The Issue The issue in this case is whether the Petitioner timely filed a complaint of discrimination in accordance with the provisions of Chapter 760, Florida Statutes (2009).
Findings Of Fact Prior to November 28, 2007, the Petitioner was employed by the Respondent. On November 26, 2008, the Petitioner sent a Technical Assistance Questionnaire (TAQ) to the Florida Commission on Human Relations (FCHR). The TAQ was submitted via facsimile transmission and was not signed. The Petitioner believed she was complying with the directives of the FCHR website and that follow-up assistance (from the FCHR) would not be required. The Petitioner did not understand that a signature was required, notwithstanding the place for same (along with a date) on page 2 of the TAQ. The Petitioner maintains that the FCHR website instructions were unclear and that she erroneously relied on the directions that did not specify she was required to sign the TAQ. The Petitioner filed a signed Charge of Discrimination with the FCHR on January 14, 2009. On February 5, 2009, the Petitioner received a "Notice of Receipt of Complaint" from the FCHR. At the same time, a copy of the complaint was furnished to the Respondent, who was then, presumably, put on notice of the Petitioner's charge. The FCHR did not advise the Petitioner that the TAQ had to be signed. In the course of its review of the instant charge, the FCHR entered a determination of "untimely." Per the FCHR's assessment, the charge of discrimination was filed more than 365 days from the last incident or act of discrimination. Thereafter, the Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against the Respondent. The Commission then forwarded the matter to the Division of Administrative Hearings for formal proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's claim of discrimination. DONE AND ENTERED this 29th day of September, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2009. COPIES FURNISHED: Mark Levitt, Esquire Allen, North & Blue 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Marie C. Perez 517 29th Street West Palm Beach, Florida 33407 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact On or about September 25, 2010, Petitioner filed a Charge of Discrimination against Respondent with the FCHR. Pursuant to the FCHR's procedure, an investigation of the matter was completed, that resulted in a Notice of Determination: No Cause. Essentially, the FCHR found that based upon the allegations raised by Petitioner there was no reasonable cause to believe an unlawful employment practice occurred. Thereafter, Petitioner elected to file a Petition for Relief to challenge the determination, and to seek relief against Respondent for the alleged violation. The FCHR forwarded the matter to DOAH for formal proceedings. DOAH issued a Notice of Hearing on April 15, 2011, that was provided to all parties at their addresses of record. It is presumed, the parties received notice of the hearing date, time, and location. In fact, counsel for both parties did appear. Prior to the hearing, the parties engaged in discovery and Petitioner participated in a deposition on or about May 24, 2011. It is undisputed that Petitioner knew or should have known of the hearing date, time, and place.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 30th day of June, 2011, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 W. John Gadd, Esquire The Law Offices of W. John Gadd 2727 Ulmerton Road, Suite 250 Clearwater, Florida 33762 Glenn Michael Rissman, Esquire Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterman, PA 200 East Las Olas Boulevard, Suite 2100 Fort Lauderdale, Florida 33301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact The Petitioner began his employment with the Respondent on or about April 9, 2004. The Petitioner worked as a houseman. This job description was within the Respondent's housekeeping section. His original schedule required him to work a shift that ran from 6:00 a.m. until 2:00 p.m. In October or November of 2004, the Petitioner's work schedule changed and he was directed to work the overnight shift. The overnight shift personnel reported for duty from 11:00 p.m. until 7:30 a.m. The Petitioner accepted this re-assignment. The change in shift assignment was requested by Elizabeth Cortes' predecessor. Some time after December 2004, the Petitioner's supervising manager changed and Elizabeth Cortes became the director or manager for housekeeping. The Petitioner asked Ms. Cortes if he could return to the 6:00 a.m. to 2:00 p.m. shift. That request was not approved. The Petitioner accepted this decision and continued to work as scheduled. Ms. Cortes told the Petitioner at that time that she did not have another employee who would be available to take the night shift. In 2007 the Petitioner enrolled in school and requested that his shift be changed to a 9:00 p.m. to 5:00 a.m. shift so that he could attend school at Miami Dade. That request was approved. From the time of approval, the Petitioner was permitted to work three days from 9:00 p.m. to 5:00 a.m. (his school days) and two days from 11:00 p.m. to 7:30 a.m. The modification of the schedule allowed the Petitioner sufficient time to get to school in the morning. The Petitioner continued to work these shift times without complaint or issue. In November or December of 2006, the Petitioner made an application to become a banquet server for the Respondent's restaurant. He alleged that he gave the application to Elizabeth Cortes who was to sign it and forward it to Human Resources. According to Esther Sandino, the Petitioner did not file an application for restaurant server. Further, Ms. Cortes did not recall the matter. The Petitioner did not file a claim of discrimination for this alleged incident but presumably alleged that this incident demonstrates an on-going disparate treatment. There was no evidence that a non- Haitian was hired for the job as banquet server. There was no evidence any banquet servers were hired. Ms. Cortes did not hire banquet servers. Her responsibilities were directed at housekeeping. During the time Ms. Cortes was the housekeeping supervisor, the Respondent employed approximately 90 employees within the housekeeping section. Of those employees approximately 70 were Haitian. The remainder were Hispanic, Jamaican, Filipino, and other. Of the five persons who held supervisory positions, one was Haitian, two were Hispanic, one was from Czechoslovakia, and the country of origin of the fifth supervisor was unknown to Ms. Cortes. Ms. Cortes did not have the authority to terminate the Respondent's employees. Standard procedure would cause any allegation of improper conduct to be referred to the Human Resources office for follow up and investigation. There were two incidents referred for investigation regarding the Petitioner prior to the incident of April 22, 2007. Neither of them resulted in suspension or termination of the Petitioner's employment with the Respondent. On April 22, 2007, a security officer reported to the hotel manager on duty, Bingina Lopez, that the Petitioner was discovered sleeping during his work shift. Based upon that report, Ms. Lopez sent an e-mail to the housekeeping department to alert them to the allegation. When the Petitioner next reported for work, Mr. Saldana told the Petitioner to leave the property and to report to the Human Resources office the next day to respond to the allegation. The Petitioner did not report as directed and did not return to the property. Mr. Saldana did not have the authority to suspend or terminate the Petitioner's employment. Moreover, the Respondent did not send a letter of suspension or termination to the Petitioner. In fact, the Respondent assumed that the Petitioner had abandoned his position with the company. Ms. Cortes presumed the Petitioner abandoned his position because all of his uniforms were returned to the company. To avoid having the final paycheck docked, the Respondent required that all uniforms issued to an employee be returned upon separation from employment. The Petitioner acknowledged that he had his brother return the uniforms to the Respondent for him. The Respondent considered turning in uniforms to be an automatic resignation of employment. To fill the Petitioner's position (to meet housekeeping needs), the Respondent contacted an agency that provides temporary staffing. The person who came from the agency for the assignment was a male Hispanic. The male (who may have been named Lewis Diaz) arrived at the Trump Resort for work about ten days after the Petitioner left. The replacement employee's schedule was from 4:00 p.m. to midnight or 1:00 a.m. The temporary replacement remained with the Respondent until a permanent replacement for the Petitioner could be hired. It is unknown how long that was or who the eventual permanent employee turned out to be. Because the Petitioner never returned to the Trump Resort as directed, he was not disciplined for any behavior that may have occurred on April 22, 2007. The Petitioner's Employee Return Uniform Receipt was dated April 25, 2007. Prior to the incident alleged for April 22, 2007, the Petitioner had been investigated in connection with two other serious charges. Neither of those incidents resulted in discipline against the Petitioner. Both of the incidents claimed improper conduct that was arguably more serious than the allegation of April 22, 2007. Of the 400 plus employees at the Respondent's resort, the majority are Haitians. The Respondent employs persons from 54 different countries. The Petitioner's claim that he was referred to as a "fucking Haitian" by a security guard has not been deemed credible. The Petitioner was unable to indicate when the comment was made. Moreover, the Petitioner did not complain to anyone at the time the comment was allegedly made. Finally, no other employee could corroborate that the comment was made. One former employee testified that the Petitioner told him about the alleged comment. At best it was one offensive statement made on one occasion. There is no evidence that the Petitioner was treated in a disparate or improper manner based upon his national origin.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 27th day of February, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141 Warren Jay Stamm, Esquire Trump International Beach Resort 18001 Collins Avenue, 31st Floor Sunny Isles, Florida 33160 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of his national origin in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact No findings are made in this case. Petitioner did not appear and did not submit evidence to support findings of fact.
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner when it fired her in March 2004.
Findings Of Fact Petitioner is an African-American female. Hampton Court is assisted living facility in Haines City, Florida. Its residents include elderly Medicaid recipients. Kenneth Wilder is the executive director of Hampton Court. Mr. Wilder is a white male. Mr. Wilder has approximately nine years of experience administering assisted living facilities, and at the time of the events giving rise to this proceeding, he had been the executive director of Hampton Court for approximately a year and a half. Petitioner’s immediate supervisor was Dorothy Pelemon. Ms. Pelemon, like Petitioner, is an African-American female. Petitioner was hired by Hampton Court as a Resident Care Aide in early February 2004. Her primary job duties in that position were providing direct care to Hampton Court residents. Petitioner’s salary was $7.50 per hour, and she typically worked 40 hours per week. Several weeks after she was hired, Petitioner was promoted to the position of Resident Care Manager. In that position, Petitioner still provided direct care to Hampton Court residents, but she also had some supervisory duties. Petitioner only held the Resident Care Manager position for two or three weeks. On March 10, 2004, she was demoted back to the position of Resident Care Aide for improperly transcribing medications on patient charts and for improperly assisting a patient with his medications. On Saturday, March 20, 2004, Petitioner was involved in an altercation with another employee, Ivette Rodriguez. Ms. Rodriguez is a Puerto-Rican female. She was re- hired as a Resident Care Aide at Hampton Court in early March 2004, after having been fired approximately six months earlier for excessive tardiness and absenteeism. The altercation between Petitioner and Ms. Rodriguez was the culmination of a series of disputes that the two had on March 20, 2004. According to Petitioner, the disputes started when Ms. Rodriguez got agitated with her when she took responsibility for the upstairs residents, who had fewer medications, and left Ms. Rodriguez with the downstairs residents, who had more medications. According to Petitioner, Ms. Rodriguez also got agitated with her later in the day for not taking a phone message. Petitioner also testified that she was agitated with Ms. Rodriguez for taking breaks and receiving numerous phone calls while “on the clock.” According to Petitioner, the altercation that led to her firing started when she observed Ms. Rodriguez writing in the “manager’s log” at the nursing station. Petitioner told Ms. Rodriguez that she was not allowed to write in the log and Ms. Rodriguez got upset. Petitioner and Ms. Rodriguez exchanged words, and at one point during the altercation, Petitioner told Ms. Rodriguez that “you don’t know who you’re dealing with,” or words to that effect, and she expressly threatened to send Ms. Rodriguez to the hospital. Petitioner did not follow through on the threat, and there was no physical contact between her and Ms. Rodriguez at any point during the altercation. The altercation was entirely verbal and never went beyond Petitioner and Ms. Rodriguez yelling at each other. The altercation was witnessed by other employees and by Hampton Court residents, and according to the “write-ups” given to Petitioner and Ms. Rodriguez, the altercation “created a hostile living environment for [the residents].” Petitioner and Ms. Rodriguez were separated for the remainder of the day, and there were no further incidents between the two. Neither Mr. Wilder, nor Ms. Pelemon was at the facility at the time of the altercation between Petitioner and Ms. Rodriguez. Mr. Wilder and Ms. Pelemon conducted an investigation into the altercation the following week. Based upon the investigation, they preliminarily decided that both Petitioner and Ms. Rodriguez should be fired and “write-ups” were prepared to effectuate that discipline. The “write-up” for Petitioner contains the following account of the altercation: On March 20, 2004, [Petitioner] was involved in an altercation with co-worker Ivette Rodriguez. The altercation resulted when [Petitioner] took control of the upstairs med cart instead of the one she was supposed to take control of. [Petitioner] refused to cooperate and escalated the level of aggression in the fight making threats such as, “I’ll send to you Heart of Florida Hospital!” . . . . The “write-up” for Ms. Rodriguez contains the following account of the altercation: On March 20, 2004, [Ms. Rodriguez] was involved in an altercation with co-worker [Petitioner]. The shouting and fighting took place in public areas and was witnessed by co-workers and residents. [Ms. Rodriguez] also had her brother-in-law come to the community to get involved by confronting [Petitioner]. . . . . The source of the accounts of the altercation in the “write-ups” is not entirely clear and, as a result, the findings made above regarding the altercation are based on Petitioner’s testimony at the hearing rather than the accounts in the “write- ups”. (It is noted, however, that the “write-up” given to Petitioner and her testimony at the hearing both make reference to her express threat of physical violence towards Ms. Rodriguez.) Mr. Wilder and Ms. Pelemon met with Ms. Rodriguez on March 24, 2004, to discuss the altercation. Ms. Rodriguez was given an opportunity to tell her side of the story and to explain her actions. In doing so, Ms. Rodriguez acknowledged that her actions were wrong, she expressed remorse for her role in the altercation, and she promised that it would not happen again. Based upon the remorse expressed by Ms. Rodriguez, Mr. Wilder and Ms. Pelemon agreed that Ms. Rodriguez should be suspended for one week rather than be fired. The “write-up” prepared in advance of the meeting was edited to change Ms. Rodriguez’s discipline from termination to “1 week suspension from 3/24/04 to 3/30/04.” Mr. Wilder and Ms. Pelemon met with Petitioner the following day, March 25, 2004, to discuss the altercation. Like Ms. Rodriguez, Petitioner was given an opportunity to tell her side of the story and to explain her actions, but unlike Ms. Rodriguez, Petitioner expressed no remorse for her actions and, according to Mr. Wilder, she was loud and acted aggressively during the meeting. Petitioner and Ms. Pelemon testified that Petitioner did not act aggressively during the meeting but, consistent with Mr. Wilder’s testimony, they acknowledged that Petitioner did speak in a loud voice at the meeting and that she never expressed any remorse for her involvement in the altercation with Ms. Rodriguez. Based upon the lack of remorse expressed by Petitioner regarding her role in the altercation, Mr. Wilder and Ms. Pelemon agreed that the preliminary recommendation of termination should stand for Petitioner, and her employment with Hampton Court was terminated on March 25, 2004. Ms. Pelemon testified that she fully supported the decision to fire Petitioner for her role in the altercation with Ms. Rodriguez and, consistent with Mr. Wilder’s testimony, Ms. Pelemon testified that race played no part in Petitioner’s termination. Ms. Pelemon also testified that she fully supported the decision to suspend Ms. Rodriguez rather than fire her based upon the remorse that she expressed for her role in the altercation. Petitioner started working for Wal-Mart in May 2004, and she is still working there. She is paid $15.10 per hour and she typically works 36 hours per week. Ms. Rodriguez was fired by Hampton Court in August 2004 for poor work performance.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing with prejudice Petitioner’s discrimination claim against Hampton Court. DONE AND ENTERED this 25th day of October, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Kenneth Wilder Heart of Florida Care Inc., d/b/a Hampton Court of Haines City 301 South 10th Street Haines City, Florida 33844 Laurie Ann Johnson 623 Avenue O, Northeast Winter Haven, Florida 33881
The Issue Whether Respondent, Coastal Properties (“Respondent” or “Coastal Properties”), discriminated against Petitioner, Harry (Hal) Hingson (“Petitioner”), based upon his age and race in violation of the Florida Civil Rights Act of 1992, sections 760.01-760.11 and 509.092, Florida Statutes.1/
Findings Of Fact Petitioner is a Caucasian male who was 60 years old in May of 2014, when Respondent allegedly discriminated against him by terminating his employment because of his age. Respondent is a management company for third-party owners of apartment communities, home owners associations, and condominium associations. Respondent employed Petitioner as a maintenance worker at the Twin Oaks apartment complex, a 242-unit apartment complex in Tallahassee, Florida. On May 6, 2014, after work, Petitioner and his supervisor, Clint Creel, were involved in a physical altercation off the job site, while fishing together on a boat. After the boat returned to the dock, Petitioner went inside his home. Rather than securing himself in his residence and calling law enforcement, Petitioner retrieved a gun from his residence, exited his residence, and fired the gun multiple times at Mr. Creel. Mr. Creel was struck in the back of the leg by a bullet and received medical treatment for his gunshot wound. Although he was shot, Mr. Creel returned to work the next day. Petitioner did not return to work the day after the incident as he was seeking medical treatment for the injuries he sustained during the physical altercation. Two days after the shooting, Respondent terminated Petitioner's employment. The decision to terminate Petitioner was made by the Respondent's Vice-President, Ray Allen, in consultation with the President, Dennis Fuller, after Mr. Allen spoke to both Mr. Creel, and Petitioner, about the shooting. Respondent presented the undisputed testimony of Mr. Allen and Mr. Ray that Petitioner's employment was terminated to protect the safety of the other employees and the residents at the Twin Oaks property. Mr. Creel expressed concern about his safety to Mr. Allen if he had to continue working with Petitioner. Mr. Allen and Mr. Fuller also were concerned about the safety of Mr. Creel, as well as the other employees and residents, if Petitioner and Mr. Creel continued to work together. Petitioner's Discrimination Complaint alleges that Petitioner was discriminated against based on race and age. In particular, Petitioner alleges that he was discriminated against because he was terminated after the off-the-job altercation, but his younger supervisor was not. The evidence adduced at the final hearing, however, failed to substantiate Petitioner's claim of discrimination. Other than testifying that he at one time, prior to the incident, was told that he was moving slow and at another time was told he was acting feeble, Petitioner did not present any direct or circumstantial evidence sufficient to reasonably suggest that Respondent discriminated against him in employment because of his age. Even if Petitioner had presented evidence sufficient to establish a prima facie case of age discrimination, Respondent provided a legitimate non- discriminatory reason for terminating Petitioner's employment. Petitioner admitted that Mr. Allen advised him that he was being terminated because he no longer wanted Petitioner and Mr. Creel to work together. Petitioner admitted Mr. Allen told him that he would have continued to employ Petitioner by moving him to another property, but there were no other openings. Respondent’s evidence demonstrated that the day after Petitioner was terminated, of its 59 employees, 25 were over the age of 40, 11 were over the age of 50, and one employee was older than Petitioner. The evidence also showed that 54 days after Petitioner was terminated, of Respondent’s 64 employees, 25 were over the age of 40, 10 were over the age of 50, and one employee was older than Petitioner. Petitioner failed to establish Respondent's reason for terminating his employment was a pretext for age discrimination. Petitioner's Discrimination Complaint further alleges he was discriminated against based on his race because another employee, a younger African-American, was arrested for DUI but was not terminated. Petitioner presented no evidence at the final hearing to substantiate that allegation, and Petitioner failed to present any evidence whatsoever to show that Respondent discriminated against Petitioner because of his race. In sum, Petitioner failed to show that Respondent discriminated against Petitioner by treating him differently, or terminating his employment because of his race or age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 6th day of July, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 2015.
The Issue Whether respondents are guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, including the pleadings and argument of counsel, the following findings of fact are determined: Petitioner, Carolyn E. Simmons, is a black female. In 1990, she began employment as a cook with respondent, Inverness Inn (Inn), an employer allegedly subject to the Florida Human Rights Act, as amended. At that time, the Inn was owned by respondent, Cvetko Blazevski. On March 25, 1992, petitioner filed a charge of discrimination with the Commission on Human Relations (Commission) alleging that she was "harassed and subjected to racial terms by Mr. Cretko (sic) Blazevski, Owner, from the beginning of (her) employment until the present time." For the purpose of ruling on this motion only, the undersigned has accepted this allegation as being true. The charge of discrimination, and the petition for relief subsequently filed, did not specify the relief being sought. In April 1992, Blazevski's ownership in the Inn was terminated by a court, and the Inn later closed and went out of business. Petitioner continued to work in her position as a cook after Blazevski left the Inn and until it closed. According to petitioner's counsel, Simmons seeks only compensatory damages against respondents for their conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order dismissing with prejudice the petition for relief. DONE AND ENTERED this 27th day of October, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1993. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Kenneth S. Stepp, Esquire 305 North Apopka Avenue Inverness, Florida 34450 David L. Wilcox, Esquire 452 Pleasant Grove Road Inverness, Florida 34452
The Issue Whether the Petitioner demonstrated that she was terminated from employment by Respondent as the result of an unlawful employment practice based on her race, or as retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice.
Findings Of Fact Respondent is a provider of health-care services that receives funding from the West Volusia Hospital Authority (WVHA). Respondent operates health clinics in Pierson, DeLand, and Deltona, Florida. Petitioner was employed by Respondent as a Certified Medical Assistant on September 25, 2009. After a period of time in Respondent’s Pierson office, Petitioner was transferred to Respondent’s DeLand office. Petitioner’s duties included those as a referral clerk. In that capacity, Petitioner arranged, scheduled, and coordinated referrals from Respondent’s medical providers to outside physicians and laboratories. Petitioner also performed blood-draws, Pap smears, and related services. Petitioner was frequently behind in her referrals. Petitioner sought assistance with her referrals. Taken in the light most favorable to Petitioner, an employee of Respondent with some apparent supervisory authority denied her requests, and advised other employees that they were not to assist Petitioner in catching up. In October 2010, Petitioner was assigned to Respondent’s newly created Emergency Room Diversion (ERD) program. That assignment caused a change in Petitioner’s shift from the 9:00 a.m. to 5:00 p.m. shift, to the 12:00 p.m. to 8:30 p.m. shift. She was returned to her normal day shift in mid-November. The disruption in her standard shift caused Petitioner to fall further behind in her referrals. To minimize the problem, nurses began to make referrals for their doctors when they had the time. On November 19, 2010, Petitioner called Juanita McNeil, an elected commissioner of the WVHA, to discuss what Petitioner perceived to be sub-standard patient care that, in some cases, related to referrals that were not being timely completed, and for which Petitioner was receiving no assistance. Petitioner asked Ms. McNeil to keep their conversation confidential because she feared that she would be terminated for going outside of the chain of command. Later in the day on November 19, 2010, Petitioner was presented with a separation notice by which she was terminated from employment. The separation notice listed four reasons for her termination. The reasons were “employee not doing job in a timely manner, being rude with patients, being rude with other employees, [and] insubordination (calling the WVHA) instead of talking with appropriate supervisors.” During the hearing, Petitioner admitted that “100% of the reason that I was fired is because of me calling the WVHA.” Upon follow up inquiry, Petitioner reiterated that she was terminated for insubordination in bypassing her supervisors to contact a WVHA commissioner, and that reason formed the basis for her complaint that she had been the subject of discrimination or retaliation. Petitioner knew of no other employee that ever communicated directly with a WVHA commissioner, or that ever escaped disciplinary sanctions for having done so. Thus, there was no comparator upon which to measure whether Petitioner was treated differently under like circumstances as a result of her race. Petitioner’s admission of the basis for her termination is dispositive of this case. Being terminated for insubordination, in the absence of evidence that persons outside of her protected class were treated differently, is not related to Petitioner’s race. Petitioner’s admission demonstrates that her claim is not founded on an unlawful employment practice based on her race, or retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice. Based on Petitioner’s admission, the undersigned concluded that there was no legal basis upon which relief could be ordered under the Florida Civil Rights Act. Thus, the final hearing was adjourned.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 10th day of October, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 10th day of October, 2012.
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, the appropriate relief for such action.
Findings Of Fact For purposes of this case, the Petitioner began his employment with the Respondent in July of 2007. Although the Petitioner had worked for the Respondent in prior years (at another location), he had voluntarily left the company to pursue other opportunities. When the Petitioner returned to employment with the Respondent in connection with this case, it was ten years after a heart transplant. At the time of hiring, the Respondent knew the Petitioner's medical condition and age. The Petitioner is approximately 61 years of age. The Respondent is a national corporation with several sites for engineering and manufacture of its products. The Respondent is an equal opportunity employer and maintains policies prohibiting unlawful discrimination. One of the Respondent's facilities, Sykes Creek, is located in Brevard County, Florida. The Petitioner was hired to work at the Sykes Creek facility in the role of engineering supervisor. The Sykes Creek site builds luxury power yachts ranging from 50–to-60 feet in length. The price of these yachts runs from approximately $900,000 to $2,000,000 each. Typically, the yacht is ordered and customized to the buyer's specification. The Petitioner was responsible for supervising and directing work at Sykes Creek and reported to Kevin Shaw, his immediate supervisor. Mr. Shaw in turn reported to the plant manager, Steven Fielder. The Petitioner reviewed the work and attendance of approximately 21 hourly employees. When the Petitioner was hired (2007), the Sykes Creek facility produced 116 yachts and employed approximately 575 people. Within the Petitioner's department (engineering) there were 26 people; four others like Petitioner were salaried employees. The economic crunch that struck most of the nation drastically reduced the Respondent's business. In 2008 the Respondent instituted unpaid furloughs and layoffs due to the lack of business. By 2009 the economic condition in the industry had not improved. Accordingly, the Respondent had to make additional cuts to its staff. To that end, Mr. Fielder advised Mr. Shaw that the Petitioner's department would have to be cut to reduce the number of hourly employees and one salaried employee. To determine who should be cut, the Respondent looked to the number of years of service with the company and the skill set/education they provided for the facility. The Petitioner had the shortest length of service with the Respondent except for an employee named Julie Halesma. That person was not chosen for lay-off because she was a credentialed industrial engineer. The Petitioner did not have those credentials. The Petitioner was not offered a lower, hourly paid position because he did not have the skill set to perform the work as well as the hourly employees who were already doing the jobs. A number of employees were laid off the same day the Petitioner was dismissed. The Petitioner's job position was eliminated and has not, as of the date of hearing, been restored. The Respondent has continued to lay off workers. In 2009 the Sykes Creek facility was down to 175 employees. The engineering department was down to 15 people. Absent a return to more prosperous times, it is not expected that the facility will be able to rehire employees. The job tasks that the Petitioner performed are now shared by other employees at the facility. Throughout his time at the Sykes Creek facility, the Petitioner was allowed to take time off as needed to attend to medical issues. Based upon the frequency of the medical leave, the Respondent knew or should have known that the Petitioner's medical condition required monthly treatment. The extent of the medical treatment, however, was unknown to the Respondent. As a salaried employee the Petitioner did not have to "punch the clock." The Respondent allowed the Petitioner to complete his work as he might dictate so that he was free to leave the facility to attend to his medical needs. Clearly, the Respondent knew the Petitioner had had the heart transplant at the time of hiring but that medical condition did not impede the Petitioner's ability to perform his job assignments. The medical situation required that he be absent, but there is no indication that Petitioner could not perform his job. The cost of the Petitioner's medical care was unknown to the persons charged with making the lay-off decisions. The cost of the Petitioner's medical care played no part in the decision to eliminate the Petitioner's job. Similarly, the Petitioner's age did not play a part of the Respondent's decision to eliminate the Petitioner's job. The Respondent articulated legitimate business reasons for eliminating the Petitioner's job position. Clearly the Respondent knew of the Petitioner's age at the time of hiring. The Respondent did not replace the Petitioner with a younger employee. The Respondent's explanation for whom it chose to retain in employment was not based upon an employee's age but rather legitimate business interests. Episodes during which the Petitioner required medical attention at the facility did not rise to a level to cause the Respondent to be concerned for Petitioner's medical well-being. Incidents of the Petitioner being light headed or with low blood sugar did not cause the Respondent to seek to eliminate the Petitioner's job position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of March, 2009, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 9th day of March, 2009. COPIES FURNISHED: Rolf J. Bierman 1035 Palmer Road Rockledge, Florida 32955 Brian W. Koji, Esquire Bona M. Kim, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 225 Tampa, Florida 33606 Larry Kranert, 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
