The Issue Whether Respondent Department of Corrections (Respondent or the Department) violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discharging Petitioner Theresa Williams (Petitioner) in retaliation for her participation as a witness during the investigation of an alleged discrimination claim brought by another employee.
Findings Of Fact The Department of Corrections is a state agency as defined in chapter 110, Florida Statutes, and an employer as that term is defined in section 760.02(7), Florida Statutes. At all times material, Petitioner was employed as a nurse at the Department's Lake Correctional Institution (“the Institution”) in Clermont, Florida. She was hired by the Department as a Licensed Practical Nurse effective July 12, 2007. Petitioner was terminated from her position with the Institution in May 2013. At the time of Petitioner's termination, her official title was “Senior Licensed Practical Nurse.” Prior to her termination, the Department provided Petitioner with a letter dated April 16, 2013, advising her of her proposed dismissal and scheduling a meeting (“termination conference”) with the Institution's Warden to discuss the reasons why Petitioner was being considered for termination. The letter was excluded from evidence because it was not timely disclosed as an exhibit by the Department as required in the Order of Prehearing Instructions in this case. Nevertheless, Respondent testified that she attended the termination conference and that, during the termination conference, she was provided, and they discussed, three incident reports against her that she had previously seen. The termination conference was attended by the Institution's Warden, the Assistant Warden, and Dr. Virginia Mesa, the Institution's Chief Health Operator. The incident reports discussed at Petitioner's termination conference included Petitioner's alleged violation on February 8, 2013, of the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) for which Dr. Mesa recommended Petitioner’s dismissal; Petitioner's alleged failure on February 8, 2013, to carry out an assignment to log walking canes provided to inmates; and an alleged argument on February 18, 2013, with a supervisor regarding Petitioner's reassignment to process transferred inmates known as "new gains." There is no indication that the termination conference changed the Department's proposed decision to terminate Petitioner. At the final hearing, Petitioner testified and presented evidence designed to prove that the incidents outlined above did not occur. However, following her termination in 2013, Petitioner timely filed a career service system appeal with the State of Florida, Public Employees Relations Commission (PERC), contesting her termination. Following an evidentiary hearing and a PERC hearing officer's recommended order in that proceeding, PERC entered a final order on November 6, 2013, providing in its pertinent part: The relevant facts found by the hearing officer relate three separate incidents that led to [Theresa] Williams' dismissal. On February 8, 2013, Dr. Virginia Mesa observed Williams showing Captain Reed, who was the security officer-in-charge of the shift, something in a green file. A green file is the type of medical file kept for each inmate. The green file was open in Williams' hand and Reed and Williams were looking into it. Mesa observed Williams flipping through the file with Reed in the public hallway. The Agency's policy and federal law strictly prohibit prison medical personnel from allowing non-medical staff to see inmate medical records. That same day, Debra Elder, who was a senior health services administrator and new manager, asked Williams to record various information about canes that were issued to inmates and to label each cane with an identifying mark. Williams turned to a co- worker and told her to do it. Elder considered Williams' attitude insubordinate and wrote an incident report as soon as she returned to her office. On February 18, Williams was assigned to be the "sick call" nurse when she reported for her shift at 6:45 a.m. However, she was informed that, if the prison received a significant number of "new gains," she would be re-assigned to assist the two nurses doing that work. "New gains" is the Agency's term for the processing of inmates transferred to the institution from another facility. Around 8:00 a.m., Williams' supervisor, Joyce Isagba, arrived at work. Isagba reviewed the assignments and directed a subordinate to assign Williams to new gains that day. Williams believed Isagba, a relatively new supervisor, had a pattern of changing her assignment from sick call nurse to new gains and did not like it. Williams approached Isagba and questioned why she was being reassigned. Williams and Isagba became loud and argumentative. Other nurses were present in the room. The conversation lasted some time and Williams repeatedly stated that the change of her assignment was unfair and repeatedly wanted to know why she was being reassigned. Isagba told her she was more qualified to do that work and that she did not have to give her reason for her decisions. The dispute lasted several minutes and Williams reluctantly assisted with new gains. Later that day, Williams was sent to sick call to finish that duty. Isagba considered Williams to have been insubordinate and wrote an incident report. Based on these factual findings, the hearing officer concluded that the Agency had grounds to discipline Williams for poor performance, violating the Agency's medical information privacy, and insubordination in violation of Florida Administrative Code Rule 60L-36.005. He recommended that [PERC] adopt his recommended order and dismiss Williams' appeal. * * * Upon review of the complete record, including the transcript, we conclude that all of the hearing officer's facts are supported by competent substantial evidence received in a proceeding that satisfied the essential requirements of law. Therefore, we adopt the hearing officer's findings. § 120.57(1)(l), Fla. Stat. Furthermore, we agree with the hearing officer's legal analysis of the disputed legal issues, his conclusions of law, and his recommendation. Accordingly, the hearing officer's recommendation is incorporated herein and Williams' appeal is DISMISSED. The hearing officer's Recommendation and PERC's Final Order in the PERC Proceeding, Williams v. DOC, 28 FCSR 284 (2013), were submitted by both parties and received into evidence without objection in this case as Exhibits P-4 and P-5, respectively, and Exhibits R-B and R-C, respectively. The PERC Proceeding involved the same parties as in this case and the allegations in the incident reports discussed at Petitioner's termination conference were actually litigated and determined in the PERC Proceeding. In other words, whether the incidents outlined in those incident reports occurred and are sufficient to support the Department's decision to terminate Petitioner's employment has already been determined.2/ Moreover, Petitioner failed to show, in this case, that the incidents did not occur. Although Petitioner testified that she did not show Captain Reed the inmate's medical chart in violation of HIPAA and introduced Captain Reed's written statement stating that Petitioner did not show him the chart, the evidence adduced at the final hearing showed that when she met with Captain Reed during the incident, she was flipping through papers with the medical chart in her hand. As found in the PERC hearing officer's Recommended Order: Williams violated the Agency's privacy policy when she held an open inmate medical file so a security staff officer could see the inmate's writing and signature. This was not a reasonable procedure to accomplish the task of notifying the officer of a potential security threat to other inmates. There was a real possibility that the sick call slip had been forged. It was unnecessary to show Captain Reed an inmate's medical file to determine if the slip was forged. Williams could have done that herself with the same accuracy as Reed, since neither is a handwriting expert. Williams v. DOC, 28 FCSR 284 (Recommended Order, 08/26/13). Dr. Mesa's testimony in this case was consistent with the hearing officer's finding and is credited. Regarding the other two incident reports, while Petitioner denied asking another to perform her assigned task of logging inmates' canes, she admitted that she delayed performing the task. Petitioner also admitted that she questioned her supervisor, Ms. Insagba, as to why she was being assigned "new gains," that during the incident Ms. Insagba raised her voice, and that they "were both talking at the same time and I guess she was trying to get a point across and I was just trying to ask her why." In addition to the incidents addressed in the three incident reports, during cross examination in this case, Petitioner revealed that she was also disciplined twice in 2012. In August 2012, Petitioner received a record of counseling for insubordination. And in December 2012, Petitioner received a written reprimand for failure to follow instructions. In sum, the record supports a finding that, by May 2013, the Department had cause to terminate Petitioner. Although it has been determined that the Department had cause to terminate Petitioner's employment at the Institution, in this case Petitioner asserts that the real reason for her dismissal was her participation as a witness in a discrimination charge brought by another employee against the Department and Dr. Mesa. The disciplinary incidents supporting Petitioner's dismissal occurred in February 2013, and before. The investigation in which Petitioner participated began in March of 2013 and Petitioner provided testimony in that investigation on April 23, 2013, after Dr. Mesa had already recommended Petitioner’s dismissal and after Petitioner had been notified by the Department that she was being considered for dismissal. Petitioner was dismissed in May 2013. In finding probable cause, the Commission stated in its summary of the Investigative Memorandum: Complainant did not demonstrate that she was harassed or disciplined because of participation in the internal investigation. Complainant provided no evidence of harassment, and she was not disciplined after her protected activity occurred. Respondent admitted that Complainant was disciplined for the alleged HIPAA violation, but this occurred prior to her protected activity. Based on the information received during the investigation, it does appear that Complainant was terminated in retaliation for her participation in the internal investigation. If the alleged HIPAA violation was a true terminable offense, Complainant should have been terminated in February of 2013 when it occurred. Instead, Respondent waited nearly three months to terminate her, which was about three weeks after her protected activity. Additionally, Respondent has a progressive disciplinary policy which it did not follow. The alleged HIPAA violation is Complainant's only documented incident. Respondent also claimed that Complainant was terminated after she was disciplined several times prior to the HIPAA event, yet it could provide no evidence that she had a disciplinary record prior to February of 2013. Unlike the limited information available to the Commission in its probable cause determination, the evidence in the de novo proceeding conducted in this case demonstrated that Petitioner had a number of disciplinary offenses in February that were found by PERC to support her dismissal, and that Petitioner had been written up for two other disciplinary infractions in 2012. Moreover, the showing necessary for a probable cause determination is less than Petitioner's burden to prove discrimination. While there was a delay in Petitioner's termination, the evidence showed that Dr. Mesa recommended Petitioner for dismissal when she wrote up the incident report for the HIPAA violation in February 2013. Although it is evident that management, including the Warden and Dr. Mesa, was generally aware that Petitioner had participated as a witness in another employee's discrimination claim in April of 2013, Petitioner did not show that she was terminated because of that participation. And, while the Department's delay in dismissing Petitioner remained unexplained at the final hearing,3/ that delay, in light of the other facts and circumstances of this case, including Petitioner's numerous disciplinary infractions outlined above, is an insufficient basis to support a finding that Petitioner was terminated in retaliation for her participation in a protected activity.
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 Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 30th day of June, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSotoBuilding 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2015.
The Issue The issue to be resolved in this matter is whether the Petitioner was terminated from employment with the Respondent because of her race.
Findings Of Fact Petitioner is a black female and is a member of a protected class. Respondent employed Petitioner at the time of the alleged discrimination. Petitioner was employed by Respondent for approximately three and a half months, from her date of hire on December 17, 1994, through her date of termination on March 30, 1995. She was fired for insubordination. Petitioner was employed by Respondent as a Certified Nursing Assistant (CNA). Her responsibilities as a CNA included taking care of patients and cleaning the facility. Her direct supervisor was Barbara Jean Gossett. Petitioner claims she was fired because of her race, alleging disparate treatment. To support this allegation, Petitioner cited an example of a white female who was having problems with her baby, whom Petitioner testified was sick, and that the white employee would come in for work when she was ready. Petitioner alleges the employee often reported late for work. Petitioner does not know the name of the employee, does not know who the white female talked to about reporting to work, and was not involved in any decision about whether the white female could or could not report late as a result of her child's ailments. Petitioner presented no other evidence or documents to support this allegation. Petitioner, when asked for any other basis for her claim of discrimination, cited an example of a woman who she claims never did what she was required to do, although she said the woman was in charge. Petitioner presented no other evidence or documents to support this allegation. Petitioner also alleges she was fired because of her race based on the way her supervisor, Barbara Jean Gossett, acted toward her. Petitioner also cited the varying way her supervisor verbalized instructions to the black and white staff. During examination by Respondent's counsel, Petitioner acknowledged receipt of Respondent's employee handbook on her first day of employment. She acknowledged that the purpose of the handbook is to notify employees of the rules and expectations and also to provide notice of behaviors that would lead to discipline or termination. She admitted that, based on the handbook, she knew what kind of behaviors were appropriate and what were considered inappropriate. She admitted that in the setting of a nursing home, punctuality was important. Petitioner admitted that there was a progressive disciplinary schedule in place for tardiness. She further admitted that under the schedule in place during her employment, an employee who was late seven or more times in a 90-day period would be fired. The supervisor, whom Petitioner claims was racist, however, did not fire Petitioner as the policy permitted. In fact, that same supervisor recommended a discretionary merit increase for Petitioner. Petitioner's performance evaluations show that as of March 14, 1995-approximately three months into her employment- she had been tardy nine times, absent three times, and had a performance rating below standard, which was the lowest rating permitted by the evaluation form. On March 29, 1995, Petitioner refused to clean an assigned work area during her shift. The employee handbook Petitioner received lists refusing a job assignment as number one on the list of behaviors that can lead to immediate termination and for which there is no progressive disciplinary schedule (as there is for tardiness and certain other offenses). As noted, Petitioner was fired for this incident. Finally, Petitioner admitted that she signed her Charge of Discrimination on June 18, 1996, and that it was filed June 20, 1996.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 11th day of October, 2001, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 2001. COPIES FURNISHED: Joann Annichianrico Tandem Healthcare, Inc. Cherrington Corporate Center 200 Corporate Center Drive, Suite 360 Moon Township, Pennsylvania 15108 Josephine Hayes Davis Route 4, Box 4699-M Monticello, Florida 32344 James Garrity, Esquire McConnaughay, Duffy, Coonrod, Pope & Weaver, P.A. 101 North Monroe Street Post Office Drawer 229 Tallahassee, Florida 32302-0229 Azizi M. Dixon, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The central issue in this case is whether the Respondent denied Petitioner employment opportunities in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Petitioner was employed by the Respondent as a part-time employee on or about March 10, 1981. At the time of her employment Petitioner executed a statement acknowledging that the Respondent did not guarantee weeks or hours of employment and that her employment was dependent, in part, upon the demands of the business. Petitioner's job title throughout her employment with Respondent was "warehouse worker." At all times material to this case, Petitioner was assigned to the Orlando distributing center that serves as a warehouse for items shipped to and for Respondent's retail system. During her employment with Respondent, Petitioner received acceptable work evaluations but was not elevated to full-time employment status when job openings occurred. For the first year of her employment, Respondent utilized an employee review form which rated Petitioner on a scale of 1 to 7; the lower number indicated unsatisfactory, the higher number indicated distinguished performance. For that review period, Petitioner received all 4s on her review. The 4 rating evidenced that Petitioner's performance had been consistently good and had met the requirements of the job to which she was assigned. For the review period ending April 1, 1985, the Petitioner received four 4s and one 3. The 3 rating was in the category "working relations" and found her performance to be fair. The 3 rating indicated that for the period reviewed Petitioner's performance was generally satisfactory, but sometimes fell below an acceptable level. Later in 1985, the Petitioner filed an EEOC complaint against the Respondent and alleged that the company had treated her unfairly on account of her sex. Petitioner did not prevail on that complaint. The Petitioner's employee performance review issued on June 10, 1986, the next evaluation after her EEOC complaint, evaluated her performance at all 3s with one 4 in the category of job knowledge. Petitioner did not challenge this review and did not, at that time, allege that the less favorable review had been issued by the company in retaliation for the EEOC complaint. Subsequent to the 1986 review, Respondent's evaluation form was amended to compute an employee's performance on a scale of 1 to 5 with 1 being the unacceptable end of the scale and 5 indicating distinguished performance. For the review period ending April 12, 1988, Petitioner received all 3s which established that her overall performance again met the employer's expectations. Throughout her tenure with the Respondent, Petitioner sought to increase her work hours. Petitioner complained to the company that work assignments were given unfairly. In June, 1987, Mr. Maupin, manager of the center, issued a notice regarding a change in the scheduling practices for part- time employees. That notice advised employees that the length of service with the company would no longer be the determining factor in assigning part-time hours. The notice provided: "Other factors such as performance, availability when needed and work experience (such as driving skills) will also be considered when determining who will be scheduled." Petitioner continued to be scheduled for work and, in 1988, received the second highest number of hours worked for the center's part-time employees. Petitioner did not receive full-time employment with the Respondent. Two employees who had not worked in the warehouse as long as Petitioner were placed in full-time positions. Petitioner did not offer evidence as to the qualifications of those individuals to perform the work requested of them. The employment history of the individuals chosen by the employer, together with the training, skills and aptitudes of such individuals are all unknown. Petitioner's assertion that she had performed the work in the past and, therefore, was the better qualified to receive the full-time job has not been deemed credible or, in itself, sufficient to prove affirmatively that others chosen by the employer were less worthy of the jobs for which they were selected. To the contrary, the Respondent posted full-time job openings and allowed interested parties to apply for same and be reviewed for employment based upon individual merit.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petitioner's claim against this Respondent as Petitioner has failed to establish that the employer discriminated against her in retaliation for a prior assertion of discrimination. RECOMMENDED this 13th day of August, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5133 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 3 are accepted. Paragraph 4 is rejected as contrary to the weight of credible evidence or irrelevant. Paragraph 5 is rejected as irrelevant the petition filed in this cause does not allege Petitioner was unfairly disciplined. Paragraph 6 is accepted. The first sentence of paragraph 7 is accepted. The balance of the paragraph is rejected as argument, hearsay not corroborated by direct evidence, or contrary to the weight of credible evidence. Paragraph 8 is rejected as irrelevant; it is undisputed that Petitioner perceived a bias against her, the evidence in this case does not, however, establish that such bias did exist. An employer's assessment that an employee has a poor attitude does not, of itself, lead to the conclusion that employer will, consequently, unlawfully discriminate against that employee. The first sentence of paragraph 9 is accepted. The balance of the paragraph is rejected as hearsay unsupported by direct evidence presented in this case or unsupported by the weight of credible evidence. Paragraph 10 is rejected as unsupported by direct evidence presented in this case. Paragraph 11 is rejected as contrary to the weight of the credible evidence. Paragraph 12 is rejected as contrary to the weight of the credible evidence. Paragraph 13 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 14 is accepted. Paragraph 15 is rejected as contrary to the weight of the credible evidence. Paragraph 16 is rejected as speculative, not supported by the evidence in this case. Paragraph 17 is accepted. Paragraph 18 is accepted. Paragraph 19 is accepted to the extent that the record reflects Petitioner retained an attorney to represent her; otherwise rejected as irrelevant or not supported by the record. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 9 are accepted. With regard to paragraph 10, it is accepted that all of Petitioner's annual evaluations rated her work as acceptable. Paragraph 11 is rejected as inaccurate or contrary to the weight of the evidence. While Petitioner's reviews remained substantially the same, the forms and evaluation system did change. Important was that Petitioner's work was always deemed acceptable. With regard to paragraph 12, it is accepted that Petitioner worked forty days within the period described. Otherwise rejected as not supported by the record in this case. Paragraph 13 is accepted. Paragraph 14 is accepted but incompletely refers only to the delivery job; Petitioner had expressed an interest in two other jobs available. Paragraph 15 is rejected as contrary to the weight of the credible evidence or an incomplete statement of fact. Petitioner did seek full-time employment with the Respondent. COPIES FURNISHED: Heather Morcroft 2431 Aloma Avenue Suite 285 Winter Park, Florida 32791 William E. Curphey Parker, Johnson, McGuire & Michaud 1300 Barnett Plaza 201 South Orange Avenue Orlando, Florida 32801 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Ronald M. McElrath Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
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 discriminated against Petitioner on the basis of her race, subjected Petitioner to a hostile work environment, or retaliated against Petitioner in violation of the Hillsborough County Human Rights Ordinance 00-37, Section 4(1)(a)(1).
Findings Of Fact Petitioner is an aggrieved person within the meaning of Hillsborough County Human Rights Ordinance 00-37, Section 16. Petitioner is an African-American female and filed a complaint with the Board alleging that Respondent engaged in race, color, and gender discrimination; retaliation; and the creation of a hostile work environment. Respondent is an employer within the meaning of Section 16. Respondent operates a car dealership and is in the business of selling and servicing new and used automobiles and trucks in several states, including Florida. Respondent was not Petitioner's employer. Petitioner was a temporary worker during the relevant period, and her employment contract was with an employment agency. No written employment contract existed between the parties to this proceeding. The employment agency paid Petitioner, and Respondent paid the employment agency. The employment agency assigned Petitioner to Respondent from January 13 through January 23, 2004. Other than Petitioner’s uncorroborated testimony, there is no written or other evidence that Respondent intended Petitioner’s temporary assignment either to become a permanent position or to last for six weeks. The fact-finder finds the testimony of Petitioner to be less than credible and persuasive. From January 13 until January 21, 2004, Petitioner worked at Respondent's Tampa office at Lexus of Tampa Bay located on North Dale Mabry Avenue, Tampa, Florida. Respondent transferred Petitioner to its office at Lexus of Clearwater, Florida, on January 21, 2004, and terminated the assignment from the employment agency on January 23, 2004. The termination of assignment occurred in Pinellas County, rather than Hillsborough County, Florida. Petitioner began her assignment at Lexus of Tampa Bay on January 13, 2004, as a receptionist. Respondent paired Petitioner with Ms. Mary Ann Browne, a full-time receptionist and Caucasian female. Respondent charged Ms. Browne with training Petitioner in the responsibilities of a receptionist. Petitioner alleges that Ms. Browne engaged in unprofessional conduct during the 10 days she trained Petitioner. The unprofessional conduct, according to Petitioner's testimony included "racial undertones." For example, Ms. Browne asked Petitioner why, "Black people are all family, cousins, sisters, brothers." Petitioner responded, "Don't ask me. I wouldn't be that black." Ms. Browne allegedly stated aloud that two female employees who hugged in greeting each other were lesbians. Ms. Browne allegedly called another African-American employee a "pimp" and referred to an Hispanic employee as a "macdaddy." The fact-finder does not know the meaning of the term "macdaddy," or even how to spell the term, and the record does not provide an adequate definition or spelling. Ms. Browne allegedly referred to homosexual customers as "flamers." Finally, Ms. Browne allegedly engaged in threatening physical behavior by tossing items at Petitioner across the reception desk. No one but Petitioner heard the alleged racial and sexist comments by Ms. Browne or witnessed the physically aggressive behavior. The preponderance of evidence does not establish a prima facie showing of discrimination or retaliation. Nor does the preponderance of evidence show that Respondent subjected Petitioner to a hostile work environment. Finally, a preponderance of the evidence does not show that Respondent engaged in a discriminatory practice. The evidence of Ms. Browne's conduct consists of Petitioner's testimony and a diary that Petitioner created contemporaneously with the acts Petitioner attributes to Ms. Browne. No other employees at Lexus of Tampa Bay witnessed the events evidenced in Petitioner's testimony and diary. Ms. Browne left her employment with Respondent in the fall of 2004 and did not testify. Ms. Toni Davis, now Ms. Toni Scotland, was a receptionist during part of the relevant time but was not present during the entire time because she was being promoted to a position in accounting. Ms. Scotland did not recall any improper behavior by Ms. Browne in 2004. The Investigative Report based its recommendation of a finding of cause on statements attributed in the Report to then Ms. Davis and the documentation of the disciplinary action taken by Respondent against Ms. Browne. However, Ms. Scotland testified that she did not recall being contacted by an investigator for the Board and denied making any statements to the investigator. The investigation took approximately 3.5 years to complete because the investigator is the only investigator for the Board and because the investigator suffered a heart attack during the investigation. At the hearing, the testimony of the investigator concerning statements he attributed to Ms. Scotland, also Ms. Davis, was vague and sparse and is less than credible and persuasive. A preponderance of the evidence does not show that Respondent is responsible for the acts Petitioner attributes to Ms. Browne. Petitioner complained to her employment agency about the conduct of Ms. Browne. The employment agency notified Respondent, and Ms. Helene Ott, the supervisor at the time, interviewed both Petitioner and Ms. Browne on January 19, 2004. The only complaint made by Petitioner to Ms. Ott on January 19, 2004, was that Ms. Browne went to the break room to bring back a drink in separate disposable drink cups for Ms. Browne and Petitioner. Upon returning with the drinks, Ms. Browne told Petitioner that Ms. Browne had spit in Petitioner's cup. Petitioner did not tell Ms. Ott that Petitioner witnessed Ms. Browne spit in the cup. Petitioner's version of events changed at the hearing. Petitioner testified that she saw Ms. Browne spit in Petitioner's cup. Petitioner testified that Ms. Browne offered to refill the cup Petitioner already had on the receptionist desk, grabbed the cup, stood, drew up a large volume of spit from deep in Ms. Browne's throat, and let the long volume of liquid drop into Petitioner's cup in full view of Petitioner. Petitioner further testified in tears that she stated repeatedly to Ms. Browne, "Give me back my cup!" The foregoing testimony of Petitioner is less than credible and persuasive. The fact-finder is not persuaded that any reasonable person would have wanted Ms. Browne to return the cup. The cup was a disposable cup from the vending area which was of no value to Petitioner. Petitioner did not relate this version of the events to Ms. Ott when Ms. Ott investigated Petitioner's complaints on January 19, 2004. The version of events that Petitioner related to Ms. Ott on January 19, 2004, is consistent with the contemporaneous account by Mr. Browne. When Ms. Ott interviewed Ms. Browne on January 19, 2004, Ms. Browne admitted that she told Petitioner she had spit in Petitioner's cup when Ms. Browne returned from the vending area to the reception desk with Petitioner's drink. Ms. Browne also admitted to engaging in offensive language, offensive commentary about customers, and unprofessional conduct. A preponderance of evidence does not show that Respondent created or fostered a work environment that was hostile toward Petitioner. On January 19, 2004, Ms. Ott issued a written counseling/final warning to Ms. Browne for her use of “offensive language, offensive commentary about customers, and unprofessional conduct.” The disciplinary action advised Ms. Browne that any further misconduct would result in the termination of her employment. On January 20, 2004, Ms. Ott interviewed Petitioner again concerning additional complaints from the employment agency. Petitioner told Ms. Ott that Ms. Browne used vulgar and unprofessional language, but Petitioner did not state to Ms. Ott that Ms. Browne made racial or sexist comments. On January 21, 2004, Ms. Ott needed to fill another temporary vacancy at Lexus of Clearwater. Ms. Ott asked Petitioner to go to Clearwater, and Petitioner went to the Clearwater office voluntarily. Respondent ended the employment agency assignment on January 23, 2004. Ms. Ott described Petitioner’s performance as “very good." On January 23, 2004, Ms. Ott offered to write a letter of reference for Petitioner. Ms. Ott told Petitioner that Ms. Ott would consider Petitioner for a position at Lexus of Tampa Bay or Lexus of Clearwater if the need arose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the final order issued in this proceeding should find that Respondent is not guilty of the allegations made by Petitioner. DONE AND ENTERED this 7th day of August, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 7th day of August, 2008. COPIES FURNISHED: Leslie P. Stokes 4714 Pleasant Avenue Palm Harbor, Florida 34683 Gail P. Williams Hillsborough County Post Office Box 1110 Tampa, Florida 33601-1110 Andrew Froman, Esquire Alva L. Cross, Esquire Fisher & Phillips LLP 401 East Jackson Street, Suite 2525 Tampa, Florida 33602
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 The issue for determination is whether Pamela Guenther (Petitioner) was subjected to employment discrimination by Douglas C. Hall, M.D., P.A., (Respondent), due to Petitioner's age in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner was born April 7, 1955. Respondent is a medical doctor who practices in Ocala. In January 2006, Respondent hired Petitioner part-time as the bookkeeper for Progressive Genomics, Inc. (PGI), a nutrition research company operated by Respondent in conjunction with his medical practice. PGI and Respondent’s medical practice in obstetrics and gynecology shared both facility and staff. Respondent was beset with financial trouble resulting from insufficient bank funds and an Internal Revenue Service (IRS) audit. In April 2006, Respondent sold the building housing his medical practice and PGI. He simultaneously closed PGI and relocated his medical practice to another location with a specialty in cosmetic medicine. At the same time that Respondent closed PGI, he discharged all older female employees, with exception of those necessary to operation of his medical practice. Respondent then hired new personnel, all under age 50 to replace the terminated employees. Petitioner was also elevated from her part-time position to full-time by Respondent as Respondent’s office manager, giving her a power of attorney to use in her execution of responsibility over business matters related to his practice. This unique exception (hiring of Petitioner) to Respondent’s hiring practice of only hiring employees under age 50 was due to influence of Petitioner’s daughter, who also worked for Respondent. Respondent required Petitioner, over Petitioner’s objection, to work from her home, requiring her to work under different and less favorable terms and conditions of employment than the other employees. Additionally, the separation from co- workers made Petitioner’s job more difficult. Isolating Petitioner from her coworkers was intentional on the part of Respondent due to Petitioner’s relatively greater age in comparison to the other workers. Petitioner and Respondent had other disagreements in the course of her employment as Respondent’s office manager. Respondent directed Petitioner to write checks with insufficient funds to pay them. Respondent also directed Petitioner to ignore IRS notices and write paychecks to staff without time cards or other verification of hours worked. Relying on what appeared to be the offer of permanent employment by Respondent in April 2006, Petitioner sold her bookkeeping business and, along with her partner, sold a coffee shop business at the time she accepted Respondent’s offer and went to work for him as his office manager. Respondent was the employer of more than 15 people, and therefore was not exempt from requirements of the Florida Civil Rights Act of 1992. Respondent provided all of his employees with diet pills to improve their appearance through prescriptions for the drug “Adipec.” According to Petitioner, who was given one of these prescriptions, Respondent sought “a certain age, a certain weight, and a certain look” in his employees. At one time Respondent had a picture of Respondent, surrounded by youthful female employees, placed on a billboard to promote his medical practice. On June 20, 2006, Respondent told Petitioner in a telephone conversation that her “services were no longer needed.” A female individual, Laurie Johnson, who is 33 years old, replaced her. Petitioner seeks to be awarded back pay for her last paycheck of $1,240 on which Respondent stopped payment, plus a year’s wages in the amount of $26,000 at a rate of $500 per week for 52 weeks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered directing that Respondent cease the unlawful discriminatory practice of employment on the basis of age, and awarding Petitioner awarded back pay for her last paycheck of $1,240, plus a year’s wages in the amount of $26,000; and that all amounts be paid to Petitioner within 90 days of entry of a final order. DONE AND ENTERED this 29th day of June, 2007, 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 29th day of June, 2007. 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 Pamela Guenther 801 Northwest 75th Terrace Ocala, Florida 34482 Laurie Johnson Douglas C. Hall, M.D., P.A. 2801 Southeast 1st Avenue Ocala, Florida 34471
The Issue Whether Piper Aircraft, Inc. (Respondent), terminated Timothy Brooks (Petitioner) from his employment in retaliation for his complaints about the company’s treatment of Peggy Sue Pitts, a female employee who claimed sexual harassment. And, if so, whether Petitioner’s behavior was protected by law.
Findings Of Fact Petitioner is a male former employee of Respondent. His tenure with the company spanned several years. The quality of Petitioner’s work (that is, his production quality and volume) was deemed acceptable and was not the basis for discipline. Respondent laid Petitioner off in 2010 due to economic hardships of the company but rehired him in May of 2011. Thereafter, Petitioner worked continuously for Respondent until his termination in January of 2015. Respondent is a manufacturing company that employs 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year applicable to this case. Consequently, Respondent is an “employer” as defined by section 760.02, Florida Statutes (2015), during the time frame applicable to this case. Petitioner and another of Respondent’s employees, Peggy Sue Pitts, were close friends. As such, Petitioner became increasingly concerned regarding the treatment Ms. Pitts received in the work place. Petitioner believed Ms. Pitts was the victim of inappropriate conduct and that Respondent failed to take appropriate measures to protect Ms. Pitts from harassment and inequitable treatment. Additionally, over the course of his employment with Respondent, Petitioner became concerned that employees were not treated equally in terms of compensation for the work being performed. His informal assessment led to the opinion that Ms. Pitts and others were paid less for doing the same work that others were paid more for completing. On more than one occasion Petitioner voiced his thoughts regarding the workplace inequities to management. Eventually, Petitioner’s conduct in attempting to intercede on behalf of Ms. Pitts and others led to a verbal warning documented by a Performance/Behavior Improvement Notice that notified Petitioner he was inappropriately involving himself in the personal issues of his co-workers to the detriment of the workplace. Essentially, Respondent wanted Petitioner to mind his own business. The warning noted above was issued on March 10, 2014. At the time of the warning noted above, Petitioner was directed to contact Respondent’s Human Resources Office if he felt that the company needed to be made aware of a concern. Respondent did not want Petitioner raising issues with co-workers to stir up matters that should be addressed elsewhere. Petitioner refused to sign the warning notice. Petitioner continued to discuss the perceived inequities with co-workers. On July 10, 2014, Respondent issued a written warning, Performance/Behavior Improvement Notice, which cited similar matters as before. Petitioner was warned that it was his “last chance” to stop meddling in the business matters of others. Further, Petitioner was transferred to another department within the company. In response to the second reprimand, Petitioner met with James Funk, Respondent’s chief operating officer, and expressed his concern that he had been unfairly treated. Mr. Funk advised Petitioner to take his issue to the company’s Peer Review Committee. The Peer Review Committee had the authority to review employee disciplinary actions up to and including termination. Moreover, if the committee determined that Petitioner had been unfairly treated, its finding and recommendation to the Respondent would be accepted. In this case, however, the Peer Review Committee did not find the reprimand to be inappropriate. The “last chance” warning became the final disciplinary ruling on the matter. Over the course of the next four or five months Ms. Pitts, who was by now Petitioner’s girlfriend or fiancé, continued to be frustrated by her perception of the treatment she received in the workplace. On the morning of January 8, 2015, Ms. Pitts decided to resign from her employment with Respondent. Ms. Pitts asked Petitioner to turn in her employee badge and stamp for her. On the afternoon of January 8, 2015, Petitioner went to the executive offices to talk to Mr. Funk regarding Ms. Pitts’ resignation. Kathy Flynn, Mr. Funk’s executive assistant, assisted Petitioner and gave him Mr. Funk’s email address. During the course of his exchange with Ms. Flynn, Petitioner expressed his displeasure with Jimmy Barnett and Tim Smith, whom he blamed for the perceived treatment Ms. Pitts had endured. In discussing the matter, Petitioner expressed his anger and desire to “beat the shit out of someone.” Petitioner called Mr. Barnett and Mr. Smith “pieces of shit.” Ms. Flynn memorialized the comments later that afternoon. Next, Petitioner went to Mr. Barnett’s office and turned in Ms. Pitts’ badge and stamp and told Mr. Barnett that Ms. Pitts was quitting. Petitioner told Mr. Barnett that he was so angry he could throw him (Mr. Barnett) out the window. In response, Mr. Barnett called Mr. Smith and asked for a meeting with Petitioner. Mr. Barnett and Petitioner joined Mr. Smith in Smith’s office. When offered a seat, Petitioner declined and stated he was too upset. Mr. Barnett asked Petitioner to confirm his previous comments and he did. Petitioner confirmed that he was upset to the point of throwing Mr. Barnett out the window. Given Petitioner’s agitated state and verbal threats, Mr. Barnett and Mr. Smith wrote notes to Mr. Funk recommending that Respondent issue a suspension and written warning to Petitioner. Instead, Mr. Funk determined that Petitioner’s conduct violated his “last chance” warning. Taken in totality, Petitioner’s comments to Ms. Flynn and his comments to Mr. Barnett and to Mr. Smith evidenced to Mr. Funk that Petitioner should be removed from the workplace. To that end, Mr. Funk authorized a Notice of Employment Termination on January 12, 2015, and Respondent officially ended Petitioner’s employment with the company on that date. Petitioner refused to sign the notice. Petitioner timely filed a charge of discrimination with the FCHR regarding his termination and asserted he had been terminated in retaliation for his complaints regarding the company’s sex discrimination against another employee (Ms. Pitts). On May 20, 2016, FCHR issued its determination of no reasonable cause. After Petitioner timely filed a petition challenging that decision, the matter was forwarded to the Division of Administrative Hearings for a disputed-fact hearing.
Recommendation Based upon 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 6th day of January, 2017, 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 6th day of January, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Adrienne E. Trent, Esquire Adrienne E. Trent, P.A. 836 Executive Lane, Suite 120 Rockledge, Florida 32955 (eServed) Ashley M. Schachter, Esquire Baker & Hostetler, LLP Suite 2300 200 South Orange Avenue Orlando, Florida 32801 (eServed) Patrick M. Muldowney, Esquire Baker & Hostetler LLP Post Office Box 112 Orlando, Florida 32802 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent committed one or more unlawful employment practices against Petitioner as alleged in the subject Petition for Relief.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was an employee of Respondent with permanent status in the state career service system. Petitioner began his employment with Respondent on February 26, 2001, and was assigned to the Lake Worth area until his employment was terminated on January 30, 2009. During his tenure with Respondent, Petitioner worked as a K-9 officer as the handler of a dog trained to detect drugs. Petitioner was frequently involved with high-risk traffic stops. Petitioner received a “meets standards rating” on his most recent performance evaluation. Prior to the events that led up to this proceeding, Petitioner had no history of being disciplined by Respondent. Dr. Richard Marques specializes in internal medicine and treats a broad spectrum of medical issues including endocrine problems. He has been Petitioner’s physician for eight years. Prior to September 2003, Petitioner began to experience fatigue, irritability, and low energy. Petitioner testified that he slept up to 16 hours some days. During that time, and at all times relevant to this proceeding, Petitioner was working his assigned duties. Those duties included a 40-hour shift plus occasional overtime, primarily on weekends. At the request of Dr. Marques, on September 12, 2003, Petitioner presented for blood work at LabCorp, an independent, reputable, testing lab. From the results of the testing, Dr. Marques determined that Petitioner suffered from low testosterone levels or a condition known as hypogonadism. Dr. Marques recommended that Petitioner seek treatment for his testosterone deficiency from a physician or facility specializing in problems of the endocrine system. Dr. Marques did not recommend a particular physician or facility to Petitioner. Instead, Dr. Marques left that decision to Petitioner. Dr. Marques contemplated at the time of his recommendation that Petitioner would be examined in a hospital or other medical facility by a doctor specializing in the endocrine system. Dr. Marques testified that there are two types of hypogonadism, with one type originating from the adrenal gland and the other originating from the pituitary gland. Testing of the type an endocrinologist would do in a testing facility such as a hospital is required to determine the source of the testosterone secretion. Dr. Marques referred Petitioner for further evaluation because he does not do the type of testing that an endocrinologist does. After reading an advertisement in a magazine for a facility named PowerMedica in January 2004, Petitioner sought treatment from that facility. After reviewing PowerMedica’s website, Petitioner concluded that it was a licensed medical facility and submitted a form medical history. In response to his submittal, someone purporting to be from PowerMedica instructed Petitioner to submit a blood sample for analysis by LabCorp. Petitioner complied with that request. Thereafter, Petitioner received a telephone call from someone at PowerMedica who purported to be a doctor. Following that telephone conversation, Petitioner received at his home via Federal Express a shipment that contained testosterone, which is an anabolic steroid. An anabolic steroid is, pursuant to the provisions of Section 893.03(3)(d), a Schedule III controlled substance. Section 893.13(6)(a), Florida Statutes, provides as follows: (6)(a) It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. Any person who violates this provision commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. At no time relevant to this proceeding did Petitioner enter the building that housed PowerMedica, nor was he physically examined by anyone associated by PowerMedica. Petitioner followed up with Dr. Marques while Petitioner was taking the anabolic steroids. Dr. Marques considered Petitioner’s treatment to be appropriate. Dr. Marques saw no signs that Petitioner was abusing the anabolic steroids, and noted that Petitioner’s condition improved. Petitioner stopped receiving anabolic steroids from PowerMedica in October 2004. Dr. Marques wrote a note on September 22, 2003, reflecting, in relevant part, the following: “. . . given the severity of his high viral titer,4 I have asked him to change his night shift duty to day time.” After Petitioner requested that he be reassigned to day-time duty and presented that note to his superiors, Respondent reassigned Petitioner to day duty. At all times relevant to this proceeding, Petitioner was able to perform his job duties. Other than the request for a change from the night shift to the day shift, Petitioner did not tell Respondent that he was having difficulties performing his duties. At no time prior to his interview on July 10, 2008, which will be discussed below, did Petitioner tell Respondent that he was taking anabolic steroids, that he suffered from low testosterone levels, or that he suffered from hypogonadism. At no time did Petitioner request that he be evaluated to determine whether he was fit for duty. In early 2005, it became public knowledge in south Florida that the U.S. Food and Drug Administration (USFDA), working in conjunction with the Broward County Sheriff’s Office (BCSO), was investigating PowerMedica based on allegations that it had unlawfully sold steroids and Human Growth Hormones. As part of its investigation, the USFDA seized records pertaining to PowerMedica’s customers. There was no evidence that any information seized by the BCSO or the USFDA was illegally seized. The joint investigation culminated in the closure of PowerMedica’s operations. In March 2008, a sergeant and a lieutenant employed by Respondent and assigned to its Professional Compliance Bureau met with a sergeant employed by BCSO. During that meeting, the BCSO sergeant showed Respondent’s employees a list containing PowerMedica’s customers. That list contained Petitioner’s name. At Respondent’s request, in April 2008, the USFDA provided copies of records to Respondent that had been seized from PowerMedica. That information provided details as to Petitioner’s dealings with PowerMedica. On July 10, 2008, Petitioner was subjected to a formal interview by representatives of the Respondent. In that interview, Petitioner admitted his dealings with PowerMedica and, while denying any wrongdoing, admitted the material facts set forth above pertaining to those dealings. Petitioner declined to divulge the underlying condition for which he sought treatment. Further, Petitioner acknowledged that Dr. Marques had informed him that his insurance company would likely not pay for his treatment from PowerMedica or for similar treatment. Specifically, Petitioner admitted that he obtained testosterone without being examined by a PowerMedica physician, he admitted that he knew about the investigation and subsequent closure of PowerMedica, and he admitted that he knew the reasons for the closure of PowerMedica. Petitioner admitted that he never volunteered to come forward to Respondent or any other law enforcement agency to discuss his dealings with PowerMedica. Petitioner referred to himself as a victim of PowerMedica’s fraudulent practices, but he admitted that he never advised Respondent prior to his interview that he had been a victim of PowerMedica. On September 9, 2008, Respondent assigned Petitioner to administrative duty that was to be served at Petitioner’s residence from 8:00 a.m. to 4:00 p.m. Monday through Friday. The letter advising Petitioner of this assignment and setting the parameters for the assignment, included the following, beginning at the second full paragraph: You will remain on administrative duty until further notice. This action is being taken based upon the fact you are under investigation by this agency. You are to turn in all of your assigned division equipment including uniforms, badges, firearms, any department identification, and other division property. Your approval to work off-duty police employment (ODPE) and/or any type of agency secondary employment has been withdrawn for the duration of the administrative duty. Your eligibility to resume OPDE/secondary employment will be reviewed by your troop commander at the conclusion of the administrative duty assignment. Your failure to comply with this directive will subject you to disciplinary action. On November 14, 2008, Petitioner filed his Complaint of Discrimination with the Florida Commission on Human Relations. After that date, but before his termination, Petitioner requested permission to be able to work as a driver for Federal Express during hours other than the hours he was serving his administrative duties. Respondent denied that request. While Petitioner asserts that the denial was in retaliation for his filing the Complaint of Discrimination, that assertion is based on supposition. Petitioner presented no direct evidence to support his assertion and any circumstantial evidence is insufficient to establish the assertion. By letter dated January 14, 2009, and received by Petitioner on January 20, 2009 (the termination letter), Respondent terminated Petitioner’s employment. Approximately 20 days after his termination, Respondent retrieved from Petitioner the dog that Petitioner had handled for approximately three years. Petitioner asserts that Respondent took his dog in retaliation for his amending his Complaint of Discrimination to include a claim of retaliation relating to the denial of the request to work part-time for Federal Express. Again, Petitioner’s assertion is based on supposition and is not supported by direct or circumstantial evidence. The termination letter, which is part of Petitioner’s Exhibit 11, sets forth extensive factual allegations pertaining to Petitioner’s dealings with PowerMedica as the basis for the termination. The letter also set forth the statute and policies that Petitioner had allegedly violated. The letter cited the following as “Aggravating Circumstances”: This case is aggravated because through your training, work experience, and knowledge of the law you are held to a higher standard of reasonableness and conduct. You should have been well aware of the stigma attached to the type controlled substances you purchased and used, especially Petitioner points to Respondent’s characterization of anabolic steroids as having a “stigma” as evidence that Respondent discriminated against him based on his disability. That argument is without merit. The greater weight of the credible evidence established that Respondent terminated Petitioner’s employment based on its determination that Petitioner had unlawfully obtained and consumed a Schedule III controlled substance without obtaining a lawful prescription and because he failed to come forward with information about PowerMedica after he knew that PowerMedica was being investigated by the USFDA and the BCSO. Petitioner did not establish that Respondent’s articulated reasons for its employment decision were pretexts for an unlawful employment practice. Indeed, there was no evidence that as of the date of the termination letter, Respondent knew the nature of Petitioner’s medical condition, or that it had any reason to perceive him as being disabled.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 23rd day of November, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 23rd day of November, 2009.
The Issue The issue in this case is whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner on the basis of handicap in violation of section 760.10, Florida Statutes.
Findings Of Fact Petitioner is a female, age 44 at the time of the final hearing, who was employed with Respondent between May 14, 2012, and July 1, 2013. Respondent is an active limited liability company established and doing business pursuant to Florida Law. Petitioner was hired by Respondent on May 14, 2012, as a Document Control Supervisor. Her duties consisted of managing documents for Respondent in connection with Respondent's subcontract for the T-4 Gate Replacement Project ("Project") at the Fort Lauderdale-Hollywood Airport. Petitioner was assigned to work in a trailer at or near the Project jobsite. She was Respondent's only employee working full-time at the Project jobsite. She was supervised by Wayne Messam, Angela Messam, and Dwayne Vaughn, all of whom worked primarily at other locations. As Document Control Supervisor, Petitioner performed a vital function for Respondent in performing its subcontract for the Project. The persuasive evidence establishes that she was well-qualified for, and proficient at, her job. Many feral cats frequented the area immediately outside the trailer at the Project jobsite. They were attracted to the area because persons working in and near the trailer fed them. As a result of the cats frequenting the area, fleas and animal dander were pervasive at the jobsite, including inside the trailer where Petitioner worked. At times, cat feces were tracked into the trailer. In May 2013, Petitioner reported to Dwayne Vaughn, Respondent's Project Controls Manager and Petitioner's direct supervisor, that she was being bitten by fleas in and around the trailer due to the feral cats frequenting the area. She asked Vaughn to contact the Broward County animal control service to remove the cats. On June 14, 2013, Petitioner suffered an asthma attack. She received medical care at the Broward Health Medical Center Emergency Department and was diagnosed as having acute asthma and allergic rhinitis. According to her treating physician, the asthma was precipitated or aggravated by cat dander and other conditions attributed to the presence of cats at the jobsite. She was prescribed, and took, medication. At a follow-up visit on June 17, 2013, Petitioner's primary care physician strongly advised her to avoid being around cats in the workplace environment. Petitioner continued to press Vaughn about contacting the local animal control service to remove the cats. At some point, some, but not all, of the cats were removed from the Project jobsite. However, some continued to frequent the area around the trailer and continued to be fed. Petitioner contacted Angela Messam to request instructions on filing a workers' compensation claim. Messam did not provide her the requested instructions, but instead directed her to go to U.S. HealthWorks, a medical treatment facility, located at 407 Southeast 24th Street, Fort Lauderdale, Florida. On June 20, 2013, Petitioner sought medical care at U.S. HealthWorks. Messam met Petitioner there and authorized her medical treatment. The credible evidence establishes that Messam attempted to dissuade Petitioner from filing a workers' compensation claim. The credible, persuasive evidence also establishes that, despite Messam's representation to Petitioner and to her treating physician at U.S. HealthWorks that she would be re- assigned to work in a different location, Petitioner was instead directed to return to the Project jobsite. She was not re- assigned to work at an alternative location. On June 21, 2013, Respondent wrote Petitioner a letter detailing the measures that Respondent was undertaking to address the presence of cats and related unsanitary conditions at the jobsite, and accommodations that Respondent and the contractor, Turner Construction, would provide to Petitioner until conditions at the Project jobsite were addressed to the extent that Petitioner could return to work there without aggravating her asthma. The credible evidence showed that despite such representations, Respondent and Turner did not provide Petitioner the accommodations promised in the June 21, 2013, letter. The evidence establishes that Respondent did not implement any measures that would have allowed Petitioner to perform her job in another location. Thus, if Petitioner wanted to keep her job, she had to report to the Project jobsite. Petitioner continued to suffer debilitating asthma- related illness. Petitioner sought additional medical care for her asthma from her primary care physician on June 24, 2013, and from U.S. HealthWorks on June 26, 2013. Treating physicians at both facilities told Petitioner that she had asthma and warned her that working at a jobsite where cats were present would aggravate her asthma. The credible, persuasive evidence establishes that despite Petitioner's repeated entreaties, the Project jobsite conditions that precipitated or aggravated her asthma went unaddressed or were inadequately addressed by Respondent. On July 1, 2013, Petitioner reported to the Project jobsite. She observed cats and feeding dishes present outside the trailer. She told Vaughn that she was still having difficulty breathing and that her condition would not improve as long as cats were allowed to remain outside the trailer. Vaughn told Petitioner there was nothing more that Respondent could do about the remaining cats. At that point, Petitioner realized that Respondent was not going to address the circumstances that precipitated her asthma. Petitioner finished the high-priority matter on which she was working, then submitted her resignation, effective immediately. In her letter of resignation, Petitioner made very clear that the sole reason for her resignation was that the conditions that precipitated or aggravated her asthma——the presence of cats and attendant environmental conditions——had not been adequately addressed, so she was forced to leave her job in order to protect her health and safety. While employed with Respondent, Petitioner was paid an annual compensation of $56,160.00. Since resigning her job with Respondent on July 1, 2013, Petitioner has been unable to find employment. As a result, she was unable to pay rent so was evicted from her home, and her automobile was repossessed. Petitioner seeks an award of back pay in the amount of her annual salary pursuant to section 760.11(5). Angela Messam, appearing on behalf of Respondent, testified that Respondent did, in fact, take substantial measures to remove the cats from the Project jobsite, sprayed for pests, and cleaned up conditions at the site. Messam claimed that notwithstanding these measures, Petitioner continued to complain and that it seemed that Respondent could do nothing to satisfy her. Messam further testified that Petitioner was offered the accommodation of working at the corporate office but chose not to do so. The undersigned finds Messam's testimony on these points completely incredible and unpersuasive. To the contrary, Messam and other employees of Respondent were fully aware of the conditions that precipitated or aggravated Petitioner's asthma, failed to take adequate steps to remove those conditions from the Project jobsite, and failed to provide any reasonable accommodation to Petitioner by enabling her to work at an alternative location. At the final hearing, Respondent presented a Florida Department of Revenue Employer's Quarterly Report covering each quarterly reporting period commencing in June 2012 and ending December 31, 2013. Each report shows that Respondent employed fewer than 15 employees for the quarter covered by the report. These reports, supported by Messam's testimony, constitute competent substantial evidence showing that Respondent employed fewer than 15 employees for each working day in each of 20 or more calendar weeks in 2012, the calendar year preceding the alleged discrimination; and that Respondent employed fewer than 15 employees for each working day in each of the 52 calendar weeks in 2013, the year of the alleged discrimination. Petitioner did not present any competent substantial evidence to counter or rebut this evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief for lack of jurisdiction under chapter 760, Florida Statutes. DONE AND ENTERED this 20th day of February, 2015, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2015.
