The Issue The issue in this case is whether Petitioner was wrongly terminated from employment by Respondent, and, if so, whether monetary damages are warranted.
Findings Of Fact Petitioner, Henry Woodie, is a 66-year-old African- American man. He has a bachelor's degree in math and education, a bachelor's degree in accounting, and a master's degree in business administration. Petitioner first became employed by Respondent in August 2004, as a DCC at Ranier House, a group home owned and operated by Respondent, Independent Group Home Living (IGHL). In February 2007, Petitioner was promoted to the position of overnight (or nighttime) ARM for Ranier House. This promotion occurred after Petitioner filed a lawsuit against Respondent for discrimination. A fellow employee (Sarah McElvain, a white female) had been promoted to ARM for Ranier House some months earlier. Petitioner felt slighted because he had not been granted an interview, although he had more formal education than McElvain. However, McElvain had considerably more experience in the healthcare industry than Petitioner at that time. Nonetheless, Respondent created a position for Petitioner equal in status to the position McElvain obtained. In February 2007, Petitioner was made the overnight ARM; he and McElvain were then co-managers of the Ranier House as McElvain took the day shift. Neither had supervisory status over the other. Each was responsible for assisting developmentally- disabled adults at Ranier House by providing hands-on assistance with daily living activities. Petitioner worked from approximately midnight until 8:00 a.m. as the nighttime ARM. McElvain's hours were generally 9:00 a.m. until 5:00 p.m. The two managers' paths did not cross very frequently, although McElvain would come in early on many occasions to have her morning coffee and chat with the DCC workers. She may or may not have contact with Petitioner during those visits. In mid-July 2007, Petitioner noticed that there was a shortage of available food products at Ranier House. Inasmuch as Petitioner was responsible for preparing bag lunches for the customers (residents of the house), he purchased some lunch meats and other products from his personal account on July 30, 2007, at 2:39 p.m., i.e., outside his normal work hours. It was understood that any such purchases would be reimbursed. Petitioner contends the food shortage existed because McElvain was overspending the funds budgeted for food, thus resulting in shortages. However, McElvain made food purchases using a WalMart debit card provided by Respondent. The card was replenished with funds each month by Respondent's corporate offices in New York. If the card was not timely replenished, McElvain could not make food purchases. This is the more reasonable and likely explanation of why shortages sometimes occurred. Any time a food shortage occurred, one of the ARMs could make a purchase with their own money (if they were able) and then obtain reimbursement from the corporate office. At 10:41 p.m. on July 30, 2007, some nine hours after Petitioner had made a food purchase using his own money, McElvain made a very large purchase ($711.11) of food and other items using the corporate WalMart card. McElvain was also shopping outside her normal work hours. McElvain brought the groceries to Ranier House at around 11:30 p.m., i.e., just prior to Petitioner coming on duty for his regular night shift. McElvain and DCC LaShonda Hemley sorted the purchase by item type. They then distributed the items to the rooms or areas where those items would ultimately be put away for storage. For example, cleaning products were left near the storage closet; food was left near the refrigerator or pantry; household goods were left in the kitchen, etc. After the food items had been distributed, McElvain saw Petitioner in passing and told him the goods needed to be put away. She then left the Ranier House. Petitioner does not specifically remember being told to put away the groceries. He does remember being told that the groceries were being distributed around the house so they could be put away, but assumed that someone else would do that job.2 McElvain and Hemley did not put the groceries away because of several stated reasons: McElvain had been working and going to classes all day and she was tired; the night shift was coming on duty and would be paid to put the groceries away, whereas McElvain and Hemley would have to be paid overtime to do that job; and McElvain made a presumption that Petitioner would follow through on her statement that "the food needs to be put away." Neither Petitioner, nor his DCC staff put away the food and supplies. As a result, dangerous chemicals were left sitting in the hallway all night long. Perishable foods were left in the garage (right next to the refrigerator) all night long and spoiled. Petitioner did not put away the food because of two stated reasons: Usually the person who buys the groceries puts them away; further, he had previously suffered a stroke and did not feel fully recovered. As for his medical condition, his physician had released Petitioner to work as of July 9, 2007 (several weeks prior to the incident in question), but Petitioner did not personally believe he was fully able to perform his duties. He did not make a request to his employer for a lighter work load or relief from his duties, however. Further, the final hearing was the first time Petitioner raised his health concerns as a reason why he did not put the groceries away. That testimony is not credible and flies in the face of the fact that Petitioner said he put away the groceries that he had purchased. Petitioner does not remember McElvain asking or telling him to put away the groceries. He says he would have, had he been asked. This statement is not credible since the groceries were in full view throughout Petitioner's shift, but he did not put them away. At some point during the night of July 30 or 31, 2007, Petitioner opened some of the bags containing perishable foods and used some of them to make sandwiches for the customers. He did not put the opened packages or any of the other bags of groceries into the refrigerator at that time. Petitioner does not accurately remember, but believes the lunch meats he used may have come from food he had bought (and put away) earlier in the day. Besides the perishable foods, there were also some bleach and cleaning supplies left unattended. These items were placed on the floor in a hallway immediately adjacent to a locked storage closet where they are to be stored. The closet was locked and the keys were located in the office at Ranier House. Petitioner maintained at final hearing that he did not see the items even though they were right next to customer rooms (which are supposed to be checked every 15 minutes throughout the night). It is hard to reconcile Petitioner's statement with the pictures of the bleach introduced into evidence at final hearing. The location of the bleach is patently obvious to even the most casual observer. Further, a letter written by Petitioner to an unknown recipient clearly states, "When I came to work at Mid-night [sic], I noticed about 50 bags of groceries spread out on the floors of different rooms." This letter, which Petitioner admits writing, contradicts his contention that he did not see the goods. One of the concerns about the bleach was that one customer was prone to getting up at night and finding something to drink. He would apparently drink anything, including bleach. Knowing that, it is unconscionable that Petitioner would allow the bleach to sit in close proximity to the customer bedrooms over an entire eight-hour shift. On July 31, 2007, McElvain came to work around 8:30 a.m. When she passed Petitioner on her way in, he said something akin to "I'm out of here" and left. McElvain then spotted the spoiled food and other items which had not been put away. She became extremely angry about that negligence. McElvain sorted through the food products and identified $167.27 worth of groceries that were no longer edible. She took pictures of the bags of groceries that were placed in different areas around the house. Then she called her supervisor, Joyce Herman, to lodge a complaint. McElvain told Herman that she (McElvain) had instructed Petitioner to put away the food items or, at least, had told Petitioner that the items needed to be put away. Herman contacted Petitioner at his home, inquiring as to why he had not put the groceries away. He said that he had not been told to do so. Herman says that the job descriptions for ARMs would suggest that someone needed to put the groceries away; if one ARM didn't, the other should. She places the primary blame in this case on Petitioner because the groceries were left out for his entire shift. Herman instructed Petitioner not to contact McElvain, but he did so anyway. Petitioner left a message on McElvain's home phone and then one on her cell phone. The messages were not preserved and could not be played at final hearing. However, a transcript of the home phone message, which both parties indicated was an accurate reflection of what was said, reads as follows: "Yes, Sarah, this is [Petitioner]. I was wondering why you told Joyce [Herman] that lie that you told me to put the groceries away and I didn't. Number one, you don't tell me what to do and number two, you could have put the groceries away yourself. Give me a call." McElvain says part of the message was stated in a "nasty tone," but Petitioner disagrees. McElvain contacted Herman and forwarded Petitioner's voicemail message so Herman could listen to it. Both McElvain and Herman describe the tone in Petitioner's voice as angry and confrontational. The voicemail was alternatively described by Respondent as "threatening," "confrontational" or "upsetting." Petitioner admits that he was angry when he made the call and might not have made the call had he not been angry. Petitioner and McElvain did not appear to have had a smooth or cordial working relationship, although they were peers. Upon hearing the voicemail and considering the facts as to what had occurred, Herman and her subordinate, Doris Diaz, made the decision to terminate Petitioner's employment. The basis of the termination was violation of the IGHL Code of Conduct, specifically the following language: "[D]ecisions on disciplinary action to be taken will be up to and including discharge. The following are examples of unacceptable behavior. . . . Confrontation with customers or co-workers." Petitioner acknowledged receipt and understanding of the Code of Conduct. Petitioner requested of Respondent a letter setting out the reason for his discharge. He was told that IGHL policy did not allow for a written statement; however, a letter was thereafter sent to him stating the basis for Respondent's action. The letter is unequivocal that the employer's reliance on confrontation with a co-worker was the basis for terminating Petitioner's employment. Petitioner presented no competent substantial evidence to support his claim of race, gender, or age discrimination as the basis for his termination from employment. Petitioner was promoted from DCC worker to nighttime ARM by IGHL. His promotion included a substantial salary increase, but not much change in his duties or responsibilities. He was, by his own admission, probably overpaid for the job he was performing. He claims that his termination from employment was for the purpose of eliminating this particular position. There is no evidence to support that contention.3 Petitioner claims retaliation may have occurred because of the fact that he pointed out McElvain's failure to stay within her prescribed food budget. There is no evidence that McElvain strayed from her budget. Rather, the evidence shows a failure on the part of IGHL's corporate offices to stay current when replenishing the WalMart card used for making purchases. The 90-day evaluation for Petitioner after his promotion to ARM is acceptable, but is considerably less laudatory in nature than McElvain's evaluation. It is clear Petitioner did have some minor issues relating to other employees, but that is often the case when someone is promoted from within an organization. If Petitioner is claiming retaliation based on his previous claim of discrimination against his employer, that claim is not supported by the evidence. As a matter of fact, Petitioner was promoted, not fired, as a result of the prior claim he filed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations finding Respondent not guilty of an unlawful employment practice and dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 29th day of September, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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, 2008.
The Issue The issue in this case is whether Respondent wrongfully discriminated against Petitioner in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner is a female residing in the community known as the Hammocks in Ocoee, Florida. She was a frequent attendee at Homeowners' Association meetings for a number of years. In April 2007, Petitioner was elected to the Board by its members in recognition of her interest in the community. Petitioner was elected as a director on the Board; she was not an officer. She regularly attended Board meetings and was active and involved. There were no complaints raised by the Board concerning Petitioner's exercise of her duties as a director. The Homeowners' Association of the Hammocks was established to monitor and manage all issues relating to the Hammocks, e.g., maintenance of homes and lots, noise issues, safety, etc. The Homeowners' Association was not named as a Respondent in the instant action.1 The Management Company provided services to the Hammocks and to other properties and communities as well. The responsibility of the Management Company was to manage the day-to-day affairs of the community. For example, the Management Company would ensure that all homeowners were in compliance with restrictive covenants and community rules. It would insure that maintenance of the common grounds was kept current. It would provide consultation concerning any issues that arose within the community concerning enjoyment of the property by homeowners. The Management Company has been under contract with the Hammocks since approximately calendar year 2003. Gary Comstock, vice-president of the Management Company, regularly attends Board meetings as the representative of the Management Company, but does not attend all meetings. During the same period the Management Company was employed by the Hammocks, it was also serving another community known as West Oaks Villages. It provided the same kind of services to West Oaks Villages that it provided to the Hammocks. Some time during calendar year 2007, Petitioner became acquainted with a person by the name of Catherine Hall who resided in West Oak Villages.2 Petitioner met Hall at a polling place during an election period. At that time Hall was involved in a dispute with her own Homeowners' Association at West Oaks Villages. Hall was also concerned about the Management Company and what she saw as possible shortcomings on its part, vis-à-vis, duties and responsibilities to West Oaks Villages. Hall's case was ultimately forwarded to the Division of Administrative Hearings and assigned Case No. 07-3368; the case style included both West Oaks Villages and the Management Company as named respondents. A final hearing was held in that case on September 17, 2007, before Administrative Law Judge Clark. Petitioner testified in Ms. Hall's case at final hearing. At that time, Petitioner was serving as a director on the Board of the Hammocks Homeowners' Association.3 During her testimony, Petitioner expressed concern about the Management Company. Petitioner's testimony in the Hall case was ultimately disregarded by the Administrative Law Judge as being irrelevant. A resident of the Hammocks (Renee Reynolds) somehow became aware of Petitioner's testimony at the Hall final hearing. Reynolds sent a letter to the Board dated October 20, 2007, expressing concern that Petitioner--while serving on the Hammocks Board--would testify against its management company in a DOAH proceeding. The resident felt like this was a conflict of interest and suggested Petitioner might not deserve a "seat" on the Board. Petitioner somehow discovered the letter (which had apparently been attached to an email to her on the day it was written). Petitioner responded to the letter and submitted her written response to the Board on October 21, 2007, i.e., the day after Reynolds' letter was written. Petitioner's response was delivered to the Board at a regularly scheduled meeting on that day. The Reynolds letter and Petitioner's response were discussed at the October 21 meeting. The next Board meeting (hereinafter referred to as the "November Meeting") was held on November 26, 2007. At the November Meeting, one of the issues on the agenda had to do with maintenance of certain lots and houses within the community. Petitioner was told by the Board that she could not cast a vote as the homeowner of a house she was maintaining for some friends. The Board's attorney cited legal precedence for this denial, but Petitioner was not happy with the decision. There were some contentious moments in the November Meeting between Petitioner and other Board members. During the November Meeting, Petitioner brought up the Hall case in reference to some complaints she was making about the Management Company. Review of the video of the November Meeting4 shows that Petitioner was very agitated at this time. In response to some of Petitioner's comments, Comstock asked to make a statement. After his comments, Petitioner was given a brief opportunity to reply. Comstock's comments to Petitioner were also somewhat heated in nature. He said that Petitioner had denigrated the Management Company for quite a number of years, and he was tired of it. He said her unwarranted criticisms were akin to the techniques used by Hitler, i.e., that if they were said often enough, people might actually begin to believe them. He also said that Petitioner's complaints were like those used by bigots in the 1960's to degrade people of color without any basis. His analogies did not compare Petitioner to Hitler or to a bigot; they merely attacked Petitioner's method of making complaints against the Management Company. Comstock also stated at the meeting that if Petitioner continued her verbal abuse of the Management Company, it would take whatever action necessary--even litigation--to put an end to the abuse. Petitioner perceived that comment to be a threat. Comstock says they were not meant as such. Upon review of the videotape and consideration of the context, the comments do not appear threatening. Petitioner took great exception to Comstock's statements and took them personally. However, upon review of the videotape of the November Meeting, the statements do not appear offensive in and of themselves. None of the Board members addressed Comstock's remarks when he finished talking. That is, no one chastised him or said his comments were inappropriate. Also, in attendance at the November Meeting was Spencer Solomon (Respondent in this case), president of the Management Company. Solomon's involvement with the Hammocks had to do solely with financial matters. That is, he handled the financial issues and left day-to-day management issues to Comstock. Solomon rarely attended Board meetings, but was asked by Comstock to attend the November Meeting because of expected "uncomfortable-ness" relating to Petitioner.5 Solomon attended and spoke briefly, during which time he mistakenly said that the Management Company was not a party in the Hall case. That was erroneous and Solomon admitted so at final hearing. His misstatement was not intentional; he believed it to be true at the time it was made. At the November Meeting, Petitioner was allowed to present her side of the story concerning the Hall issue. She explained that she testified in Hall's case as a private person, not as a Hammocks Board member. Petitioner had met Hall prior to taking a position on the Board, but Hall's hearing was held after Petitioner had been appointed to the Board. Petitioner said that she was genuinely concerned about how the Management Company was performing its duties for the Homeowners' Association. Following discussions at the November Meeting, Terri Ballard, the Homeowners' Association representative, advised Board members as to the process for removing a Board member. (There was no testimony or evidence presented at final hearing as to why Ballard raised this issue.) A Board member could be removed by way of one of three methods: They could resign; they could serve their full term and not be re-elected; or, they could be recalled. The recall process was to circulate a petition among homeowners and if a sufficient number signed the petition, the Board member could be removed. A petition was thereafter created and dispersed by Ballard to homeowners. Ballard was responsible for obtaining signatures on the petitions and collecting the petitions from homeowners. Of the approximately 125 lots within the Hammocks, about 65 homeowners (52 percent of the lots) returned signed petitions to Ballard.6 Ballard collected the petitions (also referred to as ballots) and turned them over to Comstock as representative of the Management Company. Comstock then turned the ballots over to the attorney representing the Board. At a specially called meeting in May 2008, the Board voted to recall Petitioner from her position on the Board. The vote followed review of the recall petitions that had been circulated among the other residents of the Hammocks. The petitions were not introduced into evidence, and there is no evidence as to what they said or how the language was worded. Petitioner was allowed to briefly review some of the ballots, but did not review each and every one of them. So far as she knows, no official audit was done to ascertain that all ballots were true and correct or that a sufficient number had been collected. Petitioner believes her recall was retaliation for her testimony in the Hall case. However, her testimony in that case was against the Management Company; she was recalled by the Board. It is clear that the Management Company has no authority or control over the Board. Rather, the Management Company operates under a contract with the Board to perform certain functions. Election and retention of Board members is not one of the Management Company's enumerated tasks. Further, the comments made by Comstock at the November Meeting appeared to be the culmination of years of attacks by Petitioner against the Management Company. There is nothing to suggest that Comstock's comments were limited to or even specifically directed at the Hall matter. Even so, the Board was not a party to the Hall case, and the Hammocks was not discussed at the final hearing in that case. Thus, there could be no retaliation by the Board relating to that case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations finding Respondent, Spencer Solomon, not guilty of an unlawful employment practice and dismissing Petitioner, Victoria Laney's, Petition for Relief. DONE AND ENTERED this 19th day of November, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 19th day of November, 2008.
Findings Of Fact The Respondent is an employer under the Florida Civil Rights Act of 1992. Petitioner, Joyce C. Hallowell, was employed by Respondent as a part- time commission sales associate in the electronics department of Brand Central during the relevant period of time including June 1993. Petitioner worked for Respondent on-and-off for a period of 20 years in various sales positions and both in a full and part-time capacity. Petitioner is an American woman, born: October 14, 1948, who was 44 years of age during the relevant time and a member of a protected class. William Henley became the Store General Manager of the Melbourne, Florida Sears store in May 1993. Accordingly, Henley was, during the relevant time period, the Store General Manager of the Melbourne, Florida Sears store. As Store General Manager, William Henley has responsibility for, inter alia, making employment decisions, including hiring, firing, transferring and promotion decisions. Herman Payne became the Brand Central Manager of the Melbourne, Florida Sears store in 1993. Accordingly, Payne was, during the relevant time period, the Brand Central Manager of the Melbourne, Florida Sears store. As Brand Central Manager, Payne supervised all four departments in Brand Central. He has responsibility for, inter alia, making employment decisions, including hiring, firing, transferring and promotion decisions for personnel in his department. Payne was 41 years old during the relevant time period. Frances Pagan Cusick is the Human Resources Manager for the Sears Melbourne, Florida store. As Human Resources Manager Cusick has responsibility for, inter alia, administering the hiring, equal-employment, and compensation policies of Sears. Cusick was 43 years old during the relevant time period. Brand Central consists of four departments: computers, electronics, small appliances and home appliances. Sales associates work in each of the four Branch Central Departments. Both full-time and part-time sales associates work in Brand Central. Each of the sales associates in Brand Central are paid on the basis of commissions earned from sales. As a consequence, each sales associate's earnings are dependent on the number of sales made. At the time of Henley's and Payne's arrival at the Melbourne, Florida Sears store in May, 1993 and June, 1993, respectively, the store, including Brand Central, was in need of numerous changes and improvements, including improvements in appearance and presentation. In June, 1993, Henley and Payne initiated a cleanup "campaign" throughout the store, including Brand Central, in an effort to make the store more presentable to the public. As part of the clean-up "campaign" in Brand Central, Payne recruited the assistance of all Brand Central employees. Petitioner was uncooperative and refused or was reluctant to assist in various efforts to improve the appearance of Brand Central. She also complained to management about others in her department and their lack of diligence in the clean-up campaign. Hallowell's attitude problems were a serious concern to the management of the Melbourne, Florida Sears store. The management of the Melbourne, Florida Sears store counselled her and documented Petitioner's attitude problems. In June, 1993, a need arose for additional part-time help within the appliance department of Brand Central. A transfer from one section of Brand Central to another is not considered a promotion; rather, it is simply a transfer from one department to another. Henley and Payne ultimately decided who would be transferred to the appliance department of Brand Central. The criteria utilized by Respondent in determining who would be transferred to the appliance department included: (i) satisfactory job performance; (ii) satisfactory customer service; and (iii) a positive attitude. Given the nature of Respondent's business, it is important for Respondent's employees to maintain satisfactory job performance, customer service, and to exhibit a positive attitude. The criteria utilized by Respondent in determining who would be transferred to the appliance department were essential to building a highly motivated team of sales associates. Seniority was not a factor utilized by Respondent in determining who would be transferred to the appliance department. Age was not a factor utilized by Respondent in determining who would be transferred to the appliance department. In June 1993, Petitioner expressed to Herman Payne a desire to transfer from the electronics department to the appliance department of Brand Central. Three individuals were considered for the available, part-time position in the appliance department of Brand Central, to wit: Barbara Gehrlein, Terry Giordano and Petitioner. The transfer which Petitioner sought to the appliance department of Brand Central was not a promotion. However, Petitioner felt that she could earn a higher commission in that department over time. Barbara Gehrlein, who was over fifty at the time, elected not to be considered for the transfer to the appliance department of Brand Central because she was not interested in a part-time position. Gehrlein's preference was to remain in a full-time position. Terry Giordana, who was under forty years of age at the time, was selected for the transfer to the appliance department of Brand Central. Henley and Payne decided that she exhibited a positive attitude and satisfied the other qualification criteria utilized by Respondent. Petitioner was not chosen for the part-time position in the appliance department of Brand Central because of the poor attitude she exhibited during the clean-up campaign. After the selection of Terry Giordano for the part-time position in the appliance department of Brand Central, Petitioner continued to exhibit a poor attitude. Prior to the selection by Respondent of the individual to be transferred to the appliance department of Brand Central, Petitioner admitted to her supervisor, that she had been uncooperative and that she had a "chip on her shoulder." Respondent maintains an Affirmative Action Policy. Sears' Affirmative Action Policy provides, inter alia, that: Sears is proud to reaffirm its commitment of the principles of equal employment opportunity and affirmative action. It is our policy to provide equal employment opportunity in all areas of our employment practices and to assure that there will be no discrimination against any associate or applicant on the grounds of race, color, religion, sex, age, national origin, ancestry/ethnicity, citizenship, sexual orien- tation, disability, veteran status, marital status, or any other reason prohibited by law. This policy extends to all of the Sears employment practices including recruitment and hiring, job assignments, education and development, promotions, compensation and benefits, use of company facilities, and all other privileges, terms, conditions of employment. It is further the goal of Sears to provide an atmosphere where all our associates can grow and optimize their performance in an environment free of intimidation and harassment of any form. No direct evidence exists supporting Petitioner's contention that she was denied a "promotion" because of her age. Respondent did not fail to "promote" Petitioner. Respondent did not fail to "promote" Petitioner because of her age and Respondent did not discriminate against Petitioner on the basis of her age. With respect to targeted earnings, studies showed that an employee in the appliance department would earn less than an employee in the electronics department, given certain assumptions. Assuming a total store sales volume of $3 million, it is expected that an employee in the appliance department would earn $10.38 per hour, while an employee in the electronics department would receive $10.43 per hour. With respect to targeted earnings, studies showed that an employee in the appliance department would earn slightly more than an employee in the electronics department, given certain other assumptions. Assuming a total store sales volume of $3-6 million, it is expected that an employee in the electronic's department would earn $11.50 per hour, while an employee in the appliance department would receive $11.67 per hour. During the relevant time period, of the 13 individuals who worked in the appliance department of Brand Central, eight of them (or 61.5 percent) were at least 40 years old. During the relevant time period, of the 23 individuals who worked in all of Brand Central, 13 of them (or 56.5 percent) were at least 40 years old. During the relevant time period, of the 20 sales associates who were promoted at the Melbourne, Florida Sears store, five of them (or 25 percent) were at least 40 years old. During the relevant time period, of the 213 sales associates who were working at the Melbourne, Florida Sears store, 85 of them (or 39.9 percent) were at least 40 years old.
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 which DENIES the Petition for Relief. DONE AND ENTERED this 22nd day of November, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 22nd day of November, 1995. APPENDIX The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3 (in part), 4, 5, 6 (in part), 7, 8, 9 (in part), 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 33, 34, 35, 36, 37, 38, 39, 40, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, and 53. Rejected as irrelevant, immaterial or subsumed: paragraphs 3 (in part), 6 (in part), 9 (in part), 31, 32, and 41. COPIES FURNISHED: Joyce C. Hallowell 1498 Beche Street, S.E. Palm Bay, Florida 32909 Carlos J. Burruezo, Esquire 390 North Orange Avenue, Suite 1285 Post Office Box 3389 Orlando, Florida 32802-3389 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Is Shands at Alachua General Hospital/Santa Fe Health Care guilty of a discriminatory employment practice against Petitioner?
Findings Of Fact Petitioner is a black male. His birth date is March 1, 1933. At various times, he has filed three Charges of Discrimination with FCHR. The entity named in the May 22, 1998, Petition for Relief is "Shands at Alachua General Hospital/Santa Fe Health Care." "Shands at Alachua General Hospital" is the only entity which timely received FCHR's May 29, 1998, Notice of Transmittal. It also is the only entity which has appeared in this proceeding as a potential Respondent or for formal hearing herein. It was stipulated that in 1992, Petitioner filed a Charge of Discrimination with FCHR. Neither party hereto has a copy of that charge. To the best of Petitioner's recollection, his 1992 Charge of Discrimination was made against "Alachua General Hospital" for refusing to hire him and no charge was made at that time against "Shands at Alachua General Hospital." Apparently, that Charge was lost within FCHR. That Charge has never been before the undersigned, and I find as a matter of fact and law that it cannot be considered herein.1 On October 25, 1993, Petitioner filed a second Charge of Discrimination with FCHR. This was the Charge transmitted to DOAH on May 29, 1998, together with a May 22, 1998, Petition for Relief, and which gave rise to the instant proceeding. By this 1993 Charge, Petitioner had alleged discrimination against himself by Mid-American Food Services of Florida. The 1993 Charge also alleged that the last act of discrimination by Mid- American had occurred on February 28, 1991. Petitioner stipulated that FCHR never made any determination of "cause" or "no cause" against Mid-American because his 1993 Charge was settled and he received money damages for Mid-American as a result of the settlement. Accordingly, it would appear that the October 25, 1993, Charge has never been before the undersigned, and I find as a matter of fact and law that it cannot be considered herein. On February 16, 1996, Petitioner filed a third Charge of Discrimination against "Santa Fe Health Care" on the basis of race. That Charge alleged that the most recent discrimination had occurred on August 3, 1995. The parties stipulated this February 16, 1996, Charge was the charge which underlay the FCHR's April 22, 1998, "Determination of No Cause" and the May 22, 1998, "Petition for Relief" which FCHR had transmitted to DOAH to initiate the instant proceeding on or about May 29, 1998.2 Upon the foregoing stipulation and a September 24, 1998, letter of the FCHR General Counsel, declaring that the February 16, 1996, Charge of Discrimination should have accompanied the FCHR's May 29, 1998, Notice of Transmittal (see supra), I find that this instant proceeding is bounded by these documents. The May 22, 1998, "Petition for Relief" added the words "age 60" in an attempt to add age discrimination to the previous sole allegation of racial discrimination contained in the February 16, 1996, Charge. It also named a new Respondent, "Shands at Alachua General Hospital/Santa Fe Health Care," in place of "Santa Fe Health Care," which had been the sole employer named by Petitioner in his February 16, 1996, Charge. Apparently the "new" Respondent's name was derived from the April 22, 1998, "Determination No Cause" entered by FCHR. FCHR mailed the April 22, 1998, "Determination No Cause" and the May 22, 1998, "Petition for Relief" to "Shands at Alachua General Hospital/Santa Fe Health Care, 801 Southwest 2nd Avenue, Gainesville, Florida 32602." After the foregoing pleadings were clarified, Petitioner and Shands at Alachua General Hospital opposed any remand to FCHR for reconciliation of documents or so that FCHR could provide notice to other appropriate legal persons of the pending case. These parties stipulated that they were prepared to proceed to formal hearing on the merits of the issues as framed by the February 16, 1996, Charge, April 22, 1998, Determination of No Cause, and May 22, 1998, Petition for Relief, even if it required a second FCHR notice and another evidentiary hearing as to other entities. These parties stipulated that on February 16, 1996, after sale of Alachua General Hospital to Shands, Petitioner filed his Charge of Discrimination against "Santa Fe Health Care," not Shands. The first notice received by Shands regarding Petitioner's allegations and Charge of Discrimination was almost a year later on January 23, 1997, when FCHR mailed its Notice of Charge to Shands. So far as can be determined on this record, no other Notice of Charge was sent to any entity. The parties stipulated that Petitioner never applied for employment with Shands and that he is not alleging herein that he applied for employment with Alachua General Hospital during any period of time when Alachua General Hospital was owned and operated by Shands.3 The parties stipulated that Shands did not own Alachua General Hospital prior to 1996; that Shands purchased Alachua General Hospital in an asset sale with no stock exchanged in the transaction or merger of the two companies; that after the sale, there was no overlap of officers or directors of the predecessor and successor corporations; and that after the sale, there was no overlay in labor relations functions. The parties stipulated that four to five years before the purchase of Alachua General Hospital by Shands, Petitioner was employed by Mid-America Food Service, which entity had obtained a contract to provide meals for congregate meal sites and home delivered meal clients -- "Meals On Wheels." The parties stipulated that in 1992, approximately one year after obtaining the meal contract, the contract was put out for bid and Alachua General Hospital was the new successful bidder. The parties stipulated that from 1992 until the present, Petitioner was aware of how to apply for employment with Alachua General Hospital. The only cognizable pleadings herein assert that in 1992, Petitioner had applied for positions at Alachua General Hospital on several occasions but was denied employment based on his race and/or age. The parties stipulated that on April 22, 1998, FCHR determined that there was no reasonable cause to believe that Shands had violated the Florida Civil Rights Act of 1964, and dismissed Petitioner's complaint [sic] of discrimination. (See the April 22, 1998, "Determination No Cause.") Evidence and testimony at formal hearing support a finding that Petitioner was employed by Mid-America as a chef-manager from approximately 1986 to 1992. From 1991 to 1992, Mid-America had the Meals On Wheels contract. Evidence and testimony at formal hearing support a finding that after Mid-America lost the Meals On Wheels contract to Alachua General Hospital in 1992, Petitioner continued to work for Mid-America until the original contract expired. During this period, he was approached by Alachua General Hospital personnel who observed his Meals On Wheels procedures and asked him to teach his procedures to their staff. Evidence and testimony at formal hearing support a finding that during this period, Petitioner was aware that Alachua General Hospital was an entity which provided health care, while Santa Fe Health Care was the hospital's food service arm. There is no clear evidence that Santa Fe Health Care was ever a corporate entity in its own right. Petitioner conceded that no one from either Alachua General Hospital or Santa Fe Health Care promised Petitioner a job under the new Meals On Wheels contract or otherwise, but Beth Britt, a contact person between Mid-America and Alachua General Hospital/Santa Fe Health Care, insinuated that Petitioner would get a job when the contract changed over and food preparation was done out of a different building. In anticipation of getting a job with the new contract provider, Petitioner had remained on the job for nine months, holding his staff together. Three black co-workers (two male and one female) testified that they had been made no promises of future employment by Shands, Alachua General Hospital, or Santa Fe Health Care. Naomi Hall (female) testified that she had heard Petitioner say that he had been promised employment. Ms. Hall stayed on because Mid-America had offered her a percentage of the company. She only hoped to be offered a job with the new contract provider, Alachua General Hospital. At the changeover of the contract, the new contract provider did not offer a job to any witness or to Petitioner. Immediately after the changeover, Petitioner instructed the new providers' personnel what to do. A secretary told Petitioner that Mr. Hope with Alachua General Hospital would get in touch with him. At that time, Petitioner did not know of any positions open at Alachua General Hospital or Santa Fe Health Care. Petitioner applied to Miss Van Harrin for jobs at Alachua General Hospital three times: March 4, 1992; April 4, 1992; and approximately April 25, 1992 or mid-May. Because he had been chef-manager, Petitioner felt he was overqualified for all three jobs for which he applied. Petitioner thought some females, ages 25-30 were hired by Alachua General Hospital/Santa Fe Health Care during this period in 1992. He did not testify as to their race, and he did not know if they were hired for the same jobs for which he had applied. He only knew that he did not see them on the premises when he applied but did not see them later. Petitioner conceded that Alachua General Hospital hires blacks. Petitioner was never hired. Petitioner felt he was discriminated against because he had to fill out so many applications; because he was not summoned back to work as a chef- manager; and because he was not hired for other positions when he applied. Constance Schott has been employed in the Human Resources Department of Alachua General Hospital, since February 1, 1996. The building complex/physical plant has been at 801 Southwest 2nd Avenue, Gainesville, Florida, for twenty years, but it was purchased as an asset by Shands in February 1996, after a 90-day "due diligence" process, during which the prior owners (apparently a conglomerate nicknamed "Av-Med"), did not disclose to Shands any of Petitioner's Charges of Discrimination. Respondent has argued, but failed to show, exactly who or what entity owned Alachua General Hospital/Santa Fe Health Care in 1992. Ms. Schott first became aware of Petitioner's complaints in January 1997, when FCHR notified her of the February 16, 1996, Charge (See Finding of Fact 8). At that time, she informed FCHR that Shands did not own or operate Alachua General Hospital in 1992 and that Santa Fe Health Care was essentially non-existent. There is no reason to assume, on the basis of this record, that FCHR ever investigated Petitioner's charge of age discrimination, formulated any proposed final agency action on the claim of age discrimination, or notified Av-Med of any charges against it.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations make a diligent search to determine if it has ever received a 1992 Charge of Discrimination from Petitioner and advise him and any named employer(s) of its status. That the Florida Commission on Human Relations enter a Final Order which recognizes Petitioner's stipulation herein that he has settled his October 25, 1993, Charge of Discrimination against Mid-American Foods and dismisses that charge. That the Florida Commission on Human Relations enter a second Final Order that dismisses Petitioner's May 22, 1998, Petition for Relief against Shands at Alachua General Hospital, and bars any claims or charges Petitioner has alleged against Shands at Alachua General Hospital before August 3, 1995 (the last alleged date of discrimination); and that in the same Final Order, the Commission determine whether any prior employer remnants (be they Alachua General Hospital, Santa Fe Health Care, or Av-Med), should be investigated or given an opportunity to be heard with regard to any charges or claims arising out of Petitioner's February 16, 1996, Charge of Discrimination. DONE AND ENTERED this 8th day of January, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. 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 8th day of January, 1999.
The Issue Whether The Hertz Corporation (Hertz) committed the unlawful employment practices alleged in the employment discrimination charge filed by Petitioner and, if so, what relief should he be granted by the Florida Commission on Human Relations (FCHR).
Findings Of Fact Petitioner is a Black male who was employed by Hertz from 2001 until April 29, 2004, when his employment was terminated. At all times material to the instant case, Petitioner worked as a courtesy bus driver. His basic job duties included picking up Hertz rental car customers at the West Palm Beach airport and driving them to the Hertz station where they could pick up their rental cars, as well as driving Hertz customers from the Hertz station back to the airport after they turned in their rental cars. The events which precipitated Petitioner's termination of employment occurred during the night shift that began at 6:00 p.m. on April 16, 2004, and was scheduled to end at 4:00 a.m. on April 17, 2004. Events proceeded normally on that shift until about 2:00 a.m. on April 17, 2004. At that hour of the morning, Petitioner was the only courtesy bus driver on duty. At that hour the manager for the Hertz station at the West Palm Beach airport was Michael Thebner. At approximately 2:00 a.m. Petitioner dropped off some passengers at check-in who had just arrived on Jet Blue. After dropping off those passengers, Petitioner looked around to see if there were any passengers waiting to be taken back to the airport. Seeing no such passengers and believing that there were no other passengers at the airport waiting to be picked up by a Hertz courtesy bus, Petitioner parked the bus and decided to take a break. Petitioner left the outside lights of the bus turned on and left the bus motor on. He turned off the lights inside the bus, turned off the air-conditioning inside the bus, closed the bus doors, and walked to the back of the bus to take a break. While taking a break in the back of the bus, Petitioner fell asleep and remained asleep for several minutes. In the meantime, a few minutes after Petitioner parked the bus and began his break, the station manager, Thebner, received two telephone calls from Hertz customers who were waiting at the airport for the Hertz courtesy bus. Thebner immediately tried to contact Petitioner on the Nextel radio on the bus channel, but Petitioner did not respond. Thebner then paged Petitioner on the public address system, again with no response. Thebner next walked over to the bus Petitioner was operating that night and knocked first on the bus window and then on a bus door. There was no response to those knocks. Thebner tried unsuccessfully to page Petitioner on the intercom and searched for Petitioner in various places on the station premises, including the mens' room, the employee break room, and the security hut. When the search for Petitioner was unsuccessful, Thebner went back to the bus and pounded louder on the bus. This time he observed Petitioner waking up from sleeping in one of the passenger seats in the bus. Thebner told Petitioner that Petitioner was not supposed to be sleeping and Petitioner denied sleeping. Thebner then told Petitioner to drive to the airport and pick up the two waiting Hertz customers. Petitioner promptly complied and went to pick up the waiting Hertz customers. Before the end of the shift, Thebner wrote a report about the incident in which customers had to wait because Petitioner was asleep and could not be found. Thebner wrote the report because of Petitioner's conduct, which was contrary to company work rules. Thebner's decision to write the report had nothing to do with Petitioner's race. At all times material to this case, Michael Badders was the City Manager for the Hertz station at the West Palm Beach airport. Badders was the person to whom Thebner reported. On April 19, 2005, Badders received Thebner's report about the incident in which customers had to wait because Petitioner was asleep and could not be found. On April 20, 2005, Badders held a meeting with Petitioner and with a shop steward from Petitioner's union. During that meeting Petitioner denied being asleep during the incident described above. Petitioner also denied hearing the radio calls telling him there were customers waiting to be picked up. On April 20, 2004, Badders delivered a memorandum to Petitioner advising Petitioner that he was being suspended pending investigation. The substance of the memorandum read as follows: "You are hear [sic] by suspended pending investigation of violation of Company Rules and Regulations. Understand that based on the results of the investigation a determination will be made as to the status of your employment. Disciplinary action up to and including termination may result." By letter dated April 23, 2004, Badders advised Petitioner as follows: "Your employment with the Hertz Corporation has been terminated effective immediately for violation of rules and regulations. Please return your uniforms when you pick up your last check." Prior to the events in the early morning hours of April 17, 2004, Petitioner had already been through several steps of the Hertz progressive discipline policy as a result of several instances of prior breaches of Hertz work rules and policies. The termination of Petitioner's employment was consistent with established Hertz disciplinary policies applicable to all employees. Hertz has previously terminated the employment of another courtesy bus driver at its West Palm Beach facility who was discovered sleeping while he was supposed to be on duty.1 On one or more occasions Petitioner, in his capacity as Alternate Shop Steward of Teamsters Local Union #390, engaged in activity that was probably protected activity under the National Labor Relations Act, but there is no persuasive evidence that Petitioner engaged in any activity protected by Chapter 760, Florida Statutes.2 Specifically, there is no persuasive evidence that, as asserted in his original charge, Petitioner "had to bring to the company's attention its discriminatory practices toward Black employees."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order in this case finding that Hertz is not guilty of any of the "unlawful employment practices" alleged by Petitioner and dismissing the Petition for Relief. DONE AND ENTERED this 5th day of October, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. 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 5th day of October, 2005.
The Issue The issue is whether the Respondent committed an unlawful employment practice under section 760.10, Florida Statutes (2011), by discriminating against Petitioner on the basis of his national origin, or by retaliating against him, and if so, what remedy should be ordered.
Findings Of Fact The Department of Environmental Protection (DEP or the Department) is an agency of the State of Florida. The Guana Tolomato Matanzas National Estuarine Research Reserve (Reserve) in Ponte Vedra, Florida, is a part of the Department, managed under the Coastal and Aquatic Managed Areas Program (CAMA). The Reserve is essentially an institution for research and education, often involving partnerships with universities and other government entities. The Department has more than 15 employees. In July 2011, approval was granted to create a new position for an Environmental Specialist I to provide for the Geographic Information Systems (GIS) needs of long-term monitoring, modeling, and mapping projects at the Reserve. Dr. Michael Shirley is the director of the Reserve, a position he has held since 2007. He has been an employee with the DEP or its predecessor agencies since 1990. Dr. Shirley is also the regional administrator for the East Coast of Florida Aquatic Preserve Program, and in that capacity is responsible for overseeing the management of the Aquatic Preserves on the East Coast of Florida. Dr. Shirley is responsible for some 44 employees, including 34 at the Reserve. Since Dr. Shirley knew a lot about GIS from his research background, he was excited about the prospect of having a new GIS position at the Reserve. Dr. Shirley was very involved in filling the new GIS analyst position. He reviewed the approximately 20-30 applications for the position, helped select individuals to interview, and participated in interviews. Six applicants were ultimately chosen for interview by telephone or in-person by the selection team. While the testimony was not entirely clear as to the national origin of all of these individuals, one of them had a national origin from China and one, Petitioner Mr. Dasyam Rajasekhar, had a national origin from India. Mr. Rajasekhar‘s application and resume indicated that he held a master‘s degree in forestry from Stephen F. Austin University, was experienced in GIS, Remote Sensing, and Geo- Spatial analysis, and that he held a GIS Professional Certification. Mr. Rajasekhar did an excellent job in the interview. On his own initiative, he gave a PowerPoint presentation, which Dr. Shirley later made available to other staff. Dr. Shirley testified that he was ?very excited? about the prospect of Mr. Rajasekhar‘s coming on board and stated that, ?his resume, his credentials, were by far the best of the applicants we had received.? All of the members of the interview team supported him for the position. The team made a unanimous recommendation to the CAMA director, who had final approval authority, that Mr. Rajasekhar be hired. In October 2011, Mr. Rajasekhar was hired as an Environmental Specialist I at the Reserve by the DEP. On November 7, 2011, he acknowledged access to several Department administrative policies, including DEP 435, entitled ?Conduct of Employees? and DEP 436, entitled ?Discrimination and Harassment.? Mr. Rajasekhar was a probationary employee for the first year, as are all new hires, which meant that he could be dismissed without cause and that he did not have the right to grieve or appeal Department actions. After the initial year, a probationary employee becomes a permanent career service employee. This information was contained in DEP 435. Mr. Rajasekhar‘s GIS analyst position was supposed to be supervised by the watershed coordinator, but this position had not yet been filled, so Mr. Joseph Burgess, the resource management coordinator for the Reserve, reporting to the assistant director, Ms. Janet Zimmerman, was named as Mr. Rajasekhar‘s immediate supervisor. Mr. Burgess, Ms. Zimmerman, and Dr. Shirley were thus all three supervisors of Mr. Rajasekhar, moving up his chain of command, and none of them was a probationary employee. Mr. Burgess did not have any experience in GIS, so any detailed oversight of Mr. Rajasekhar‘s work product was conducted by Dr. Shirley. Mr. Rajasekhar‘s Position Description indicated that among other duties, he was to apply GIS tools and products to address resource conservation issues, develop inundation models to reflect the impact of projected sea level rise on local natural communities and public infrastructure, and develop GIS maps for National Estuarine Research Reserve System (NERRS) initiatives such as habitat mapping and change. Mr. Rajasekhar had excellent skills in performing ?high–end? geospatial analysis. He could look at satellite imagery and turn it into a product. Mapping products were used in every one of the Reserve‘s programs and were important in making decisions on land-use and the protection of Reserve resources. They were also very important to the grants obtained by the Reserve. Mr. Rajasekhar was well-qualified to do his job. One grant project, in place before Mr. Rajasekhar was employed, was from the University of Florida (UF) to map changes that would occur in wetlands due to sea level rise. Dr. Shirley was one of the Co—Principal Investigators on the project. Co- principal investigator status is conferred on the people who write the grant proposal. Another major Reserve grant was from the National Oceanic and Atmospheric Administration (NOAA), which funded 40 percent of the Reserve. It is very important for the Reserve to maintain these grant relationships, because these partnerships provide funds as well as visiting personnel to allow research to continue. On December 26, 2011, the Reserve hired Ms. Andrea Small as its Watershed Coordinator, reporting to Mr. Burgess. Under the new staffing plan, the GIS analyst was supposed to report to the watershed coordinator. As a new employee, Ms. Small was in probationary status. While Mr. Rajasekhar‘s ability to do high-end geospatial analysis was never in question, issues soon arose involving other tasks he was supposed to perform. He took longer than most employees in using basic computer programs, such as Microsoft Office programs, and staff complained to Dr. Shirley that he would keep asking them to perform the same basic tasks for him. Dr. Shirley‘s response generally was: He‘s new. Help him, because we help everyone. Let‘s get him –- you know, get him moving in the right direction. As time went on, the pattern did not change, and some staff members concluded that Mr. Rajasekhar was always going to ask them to perform certain tasks for him, so they took the position that they would show him something once, but then insist that he do it for himself the next time. Within the first three months of his employment, Mr. Rajasekhar made an appointment to meet with Dr. Shirley. At the meeting he firmly stated that he needed a pay raise. Dr. Shirley testified that in tone it was ?more strong than =asked,‘ but not quite a demand.? Dr. Shirley thought that the request was badly timed. State government was laying off workers, he had several other deserving employees who had not had a raise in several years, and Mr. Rajasekhar was still on probation. Raises had to be approved at the deputy secretary level, and Dr. Shirley felt that although Mr. Rajasekhar had good geospatial analysis skills, he could not justify putting him in for a raise. Dr. Shirley explained why the timing was bad and why he felt he could not make the case for giving Mr. Rajasekhar a raise just then. Mr. Rajasekhar took out a notebook and indicated to Dr. Shirley that he was writing down, ?[y]ou will not give me a pay raise.? Dr. Shirley felt that exaggerated effort at documentation was meant to infer some sort of discrimination on Dr. Shirley‘s part. Dr. Shirley explained that he was not treating Mr. Rajasekhar differently from anyone else. He told Mr. Rajasekhar that if any employee came in after only three months on the job, he would decline to put him in for a raise. Dr. Shirley told him that if he believed that this was some sort of discrimination, they needed to contact the Bureau of Personnel Services and talk to them. This seemed to de-escalate the situation, and Mr. Rajasekhar stopped writing. Mr. Rajasekhar said that he did not want to call the Personnel office, and indicated to Dr. Shirley that he understood the situation. When a ranger needed maps relating to a prescribed fire for resource management, Mr. Rajasekhar told the ranger that this was ?low-end? GIS work, that the ranger could do it himself, and that Mr. Rajasekhar would show him how to do it. Dr. Shirley testified that the ranger was unfamiliar with GIS software and that this was part of Mr. Rajasekhar‘s job. The Reserve had a limited number of employees and everyone needed to help everyone else to accomplish the Reserve‘s mission. Dr. Shirley felt that morale and teamwork were suffering. However, Mr. Rajasekhar ultimately completed the burn maps. Mr. Rajasekhar also had difficulty completing other more sophisticated tasks assigned to him. He asked Dr. Shirley to run Kappa statistics for him. Kappa statistics are commonly used in GIS work to correlate computer images with known reality in the habitat. Mr. Rajasekhar had indicated on his resume that he had developed a field sampling protocol to calculate Kappa statistics. Yet, Mr. Rajasekhar approached Dr. Shirley at one point and asked if Dr. Shirley would do the Kappa statistics on a project. When Dr. Shirley asked Mr. Rajasekhar why he was asking the director of the Reserve to do the statistics, Mr. Rajasekhar replied, ?[i]t needs to be done by a Ph.D.? Dr. Shirley testified that Mr. Rajasekhar later went to the research coordinator and asked the same question, but that ultimately Mr. Rajasekhar ended up doing the statistics himself. Mr. Rajasekhar‘s presentation at his employment interview and his credentials indicated that he could work with pollution loading coefficients and determine how water flowed and affected estuarine water quality. But, when Dr. Shirley asked him to conduct such an analysis, he replied that this work required a Ph.D.-level hydrologist. One of the first mapping projects Mr. Rajasekhar produced for Dr. Shirley involved flow ways, the way water flows through a watershed. Dr. Shirley was using the map in a meeting with Flagler County officials when he realized that Mr. Rajasekhar had indicated that in one canal water was flowing in opposite directions. When this was called to Mr. Rajasekhar‘s attention, he simply removed the arrow directions and started referring to the maps as ?flow lines? rather than ?flow ways.? The maps then didn‘t show the information that was needed, which Dr. Shirley explained to Mr. Rajasekhar. Mr. Rajasekhar stated in his applicant profile, ?[e]stuarine scientists would rate my knowledge of estuarine ecology at an experienced professional level.? Yet in working on a project in which a vendor was going to take satellite imagery, when it was necessary for Mr. Rajasekhar to determine the time of low tide, he asked Mr. Burgess how he could do this. Mr. Burgess had to show him how to read the NOAA tide chart. Within the same period of time, Mr. Rajasekhar also asked Dr. Shirley the same question, who showed him the same thing. In later conversations between Mr. Burgess and Dr. Shirley, they realized this had happened and discussed how odd this was, if Mr. Rajasekhar was an experienced professional of estuarine ecology. When asked to do a project, Mr. Rajasekhar would often say that in order to do it properly, he would need a certain amount of money, or new software, or additional hard drive space. Dr. Shirley would have to repeatedly explain that the Reserve was unfortunately on a limited budget and that a product would still be valuable if done under less-ideal conditions. Rather than delay the project, he would tell Mr. Rajasekhar that the analysis should be performed with the best technology practically available, and for Mr. Rajasekhar to annotate the data to indicate the level of accuracy. In early January, the Reserve was hosting a tour of the watershed for UF personnel working on the sea level rise project. The UF participants came over in two vans with lots of the students who were working on the project. The trip required four-wheel drive vehicles, and given the large number of people from UF and the limited number of vehicles, there was only enough room for a few Reserve personnel to visit the watershed. Dr. Shirley chose himself, as Director, Ms. Emily Montgomery, the coastal training program coordinator and a co-principal investigator on the grant, and Ms. Small, the watershed coordinator, who was giving the tour of Pringle Creek, one of her acquisition projects. Mr. Rajasekhar subsequently approached Dr. Shirley and said that he felt he had been excluded from the trip. Dr. Shirley explained why so few Reserve personnel could participate and why he had selected the ones that he did. In late January, when Dr. Shirley was on the road visiting a preserve site, the UF team asked Dr. Shirley which ?tiles? of LIDAR data were missing for Pellicer Creek, because they had decided to pick up the cost of filling in the missing pieces. The UF people were going to meet with the vendor that afternoon, so they wanted the information as soon as possible. Dr. Shirley e-mailed Mr. Rajasekhar to ask which tiles were still missing based on the map that Mr. Rajasekhar had shown him a month earlier. Mr. Rajasekhar‘s response only described background information regarding the map. Dr. Shirley replied that he only needed the number of tiles that were still missing. Again, Mr. Rajasekhar was argumentative and evasive: he gave explanations, but not the number of tiles that were missing. This dialogue went on for four or five e-mails. Ms. Small, who had been copied on all of the e-mails, finally e-mailed Mr. Rajasekhar to explain that all Dr. Shirley wanted to know was whether or not the imagery had been acquired and the number that were still missing. Mr. Rajasekhar finally provided that information to Dr. Shirley. Ms. Small and Mr. Rajasekhar were working in the same small office, which was only about 12 square feet, with their desks in opposite corners. After this incident, Ms. Small testified that Mr. Rajasekhar got up from his desk, put his hands on his hips, and said, ?[w]ell, I‘ve been excluded from the project, so I don‘t feel like I have to answer you,? or words to the effect. Ms. Small believed Mr. Rajasekhar was referring back to the UF watershed tour. Ms. Small felt that because she was a woman, Mr. Rajasekhar was not giving her the respect she deserved and that he was being insubordinate to her as his supervisor. Ms. Small told Mr. Rajasekhar that if he was going to be demeaning to her, he needed to leave the room. Mr. Rajasekhar did not leave, and Ms. Small decided that she should leave instead. After Ms. Small left the room, Mr. Rajasekhar e-mailed Dr. Shirley, with copy to Mr. Burgess, saying: ?A little while ago Andrea told me that I should not be working in this office and leave. Please let me know.? Mr. Burgess replied, ?Raj, You do not have to leave your office, continue working.? Dr. Shirley received complaints from both Ms. Small and Mr. Rajasekhar about the incident. Ms. Small told him she felt threatened and disrespected and Mr. Rajasekhar told him he felt as if his character had been attacked. Upon further inquiry, Dr. Shirley decided that Ms. Small had not been physically threatened, but rather that she was upset at Mr. Rajasekhar‘s ?posturing,? which she felt was inappropriate, as she was his supervisor. Dr. Shirley was very concerned with the misunderstanding that had occurred and with this type of interaction between his employees. Dr. Shirley was also concerned that he had not been able to easily get a simple answer from Mr. Rajasekhar. Dr. Shirley wanted to make things work. He wanted to get his employees working together and not lose the potentially very important contribution Mr. Rajasekhar could make to the Reserve. On January 30, 2012, Dr. Shirley met with Mr. Burgess, Ms. Small, and Mr. Rajasekhar to find out more details about the incident and to try to work out a plan for the future. In considering options to resolve the tensions, Dr. Shirley discovered after talking with Department personnel in Tallahassee that because Ms. Small and Mr. Rajasekhar were both serving in the position of Environmental Specialist I, that she could not technically be his supervisor, even though she had been serving in that role for about a month. On January 31, 2012, Dr. Shirley sent an e-mail to the three summarizing their meeting. The e-mail outlined several procedures to ?improve communication and efficiencies? with respect to GIS services. Among other items, the e-mail outlined that Mr. Rajasekhar would report to Mr. Burgess, Mr. Rajasekhar would provide a list of current GIS projects underway with milestones to completion, GIS projects would be completed using the best practically available data, notations would be made as to the accuracy of the product, and a summary report would be prepared by Mr. Rajasekhar at the completion of each project. The e-mail identified three projects as ?high priority?: SLAMM Model Inputs to the UF Team; the NERRS Habitat Mapping and Change Initiative; and the Reserve‘s Flow-Ways modeling effort. Dr. Shirley, Mr. Burgess, and Mr. Rajasekhar jointly developed a GIS analyst work plan for Mr. Rajasekhar. It listed seven major projects that he was to be working on, including the updating of ?burn maps,? SLAMM inputs to the UF group, the preparation of a GTMNERR Habitat Mapping plan, and generation of LIDAR based water flow ways. These projects included interim and final products, as well as due dates. Dr. Shirley was very pleased with the e-mail outlining workflow changes and the work plan, because he believed they reflected collaborative effort and he hoped and believed that they would improve operations at the Reserve and resolve some of the issues regarding Mr. Rajasekhar‘s employment. DEP Deputy Secretary Greg Munson was scheduled to visit the Reserve on May 25, 2012. Dr. Shirley prepared an agenda for the visit, establishing staff assignments and themes for various tours and briefings to complement DEP headquarters initiatives relating to restoration, ecotourism, and water resources. While some agenda items specified participation by specific staff members, Mr. Rajasekhar was not listed on any of these. Other items, including lunch at the Matanzas Inlet Restaurant, and a meeting with all Reserve staff, were open to everyone. Mr. Rajasekhar did not show up at the time and place scheduled for Deputy Secretary Munson to meet with staff, but Mr. Rajasekhar did meet with him for a short period shortly after the scheduled meeting time. Sometime in May, Mr. Rajasekhar e-mailed Dr. Kathryn Frank, head of the sea level rise project being conducted by the Reserve and UF, requesting that he be added as a co-principal investigator on the project ?for ethical reasons.? He did not let his supervisor, Mr. Burgess, or the director, Dr. Shirley, know that he was doing this. Dr. Frank explained to Mr. Rajasekhar that his contribution was appreciated, but that co-principal investigator status rested with the people who initially submitted the grant. Dr. Frank called Dr. Shirley to ask what was going on and to comment that the request was very strange. Dr. Shirley was concerned because of the important relationship between UF and the Reserve. On May 29, 2012, Mr. Rajasekhar was counseled by Dr. Shirley for inappropriately contacting the head of the UF project to request co-principal investigator status without even advising his superiors or getting their permission to do so. Mr. Rajasekhar indicated that he understood and would not do it again. On May 31, 2012, a meeting was held at UF on the sea level rise project. Dr. Shirley, Ms. Montgomery, Ms. Small, and Mr. Rajasekhar made the drive over. Mr. Rajasekhar was critical of the UF speakers and the SLAMM modeling that was presented. Dr. Shirley was not too concerned for the presenters themselves, because as scientists, he believed that they would be used to criticism. However, he later testified that he was concerned because Mr. Rajasekhar had offered no solutions, but had just criticized the accuracy of the model, with no constructive suggestions about how it could be improved. Then, during discussions at the meeting about emergency management issues relating to sea level rise and people getting away from the coast, Mr. Rajasekhar made the comment that he personally had a low income and would not be able to get out because he was at the poverty level. Dr. Shirley was concerned because he believed this personal reference was ?inappropriate,? that it was not true, and that it embarrassed the Department and presented the Department in a bad light. On June 4, 2012, Mr. Rajasekhar received an official ?oral? reprimand from Dr. Shirley for conduct surrounding the UF project team meeting and his comments regarding his personal income. The reprimand cited his behavior as a violation of DEP Standard of Conduct 435-7(a), Conduct Unbecoming a Public Employee. Mr. Rajasekhar was directed not to engage in further conduct that would bring discredit to DEP or to the State. The reprimand also noted that Mr. Rajasekhar ?barely spoke? on the two-hour drive to and from the meeting and did not walk with the rest of the delegation, but walked far in front of them. Dr. Shirley noted that this behavior was not unprofessional, but that it concerned him. The reprimand further advised that if Mr. Rajasekhar was having issues or problems that he felt he could not discuss with Dr. Shirley, that the Employee Assistance Program was available to him and to his family. When Mr. Rajasekhar was presented with the reprimand, he became defensive and argumentative. He denied having said that his income was at poverty level. However, Dr. Shirley did not believe this because the other Reserve employees present at the UF meeting confirmed that he had made that statement. Mr. Rajasekhar went on to tell Dr. Shirley that he felt he had been excluded from the Deputy Secretary‘s visit that occurred earlier in the month. Mr. Rajasekhar began talking about discrimination, saying that he had been a union representative at the Minnesota Department of Natural Resources and that knew what his rights were. Dr. Shirley was surprised at this response to the oral reprimand, because he considered it to be only a minor corrective action, not action leading toward dismissal or constituting significant discipline. Mr. Rajasekhar prepared a written response to the reprimand that same day. After presenting his differing recollection of the remarks regarding low-income housing and poverty-level incomes, his response went on to state in part: I appreciate you bringing your concerns about my behavior during the drive and the walk. Thanks for letting me know that the same is not un-professional. I participated in the work-related topics and fully acknowledge that I did not do so in non-work related topics (such as individual private matters). * * * Finally in future even if I am cautious, there inevitably would come some complaints that my conduct is unbecoming of a public employee in the eyes of some or few; for example when issues such as ethnicity/ demographics crop up. Would I then be subjected to more disciplinary action? Would minimizing (or possibly eliminating) my presence in public or other forums be helpful? Petitioner‘s presumably sarcastic reference to courses of conduct he should follow in the future when issues might arise involving ethnicity fell short of a direct claim that the oral reprimand was an act of discrimination. However, his response did indicate that Mr. Rajasekhar perceived some connection between his comments at the UF meeting, his national origin, and the reprimand. In response to Mr. Rajasekhar‘s statement during the meeting on the oral reprimand that he had felt excluded during the Deputy Secretary‘s visit, Dr. Shirley found the original e-mail that he had sent out to all of the staff with the agenda attached. Dr. Shirley forwarded this e-mail to Mr. Rajasekhar on June 4, 2013, stating that Mr. Rajasekhar had not been excluded and again explaining that due to the limited time, only a few aspects of Reserve functions that related to DEP priorities could be placed on the agenda. Shortly afterward, Ms. Zimmerman was coordinating preparation of NOAA Operations Grant progress reports. She sent out an e-mail at 12:38 p.m. on June 11 to several staff members, including Mr. Rajasekhar, explaining that two reports were due: progress report #4 on F0990; and the second progress report on F1001. Both of these reports were to cover the first half of the calendar year. She explained that she was attaching to the e-mail the remaining tasks from F0990 that she needed an update paragraph on, as well as a copy of progress report #3 so the staff could see what had been sent for the previous reporting period. She requested the update paragraphs by July 13, 2013, and advised that she would send out similar information on her request for the other grant report, F1001, shortly. At 2:37 p.m. on June 11, Mr. Rajasekhar replied to Ms. Zimmerman‘s e-mail by pasting two paragraphs from progress report #3 along with the following comments: I have gone through the documents and perused the items of relevance as requested by you. I seem to be in the dark and also somewhat confused. Below is the summary of what I just learned: (text pasted from progress report #3) * This is the first time; I am coming across this information in any significant way. I believe I have not been provided this document before for perusal. I have not been involved in any decisions either. (more text from progress report #3) * The above document contains much more information (GIS) and is concise (the way that would be ideal). However the information for most part is new to me. Flow ways update: I have not been privy to most of the information and neither have been involved (in any significant way) in any aspect of development. Habitat mapping and change plan Update: The same as above. Hence if you need professional, accurate and significant response from [sic], I request that I be more involved in the critical processes that produce these portions of the document so that I may be better equipped to do so. In addition it would greatly help some aspects of my work. Please let me know. Later that same afternoon, Ms. Zimmerman sent a second e-mail to several staff members, including Mr. Rajasekhar, specifically requesting input into the second progress report for NOAA F1001. She attached the original grant task text, as well as a copy of the previous progress report (July through December 2011) as an example of what she was looking for. The e-mail further identified the specific tasks each of the staff members was responsible for (Mr. Rajasekhar‘s were identified as Task 4, outcome 4; and Task 5, outcome 1), asking for an update paragraph by July 13, 2012. Ms. Zimmerman and Mr. Rajasekhar had further communications regarding the update paragraphs. He forwarded her e-mails he had sent earlier involving the two projects. She requested him to summarize this information into update paragraphs. He sent her another document. She asked him to carefully review her original e-mails and to submit an updated paragraph on each project. On June 12, 2012, Mr. Rajasekhar responded to Ms. Zimmerman, with copies to Dr. Shirley and Mr. Burgess, in part as follows: I have gone through the two documents (the relevant part). Both the documents contain information that is new to me for the most part. In addition, I have not been involved in producing or guidance of these documents. In fact very little of my time or efforts are spent on such activities. A very minor part of these large documents is in fact relevant to my performance. After spending significant time going through the documents and perusing the items of relevance, I am more confused. One document has items of relevance (4 & 1) as guided by you that I am not aware of till now. Had my work involved discussing or guiding these in any way, I would have been more equipped to adequately respond. More over when such documents come to my attention for response, I recommend that relevant part/s be sent to me so that I am not confused anymore and do not unnecessarily tax my time or efforts. These communications from Mr. Rajasekhar were not helpful to Ms. Zimmerman in preparing the progress reports. The tasks for which she was requesting update paragraphs from Mr. Rajasekhar involved the flow ways project and the Habitat Mapping and Change Plan, which were part of Mr. Rajasekhar‘s agreed-upon work plan and which had been identified as ?high priority? projects. Ms. Zimmerman sent an e-mail to Ms. Geraldine Austin, with copy to Dr. Shirley and Mr. Burgess, stating in part, ?[a]s a probationary employee the amount of oversight/direction needed of this employee and his response lead me to believe that termination is necessary.? On June 13, 2012, Dr. Shirley sent an e-mail to Mr. Larry Nall, interim CAMA Director, describing some of the incidents and concerns regarding Mr. Rajasekhar. In the discussion of the oral reprimand, the e-mail specifically mentioned Mr. Rajasekhar‘s references to discrimination. The e- mail also summarized the situation involving Ms. Zimmerman‘s attempts to update the progress reports for the NOAA grants. Dr. Shirley also forwarded the e-mail to Mr. Kevin Claridge, who had been hired to fill the open position of CAMA Director, but had not yet begun work. Dr. Shirley testified that he believed that the situations involving Mr. Rajasekhar were affecting staff, morale, teamwork, and the Reserve‘s partners. He found Mr. Rajasekhar‘s communications in response to requests from other staff members, including the assistant director and himself, to be often evasive and defensive. He believed that Mr. Rajasekhar defined his own duties very narrowly and that Mr. Rajasekhar‘s conduct and communications negatively impacted Reserve workflow and had the potential to damage the Reserve‘s partnerships. Mr. Rajasekhar was notified by letter signed by Mr. Kevin Claridge, Director of CAMA, that his employment was being terminated for failure to satisfactorily complete his probationary period, effective at close of business on June 29, 2012. This was a form letter used whenever it was found necessary to terminate the employment of a probationary employee. On October 5, 2012, Petitioner filed a complaint with the Commission, alleging that the Department had discriminated against him based upon his national origin, and had retaliated against him. In a November 7, 2012, Affidavit, Dr. Shirley set forth reasons for Mr. Rajasekhar‘s termination for submission to the Commission in response to Mr. Rajasekhar‘s complaint. It stated that Mr. Rajasekhar demonstrated ?inconsistent work performance and unacceptable behavior.? It noted that Mr. Rajasekhar had been counseled on occasions prior to his termination. It gave three reasons for Mr. Rajasekhar‘s dismissal: that his abilities were not consistent with the skills that had been reported on his job application, that Mr. Rajasekhar exhibited a defensive and negative attitude when confronted with expectations that were clearly within the scope of his job, and that on occasion Mr. Rajasekhar did not interact positively with other employees who depended on GIS support for their job functions. The Commission issued its Notice of Determination of No Cause on March 25, 2013, advising Petitioner of his right to file a Petition for Relief within 35 days. Petitioner filed his Petition for Relief on April 23, 2013. Mr. Rajasekhar was an excellent high-end geospatial analyst, but he had difficulty accepting any assignments not directly involving such analysis even though they were part of his job description. It is not entirely clear if this was because he was simply uncomfortable with some tasks, or unable to easily perform them, as appeared to be the case with some analyses involving hydrology or the calculation of Kappa statistics; or, alternatively, whether he simply felt such tasks were inappropriate for his position, which appeared to be the case with the preparation of burn maps and some tasks involving basic computer skills. In any event, his narrow definition of his job responsibilities adversely affected the work flow and made his work performance inconsistent. This affected team productivity at the Reserve. Mr. Rajasekhar never seemed to understand his role as part of the Reserve team. He made a request for a raise while still on probationary status, he made an inappropriate request for co-principal investigator standing directly to Dr. Frank without even notifying his superiors, and he indicated on more than one occasion that he believed he was being improperly excluded from events or activities at which his presence was not actually needed to support the Reserve mission. His relationship with other members of the Reserve team, including his superiors, was awkward, and at times his conduct was unacceptable and embarrassing to the Reserve. Mr. Rajasekhar was extremely sensitive to any comments about his performance. He became defensive and hostile at any suggestion that his performance was lacking in any way, and sometimes interpreted questions or comments that were not intended to question his performance as doing so. No evidence was presented to show that there were other probationary employees of the DEP who had received an oral reprimand and then continued to exhibit unsatisfactory behavior during the time that Mr. Rajasekhar was employed. Mr. Rajasekhar believed that he had been ?excluded? from the Secretary‘s visit and that there was a connection between his comments at the UF meeting, his national origin, and the reprimand. The comments Mr. Rajasekhar made in his oral and written responses to the reprimand to the effect that he had been discriminated against were statutorily protected activity. The actions of the Department toward Mr. Rajasekhar, and those of its employees, were not motivated in whole or in part by Mr. Rajasekhar‘s national origin. Mr. Rajasekhar‘s dismissal was not an act of discrimination or retaliation.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Mr. Dasyam Rajasekhar‘s Petition for Relief. DONE AND ENTERED this 11th day of September, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2013.
The Issue The issue is whether Respondent discriminated against Petitioner Maia Fisher (Petitioner) on the basis of her gender and retaliated against Petitioner because of her pregnancy in violation of Hillsborough County Human Rights Ordinance 00-37.
Findings Of Fact Petitioner is an aggrieved person within the meaning of Hillsborough County Human Rights Ordinance 00-37, Section 16. Petitioner is a female and filed a complaint with the Board alleging that Respondent engaged in gender discrimination and retaliation after Petitioner disclosed her pregnancy. Respondent is an employer within the meaning of Section 16. Respondent operates a printing business. Respondent is a corporation wholly-owned by Mr. John Disbrow and Ms. Angela Disbrow. Mr. and Ms. Disbrow are the principal operators and decision-makers. Respondent was Petitioner's employer. Petitioner was an employee during the relevant period. Petitioner began her employment with Respondent sometime in March 2008. Respondent terminated Petitioner’s employment on July 28, 2008. Petitioner discovered in June 2008 that she was pregnant. Petitioner informed Mr. and Ms. Disbrow. Mr. Disbrow instructed Mr. Alfred Buranda to terminate Petitioner’s employment sometime in July 2008. Mr. Buranda was the head of human resources for Respondent at that time, but has since moved on to other employment. Mr. Buranda refused to terminate Petitioner’s employment. Mr. Buranda conducted a teleconference with Petitioner in his office on July 28, 2009. Mr. Buranda telephoned Mr. and Ms. Disbrow on his office speaker phone with Petitioner present in his office. Mr. and Ms. Disbrow explained to Petitioner by speaker phone that the pregnancy was the reason for the termination of employment. Respondent owes Petitioner unpaid compensation in the total amount of $2,820.00. Respondent owes Petitioner back wages for unpaid overtime equal to $720.00. Respondent owes Petitioner unpaid commissions equal to $2,100.00. Back wages in the amount of $720.00 is the product of multiplying an hourly overtime rate of $12.00 by the total of uncompensated overtime equal to 60 hours. Unpaid commissions of $2,100.00 are composed of two parts. Petitioner made five sales under $500.00 for which Respondent owes a commission of $100.00 for each sale and a total of $500.00 for all five sales. Petitioner made eight sales over $500.00 for which Respondent owes a commission of $200.00 for each sale and a total of $1,600.00 for all eight sales. Petitioner has been living in a shelter for battered women. Contact and service on Petitioner has been problematic. The Board may require an investigator or other means to provide Petitioner with actual notice of the final order in this proceeding.
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 guilty of discrimination and retaliation on the basis of gender in violation of Hillsborough County Human Rights Ordinance 00-37 and require Respondent and its principals to pay Petitioner $2,820.00 in unpaid compensation. DONE AND ENTERED this 8th day of December, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 2009. COPIES FURNISHED: Maia Fischer 2302 48th Avenue West Bradenton, Florida 34207 Camille Blake, EEO Manager Hillsborough County Post Office Box 1110 Tampa, Florida 33601-1101 John Disbrow ADCO Printing 8412 Sabal Industrial Boulevard Tampa, Florida 33619
Findings Of Fact Petitioner, Omerea E. Herring, is a registered nurse with a degree in nursing from LaGrange College in Georgia which she attended between 1976 and 1978. No limitation was placed on her degree nor on her license as a registered nurse because of her handicap. Petitioner is handicapped visually. She was born with toxoplasmosis, a condition which leaves her nearsighted. This congenital condition has stayed the same over the years and will not likely change in the future. During Petitioner's education, she used regular textbooks, not Braille. She continued college for a year after receiving her nursing degree taking courses in liberal arts, and then was hired as an R.N. in September, 1979 by West Georgia Medical Center. Petitioner worked as a floating nurse, filling in and doing routine care and other general duties until she voluntarily left employment to move with her husband to another area in Georgia where she again secured employment as a registered nurse. Her duties entailed primarily sterilizing instruments and she remained in that job for approximately four months until her husband completed his education and they moved to Gainesville, Florida. When Petitioner applied for her nursing jobs, she informed her prospective employers of her condition and because of her handicap, there were some limits placed on her duties. For example, she requested not to be assigned to a heavy medication area and in each case, the hospital accommodated her. She asked for these limitation so as to not run the risk of inadvertently placing patients in danger. When Petitioner came to Gainesville, she was interviewed at Shands and at the time of her application, advised the interviewer she was physically handicapped and noted it on her application for employment. She was, nonetheless, selected for a further interview with the head nurse of the newborn nursery, Mrs. Wyman. Subsequently, as a result of this second interview, she was hired as an RN I in the newborn nursery starting in July, 1980. Petitioner worked on several shifts, primarily the seven am to three pm shift, but for three weeks during October, 1980, she worked the three to eleven pm shift. While on duty, her primary duties were to admit and assess patients, describe vital signs and discharges, and bathe and feed babies. She was also required to instruct new mothers on how to care for their children and did substantial charting. During her time in the nursery she did not give injections or administer medications because of her vision problems. She was unable to read the small print on the medicine bottles. Her supervisor knew this and agreed to the limitation and made alternate arrangements for the administration of medications. There was ample staff to do this consisting of between six and eight people on the shift of whom four or five were RN's and the others LPN's, Clerks and Aides. In November, 1980, she went on maternity leave. When she was originally hired, she was five months pregnant and it was obvious she would have to take maternity leave within a short time. Before leaving, she orally got permission from her supervisor. Her leave was to be for three to six months and when she left work, she was given no indication she would not be allowed to come back. It was only after the birth of her child, when she went to the hospital to fill out certain insurance forms for the hospital group insurance policy, that she was told by Mr. Bruce Malsbury, an official in the hospital personnel department, that there had been some difficulties with her work in the nursery and she would not be re-placed at Shands Hospital when she was ready to return off maternity leave. When she asked Mr. Malsbury about the availability of alternate employment with the hospital, since it was apparent to her that the decision not to bring her back was related to her visual handicap, he said there was no alternative placement available. To the day of the hearing, she has not received any official notice in writing of her termination. However, in January, 1981, she submitted a letter of resignation to Mr. Malsbury based on her need to be at home with her new child. Petitioner claims however, that this letter was suggested to her by Mr. Malsbury, after he advised her that she would not be rehired, on the basis that if she could show that she resigned, it would be easier for her to secure employment elsewhere. No evidence to contradict this was presented by Respondent. Mr. Malsbury did not testify and the custodian of the records was unfamiliar with the background relating to the letter in question. When it became obvious that Petitioner would not be rehired at Shands, she applied at the Alachua General Hospital in early 1981 for employment as an RN. Though she interviewed, she was turned down on the basis, she was told, of a poor recommendation from Shands. Respondent contends that Petitioner was terminated from employment as a part-time temporary employee on November 12, 1980, involuntarily, because of derogatory comments contained in her personnel record. On the termination report, signed by Mrs. Wyman on January 12, 1981, there was a recommendation that Petitioner not be rehired in any job. The termination was based on two incidents reflected in incident reports both dated October 27, 1980, thirty minutes apart. In each case, the shift supervisor, Ms. Hitchcock, wrote the Petitioner up because of minor injuries to infants which, it was claimed, were resulting from the improper handling of the infants by Petitioner. Petitioner did not take any action to contest the decision of the Respondent at the time. When Mr. Malsbury discussed the situation with Petitioner at the time she came in to file the insurance forms, he merely indicated there had been a complaint filed by Ms. Hitchcock, but gave no specifics. This was the only notice she was given of any complaints about her work and it related only to the one shift in October, 1980. Her license as a registered nurse is currently in effect, but during the period June, 1981 through June, 1984, her license was suspended for a period of time. The complaints submitted by Ms. Hitchcock to the Board of Nursing were identical to those described above including allegations that she was too rough with the babies, bumped into things with them, and was improper in her bottle feeding. Though she has applied for employment at other hospitals besides Shands and Alachua General in the general area where she lives, she has not been hired. She is now employed in industry as an industrial nurse doing primary care for employees. In addition to the part time job in industry, Petitioner also worked for the Sunland system as a cottage nurse during the period August to December, 1981. She left there because of a second pregnancy and decided to stay home and raise her children. Her three children are now ages 5, 3 and 8 months. She has never been fired from any employment other than with Shands. Petitioner contends there are many RN positions available at Shands where her handicap would not interfere with her duties and she is convinced she could satisfactorily fill any of them. Lists of vacant positions at Shands in the nursing career field for the period February 17, 1984 through September 10, 1984, reveal numerous staff nurse positions available in various departments throughout the hospital. However, Petitioner has failed to show that she is capable of performing duties safely in any of the numerous Staff Nurse I positions. Her unsupported allegations that she can perform many nursing positions which do not require good eyesight is insufficient to establish that she is qualified for any of the listed positions. Notwithstanding, her license is currently in good standing and current and she has completed all educational and other requirements necessary to keep her license current. In 1984, Petitioner again applied for employment with Respondent but was not given an interview. She was advised in writing that her application would be kept on file but that there was no job available for her at that time. A phone call to Mr. Malsbury revealed she was not hired because of her termination in 1980. It is because of this 1984 failure of Shands to hire her that Petitioner filed the complaint with the CHR. Shand's Policy C, as outlined in Memorandum PM-218, dated January 5, 1984 states that former employees terminated because of unsatisfactory performance, job abandonment, or misconduct, will not be considered for rehire. Since Petitioner had been terminated in 1980 because of unsatisfactory performance, consistent with that policy she was not eligible for rehire in 1984. Notwithstanding the fact that Ms. Hitchcock and Mrs. Wyman, along with several of the other nurses with whom Petitioner worked considered her performance to be unsatisfactory, others, all of whom are either RN's or LPN's who worked with her at various times when she was a Staff Nurse I in the newborn nursery, and who had the opportunity to observe her on a repeated basis, felt certain that she did her job in a satisfactory fashion. Petitioner made it known what duties she could not do and in all cases, when confronted with a situation where she felt it was improper for her to attempt to render patient care, she got assistance from someone else to do that particular job. None of them ever observed any deficiencies in Petitioner's nursing performance or her educational background which resulted in poor patient care. No one ever saw her injure any child under her care either intentionally or negligently. Most of these witnesses, who have been active in nursery nursing for a period of time, have concluded that babies do, in fact, scratch themselves due to long fingernails and there is no evidence that Petitioner was directly responsible for the injury to any patient under her care. It is also the opinion of one of her associates who complained about Petitioner, that she tended to over-react. Within the nursing community at Shands in the nursery, there was some difference of opinion as to the appropriateness of Petitioner's discharge in the first place. While it is obvious that Petitioner may not have been responsible for substandard care (though her license was suspended for a period) and her discharge may have been more the result of internal ward factionalism rather than ineptitude, there is no evidence that it was the result of unlawful discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Omerea Herring's Petition for Relief from Unlawful Employment Practice be denied. RECOMMENDED in Tallahassee, Florida this 29th day of April, 1986. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1986. COPIES FURNISHED: Phil S. Whiteka, Esquire 537-3 N.E. 1st Street Gainesville, Florida 32601 Thomas M. Gonzales, Esquire P. O. Box 639 Tampa, Florida 33601 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303 Betsy Howard, Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303
The Issue Did the Respondent, Placida SAS, LLC, d/b/a The Fishery Restaurant (Placida), unlawfully discriminate against Petitioner, Jon A. St. Laurent, in hiring because of his age?
Findings Of Fact Placida is a restaurant in Port Charlotte, Florida. In February 2015, it advertised on Craig’s List for a cook offering pay of $14.00 per hour and a $500.00 signing bonus. Placida operates seasonally. It closes May of each year. It re-hires when it re-opens in September. The evidence does not establish that employment with Placida continues season to season. Mr. St. Laurent responded to the advertisement. Mr. St. Laurent is qualified for the position. He is a former chef with years of experience. Mr. St. Laurent was 64 years old. He submitted an application. The then manager, Wendy Hummel, interviewed Mr. St. Laurent on February 24, 2015. Ms. Hummel asked questions that demonstrated she was weighing Mr. St. Laurent’s age against him. She asked him if at his age he was capable of standing on his feet for long hours. She also asked if at his age he was capable of working the kind of shifts that are required in a high-volume restaurant. Placida did not contact Mr. St. Laurent to advise him whether it had decided to hire him. He saw more advertisements for cooks by Placida on Craig’s List, also offering a $500.00 signing bonus. So Mr. St. Laurent emailed Ms. Hummel to remind her of his availability and qualifications and to inquire if Placida had decided whether to offer him a job. In emails, as early as March 7, 2015, Mr. St. Laurent reminded Ms. Hummel of his qualifications and of her comments about his age and its affect upon his ability to perform the job. After repeated emails from Mr. St. Laurent, Ms. Hummel replied saying that his skills did not meet the job requirements. Her email says the restaurant was looking for line cooks with experience in a large restaurant and his skills were more geared towards large event cooking. Ms. Hummel also testified, albeit unpersuasively, that Mr. St. Laurent’s experience was not well suited for Placida’s operation. She eventually, denied questioning Mr. St. Laurent’s ability to perform the job because of his age. But the majority of her testimony about the comments was along the lines of saying that she knows better than to make such comments. One example is: “That, that basically, I would be very hard pressed to believe I asked him anything about his age . . . .” (Tr. p. 32). This way of addressing the issue, Mr. St. Laurent’s testimony’s consistency with his early descriptions of the interview, and the undersigned’s observation of the witnesses results in a conclusion that Mr. St. Laurent’s testimony is more credible and persuasive. Placida did not hire Mr. St. Laurent solely because of his age. When Placida refused to hire Mr. St. Laurent and in the months following, Placida worked consistently and urgently to recruit and employ cooks, as shown by continuing advertisements and signing bonuses. Yet it refused to hire a qualified applicant, Mr. St. Laurent. The evidence proves that this was because of his age. If Placida had employed Mr. St. Laurent effective March 1, 2015, until closing for the season on May 1, 2015, he would have worked for eight weeks and three days. Paid $15.00 per hour for 40 hours a week, Mr. St. Laurent would have earned $4,816. In addition, Mr. St. Laurent would have been paid a $500.00 signing bonus. The total damages in lost wages or “back pay” to Mr. St. Laurent, caused by Placida’s discrimination against him because of his age, is $5,316.00.
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 that: Holds that Respondent, Placida SAS, LLC, d/b/a The Fishery Restaurant, did not employ Petitioner, Jon A. St. Laurent, solely because of his age; Prohibits Respondent, Placida SAS, LLC d/b/a, The Fishery Restaurant, from discriminating on account of age in its hiring; and Awards Petitioner, Jon A. St. Laurent, back pay in the amount of $5,316.00. DONE AND ENTERED this 29th day of March, 2016, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2016.
The Issue Whether Respondent engaged in an unlawful employment action as alleged by Petitioner and, if so, what relief should be granted.
Findings Of Fact Petitioner is a black male. He identifies himself variously as a "Caribbean black," "Jamaican," and "Rastafarian." Respondent conducts its business at Port Everglades, a major Florida seaport (Port Everglades or the Port). Respondent's business is to service passenger and commercial shipping by transporting and loading cargo in and about Port Everglades. Respondent is an employer within the meaning of the applicable statutory provisions. Petitioner was employed by Respondent from August 13, 2002, until October 29, 2003, when he was terminated. At all relevant times, Lizabeth Divers (Divers) has been Respondent's Director of Human Resources. In that capacity she was responsible for Respondent's personnel matters as well as its compliance with the FCRA. Her job includes, at all relevant times, hiring and firing; employee discipline; implementing company polices; and receiving and investigating complaints lodged verbally or in writing by employees about any matters affecting their employment.1 At all times material to this case, Petitioner was aware of his right to lodge complaints verbally or in writing with Divers with respect to any matter affecting his employment, including any alleged unlawful employment practice. At no time prior to his termination did Petitioner do so. The record contains no persuasive evidence concerning the composition of Respondent's workforce by race, national origin, religion, or any other classification relevant to Petitioner's claim against Respondent under the FCRA. As previously noted, Petitioner was employed by Respondent from August 13, 2002, until October 29, 2003, when his employment was terminated by Divers for violating a company policy prohibiting possession of firearms or other weapons on Port property (the weapons policy). All of Respondent's employees, including Petitioner at all times material to this case, gain access to Port Everglades only by passing a security checkpoint. A security guard thereupon confirms that the individual has current port identification and parking decal. Once cleared to enter the Port, Respondent's employees have access to the entire Port, and are generally not under direct supervision as they perform their jobs. Respondent's weapons policy is grounded in reasons that were obvious to any employee, and which had to have been obvious to Petitioner. The need for such a policy is self-evident. There is no evidence that any other person employed by Respondent has ever violated the weapons policy. At relevant times Petitioner was licensed by the state to carry a concealed weapon. State licensure does not constitute authorization for Petitioner to ignore Respondent's weapons policy. Petitioner had no job-related reason to carry a gun. Petitioner's job was to drive a truck known to seaport workers as a "mule." Mules are used to transport cargo from one location to another. Petitioner's basic job duty was to drive box loads of material from one location to another at Port Everglades. Petitioner was qualified to do his job and performed his duties adequately with no prior disciplinary record. Divers was unaware of Petitioner's alleged violation of the weapons policy until the start of the business day on Monday, October 29, 2003. At that time, it was brought to her attention that one or more of Petitioner's co-workers had confronted him over the weekend regarding a bulge at his waist, and that Petitioner had confirmed that the bulge was a gun. Divers felt this alleged violation of the weapons policy was a serious accusation which, if true, would warrant immediate termination. She also felt that it posed a potentially life-threatening situation. Divers determined that Petitioner was scheduled to work that day. Divers immediately left her office and proceeded to the Broward County Sheriff's Office (BCSO) Port Everglades precinct to advise of the potential security threat. Divers sought BCSO's assistance in addressing this unprecedented and potentially dangerous situation. BCSO immediately provided assistance in the form of three armed deputies. Each officer drove his police vehicle to intercept Petitioner on Port grounds. The officers interviewed Petitioner in the presence of Divers. Petitioner freely admitted that he regularly concealed his gun in his vehicle. Petitioner had access to his vehicle throughout his shift. The officers verified Petitioner's concealed weapons permit. Divers informed Petitioner and the officers that she was terminating Petitioner's employment. There is no persuasive evidence that Petitioner protested this action or complained that it was motivated by race, national origin, or religion. Instead, the evidence established that Divers made a decision she was authorized to make, i.e., to terminate Petitioner for his admitted violation of the weapons policy. The officers disassembled Petitioner's gun, placed it in the trunk of Petitioner's vehicle, and escorted Petitioner off the Port property. There is no evidence regarding who, if anyone, was hired to replace Petitioner following his termination. Petitioner has failed to show that any other similarly situated employee who violated the weapons policy was treated differently from Petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and denying all relief requested therein. DONE AND ENTERED this 1st day of November, 2005, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 1st day of November, 2005.
