles could include a service van, a mini-van, a truck, or some other large vehicle that is easily adapted to carrying the equipment a CSE uses. CSEs pay approximately $120.00 a month for the unfettered use of the leased vehicle.13/ Petitioner estimated that he used his leased vehicle 90 percent of the time for Respondent's business purposes and only ten percent for personal use. Respondent initially provided Petitioner with a van. At the time he went on STD, Petitioner was driving a leased heavy-duty Dodge Ram truck, with a camper top enclosure. During the calendar work year for 2009, Petitioner met his performance measures and was rated a perfect five on Respondent's performance scale. That high performance evaluation rating is undisputed. Respondent provides merit pay increases to active employees who receive high performance marks for the preceding year. Respondent provides training courses to active employees for them to maintain and/or obtain requisite training on the UPS models being offered at the time. On or about November 19, 2009, while on his honeymoon, Petitioner suffered a back injury. Although Petitioner returned to work in late November, his work schedule for the remainder of 2009 was very light based on the multiple holidays and the difficulty in actually scheduling the various maintenance appointments. Between his return to work in late November 2009 and January 13, 2010, Petitioner only completed two service calls in 2009 and a standby service call.14/ Petitioner was contacted, around Thanksgiving 2009, about a customer wanting "standby service," and no one was available to take the call but Petitioner. Petitioner contacted Robert Costantino (Mr. Costantino), his immediate supervisor, telling him that Petitioner had hurt his back while on his honeymoon, but that Petitioner was willing to take the call. Mr. Costantino, who did not know the specifics of Petitioner's back injury, nor did he have any written medical restrictions regarding Petitioner, cautioned Petitioner "to be very careful." Petitioner completed the standby service call without incident. Sometime in early January 2010, Petitioner again spoke with Mr. Costantino and expressed that he (Petitioner) was not getting any better, that he was in a significant amount of pain, and that it was becoming difficult for him to do the job. Mr. Costantino suggested Petitioner see a doctor. On January 13, 2010, Petitioner was examined by an orthopedic physician. Petitioner provided this orthopedic physician's work status note to Mr. Costantino, who provided it to Respondent's human relations (HR) department. This work status note placed "LIGHT DUTY RESTRICTIONS" on Petitioner's movement for six weeks and limited his "lifting/pushing/pulling" to no more than 25 pounds. This work status note also contained the following directive that, "[i]f light duty is not available with the listed restrictions, the patient is to be temporarily kept off work until the next office visit," which was also six weeks later. After forwarding Petitioner's work status note to Respondent's HR department, Mr. Costantino consulted with the HR personnel. It was determined that it was not safe for Petitioner to continue to work as a CSE. Mr. Costantino contacted Petitioner, expressed concern for his injury, and directed Petitioner to contact Respondent's HR department to file a claim for STD. Mr. Costantino directed Petitioner to cancel his pending service calls for the remainder of January 2010. Although Petitioner contended he could perform PM, or performance checks, Mr. Costantino indicated that Respondent could not allow Petitioner to continue to work based on the belief that the standard job requirements could be detrimental to Petitioner's health. As Petitioner started his STD, he was advised that he could apply for any available positions for which he was qualified on Eatonjobs.com, the internal job website available only to Respondent's employees. Petitioner did not avail himself of this, as he thought it was Respondent's duty to find him a position. Dianne Higgens (Ms. Higgens) was the manager of compensation, employee rehabilitations, and community involvement for Respondent's PQSD until May 2011, when she retired. In April 2010, Ms. Higgens took a special assignment in Respondent's HR department, when that manager went on maternity leave. During her service in the HR department, Ms. Higgens spoke with Petitioner on numerous occasions regarding his disability and the issues he was having with Sedgwick regarding his disability payments. Ms. Higgens had multiple, lengthy telephone conversations with Petitioner. Ms. Higgens's perception during these calls was that Petitioner was in a great deal of pain, as he mentioned that in the majority of their telephone conversations. Ms. Higgens's testimony is found credible. Ms. Higgens authored several letters to Petitioner seeking information regarding his medical condition and/or attempting to secure necessary medical documentation regarding Petitioner's disability and when he could return to work fulltime. Specifically, in November 2010, Ms. Higgens sent Petitioner a letter asking for his physician to complete a return-to-work status form. Petitioner did not initially get that form to Respondent, but did provide it in January 2011. The form indicated Petitioner was to have surgery in February 2011 and would be able to return to work six to eight weeks thereafter.15/ It is appropriate to note that Respondent has in place a return-to-work process for employees who return from either STD or LTD to ensure that their health restrictions or conditions are properly and adequately addressed. Ms. Higgens encouraged Petitioner to search Eatonjobs.com to locate a position that he desired. She offered that, if Petitioner found a job opening that he was interested in, he should apply for it and let her know of his application. She would then contact the appropriate HR person. Petitioner never notified Ms. Higgens of any applications. Further, Ms. Higgens attempted to assist Petitioner in finding work for him within Respondent's organization. For the one possible position that she found in a 50–mile radius from Orlando, Florida, Petitioner could not fulfill the job requirements because he was medically restricted in how much weight he could lift. Respondent did not and does not have permanent or regular light-duty positions. On April 13, 2010, Petitioner was examined by another physician. Petitioner provided this physician's work status note to Respondent. This work status note reflected that Petitioner "MAY NOT return to work," but could return to "regular duty on MAY 13th 2010." Although this work status note indicated Petitioner could return to work on May 13, 2010, Respondent did not receive any physician's directive or release that Petitioner could, in fact, return to work. In fact, Petitioner's condition declined to such an extent that he, on his own volition, started using a cane in June 2010. Further, in a January 4, 2011, letter, yet another physician documented Petitioner's need to use a cane.16/ Towards the end of Petitioner's STD period, Mr. Costantino and Petitioner talked via telephone about possible options for Petitioner to pursue. Petitioner continued to express interest in three types of jobs that he felt he could perform: the administrative job of scheduling PM and other service calls, a triage job, and a technical support job. The first two positions were at a lower salary than Petitioner's CSE position. The technical support job was at a higher salary. All three positions were located in Raleigh, North Carolina. At that time, all three positions were filled with active employees of Respondent and, thus, were unavailable for Petitioner. Mr. Costantino suggested to Petitioner that he search Eatonjobs.com for any open positions. Mr. Costantino also provided Petitioner with the names and contact information for the managers in both Respondent's triage and technical support sections. Petitioner could contact those managers to discuss any openings. Mr. Costantino was unaware of any contact by Petitioner with those managers. Mr. Costantino told Petitioner he could not attend Respondent's training classes because he was on disability leave, and there was a possibility that Petitioner could jeopardize his disability benefits if he participated in some compensable activity for Respondent. Mr. Costantino also discussed the 2009 merit increase award with Petitioner. Respondent's stated policy is that, in order to receive a merit increase award, the employee must be an active employee at the time the merit increase award is effective. Respondent's company-wide 2009 merit increase award was not effectuated until July 2010. As set forth in Respondent's Merit Planning User Guide, employees who are "on a leave of absence (LOA) cannot be planned for during the merit [award] planning process, unless they return to work before the plan cycle is over." Thus, Petitioner did not qualify for the merit raise in 2010, as he was either on STD or LTD at that time. There was credible testimony that, once Petitioner returned to work for Respondent, he would receive that merit increase award, not retroactively, but moving forward. In late summer of 2010, Mr. Costantino discussed Respondent's leased truck usage with Petitioner. As Petitioner was out on LTD, he was not actively working for Respondent, and he did not need the leased vehicle. Following his previously- scheduled vacation trip in 2010, Petitioner returned the leased truck to Mr. Costantino. When he returned Respondent's leased truck, Petitioner obtained a motorcycle for transportation. Mr. Leung is a CSE from Respondent's Northeast 9 region, specifically working in three New York boroughs: Brooklyn, Queens, and Manhattan. Mr. Leung sustained two hand injuries, a fractured wrist in 2007 and a severely burnt right hand in 2008. Following his fractured wrist in 2007, Mr. Leung was put on LTD because he had to undergo surgery. Mr. Leung was out of work a couple of months; however, he sufficiently recovered and returned to his regular CSE duties. In March 2008, Mr. Leung suffered second-degree burns to his right hand while he was working for Respondent at St. Peter's Hospital. He was initially treated at St. Peter's Emergency Room, but was later transferred to a different hospital that had a burn unit. Mr. Leung received instruction on his hand bandaging/care and was told to return to the hospital for care. He thinks he had his hand in a bandage/dressing for a month. Mr. Leung thinks he was placed on workers' compensation following this accident. Exactly what treatments or job-related activities Mr. Leung performed following his 2007 and 2008 hand injuries are suspect as his memory of these activities was unclear.17/ Petitioner would have one believe that a burnt hand injury is equivalent to an injured back. The undersigned cannot agree. Petitioner attempted to demonstrate that, following Mr. Leung's 2008 hand injury, he participated in Respondent- sanctioned training and work duties. While it appears that Mr. Leung did participate in some training and work for Respondent, the extent to which he trained or worked was not clearly addressed to establish that Respondent provided Mr. Leung with a position different than his CSE duties. Additionally, Mr. Leung's 2008 circumstance is unhelpful in Petitioner's cause as no testimony was offered regarding the similarities or differences between the workers' compensation program Mr. Leung thinks he was engaged in and the STD or LTD programs in which Petitioner participated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Florida Commission on Human Relations finding Eaton Corporation not guilty of the alleged unlawful discriminatory employment practices alleged by James Patrick Overly, II, and dismissing his Petition for Relief in full. DONE AND ENTERED this 24th day of January, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 January, 2012.
The Issue Whether or not Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner and received by the Florida Commission on Human Relations on November 20, 2001.
Findings Of Fact Based on the testimony of Petitioner and the evidence he presented, the following findings of fact are made: Petitioner was employed by Respondent in approximately 1990. Then or shortly thereafter he became a houseman at the Respondent's Grand Floridian Resort Hotel. His assigned duties included some strenuous lifting and other strenuous physical activity. In 1995, Petitioner seriously injured his lower back and one hand in an off-the-job incident involving his jumping from the second story of his apartment to avoid a fire in the apartment. As a result, Respondent gave him a leave of absence for about five months from his employment. After returning to work, in early 1996 Petitioner incurred what he contended was a work-related injury to his lower back. A medical record introduced by Petitioner, casts doubt on the extent to which that injury contributed to the condition from which he thereafter suffered and which interfered with and ultimately ended his ability to work. Petitioner had major back surgery in 1996. He consequently received and took additional leave from work. Petitioner testified on several occasions that at no time after the 1995 injury was he able to perform the strenuous aspects of the assigned duties of his position, houseman. Based on Petitioner's testimony, this finding of fact is confirmed, i.e., Petitioner is unable to perform the assigned duties of a houseman. Petitioner was placed on light duty for a period of time. Petitioner was sent to a department of Respondent called "Re-Casting" in an effort to place him in duties he could perform. As a result of his initial contact with Re-Casting, he was transferred from the Grand Floridian Resort Hotel to the Contemporary Resort Hotel, but he was unable to perform his assigned duties and accordingly was transferred back to the Grand Floridian Resort Hotel. The transfer and return took place in March and April 1997. Petitioner subsequently returned to Re-Casting, and took a test to determine his qualifications for an open position as a cashier. Petitioner failed the test. Petitioner last worked for Respondent in May 1997. Petitioner has not held any employment since then, and he testified that he has not applied for employment since then. He admits that the reason for not having held any employment and not applying for it is his physical inability to work. Petitioner testified unequivocally that he has, since May 1997, been unable to do any kind of work. Based on Petitioner's testimony, this finding of fact is confirmed, i.e., that since May 1997, Petitioner has been unable to do any kind of work. Petitioner has applied for disability benefits with the Social Security Administration. His disability claim indicates a continuing disability on his part.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations find that Petitioner, Thelemaque Coleus, has failed to present a prima facie case of employment discrimination under the FCRA, and that, accordingly, the case is dismissed with prejudice. DONE AND ENTERED this 27th day of February, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2002. COPIES FURNISHED: Thelemaque Coleus Post Office Box 550776 Orlando, Florida 32855 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Charles Robinson Fawsett, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956 Christie Sutherland Walt Disney World Post Office Box 10000 Lake Buena Vista, Florida 32830 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue for determination is whether Petitioner was subjected to employment discrimination by the Department of Health (Respondent), due to Petitioner's age in violation of Section 760.10, Florida Statutes.
Findings Of Fact Julie A. Philippart (Petitioner) was born May 12, 1956. Respondent is an agency of the State of Florida with a medical laboratory located in Pensacola, Florida. The director of the laboratory is Dr. John Parker, age When the position of Medical Laboratory Scientist II needed to be filled, Parker delegated responsibility for screening applicants and determining the best applicant to be hired to Dr. Leah Gillis, age 51. Gillis, proceeded with Parker’s approval, to enlist two other fellow employees, Beverly Butler, age 62, and Bill Nakashima, to assist in the interviewing and screening of applicants. Following advertisement of the vacancy and receipt of applications, six of the applicants were selected for an interview. While a step in the process, the subsequent interviews were not completely determinative of which applicant was the best. Petitioner was one of the six applicants interviewed. Gillis and Nakashima interviewed Petitioner. After the initial interviews, Petitioner was considered the primary candidate. Since Petitioner had previously worked in the laboratory during the period 1994-1998, Gillis checked with Parker and Butler about Petitioner’s prior work experience. Further, Butler checked past lab records for work that Petitioner may have performed. As a result of her consultations with Parker and Butler, Gillis developed concerns that Petitioner’s experience and background might not be as ideal as indicated by the interview. Particularly, Butler had expressed concern that Petitioner did not have a hematology license, which was needed in the lab following the resignation of another employee whose licensure in that area previously covered this need for the lab. While still considering Petitioner as an applicant, Gillis resolved to interview other candidates. Through Butler, contact was made with Virginia Winchester, age 50, regarding the position. Winchester had the appropriate hematology license and experience for the position. But, when Winchester was advised that she should get vaccinations for rabies and hepatitis to work in the position, she consulted with her physician and withdrew her application. Stephanie Bubien was another applicant considered for the position. She had the appropriate license and experience, but, because her current employer increased her salary, withdrew her application following offer of the position. Linda Boutwell, personnel liaison for the lab and Star Metcalfe, assistant human resource director, located in Jacksonville and Tallahassee, Florida, respectively, advised Gillis to re-advertise the position. Gillis re-advertised the position. Of six additional applicants for the position, two were granted interviews. Patricia Jones was called in for a second interview. Jones, like Petitioner, is over age 40 and is less than two years younger than Petitioner. Jones had the preferred hematology license and 16 years of “bench” or actual experience. Jones was offered and accepted the position. Age was not a criterion for the position and was not considered in the hiring decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered dismissing the Petition for Relief. DONE AND ENTERED this 4th day of January, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 4th day of January, 2005. COPIES FURNISHED: Julie A. Philippart 303 Washington Avenue Gulf Breeze, Florida 32561 Stephen W. Foxwell, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149
The Issue Whether the Flagler County School Board discriminated against Petitioner by failing to hire Petitioner based on his disability.
Findings Of Fact Respondent is the local government agency responsible for oversight of the public schools of Flagler County, Florida. Petitioner applied for two positions with the School Board. In December 2009, Petitioner applied for a job opening as a bus aide for handicapped students (Transportation Handicapped Aide position). On January 29, 2010, he applied for a lawn maintenance position at Flagler Palm Coast High School (Maintenance/Turf Care Worker position). On February 1, 2010, Petitioner received a letter from the School Board thanking him for his interest in the Transportation Handicapped Aide position, but informing him that the School Board had selected another applicant. On or about May 31, 2010, Petitioner received another rejection letter from the School Board, informing him that he had not been hired for the Maintenance/Turf Care position. Petitioner alleges that Respondent did not hire him for either position because he is “qualified deaf.” Prior to actually applying for the two positions, as part of the application process, Petitioner completed an on-line employment application with the School Board. Petitioner listed eight previous positions on his on-line application, including: dishwasher, assembler, part-time stacker, dock worker, warehouse/driver, part-time delivery driver, warehouse associate, and warehouse forklift operator. The previous positions listed on Petitioner?s on-line application did not involve working with children or lawn care. At the final hearing, Petitioner testified that he had been around deaf and blind students while attending the Florida School for Deaf and Blind. He also testified that he thought he could learn the lawn care maintenance position while on the job. Petitioner conceded, however, that his prior employment positions and experience did not involve working with children or lawn care maintenance. Qualifications the School Board required for the Transportation Handicapped Aide position included prior experience or training in the care of children, as well as knowledge of and ability to use crisis intervention and prevention techniques, CPR, and first aid. The Maintenance/Turf Care Worker position was not a beginning position where qualifications could be met by on-the- job training. Rather, the position required a state-certified pest control operator's license for lawn and ornamental plants or the equivalent, and a working knowledge of the rules and regulations on safe handling and application of pesticides, herbicides, and fertilizers. The position also required knowledge of athletic field dimensions and striping, and the ability to maintain a commercial irrigation system. Review of Petitioner's on-line application, in light of the qualifications for the two positions sought, reveals that Petitioner was not qualified for either position. In contrast, the successful applicants who were hired for the two positions possessed the required qualifications and experience. Ms. Parrella testified that, as secretary to the School Board's Director of Human Relations, it was her responsibility to monitor the applications for employment submitted for the two positions for which Petitioner applied. According to Ms. Parrella, Petitioner was not hired because he did not possess the required qualifications for the positions. Ms. Parrella further testified that the School Board would not discriminate against a person who was deaf if he had the qualifications for the position. She further explained that Petitioner's handicap or disability played no role in the decision not to hire him for the two positions. Ms. Parrella's testimony is credited. Petitioner testified that, at the time he filed the Complaint, he suspected that he had not been hired by the School Board because of his disability because he could not think of any other reason he was not hired. He admitted, however, that he had no personal knowledge as to the reasons why he was not hired. Petitioner also admitted during the final hearing that he did not list or possess all of the certifications or qualifications required for either of the two positions. In sum, Petitioner did not show that the School Board discriminated against him by failing to hire him because of his disability.
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 the Complaint and Petition for Relief. DONE AND ENTERED this 17th day of May, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 17th day of May, 2011.
The Issue Did Respondent discriminate against Petitioner because of his handicap and in retaliation for filing an earlier discrimination complaint with the Florida Commission on Human Relations, as alleged in Petitioner's Petition For Relief, in violation of Sections 760.01 - 760.11, Florida Statutes, known as the Florida Civil Rights Act of 1992?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: Petitioner checked the boxes for both Handicap and Retaliation in the section titled "Cause of Discrimination Based On" of the Charge of Discrimination filed by Petitioner on May 14, 1994. In the section titled "Date Most Recent or Continuing Discrimination Took Place" of the Charge of Discrimination Petitioner indicated December 22, 1992. In the section titled "The Particulars Are" of the Charge of Discrimination Petitioner indicated: PERSONAL HARM: On a continuing basis I have not been referred for work by my union, with the last occurrence on December 22, 1992. RESPONDENT'S REASON FOR ADVERSE ACTION: Mr. Mike Brewer, Union Business Agent, said that I was not wanted in the department in which I had previously worked. DISCRIMINATION STATEMENT: I believe I have been discriminated against because of retaliation for filing (FCHR No. 90-8052) for the following reasons: The last time I contacted Mr. Brewer he hung up on me. continuing Mr. Brewer has referred other union members for work on a basis. A NOTICE OF DETERMINATION: NO CAUSE was issued by the Commission on March 11, 1996. In Section 3 of the Petition For Relief filed with the Commission on April 15, 1996, Petitioner alleges that Respondent violated the Florida Civil Rights Act of 1993, as Amended, as follows: Conspiring with company to isolate the HANDICAPPED Petitioner in a classification essentially made obsolete with an ex post facto "Crafts Maintenance Contract" subsequent to the July 26, 1990 signing of the A.D.A. (singling him out for "layoff") F.S. 760.10(4b). Filing a grievance to deter the Petitioner from filing any HANDICAP Discrimination complaints, and refusing to process it. Referring others for employment on a continuing basis, (F.S. 760.104(b). Refusing representation. (Foreman/union steward?) At all times material to this proceeding, Petitioner Dennis M. Presson was a member of the bargaining unit of the Craft Maintenance Council, Carpenters Local Union No. 1820. Respondent Craft Maintenance Council, Carpenters Local Union No. 1820 Statutes. Commission and the courts. as a Property Craftworker Assistant, and assigned Petitioner to the Furnishings 10. During August, 1990, the work in Furnishings declined and, in lieu of craftworker assistants, including Petitioner, were temporarily assigned on through the first week of October 1990. October 11, 1990, was laid off due to lack of work in Furnishings. Petitioner 12. On November 2, 1990, the remaining six property craftworker assistants higher in seniority than Petitioner. transferred back to Furnishings so that he could be laid off is without merit. department until their function could no longer be justified in lieu of laying The lay-offs on October 11 and November 2, 1990, were caused by lack get back at Petitioner because of his handicap or in retaliation for filing an On October 11, 1990, when Petitioner was laid off, Disney offered as custodians. Although other property craftworker assistants accepted work as On October 12, 1990, Michael Brewer, Shop Steward filed an Employee of seniority - another worker with lower seniority had been retained. Respondent settled with Disney for $2,500 rather than proceed to final and Petitioner received payment. grievance or delayed or refused to process the grievance so as to deter During the grievance process Disney again offered Petitioner a job as From the time Petitioner was laid off on October 11, 1990, until December, 1992, Respondent referred Petitioner to six or seven jobs. These jobs covered every field where the work required unskilled or slightly skilled employees. Petitioner declined each and every offer, stating that he was an artist and wanted a job as an artist. Prior to Petitioner filing this complaint with the Commission, Respondent's last contact with Petitioner was around December 1992, when Petitioner informed Respondent that he had a job as an artist with Dollywood in Tennessee and was moving. On August 27, 1992, Petitioner filed a charge against Respondent with the National Labor Relations Board alleging that Respondent "has restrained or coerced and is restraining and coercing Dennis M. Presson, a crafts worker assistant, in the exercise of rights guaranteed in Section 7 of the Act by refusing to advise him of the status of his grievance on his layoff, for arbitrary, invidious and discriminatory reasons and therefore has breached its of fair representation". The National Labor Relations Board dismissed the charge for lack of merit. Respondent has referred Petitioner to jobs where Petitioner's skill matched the classification (unskilled or slightly skilled) of the job being offered. There was no evidence that Respondent had refused or failed to refer Petitioner to jobs that matched his skill because of Petitioner's handicap or in retaliation for filing an earlier discrimination complaint against Disney with the Commission. Petitioner presented no evidence of any job that matched his skill that was available through Respondent which Respondent failed or refused to refer Petitioner for any reason. Based on Petitioner's allegation, Respondent's last refusal to refer Petitioner to an available job occurred in December 1992. There was no evidence that Respondent: (a) conspired with Disney to isolate Petitioner in a classification made obsolete with an ex post facto "Crafts Maintenance Contract" subsequent to the July 26, 1990, signing of the A.D.A. (Americans with Disabilities Act); (b) conspired with Disney to single Petitioner our for lay off; or (c) refuse to represent Petitioner while a member of the union. Petitioner has neither been employed nor has he attempted to obtain any gainful employment since he was laid off by Disney on October 11, 1990. During this period Petitioner has worked on this case and looked after his mother. Petitioner survives on food stamps and other governmental subsidies.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that the Petition for Relief filed by Dennis M. Presson against Craft Maintenance Council, Carpenters Local Union No. 1820 be dismissed. RECOMMENDED this 27th day of November, 1996, at Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings COPIES FURNISHED: Sharon Moultry, Clerk Building F, Suite 240 325 John Knox Road Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 Tallahassee, Florida 32303-4149 2816 4th Street Orlando, Florida 32820 Thomas Egan, P.A. 56 East Pine Street
Findings Of Fact The Parties. The Petitioner, Charles H. Willis, Jr., is a black male. The Respondent, State of Florida, Department of Transportation (hereinafter referred to as the "Department"), is an agency of the State of Florida. Mr. Willis' Employment by the Department. Mr. Willis was hired and began employment with the Department in 1985. (Stipulated Fact). Mr. Willis continued employment with the Department until February 6, 1992. (Stipulated Fact). At the time of his dismissal from employment, Mr. Willis held the position of a Senior Clerk. As a Senior Clerk, Mr. Willis' job duties included duties related to the storage and retrieval of documents pertinent to the Department's activities. Among other things, Mr. Willis went to offices of the Department, picked up boxes of records and prepared the boxes for storage. Mr. Willis was required as a part of his employment to lift boxes of records. Mr. Willis' Automobile Accident. On or about October 16, 1991, Mr. Willis was involved in an automobile accident unrelated to his employment. Mr. Willis was injured in the accident. (Stipulated Facts). Mr. Willis' treating physician for the injuries sustained in the accident was Dr. Esias Lee. (Stipulated Fact). Dr. Lee reported by letter dated October 24, 1991 to the Department that Mr. Willis had sustained severe neck and back injuries, that he was making slow progress and that he would probably be incapable of carrying out his employment duties for four to eight weeks. Mr. Willis' Termination from Employment. The Department was experiencing a backlog in the work Mr. Willis would normally have been responsible for. After inquiry, Mr. Willis was unable to inform the Department when he might be able to return to his duties. By letter dated November 14, 1991, to Dr. Lee, the Department provided Dr. Lee a copy of Mr. Willis' job description and requested that he supply "an evaluation level at which Mr. Willis will be able to perform all of his assigned duties upon his return to work, as well as any and all limitations." (Stipulated Fact). The Department did not receive a response to the Department's letter of November 14, 1991 from Dr. Lee. By letter dated December 6, 1991, to Mr. Willis the Department requested "full and complete response from you regarding your condition, your return date, and your capabilities at the time of return." The Department also requested that the information provided "be confirmed by your physician." Mr. Willis was also informed that he had exhausted all leave and that he would be required to request authorized leave without pay until his return. Apparently in response to the Department's December 6, 1991 letter, Dr. Lee sent a letter to the Department dated December 12, 1991. In the December 12, 1991 letter Dr. Lee informed the Department that Mr. Willis was "unable to preform [sic] the duties of his job." Dr. Lee went on to state that Mr. Willis "continues to be under my care and therapy and is unable to return to gainful employment indefinitely." [Emphasis added]. (Stipulated Fact). As a result of the fact that Dr. Lee had informed the Department that Mr. Willis would not be able to return to work "indefinitely" and the need to fulfill the duties normally fulfilled by Mr. Willis, the Department instituted proceedings to terminate Mr. Willis. On December 18, 1991, the Department sent Mr. Willis by certified mail, receipt requested, a notice of intent to terminate his employment with the Department. Mr. Willis was informed that his employment was being terminated because of his inability to perform his assigned duties. (Stipulated Fact). In response to the Department's letter of December 18, 1991, D. Ricardo Paige, Esquire, requested a pre-termination conference with the Department on behalf of Mr. Willis. The pre-termination conference was held on January 16, 1992. The conference was attended by Frances Felix and Kim Mirkley on behalf of the Department, and Mr. Paige on behalf of Mr. Willis. Mr. Willis did not attend. (Stipulated Facts). During the pre-termination conference, Mr. Paige informed Ms. Felix that he believed that the Dr. Lee would clarify his statement that Mr. Willis would be unable to perform his duties "indefinitely." Mr. Paige represented that an affidavit from Dr. Lee would be provided to the Department "tomorrow", January 17, 1992. Mr. Paige also represented that he believed that Mr. Willis would be able to return to work in February. Finally, Mr. Paige requested assignment of Mr. Willis to light duty. Ms. Felix spoke to Mr. Paige by telephone on January 16, 1992. During this conversation, Ms. Felix told Mr. Paige the affidavit from Dr. Lee should be received by the Department no later than 5:00 p.m., January 17, 1992. The affidavit from Dr. Lee promised by Mr. Paige to the Department was not provided on January 17, 1992. Nor did Mr. Paige or Mr. Willis make any effort to inform the Department that the affidavit would be provided at a later date. On January 23, 1992, after not receiving a revised letter or affidavit from Dr. Lee, the Department notified Mr. Willis that he was dismissed from employment with the Department because of his inability to perform his assigned duties. Mr. Willis' termination was effective February 6, 1992. (Stipulated Facts). No affidavit or other statement from Dr. Lee was provided to the Department by Mr. Willis or Mr. Paige (even though Mr. Paige saw the termination letter) prior to February 6, 1992. Nor did Mr. Paige or Mr. Willis attempt to contact the Department and request additional time to provide a statement from Dr. Lee or explain why no statement had been provided. Mr. Willis was terminated from employment by the Department due to the fact that he was unable to fulfill his job responsibilities from October, 1991 through at least the date of his termination, and the fact that his physician had informed the Department that he was not physically able to perform his job and that he would not be able to do so "indefinitely." Mr. Willis failed to prove that the Department's reason for terminating his employment was a pretext. Mr. Willis failed to prove that he was able to perform light duty. No representation from Mr. Willis' physician was made to the Department before he was terminated that indicated that Mr. Willis was able to perform any duties. Mr. Willis also failed to prove that the circumstances concerning persons he testified about who were allowed to perform light duty were similar to the circumstances of this matter. Subsequent Events. The Department replaced Mr. Willis by a white man. An affidavit from Dr. Lee was provided to the Department on or about February 14, 1992, after Mr. Willis had been terminated from employment. In pertinent part, Dr. Lee informed the Department of the following concerning Mr. Willis' ability to return to work: . . . . His medical condition has moderately improved and I expect his condition to continue to improve. Should his medical conditions [sic] continue to improve, Mr. Willis will be able to return to work by Mid-February with retrictions [sic] (i.e. light duty, no heavy lifting); Mr. Willis should be able to return to his normal work duties within sixty (60) days (without restrictions). . . . . As of the date of the final hearing of this case, Mr. Willis was wearing a back brace and indicated that he was still unable to perform the duties of his former position with the Department. No proof was offered by Mr. Willis that he is now able to carry out any of the responsibilities of his position. Mr. Willis' Charge of Discrimination. On or about July 29, 1992, Mr. Caldwell filed a Charge of Discrimination against the Department with the Florida Commission on Human Relations. Mr. Willis alleged that he had been discriminated against on the basis of his race. The complaint was filed within 180 days. On March 4, 1993, the Commission issued a "Notice of Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " On July 29, 1993, Mr. Willis filed a Petition for Relief. (Stipulated Fact). The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Mr. Willis. G Alleged Race Discrimination. There are approximately 65 employees under the supervision of Ms. Felix, Mr. Willis' supervisor. Approximately 40 of those employees are minorities. Approximately 22 of the 40 employees who are members of a minority are black. Mr. Willis failed to prove that any action of the Department was based upon his race: he was not held to any standard or requirement based upon his race and he was not terminated because of his race. Mr. Willis failed to prove that any Department policy or standard had a disparate impact on black employees.
